MOHAMMAD SAGIRUDDIN Vs. DISTRICT MECHANICAL ENGINEER N E F RLYS

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution by a railway servant challenging the validity of the office order No. 35/S, dated the 19th June, 1962, (Annexure E), passed by the District-Mechanical Engineer, Katihar, directing the absorption of the petitioner as Pump Engine Driver on Rs. 110 in the scale Rs. 75-110.

(2.) The unchallenged facts are these. The petitioner joined service in the old Bengal Assam Railway, now known as North-East Frontier Railway, sometime in 1940 as a substitute cleaner and was subsequently confirmed as Engine Shunter 'B' on the scale of pay Rs. 130-158. In 1956 he was promoted to officiate as Engine Driver 'C' on the old scale Rs. 80-185, which scale was subsequently enhanced to Rs. 150-240. He was actually receiving the pay of Rs. 160 with retrospective effect from the 1st July, 1961. On the 25th December, 1961, the petitioner was medically examined by the District Medical Officer, North-East Frontier Railway, Kathihar, who reported that he was medically unfit for service in class A1, that is, for driving railway engines, but was fit for service in class B2. The petitioner appealed against the report of the District Medical Officer to the Chief Medical Officer and he was again examined by the Chief Medical Officer on the 13th February, 1962 (Annexure C) and he confirmed the report of the District Medical Officer. The post of Engine Shunter 'B' in the railway was also included in the medical classification of A1; and consequently when the Medical Officer declared the petitioner to be medically unfit for class Al post, the railway authorities, in exercise of the powers conferred by Rule 152 of the Indian Railway Establishment Code, Volume I, 1959 edition, (hereinafter referred to as "the Code"), granted him the leave due and then ordered that he may be absorbed as Pump Engine Driver on the pay of Rs. 110 being the highest in the scale Rs. 75-110 of that post. He was asked to give consent to such absorption and he gave his consent by his letter dated the 20th April, 1962, (Annexure D), without prejudice to his rights and claims to proper emoluments." Then he filed this writ petition on the 12th September, 1962, urging that he was reduced in rank "by way of punishment" without complying with the mandatory provisions of Article 311 of the Constitution. The contention on behalf of the railway is that when the petitioner was declared unfit for class Al post, he could not obviously be put in charge of driving engines and was, therefore, given the post of a Pump Engine Driver, which comes under class B2, for which he was found medically fit. It was, therefore, urged that there was no element of punishment in applying the provisions of Rule 152 of the Code, and that, consequently, Article 311 will have no application.

(3.) Before dealing with the various questions involved I may briefly refer to the relevant provisions of the Code. Sub-rule (3) of Rule 149 of the Code says that the service of even permanent railway servants shall be liable to termination on notice on either side for the period specified in the said sub-rule. It further says:-- "Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannution and termination of service due to mental or physical incapacity." Rule 152, which is the impugned rule, may now be quoted in full:-- "152. A railway servant who fails in vision test or otherwise becomes physically incapable of performing the duties of the post which he occupies but not incapable of performing other duties, should not be discharged forthwith but should be granted leave in accordance with Rule 2237A-R. During the period of leave so granted, such a railway servant must be offered some alternative employment on reasonable emoluments having regard to his former emoluments. Further, the extraordinary leave portion of the leave granted in accordance with Rule 2237A-R should not be cut short purely on account of his refusing the first offer which is made to him, but he must be discharged if he does not accept one or more offers during the period of his leave." Reading the two rules together, the following conclusion emerges. If a permanent railway servant is found to be mentally or physically incapable of performing his duties, his services may be terminated without giving the due notice required by Sub-rule (3) of Rule 140. But if a permanent railway servant is found to be physically incapable of performing the duty of the post which he occupies but not incapable of performing other duties, he should not be discharged but given the leave due to him, and during such leave he must be offered "some alternative employment on reasonable emoluments having regard to his former emoluments". If, however, he refuses to accept the offer, he must be discharged. Following the principle of harmonious construction, it must therefore, be held that "mental or physical incapacity" which would justify termination of his service under Sub-rule (3) of Rule 149 must mean total incapacity and not partial incapacity which may arise when the permanent railway servant, though physically unfit to discharge the duties of the post which he was occupying, is nevertheless found to be physically fit to perform some other duties in the railway. In such a case Rule 152 will apply and the railway authorities should offer to him some alternative employment on reasonable emoluments having regard to his former emoluments. I may also refer to Rule 2513 of the Code by which a railway servant may be granted an invalid pension if he is permanently incapacitated for public service or for the particular branch of it to which he belongs.