Judgment:
A.S. Qureshi, J.
1. The substantial question of law to be decided in this appeal is whether the impugned order of compulsory retirement passed by the District Superintendent of Police, Banaskantha, is legal and valid. The two Courts below have concurrently held that the said order is legally valid. Some important facts which are necessary for the decision in this matter have to be taken into consideration. The appellant was working as Head Constable. He was believed to be mentally unfit for performing his duties. Hence he was sent for examination by the Civil Surgeon, Ahmedabad. After examining him, the Civil Surgeon is said to have found him schizophrenic. On the basis of this finding, the appellant was compulsorily retired on the ground that he was unfit for his duties, under the provisions of Rule 202-A of the Bombay Civil Services Rules (hereafter-B.C.S.R.). The appellant filed the present suit challenging the said order.
2. The appellant has been provided with the services of an Advocate by the Legal Aid Committee. Mr. A.R. Thakkar has appeared on behalf of the appellant and urged that the impugned order of compulsory retirement is based on an erroneous understanding of Rule 202-A of the B.C.S.R. According to him, the appellant was not given any intimation regarding the finding of the Civil Surgeon that he was mentally unfit for his duties. The appellant was also not informed that he had a right to appeal before the Appeal Board within 30 days against the finding of unfitness by the Civil Surgeon. Hence, he could not file appeal within 30 days. However, when he actually came to know about such a finding, he did file an appeal beyond 30 days. It was rejected on the ground that it was filed after 30 days.
3. Looking at Rule 202-A of B.C.S.R., it provides that if a competent authority comes to a conclusion on the report of a Medical Officer that a Government servant should be retired on invalid pension, it shall inform the Government servant that he has been declared to be completely and permanently incapacitated for further service and that it is proposed to invalid him. But in those cases were the Government servant has himself asked for being invalided or where it is obvious from the nature of the disability that no useful purpose will be served by an appeal, the employee need not be informed. Mr. B.D. Desai, learned A.G.P. has relied on this provision and urged that were it is obvious from the nature of disability that no useful purpose will be served by an appeal, the Government servant need not be informed that be can file an appeal within 30 days before the Medical Appeal Board. This provision in the aforesaid Rule is quite obviously violative of the principles of natural justice. It is not open to the competent authority or anybody else to come to a subjective decision that no useful purpose will be served by appealing because of the nature of the sickness. Whether any useful purpose will be served or not is a matter within the discretion of the person who is going to be affected by it. A right to appeal is a valuable right of a person likely to be affected, which cannot be taken away by the unilateral subjective decision of another person. Hence, it is held that this part of Rule 202-A of the B.C.S.R. is illegal, void and inoperative in law. The affected Government servant must be informed about his having been declared invalid and that he has a right to appeal within 30 days before the Medical Appeal Board. The two Courts below were wrong in holding that looking to the nature of illness, it was not necessary for the competent authority to inform, the present appellant. It is born out from the facts of this case that the appellant was mentally not so unfit that he could not file an appeal because when he came to know about his having been invalided by the competent authority, he in fact filed an appeal, although beyond the limitation period of 30 days. Hence, the contention urged on behalf of the appellant is accepted and the finding of the two Courts below on the interpretation of Rule 202-A is set aside.
4. Another important point in this appeal is that the two Courts below have accepted Ex. 60 as certificate by the Civil Surgeon, Ahmedabad, holding that the appellant was suffering from schizophrenia and was mentally unfit to perform his duties. Curiously, Ex. 60 is not the original certificate purported to have been issued by the Civil Surgeon, but is a typed copy thereof. It is not signed by anybody nor does it bear any official stamp. Although there is a rectangle mark and by the side it is written 'L.T.H. of Ramsing Nenasing Rao', but in fact there is no thumb mark on Ex. 60. There is no explanation on the record of this case as to where is the original certificate issued by the Civil Surgeon, Ahmedabad. In fact, there is nothing on the record to show that any such certificate was at all issued by the Civil Surgeon. If there was such a certificate, it would have been produced in this case. If the original is lost, damaged or destroyed, a secondary evidence can be allowed to be produced. But in absence of any material to show that such a certificate was in fact issued and that the same is not traceable, secondary evidence cannot be allowed to be produced. Thus, Ex. 60 is a document which is not admissible in evidence. Surprisingly, the two Courts below have not cared to look at Ex 60 carefully, nor have they given a thought to its admissibility. This is a serious lapse on the part of the two Courts below.
5. Apart from Ex. 60, then: is no other evidence on record of the case to show that the Civil Surgeon, Ahmedabad, had found the appellant suffering from schizophrenia and hence unfit to perform his duties. The respondents have not cared to examine either the Civil Surgeon or any other witness to prove the alleged mental incapacity of the appellant to perform his duties. The sole reliance is on Ex. 60, which is a worthless document, inadmissible in evidence and without any basis for the truth of the statement made therein. Thus, the two Courts below have committed serious error resulting in gross injustice done to the present appellant.
6. Before parting with this appeal, it must be stated that after the arguments of both the sides were heard, some compromise terms were offered by and on behalf of the appellant, the appellant has taken up a very reasonable stand and is prepared to accept something less than what he would get if he succeeds in this appeal. The learned A.G.P. requested for some time to enable the Government to take a decision thereon. The time was granted. Several succesive adjournments were granted at the request of the learned A.G.P. to enable the concerned officers to take a decision. Several months have passed and yet no decision is taken by the concerned officers. This is very deplorable indeed. It seems that in Government departments, the people who are responsible for taking decisions, delay for long periods and not take any decision even after lapse of a long time. Because of the negligence, lethargy, incompetence or some other worse reason, the Government is saddled with much bigger liability than what it would be if some decision was taken. In this particular case, the Court feels that the Government's liability could have been considerably reduced if a more reasonable and responsible attitude was taken by the concerned officials. This is not the first case in which this Court has come across such a situation. In numerous cases, the behaviour of Government officials has been lethargic, negligent or even irresponsible. It is hoped that the higher officers will not evade responsibility and would take decisions reasonably promptly bearing in mind the public interest.
6.1. In the result, the appeal is allowed. The judgments and decrees of the Courts below are set aside. The plaintiff's suit is decreed. The Impugned order No. 110-S.C. Invalid-72, dated 2-2-1972 passed by the District Superintendent of Police, Banaskantha at Palanpur, is held to be illegal, void and inoperative in law. It is declared that the appellant-plaintiff is entitled to his salary throughout as if the impugned order dated 2-2-1972 was never passed. The appellant is entitled to his full salary and allowance up to the date of his superannuation minus what is already paid to him. He will also be entitled to the full pension and other retirement benefits which are available to him under the law. The respondents are directed to make the payment of all the amounts payable to him within a period of three months from today. The appellant would be paid the costs of all the three Courts. Order accordingly.