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Superintendent Now Designated as the General Manager, Metal and Steel Factory and ors. Vs. Suklal Morar - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 112 of 1964
Judge
Reported inAIR1966Cal252,(1967)ILLJ317Cal
ActsConstitution of India - Articles 77, 309, 310, 311 and 311(2); ;Civilian in Defence Services (Classification, Control and Appeal) Rules, 1952 - Rule 15
AppellantSuperintendent Now Designated as the General Manager, Metal and Steel Factory and ors.
RespondentSuklal Morar
Appellant AdvocateP.K. Ray and ;Upendra Chandra Mallick, Advs.
Respondent AdvocatePushpamoy Das Gupta, Adv.
DispositionAppeal allowed
Cases ReferredState of Uttar Pradesh v. Babu Ram Upadhaya
Excerpt:
- bose, c.j.1. this is an appeal from an order of banerjee j. making a rule under article 226 of the constitution absolute and quashing the order of termination of service of the respondent. 2. the respondent is a civilian employee of the ministry of defence and was first employ ed about twenty-two years back in the ordinance section as a permanent labourer in metal & steel factory, ichapur it is alleged that on or about the 24th february 1960 while working in the course of his employment he received injury on his chest, two hands and shoulders as a result of an accident by fall of a scrap iron and he was immediately shifted to the military hospital at alipur but he was discharged from the said hospital on the 6th march 1960 there after he reported for duty but was not allow ed to resume.....
Judgment:

Bose, C.J.

1. This is an appeal from an Order of Banerjee J. making a Rule under Article 226 of the Constitution absolute and quashing the order of termination of service of the respondent.

2. The respondent is a civilian employee of the Ministry of Defence and was first employ ed about twenty-two years back in the Ordinance Section as a permanent labourer in Metal & Steel Factory, Ichapur It is alleged that on or about the 24th February 1960 while working in the course of his employment he received injury on his chest, two hands and shoulders as a result of an accident by fall of a scrap iron and he was immediately shifted to the Military Hospital at Alipur but he was discharged from the said hospital on the 6th March 1960 There after he reported for duty but was not allow ed to resume his duties and was kept under observation of the local hospital of the Metal & Steel Factory for three weeks. Upon the expiry of three weeks he again reported for duty but was not allowed to resume his duties.

3. It appears that thereafter he was examined by the Medical Board in January 1960 and it was found that he was suffering from Post Myocardial infraction. On or about 23rd February 1960 the respondent was sent to the Military Hospital at Calcutta for admission and treatment and he was kept in that hospital till 5th March 1960 There also it was diagnosed that the respondent was suffering from Post Myocardial Infraction The Medical Board of the Metal & Steel Factory Hospital which examined the respondent submitted a report on the 29th April 1960 and it appears from the said report that it was found by the MedicalHoard that the respondent was suffering from Myocardial Infraction (Posterior) and in consequence thereof he was completely and permanently incapacitated for further service of any kind of Ordnance Factories. At the time of the examination by the Medical Board the left thumb impression and finder impressions of the respondent were taken and attested by one of the members of the Medical Board. In the meantime the respondent made certain representations before the Authorities concerned and on or about the 24th April 1960 he submitted a Medical Certificate given by a private doctor before the Authorities concerned. According to this certificate there was found nothing wrong with the respondent and he was quite fit for his old job.

On or about the 25th June 1960 the respondent was served with an office Order dated 20th June 1960 terminating the service of the respondent with effect from the 29th April 1960 on medical grounds. The material portion of the Order may be set out hereunder :--

'The services of Shri Suklal Morar. T. No. SH/135, Labourer ' B ' are terminated on medical grounds with effect from 29-4-60.

2. The period of his absence from 20-2-60 to 28-4-60 is covered by grant of leave as under :

(i) Leave on M C on half pay from 20-2-60 to 25-2-60.

(ii) Extraordinary Leave without pay from 26-2-60 to 28-4-60. '

4. Thereafter the respondent made certain representations to the Superintendent, Metal & Steel Factory, Ichapur and also filed appeals and representations before the Director General of Ordnance Factories at Calcutta asking for reinstatement of the respondent but without success and ultimately on or about the 13th February 1962 the respondent moved this Court under Article 226 of the Constitution and a Rule Nisi was issued by Banerjee, J. limited to grounds (c) and (d) as set out in paragraph 22 of the petition The said grounds are set out hereunder :

' (c) For that the order of termination has been in violation of Rule 15 of the Civilian in Defence Services (Classification. Control and Appeal) Rules, 1952.

