Dharam Chand vs Union Of India And Ors.
1991 Latest Caselaw 279 Del

JUDGMENT

R.L. Gupta , J.

(1) The appellant in this Second appeal filed a suit for declaration to the effect that the order dated 4.7.66 by the. Officer-in-charge Rural Health Training Centre, Govt. of India, Najafgarh, Delhi terminating his services as a driver was illegal and void. The suit was dismissed by the learned Sub-Judge, Delhi vide Judgment dated 28.8.74 and the first appeal by the learned Additional District Judge, Delhi on 10.3.1975.

(2) The facts leading to the filing of the suit are that the appellant was recruited in July, 1952 as a Mobile Attendant under the Director of Health Services, Delhi where be worked as a Cleaner up to 1956. Before appointment he was found medically fit by the competent authority. He was promoted as a Driver with effect from 22.12.56 by Director Health Services and was transfered to Najafgarh with effect from 1.8.57. His administrative control was taken over by Directorate General of Health Services. He was then asked to appear for medical examination. According to the appellant the direction for a medical examination was illegal and unwarranted because he claimed to have been declared fit earlier. In spite of that he submitted for medical examination when he was again declared fit. On 20,5.63 he was served with a notice that in view of the adverse medical report, he could not be retained as a Driver. He was offered the post of a Cleaner which was accepted by the appellant under protest. According to the appellant, he was demoted because of his trade union activities'. He also preferred an appeal against reversion but the decision in appeal was not communicated to him. He was, however, promoted as a driver with effect from 19.9.64 and continued as such till 4.7.1966 when his services as driver were. again terminated and he was offered the post of a Cleaner. He accepted the same under protest and simultaneously filed an appeal. In the aforesaid cireumstances the appellant challenged the order dated 4.7.1966 being illegal, void and without jurisdiction and in contravention of the principles of equity and natural justice.

(3) The respondent contested the suit. Following issues were framed:

1. Whether the impugned order is illegal, void, wrong and without jurisdiction ? 2. Whether there is justiciable cause of action ? 3. Whether the plaintiff is estopped from filing the present suit ? 4. Relief. An additional issue was also framed on 30.9.1977 to the following effect: 5. Whether the suit is within time ?

(4) On Issue No. 5 the trial Court held the suit as barred by time. Issues 2 and 3 were answered in favor of the appellant. On Issue No. I, the trial Court was of the opinion that the impugned order was not illegal, void, wrong or without jurisdiction. In result thereof, the suit was dismissed.

(5) The first appellate Court affirmed the findings of the learned trial Court on all the issues and dismissed the appeal.

(6) Learned counsel for the appellant has confined his arguments to raising four points in second appeal. The first point is that the appellant was reduced in rank from the post of a driver to the post of Mobile attendant by an authority subordinate to the one who was his appointing authority and, therefore, it violated the guarantee provided by Article 311(2) of the Constitution of India. The second point is that the order of reduction in rank was mala fide because the appellant used to be an activist of the trade union and on that account he was demoted. The third paint raised is that the appellant was not bound to submit himself for a second medical examination when he had been declared fit in the first medical examination. According to the learned counsel the medical examination takes place only at the time of initial recruitment and he could not have been subjected to the second medical examination on his promotion to the post of a driver. The last point raised is that the finding of the learned Courts below that the suit was time barred was not correct.

(7) Learned counsel for the appellant drew my attention to the letter of appointment Ex. D 8 dated 25.6.1952. Vide this letter the appellant was offered the post of Mobile attendant for the mobile dispensary under the Employees' State Insurance Scheme, Delhi. It is also stated in this letter that the post is purely temporary and the services of the appellant could be terminated at any time without assigning any reason. On the other hand if the appellant wanted to resign he was supposed to give one month's notice or one month's pay in lieu thereof. It is signed by Sh. P.C. Lohtia for Director of Health Services, Delhi State, Delhi. It is admitted in para 3 of the written statement that the appellant was promoted as a driver with effect from 22.12.56. He was temporary till then when the mobile centre was taken over by Directorate General of Health Services. Since he was to be considered for a quasi permanent post, he was asked to report for medical examination in which he was found to have defective vision. So memo Ex. D 9 of 20.5.63 informed the appellant "The appellant is hereby informed that it is not possible to retain, him in service as a driver in view of an adverse medical report. However, he can be offered the S.S. Rathore v. State of Madhya Pradesh, post of a Cleaner.........If he accepts this offer he should indicate his consent by 25.5.63. In case he is not interested to work as a Cleaner, this may be treated as a notice of termination of his services with effect from 21 6.63". It then appears that the appellant made a representation. (Copy Ex. P 31) Directorate reconsidered this matter. On behalf of the Director General of Health Services, Sh. P.R. Dutt issued office memorandum (Copy Ex. D 3) which reads as under:

"SUBJECT:-Rural Health Training Centre, Najafgarh- Appeal of Shri Dharam Chand, Cleaner. Reference is invited to the correspondence resting with the Centre endorsement No. F. 1-3 (32)/63-RTC dated the 24th April, 1964 on the subject mentioned above. The matter has been considered in this Directorate in consultation with the Ministry of Health. As Shri Dharam Chand was first declared fit for the post of Driver and subsequently rejected for the same post by the Willingdon Hospital, New Delhi, the Ministry of Health have agreed to the second medical examination of Shri Dharam Chand, as a special case. It is requested that necessary action to get him medically examined in Safdarjung Hospital may kindly be taken accordingly. In this connection, attention is also invited to Section V-Appeals of the Hand book on Medical Examination (copy enclosed)".

