1. In this Second Appeal the important question of law that arises for consideration is whether compulsory retirement on the ground of physical incapacity amounts to removal
2. The appellant (original plaintiff) was admittedly a permanent employee holding substantive post in the Western Railway. During the tenure of his service, in the year 1972 he developed an eye trouble resulting into detachment of retina of one eye, and in another eye he had a cataract. The officers of Railway finding him unfit even for 'C' category service, removed him from service by an order of compulsory retirement without holding any inquiry or without affording to the appellant-plaintiff any opportunity to show cause. The question, therefore, is whether the plaintiff's compulsory retirement from service amounts to removal from service within the meaning of Art. 311(2) of the Constitution of India, or whether the same is in contravention of the principles of natural justice, on the basis of the relevant statutory rules which give power to the Railway Administration to remove such person from service.
3. This Court has, therefore, framed the following two substantial questions of law.
'(1) Whether it was incumbent on the Railway Administration to serve the appellant with a show-cause notice before declaring him to be totally unfit for service If yes, what is its effect on the order of termination
(2) Whether according to rule 2601, Chapter 26 of the Railway Establishment Manual, it was incumbent on the Railway Administration to offer an alternative job to the appellant even if he failed in the vision test ?'
Both the Courts below have found that the impugned order was legal and valid and, therefore, dismissed the suit of the plaintiff-appellant.
4. The short facts, which are more or less admitted, are that the appellant-plaintiff was appointed as Traffic Telegraph Signaller on 13th March, 1947. He was thereafter promoted as Assistant Station Master. He, however, sought voluntary reversion and came back to his original post of Traffic Telegraph Signaller in 1955. Originally he was an employee of the erstwhile Junagadh State Railway. The Junagadh State Railway having integrated in the Saurashtra Railway, the appellant was absorbed in the Saurashtra Railway, and ultimately in the Western Railway (i.e., the Indian Railways). In year 1972 he had proceeded for training to Railway Training School at Udaipur, and there he developed some eye trouble and was admitted in Civil Hospital, Ahmedabad, where he was operated by eminent eye-surgeon Dr. Nagpal. Dr. Nagpal issued certificate of fitness to the effect that the appellant plaintiff was fit to resume his duties from 19th September, 1972. The Railway authorities, however, did not accept the said Certificate issued by Dr. Nagpal, and insisted that the plaintiff should obtain the certificate of fitness of the Railway doctor. The D.M.O., Bhavnagar, had examined the plaintiff and declared him unfit from 26th June, 1973. The plaintiff thereafter made several representations, but of no avail. Ultimately, by memorandum Ex. 44 dated 23rd August, 1973, the appellant-plaintiff was treated as finally retired from the Railway service on medical ground with effect from 25th July, 1973 for all purposes.
5. Being aggrieved by the aforesaid order of compulsory retirement from service, the plaintiff filed a suit, being Regular Civil Suit No. 165 of 1974, in the Court of the learned Civil Judge, Senior Division, Junagadh, praying for a declaration that the action taken by the respondent-defendant vide the impugned order against the appellant-plaintiff is void ab initio; that the medical certificate issued by D.M.O., Bhavnagar, declaring him unfit from 26th June, 1973, is also void ab initio, and that it was also prayed that it be declared that the plaintiff is in service and on active duty from 19th September, 1972 when he was certified fit by Dr. Nagpal, but not allowed to resume his duties, and that the period from 19th September, 1972 till the date of the suit be treated as the period on which he was actually on duty, etc.
6. The Railway Administration - defendant - resisted the suit of the plaintiff, and contended that the plaintiff suffered from detachment of retina of the left eye on 17th June, 1972 at Udaipur while he was undergoing training of Telegraphic course. He was operated at Civil Hospital, Ahmedabad, but he had no improvement in vision. The plaintiff also suffered from innative cataract of the right eye, and therefore, he was directed to J. R. Hospital, Bombay, for examination and treatment by ophthalmic surgeon on 7th October, 1972 and again on 27th April, 1973. The ophthalmic surgeon opined that there were no chances of the plaintiff's resumption to duty in near future, and that the contract may take a long time to mature. The plaintiff having developed diminution of vision of both the eyes and there were no chances of improvement in vision of any of his eyes, he was ultimately examined by the D.M.O. on 26th June, 1973 at Junagadh, who found him unfit for further service. A certificate was, therefore, issued on 27th June, 1973, on the strength of which the plaintiff was put off from his duties with a view to retire him from the railway service on medical ground.