(d) For that the order of termination has been in violation of Article 311(2) of the Constitution of India as no opportunity has been given to your petitioner to show cause against the order of termination. '

5. It may be noted that in paragraph 8 of the petition under Article 226 of the Constitution the respondent Suklal alleged that the Medical Board had never examined him at any stage and the Order terminating the services of the respondent was made without giving the respondent any opportunity of showing cause for such termination of service by the appellant No. 1, that is, the Superintendent of Metal & Steel Factory, Ichapur. It is further to be noted that in the correspondence also the respondent stated categorically that as a result of injury sustained in course of employment he had been admitted as an indoor in the hospital butIn the affidavit-in-opposition in answer to the petition under Article 226 which was affirmed by the Deputy Manager-in-charge of Administration of the Metal & Steel Factory, Ichapur it was stated that the allegation of the respondent that he had received injury as a result of an accident by fall of a scrap iron on the 24th February 1960 was wholly untrue and the further statement of the respondent to the effect that he had never been examined by the Medical Board at any stage was also an entirely false statement. The respondent Suklal filed a supplementary affidavit in August 1963. The respondent admitted that he was examined by the Medical Board of the Ordnance Factory on the 29th April 1960 and it was due to an oversight that it was stated in the petition that the respondent had not been examined by the Medical Board at any time.

6. In answer to this supplementary affidavit, on the 2nd September 1963, an affidavit affirmed by the Manager-in-Charge of the Administration of the Metal & Steel Factory, Ichapur, was filed in which it was slated that the service of the respondent was terminated on medical grounds and such termination was not by way of penalty and so the question of giving any reasonable opportunity of showing cause against the action taken did not arise.

It was also stated in this affidavit that medical fitness of an employee being a precondition for appointment in service, continued medical fitness is the essential condition for his continuing in service. Reference is also made to Rule 9 of the General Rules of Service of Industrial and Non-Industrial employees of Ordnance and Clothing Factories which provides that the employees are liable to submit themselves for periodical medical examination and check-up as may be required from time to time. The said Rule may be set out hereunder :--

Rule 9 :--

'Liability to Medical Examination- Employees will submit themselves to medical examination from time to time as may be required by the Officer in-charge of the Establishment. '

7. It is also to be noted that to this affidavit of the Manager of the Metal & Steel Factory affirmed on the 2nd September 1963 was annexed an office Circular dated the 30th April 1953 issued from the Office of the Director-General, Ordnance Factories. This date 30th April 1953 was wrongly given in the annexure ' A ' to the original affidavit affirmed on the 2nd September 1963 as 30th April 1963 and it appears that this incorrect insertion of the date has misled the learned trial Judge and has influenced the judgment delivered in the case to a considerable extent. The relevant portion of this annexure ' A ' to the affidavit affirmed on the 2nd September 1963 is set out hereunder :

' To : All Factories.

Subject :--Industrial and Class IV Employees--Termination of service on medical grounds.

Reference : -- . ... ...

It has been decided that Superintendents/-Officers-in-Charge being the competent authority to terminate the services of Industrial employees and Class IV employees, the formal orders for termination of their service should be issued by the Superintendents/Officers-in-Charge in the following cases :--

(i) When a Medical Board declares a person completely and permanently incapaciated for further service.

(ii) When the opinion of the Medical Officer-in-Charge of a Factory regarding a man's complete unfitness for further service, has been approved by the C. M. O.

2. Unless otherwise directed, the service in the case at (i) above should he terminated with effect from the date of the Medical Board's decision, and in the case at (ii) with effect from the date of the C. M. O.'s approval of the M. O.'s opinion.

3. No notice or pay in lieu thereof will be admissible in any of these cases.

4. The individual concerned may, however, be informed, on request, of the cause/disease for which he has been declared completely unfit for further service. 5. ... ... ...

