1. The facts of this case are as follows: The petitioner joined the East Indian Railway in February 1917 as an apprentice mechanic. In 1922 he was appointed as a mechanic. In 1949 heofficiated as a foreman. On and from 10-10-1949 he reverted to his substantive post of T. T. C. (Technically Trained Chargeman). On 15-5-1951he was confirmed in the post of an assistant foreman. When the East Indian Railway was taken over by the Government of India, the petitioner executed a service agreement by which he agreed as follows:
'I acknowledge that I am and will be bound byall general rules and regulations of GovernmentService.'
2. In the beginning of April 1951, the petitioner reported sick, and continued to be on the Sick-list until 25-6-1951. It appears that he was suffering from left ventricular failure of the heart with myocardial deficiency. He was recommended leave for two months from 25-6-1951 by the workshop medical officer Lillooah and remained on leave until 25-10-1951. On 18-11-1951 he was again examined by the then workshop medical officer Lillooah. In the opinion of the said medical officer the petitioner was not likely to be physically fitenough to resume work by 1-6-1953, on which date he would reach the age of superannuation. It is said in the affidavit in opposition (affirmed by Sitansu Sekhar Chakravarti) as follows:
'Accordingly the said Workshop Medical Officer Lillooah duly declared the petitioner to be medically unfit and sent a report, recording the said fact to the Chief Medical Officer Calcutta.'
Upon the receipt of the certificate, the petitioner'spay for 20 days in November 1952 was remittedto him. There was neither any intimation givento him, nor any formal notice that he had beendischarged from service for physical unfitness. Infact, although all relevant papers have been disclosed, I have been unable to find any order bythe proper authority ordering his discharge. Ishall come back to this aspect of the casepresently.
3. On 10-12-1951, the petitioner wrote to the Deputy Chief Mechanical Engineer Lillooah complaining about receipt of only 20 days' pay with the note on a money order coupon 'Your settlement salary.'
4. On 15-2-1952, the Deputy Chief Mechanical Engineer wrote to the petitioner as follows:
'I would state that you have been declared medically unfit for further Railway Service from the afternoon of 20-11-51 and that the leave salary due up to 20-11-51 has already been received by you on 8-12-51.'
5. Even this letter does not contain the orderof discharge.
6. The petitioner then made various applications to the authorities stating that he could not be discharged summarily without being granted an opportunity to be heard in respect thereof. It is further the petitioner's case that in or about December 1952 he became fit for resuming his (duties. It appears that the workshop medicalofficer directed the petitioner on 14-1-1953 to appear before him for further examination with a report from a cardiologist & an Electric Cardiogram; which he did. According to the petitioner, the workshop medical officer was satisfied and recommended his case but the Chief Medical Officer turned it down on the ground that the appeal was not in accordance with the rules.
7. This rule was issued on 28-5-1953 upon the respondents to show cause why appropriate writor writs should not be issued preventing them from giving effect to the order declaring the petitioner as medically unfit or terminating his services.
8. Before I proceed further, it will be observed that by now the petitioner has passed his age of superannuation, so that there is no question of his being continued in service at present. If the petitioner is successful herein, the only result will possibly be that his premature discharge will be avoided and he might become entitled to arrears of pay until his service came to an end by his attaining the age of superannuation. The followng are the relevant rules in the Indian Railway Establishment Code:
'148 (3) Other (non-pensionable) railway servants:--
The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the period shown below. Such notice is not however required in cases of.................. termination ofservice due to mental or physical incapacity.' 'Rule 1702---'Penalties'--The following penalties may for good and sufficient reasons and as hereinafter provided, be imposed upon railway servants.
(8) Removal from the service.
(9) Dismissal from the service. Note (1). The discharge-
(d) of a person for inefficiency due to failure to conform to the requisite standard of physical fitness...... does not amount toremoval or dismissal within the meaning of this rule.'
9. It is argued that discharge due to physical unfitness is neither removal nor dismissal so as to attract the provisions of Article 311 of the Constitution. In the first place, I do not see how the petitioner was discharged at all. Neither the rules lay it down, nor the service agreement provides that a report by the medical officer declaring the employee to be medically unfit, will operate as a notice of discharge or a summary dismissal. In the decision which I shall presently cite, the discharge ot an employee for physical incapacity has been held to operate as a dismissal from service. If so, the proper officer should pass the order so that Article 311(1) should be satisfied. No such order has been placed before me.
10. In -- 'Union of India v. Someswar Baner-jee', : AIR1954Cal399 (A), the plaintiff had been employed as a permanent Bridge 'Inspector under the Bengal and Assam Railway. He had sustained an injury to his back and was away from employment for a considerable time. Eventually he was examined by a medical officer on behalf of the Railway and was declared unfit. The Engineer-in-chief informed the plaintiff that he had been declared unfit and permanently incapacitated. The same authority directed that his salary upto the date when he was so declared should be paid. The plaintiff brought a suit for a declaration that he was still employed in the Railway. Bose J. decreed the suit and granted the declaration. The appeal court upheld the decree. Harries C. J. pointed out that the word 'dismissal' had not been used. However, he took the letter of the Chief Engineer to be a letter of dismissal. It was contended that Rule 1709 (b) of the State Railway Establishment Code laid down that where the inefficiency was due to physical incapacity, it was not necessary to serve the employee with a charge sheet or obtain his explanation.