(8) It is not disputed that in spite of the directions contained in Ex. D 3, appellant never submitted himself for second medical examination. The necessity for second medical examination arose because on his earlier medical examination he was found to be suffering from defective colour vision. This is apparent from the memorandum Ex. P-6 dated 29.5.63. It may be noted that the standard of vision for a person who is required to drive a Govt. vehicle has to be different so far as vision is concerned because the driving of a vehicle is directly related to the vision/eye sight. In the case of the appellant he was found to be suffering from partial blindness for green colour. Therefore, unless he had improved his medical report regarding his vision by taking proper treatment, it would not have been possible to retain him in service as a driver. Learned counsel for the appellant contended that even in the letter dated 13.4.63 (Ex. D 2) it was mentioned by Mr. H.L.Khosla, Civil Surgeon, New Delhi that if the authorities felt that he was damaging the vehicles, he is declared unfit for the post of driver on account of his defective colour vision. According to the learned counsel he could be considered medically unfit only if the appellant bad been held quality of damaging any vehicle. Otherwise, it is argued, he could not have been unfit and, therefore, it was not incumbent upon him to submit for second medical examination. This argument cannot be accepted because in the case of the appellant prescribed standard of vision had to be attained so that he could be made quasi permanent as a driver. It may be noted that vide office order dated 19.9.64 (Ex. D 16), the appellant was promoted to work as a driver on trial basis only, and obviously if in the meantime, he did not come up to the required medical standard, his services as such could be dispensed with without assigning any further reason. He consistently wrongly maintained in spite of specific directions to appear for second medical examination, that he could not be called upon to report for a second medical examination. It may be noted that second medical examination was ordered because he appealed against the examination not only to the Ministry of Health but also to the Ministry of Labour, Employment & Rehabilitation (See Ex. P 39). There had been an amendment of the standard of visual acuity for a driver as contained in circular letterdated7.8.61.Besidesprescribingthecorrect distant and near vision, it also says that in addition, colour vision (red and green) of candidate should be intact. If that was the standard prescribed for the drivers, I fail to understand how could the appellant be retained as a driver unless he had been cured of the defective colour vision in his eyes. In fact that must have been the predominant reason for the authorities to insist that the appellant undergo a second medical test. But he had been insisting that he could not have been subjected to medical examination, I am of the view that his entire approach in this respect was wrong.

(9) Initially the order of appointment of the appellant as a Mobile attendant is signed by one Sh. P.C. Lohtia on behalf of Director, Health Services. This would, therefore, mean that his appointment for all practical purposes was made by the Director of Health Services. Because the vision was found to be defective, it was only natural to ask the appellant to submit himself to another medical test. In fact, it must be said that it was really so good on the part of the authorities to have offered him the post of a cleaner while deciding to terminate his services as a driver, as is clear from the impugned office memorandum Ex. D 12 dated 4.766. This Memorandum is signed by the Officer-in-charge Rural Health Training Centre, Govt. of India, Najafgarh, Delhi. He accepted the appointment under protest and gave in writing as is proved from his own letter copy of which is Ex. D-14 dated 5.7.66. Another office memorandum dated 13.7.66 (Ex. D13) was issued asking him that he should accept the appointment without any protest and in case he was not willing to do so, it will be assumed that he was riot willing to work as a cleaner and in that case the offer will stand withdrawn. He then gave the writing Ex. D 15 accepting the post of the cleaner without any protest. However, he stated that he may be permitted to file an appeal. He filed an appeal. That appeal was considered up to the level of Director General of Health Services. It is Ex. Public Witness 1/1. His appeal was, however, rejected vide Memorandum Ex. P-38. It is clearly mentioned in this Memorandum that his appeal had been considered by Director General of Health Services and it was regretted that unless Dharam Chand was re-examined by the second medical authority and declared fit, he cannot be allowed to drive a vehicle. Therefore, even if it be assumed for the sake of argument that his promotion as a driver was by the Director General of Health Services, his appeal was considered by the same authority and rejected. Therefore, it cannot be said that the appellant was reduced in rank by an authority subordinate to the one which appointed him. Secondly, his other argument that he was reduced in rank because of his trade Union activities is without force and rather the appellant without any valid . reason refused to submit for second medical examination. Also the argument that the appellant was not bound to submit himself to second medical examination has no merit in view of the fact that it was the post of a driver for which the appellant sought quasi permanacy. Unless he was medically fit with a vision having no colour defect, he could not have been permanently absorbed against that post,

(10) However, the contention of the learned counsel for the appellant that the suit was filed within time seems to be correct. It was held in the case of S.S. Rathore v. State of Madhya Pradesh, by a Constitutional Bench of the Hon'ble Supreme Court that the limitation in a suit for declaration against order of dismissal, the cause of action accrues .not when the original order was passed by the dismissing authority but when that order was finally disposed off by a higher authority on appeal or representation made by the aggrieved employee in exhaustion of statutory remedy and where no such final order is made, on expiry of six months from the date of appeal or representation."

(11) The appeal in this case was rejected vide office memorandum dated 20.9.66 (Ex. P-38). The present suit was filed-by the appellant on 10.9.69. It was, therefore, clearly within three years of the communication of the final order of rejection of the appeal filed by the appellant against his order of dismissal and as such the suit was within time.

(12) However, in view of the findings on other points, this appeal has no merit and same is hereby dismissed. Parties will, however, bear their own costs.