7. The plaintiff had preferred an appeal before the Chief Medical Officer, Bombay, which was disallowed, and the plaintiff's retirement on medical ground was held to be in conformity with the rules and regulations in force. It was further contended by the defendant that the plaintiff was totally unfit for other service of any type and so he was retired according to the Rules. According to the defendant, 'C' category is the lowest category in which the plaintiff was declared unfit. The plaintiff was also not fit for any other alternative employment. It was, therefore, contended that unless the plaintiff obtained a fitness certificate from the Railway Doctor, he cannot be employed.
8. In short, the defendant-Railway has relied upon the rules which give them power and that since the plaintiff was not found fit even for 'C' category of service, the question of granting him alternative employment did not arise, and the cataract being innative, he could not be kept waiting for a long time and, therefore, he was compulsorily retired from service.
9. Before proceeding with the legal contentions raised by Mr. M. D. Rana, learned Advocate for the appellant, it would be advantageous to reproduce the relevant rules which have direct bearing upon the decision of the legal issues relied upon by the defendant-Railway.
10. The President of India in exercise of the powers conferred by proviso to Art. 309 of the Constitution of India has issued the Indian Railway Code, Volume I, which contains rules governing the conditions of services of Railway employees. The General Manager of the Western Railway has also made rules applicable to non-Gazetted servants under the powers exercised under rule 158 of the Indian Railway Establishment Code. Chapter XXX of Western Railway Establishment Manual, deals with 'Absorption of Medically Incapacitated Staff in Alternative Employment'. Relevant rules for our purposes are rules 3002 and 3003. They are as under :
'3002. Classification of employees declared medically unfit : Employees declared medically unfit for further service are divisible into two groups :
(i) Those completely incapacitated for further service in any post on the Railway, i.e., those who cannot be declared fit even in the 'C' medical category.
(ii) Those incapacitated for further service in the post they are holding but declared fit in a lower medical category and thus eligible for retention in service in posts corresponding to this lower medical category.'
'3003. Employees totally incapacitated for further service - An employee in group (i) above cannot be retained in service and is not, therefore, eligible for alternative employment. On and from the date on which he is declared medically unfit he must cease to perform his duties. No officer has the authority to permit him to perform duties beyond this date. If he is on sanctioned leave on the date on which he is declared medically unfit, he should be invalidated from service on the expiry of such sanctioned leave. If he is not on leave he should be invalidated from the date of medical certificate. He may, in special cases, be granted leave, or extension of leave not exceeding six months as debited against the leave account, if such leave is due to him. Special circumstances, justifying such treatment, may be held to exist when the railway servants break down in health has been caused and the Government servant has taken a comparatively small amount of leave during his service or will complete at an early date an additional year's service for pension. On the expiry of the invalidating leave, he will be finally retire from service and his final settlement made forthwith.'
11. In the Indian Railway Establishment Code, Volume II, there are rules Nos. 2237 and 2237-A, which deal with the Employees who are declared by the Medical Authority to be completely and permanently incapacitated for further service and the maximum leave which can be granted to such railway employees.
12. In the Indian Railway Establishment Manual, Chapter X thereof deals with medical examination of candidates and railway servants. Rule 1016 which falls in that Chapter, deals with 'Vision Tests' of different categories of the Railway employees. The employees are classified in Groups A-1 to A-3, B-1 to B-2 and C-1 to C-2. It also provides for re-examination of the employees periodically. For the employees falling in Group A-1 to A-3, re-examination is to be done at the termination of every period of three years until they attain the age of 45 years, and thereafter annually until the conclusion of their services. For the employees falling in Group B-1 and B-2 medical examination is to be done on their attaining the age of 45 years and thereafter at the termination of every five years. So far as the employees falling in Group C-1 and C-2 are concerned, they are not required to pass regular periodical re-examination during the course of their services. The above rules are the Rules which concern the employees, carrying on different types of jobs in different categories, who are required to undergo medical examination and medical fitness tests. Really speaking, I am concerned in the instant case only with rules 3002, 3003, 2237 and 2237-A referred to above.