(Sd) J. C. Mookerjee,

Officer Supervisor (A)

for, Director General, Ordnance Factories

8. The learned trial Judge in course of his judgment observed as follows :--

' Admittedly, the petitioner is governed bythe Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952. These Rules do not make any provision for termination of service of a permanent employee. Nor is it the case of the respondents that the termination of the service of the petitioner was made under any other service condition or service regulation. The only document on which Mr. Upendra Chandra Mallick, learned Advocate for the respondents, relied in support of the jurisdiction to terminate the service of the petitioner in Annexure 'A' to the further affidavit-in-opposition which I set out below :

(The document is set out)

The document is signed by the Officer Supervisor (A) for Director-General of Ordnance Factories and is dated April 30. 1963. This document was not in existence when the services of the petitioner were terminated. Also Mr. Mallick could not satisfy me about the authority of the Director General, Ordnance Factories to make an order like the one quoted above.

9. Then in a later portion of the judgment the learned trial Judge has made the following observations :--

'The petitioner was a permanent employee, Although it does not appear that his post was a pensionable one, it may be that he was entitled to some retiral benefits. I do not know nor do I know to the contrary. In such circumstances and without more, the respondents were not entitled summarily to terminate his services, in the absence of such a power either in the service regulation or in the service contract.

If the petitioner has become permanently incapacitated whether he may be otherwise dealt with, say for example, by compulsory retirement or otherwise, if at all, I do not know, but I am of the opinion that the respondents have no right to terminate the services of the petitioner in the manner done.

I, therefore, make this Rule absolute and quash the order of termination of service of the petitioner.

Let a writ of certiorari accordingly issue. This order will not. however, prevent the respondents from otherwise dealing with the petition according to law.'

10. The learned Judge has also in course of his judgment referred to three decisions of the Supreme Court reported in : [1958]1SCR509 , Hartwell Prescott v. U. P. Government Parshotam Lal Dhingra v. Union of India and : [1958]1SCR1052 Balakotaiah v. Union of India and also to a decision of the House of Lords reported in (1957) 2 All ER 120 Mc Clelland v. Northern Ireland General Health Services Board for coming to the conclusion that the Rule should be made absolute.

11. At the hearing of the appeal before us our attention was drawn by the learned advocate for the appellants to a decision of the Bombay High Court in the case of Tara Singh-Ujagar Singh v Union of India, (51 Bom LR 1185: AIR 1960 Bom 101 where it has been held that a person holding any post connected with defence within the meaning of Article 310(1) of the Constitution of India is not included in the class of persons holding a civil post under the Union referred to in Article 311(1) of the Constitution and a civilian employee in Defence Service is not entitled to protection under Article 311 and is not entitled to any reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

12. The learned Advocate for the appellants also invited our attention to some of the decisions referred to in the case of 61 Bom LR 1185 : AIR 1960 Bom 101 of India which have held that by reason of the provisions of Article 310 the tenure of office of a civilian employee in Defence Services continues to be at the pleasure of the President or the Governor as the case may be, and even the Parliament has no authority by legislation to derogate from the provisions of Article 310 of the Constitution.

13. In view of this state of authorities the learned Advocate for the respondents has conceded that he does not propose to press ground No. (d) in paragraph 22 of the petition upon which the Rule was issued but he will confine his attack upon the validity of the Order of termination of service on the basis of ground (c) alone, that is, with regard to the violation of Rule 15 of the Civilian in Defence Services (Classification. Control and Appeal) Rules, 1952.

14. We want to make it clear however that even if such concession had not been made on behalf of the respondent, we would have held on the slate of the authorities just referred to that the protection afforded by Article 311(2) of the Constitution is not available to the respondent, in view of the provisions of Article 310(1) of the Constitution which applies to his case, he being a civilian employee in Defence Services and so outside the purview of Article 311 of the Constitution.

15. So the only other point which remains for consideration in this appeal and upon which a good deal of argument has been addressed by the learned Advocates appearing for the parties, is whether Rule 15 of the Civilian in Defence Services (Classification. Control and Appeal) Rules, 1952 which has been framed under Article 309 of the Constitution should have been followed in this case and whether the appellants before us were entitled to terminate the services of the respondent on medical grounds in the manner they have purported to do so in the present case.

16. The material portion of Rule 15 is as follows :--

Rule 15 :--'' Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a service (other than an order passed on facts which had led to his conviction in a Criminal Court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges ...'

