Skip to content


State of Madhya Pradesh Vs. Dr. Chamanlal Nagrath - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1981)IILLJ46MP
AppellantState of Madhya Pradesh
RespondentDr. Chamanlal Nagrath
Cases ReferredPirthi Pal Kunwar v. Guman Kunwar I.L.R.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - d 1) dated 25th march, 1965 expressing his inability to work as professor of surgery in.....orderj.s. verma j.1. this is defendant's appeal against the judgment and decree dated 30th november, 1973 passed by the first additional district judge. bhopal in civil suit no. 50-a of 1973. the order (ext. p4) dated 17th september. 1965 by which the plaintiff was invalidated from service, has been declared to be void and consequently a decree of recovery of rs. 40,984 as arrears of salary has been passed.2. the plaintiff after obtaining the degree of f.r.c.s. (london) was appointed lecturer in orthopaedic surgery in 1954 in the erstwhile state of madhya bharat at the mahatma gandhi memorial medical college, indore. he was confirmed as lecturer on 19th august, 1955. the plaintiff was then appointed as a reader in chest surgery in october, 1956 and was confirmed in october, 1957. in.....
Judgment:
ORDER

J.S. Verma J.

1. This is defendant's appeal against the judgment and decree dated 30th November, 1973 passed by the First Additional District Judge. Bhopal in Civil Suit No. 50-A of 1973. The order (Ext. P4) dated 17th September. 1965 by which the plaintiff was invalidated from service, has been declared to be void and consequently a decree of recovery of Rs. 40,984 as arrears of salary has been passed.

2. The plaintiff after obtaining the degree of F.R.C.S. (London) was appointed Lecturer in Orthopaedic Surgery in 1954 in the erstwhile State of Madhya Bharat at the Mahatma Gandhi Memorial Medical College, Indore. He was confirmed as Lecturer on 19th August, 1955. The plaintiff was then appointed as a Reader in Chest Surgery in October, 1956 and was confirmed in October, 1957. In October, 1960 the plaintiff was appointed Additional Professor of Surgery at the M. G. Memorial Medical College, Indore.

3. In 1962 the plaintiff unfortunately suffered from a severe attack of coronary thrombosis and thereafter in October, 1963 and February, 1965 he suffered from two subsequent attackes of angina. In the meantime in the year 1964, the plaintiff applied for the post of professor in surgery in response of an advertisement issued for filling three posts of professors in different Medical Colleges in the State of Madhya Pradesh. The plaintiff was one of the three persons selected to fill these three posts as professors.

4. On 18th March, 1965 the plaintiff was appointed as Professor of surgery and was posted to the Medical College, at Raipur, The plaintiff then wrote a letter (Ext. D 1) dated 25th March, 1965 expressing his inability to work as Professor of surgery in the Raipur Medical College on the ground of his bad health. The plaintiff stated therein that he had suffered a serious attack of coronary thrombosis after which he was still under the active surveillance of Dr. S.K. Mukerjee of Indore. It was further stated that there was history of heart ailment in his family, both his parents having died of coronary thrombosis. His grandfather died at the early age of 40, his elder brother at the age of 47 and his brother-in law at the age of 46, all having died of the same disease, viz., coronary thrombosis. It was stated that due to the compelling reasons of plaintiff's health and family responsibilities it was not possible for him to leave Indore and take up the assignment at Raipur. He also added that he was unable to take any risk and jeopardize his life for the reasons given. The plaintiff also sent a certificate (Ext C 8) dated 4th April, 1965 of Dr. S.K. Mukerjee of Indore. In this certificate after stating the fact that the plaintiff had suffered an attack of coronary thrombosis and thereafter attacks of angina it was added that a change of place to Raipur ; 'where he could have to build a department from a scratch, may have a deleterious effect on his health and shorten his life.' In short plaintiff gave out his physical incapacity for his inability to work at Raipur.