13. Rule 3002 classifies the employees into two groups, viz. Employees who are declared medically unfit even in 'C' medical category and those eligible for retention in service in posts corresponding to that lower medical category. Under the scheme of the aforesaid rule, if an employee is not fit for higher post which requires higher medical category may continue in the post which is in the lower category, and if an employee is not fit even in lower category, i.e., 'C' category, he cannot be retained in service at all.
14. Rule 3003 of the said Rules provides that if an employee is not retained in service on account of his ineligibility even for an alternative employment, then on and from the date on which such employee is declared medically unfit, he ceases to perform his duties. There is a prohibition that no officer has the authority to permit such an employee to perform duties beyond the aforesaid date. Thereafter, the subsequent provision refers to leave, etc., with which we are not concerned in this appeal.
15. No doubt, the Scheme of the aforesaid Rule creates a prohibition for retention in service of an employee who is medically unfit for even 'C' category when such an employee is declared medically unfit. No procedure is found as to how an employee should be relieved from service in such cases or what is to be done when such an employee does not accept the declaration of the medical expert. The rules merely provide that if a person is declared medically unfit by the Medical Officer, he ceases to perform his duties, and no officer has the authority to permit him to perform his duties on the post held by him.
16. It appears that relying upon the said rules, the D.M.O., Bhavnagar, treated the appellant plaintiff as finally retired from Railway service on medical ground on 26th June, 1973, which virtually amounts to termination of his service by way of compulsory retirement.
17. Mr. Rana, learned Advocate for the appellant-plaintiff, has contended that the medical report has not been accepted by the plaintiff. Admittedly there was a cataract in the right eye of the plaintiff which was only a temporary handicap. He was operated in the left eye by well-known eye surgeon Dr. Nagpal, and had given the certificate of fitness and, therefore, the plaintiff has a very strong case to show that he was fit for 'C' category service in which he himself was working, and that he must not have been compulsorily retired from service. The plaintiff was not given any chance to establish his case, and his retirement is invalid on both the grounds, i.e., (1) the procedure required under Art. 311(2) of the Constitution of India has not been followed, and (2) the plaintiff has not been given any opportunity of being heard and, therefore, the order is passed in violation of principles of natural justice.
18. Let us examine these contentions in view of the aforesaid statutory rules and the short facts stated above. Assuming that the contention of the defendant Railway that at that time the plaintiff was not fit to discharge his duties even in 'C' category, without deciding whether the same was permanent or temporary, decided on the strength of the medical certificate that the plaintiff was not fit to be continued in service, can the plaintiff be dismissed straightway in exercise of the powers under rule 3003 of the said Rules, and whether such an order, though couched as retirement from service, amounts to removal from service within the meaning of Art. 311 of the Constitution of India
19. Assuming that such an order can be passed without following the procedure laid down in Art. 311(2) of the Constitution of India, can such an order be order be passed which affects the right of an employee without affording him an opportunity of being heard
20. To decide the aforesaid two contentions, it is necessary to refer to the legal position as settled by the various decisions of the Supreme Court. To consider whether the impugned order of retirement is a removal within the meaning of Art. 311(2) of the Constitution, it would be worthwhile to refer to three decisions of the Supreme Court on this point.
21. In Parshottam Lal Dhingra v. Union of India [1958-I L.L.J. 544] S. R. Das, J., speaking for the majority, has observed as under at p. 559.
'..... It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment.'
22. Rule 2002 of the said Rules deals with definitions. Sub-rule (14) thereof defines 'Lien' as under :
'Lien means the title of a railway servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively.'
Sub-rule (22) defines 'permanent post' as under.