17. Now it is to be pointed out that in the present case the Order of termination of service of the respondent was not made by way of inflicting any penalty or punishment by the appellants. Rule 15 applies to cases of Orders of dismissal, removal, compulsory retirement or reduction which are made by way of imposition of penalty or punishment. Clearly the Order dated 20th June 1900 terminating the services of the respondent cannot be regarded as an order of dismissal or removal or compulsory retirement within the meaning of Rule 15 of the Defence Services Rules 1952 The order of termination of service was made as the respondent was found permanently incapacitated from rendering further service in the Ordnance Factory.

18. The Supreme Court in the case of AIR 1968 SC 30 has pointed out that where the Government intends to inflict three major punishments of dismissal, removal and reduction in rank, the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. But when the termination of service which is said to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) of the Constitution. The same observations are applicable to Rule 15 and so this Rule 15 is not attracted to the facts and circumstances of this case.

19. But the further question which arises for consideration is whether the services ofthe respondent who was a permanent employee could be terminated in law in the manner in which it has been done. On behalf of the appellants reliance was placed, on Article 310 of the Constitution for the purpose of showing that the respondent was holding office during the pleasure of the President and so his services were terminable at will: and by virtue of this article there was ample power vested in the Government of putting an end to the employment of the respondent when he was found physically unfit for continuing in further service. Article 310 is as follows :-

Article 310--' Except as expressly provided by this Constitution every person who is a member of a Defence Service or of a Civil Service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during pleasure of the Governor of the State.'

20. It was argued relying on this provision of the Constitution that the pleasure of the President or the Governor as envisaged in Article 310 was paramount and it could not legally be controlled or limited by any rule made in relation to services contemplated in Article 310 and so even if Rule 15 of the Defence Services (Classification, Control and Appeal) Rules, 1952 is attracted to this case, such a Rule would not affect or restrict or control the pleasure exercisable by the President or the Governor under Article 310 of the Constitution. Reliance was also placed on the decision of the Judicial Committee in Venkata Rao'a case. 64 Ind App 55 : AIR 1937 PC 31.

21. The further argument that is put forward on behalf of the appellants is that any rule framed under Article 309 of the Constitution cannot restrict or control the provisions of Article 310 inasmuch as the opening words of Article 309 ' subject to the provisions of this Constitution ' indicate dearly that the powers conferred by Article 309 are made subject to the provisions of Article 310 and the opening words of Article 310 viz.. '' except as expressly provided by this Constitution ' make it abundantly clear that if there is a specific provision in some part of the Constitution giving to a Government servant a tenure different from that provided for in Article 310, that Government servant is excluded from the operation of Article 310. The opening words of Article 310 have, according to the argument of the learned Advocate appearing for the appellants, reference to Articles like Articles 124, 148, 218, and 324 of the Constitution. In other words, the contention on behalf of the appellants is that Article 310 provides for tenure at the pleasure of the President or the Governor, and Article 309 enables the Legislature or the Executive as the case may be to make any law or Rule in regard inter alia to conditions of service without affecting the overriding power recognised under Article 310.

22. I have already set out the relevant portion of Article 310 of the Constitution and Ithink it will be convenient also to set out Article 309 at this stage. The said article is as follows :

Article 309 :--' Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State :

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make Rules regulating the recruitment and the conditions or service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any Rule so made shall have effect subject to the provisions of any such Act. '

23. Now a perusal of the Articles 309 and 310 makes it clear that the opening words of 309 'subject to the provisions of this Constitution ' make this Article 309 subject to Article 310 and so any law passed by an appropriate Legislature or any Rule framed by the President or the Governor regulating the recruitment and conditions of service of persons appointed to public services and posts, under Article 309, cannot in any way affect the tenure at pleasure as provided in Article 310. It also appears to me that the words, 'except as expressly provided by this Constitution ' occurring in the opening sentence of Article 310 have reference to the express provisions in the Constitution which have in any way restricted or curtailed the tenure at pleasure as laid down in Article 310, for example. Articles like 124, 148, 218 and other articles. Similarly Article 311 is one of such express provisions in the Constitution which curtails the pleasure of the President or the Governor that is vested in him under Article 310. As pointed out by the Supreme Court in Dhingra's case, : (1958)ILLJ544SC , Article 311 is to be regarded as a proviso to Article 310 and this Article 311 provides two Constitutional guarantees cutting down the pleasure of the President or the Governor and this Article is a mandatory provision which has to Decompiled with before the pleasure as envisaged in Article 310 can be exercised. So there is no doubt that Article 311 controls Article 310. But it appears to me that the law passed under Article 309 prescribing the conditions of service, or any Rule framed by the President or the Governor Jo this effect, cannot be regarded as an express provision of the Constitution within the meaning of the opening words of Article 310 and cannot cut down the pleasure tenure contained in Article 310.

