RATHEESHBABU Vs. LOCO FOREMAN S RAILWAY

JUDGEMENT

(1.) The petitioner was employed by the respondent Railway as a casual labourer on 16-3-1976. He worked with the Railway till 30-9-1976 without break. Oh 30-9-1976 his service was terminated abruptly and orally, for the reason that he was "found medically unfit in class B1 (AMC/ERN MG. No. 158/C of 30-9-76/3-10-76)." (see Ext. P1). The petitioner was found unfit by the Assistant Medical Officer. However, on the petitioner's request he was sent for a further examination by the Divisional Medical Officer on 24-11-1976. The result of that examination has not yet been communicated to the petitioner. Counsel for the respondents submits that the Divisional Medical Officer has confirmed the report of the Assistant Medical Officer. The petitioner has approached this Court for a declaration that the termination of his service with effect from 30-9-1976 was illegal and void, and for consequential reliefs.

(2.) Petitioner's counsel Shri M. M. Cherian submits that the petitioner was a casual labourer with temporary status having continuously worked with the Railway for more than four months. This fact is not disputed. Counsel therefore submits that the petitioner was entitled to 14 days' notice as provided under Para.2302 of Chap.23 of the Manual, the provisions of which are applicable to a casual labourer with temporary status. Counsel relies upon the decision of this Court in O. P. No. 3211 of 1976, which was confirmed in W. A. No. 162 of 1978, to the effect that in the case of a casual labourer with temporary status no medical examination was required to confer upon him such temporary status. In that case this Court held that a casual labourer with temporary status, who was medically examined for the purpose of absorption as a regular Class IV employee and was found medically unfit, was not liable to be terminated otherwise than by the notice postulated under Para.2302. This Court stated that refusal to absorb him as a Class IV employee on the ground that he was medically unfit did not automatically deprive him of his status as a casual labourer with temporary status. Such a person could be terminated only subject to the required notice. Counsel - therefore submits that the service of the petitioner having been illegally terminated without notice he is entitled to a declaration that it has not so far been terminated and to all the consequential benefits.

(3.) Respondents' counsel Shri M. C. Cherian contends that an employee who is medically unfit has no right to remain in employment. The petitioner was found unfit and he was therefore liable to be terminated. That is why his service was terminated by Ext. P1. Notice postulated under Para.2302, counsel says, can be dispensed with in the case of a person found disqualified on medical grounds. Shri M. C. Cherian further submits that a casual labourer does not automatically attain temporary status on completion of four months. He attains such a status only upon conferment of the same by a declaration.