The learned Chief Justice held that this ruleclearly contravened Section 240(3), Government ofIndia Act 1935 and so was 'ultra vires'. He said:
'It was faintly suggested that removing a manbecause he is physically unfit is not dismissinghim. Dismissing a man is putting an end tohis employment. He may be dismissed rightly or wrongly but the act of dismissal is the act of terminating his employment. It matters not whether his employment is terminated because of dishonesty, corruption or bad health. In all three cases he has been dismissed, though in the first two cases his instant dismissal might well be morally justified, whereas in the last case it may be very harsh and unjust. In all the cases, however, the service has been terminated and he has been dismissed. It seems to me that dismissal on the ground of inefficiency due to physical incapacity clearly comes within the provisions of Section 240(3) of the Government of India Act and that being so. the rule of the Railway, namely 1709 (b) is ultra vires the provision of the Government of India Act and, I think, clearly ultra vires the present provisions of the Constitution.......'
11. Upon the same reasoning, Rule 148 (3) and Rule 1702 of the Indian Railway Establishment Code, in so far as they purport to lay down a rule that in case of termination of service for failure to conform to the requisite standard of physical fitness, no notice is necessary or that such termination does not amount to a removal or dismissal from' service, are 'ultra vires' the provisions of Article 311 of the Constitution. Mr. Roy appearing on behalf of the respondent argues that the above-mentioned decision is no longer good law, regard being had to the Supreme Court decision of -- 'Satish Chandra Anand v. Union of India'; : 4SCR655 (B). The facts in that c.ase were as follows: In October 1945. the petitioner was employed by the Government of India on a five-year contract in the Directorate General of Resettlement and Employment of the Ministry of Labour. Before termination of the service contract it was agreed between the petitioner and the Government that upon termination of the contract, he would be allowed to continue temporarily and will be governed by the Central Civil Services (Temporary Service) Rules, 1949.
Those rules required a notice of one month to be given to terminate employment. Such notice had been given. It was held that where a service is terminated according to the terms of a contract, Section 240, Government of India Act had no application. In other words such a dismissal was neither a removal from service nor a dismissal, as contemplated by Section 240, which corresponds to Article 311 of the Constitution.
12. I do not think that this decision of the Supreme Court affects the decision of the appeal court mentioned above. All that -- 'Satish Chandra Anand's case (B) (supra)' decides is that termination of service under a contract and in terms thereof does not attract the provisions of Article 311. But it also points out that if any penalty is imposed like dismissal or removal from service, the provisions are attracted. If the contract of service of the petitioner here contained a provision that his services could be terminated without notice and his services were terminated without notice, Article 311 would not be attracted. But what are the facts here? It is not stated that there is any term in the service contract whereby the service can be terminated without notice. The service-contract attracts the entire Railway Establishment Code. Removing a man because he has become inefficient through physical unfitness is dismissal. Therefore the matter can be looked at from two points of view. Firstly, if a man merely binds himself to be governed by the general rules and regulations of Government service, he must be taken to be bound by those terms that are legal.
In so far as that law offends against the Constitution, it is void. Hence, those provisions in the rules which lay down that dismissal or removal from service for physical incapacity will not call for any notice, that is to say, no charge-sheet, enquiry etc., are clearly void and the petitioner cannot be said to be bound thereby. Secondly, even suppose all the provisions in the Code are taken to be terms of a service-contract it is not permissible to contract out of the provisions of the Constitution. In other words, the Government cannot be permitted to employ a citizen (nor a citizen can agree to be employed) upon condition that the provisions of the Constitution will not apply, since this is the result of a contract of service which says that a civil servant can be dismissed or removed from service summarily, without the observance of the safeguards contained in Article 311.
13. In -- 'Satish Chandra Anand's case (B) (supra)' the contract (and the rules incorporated in the Contract) laid down that a service can be terminated upon a month's notice. There is nothing in the Constitution which prevents this. Even if a contract says that a service can be terminated without any notice, that does not militate against the provisions of Article 311. But a provision in a contract that the employee can be dismissed or removed from service (In the present case, for inefficiency due to physical in-capacity) without giving him any opportunity to be heard, clearly militates against Article 311 and is to that extent bad.
14. It is not argued that if a hearing was necessary, any such hearing was given, on the facts of this case. To comply with the provisions of Article 311, the petitioner would have to be clearly told that he was going to be dismissed for physical incapacity and should have been given an opportunity to show cause against it. That procedure has not been adopted.
15. Mr. Roy has argued that in the Appeal Court decision cited above, the aggrieved employee brought a suit and therefore there was an adequate alternative remedy. I do not think that it is an equally efficacious remedy. Notice would have to be served on Government and the proceedings would be long drawn and expensive. Besides, the Union of India would have to be made a party and it might be urged that a suit should be filed in the Punjab. That would be denying justice to a humble employee like the petitioner who is now without employment. The only thing that remains to be considered is as to what relief should be given to the petitioner. As the age of superannuation has already been passed, there is no question of the petitioner continuing in service, nor does Mr. Choudhury ask for such a relief.
16. The proper order would be to make the rule absolute and issue a writ in the nature of mandamus directing the respondents to forbear from giving effect to the alleged discharge of the? petitioner upon grounds of physical incapacity on or about 20-11-1951. This order however does not affect any termination of service as a result of the petitioner having reached the age of superannuation.
17. There will be no order as to costs.