'Permanent post means a post carrying a definite rate of pay sanctioned without limit of time.' Reading the aforesaid two definitions clearly shows that an employee appointed substantively on a permanent post acquires a lien, which is a title to hold the post substantively, and when that appointment is on a permanent post, it would be a post carrying a definite rate of pay sanctioned without limit of time. It, therefore, necessarily follows that till a permanent post continues, an employee substantively appointed on a permanent post continues to hold that post. As observed by the Supreme Court in the aforesaid decision, such a person has a right to hold the post, and if he is removed from the post, it would be a punishment in as much as he will be denied the future salary and his right to get full pension and other supernumerary benefits. In other words, the benefits available to him if he continues on the said post for certain years, such as full pensionary benefits, etc., will be lost. The two exceptions that have been laid down by the Supreme Court are (1) retirement on reaching the age of superannuation, and (2) compulsory retirement after the age of 50 years, and undergoing 30 years' service, whereby right to pension will not be affected. When the appointment is under a special contract, none of the recognised exceptions of termination of service, as provided under Art. 311 of the Constitution of India is attracted in the instant case.
23. In the aforesaid case of Dhingra (supra) at page 561, the Supreme Court has laid down the following propositions of law :
'The position may, therefore, he summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India (AIR 1953 SC 250). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of punishment and does not attract Art. 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [1954-II L.L.J. 139]. In either of the two abovementioned cases the termination of the services did not carry with it the penal consequences of loss of pay or allowances under Rule 52 of the Fundamental Rules.'
24. In view of the aforesaid material observations of the Supreme Court, an argument was advanced on behalf of the defendant-Railway that when the said rules empower the Railway Administration to terminate the services of an employee by giving an appropriate notice or notice pay, such termination would not amount to removal because the same is not made by way of punishment. The said contention has not found favour with the decision of the Supreme Court (which consisted of 7 Judges) in Moti Ram Deka v. General Manager, North East Frontier Railway. [1964-II L.L.J. 467]. It supports some of the contentions raised by Mr. Rana, learned Advocate for the appellant-plaintiff. Gajendragadkar, J., speaking for the majority, has declared the provisions of Rules 148(3) and 149(3) contained in the Indian Railway Establishment Code, Volume I, as invalid, and in consequence thereof the order of dismissal of the appellant was set aside. The short facts of that case are that Moti Ram Deka was a confirmed peon employed by the North East Frontier Railway, and in purported exercise of power under Rule 148 the respondent-General Manager terminated his services. The said order was challenged as being illegal. Similarly, in other appeals the amended Rule 149 was challenged. The said rule gave power to the Railway Administration to terminate the services of its employees. While considering the said Rules vis-a-vis Art. 311(2) of the Constitution of India, and considering the history of Art. 311(2) and the Scheme of Arts. 309 and 310(1) of the Constitution of India, which gives power to the President and the Governors of the respective States to hold such office during the pleasure of the President if the post is under the Union, or during the pleasure of the Governor if the post is under a State, as the case may be, the Supreme Court stated that the pleasure of the President or the Governor, as mentioned in Art. 310(1) can thus be exercised by such person as the President or the Governor-may respectively direct in that behalf, and the pleasure thus exercised has to be exercised in accordance with the rules made in that behalf. However, the provision of Art. 311 is not made subject to any other provision of the Constitution. Within the field covered by the said Article, it is absolute and paramount and, therefore, the Supreme Court while considering the effect of the provisions contained in Art. 311(2) observed that the effect of Art. 310(1) must be limited in the sense that in the category of cases of pleasure mentioned in Art. 310(1) must be exercised in accordance with the requirement of Art. 311. The Supreme Court raised a question as under :
'The question which arises for our decision in the present appeal is : If the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of compulsory retirement does such termination amount to removal under Art. 311(2) or not It is on this aspect of the question that the controversy between the parties arises before us.'
Thereafter, the Supreme Court considered various statutory service rules that were in force from 1920, and thereafter rules of 1930. After considering Rule 55 of the 1930 Rules, the Supreme Court came to the conclusion as under :
'....... In other words, Rule 49 read alongwith the explanation-I, would, prima facie inferentially support the contention that in regard to a permanent civil servant, the termination of his services otherwise than under the rule of superannuation or compulsory retirement would amounts to removal.'
Thereafter, the Supreme Court considered the Fundamental Rule 9(14), etc., and observed as under :
'........ It is thus clear that as a result of the relevant definitions, a permanent post carries a definite rate of pay without a limit of time, and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed and that, in terms, means that a permanent servant has a right to hold the post until, of course, he reaches the age of superannuation, or until he is compulsorily retired under the relevant rule.'
