(1.) AS the facts stated in this petition under Article 226 are rather incomplete, they have to be supplemented from the facts stated in the affidavit -inopposition in order to obtain a clear picture of the events which have led to this application. It appears that in 1964 the petitioner was working as a crime Inspector under the Eastern railway at Sealdah Station where, it is claimed, he had sustained injury to his eyes in the execution of his duty. On the 15th April, 1964 the petitioner was admitted to the B. R. Singh Hospital and/remained there upto the 4th May, 1964 when he was discharged as completely fit for duty. Though the petitioner resumed his duty he was still suffering from eye trouble and was ultimately treated in the aforesaid Railway Hospital at first as an out-door patient and thereafter as an in-door patiient and he was ultimately examined by the eminent eye specialist, Dr. Nihar Munshi, who found him unfit for duty in B1 or B2 category but fit for duty in C1 or C2 category. On the 22nd August 1966 he was examined by dr. Chowdhury, the Divisional Medical officer, South Eastern Railway who also pronounced him unfit for duty in bl category but fit for duty in C category. A formal order dated the 6th january, 1967 by the Divisional Medical Officer that on examination the petitioner was found unfit in class B1 or B2 but fit in Class Cl or C2 only with glasses was served on the petitioner and the petitioner was informed that he could appeal against the aforesaid order to the Higher Medical authorities. Accordingly, on the 9th January, 1967 the petitioner appealed to the Chief Security Officer against the aforesaid order requesting that he be allowed to continue in his post for the remaining period of his tenure. By an order dated the 21st January, 1967 the chief Security Officer, consequent on the petitioner's medical examination and his being declared unfit in Bl and b2 but fit in Cl and C2 categories, granted him leave from 9. 1. 67 to 28,1. 67 on half pay and from 29. 1. 67 to 7,7. 67 without pay. On the 3rd March, 1967 the petitioner was asked to appear be fore the Assistant Personnel Officer for consideration of an alternative employment in some other department. There after in response to his appeal datied the 9th January, 1967 the petitioner was informed by the Chief Security Officer on the 5th April, 1967 to appear before the Chief Medical Officer, Eastern railway, Howrah for examination. On the 20th April, 1967 the petitioner was informed by the Divisional Mediaal officer, Howrah to appear before the workshop Medical Officer, Lilooha, howrah for certain pathological examinations, e. g. blood, sugar etc. On the 6th May, 1967 the Divisional Medical officer, Howrah informed the petitioner that a Medical Board had been fixed to be held on the 6th June, 1967 to examine the petitioner as to his fitness to continue in service, and requiring the petitioner to attend the above Mediaal board at the time and place mentioned and to inform the undersigned whether he intended to attend or not. Appa rently this meeting of the Board was not held and by a further notice dated the 20th June, 1967 the petitioner was required to attend before the Medical board to be held at the B. R. Singh hospital, Sealdah under the Chairmanship of the Divisional Medical officer, Howrah and with the Workshop medical Officer, Lilooha and the Divisional Medical Officer, Sealdah as members on the 28th June, 1967. On the 28th June, 1967 the petitioner was examined by the aforesaid Medical board and the Board found him unfit for further service. Though a copy of the report of the Medical Board is not annexed to the petition as no such copy was supplied to the petitioner, the corresponding file No. M. D. 89|8 was produced in Court and the report is verified from the entry at p. 64 (c) where the signatures not only of the three aforesaid medical officers but also that of the petitioner appear. It is alleged in the petition that it was only on the 4th October, 1967 that the petitioner came to know about the decision of the Medical Board and he made an application to the Divisional Medical officer, Howrah to be furnished with a copy of the said report but in spite of repeated demands no such report was furnished to him. It is claimed in the petition that as no such report was furnished the petitioner was deprived of his legal right to appeal against the said report. But it appears from paragraph 10 of the affidavit-in-opposition that the petitioner himself made an application to the Chief Security Officer on the 15th July, 1967 asking for settlement of pension and his other dues and early payment thereof on the ground of permanent unfitness. On the 7th February, 1968 the impugned order was passed by the Chief Security officer which, after reciting that the petitioner had been found medically unfit for further service by a Medical board on the 28th June, 1967 and that a departmental proceeding was pending against him under major penalty rules and as such his services could not be terminated with effect from the 29th June, 1967 and that the said proceedings had been finalised and the petitioner had been awarded a censure on the 8th December, 1967, terminated the petitioner's service with effect from the 9th December, 1967 (forenoon ). The order further goes on to state that the petitioner is granted 20 days' leave with half pay and 151 days' leave without pay from 9. 1. 67 to 28. 6. 67 in modification of the order dated the 21st January, 1967. Further the period from 29. 6. 67 to 8. 12. 67 (163 days) is regularised by grant of extraordinary leave without salary. This Rule was obtained on the 13th February, 1968 calling upon the respondents including the chief Security Officer, the Chief Medical Officer, Howrah, and the Divisional medical Officer, Howrah to show cause why the impugned order dated the 7thfebruary, 1968 should not be quashed and why should not the respondents be directed to treat the period from 28. 6. 67 to 8. 12. 67 as on duty and to pay the petitioner his full pay and allowance for the said period. Before the rule could be served on the respondents, on the 14th November, 1968, pension with death-cum-retirement gratuity of Rs. 4540/- was sanctioned which was accepted by the petitioner without prejudice to his claim under an order of this Court.