24. In the case of Venkata Rao v. Secretary of State 0043/1936 already referred to, Section 96-B(1) of the Government of India Act 1915 was considered and in spite of the words ' subject to the Rules made under the Government of India Act and the Rules made thereunder' ifwas held by the Privy Council with reference to the Rule made under Section 96B that while that section assumed that the tenure of office though at pleasure would not be subject to capricious or arbitrary action but would be regulated by the Rules, it gave no right to the appellant in that case, enforceable by action to hold his office in accordance with those Rules. It was held that Section 96B of the 1915 Act and the Rules made thereunder only made provision for the redress of grievances by administrative process.

25. So the legal position appears to be that under Article 310 a person who is a member of a public service as contemplated in Article 310 holds office during the pleasure of the President or the Governor as the case may be. This tenure, however, is subject to the limitations or restrictions expressly mentioned in Article 311. The appropriate Legislature or the Rule-making Authority referred to in Article 309 can make law or Rules regulating the recruitment and conditions of service under Article 309, but such law or Rules cannot affect the power of the President or the Governor to dismiss a public servant at pleasure under Article 310. If any such law or Rule as framed in exercise of the power under Article 309 of the Constitution lays down the procedure for disciplinary proceedings against the public servant which is not inconsistent with or which, is merely an elaboration of the guarantee contained in Article 311(2) of the Constitution, then such law or Rule may be held as permissible, inasmuch as it has not the effect, of cutting down the pleasure tenure under Article 310 except to the extent as expressly done under Article 311(2) of the Constitution. The interpretation I have put on Articles 309 and 310 of the Constitution receives support from the decision of the Supreme Court in the case of State of Uttar Pradesh v. Babu Ram Upadhaya reported in : 1961CriLJ773 . The respondent as already pointed out is a civil employee in Defence Services and therefore outside the purview of Article 311 of the Constitution Therefore it is not free from doubt whether Rule 15 which lays down the detailed procedure with regard to disciplinary proceedings that may be taken against an employee of the Defence Services in case where certain major punishments are intended to be inflicted upon the employee is a permissible or valid Rule or not. But in view of the fact that in the present case the termination of service was not by way of punishment but on the ground of physical unfitness of the respondent, it cannot be said that the respondent could legitimately make any grievance of the violation of the provisions of Rule 15 in his case and even if it is assumed that Rule 15 is attracted to the case of the respondent, I do not think that it is open to the respondent to seek any redress, in a proceeding under Article 226 of the Constitution or by any action, for violation of Rule 15 in view of the Privy Council's decision in Venkata Rao's case 0043/1936 which has been approved of by the Supreme Court in more than one decision.

26. Now the further question that arises is whether the termination of service of the respondent was in exercise of the pleasure vested in the Authorities concerned, under Article 310 of the Constitution. It was argued that under Article 77 of the Constitution all executive actions of the Government of India shall be expressly taken in the name of the President, and any Order or other instrument made and executed in the name of the President has to be authenticated in such manner as may be specified in Rules made by the President, but there is nothing to show that any order as authenticated in terms of Article 77 was made in this case. Article 73(1)(a) of the Constitution however makes it clear that the executive power of the Union Government extends to matters with respect to which Parliament has power to make laws. But as already pointed out Parliament cannot make any law affecting the tenure at pleasure of the President except to the limited extent as already indicated. So the pleasure exercisable by the President or the Governor cannot be strictly regarded as an executive action to which the provisions of Article 77 are applicable. Apart from that, I do not see any reason why the power conferred on the President or the Governor with regard to the tenure at pleasure and as embodied in Article 310 of the Constitution cannot be exercised by subordinate officers upon delegation made for the purpose. We have seen already that by the memorandum which was issued by the Director General, Ordnance Factory on the 30th April 1953 which is Annexure 'A' to the supplementary affidavit-in-opposition affirmed on the 2nd September 1963 the Superintendent and officers-in-charge were authorised to issue Orders of termination in a case when a Medical Board declares a person completely and permanently incapacitated for further service. The learned trial Judge was misled by the wrong date given in the annexure to the original supplementary affidavit-in-opposition affirmed on the 2nd September 1963, into thinking that the date of this memorandum was 30th April 1963 and this document was not in existence when the services of the respondent were terminated. At the hearing before us the original memorandum has been produced and it appears therefrom that the correct date as already pointed out is 30th of April 1953 and not 30th of April 1963. It is therefore clear that by virtue of the authority conferred by the Director-General upon the Superintendent or officer-in-charge an order of termination of service for permanent incapacity of an employee could be issued by the Superintendent in-charge of the Department and in the present case the Order was issued by the Superintendent of the Ordnance Factories on the 25th June 1960.

