Termination of service for physical incapacity without notice and opportunity of hearing violates Article 311 of the Constitution.

( 1 ) THE facts of this case are as follows: The petitioner joined the East Indian Railway in February 1917 as an apprentice mechanic. In 1922 he was appointed as a mechanic. In 1949 he officiated as a foreman. On and from 10-10-1949 he reverted to his substantive post of T. T. C. (Technically Trained Chargeman ). On 15-5-1951 he was confirmed in the post of an assistant foreman. When the East Indian Railway was taken over by the Government of India, the petitioner executed a service agreement by which he agreed as follows: "i acknowledge that I am and will be bound by all general rules and regulations of Government Service. "

( 2 ) IN the beginning of April 1951, the petitioner reported sick, and continued to be on the Sick-list until 25-6-1951. It appears that he was suffering from left ventricular failure of the heart with myocardial deficiency. He was recommended leave for two months from 25-6-1951 by the workshop medical officer Lillooah and remained on leave until 25-10-1951. On 18-11-1951 he was again examined by the then workshop medical officer Lillooah. In the opinion of the said medical officer the petitioner was not likely to be physically fit enough to resume work by 1-6-1953, on which date he would reach the age of superannuation. It is said in the affidavit in opposition (affirmed by Sitansu Sekhar Chakravarti) as follows:"accordingly the said Workshop Medical Officer Lillooah duly declared the petitioner to be medically unfit and sent a report, recording the said fact to the Chief Medical Officer Calcutta. "upon the receipt of the certificate, the petitioner's pay for 20 days in November 1952 was remitted to him. There was neither any intimation given to him, nor any formal notice that he had been discharged from service for physical unfitness. In fact, although all relevant papers have been dis closed, I have been unable to find any order by the proper authority ordering his discharge. I shall come back to this aspect of the case presently.

( 3 ) ON 10-12-1951, the petitioner wrote to the Deputy Chief Mechanical Engineer Lillooah complaining about receipt of only 20 days' pay with the note on a money order coupon "your settlement salary. "

( 4 ) ON 15-2-1952, the Deputy Chief Mechanical Engineer wrote to the petitioner as follows:"i would state that you have been declared medically unfit for further Railway Service from the afternoon of 20-11-51 and that the leave salary due up to 20-11-51 has already been received by you on 8-12-51. "

( 5 ) EVEN this letter does not contain the order of discharge.

( 6 ) THE petitioner then made various applications to the authorities stating that he could not be discharged summarily without being granted an opportunity to be heard in respect thereof. It is further the petitioner's case that in or about December 1952 he became fit for resuming his (duties. It appears that the workshop medical officer directed the petitioner on 14-1-1953 to appear before him for further examination with a report from a cardiologist and an Electric Cardiogram; which he did. According to the petitioner, the workshop medical officer was satisfied and recommended his case but the Chief Medical Officer turned it down on the ground that the appeal was not in accordance with the rules.

( 7 ) THIS rule was issued on 28-5-1953 upon the respondents to show cause why appropriate writ or writs should not be issued preventing them from giving effect to the order declaring the petitioner as medically unfit or terminating his services.

( 8 ) BEFORE I proceed further, it will be observed that by now the petitioner has passed his age of superannuation, so that there is no question of his being continued in service at present. If the petitioner is successful herein, the only result will possibly be that his premature discharge will be avoided and he might become entitled to arrears of pay until his service came to an end by his attaining the age of superannuation. The followng are the relevant rul