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Modji Ladhuji Vs. K.P. Vasu Nambeesan - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Application No. 555 of 1968
Judge
Reported in[1971(22)FLR350]; (1971)ILLJ155Guj
ActsConstitution of India - Articles 309, 311 and 311(2); Indian Railway Establishment Code - Rules 142 and 2237-A; State Railway Establishment Code - Rules 1708 and 1709; Government of India Act - Sections 24(3)
AppellantModji Ladhuji
RespondentK.P. Vasu Nambeesan
Cases ReferredUnion of India v. Someswar Banerjee
Excerpt:
labour and industrial - compulsory retirement - articles 309, 311 and 311 (2) of constitution of india, rules 142 and 2237a of indian railway establishment code, rules 1708 and 1709 of state railway establishment code and section 24 (3) of government of india act - petitioner retired from service by respondent on ground of medical unfitness - impugned order passed under rule 3015 of establishment manual of western railway - contentions raised that rule 3015 ultra vires article 311 - termination of service by compulsory retirement under rule 3015 does not amount to dismissal - rule does not violate provisions of article 311 - contention raised failed. - - (2) .(3) .(b) .(c) .(d) .rule 152 of the code reads as under :152. termination of service on account of inefficient due to failure.....p.d. desai, j.1. this petition raises the question of the constitutional validity of rule 3015 of the establishment manual of the western railway and it arises in these circumstances. 2. the petitioner is a non-gazetted servant in the employment of western railway. he was appointed in the post of a khalasi/coolie by the then b.b. & c.i. railway on november 29, 1931. he was promoted as a train examiner on september 6, 1954. by a letter dated july 30, 1956, the petitioner was confirmed in the post of train examiner with effect from the date of his promotion, i.e., september 6, 1954. the petitioner continued to hold the post till he was made to retire from service with effect from july 26, 1967, by an order dated july 25, 1967, passed by the divisional mechanical engineer (establishment),.....
Judgment:

P.D. Desai, J.

1. This petition raises the question of the constitutional validity of rule 3015 of the Establishment Manual of the Western Railway and it arises in these circumstances.

2. The petitioner is a non-gazetted servant in the employment of Western Railway. He was appointed in the post of a khalasi/coolie by the then B.B. & C.I. Railway on November 29, 1931. He was promoted as a train examiner on September 6, 1954. By a letter dated July 30, 1956, the petitioner was confirmed in the post of train examiner with effect from the date of his promotion, i.e., September 6, 1954. The petitioner continued to hold the post till he was made to retire from service with effect from July 26, 1967, by an order dated July 25, 1967, passed by the Divisional Mechanical Engineer (Establishment), Western Railway, Rajkot, the first respondent herein, on the ground that he was found medically unfit to hold the post. The order is annexed as Ex. 'C' to the petition and also as Ex. 'B' to the affidavit-in-reply dated July 23, 1968, filed on behalf of the respondents by R. C. Roy, Divisional Mechanical Engineer, Carriage and Wagon, Western Railway, Rajkot. This order, which is impugned before us in this petition, was passed in the circumstances set out hereafter.

3. In the Western Railway the post of train examiner was a post under category B1 since 1950 and it continued as such till the date of the petition. It appears that some-time in December 1962, the Railway Board raised the age of retirement of the employees of Indian Railways from 55 years to 58 years. Consequent upon the revision of the age of retirement, the question of the periodical medical re-examination of the employees also received the attention of the Railway Board and by its letter dated May 17, 1963, the Railway Board issued certain directions in this behalf. So far as category B1 was concerned, it directed that besides the medical examination which had to be undergone at the age of 45 years and 50 years by an employee holding a post under category B1, such employee should also undergo medical examination again at the age of 55 years.