27. The learned trial Judge has stated in his judgment that the learned Advocate for the appellants Mr. Mallick could not satisfy him about the authority of the Director-General, Ordnance Factory to make an Order like the one as appearing in Annexure 'A' to the supplementary affidavit-in-opposition affirmed on 2nd September 1963.But it is to be noted that in the supplementary affidavit which the respondent filed in August 1963 it was stated that the appellant No. 1, i.e., the Superintendent, Metal and Steel Factory had no authority, jurisdiction or sanction under any provisions of the Services Rules or any other Rules applicable to service conditions of the respondent to terminate the services of the respondent and as such the termination was illegal and bad in law. It was in answer to this statement that in the supplementary affidavit-in-opposition which was affirmed on the 2nd September 1963 that the authority of the Superintendent to issue the Order of termination was annexed but it could not be anticipated by the Superintendent or the Director-General of Ordnance Factories who were respondents to the petition under Article 226, that the authority of the Director-General himself to issue the directive or circular as contained in Annexure 'A' to the supplementary affidavit-in-opposition affirmed on the 2nd September 1963 would at all come into question or would come to be challenged. That is why no materials had been placed before the Court tracing the power or authority of the Director-General himself to issue the directives or circular in question empowering the Superintendent or the Officer-in-Charge to issue the order of termination of service on medical grounds.

28. It appears moreover that the emphasis of the learned trial Judge in his judgment is on the fact that the authority to the Superintendent contained in Annexure 'A' to the supplementary affidavit-in-opposition of September 1963 was not in existence at the material time when the Order of termination was made but it came into existence at a subsequent date. But the state of affairs as disclosed by the original circular shows, that the date is 30th of April 1953 and it was pursuant to this authority that the Superintendent issued the Order of termination. Under the Rule which forms the condition of service of the industrial and non-industrial employees of the Ordnance & Clothing Factories, and which is embodied in Rule 9, the employees are liable to submit themselves for periodical examination and check-up and though this is not a statutory rule it is clear that medical fitness of an employee is a pre-condition for appointment in the service, and continued medical fitness is thus an essential condition for his continuing in service and it sounds contrary to reason and commonsense to hold that it is not permissible to terminate the service of a person who becomes permanently incapacitated from, rendering further service by reason of any, illness or disease to which he may fall a victim in course of his employment. It is to be noted further that while obtaining the Rule Nisi under Article 226 of the Constitution the respondent made two false statements in the petition under Article 226 of the Constitution, one relating to the fact that he had suffered injury on his chest due to an accident by fall of a scrap iron on the 24th February 1962, and the other, that he had not been examined by the Medical Board at any stage; and when it was pointed out inthe affidavit-in-opposition that the true fact were otherwise, the respondent took leave of the Court to file a supplementary affidavit for clarifying the true position. In this supplementary affidavit he challenged the authority of the Superintendent to make the Order and in answer to that statement the circular dated 80th of April 1968 was annexed to the affidavit-in opposition in answer to this supplementary affidavit. Having been confronted with this document at the hearing, the respondent then threw out a further challenge to the authority of the Director-General, Ordnance Factories to issue the circular in question dated the 30th of April 1958.

29. In these circumstances, I do not think that the respondent is entitled to any further indulgence of having the question of the authority of the Director-General, Ordnance Factories agitated in this proceeding. If so advised he can raise any such question in any other proceeding that he may file for the purpose. Our conclusion is that for the reasons given above, the Order of the learned trial Judge cannot be sustained.

30. In the result, this appeal is allowed. The judgment and order of the learned trial Judge are set aside and the Order of termination of service of the respondent is upheld. Each party to bear its own costs.

B.C. Mitra, J.

31. I agree.


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