B.N. Banerjee, J.
1. The petitioner, a medical man, was appointed on 1 August 1949, as an assistant health officer of the Howrah municipality, in charge of conservancy work. He had also to inspect, amongst other things, vaccination work, maternity work and other works.
2. In or about May or Jane 1953, the petitioner fell ill and his particular illness was a disease known as writers' cramp. Under medical advice he applied for leave for one month, commencing1 from 3 July 1953 which was granted. The petitioner did not get round during the period of his leave and under medical advice applied for an extension of the leave by two months. His application was again granted by the municipality and he was allowed leave up to 2 October 1953. On 3 October 1953, the petitioner asked for permission to rejoin his duties, alleging that be was cured of his malady. He was asked by municipality to submit himself for examination by the Civil Surgeon of Howrah. The Civil Surgeon, however, held a different opinion and did not certify that the petitioner was cured. Thereupon, the petitioner obtained another four months' leave, upto 2 February 1954 on medical grounds. After the expiry of the period of leave, the petitioner again asked for permission to rejoin and was again asked to submit himself for examination by the Civil Surgeon. The second health examination produced the following report from the Civil Surgeon:
Examined Dr. B. Sur to-day (5 February 1954). The cramp of the right hand from which be is suffering exhibits very little sign of improvement worth mentioning even after a period of rest for four months as deduced from the writing test.
In my opinion, Dr. Sur may be allowed to resume his duties provided the nature of duties which he will have to perform allows him to do away without much writing, with his right band.
3. On receipt of the report the health officer, respondent 3 wrote to the petitioner the following letter, on 30 March 1954:
As directed by the Chairman he is hereby asked to resign from his service as it is not possible for him to carry on the responsible and onerous duties of an assistant health officer with the physical defect which has exhibited little sign of improvement even after prolonged rest, according to the Civil Surgeon. He has also been absenting himself without any authorized leave since the medical leave last granted expired on 2 February 1954 when he was not allowed to resume his duties as he was not fit. He is therefore also asked to apply for medical leave for the period till the date of his resignation. He may also note that in default of compliance with this matter will be placed before the commissioners for terminating his service for absenting himself without any authorized leave and for incapacity due to physical defect.
4. The petitioner, however, did not agree to what he was asked to do and insisted upon resuming his duties.
5. At this stage the Howrah municipality was superseded and Sri R.S. Trivedi was appointed the administrator of the said municipality. On 30 April 1954, the said administrator passed the following order against the petitioner:
Dr. Sur is clearly not fit to join his post. He cannot be allowed to join. It also appears that, he is unfit for further service. He must, therefore, retire from service on the expiry of his leave already granted.
6. The order was forwarded to the State Government for confirmation under proviso (ii) to Section 66(2) of the Bangal Municipal Act, 1932. But before the confirmation was obtained, the petitioner was informed of the order by the health officer, respondent 3, under a letter, dated 3 May 1954.
7. Against the aforesaid order the petitioner moved this Court and obtained a rule, being Civil Rule No. 2061 of 1954. The rule was ultimately discharged by Sinha, J., on 8 July 1958, with the following observations;
I fail to see bow it could be possible for a doctor to continue to be employed by a public institution when he has lost the use of his right hand. For example, he is in charge of vaccination work and I take it that a doctor cannot avoid using his hand if called upon to do so. There is therefore very little on the merits.
Coming to the technical point taken, I do not think that it is necessary for me to decide whether the case is one of dismissal. It is stated on behalf of the petitioner himself that Section 66(2)(ii) applies and no sanction of Government has been received. In reply it is stated that the order of the administrator has been forwarded to Government and it is awaiting sanction. I am told that the sanction has been withheld because of the pendency of this rule. Therefore, in any event this application is premature. The question therefore resolves itself in to this. If I am called upon to decide tae application on the merits, I am afraid the decision could be against the petitioner. But if it is on the technical point about the applicability of Section 66, clearly the matter is premature, because assuming that the section applies the matter is pending before Government and a high prerogative writ cannot issue before a decision is made.
8. The confirmation of the order by the State Government was sent to the municipality on 27 November 1958.
9. The confirming order is set out below:
The undersigned is directed to say that the Governor is pleased to confirm under Section 66(2)(ii) of the Bengal Municipal Act 1932, the termination of service of Dr. B. Sur, assistant health officer of the Howrah municipality on the grounds of his physical infirmity with effect from 3 February 1954. * * *
10. The aforesaid order was communicated to the petitioner on 13 January 1958, and thereafter the municipality in its ordinary general meeting, held on 25 February 1958, passed a resolution recording the order.