4. It appears that in consequence of this direction of the Railway Board, the petitioner was required to undergo medical examination on his attaining the age of 55 years. The petitioner was found medically unfit for holding a post under B1 category and it was, therefore, found undesirable to continue him in the post of train examiner. The petitioner was, therefore, offered the post of mistry, wagon repair shop, in the scale of Rs. 150 - 240 and was asked to report to the Deputy Chief Mechanical Engineer, Workshop, Ajmer. This offer, which was made subject to the petitioner being found suitable for the alternative post was contained in the service message dated November 24, 1966, issued by the Divisional Superintendent, Establishment, Rajkot. The petitioner, however, expressed his unwillingness to accept the alternative post offered to him. The petitioner was thereafter offered the post of a fitter in the scale of Rs. 110 - 180 on a pay of Rs. 180/- per month. This offer was contained in the memo dated March 27, 1967, issued by the Divisional Mechanical Engineer, Establishment, Rajkot. The petitioner, however, expressed his unwillingness to accept this alternative post also by his letter dated April 10, 1967. Since on other alternative post was available for him, the petitioner was retired on expiry of due leave by the impugned order dated July 25, 1967. It is an admitted position before us that the order has been passed under rule 3015 of the Establishment Manual of Western Railway.

5. The impugned order has been challenged before us on behalf of the petitioner only on one ground and the ground is that rule 3015 of the Establishment Manual of Western Railway under which the impugned order is passed is ultra vires Article 311 of the Constitution of India. The contention of the learned advocate for the petitioner is that compulsory retirement under rule 3015 amounts to dismissal or removal within the meaning of Article 311(2) of the Constitution and that in so far as rule 3015 provides for compulsory retirement without giving reasonable opportunity of showing cause to the person against whom action is proposed to be take thereunder, it violates the constitution guarantee conferred upon a non-gazetted railway employee who is entitled to the protection of the said article. It is further contended that the impugned order, having been passed in purported exercise of the power conferred upon the respondents by the said rule which on the ground aforesaid ultra vires, was also void.

6. It may be convenient at this stags in set out the relevant service rules in order to appreciate the point which arises for on decision. The President of India, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, has issued the Indian Railway Establishment Code. Volume I of the said code Code contains rules governing conditions of service of the railway employees. Rule 142, in so far as it is relevant, lays down that except as provided in clauses(2) to (5) of the rule, or where the President by general or special order may direct otherwise, as person, other than an inferior servant, shill be substantively appointed in India to a permanent post in railway service without the production of a medical certificate of health in accordance with the rules prescribed bed by the President in the case of gazetted railway servants and by the Railway Board in the case of non-gazetted railway servants Appendix III of the Code prescribed regulations for the medical examination of candidates and employees (non-gazetted including inferiors and labourers) on India Railways. Rule(i) of Regulation 3 contained in Appendix III deals with classification of staff for the purpose of vision tests and item B thereof reads as under :-

----------------------------------------------------------------------Groups Classes A -... .... ... ... ... ... B - Vision tests required in the B1 - Such station and yardinterests of the employee non-supervisory, shed and otherhimself, his follow workers or staff, as are engaged on dutiesboth. where failing eyesight mayendanger themselves or otheremployees from moving vehicles,permanent way mistries, gangmates, keymen, assistantsurgeons, health assistants andsub-assistant surgeons. B2 - Certain staff in workshopsand engine rooms engaged on dutieswhere failing eyesight mayendanger themselves or otheremployees from moving partsof machinery and crane driverson open line. C - ... ... ... ... ... ... ------------------------------------------------------------------------

Rule (ii) of the said Regulation provides for periodical medical re-examination of employee and, in so far as it is relevant for the purposes of this petition, it reads as under :

Rule (ii). Re-examination of employees -

(a) Periodical re-examination -

(1) In order to ensure the continued ability of employees in classes A1, A2, A3, B1 and B2 to discharge their duties with safety they will be required to appear for re-examination at the following stated intervals throughout their services, viz -

Classes A1, A2 and A3 -

... ... ... ....

