- (1.) The petitioner appellant was appointed an Insurance Medical Practitioner by the Administrative Medical Officer of Employee's State Insurance of the Government of West Bengal on 30th July, 1964. The petitioner joined his duties and continued to work till July 13, 1966, when the Administrative Medical Officer asked him to submit a written explanation about certain irregularities namely, that he prescribed costly medicines for minor ailments and that he did not recommend my leave to the insured persons who were suffering from remittent fever. The petitioner filed his reply on July 20, 1966 s'ating that for minor ailments he supplied the mixture and other necessary medicines and costly medicines were prescribed only when they were badly needed. He further submitted that in case of remittent fever he usually recommended leave but if the patients refused to take any leave he could not compel them to undergo absentation. Thereafter, it appears that the petitioner was called upon to see the Administrative Officer on March 14, 1967. By a letter dated 29th Sept. 1967 the petitioner was informed by the Assistant Secretary to the Government of West Bengal that his services will not be required by the Government after Jan. 15, 1968. This order was passed in exercise of the powers conferred by sub-cl. .(1) of cl. 11 of Sch. 1 to the West, Bengal. Employee's State Insurance (Medical Benefit) Rules, 1955 framed -under Section ,96(1), Cls .(d) to (h) of the Employee's State Insurance Act, 1948. The petitioner thereafter moved this Court by an application under Art. 226 of the Constitution on Nov. 28, 1967 and obtained the rule. The rule was opposed on behalf of the respondents and an affidavit-in-opposition affirmed on Feb. 28, 1968 was filed by Dr. Haridas Chakraborty, Administrative Medical Officer of Employee's State Insurance, Government of West Bengal.
(2.) The rule came up for hearing before Sabyasachi Mukharji, J. and His Lordship following the decision in the case of Dr. Nanigopal Ghose V/s. State of West Bengal, 1970 AIR(Cal) 1: (1970 Lab IC 24) held that the Insurance Medical Officer under the Employee's State Inrurance Scheme was not an employee of the State Government and that his services were under a contract of service and not an appointment by the State. Accordingly, the present application, it was held, was not maintainable.
(3.) The present appeal is against the said order. Mr. Ghose submitted that the learned trial Judge did not consider that even if the petitioner was not a Government servant, he was entitled to relief as in terminating his services the statutory rules had not been followed. R. 11(1) of Schedule I of the West Bengal Employee's State Insurance {Medical Benefit) Rules 1955 framed under Rule 5 thereof providing for terms of service of medical practitioners provides as follows: "11. Removal and withdrawal from medical list. (1) The State Government may have the name of any individual Insurance Medical Practitioner removed from the medical list after giving due notice of not less than three months to the Insurance Medical Practitioner, except in case of gross negligence and misconduct when the period of notice need be only one month.........". Prima facie, the petitioner's name was removed from the medical list after giving three month's notice and this order was passed in compliance with the provision of Rule 11. Mr. Ghose, however drew our attention to the West Bengal Employee's State Insurance (Medical Benefit) Rules, 1974 which were published in Calcutta Gazette on April 10, 1974. It was provided in Rule 1(3) that the said rules would come into operation in such areas of West Bengal and on such dates as the State Government may, by notification in the Official Gazette, appoint. These rules obviously came after April 10, 1974 whereas the impugned order was passed on Sept. 29, 1967. It is, clear, therefore, that on the day the order was passed and the removal came into effect after Jan. 15, 1968, the new rules had not come into force. Mr. Ghose also drew our attention to Rule 36 of 1974 Rules which is as follows : "36. Termination of Service. (1) The State Government may terminate the services of any Insurance Medical Practitioner without assigning any reason, after giving him notice of not less than three months : Provided that the State Government shall afford the Insurance Medical Practitioner concerned a reasonable opportunity of making representation to it." He also drew our attention to Rule 41( ) Part V of the 1974 Rules which runs thus: "1. The West Bengal Employee's State Insurance (Medical Benefit) Rules, 1955. are hereby repealed. 2. Notwithstanding such repeal, anything done or any action taken under the said rules shall be deemed to have been done or taken under these rules".;