Union of India vs Shri Jai Chand Sawhney

Grover, J.—This judgment shall dispose of Regular First Appeal No. 28-D of 1959 and the cross appeal Regular First Appeal No. 92-D of 1959.

In his petition for leave to sue as a pauper under Order XXXIII rule 1 of the Cede of Civil Procedure the plaintiff claimed that he had been appointed as a Social Guide in the Eastern Punjab Railway (now the Northern Railway) by the Chief Administrative Officer of that railway with effect from 14th February 1948 and he thus held a civil post. On 1st August 1949 while he was working on his post he was put off duty on the charge of absenting himself from duty on 31st July 1949 without previous permission but was, however, allowed to rejoin duty on 10th August 1949. On 22nd August 1949 he was again put off duty and was treated as one under suspension on similar allegations. He then remained under suspension up to 15th October 1949. While under suspension he was removed from service with effect from 15th October 1949 by an order of the Divisional Commercial Officer dated 13th October 1949 without any opportunity having been given to him to show cause against the action proposed to be taken against him. The main grounds on which the order of termination of service was attacked were that no opportunity had been afforded to the plaintiff to show cause against the action proposed to be taken and that the orders were passed by an authority subordinate to the one competent to pass the same. He also introduced the allegation of mala fides in the order of his removal. According to him, since the orders of suspension and dismissal were illegal, wrongful and void, he was entitled to full salary and wages together with allowances amounting to Rs. 20,399/9/- from 24th February 1948 to 14th October 1955 as per schedule ''B'' which he attached to the petition. In the alternative he claimed that amount as damages for wrongful dismissal. By an order dated 28th March 1956 permission was given to sue as a pauper.

In the written statement filed by the Union dated 10th April 1956, various pleas were taken. It was asserted that the suit was barred by limitation and it was not maintainable as framed and that no valid notice as required u/s 80 of the CPC had been served on the defendant. It was further pleaded that the plaintiff was a temporary and his services were dispensed with as the temporary post against which he was appointed was surrendered from the date of his discharge and consequently he had not been removed from service. It was denied that he could invoke the provisions of Article 311 of the Constitution. The plaint was later on sought to be amended and it was allowed to be amended on 27th July 1957. The main amendment introduced was the relief (aa) which was claimed in the following words:-

It may be declared that the plaintiff''s dismissal from service was illegal, invalid, ultra vires and void and the orders passed in pursuance thereto are also illegal, ultra vires and void and that the plaintiff is still a Social Guide in the Northern Railway.

The plaintiff filed a replication traversing the pleas raised by the defendant. It was asserted that the plaintiff had been removed from service as it was intended to punish him and the action taken against him was by way of disciplinary measure.

On the pleadings of the parties the following issues were framed:-

Has the defendant been served with an invalid notice u/s 80, Civil Procedure Code?

Is the suit properly framed?

Is the plaintiff''s claim for salary within time?

Whether the suit for salary and damages is not maintainable?

Whether the plaintiff''s suit is governed by Article 311 of the Constitution?

Is the plaintiff entitled to any amount. If so, how much?

Is the plaintiff''s dismissal illegal, as alleged in paragraph 4 of the plaint?

Relief.

As regards issue No. 1, it was found that a valid notice had been served u/s 80. Objection embodied in issue No. 2 was not pressed and all the other material issues were decided in favour of the plaintiff but it was found that he was only entitled to the following amounts:-

(i) Rs. 1,800/- as dearness allowance.

(ii) Rs. 360/- as local allowance.

(iii) Rs. 540/- as house rent.

(iv) Rs. 6,635/35 Np. as arrears of pay.

A declaration was also granted to the effect that the plaintiff''s dismissal from service was illegal and invalid. The Union has come up in appeal (R.F.A. 28-D of 1959) against the aforesaid decree whereas the plaintiff has filed an appeal (R.F.A.92.D of 1959) for the balance of the claim which had been disallowed by the trial Court.

In order to appreciate the points that have been raised in the appeal of the Union, it is necessary to refer to certain documentary evidence. The Secretary of the Railway Board addressed a letter to the General Managers of the Government Railways dated 23rd July 1947 (Exhibit P.W.4/3) intimating that consequent on the partitioning of the North Western Railway it was necessary to set up a new administrative unit to administer that portion of the railway falling within the Union of India which was to be known as the Eastern Punjab Railway. The control of this railway, which in the main comprised the Delhi and Ferozepore Divisions, was for the time being to vest in an Administrative Officer with Headquarters at Delhi. Pending the issue of instructions the Administrative Officer was to have the powers of a General Manager. The plaintiff had applied for the post of a Social Guide to third class passengers. He was informed by means of a letter dated 21st January 1948 (Exhibit P.7), which was received from the Chief Administrative Officer, that he should present himself for interview before a Selection Beard on 2nd February 1948. The Selection Board declared the result on 7th February 1948 (Exhibit D.W. 2/1). The plaintiff''s name appeared at item No 32 among the selected candidates. The Chief Administrative Officer wrote a letter dated 17th February 1948 to the candidates including the plaintiff (Exhibit P.W. 4/1). It is necessary to set out the material portion of this communication-

As a result of the Selection Board held in this office, you are selected for appointment as a Guide for Railway passengers in the scale of Rs. 150-7-185-8-225 in a temporary capacity for 3 months in the first instance. You will be eligible for dearness allowance and grain shop concession according to rule.