Classes B1 and B2 -

on attaining the age of 45 years, and again on attaining the age of 50 years.

(2) ... ... ... ... ...

(3) ... ... ... ... ...

(b) ... ... ... ... ...

(c) ... ... ... ... ...

(d) ... ... ... ... ...

Rule 152 of the Code reads as under :-

152. 'Termination of service on account of inefficient due to failure to conform to the requisite standard of physical fitness - A railway servant who fails in vision test or otherwise becomes physically incapable of performing the duties of the post which he occupies but not incapable of performing other duties, should not be discharged forthwith but should be granted leave in accordance with rule 2237A-R. During the period of leave so granted, such a railway servant must be offered some alternative employment on reasonable emoluments having regard to his former emoluments Further, the extraordinary leave portion of the leave granted in accordance with rule 2237A-R should not be cut short purely on account of his refusing the first offer which is made to him, but he must be discharged if he does not accept one or more offers during the period of his leave.'

Rule 157 authorises the Railway Board to make rules of general application to non-gazetted railway servants under their control. Rule 158 authorises the General Managers of Indian Railway to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the President or the Railway Board.

7. In exercise of the powers conferred upon him by rule 158 aforesaid, the General Manager of the Western Railway has made rules applicable to non-gazetted railway servants under his control and the rules are to be found in the Establishment Manual of Western Railway. Chapter XXX of the said Manual deals with absorption in alternative employment of medically incapacitated staff and contains several rules enacted with a view to achieving the said objective. Rule 3001 lays down that the Administration owes a duty to persons who have served it for any length of time and have then been declared medically unfit to continue to work in their posts although not completely unfit for service and directs that alternative employment must be found - and found expeditiously - for such persons. It further directs that such employment must be of a suitable nature and on reasonable emoluments having regard to the emoluments previously drawn by the employee. Rule 3002 classifies employees declared medically unfit into two groups. Group(i) is formed of persons who are completely incapacitated for further service in any post on the Railway and Group(ii) is formed of persons who are incapacitated for further service in the posts that they are holding but declared fit in a lower medical category land thus eligible for retention in service in posts corresponding to the lower medical category. Rule 3003, in so far as it is relevant for the purpose of this petition, deals with employees who are totally incapacitated for further service i.e., those who fall within group (i) and lays down that such an employee is not eligible for alternative employment and he must cease to perform his duties on or from the dates on which he is declared medically unfit Rule 3004 has a direct bearing on the question with which we are concerned in this petition and it may be fully set out :

'3004. Employees incapacitated for service in post held : An employee in group (ii) of para 3002 above must also cease to perform the duties of post that he was holding, from date he was declared medical unfit. Here again no officer the authority to permit him to be form his duties in that post this date. He should be grant leave as admissible to him the leave rules by which he governed from the date he is incapacitated. If the leave admissible under the leave rules applicable to him is less than six months, it should be increased to six month by the grant of extraordinary without pay as laid down in Rule 2237-A of the Establishment Code. Vol. It or upto the date he joins the alternative appointment which ever is earlier. The grant of the leave is in the nature of inter action to ensure that the employee can draw leave salary, if due, while other action to provide alternative employment is being taken.'