In the light of the aforesaid position, the Supreme Court has discussed Rule 148(3) and/or 149(3), and posed a question, whether the termination of the permanent servant's services either under Rule 148(3) or Rule 149(3) amounts to his removal or not within the meaning of Art. 311 of the Constitution of India. In order to understand the dispute, it is necessary to reproduce the contention raised by the Additional Solicitor-General before the Supreme Court in that decision, which is as under :
'The learned Additional Solicitor-General has also impressed upon us the necessity to construe Art. 310(1) and Art. 311 in such a manner that the pleasure contemplated by Art. 310(1) does not become illusory or is not completely obliterated. He, therefore, suggests that Art. 311(2) which is in the nature of a proviso or an exception to Art. 310(1) must be strictly construed and in all cases falling outside the scope of the said provision, the pleasure of the President of the Governor must be allowed to rule supreme.'
Considering the merits of this argument, the Supreme Court has observed :
'We are inclined to hold that the two extreme contentions raised by both the parties must be rejected. There is no doubt that the pleasure of the President on which the learned Additional Solicitor - General so strongly relies has lost some of its majesty and power, because it is clearly controlled by the provisions of Art. 311, and so, the field that is covered by Art. 311 on a fair and reasonable Construction of the relevant words used in that Article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirement of Art. 311.'
It is observed at Page 479 of [1964-II L.L.J.] :
'Reverting then to the nature of the right which a permanent servant has under the relevant Railway Rules, what is the true position A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on a ground of superannuation or compulsory retirement must, per se amount to his removal, and so, if by Rule 148(3) or Rule 149(3) such a termination is brought about, the rule clearly contravenes Art. 311(2) and must be held to be invalid. It is common ground that neither of the two rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by Art. 311(2) been followed.'
It is observed at Page 479 of [1964-II L.L.J.] :
'...... Once the scope of Art. 311(1) and (2) is duly determined, it must be held that no rule framed under Art. 309 can trespass on the right guaranteed by Art. 311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.'
After reaching the aforesaid conclusion, the Supreme Court also considered the case of Parshottam Lal Dhingra (supra), and thereafter observed as under at Page 484-485 of [1964-II L.L.J. 479] :
'In regard to permanent servants the learned Chief Justice has made some observations which it is now necessary to consider very carefully. 'The appointment of a Government Servant to a permanent post', observed learned C.J., 'may be substantive or on probation or on an officiating basis. A substantive appointed a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a line on the post'. On the same subject, the learned C.J. has later added that 'in the absence of any special contract, the substantive appointed to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service, or the post is abolished and his service cannot be terminated except by way of punishment or misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to permanent post substantively, he had a right to hold that post until he reached the age of superannuation or was compulsorily retired, or the post was abolished. In all other cases, if the services of the said servant were terminated. they would have to be in conformity with the provisions of Art. 311(2), because termination in such cases amounts to removal. The two statements of the law to which we have just referred do not leave any room for doubt on this point.'
The Supreme Court went on to observe as under at Page 485 of [1964-II L.L.J. 467] :
'Later, during the course of the judgment, the learned C.J. proceeded to examine Rule 49 and the explanations added to it, and then reverting to the question of permanent servants once again, he observed that 'it has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's right and brings about a premature end of his employment'. With respect, we ought to point out that though the learned C.J. at this place purports to reproduce what had already been stated in the judgment, he has made two significant additions because in the present statement, he refers to contract or service rules which may permit the authority to terminate the services of a permanent servant without taking the case under Art. 311(2), though such termination may not amount to ordinary or compulsory retirement. The absence of contract, express or implied, or a service rule, which has been introduced in the present statement are not to be found in the earlier statements to which we have already referred, and addition of these two clauses apparently is due to the fact that the learned C.J. considered Rule 49 and the explanations attached thereto and brought them into the discussion of a permanent servant, and that, we venture to think, is not strictly correct. As we have already seen, Explanation No. 1 to Rule 49 is confined to the three categories of officers specified by it in its Clauses (a), (b) and (c), and it has no relevance or application to the cases of permanent servants.