5. The plaintiff had for the above reasons not joined at Raipur inspite of his appintment by order dated 18th March, 1965 as a Professor at Raipur. Obviously on account of the serious physical incapacity given out by the plaintiff himself, the Government was led to constitute a Medical Board in order to obtain a proper assessment about the state of his health to decide if he could be continued in service. By order (Ext. D 3) dated 19th June, 1965 addressed to the Director of Health Services of the State Government, the State Government constituted a high powered Medical Board to examine the plaintiff and report about the state of his health. The members of the Board were : Dr. C. B. Singh of Kanpur as Chairman, Dr. S.S. Mishra, Professor and Head of the Department of Medicine, K. G. Medical College, Lucknow and Professor of Medicine of Medical College, Gwalior, as members. It appears that Dr. S.S. Mishra of Lucknow could not function as a member of the Board and, therefore, Dr. S.K. Bose, Civil Surgeon of Bhopal was taken as a member in his place.

6. On 29th July, 1965, the plaintiff was examined by the Medical Board consisting of Dr. C.B. Singh as Chairman and Dr. P. N. Laha, Professor and Head of the Department of Medicine, Medical College, Gwalior and Dr. S.K. Bose, Civil Surgeon, Bhopal as the two members. Previous history of plaintiff's illness was written by the Medical Board as given out by the plaintiff himself and then the opinion of the Board was given after examining him. Exhibit P5 dated 20th July, 1975 is that document containing the plaintiff's declaration of the past history and the report of his physical examination made by the Board and its opinion. It appears that the opinion of the Medical Board contained in this document was confined only to the state of plaintiff's health and no opinion therein was given about the physical capacity of the plaintiff to continue in service and, therefore, the State Government sought a clarification on this point. The Board, therefore, met again and in the light of their opinion given earlier clarified vide Ext. C 9 dated 20th August, 1965 that the persisting disability of the plaintiff in his cardiac vascular system and the resulting limitations in his activities coupled with the risk involved make it inadvisable for the Government to continue the plaintiff in service. Acting on this opinion of the Medical Board the impugned order (Ext. P4) dated 17th September, 1965 was issued in which it was stated that the plaintiff is invalided and retired from Government service from the date of the receipt of this order.

7. The plaintiff filed the suit on 24th September, 1968 on the verge of expiry of limitation claiming a declaration that the aforesaid order is void and consequently for arrears of salary.

8. The plaintiff's case briefly stated is that the impugned order amounts to infringement of Article 311 of the Constitution inasmuch as he has been removed from service in this manner without adopting the procedure laid down in Article 311 in the absence of any statutory provision enabling this action. The constitution of the Medical Board has also been challenged on the ground of mala fides and illegality.

9. The defence of the State Government is that it acted on the opinion of the Medical Board which was set up on account of the plaintiff's own assertion of physical incapacity due to his heart ailment. Infringement of Article 311 or illegality in the constitution of the Medical Board as well as the vague allegation of mala fides were all denied. It is urged that the plaintiff himself had asserted his physical unfitness and cannot now complain when the State Government invalided him on the opinion of the Medical Board given after examination of the plaintiff.

10. The trial Court has negatived the allegation of mala fides made by the plaintiff. Further it has been held that there was an infringement of Article 311 of the Constitution inasmuch as the impugned order amounts to removal from service without following the procedure laid down in Article 311. The constitution of Medical Board has also been held to be illegal. The plaintiff's suit has, therefore, been decreed. Hence this appeal by the State Government.