(2.) FROM the facts stated above one would have thought that being examined by an eminent eye specialist like dr. Munshi and being found unfit for duty in Bl and B2 category and having himself appealed against an order offering him an opportunity for finding an alternative employment as a result of which he was examined by a Medical Board consisting of three senior medical officers of the Railway authority and having himself signed the report of the Medical Board, the petitioner would have no cause for grievance against an order terminating his services. Mr. Ganguly, the learned advocate for the petitioner argued this case with great vehemence and at great length, challenging not only the order of dismissal by the Board and the constitution of the Board and the validity of its report. His first contention was that the order of dismissal was passed by an authority lower in rank than the appointing authority. He contended that the appointing authority of the petitioner was the General Manager and that the Chief Security Officer could not in law pass the impugned order of dismissal. Mr. Ganguly failed to establish that the petitioner's appointment was made by the General manager. The document relied on by him is a letter selecting the petitioner to be borne on the approved list for employment as a Gate Sergeant dated the 22nd July, 1944 signed by somebody on behalf of the General Manager. First of all it is not a letter of appointment, it merely includes the petitioner in the list of approved persons of the district Controller of Stores, Saidpur to whom further reference was directed. Further it is established that the subsequent promotion of the petitioner to the post of Inspector was made by the Chief Security Officer.
(3.) THE next contention of Mr. Ganguly was that the impugned order terminating the petitioner's service was bad as it purported to terminate such service with effect from the 9th Docember, 1967 though the order was actually made on the 7th February, 1968. An order of termination of service with retrospective effect was invalid. Mr. Ganguly relied on a decision of the Orissa High Court in (1)Ramakanta Mahanty v. Divisional forest Officer, Athgarh, AIR (1970)Orissa 49 where, after referring to the decision of the Supreme Court in (2)Jeeva Ratnam v. State of Madras, AIR (1966) SC 951, the High Court held that an order of dismissal would be valid from the date when it is passed, if the retrospective part can be separated rated from the rest of the order of dismissal, Even if the petitioner's service vice could not be terminated during the pendency of the disciplinary proceeding such proceedings having terminated on the 8th December, 1967, the order of dismissal could only have been passed on the 9th December, 1967 and not subsequently with retrospective effect. Mr. Roychowdhury pointed out that where the termination of service follows a report by the Medical Board of complete unfitness the order terminatying the service does not come under the Article 311 (2) of the Constitution. In this connection Mr. Roychowdhury referred to a decision of the Supreme court, short notes of which have appeared in the Supreme Court Notes dated the 1st April, 1968 in (3) Madan gopal v. State of Uttar Pradesh (C. A. No. 2195 of 1965 ). The Supreme Court held that whether the termination of service is on the ground of physical incapicity capacity or illness it cannot be said that the civil servant has been dismissed sed or removed for misconduct. When the appellant's services are terminated on the ground of physical incapacity or illness it could not be said that he had been dismissed or removed by way of punishment and when a person's services are terminated on basis of the medical report on the ground of physical incapacity it does not amouni; to removal within the meaning of Article 311 (2) of the Constitution. It was, therefore, submitted that the legality of the notice terminating the service could not be questioned. This might be an answer to the contention of Mr. Ganguly that the notice of terminatiion was bad as the petitioner was not given an opportunity of showing cause against it, but it is no answer to the contention of Mr. Ganguly that the notice is bad as it has been made with retrospective effect. Mr. Roychowdhury really had no answer to the principle enunciated in the decision of the Orissa High Court cited above. Accordingly, it must be held that the impugned order so far as it purports to terminate the service of the petitioner with retrospective effect from the 9th december, 1967 is bad and effect could be given to the order terminating the petitioner's service only from the date of the order, namely, the 7th february, 1968.;