Rule 3005, which is in terms made mandatory, lays down that an employee falling Group (ii) referred to above must be officer some alternative employment on reasonable emoluments having regard to his forms emoluments while he is on leave and further lays down that if no posts vacant in any of the categories for which such employee is considered fit and which can be deemed to be suitable employee, the necessity of reverting an officiating employee should be consider but resort to this action should be taken only after attempt to absorb the disabled employed in suitable alternative employment have been unsuccessful. Rule 3006 deals with the procedure be adopted with a view to determining categories in which a medically incapacitated employee is suitable for absorption also makes certain further provisions with regard to absorption. Rule 3008 lays down that every officer under whom an incapacitated employee covered by Rule 3002 (ii) was serving before being incapacitated and also other officers to whom his name later intimated, will take all possible steps to find an alternative post for such an employee, it is obligatory to offer such suitable alternative appointment to him. It further describes various types of alternative posts which could be offered to such incapacitated employee. Rule 3009 provides that a medically incapacitated employee will, under all circumstances, be given preference over surplus retrenched or demoted employees and those with shorter service before any post is filled or promotion is ordered. Rule 3010, in so far as it is relevant for the purchases of this petition, lays down that the alternative post to be offered to an employee should be the best available for which he is suited, to ensure that the loss in emoluments over what he drew previously, is the minimum possible. It further lays down that the level of emoluments should not how deter officer concerned from issuing an offer if nothing better is available. The employee must be given an opportunity to loose for himself whether he should accept be offer or reject it. Clause (iii) of this rules provides that in case of certain designated employees mentioned therein, who are declared medically incapacitated for further service in the post held by them but found for posts in a lower medical category, the employees will not be eligible for Special distribution to Provident Fund/Gratuity which would have been payable to them in accordances with rules therein mentioned, if such employees retire or resign from their post on account of having refused an offer suitable alternative employment, Rule 3011 provides that the offer of an alternative employment should be made in writing and it is open to the employee to refuse the offer of alternative appointment and he will continue to enjoy the leave granted to him under Rule 3009 and also remain eligible for the receipt of other alternative offers of appointment till his leave expires. Rule 3013 provides that past services of an employee absorbed in an alternative post will for all purpose be treated as continuous with that in the alternative post and that such employee will continue to be governed by the same conditions of service as were applicable to him previously. Rule 3014 deals with fixation of pay on alternative post. Rule 3015, with which we are directly concerned in this petition, reads as under :-

'3015. Employee to be retired if one or more alternatives employments are not accepted : An employee who refused one of alternative appointment will retire finally on the expiry of leave granted to him as stated in para 3004 and should be paid all his dues forthwith.'

Rule 3017 lays down that when all attempts to provide alternatives employment have failed, the matter should be reported to the head quarters office for considering the question of certain of a supernumerary post, until such period as a suitable alternative employment can be found for the disabled employee. We are not concerned with other rules in this Chapter.

8. These rules contained in the Establishment Manual of the Western Railway are a self-contained Code prescribing a special and elaborate procedure to be followed with absorption in alternative employment of medical incapacitated staff. They are obviously enacted with a view to giving all opportunities to all persons who has served the railway administration for any length of time and is declared medically unfit, to continue to work on a lower category if such person is not completely unfit for service. They make it obligatory on the railway administration to make offer of suitable alternative employment and elaborate provision has been made in the rules to ensure that the alternatives post that is offered is best available for which such person is suited and loss in emoluments over what he drew previously is the minimum possible. The conditions of service and continuity of service of disabled employees are also protected, it is only in cases where an employee refuses to accept one or more offers of alternative employment that a provision is made for retiring such an employee on the expiry of leave granted to him but even in that case it has been clearly laid down in Rule 3015 that all his dues shall be paid to him forthwith. It is in the light of these rules that we have to consider the question whether rule 3015 which provides for compulsory retirement of a non-gazetted railway servant is violative of Article 311 of the Constitution of India.