11. Before considering the rival contentions advanced before us, it would be appropriate to focus attention on the narrow controversy involved in the case. According to the plaintiff himself, who is a highly qualified medical man, and aided by the assessment of his physical incapacity by an eminent cardiologist of Indore, Dr. S.K. Mukerjee, the plaintiff's physical condition was such in 1965, when the impugned order was passed, that he was required to remain under the constant surveillance of Dr. Mukerjee at Indore and his posting as professor of surgery at Raipur posed an imminent risk to the plaintiff's life. It may be recalled that the plaintiff had suffered a very serious attack of coronary thrombosis in 1962 which was thereafter followed by two attacks of angina in October, 1963 and February, 1965 and the impugned order invalidating him from service was passed in September, 1965, after obtaining the opinion of the Medical Board, which had examined him in July, 1965. Obviously, according to the plaintiff's own case, he was to be treated as an invalid for continuing in service outside Indore. The only question, therefore, at the relevant time was whether the plaintiff could not be treated as an invalid for continuance in service when he himself gave out that he was an invalid for continuing in service out of Indore.

12. The nature of the plaintiff's job when he was invalided had also to be kept in view. As Professor for Surgery, the Plaintiff's nature of work was not confined only to table work and he was obviously required to undertake considerable physical activity including performing of major surgical operations, which at times continue for hours and require the Surgeon to be on his legs for a considerable length of time. The need for physical fitness of the Surgeon can hardly be over-emphasised. For a Surgeon with the plaintiff's background of serious heart ailment any subsequent episode connected with the heart was bound to be too dangerous and such an episode taking the patient unawares is well known. The risk involved was not only to the Surgeon himself but to the patient as well undergoing an operation at that time. The question before the Government was whether a person in that unfortunate state of physical health could be continued in service which required him also to perform major surgical operations in addition to other physical activity. The opinion formed by the State Government and the validity of the impugned order which invalided the plaintiff from service has obviously to be judged in this back-ground.

13. The first question relates to the constitution of the Medical Board. There can be no doubt that the State Government constituted the Medical Board by appointing medical men of considerable eminence and standing. The Chairman, Dr. C. B. Singh and one of the members Dr. S.S. Mishra were from outside the State. However, Dr. S.S. Mishra of Lucknow was unable to function as a member and, therefore, he was replaced by the Civil Surgeon of Bhopal, Dr. S.K. Bose. The Chairman, Dr. C. B. Singh had been the Principal of a Medical College in Uttar Pradesh and was admittedly a Surgeon of great repute. Dr. P.N. Laha. was Professor of Medicine in the Gwalior Medical College and was a cardiologist, As earlier stated, the last person, Dr. S.K. Bose, was Civil Surgeon of Bhopal, By their experience of working in Medical Colleges, the Chairman, Dr. C. B. Singh, and Dr. P. N. Laha were fully conversant with the nature of duties of a Professor of Surgery. They were, therefore, very competent persons to assess the ability of the plaintiff to continue in service with his admitted physical incapacity. Their opinion that he was permanently incapacitated to continue in service was, therefore, entitled to great weight. No personal bias of any of the persons constituting the Medical Board has been clearly alleged or shown. The vague and general allegation of mala fides made by the plaintiff was, therefore, rightly negatived by the trial Court. It is to be appreciated that on account of the position occupied by the plaintiff, the State Government appointed a high powered Medical Board instead of referring his case to the ordinary Medical Board, which is comprised of Medical men of lesser calibre. No grievance can be made against this action of the State Government in requiring medical men of greater experience and eminence to examine the plaintiff and give their opinion when such an examination by a Medical Board constituted by men of lesser calibre would have been sufficient. This only shows the fairness with which the plaintiff was treated by the State Government.