11. The petitioner moved this Court against the order dated 30 April 1954, passed by the administrator, which was forwarded to the petitioner on 3 May 1954 (wrongly described as order dated 3 May 1954) and also the order of the State Government confirming the same and obtained the present rule.
12. For the purpose of giving my decision in this rule, I need refer, in the first place, to the powers of the municipality and the Stats Government in dealing with the petitioner in the manner done in the present case.
13. Section 351A(1) of the Bengal Municipal Act, 1884, conferred powers on the commissioners at a meeting to make rules as to:
(a) * * *(b) * * *(c) * * *(d) * * *(e) * * *(f) the duties, appointment, leave, fining, suspension and removal of municipal officers and servants:
(g) and other similar matters.
14. In exercise of the aforesaid powers the commissioners of the Howrah municipality, inter alia, framed the following rules:
103. An officer who has attained the age of 55 may be required to retire by the Chairman, if his salary at the time is less than Rs. 50, and by the commissioners in meeting, if his salary is Rs. 50 or upwards.
Each such officer's case should be taken up when he is 55 years old and before the expiry of each extension of service. In every case the extension should be given for not more than one year at a time.
An officer who has attained the age of 60 cannot be retained in the service of the municipal commissioners save in very exceptional circumstances and with the sanction of the commissioner of the division.
C. Punishment and suspension of municipal officers and servants
104. The Chairman may punish or snapped any officer or servant of the commissioners for misconduct, neglect of duty or incompetence : provided that in every case in which the officer's pay is Rs. 30 per mensem or upwards, the matter shall be laid before tie commissioners at their next ordinary general meeting for their information.
D. Discharge of municipal officers and servants
105. All persons employed by the commissioners, whose services may no longer be required, shall be liable to discharge after receipt of previous notice or pay in advance for the period of one month, and no such person shall withdraw from the duties of his office without having given previous notice for the period of one month on pain of forfeiture of one month's salary:
Provided that, if an officer has obtained the permission of the Chairman to apply for a post elsewhere during the period of notice, he will gee the pay up to the last day on which he has worked.
Even after toe repeal of the Bengal Municipal Act, 1884, by the Bengal Municipal Act, 1932, the aforementioned rules continue to be in operation, under the provisions of Section 25 of the Bengal General Clauses Act.
15. It is noticeable that there is no rule for compulsory retirement framed by the municipality. The petitioner has not attained the age of 55 years and no question of his retirement under Rule 103 arises. The petitioner has not also been punished for 'misconduct, neglect of duty or incompetence' under Rule 104. It was expressly conceded before me that the municipality proceeded against the petitioner under Rule 105. That rule authorizes the municipality to 'discharge persons employed by the commissioners, whose services may no longer be required.'
16. As to whether it requires the services of a particular officer, the municipality must be the sole judge, unless, of course, its judgment be mala fide made. It is not the case of the municipality that the petitioner has become a surplus hand. it appears from the office-note, dated 30 April 1954 (copy of which was made out for my use by Mr. Smrity Kumar Roy Chowdhury, junior advocate for the Howrah municipality, which I direct to be kept on the record) that the administrator directed advertisement to issue for filling up the post of assistant health officer and further directed that temporary arrangement shall continue in the meantime. The reason which weighed with the administrator in compulsorily retiring the petitioner was that he was unfit for further service. it may be reasonable to hold that if a person becomes unfit for service, the municipality may no longer require his services and that such cases also fall within the powers of the municipality under Rule 105.
17. In the instant case, however, the petitioner was not discharged as under Rule 105 but was ordered to be compulsorily retired. The municipality possesses no power of compulsory retirement. The order made on 30 April 1954 was thus in excess of the powers vested id the municipality under Rule 105. In a case reported in Secretary of State v. Surendranath 42 C.W.N. 1186 Mitter and Sen, JJ., held against the theory of any implied power of punishment of servant, where the rules expressly provided for none. On a parity of reason I hold that there is no implied power of compulsory retirement where the rules provided for none. Then again the order of compulsory retirement was made with retrospective effect, that is to say, with effect from 3 February 1954. This was again bad, because, under Rule 105, the power to discharge can take effect only prospectively. For the two reasons given above, the order of the administrator, dated 30 April 1954, deserves to be quashed.
