H.R. Khanna, C.J.
(1) This appeal under Clause 10 of the Letters Patent by the Union of India is directed against the judgment of learned Single Judge whereby he accepted Regular Second Appeal of Inder Sain Bakshi respondent and awarded a declaratory decree in his favor.
(2) The respondent was a Civilian employee of the defense Department of the Government of India. He was appointed in 1924 in the Military Farms Department, subsequently called the Remount Veterinary and Farms Corps of the defense Services. The respondent was promoted to the rank of temporary Manager in 1944 and he held that post till 1951. In June, 1950 the Deputy Assistant Director of Remount Veterinary Farms paid a surprise check-up visit to the Farm at how where the respondent was working as a Manager and inspected the stores. On the basis of the check-up the respondent was suspended on June 26. 1950 and was transferred to Namkum in Bihar. A charge-sheet dated July 14, 1950 was served upon the respondent and he was directed to submit his Explanationn. An inquiry was thereafter conducted into the charges and on April 2. 1951 the respondent was down-graded and appointed as Assistant Supervisor. Appeal filed by the respondent against the order of his down-grading was dismissed on December 20. 1951. According to the respondent the order for his down-grading was illegal and contrary to principles of natural justice, and also contravened Article 311 of the Constitution.
(3) An order was received by the respondent on December 14, 1951 from the Assistant Director, Remount Veterinary & Farms Headquarters, Western Command, asking him to report to the Officer Commanding, Military Hospital, as he was to be placed before a Medical Board for examination. The respondent was thereafter examined by a Medical Board on December 24. 1951 at Dehra Dun. The respondent thereupon sent applications for leave on the ground of illness. A letter dated February 9/11, 1952 was then received by the respondent intimating that he had been invalidated by the Medical Board held at Dehra Dun on December 24. 1951, and. thereforee, the question of granting him leave did not arise. The respondent made representation against the termination of his service based upon the report of the Medical Board but to no avail. The respondent thereafter filed suit on October 23. 1954 for a declaration that his services were wrongfully terminated and he was wrongfully down-graded. The respondent claimed that he continued to be in a service as Manager of Military Farms. The order made against him was stated to be vocative of Article 311 of the Constitution.
(4) The suit was resisted by the Union of India which was imp leaded as a defendant. The trial Court held that the authorities had no power to convene a Medical Board for the examination of the respondent. The 'inpalement' of the respondent it was held, amounted to his removal from service and consequently before his discharge he was entitled to notice and hearing. It was further held that the competent authority to discharge the respondent was only the Quarter Master General and as the respondent was discharged from service not by the Quarter Master General he was not removed from service by a competent authority. As regards the down-grading of the respondent the trial Court held that the respondent was a temporary Manager and the provisions of Article 311 were applicable only to permanent employees. In the result the trial Court granted a declaration to the respondent that the termination of his services was wrongful and that he was to be deemed to continue as Assistant Supervisor.
(5) An appeal against the judgment and decree of the trial Court was filed by the Union of India. The respondent also filed cross-objections in so far as his relief for declaration that his down-grading was. wrongful had not been granted. The learned Additional District Judge in appeal held that Article 311 of the Constitution was not applicable to the respondent since he was holding a post connected with defense. He accordingly allowed the appeal and dismissed the cross-objections.