Similarly, the same statement is repeated with the observation 'as already stated, if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances'. With respect, we wish to make the same comment about this statement which we have already made about the statement just cited. In this connection, it may be relevant to add that in the paragraph where this statement occurs, the learned C.J. was summing up the position and the cases there considered are cases of Satish Chandra Anand, (supra) and Shyam Lal, (supra). These two cases were concerned with the termination of a temporary servant's services and the compulsory retirement a permanent servant respectively, and strictly speaking, they do not justify the broader proposition enunciated at the end of the paragraph.'
25. The next important decision which requires consideration is also the decision of the Supreme Court in Jaishanker v. State of Rajasthan [1966-II L.L.J. 140], wherein appellant Jaishanker was removed from service for overstaying his leave. The service regulations provided automatic termination of service on overstay. Question arose whether such termination amounted to removal from service, and whether the employer was required to serve show cause notice and follow the procedure. In that case, the short question before the Supreme Court was whether Jaishanker was entitled to an opportunity to show cause against the proposed punishment as required under Art. 311(2) of the Constitution of India. It was admitted that neither any charge was framed against him nor was he given any opportunity to show cause. The case on behalf of the State Government was that the Government did not terminate Jaishanker's service and that it was Jaishanker who gave up the employment by remaining absent. It was submitted before the Supreme Court that such a case was not covered by Art. 311 of the Constitution of India. In support of the said contention, the State Government relied on certain regulations of the Jodhpur Service Regulations, and regulation 7 thereof laid down that leave could not be claimed as a right, and that the Government had discretion to refuse or revoke leave of any description. Regulation 11 of the said Regulations provided that an individual who had been granted leave on medical grounds for a period of one month or more may not return to duty without producing a certificate of fitness signed by an offices authorised by a general or special order to grant such certificate. Regulation 12 was to the effect that an individual who absented himself without permission or remained absent at the end of his leave was entitled to no salary for the period of such absence and that period would be debited against his leave account unless the leave was sanctioned or extended under the ordinary rules by the competent authority. Regulation 13, which is material, was as follows :
An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.
Note :- The submission of an application for extension of leave already granted does not entitle an individual to absent himself without permission.'
In view of the aforesaid regulation No. 13, it was contended that the said regulation operated automatically and no question of removal from service could arise because Jaishanker must be considered to have sacrificed his appointment. Under the Regulation he could only be reinstated with the sanction of the competent authority. The question for determination before the Supreme Court was whether the said regulation was sufficient to enable the Government to remove a person from service without giving him an opportunity of showing cause against that punishment, if any. Thereafter, the Supreme Court made the following pertinent observations at Page 143 in [1966-II L.L.J. 140] :
'...... We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be overstaying one's leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made it is necessary that Government should give the person an opportunity of showing cause why he should not be removed ....... The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service ....... It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation described it. To give no opportunity is to go against Art. 311 and this is what has happened here.
In our judgment, Jaishanker was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him his removal from service was illegal. He is entitled to this declaration.'
26. On the conspectus of the aforesaid authorities the following propositions of law emerge : (1) An employee who is appointed on a substantive or permanent post has a title and/or lien on the said post, and in consequence whereof he is entitled to hold the said post till it is abolished; (2) termination of such employee is per se a punishment and subject to two exceptions, and such termination attracts the provisions of Art. 311(2) of the Constitution of India; (3) any statutory rule which gives power to the employer-authority to terminate the services of such employee without following the procedure prescribed under Art. 311(2) will be contrary to the provisions of the said Article and invalid, whether the termination is automatic or by orders; (4) two exceptions envisaged are when an employee reaches the age of superannuation, and under the rule he is to be compulsorily retired, and such rule provides that such retirement can be made only after the officer attains a prescribed age, and further, the retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Taking the last exceptions, it has been settled position of law that such compulsory retirement does not take away any of the rights that has accrued to a Government servant because of his past service. It cannot be said that if the retiring age of all or a section of the Government servants is fixed at 50 years, the same would involve civil consequences. It the Government servant has completed 30 years of service, this provision of service rules dealing with compulsory retirement has been saved from challenge to Art. 311(2) of the Constitution, because it was found by the Supreme Court that such order of compulsory retirement which was passed in public interest involved no civil consequences and did not take away any right accrued to a Government servant on account of fixation of high age and minimum years of qualifying service.