9. Before we embark upon an inquiry into this question, it may be observed at the outset that compulsory retirement no doubt brings about a termination of service but it is well settled that every termination of service of an employee does not fall within the operation of Article 311 of the Constitution. Compulsory retirement differs per se both from an order of dismissal and an order of removal, in that it is ordinarily not a form of punishment and involves no penal consequences inasmuch as a person retired is generally entitled to pension proportionate to the period of service standing to his credit and to other benefits already earned. When the Government decides to retire a servant before the age of superannuation, it does so for some good reason and, as illustrated by decided cases, that, in general, would be when such 'Government servant has outlived his usefulness' or retirement is 'considered necessary in the public interest or on other grounds' or 'when it is in the public interest to dispense with his further services such as on account of inefficiency or dishonesty' or 'when in the opinion of the competent authority he is engaged or is reasonably suspected to be engaged in subversive activities or he is associated with others in subversive activity in such a manner as to raise doubt about his reliability' or when 'the medical committee declares the government servant to be completely and permanently incapacitated for further service.' The fact to be noted is that while any of the aforesaid factors may be taken into account irrespective of whether the order is one of dismissal or removal of retirement, there is this difference that while in the case of retirement, they merely furnish the background and the inquiry, if held - and there is no duty to hold an inquiry - is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the inquiry thereon must satisfy the rules of natural justice as well as the requirements of Article 311(2) of the Constitution (vide The States of Bombay v. Saubhagchand M. Doshi A.I.R. 1967 S.C. 892).

10. The question then is whether termination of service brought about compulsory retirement under rule 3015 is tantamount to dismissal or removal from service so as to attract Article 311 of Constitution. The answer to this question will depend on whether the nature and incidents of action resulting in diminish removal are to be found in action of compulsory retirement. The question regarding the validity of a rule authorising compulsory retirement or an order compulsorily retiring a government under such a rule has arisen before Supreme Court in a number of cases the law relating to the validity of rules permitting compulsory premature retirement of government servants must now be held to be well settled by those decisions, indeed there appears to be a consistent course decisions which has upheld the validity of rules in regard to compulsory retirement (vide Shyamlal v. State of Uttar Pradesh and another A.I.R 1954 S.C. 369, State of Bombay v. Saubhagchand M. Doshi A.I.R 1957 S.C. 892, and P. Balakotaiah v. Union of India and others A.I.R 1958 S.C. 232) and orders of compulsory retirement passed exercise of powers conferred by statutory rules providing for the same (vide Dalipsingh v. State of Punjab, A.I.R. 1960 S.C. 1305). There are, however, two decisions into of which a rule conferring upon the Government' an absolute right to retire any government servant after he has complete ten years' qualifying service without giving any reason when it is in public interest to dispense with the further services of a government servant such as on account inefficiency, dishonesty, corruption or infamous conduct (vide Gurudevsingh Sidhu v. The States of Punjab and another A.I.R 1964 S.C. 1585) and the other in which an order of compulsory retirement stating that the government servant concerned 'outlived his utility' (vide The States of the Uttar Pradesh v. Madanmohan Nagar A.I.R 1967 S.C. 1260) have been struck down as violator of article 311 of the Constitution. In Motiram Deka v. General Manager, North East Frontier Railway, A.I.R 1964 S.C. was not concerned with the questions of the constitutional validity of a rule providing compulsory retirement, certain observation are made which also provide a guidance for determining as to under what circumstances such a rule can be held to be violative of Article 311 of the Constitution. From the decisions of the Supreme Court referred to above, the following principles emerge by the application of which it may be ascertained whether or not a particular rule or order of compulsory retirement is violative of Article 311 of the Constitution of India :

(a) if the termination of service of a government servant by compulsory retirement casts an aspersion or attaches a stigma to the concerned servant, the rule providing for compulsory retirement and the order made in exercise of the power conferred under the said rule would be violative of Article 311 of the Constitution;

(b) if the termination of service of a government servant by compulsory retirement involves loss of benefits previously earned, the rule providing for compulsory retirement and the order made in order made in exercise of the power conferred under the said rule would be violative of Article 311 of the Constitutions;

(c) if the termination of service of a government servant by compulsory retirement results from a rule which contains only the outside limit of superannuation but does not provide for a reasonably long period of qualifying service which is indicated with sufficient clarity, the rule providing for compulsory retirement and the order made in exercise of the power conferred under the said rule would be violative of Article 311 of the Constitution.

