N. Sengupta, J. - (1.) This original application has been filed by the Union of India through the General Manager, Eastern Railway for declaring an order of which is at Annexure -B, passed by the Assistant Labour Commissioner (Central) Calcutta, the Controlling Authority under the Payment of Gratuity Act 1972, on 5.1.89 and the order of the Appellate Authority under the said Act dated 24.9.90, as illegal and without jurisdiction.
(2.) The facts, so far as material for, this case, are that the present respondent No.1, Basudeb Kewat, was working as a Pointsman in the Eastern Railway. A Pointsman belongs to that category of railway servant, whose eyesight is to be tested periodically to determine his fitness to continue to hold that post. In 1981 there was an eye examination of respondent No.1 and subsequently in 1982 there was a physical fitness test which was held by the Divisional Medical Officer (DMO), B.R. Singh Hospital, Sealdah. During that examination it was found that respondent 1 required correction of his eye sight by taking the aid of lenses. Respondent 1 after that examination by the DMO, B. R. Singh Hospital, wanted to be assigned duty he was previously performing. The medical opinion was that the applicant was unfit for categories A2, A3, B1, B2,and C1 but he could be fitted in category C2 with glasses. Respondent 1 was given an opportunity to prefer an appeal against that finding of the DMO which he did not avail of; Respondent 1 on his own appeared before the CMO (Health), 24 Parganas testing his vision the said CMO opined that the eye sight of respondent 1 with glasses was normal. In March 1983, respondent 1 was asked to appear before the De -categorised Screening Committee On 26.3.83. Against this direction, respondent 1 filed a writ in the High Court of Calcutta asking for not giving effect to the order directing him to appear before the decategorised screening committee. In the meanwhile, respondent 1 reported before the CMO, Eastern Railway on 13.6.83 who again examined his eye sight and the said CMO opined that respondent 1 was fit only for category C2 with glasses. In these circumstances, the first respondent was not permitted to resume his duty as Pointsman and as he (the first respondent) did not appear before the de -categorised screening committee, he could not be assigned any duty whatsoever. The writ application filed by respondent 1 in the High Court of Calcutta stood transferred to this Tribunal and was numbered as T.A. 1810/86. That T.A. was disposed of by observing that the applicant, respondent 1 herein, was not entitled to the reliefs that he claimed. A copy of the judgement in that T.A. is available at Annexure -A to the application. The railway administration in view of the facts of the case were of the opinion that the respondent 1 should be deemed to have retired from the date he ceased to work as Pointsman and on that basis was to be paid his retiral benefits. Respondent 1 moved an application before the Assistant Labour Commissioner (Central), Calcutta functioning as the controlling authority under the Payment of Gratuity Act, 1972 for a direction to the railway administration to pay him taking the period of his service to be from his (respondent No. 1's) date of appointment till the date when he would have superannuated. There was no appearance before the said Asst. Labour Commissioner on behalf of the present applicants. The Asst. Labour Commissioner found the present first respondent entitled to the payment of Rs. 29596.15p. as gratuity and the railway administration was to pay interest on that amount at the rate of 10% per annum from 21.12.87 in the date of actual payment. Against this order of the Asst. Labour Commissioner, an appeal was preferred before the Regional Labour Commissioner (Central) by the Divisional Railway Manager, Eastern Railway, Sealdah. That appeal did not succeed. The applicants have prayed for the quashing of the orders of the Asst. Labour Commissioner and the Regional Labour Commissioner stating that they had no jurisdiction to entertain the application that was filed by respondent 1 before the controlling authority.
(3.) We have heard Mr. M. M. Mallick, counsel for the applicants and Mr. Mihir Chakraborty, counsel for the respondents and we propose to dispose of the application at the stage of admission itself in view of the nature of the issue involved.;