Form No. J(2)

In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

Present: The Hon’be Justice Sabyasachi Bhattacharyya

And

The Hon’ble Justice Supratim Bhattacharya

F.M.A. 2447 of 2007

Dr. (Miss) Milly Dey

Vs.

Burn Standard Co. Ltd. and others

For the appellant (in person) : Dr. (Miss) Milly Dey

For the Union of India : Mr. Pinaki Ranjan Chakraborty

Mr. Ganga Prasad Mukherjee

Heard on : 06.11.2025 Judgment on : 06.11.2025

Sabyasachi Bhattacharyya, J.:-

1. CAN 12 of 2025 is treated to be on the day’s list.

2. The present application is in effect for review of an order dated

June 6, 2022, whereby a Division Bench of this Court proceeded on the basis that in view of a concession made by the appearing parties, the appellant/review applicant would be treated as

retired from service with effect from August 5, 2003.

3. It was further recorded in the said order that in terms of the

concession, the allegations brought against the appellant would

be treated as withdrawn and/or cancelled and that the appellant would be entitled to all retiral benefits available to her up to August 5, 2003.

4. However, the present bone of contention is that the coordinate Bench, while observing as above, added that the review applicant would not be entitled to salary for the period from September 5, 2001 to August 5, 2003.

5. The Division Bench went on to hold that the review applicant, however, would be entitled to all notional benefits, including incremental benefits, during that period for the purpose of computation of retiral benefits.

6. The appellant, appearing in person with the leave of the court, submits that she never conceded to waiving her salary for the period between September 5, 2001 and August 5, 2003 and the concession, if any, was given only on behalf of the respondents to the limited extent that the order of removal from service of the appellant would be substituted by that of premature retirement as on August 5, 2003.

7. Learned counsel appearing for the respondents contends that there was tacit consent on the part of the appellant to the entire order dated December 12, 2019.

8. Even after having taken full advantage of the order by accepting the other benefits, the appellant came up after four years, subsequent to filing of a contempt application in the meantime, with the present review application.

9. It is, thus, submitted that the present application is not only time-barred but also not maintainable in law, since the order under review was passed on consent.

10. Upon careful consideration of the submissions of parties, we find that although the appellant subsequently became an Advocate, she was not one at the relevant juncture and was never in regular legal practice. As such, the petitioner is not expected to be too well-conversant with the nuances of law and legal procedure.

11. The said position is evident even from the nomenclature of the present application itself, which states that the application is for “New Cause of Action Arising out of Non-Existence of the respondent Burn Standard Company Limited”.

12. In the same breath, it is stated, that it is an application under Order XLVII Rule 1 of the Code of civil Procedure as well as restoration of the case.

13. The caption also says that the application is under Order IX Rule 9 of the Code of Civil Procedure, which provision could not be applicable since the order under review was passed in presence of both parties.

14. Such confusion in nomenclature itself is indicative of the fact that the appellant was not well-conversant in law, having not had much previous practice as an Advocate, and as such might well have been confused as to the remedy available to her, leading to the delay in filing the present application.

15. It is evident from the filing of the contempt application in the interregnum by the appellant that the appellant initially proceeded on the premise that she was entitled, in terms of the order under review, to all retiral benefits on the premise that her tenure of serv