11. We shall apply the aforesaid principles to the rule in question before us to determine whether it is violative of the provisions of Article 311 of the Constitution.

12. In judging whether compulsory retirement under rule 3015 has the effect of casting an aspersion or attaching a stigma to the railway employee who is sought to be compulsorily retired, it must be borne in mind that such effect may generally be assumed to follow when the action is founded and justified on some ground personal to the employee concerned such as when the employee is regarded in some manner blameworthy or deficient that is to say, that is has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duty as he should do. A charge or imputation against the concerned employee becomes in such circumstances the concerned(sic) of the exercise of the power to terminate service that the concerned employee may have an opportunity to explain or to controvert the circumstances appearing against him (vide Shyamlal's case, supra). But where termination of service is brought about on account of physical unfitness of a railway employee pursuant to periodical medical re-examination undertaken 'in order to ensure the continued ability of the employee to discharge his duty with safety (vise rule (ii) of regulation 3 of Appendix III of the Indian Railway Establishment Code) and 'in the interest of safeguarding proper and smooth running of the railways' as pointed out in the affidavit-in-reply dated August 5, 1968, filed on behalf of the respondents by R. C. Roy, Divisional Mechanical Engineer, Carriage and Wagon, Western Railway, Rajkot, it would be difficult to hold that the termination of service in such circumstances attaches blame to the concerned employee personally. If as a result of periodical medical re-examination to be undergone at the age of 45 or 50 or 55 years as contemplated by the conditions of service of a non-gazetted railway employee, an employee is bound medically unfit for a particular category in which he is holding a post and he is sought to be compulsorily retired under rule 3015, it cannot be said that the order of compulsory retirement attaches a stigma of casts an aspersion on the concerned railway employee. As discussed above, the Indian Railway Establishment Code, Volume I, and the Establishment Manual of Eastern Railway have laid down an elaborate procedure to ensure that an employee of the railway who has served it for any length of time and has been declared medically unfit to continue to work in his post is retained in service unless he is found totally unfit to continue to work in any of the categories enumerated in Appendix III. In these circumstances, compulsory retirement under the impugned rule cannot be said to cast an aspersion or attach a stigma on the employee concerned, more so, because termination of service thereunder comes only after an offer or offers of alternative posts have been made to such employee by the railway administration itself and have been rejected by him. It follows, therefore, that one of the principal tests for determining whether a termination of service amounts to dismissal or removal within the meaning of Article 311 of the Constitution is absent in the case of compulsory retirement under rule 3015.

13. In the view that we are taking we are fortified by decision of the Supreme Court in Madan Gopal v. States of U.P. and another, (Civil Appeal No. 2195 of decided on March 13, 1968). The services of the appellant in that case, who was a stenographer in the U.P. Government Central Workshop Office, were terminated in accordance with clause (b) of rule 100 of the Finance Hand Book, Volume II, as the Medical Board had found him unfit to resume his duties and certifies that he was 'a proper case for invalidating out of service.' The order was challenged in a writ petition filed in the Allahabad High Court. The petition was allowed by a single judge of the Allahabad High Court who held that even if the removal from service had been ordered on the ground of alleged physical infirmity the provisions of Art. 311 would be attracted. The matter was carried in appeal before a Division Bench which took the view that in order to attract Article 311(2), it must be established that the government servant has been dismissed or removed for misconduct. The Division Bench held that since the services of the appellant in that case were terminated on the ground of physical incapacity or illness, it could not be said that he had been dismissed or removed by way of punishment, in that view of the matter. The Division Bench allowed the appeal and the writ petition was dismissed. Against the decisions of the Division Bench, an appeal was preferred by special leave to the Supreme Court which confirmed the decision of the Division Bench and dismissed the appeal. Though the Supreme Court has not in terms reaffirmed the principle laid down in the decision of the Division Bench of the Allahabad High Court, viz., that when services of a government servant are terminated on ground of physical incapacity or illness it cannot be said that he had been dismissed or removed by way of punishment within the meaning of Article 311(2) of the Constitution of India, it is obvious that the effect of the dismissal of the appeal by the Supreme Court is that the principle therein laid down has received the approval of the Supreme Court. The observations made by the Allahabad High Court in the context of termination of service simpliciter apply with equal force to the case of compulsory retirement under rule 3015 on similar ground.