(6) In second appeal the learned Single' Judge held that as the appellant was holding a post connected with defense he could not invoke Article 311 of the Constitution. Reference was then made to Army Instruction No. 212 of 1949 and the rules framed there under. It was held that the respondent had not been given an effective opportunity as contemplated by the rules to show cause against the proposed penalty of reduction in rank. Reliance in this connection was placed upon the concessions made before the lower Appellate Court that the department had not furnished the respondent with copies of the report and proceedings of the Inquiry Officer while serving him with a notice to show cause why he should not be demoted. The respondent it was further held, was entitled to file a suit for declaration that his down-grading was wrongful because of the contravention of the provisions contained in Army Instruction No. 212 of 1949. The learned Single Judge did not express any opinion on the point as to whether the termination of the services of the respondent on the ground that he was found to be medically unfit would not amount to removal from service within the meaning of the Rules. Observation was also made that it could not be said on the record that any particular authority on any particular date passed an order terminating, the services of the respondent on the basis of the opinion of the Medical Board. It was further observed after referring to Article 310 of the Constitution, as under :
'THUS.it is clear that the services of a Government servant like the appellant to whom Article 311 of the Constitution is not applicable can be terminated by the President at his pleasure under Article 310 of the Constitution. If the President himself does not exercise that pleasure it must be exercised by some other authority specified in a statute enacted or Rules made Under Article 309 of the Constitution and in accordance with the provisions contained in the said statute or the rules. If the pleasure is not so exercised, then it is no exercise of the pleasure at all. Here, it is not the case of anybody that it was the President who in exercise of his pleasure under Article 310. terminated the services of the appellant. thereforee, the appellant's services could have been terminated only by a specified authority designated by the Rules made under the proviso to Article 309 and in accordance with the said Rules. Assuming that either the Medical Board on 24-12-1951 or the Assistant Director on 9/11-2-1952 or the Director on 28-3-1952 terminated the appellant's services, no Rule made by the President under the proviso to Article 309 of the Constitution conferring such a power on any of them was brought to my notice. Nor was it the case of the respondent that there was an order by any other authority terminating the services of the appellant, apart from these three and such authority had been authorised by Rules made under the proviso to Article 309 to terminate the services of the appellant. As a matter of fact, as pointed out by me already, no Rule at all was brought to my notice expressly conferring a power on any authority to terminate the services of a Government servant like the appellant on the ground of his physical unfitness certified by the Medical Board. Consequently, it must be held that in this case the appellants services had 'had not been terminated as provided for in Article 310 read with Article 309 of the Constitution. Thus the termination of the appellant's services was unlawful, and consequently, the appellant is entitled to the declaration which he has prayed for in this behalf.'
(7) The first contention which has been raised on behalf of the appellant is that there has been no contravention of the Army Instruction No. 212 of 1949 and the Rules framed there under. After hearing Mr. Brijbans Kishore on behalf of the appellant and Mr. Vohra on behalf of the respondent we are of the opinion that there is force in this contention. The learned Single Judge in this connection held that the respondent had not been given an effective opportunity to show cause against the proposed penalty of reduction in rank. The above conclusion was based upon the concession in the first Appellate Court that the department had not furnished the respondent with copies' of the report and proceedings of the Inquiry Officer while serving him with a notice to show cause why he should not be demoted. In this connection we find that letter dated February 21, 1951 (Exhibit D-53) shows that in response to the application of the respondent a copy of the proceedings of the Court of Inquiry held at Mhow was sent to the respondent as requested by him. The respondent was asked to send his reply at an early date. The order of his down-grading was made on April 2. 1951 Mr. Vohra, learned counsel for the respondent has also not disputed at the hearing of the appeal that copy of the proceedings of the Court of Inquiry was sent to the respondent before he filed his reply to the show cause notice against the proposed penalty. It is, however, urged by Mr. Vohra that it was imperative on the part of the authorities concerned to supply the respondent a copy of the inquiry report also and their failure to do so would amount to contravention of Rules 6 to 8 issued under Army Instruction No. 212 of 1949. The rules read as under :-
'6.Service of a Charge-sheet :- No order of dismissal, removal or reduction shall be passed on a Government servant unless he has been informed in writing of the grounds on which it is proposed to take action, and he has been afforded an adequate opportunity for defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. which shall be communicated to the persons charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He will be required within a reasonable time to put in a written statement of his defense and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. In case a Board of Inquiry is held to investigate into an incident and no formal charges have been framed against anyone at this stage, a Government servant, involved in the incident against whom disciplinary action is contemplated should subsequently on the basis of the findings of that Board of Inquiry, be served with a Charge Sheet and asked to put in a written statement in his defense within a reasonable time. He should also be furnished with a copy of the proceedings of the Board of Inquiry and asked whether he wishes further to examine or cross-examine any witness. If he expresses a desire to do so, the officer conducting the enquiry should arrange to summon the witness concerned provided that officer may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. Note 1 :-This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. Note 2 :-All or any of the provisions of the rule may. in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and these requirements could be waived without injustice to the persons concerned. 7. The defense of the Government servant referred to in the above rule should be carefully considered in the light of the evidence disclosed in the proceedings of the enquiry. 8. Notice to show cause :-On completion of the enquiry after the punishing authority has considered the defense of the accused and arrived at a provisional conclusion in regard to the penalty to be imposed the accused must. if the penalty proposed is dismissal, removal or reduction, be called upon to show cause within a reasonable time not ordinarily exceeding, a fortnight, against the particular penalty proposed to be inflicted. Any representation submitted by the accused in this behalf should be duly taken into consideration before final orders are passed.'
