P.K. Banerjee, J.
1. This appeal at the instance of the Calcutta State Transport Corporation being a body corporate constituted under the Road Transport Corporation Act 1950 arises out of a suit filed by the plaintiff who was a foreman Grade I under the services of the appellant. His case was that on 27.11.66 while the plaintiff was returning home in a departmental vehicle he suffered severe injury as a result of collision with another vehicle. The plaintiff was taken to R.G. Kar Hospital. Thereafter he was taken to his residence. The plaintiff had to take leave. He was medically treated by the Doctor of the defendant as well as by the private Doctor. The plaintiff was granted Rs. 500/- as ex-gratia by the defendant. The plaintiff got leave from 28.12.66 to 14.5.67. He resumed the duties on 15.5.67 and worked upto 22.5.67 but took leave again for three months on the Medical Officer's advice. He applied on 26.5.67 for retirement on medical ground but nothing was heard by him from the appellant. He joined on 23.8.67 but he was not allowed to continue in his service as it was alleged he is medically unfit and is directed to take admission in R.G. Kar Medical College Hospital. Again the plaintiff wanted to retire on medical ground but he was informed by the appellant that he is deemed to have been resigned from the service on 23.8.67 and the plaintiffs application for retirement on medical ground was not accepted. It is alleged that the plaintiff never resigned from the service and the plaintiff asserted that he is still in service. Hence the plaintiff filed the suit for declaration against the defendant's said action in treating the plaintiff as resigned is void and illegal and for the declaration that the plaintiff is in service and is entitled to get salary, dearness allowances etc. from March 1967. The defendant filed written statement denying inter alia the material allegation of the plaintiff the case made out by the defendant is that as the plaintiff absented himself from 28.12.66 and he resumed his duties on 15.5.1967 he was granted extraordinary leave from 23.5.67 without pay and failed to resume his duties after the expiry of three months extra ordinary leave admissible to the plaintiff under the leave rules of Calcutta State Transport Corporation and therefore the plaintiff is deemed to have resigned from service and ceased to be in the employ of the defendant from 23.8.67. The suit was decreed on contest as against the sole defendant and the decree was made for a sum of Rs. 31,200/- calculating the salary, arrears of salary from March 1967 to August 1970 and dearness allowances from March 1967 for three months as in Schedule A for Rs. 31,200/-. Being aggrieved by the said decree, Calcutta State Transport Corporation filed the present appeal.
2. Mr. Roy, learned Advocate for the State Transport Corporation, appellant, contended that though it is true that the plaintiff wanted to retire on medical ground that the application was not allowed by the defendant but the defendant deemed to have resigned from the service as he failed to resume his duties after the extraordinary leave expired on and from 23(8.67. It appears that the plaintiff wanted to join but was prevented by the authorites to allow him to join the service as being medically unfit and is directed to take admission in R.G. Kar Medical College Hospital. It is quite clear from Ext. l(i) being letter dated 4.10.67 the General Manager sought to reply to the letter dated 26.6.67 that he is deemed to have resigned from 23.8.67. It is quite clear, therefore, that the plaintiff was sought to have resigned in view of the fact that he has failed to join after the extraordinary leave expired. It is also clear from the finding of fact which has arrived at by the Court below that the plaintiff wanted to join but it is the defendant who felt that he was not fit as yet to join and the letter of resignation was never accepted by the authorities concerned and thereafter he has been deemed to have resigned; the letter of retirement on medical ground sent by the plaintiff is of no effect. In our view the learned Judge; was right in holding that the plaintiff did not resign from the service but he wanted to retire from the service. He was deemed to have resigned from the service in view of the order passed by the General Manager of the Calcutta State Transport Corporation.
3. It further appears to us that the plaintiff has the statutory right in view of the Road Transport Act read with Calcutta State Transport Authorities Act in accordance with the Rules framed under the statute and that statutory right or status of the plaintiff as the servant of the Calcutta State Transport Corporation cannot be taken away except in accordance with the rules as framed by the Calcutta State Transport Corporation. It is possible for a person to resign on medical ground if such resignation is accepted by the said transport authorities but in the present case on fact it appears this was not so. The authorities sought to terminate the service of the plaintiff on the ground that the plaintiff was deemed to have resigned on 23.8.67 under the statutory rules.
4. Under the rules itself it is clear that the service of an employee of the Corporation can be terminated in accordance with the West Bengal Service Rules in view of Rule 23 of the State Transport Authorities Rules which brings in the West Bengal Service Rules provided that the said rule is not inconsistent with any of the provisions of the Act and Rules framed by the Corporation. Under the West Bengal Service Rules in particular Rule 34 of the W.B. Service Rules Part 1 it has been provided that no Government servant in permanent employ shall be granted leave on any ground for a continuous period not exceeding five years. Where such a Government servant under Rule 34(2) does not resume duties after remaining for leave for a continuous period of five years, such servant unless in view of the exceptional circumstances of the case otherwise deemed to have resigned and shall accordingly ceased to be in Government employment. Under Rule 34 Sub-rule (2), it is clear that even in such cases the Government may consider exceptional circumstances of each case in order to apply the Rule 34(2) of the W.B. Service Rules and on the face of it before such rule is applied a show cause notice must be given to the servant. To this proposition of law Mr. Roy could not make a contrary submission. In fact, Mr. Roy, only contended that they may be allowed to consider the letter of 1967 asking the Corporation for leave to retire on medical ground. As we have already said that letter was not accepted, and on the other hand the servant of the Corporation was thought to be deemed to have resigned from the service. In our opinion, therefore, the order passed by the learned Judge cannot be said to be illegal.
5. Therefore, the decree appealed against must be affirmed and the appeal must stand dismissed. We are, however, not deciding the matter for the demand of the salary of plaintiff in this proceeding. It is for the plaintiff to apply to the Corporation if such application is made which has to be considered in accordance with law. With these observations this appeal is dismissed without any order as to costs. The money already deposited by the State Transport Corporation in the trial Court may be withdrawn in satisfaction of the decree on payment of court fees by the plaintiff.
B.N. Mactra, J.
6. I agree