14. We have not been shown any provision, statutory or otherwise, prohibiting such a course. Shri Nihalani, learned Counsel for the plaintiff-respondent, referred to the C. P. and Berar Medical Manual and stated that ordinarily such a Medical Board is required to be constituted by doctors of lesser eminence and standing. It is difficult to appreciate how this fact alone can support the argument that constitution of the Medical Board was invalid. It may also be pointed out that the plaintiff never made any grievance against constitution of this Medical Board before which he appeared voluntarily for examination. Even in the appeal filed subsequently by the plaintiff, he did not seek the constitution of another Medical Board to examine him again. It would bear repetition at this stage to say that the physical incapacity of the plaintiff as well as the data on which that opinion was formed was never in dispute, the only narrow question being whether the plaintiff was fit to continue in service when according to his own case supported by the Medical opinion of an eminent cardiologist, Dr. S.K. Mukerjee, he was physically incapacitated to continue in service outside Indore, It is sufficient to say that the constitution of the Medical Board has not been shown to be illegal in any manner. Neither the breach of any provision, statutory or otherwise, nor any personal bias of any of the members of the Medical Board has been clearly pleaded or proved. There is thus no ground to hold that the constitution of the Medical Board was illegal. The trial Court's conclusion to the contrary is, therefore, wholly unjustified and illegal.

15. The question now is whether there has been violation of Article 311 of the Constitution in passing the impugned order, Shri Nihalani, learned Counsel for the plaintiff-respondent, contends that it is so. His argument is that the plaintiff was aged about 44 years when he was invalided from a service while he had a right to continue in service till he reached the age of superannuation. The contention is that the curtailment of the plaintiff's tenure of service for whatever reason before he reached the age of superannuation amounts to an infringement of Article 311 of the Constitution. The question is whether this contention, which found favour with the trial Court, is correct.

16. The doctrine of pleasure embodied in Article 310 of the Constitution is subject to Article 311 and the Rules framed under Article 309 of the Constitution. At the relevant time, there were no statutory Rules framed under Article 309 and, therefore, embargo of anything contained in such Rules was not there. For this reason Shri Nihalani contends that Article 311 is attracted.

17. It is settled that in order to attract Article 311 of the Constitution, there should either be right to the post of which the Government servant is deprived or the impugned action should result in penal consequences to the Government servant. It is equally settled that no penal consequence results unless the Government servant is deprived of the benefits which he has already earned or there is a stigma attached to him by the impugned action. In the present case, the plaintiff did not suffer any penal consequence, inasmuch as the benefit earned by him were not lost and he in fact became entitled to the grant of invalid pension. No pension is granted to a Government servant who has been dismissed or removed from service for misconduct or inefficiency. The invalid pension is granted to a Government servant who has been permanently incapacitated for service by bodily or mental infirmity, The grant of invalid pension itself, therefore, shows that the case is not of dismissal or removal. In the present case, there is no dispute that there is neither dismissal from service nor reduction in rank. The only question is whether it is a case of removal from service. The question, therefore, is whether the plaintiff had a right to continue in service till he reached the age of superannuation in spite of his permanent physical incapacity certified by a high powered Medical Board.

18. There can be obviously no stigma attached when a Government servant is invalided from service on certification of his permanent physical incapacity. The physical incapacity of a Government servant is indeed a misfortune and undoubtedly not his misconduct. Physical incapacity resulting from the plaintiff's severe heart ailment was, therefore, in the present case, his misfortune and not his misconduct. It is difficult to visualise what enquiry could have been held treating his misfortune as a misconduct before visiting him with the so-called punishment of removal. If Shri Nihalani's contention is correct then even a Government servant who is certified to be having made cannot be invalided from service and the procedure laid down in Article 311 must be followed. How that course can be adopted in such a case is difficult to visualise. There is no element of punishment in such a case to require a prior disciplinary proceeding to justify ending of service.

19. In our opinion, the 'removal from service' falling within the ambit of Article 311 of the Constitution is confined to those cases of termination of service which are occasioned by the Government servant's misconduct for which he deserves punishment and it does not cover cases of physical or mental disability, which renders him incapable of continuing in Government service. It is for this reason that in such a case an invalid pension is granted, which is not given to a person removed from service for misconduct. In our opinion, the curtailment of tenure of service of a permanent Government servant brought about by his being invalided from service on grant of an invalid pension does not fall within the ambit of Article 311 of the Constitution. As earlier pointed out, there is also no stigma attached in such a case because it is not an imputation against the Government servant's conduct or character which can amount to a stigma and the physical incapacity of a Government servant resulting from an ailment is merely his misfortune which by no stretch of imagination can be stigma against him.