An addition was made by way of Corrigendum to Rule 8 on April 1, 1950 as under :-
'THIS is necessary to ensure compliance with the provisions of Article 311 of the Constitution of India, and with the provision of Section 240(3) of the old Government of India Act, 1935, in respect of cases occurring before 26th January, 1950.'
We have given the matter our consideration and are of the opinion that there is nothing in the first part of Rule 6 with which we are concerned or in Rules 7 and 8 which makes it imperative to supply a copy of the report of enquiry even though the official concerned does not ask for the copy of the report. The first two Paragraphs of Rule 6. with which we are concerned, deal with the supply of a charge-sheet to the respondent and the mode of enquiry following that charge-sheet. The third Paragraph deals with an enquiry without framing a charge and after the result of an investigation by the Board of Inquiry. In such an event it is necessary that the official concerned should be furnished with a copy of the proceedings of the Board of Inquiry. Rule 7 contemplates that the defense of the Government servant should be carefully considered in the light of evidence. According to Rule 8, on completion of the enquiry after the punishing authority has considered the defense of the accused and arrived at a provisional conclusion in regard to the penalty to be imposed the accused should be called upon to show cause against the proposed penalty, if the penalty proposed is dismissal, removal or reduction in rank. The representation submitted by the accused has then to be taken into consideration before final orders are passed. It is. in our opinion, difficult to draw the inference from the above Rules that a copy of the report of the Inquiry Officer must invariably be supplied to the accused whether he asks for it or not. The object of the Rules is to enable the accused to show cause against the action proposed to be taken. In case the accused asks for a copy of the enquiry report and the same is not supplied. an argument can be plausibly advanced that the accused has not been afforded a reasonable opportunity to show cause against the proposed penalty. Where, however, the accused does not ask for the copy of the report and whatever other documents he asks for are supplied to him. the basis of the argument that the accused was under a handicap in showing cause against the proposed penalty disappears. Mr. Vohra, in spite of our repeated query, has not been able to point out any material on the record that the respondent asked for a copy of the enquiry report and the same was not supplied to him despite that demand. Nothing else has been also brought to our notice as may show contravention of Army Instruction No. 212 of 1949 and the Rules framed there under. The concession made before the first Appellate Court related only to the fact that the department had not furnished the respondent with copies of the report and proceedings of the Inquiry Officer while serving him with a notice to show cause why he should not be demoted. This concession did not rule out the supply of copy of the proceedings of the Inquiry Officer after the show cause notice and before the penalty was imposed. As regards the non-supply of the copy of the enquiry report we have already held above that this omission did not amount to contravention of the Army Instruction No. 212 of 1949 and the Rules framed there under, because the respondent did not ask for supply of that copy.
(8) In view of our decision that there was no contravention of Army Instruction No. 212 of 1949 and the Rules framed there under in respect of the order for the demotion of the respondent it is not necessary to express and opinion as to whether breach of those instructions and rules is justiciable or not.