27. So far as special contract of service is concerned, I have not considered the case on the line as we are not concerned with any such special contract of service.
28. In view of the aforesaid settled legal position, I will now consider the provisions of rule 3003. This rule dose not provide for any procedure to be followed or contemplates any show cause notice, and in fact, the service of the appellant-plaintiff has been dispensed with by the order of compulsory retirement without following any procedure or giving him any opportunity of being heard. This rule only provides that an employee who is completely incapacitated for further service in any category will be ceased to perform his duties. Therefore, when the competent authority comes to the conclusion that an employee, on account of his physical incapacity, is unable to perform his duty even in a lower category, his service can be terminated by compulsory retirement, because the employee who was efficient when he was recruited has become inefficient on account of physical inability or incapacity. The questions, whether the employee is totally incapacitated or whether he has been partially incapacitated or his inability or incapacity is permanent or temporary, require to be adjudicated. Services of an employee holding a substantive or permanent post cannot terminated merely on subjective satisfaction of the authority concerned. In my opinion, termination of service by way of compulsory retirement of a servant even on the ground that he is incapable of performing his duties on account of unfitness amounts to removal from service within the meaning of Art. 311(2) of the Constitution of India, as observed by the Supreme Court in case of Motiram Deka (supra), it does not fall within the recognised exceptions, viz. compulsory retirement on account of public interest when he certain age, and completes the qualified period of service, nor his case falls within the purview of superannuation or special contract, as has been held in case of Satishchandra (supra). Physical incapacity of an employee may amount to inefficiency and incapacity to perform his duties. However, before his service is terminated, he should be heard or offered an opportunity to be heard as has been prescribed under the rules, and if there are no rules, then an opportunity envisaged by Art. 311(2) of the Constitution of India must be given. The rule merely prescribes one of the reasons for terminating the service of the employee. But that does not give power to terminate his service merely on subjective satisfaction. I, therefore, hold that compulsory retirement of the appellant-plaintiff without following the procedure prescribed under Art. 311(2) of the Constitution of India amounts to removal and, therefore, the same is invalid and liable to be quashed and set aside.
29. The second contention of Mr. Rana is that no opportunity was given to the appellant-plaintiff to put forth his case before the impugned order was passed by the Railway Administration. It is an admitted position that the plaintiff was holding a substantive post and has a right to hold said post, and his compulsory retirement is per se a punishment. It cannot, therefore, be disputed that his compulsory retirement will not bring civil consequences. Rule of natural justice is, therefore, clearly violated because the impugned order has been passed without issuing the show cause notice or without affording any opportunity to the plaintiff of heard.
30. Mr. Vin, learned Advocate for the Respondent, has relied only upon relied para 26 of the decision of the Supreme Court in case of Dhingra (supra). As stated above, in view of the subsequent decisions of the Supreme Court in case of Motiram Deka (supra) which has explained some observation of para 26 of the Dhingra's case, and in case of Jaishanker (supra), the said contention of Mr. Vin has no merit. No other decision has been cited before me by the Advocates of the parties.
31. As considered earlier, rules 3002 and 3003 of the Indian Railway Establishment Code, no doubt, give power to the competent authority to terminate the services of an employee who has been declared medically unfit to be continued in the post, and no officer has been given power to waive that incapacity. Still, however, the respondent-Railway has to follow the procedure by giving ample opportunity to the concerned employee to controvert the medical certificate and to adduce evidence that in fact he is not suffering from any such incapacity or unfitness. In the instant case, no such opportunity has been given to the petitioner, nor any procedure prescribed for removal, etc., has been followed. The impugned order passed by the competent authority, therefore, cannot be sustained.
32. In the result, therefore, the impugned order, being in clear violation of the principles of natural justice and the procedure that has been prescribed by the Railway for removal having not been followed requires to be quashed and set aside, and the appeal deserves to be allowed.
33. The appeal is, therefore, allowed. The judgments and decrees of both the Courts below are set aside. The impugned order Ex. 44 dated 23rd August, 1973 is hereby quashed and set aside, and it is ordered that the appellant-plaintiff shall be granted declaration that he continues in service and is entitled to all consequential benefits available to him. The suit is decreed accordingly with costs.