14. Reliance was, however, placed on behalf of the petitioner on the decision of the Calcutta High Court in Union of India v. Someswar Banerjee, A.I.R 1954 Cal. 399. The appellant in that case, who was a Permanent Bridge Inspector under the Bengal & Assam Railway, was declared unfit and permanently incapacitated for further railway services and his service were terminated. The order termination services of the appellant was supported by the railways on the strength of rules 1708 and 1709 in Volume I of the State Railway Establishment Code which provided that where inefficiency of a railway employee is due to failure to conform to the requisites standard of physical fitness, it shall not be necessary to serve the railway servant with a charge-sheet or to obtain his explanation. It was urged on behalf of the railways that by reason of the said rules, notice calling upon the appellant to show cause was unnecessary. The Division Bench of the Calcutta High Court held that all cases of termination of service, whether on ground of dishonesty, corruption or bad health would amount to dismissal and such dismissal clearly came within the provisions of S. 24(3) of the Government of India Act and that being so, the aforesaid rules of the railways, which provided for termination of service without the necessity of framing a charge-sheet or obtaining the explanation of a railway servant likely to be affected by an order passed thereunder, were ultra vires the provisions of the said section of the Government of India Act as well as of Article 311 of the Constitution of India. The decision no doubt supports the submission made on behalf of the petitioner. We are, with respect, however, unable to agree with the reasoning in that decision because the principle enunciated in the decision of Calcutta High Court runs counter to the principles enunciated in the aforementioned decisions of the Supreme Court.

15. Next we have to consider whether compulsory retirement under rule 3015 entails any loss of benefits previously earned such as forfeiture of the proportionate pension due for past services or any other benefits to which the railway employee may be entitled. It may at once be pointed out that rule 3015 itself provides for the payment of 'all his dues forthwith' to an employee retired thereunder. It is thus clear on a plain reading of rule 3015 that on compulsory retirement, the concerned employee does not lose any part of the benefit that he has earned and there is no diminution of the accrued benefit. The rule also does not provide for retirement without pension in accordance with rules prescribed in that behalf and nothing has been shown to us to suggest that on compulsory retirements, the employee concerned would not be entitled to the proportionate pension due for his past services. It was, however, urged on behalf of the petitioner that clause (iii) of rule 3010 of the Establishment Manual provides that if a railway employee, with less than 30 years' service(less than 25 years' service in case of employee appointed on the ex-B.B. & C.I. Railway Co. on or before 10th September, 1934 and governed by that Railway's Rules) who is declared medically incapacitated for further service in the post held by him but fit for a post in a lower medical category retires or resigns from service on account of his having refused offer of suitable alternative employment, he will not will not be eligible for special contribution to Provident fund/Gratuity in accordance with the rules mentioned in sub-clauses(a) to (D) of clause (iii) of rule 3010. It was contended that in cases contemplated by clause (iii) of rule 3010, an employee who is compulsorily retired will lose the benefits of Special Contribution to provident fund and gratuity, and, as such, there will be loss of benefits previously earned. According to the learned advocate for the petitioner, therefore, compulsory retirement in such cases would amount to dismissal or removal from service within the meaning of Article 311(2) of the Constitution. Now, it is difficult to accept this submission made on behalf of the petitioner. Firstly, we must point out that the petitioner before us is a person who is an employee of the ex-B.B. & C.I. Railway Company appointed before September 10, 1934, and has put in more than 25 years of service and, therefore, in his case clause (iii) of rule 3010 is not attracted at all. It is not his case also that the Special Contribution to Provident Fund or Gratuity due to him has not been paid to him. It is clear that if clause (iii) of rule 3010 is not attracted, compulsory retirement in his case does not have the effect of entailing forfeiture of benefits previously earned by him. It is, therefore not open to him to complain, indeed he has no standing to complain, that rule 3015 read with rule 3010 (iii) violates Article 311 of the Constitution of India. Secondly, we are of the view that clause (iii) of rule 3010 deals with cases of voluntary retirement or resignation and not with cases of compulsory retirement. This becomes clear from a reading of sub-clause (b) of clause (iii) of rule 3010, which lays Indian Government Railways Rule with more than 15 years' service the grounds for retirement or resignation on accounts of refusal to accept suitable alternative employment will not be considered as good and sufficient and the employee concerned should be advised of this in writing before accepting his resignation or permitting him to proceed on voluntary retirement. It is, therefore, clear that clause (iii) of rule 3010 comes into play only when a railway employee resigns or retires voluntarily on his being declared medically incapacitated for further service in the post held by him but fit for a post of a lower category and on his then refusing the offer of a suitable alternative employment. There is, therefore, no substance in the submission that compulsory retirement under rule 3015 involves any loss of benefits previously earned by a person who is sought to be compulsorily retired thereunder. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by compulsory retirement under rule 3015.