(9) The next contention on behalf of the appellant relates to termination of the services of the respondent on the basis of the opinion of the Medical Board. It is argued on behalf of the appellant that it was not a removal from service but a compulsory retirement of the respondent because of his having been declared medically unfit by the Medical Board. There was. it is urged by Mr. Kishore, no necessity to hold an enquiry against the respondent before he was discharged. As against that, Mr. Vohra on behalf of the respondent argues that the respondent was not apprised of the opinion of the Medical Board. This fact, it is submitted, was not only contrary to the rules but also seriously prejudiced the respondent in making representation or filing appeal against the report of the Medical Board. We are inclined to agree with Mr. Vohra in this respect.
(10) The respondent in paragraph 6 of the plaint stated that he had addressed letters dated April 28, 1952, April 30, 1952, May 9, 1954 (sic) and May 25, 1952, asking for supply of a copy of the proceedings of the Medical Board, the findings of the Board, the nature of the disease the respondent was found to be suffering from and final orders. The respondent also questioned the necessity of occasion for such examination by the Board. Further in paragraph 7 of the plaint the respondent stated that he was not supplied the necessary information. The appellant in its written statement did not deny that the letters mentioned by the respondent for supply of a copy of the proceedings of the Medical Board and the findings of the Board had been received from the respondent and that the copy asked for had not been supplied. According to the appellant, the proceedings of the Medical Board were confidential and as such the copy of those proceedings could not be furnished to the respondent. The copies of some of the letters referred to above are on the file. Exhibit Pi 7 is the letter dated April 28, 1952 wherein the respondent asked for the copy of the proceedings of the Board. In letter dated May 17. 1952, Exhibit P20, the respondent stated that he had been suffering from temporary ailment and had been cured of the same. In another letter dated May 25, 1952. Exhibit P37. the respondent reiterated his request for supply of copies of the proceedings of the Medical Board and the order passed thereon. Reply dated June 21, 1952, Exhibit P24, was sent to the respondent and he was told that the Medical Board proceedings were confidential documents and as such copies thereof could not be supplied to him. Mr. Brijbans Kishore ha referred to paragraph 399 of the Regulations for the Medical Services of the Army in India in order to show that the proceedings of the Medical Board are confidential. The paragraph reads as under:-
'399.Proceedings Confidential :- Proceedings of a Medical Board will be treated as confidential except as noted below:- (i) In the case of an officer who is. found fit to return to duty the President of the Medical Board will so inform the officer and will instruct him to report himself for duty forthwith. (ii) In the case of an officer who is found permanently unfit, the President will inform the officer of the Board's opinion as to the period of unfitness. (iii) In the case of an officer who is found permanently unfit, the President will inform the officer of the opinion of the Board, making it clear to him that the information should not be acted upon until it is confirmed by the War Office. India Office or Army Headquarters. (iv) In the case of officers suffering from tropical disease, in which further treatment is required, the importance of such treatment being carried out by recognised specialists in the subject (either at Q.A, Hospital Mollbank, or elsewhere) should be explained by the President of the Medical Board. In this connection, see also paragraph 266.'