20. This power of the Government of invalidating a Government servant from service has, however, to be exercised only on the opinion of the Medical Committee constituted for this purpose which certifies the fact of the Government servant being permanently incapacitated for further service. The exercise of this power is, therefore, hedged by this condition. It is only thereafter that the Government servant becomes entitled to grant of an invalid pension.

21. S.R. 17 to Fundamental Rule 74, in so far as it is relevant for our purpose, reads as under:

S.R. 17-Grant of leave to a Government servant who is unlikely to be fit to return to duty.-

When a medical committee in India has reported that there is no reasonable prospect that a particular Government servant will ever be fit to return to duty, leave should not necessarily be refused to such Government servant. It may be granted, if due, by a competent authority on the following conditions:

(a) *** ***(b) If the medical committee declares the Government servant to be completely and permanently incapacitated for further service in India the Government servant should, except as provided in Clause (c) below, be invalided from the service, either on the expiration of the leave already granted to him, if he is on leave when examined by the committee, or, if, he is not on leave, from a date not later than ten days after receipt by the head of the office of the Committee's report. If, however, he is retained for a longer period the case should be regulated under Article 455, Civil Service Regulations.

***

The above provision shows that where the Medical Committee declares the Government servant to be permanently incapacitated for further service, the Government servant should be invalided from service. This is said unequivocally in the first part of Clause (b) of S.R. 17. Thereafter, in the latter part of Clause (b) is provided the date from which the invalidation of the Government servant is to take effect. It says that if the Government servant is on leave then his invalidation should be from the date when examined by the Medical Committee and if he is not on leave then from a date not later than 19 days after receipt of the Medical Committee's report. It is, therefore, clear from this provision that the Government has no option when such a declaration of permanent incapacity of the Government servant is made by the Medical Committee, and it must necessarily be followed by the Government servant being invalided from service. The Govt. servant power to curtail the tenure of service of a Government servant, in such an eventuality therefore, flows from this provision, which is admittedly applicable. The right to continue in Government service till attaining the age of superannuation is, therefore, subject to this power of the Government and the right to post claimed by the Government servant is, therefore, hedged by the condition of his continuing to be physically and mentally fit for continuance in service till attaining the age of superannuation. We do not see how an infringement of Article 311 of the Constitution can result in such a case.

22. We are fortified in taking this view by the decision of the Supreme Court in Mohammad Sagiruddin v. The Distt. Mechanical Engineer, N.E.F. Railway and Ors. 1973-II L.L.J. 93. In that case an engine driver in the Railway was found medically unfit for driving railway engines even though he was certified to be fit for working as a pump engine driver. Accordingly the railway offered to absorb him against a post of pump engine driver, which was a lower post, This action of the railway was challenged by the driver as violation of Article 311 of the Constitution on the ground that it amounted to reduction in rank by way of punishment without holding any enquiry. A rule enabling absorption on a lower post in such an eventuality was challenged as violative of Article 311. Repelling the engine driver's contention of violation of Article 311, their Lordships held as follows:

' This rule is an extremely reasonable rule. Normally an employee who is medically unfit for service would be invalidated or discharged.... It is true that the scale of pay for this post is lower than the scale to which he had been entitled as an Engine Driver 'C'. But if he had not accepted the post the Railway authorities would have had no option but to discharge him. In these circumstances, it can be hardly contended that he was either punished or went with a stigma on his character. This was not a disciplinary measure. The appellant being found unfit for the job was given some other job for which he was fit. We do not see how Article 311 of the Constitution comes in there.