16. We have then to consider whether or not compulsory retirement under rule 3015 can be brought about only after a reasonably long period of qualified service which is indicated with sufficient clarity in the rule itself. It may be stated that this requirement may have to be met only in the case of compulsory retirement simpliciter and will be wholly inapplicable to a case of compulsory retirement on the ground of physical unfitness or illness; but even if this requirement be considered essential in such cases also, we are of the view that that test is satisfied in the instant case. Compulsory retirement under the impugned rule can be brought about only if the concerned employee is found physically incapable of performing duties of the post which he occupies as a result of periodical medical re-examination of the employee. The periodical medical re-examination is to be undertaken in the case of employee belonging to the category to which the petitioner belongs on attaining the ages of 45, 50 and 55 years. It is clear, therefore, that the power of compulsory retirement under the impugned rule can be exercised only if the employee is found unfit as a result of periodical medical re-examination at the stated ages. Rule 304 of the Establishment Manual provides that all recruitments to Class III service must conform to the prescribed ages limit details in the list attached at annexure 'A' to Chapter III of the Manual. A perusal of the list annexed to the said Chapter shows that in the case of recruitment for pass other than technical posts such as stenographer tracers, draughtsmen, laboratory assistants etc., the maximum age lamination which recruitment can be made is 25 years. This age limit is relaxed in the case of recruitment for technical staff and is raised to 30 years. Under the circumstances, the power of compulsory retirement can be exercised at the earliest under rule 3015 only after an employee belonging to non-technical staff has put in at least 20 years of service and in the case of an employee belonging to technical staff after he has put in at least 15 years of service. This in off opinion, is a reasonably long period qualifying service especially because retirement under rule 3015 is brought about ground of physical unfitness or illness, it cannot, therefore be said that the impugned rule does not provide for a reasonably long minimum period of service after which alone the power of compulsory retirement can be exercised by the railway administration The third requirement for determining whether a termination of service amounts to dismissal or removal is also thus absent in the case of termination of service brought about by compulsory retirement under rule 3015.

17. The foregoing discussion must of necessity lead to the conclusion that termination of service by compulsory retirement under rule 3015 does not amount to dismissal or removal and, therefore, the rule does not violate the provisions of Article 311 of the Constitution of India and further that the impugned order dated July 25, 1967, compulsorily retiring the petitioner from service cannot be challenged on the ground that the petitioner had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him.

18. Since the only point urged on behalf of the petitioner in support of the petitioner is found to be without any substance, the petition fails and is dismissed. Rule discharged with no order as to costs.


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