Clauses (ii) and (iii) of the above paragraph provide that in case an official is found to be permanently unfit the President of the Medical Board should inform the official concerned of the opinion of the Board. The learned Single Judge has found that the respondent was not informed by the President of the Board of the opinion of the Board. Copy of the opinion of the Board was also not furnished to the respondent. It, thereforee, cannot be said that paragraph 399 was complied with. The appellant in the written statement has set up the case that the respondent was governed by Civil Service Regulations and has expressly relied upon Article 197 of the Regulations in order to justify the examination of the respondent by a Medical Board. Note I, appended to clause (c) of that Article, provides that when an officer applies for repeated grants of medical leave within short intervals, the attention of the Medical Board should be drawn to his case with a view to their carefully considering the term of absence necessary for his complete recovery. According to note 4 to Article 442 of the Civil Service Regulations, the Government servants. who are declared unfit by the Medical Board, should, if they desire to appeal against such decisions, do so together with the requisite evidence in support of their case within one month from the date of the communication in which the findings of the Board are communicated to the Government servant. The respondent apparently wanted to challenge the opinion of the Medical Board and it, thereforee, became essential that he should know the precise nature of the disease or infirmity on account of which he was declared to be permanently unfit. Although the proceedings of a Medical Board may otherwise be of a confidential nature, the official concerned, in our opinion, is entitled to know, if he so desires, the precise nature of the disease or infirmity because of which he is declared to be unfit. Note 4 to Article 442 (referred to above) contemplates an appeal by the person concerned against the finding of the Medical Board together with requisite evidence in support of the appeal. If the right of appeal is not to be rendered illusory and nugatory and the official concerned is not to be denied opportunity of furnishing requisite evidence in support of the appeal, it is but fair and just that he should be apprised of the disease on account of which he is declared unfit so that he may show, if he can, that he is; not suffering from that disease or that his disability is of a temporary nature. The refusal of the authorities concerned to inform the respondent in spite of his persistent requests regarding the nature of his illness deprived him of an effective right of appeal or. representation against the opinion of the Medical Board declaring him to be unfit. The respondent it may be mentioned, was not a fresh recruit. He had been serving in the department for more than 25 years. The authorities: concerned, in our opinion, grievously erred in withholding the information regarding the nature of disease or infirmity on account of which the respondent was declared to be medically unfit.
(11) At the trial the appellant produced the report of the Medical Board regarding the medical examination of the respondent. According to that report, the respondent was suffering from 'OsteoArthrIT is Right SacroIliac Joint'. In letter dated July 10, 1956, Exhibit D81, sent by the Officer Commanding of Military Hospital, Dehra Dun, there was reference to the X-Ray examination of the respondent made on December 24. 1951. It was stated that the register of X-Ray examination contained the following note :
'OSTEO arthritic changes left sacroiliac joint Rt. side- no abnormality'. The skiagram is not available in this Hospital.'
It would thus appear that while the report of the Medical Board showed that the respondent was suffering from OsteoArthrIT is on the right side the X-Ray record showed that the right side of the respondent had no abnormality and he had OsteoArthrIT is on the left side. The skiagram relating to the X-Ray of the respondent was somehow not available in the hospital. We thus find that the information as derived from the official records regarding the nature of respondent's illness is conflicting. In the circumstances it became all the more imperative that the respondent should not have been deprived of an effective right of making a representation or filing an appeal against the opinion of the Medical Board. The termination of the service of the respondent or his discharge and compulsory retirement (the words used on behalf of the appellant) on the basis of the report of the Medical Board, without informing the respondent of the nature of illness on account of which he was declared to be medically unfit, was wholly unjustified. We consequently see no cogent ground to interfere with the judgment of learned Single Judge in so far as he hag granted the relief of declaration to the respondent regarding the termination of his service.
(12) In view of our finding given above, it is not necessary to express opinion on the point whether the termination of the service of the respondent amounted to his removal from service or whether it operated only as compulsory retirement. We need not thereforee deal with the authorities like Union of India v. Someswar Banerjee, : AIR1954Cal399 , wherein Harries C.J. with whom Banerjee, J. concurred, held that dismissal on the ground of inefficiency due to physical incapacity as revealed by medical examination came within the purview of section 240(3) of the Government of India Act. We also, in the above view of the matter, need express no opinion on the point whether the order regarding the termination of the service of the respondent was or was not made by a competent authority.
(13) As a result of the above, we partly accept the appeal and dismiss the suit of the respondent in so far as he has sought declaration that his downgrading from the post of a temporary Manager to that of Assistant Supervisor was unlawful. We maintain the decree for declaration granted in favor of the respondent against the appellant that the termination of his service as Assistant Supervisor was unlawful. Looking to all the circumstances, we leave the parties to bear their own costs throughout