(Emphasis supplied,')

23. It is clear from the decision of their Lordships in Mohd. Sagiruddin's case that a Government servant who is found medically unfit for service has to be invalided or discharged the Government having no other option ; that such an action does not amount to a punishment or casting a stigma against the character of the Government servant; and Article 311 of the Constitution is not attracted to such a case. Article 311 applies equally to cases of removal from service and reduction in rank. The ratio of Mohd. Sagiruddin's case, therefore, applies equally to the present case. This decision of their Lordships is sufficient to reject the main argument of Shri Nihalani based on Article 311.

24. Shri Nihalani has, however, relied on a Division Bench decision of this Court in S.P. Srivatsava v. State of M.P. 1971-I L.LJ. 50, in support of his contention. Shri Nihalani also contended that it was subsequent to this decision that the Madhya Pradesh Civil Services (Medical Examination) Rules, 1972 were framed in exercise of the power conferred by the proviso to Article 309 of the Constitution to enable curtailment of the ordinary tenure of service of a Government servant on the ground of his physical or mental disability. Shri Nihalani argues that prior to the framing of these rules in 1972, the Government had no such power and, therefore, the impugned order which invalided the plaintiff from service violates Article 311.

25. So far as the 1972 rules are concerned, it is sufficient to say that the framing of these rules has the effect of requiring the Government to comply with the same thereafter and any breach thereof would be actionable. The Government's action in the present case conforms, to the requirements of these rules, though framed later and, therefore, inapplicable, The absence of these rules earlier did not fetter the Government's power to this extent under Article 309 and so long as exercise of the power was reasonable and not arbitrary or mala fide, it could not be challenged without showing breach of any statutory or constitutional provision.

26. There are several distinguishing features between this case and S.P. Srivastava's case even though it supports Shri Nihalani. In the present case, the permanent physical incapacity of the plaintiff to serve anywhere outside Indore was his own case and the only question, therefore, was whether he could be continued in service thereafter being on a transferable job. In Srivastava's case the Government servant never gave out that he was physically unfit. Srivastava was a Tahsildar who had suffered a spinal injury in a bus accident after which the Medical Board certified him fit to resume his duties but recommended that he should be exempted from touring duties for sometime. Thereafter the Commissioner recommended that instead of posting him as Tahsildar which involved considerable touring duties, he should be given office duties as Addition Tahsildar. This was also the recommendation of the Medical Board. The Government then took the action of invalidating him from service, even though the Medical Board's opinion was not that he was permanently incapacitated. It was on these facts that this Court came to the conclusion that there had been an infringement of Article 311 of the Constitution, because the Service Rules did not provide for compulsory retirement of a Government servant on the ground of physical incapacity and permanent incapacity had not been certified. No doubt S.R. 17 (b) to F.R. 74 and Civil Service Regulation 441 were noticed in that case and it was held that these provisions were not sufficient to clothe the Government with such a power. The absence of declaration of permanent physical incapacity by the Medical Board was alone sufficient to support the conclusion reached in that case.

27. The Division Bench reached this conclusion with great reluctance and expressly stated that the retention of a Government servant who is completely unfit to continue in service on account of any physical or mental incapacity is clearly against public interest. The Division Bench took that view on the basis that the Government had no such power in the absence of any express rule to that effect. We have already shown that subsequently their Lordships in Mohd. Sagiruddin's case took a contrary view and it has been expressly held therein that Article 311 of the Constitution is not attracted to such a case. It is for this reason that we do not find courselves bound by the decision in S.P. Srivastava's case and with utmost respect we say that it is no longer good law in view of the subsequent decision of the Supreme Court in Mohd. Sagiruddin's case (supra).

28. We must, therefore, accept the contention of Shri K. K. Adhikari, learned Government Advocate, that there is no infringement of Article 311 of the Constitution and that the earlier decision of this Court in S.P. Srivastava's case (supra) is no longer good law in view of the subsequent decision of their Lordships in Mohd. Sagiruddin's case (supra). The contrary conclusion reached by the trial Court, in spite of the strenuous support of Shri Nihalani, must be reversed. This being the sheet-anchor of the plaintiff's case, it is obvious that the plaintiff's suit must fail.