18. I now turn to the order (hereinbefore set out) passed by the State Government under proviso (ii) to Section 66(2) of the Bengal Municipal Act, 1932, purporting to confirm the order of the administrator, dated 30 April 1954. It is doubtful whether there was any occasion for the State Government to exercise its power of confirmation under proviso (ii) to Section 66(2), because there was no order of dismissal passed against the petitioner. Assuming for the sake of argument that an order of discharge under Rule 105 is also subject to the confirmation by the State Government, even then there was no order of discharge to confirm but merely an order of compulsory retirement. Farther the State Government did not in reality confirm the order of compulsory retirement, dated 30 April 1954, passed by the administrator bat passed a new order terminating the services of the petitioner. The power of the State Government la merely confirmatory, and it can either confirm or refuse to confirm. It has no power to impose an order of its own. For the aforesaid reasons, the confirmatory order purporting to have been made by the State Government also deserves to be quashed.
19. Mr. Bhola Nath Roy, learned advocate for the respondent municipality, strongly relied on a decision reported in Poussard v. Spiers and Pond 1876 Q.B.D. 410 and contended that the petitioner being incapacitated from working, the municipality was justified in rescinding the contract of service. in the case relied upon by Mr. Roy, the plaintiff had agreed in writing with the defendants to sing and play in the chief female part in a new opera about to be brought out at the defendants' theatre at a weekly salary of 11 for three months, provided the opera ran for that time, commencing on or about 14 November. The first performance was announced for Saturday, the 28 November, and no objection was raised by plaintiff as to this delay. She attended several rehearsals, such attendance though not pressed in the written engagement, being an implied part of it. Owing to delays of the composer, the music of the latter part of the opera was not in the bands of defendants till a few days before 28 November and the final rehearsals did not take place till the beginning of the last week. Plaintiff was taken ill, and was unable to attend any of the rehearsals in that week and, it being uncertain how long her illness might continue, defendants' manager made a provisional engagement with another artist, Miss L, to study the part and be ready to take it if the plaintiff was unable. If she was not wanted, the understudy artiste was to receive a douceur; if she was called on to perform, she was to receive 15 a week till 25 December, if the piece ran so long. The plaintiff continued too ill to attend the rehearsals or the first performance on Saturday, 23 November, on the first three days next week the other artist accordingly performed on those days. On Thursday, 4 December, the plaintiff was well enough to perform and tendered her services which the defendants refused to accept; on which she brought an action for wrongful dismissal. The jury found, inter alia, that the employment of the other artist by the defendants under the circumstances was reasonable and Blackburn, J., held that the plaintiff's inability to perform on the opening and early performances went to the root of the matter, and justified the defendants in rescinding the contract.
20. That case has no application to the facts of this case. The terms of service between the petitioner and the respondent 2 municipality, were statutory terms contained in the rules. Under the rules, there is no power of rescission bat merely of discharge, if the petitioner was not required. I, therefore, repel this branch of the argument of Mr. Roy.
21. Before I close this judgment, I need notice an argument advanced by Mr. Asoke Chandra Sen, learned advocate for the petitioner, namely, that the petitioner was not really unfit for farther services and as such he should not be discharged. I am unable to accept this argument on a twofold ground. Regard being had to the nature of the duties which the petitioner has to perform, I have every reason to believe that he must be physically unfit. This is the view which Sinha, J., also expressed in Civil Rule No. 2061 of 1P54. In the next place, I have already observed that the municipality is the sole judge of the question as to whether by reason of the physical incapacity of the petitioner his services will any longer be required by the municipality. The municipality has already taken that decision, namely, that the petitioner is physically unfit for further services.
22. For the reasons aforesaid I am not inclined to give effect to this argument advanced by Mr. Sen. in my judgment, having had found the petitioner unfit for further services, it is open to the municipality to deal with him according to the rules. I have already observed that he was not dealt with according to the rules by the administrator in his order dated 30 April 1954. I have further observed that the order of confirmation by the State Government was bad and I need not repeat the reasons here. Those two orders must, therefore, be quashed keeping it open to the municipality to deal with the petitioner according to the rules.
23. This rule is made absolute to the extent indicated above. Let a writ of certiorari issue quashing the two orders dated 30 April 1954 and the confirmatory order by the State Government a copy of which is annexed to the affidavit-in-opposition and marked as annexure T.
24. There will be no order as to costs in this rule.