Full Judgment
The said order was not appealed against by either of the parties and consequent to such direction given by Talukdar, J., an Apex Medical Board of the employer after examining the writ petitioner arrived at the conclusion that on 30th June, 2008, the date of examination, the writ petitioner should be aged between 55 and 65 years.
In view of such assessment by the Apex Medical Board of the employer, the writ petitioner challenged such assessment by filing another writ application out of which the present mandamus appeal arises. It appears from the order impugned that His Lordship by relying upon the decision of the Supreme Court in the case of Jaya Mala vs.
Home Secretary, Government of Jammu & Kashmir & Others, reported in AIR 1982 SC 1297, came to the conclusion that such a margin of 10 years cannot be accepted as appropriate assessment. Consequently, His Lordship directed the Chief Medical Officer, Government of West Bengal, in the District of Burdwan, to constitute a Medical Board, as indicated earlier.
Being dissatisfied the employer has come up with the present appeal. Although Mr. Majumder, learned Counsel appearing on behalf of the appellant, at the very outset tried to impress upon us that the Learned Single Judge should not have entertained the writ application for the purpose of reassessing the age of the employee as this was a malafide application, we are not at all impressed by such submission in view of the fact that in the past S.P. Talukdar, J. already disposed of the earlier writ application filed by the writ petitioner where such point was available to the employer. For not filing any appeal against such order, such question is no longer open to the employer.
After going through the report submitted by the Apex Medical Board of the employer, we also are of the same view taken by the Learned Single Judge. We are told that in the meantime pursuant to the order impugned the Medical Board in the District of Burdwan has already examined the writ petitioner and in the opinion of the said Board the age of the writ petitioner should be assessed between 50 and 60 years as on 10th February, 2010.
In our view, for the self-same reason indicated in the order impugned, the said order also cannot be supported. In such circumstances, we propose to dispose of this appeal by directing the Surgeon Superintendent, SSKM Hospital, Kolkata to assess the age of the writ petitioner by the modern method available in such hospital. One of the Medical Officers of the employer should be permitted to be present in such assessment.
Let such investigation be done at the latest by 30th November, 2010. The appellant and the respondent are directed to communicate this order to the Surgeon Superintendent, SSKM Hospital, Kolkata and to render all sorts of cooperation to the said Hospital authority for such investigation. Pursuant to this order, the Medical Board of SSKM Hospital should give a report to this Court by 15th December, 2010. The investigation report should be sent to the Registrar, Original Side by a sealed cover.
The appeal is thus disposed of with the above direction. Let the matter appear on 20th December, 2010 for further order. Let Photostat certified copy of this order, if applied for, be supplied to the parties by Tuesday next (21.09.10) subject to compliance with all requisite formalities.