29. At the hearing before us, Shri Nihalani laid considerable stress on the fact that the plaintiff has been running a nursing home at Indore all these years and performing major surgical operations after his service ended. An attempt was made to suggest that this would show that the plaintiff's physical incapacity was not permanent. In our opinion, this cannot be treated as relevant for deciding the point in controversy before us. Valid exercise of Government's power depended on a declaration of permanent physical incapacity by the Medical Board and such a declaration was made and formed the basis of the impugned order (Ext.P4). This alone is sufficient to uphold the order,

30. We are indeed happy that the tide turned in plaintiff's favour after his critical illness in 1962 followed by two episodes in 1963 and 1965 also connected with his heart ailment on account of which the plaintiff himself entertained a genuine apprehension of threat to his life and this apprehension was supported by his treating physician, Dr. S.K. Mukerjee of Indore. It is with the physical fitness of the plaintiff at that point of time in 1965 with which we are concerned, since the Government's action of invalidating him from service was taken at that time on opinion of a high powered Medical Board. The fact that the plaintiff has survived that threat and has been running a nursing home and performing major surgical operations only goes to show that there exists a power whose extent is beyond human comprehension and the depth of which is unfathomable even to the best physicians. Cases are not wanting when men have lived after the best physicians have given up all hopes. But then the validity of an action has to be judged on the basis of the medical opinion which alone can be a safe basis for exercise of such a power. It is further good fortune of the plaintiff that he has had an active and prosperous career as a surgeon in running his own private nursing home, as claimed by Shri Nihalani. It need hardly be added that the plaintiff must have, therefore, gained monetarily instead of suffering any pecuniary loss which he claims to recover in this suit. This appears also from some Income Tax assessment orders filed by the plaintiff.

31. In our opinion, the above is an added reason for refusing the relief claimed by the plaintiff in this suit. The grant of relief of declaration is undoubtedly discretionary and where it would be inequitable to grant relief on the facts of the case, it would be appropriate exercise of discretion to refuse that relief. It is settled that ' it is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not. and in every case the Court must exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief prayed for'. See : Pirthi Pal Kunwar v. Guman Kunwar I.L.R. 17 Cal. 933 (P.C.) at p. 936.

32. The facts of the present case clearly show that it would not at all be reasonable to grant the declaratory relief claimed by the plaintiff which would result in his unjust enrichment. Apart from the other conquences, the obvious result of granting such a relief to the plaintiff would be that the plaintiff without even being required to serve, having now crossed the age of superannuation would become entitled to recover emoluments of the Professor's post for a period of more than 14 years. This amount alone would be at least Rs. 21 lakhs. Thus decreeing the plaintiff's suit would result in giving this further benefit without the plaintiff working for this period for the Government and in the meantime having the benefit of a lucrative private practice in his nursing home, which is obvious from Shri Nihalani's own contention. It appears to be obvious that even the plaintiff did not doubt the correctness of the opinion of the Medical Board in 1965 when he was invalidated and did not want to risk his life by continuing in service. Had it been otherwise, the plaintiff would not wait for more than three years to file the suit instead of immediately filing a writ petition since the only real question involved was the applicability of Article 311 of the Constitution. Plaintiff had the best legal advice available to him and looking to his own status in life this is reasonable inference since he must have known that a writ petition directly in this Court was a much quicker remedy. These circumstances clearly indicate that plaintiff was not interested in going back to serve in his job and only wanted to derive monetary benefit in case of his success. In our opinion, it would be very inequitable to grant the relief the plaintiff claims in the suit. This is a added reason for dismissal of the plaintiff's suit.

33. Consequently, this appeal succeeds and is hereby allowed. The judgment and decree of the trial Court are set aside and the plaintiff's suit is dismissed in its entirety. However, under the circumstances of the case, the parties are directed to bear their own costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //