Calcutta High Court (Appellete Side)
Siba Prasad Banerjee vs Union Of India & Ors on 19 November, 2019
1
Item No. 26
In The High Court At Calcutta
Constitutional Writ Jurisdiction
19.11.19
WP No. 21115 (W) of 2019
Siba Prasad Banerjee
v.
Union of India & Ors.
Mr. Subrata Mookherjee
Ms. Anindita Auddy
... for the petitioner.
Mr. Bishwambhar Jha
... for the respondents.
The petitioner is serving as a constable (Daftary) of the Border Security Force. He is suffering from Ankylosing Spondylitis. He is under treatment in the Government Medical College & Hospital at Kolkata. The petitioner has annexed a certificate issued by the Assistant Professor, Department of Medicine, R.G. Kar Medical College & Hospital, Kolkata wherein it has been mentioned that considering the health condition of the petitioner an injection is to be injected once in a month for a period of six months and after that his follow up action/periodical check up is essentially required for another six to seven months from the date of last/final injection injected to the patient.
A sum of Rs. 2,70,000/- only has been paid to the petitioner on account of medical reimbursement for the treatment of his ailment. A further certificate dated July 28, 2017 issued by the Head of the Department of Medicine, Kolkata Medical College & Hospital has been annexed with the writ petition indicating that the petitioner is suffering from the aforesaid disease since 2011. The same is a major illness and he is to take treatment frequently to save his life.
2
The petitioner is aggrieved by the order of transfer dated October 16, 2019 whereby he has been transferred from Kolkata to Silchar.
The petitioner submits that as he is undergoing medical treatment at Kolkata he may be relieved from being transferred to Silchar.
The petitioner prays for a direction upon the respondents for retaining him at Kolkata. The petitioner has annexed a copy of the recommendation dated November 12, 2018 issued by the Commandant of the 27 Bn BSF whereby the Commandant certify that the petitioner is undergoing treatment at the Government Medical College & Hospital, Kolkata. He is having restricted movements of body due to stiffness on his neck & spine. He is taking regular treatment from Government Medical College & Hospital, Kolkata. The said Commandant recommended extension of his tenure of posting with 27 Bn BSF for one year upto ATO-2020 on medical ground to avail better medical facilities of the Government Medical College & Hospital, Kolkata.
The petitioner has also relied upon the recommendation dated November 9, 2018 issued by the Chief Medical Officer (S.G.) SHO BSF, Kolkata whereby regular follow up treatment at Kolkata has been recommended in his favour.
The learned advocate appearing for the respondents submits that the petitioner is posted at Kolkata for a considerable period of time. Service in BSF is transferable and the petitioner is liable to be transferred to any place where similar type of treatment may be available to him.
Upon hearing the submissions made on behalf of both the parties and upon perusal of the materials on record it appears that admittedly the petitioner is suffering from the aforesaid disease for a considerable period of time. The petitioner is under constant treatment before the Government hospital at Kolkata. The doctors treating the petitioner and the Commandant have recommended retention of the petitioner at Kolkata to allow him to continue with his medical treatment. It may not be disputed that similar treatment may be available to the petitioner at Shilchar but considering the fact that he is under treatment at Kolkata for a considerable period of time it may not be justified to move the petitioner elsewhere in the interest of his health. 3
It is settled law that it is the prerogative of the employer to decide the place where an employee may be posted taking into consideration the administrative exigencies and it is not open for the court to interfere in the matter unless there has been violation of the principle of natural justice.
In the instant case there are sufficient documents indicating that it is best to retain the service of the petitioner at Kolkata on medical grounds. Under such circumstances it is incumbent upon the respondents to reconsider the posting order which has been issued in his favour on November 16, 2019 on medical grounds.
The instant writ petition is accordingly disposed of by directing the respondent no. 2 being the Director General, Border Security Force to consider the prayer of the petitioner for retaining him at Kolkata on medical grounds. The said respondent shall take a decision in the matter within a period of three weeks from the date of communication of a copy of this order. The said respondent shall communicate the petitioner the reasoned order passed therein immediately thereafter.
The impugned order of posting dated October 16, 2019 directing the petitioner to move to Silchar shall remain stayed till the decision taken by the respondent no. 2 is communicated to the petitioner.
WP No. 21115(W) of 2019 stands disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
sh ( Amrita Sinha, J.)