JUDGMENT
Narasimham, C.J.
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.
4. The main contentions urged by the learned counsel for the petitioner may be summarised as follows:
(1) In the recent judgment of their Lordships of the Supreme Court in Moti Ram’s case (Moti Ram Deka v. General Manager, North East Frontier Rly, AIR 1964 SC 600) Rule 149(3) of the Code was declared invalid as offending Article 311(2) of the Constitution. Rule 152, in substance, consists of two parts, namely, (1) termination of the service of a railway servant in a permanent post under Rule 149(3), and (2) his re-employment in some other post for which he may be medically fit. At the first portion has been declared invalid by the aforesaid decision of the Supreme Court, the whole of Rule 152 must also, by parity of reasoning, be held to be invalid.
(2) Even if rule 152 be held to be valid, there has been reduction in rank by way of punishment in the present case without complying with the provisions of Article 311(2) of the Constitution.
5. In my opinion neither of these two contentions is acceptable.
6. It will not be proper to split up Rule 152 into two parts and to say that, in the eye of law, where a permanent railway servant is found to be unfit for his permanent post, his services in the permanent post are terminated and then he is re-employed in another post for which he is medically fit. There is no termination of service of the permanent railway servant. As soon as he is declared medically unfit for his permanent post, he is granted the leave due to him, and then he is offered an alternative employment on reasonable emoluments having regard to his former emoluments. It is only when he refuses to accept the alternative employment that he may be discharged from service. In my opinion, therefore, the principles laid down by their Lordships of the Supreme Court in Moti Ram’s case, AIR 1964 SC 600, while declaring Rule 149(3) to be invalid, cannot be applied while considering the validity of Rule 152. Even a layman can appreciate that a driver of a fast moving engine must retain a high standard of physical fitness, especially vision lest, because on his fitness depends the lives of so many persons, including innocent passengers. Hence, if the Code provides for periodical examination of such drivers, and further provides that if a permanent engine driver’s health has deteriorated, in consequence of which he is not medically fit for his permanent post but is medically fit for another post and that post is offered to him, it cannot be reasonably urged that there is any termination of his service. A pump Engine Driver has to run an engine which is stationary and hence that post is classified in B-2, whereas the post of an Engine Driver or Shunter of a moving engine is classified in Al. In substance, Rule 152 merely provides for the transfer of a permanent railway servant from the post for which he was declared medically unfit to another post for which he is declared medically fit; but as the latter post may not carry the same emoluments, he is offered the option of accepting it or not. Hut the mere fact that such an offer is made does not mean that the former post is terminated. It seems to me that Rule 152 has been made for the benefit of the railway servant concerned. The railway could as well have compelled him to retire on invalid pension on the ground that he is permanently incapacitated for the particular branch of service to which he belongs, in which case the pension or gratuity which he will get will be much less than what is offered to him under Rule 152. That rule has, therefore, been made on compassionate grounds, by way of concession to the railway servants.
7. Turning to the second question, it is difficult to see how the absorption of the petitioner as a Pump Engine Driver on a pay of Rs. 110 amounts to reduction in rank by way of punishment. It is true that the pay of the permanent post which he was holding, namely, Shunter ‘B’, was in the scale Rs. 130-158, whereas Pump Engine Driver his pay was fixed at Rs. 110 in the scale Rs 75-110. There is undoubtedly reduction in pay. But merely because of reduction in emolument it cannot be said that under all circumstances there is reduction in rank by way of punishment. Rule 152 confers wide discretion on the competent authority while offering an alternative employment. The words “reasonable emoluments having regard to his former emoluments” show that it may not be always possible to offer him another post carrying the same pay as that which he held before he was declared medically unfit. Moreover, as pointed out by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164, the words “have regard to” in a statutory provisions do not mean that there must be very strict compliance with the statutory provision, but that the provision should be taken for guidance only. Hence, though the former emoluments of the railway servant concerned should be taken into consideration in offering him alternative employment, the competent authority is not bound to fix his pay in the alternative employment at the same rate as he was formerly holding.
8. There is here no stigma attached to the officer. His reduction in pay is brought about solely on account of his own misfortune, namely, his being declared medically unfit for the permanent post. The District Medical Officer’s report was not taken as final and he was given the right of appeal to the Chief Medical Officer, who, however, upheld the order. I am unable to see as to how there is any element of punishment in the impugned order so as to attract the provisions of Article 311. Reliance was placed in Union of India v. Someswar Banerjee, AIR 1954 Cal 399 and Fakir Chandra Chiki v. S. Chakravarti, AIR 1954 Cal 566 and it was urged that the view taken therein was endorsed by their Lordships of the Supreme Court in Moti Ram’s case, AIR 1964 SC 600 (paragraph 52 at p. 618). But these two decisions as well as the Supreme Court Judgment dealt with cases of actual discharge and termination of service and they have no application to absorption in another post for which special provision is made in Rule 152.
9. Mr. Chaudhury cited Sarangthem Nodiachand Singh v. State of Manipur, AIR 1956 Manipur 34 where it was held that there was reduction in rank by way of punishment when a jailor who was exonerated by the criminal court of all the charges was appointed as Additional Inspector of Excise on lesser pay. But that decision cannot obviously apply here because the petitioner has disqualified himself for his permanent post on account of his physical unfitness whereas in that case the jailor was not declared unfit on medical grounds. In my opinion, bearing in mind the principles laid down by their Lordships of the Supreme Court in the well known Dhingra’s case, Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, as explained in Moti Ram’s case, AIR 1964 SC 600, it cannot be said that here there has been reduction in rank by way of punishment. Article 311(2) has, therefore, no application.
10. The petitioner also cannot complain that the rules of natural justice were not followed. As already pointed out, the District Medical Officer’s report was not taken as final and the petitioner was given an opportunity to appeal to the Chief Medical Officer, who examined him and then confirmed the order of the District Medical Officer. The pay that has been fixed for the petitioner in his new post must also be held to be reasonable having regard to his former emoluments and also having regard to his medical fitness for service only in class B2.
11. For these reasons the petition is dismissed but without costs.
Bahadur, J.:
12. I agree.