You should present yourself at this office at 10 hours on Monday, the 23rd February 1948 to receive instructions connected with the duties of your post. The place and Division of your posting will be advised to you in this office and you will receive the final letter of appointment from the Divisional Superintendent concerned your pay will be charged from the date you report for duty at the station of posting.

Another letter was addressed by the Chief Administrative Officer to the Station Superintendent on 23rd February 1948 (Exhibit D.16) in which the names of the Guides who had been selected for temporary appointment were given and they were directed to report for duty. It was stated in paragraph 3 that the Divisional Superintendent concerned was to issue formal letter of temporary appointment from the date these persons joined their stations of postings. The Divisional Personal Officer, Delhi, issued a notice dated 2nd March 1948 (Exhibit D.17) giving the names of the personnel, which included that of the plaintiff, who had been appointed as Guides for railway passengers in a temporary capacity for three months from the date they actually reported for duty.

It appears that the plaintiff started demanding what was called a calendar day rest. A reply dated (sic) May 1949 (Exhibit P.23) was sent to his application in which it was stated that no such rest as had been applied for was due. It was further stated that the aforesaid officer was "only due weekly rest according to his duty roster". It is common ground that the plaintiff absented himself from duty on 31st July 1949 which was a Sunday. The Station Superintendent directed on 1st August 1949 that he should be put off duty and should be directed to attend his office (Exhibit P.32). It appears, however, that he was put back to duty. The plaintiff, by means of a letter dated 10th August 1949 (Exhibit P.18), reiterated his demand for being allowed to have a holiday on a Sunday. The Station Superintendent made an order on 21st August 1949 that he should be put off duty (Exhibit P.33). He wrote a letter on 22nd August 1949 to the Divisional Commercial Officer (Exhibit D.14) in which it was stated as follows:-

I am not prepared to tolerate such sort of indiscipline at my station. Some of the other staff are also getting instigated. If such affairs are permitted to continue, the matters will go from bad to worse. I have put this Social Guide off duty and am directing him to you for final decision of the case. At first when he was put off duty and directed to you, Divisional Personnel Officer, Delhi, vide his wire No. 419E/3/1, (HER) dated nil, ordered me to put him back to duty saying "Charge sheet follows" but no charge sheet has been received so far. Till something is finally decided in this connection, I will not allow him duty at my station.

On 5th September 1949 the plaintiff addressed a letter to the Divisional Commercial Officer saying that he had not been allowed weekly calendar day rest nor had he been p lid his overtime claim of Rs. 2,173/7/- "which is great injustice". He further wrote-

I fail to understand that why the station staff is made and bound to work double the ministorial staff i.e. 56 instead of 28 hours daily without availing weekly calendar day rest and Gazetted holidays and half Saturdays and even have to perform night duties and 6 doubles in a month which spoils one''s health and compel not to perform his duty honestly. I am stating with my personal practical experience that one cannot perform his duty 56 hours in a week honestly without availing any rest.

The Divisional Officer sent a reply dated 23rd September 1949 (Exhibit D.8), the material part of which deserves to be reproduced-

A warning in writing should be served on the above named Social Guide that:-

(i) He must desist from putting forward fantastic and irregular demands.

(ii) He should give, within three days a written assurance, that he will fall in line with rules of discipline and work to the roster, prescribed by the railway.

(iii) Failing this, his services will be dispensed with.

On 13th October 1949 the Divisional Personnel Officer wrote to the Station Superintendent, Delhi, that the plaintiff should be discharged from service with effect from 15th October, 1949 as his services were not required. In an office note (Exhibit D.2) dated 1st/28th February, 1950 relating to the appeal which had been filed by the plaintiff it was mentioned that for the period from 31st July, 1949 to 9th August, 1949 the plaintiff had been shown as absent by the Station Superintendent in the salary bills of August, 1949 and that he had been allowed half pay from 22nd August 1949 to 15th October 1949 as he was under suspension. The plaintiff then served a notice dated 13th March 1952 (Exhibit D. 13) in which paragraph 9 was as follows:-

Therefore, please take notice that if the applicant is not reinstated to the post he was holding or he is not given any alternative job in the same grade within two months of the receipt of this notice in spite of being a displaced servant and has spent the major portion of life in the social work, the applicant will then be obliged to file a declaratory suit in a competent Court of law against the Railway Administration and, therefore, in that eventuality consequences thereof which please note.

Finally on 22nd December, 1952 the General Manager conveyed his orders (Exhibit P.11) in respect of the representation of the plaintiff dated 21st May 1952. It was pointed out that no appeal lay to him but "as a special case your case has been very carefully examined in this office and it is found that your conduct and behaviour while in Railway service left much to be desired. It has also been noticed from records that you absented from duty without authority on more than one occasion and verbal and written warnings had no effect. It is, therefore, regretted that your request for reinstatement cannot be considered." This was followed by the suit out of which the appeals have arisen.

The first point that has been raised by Mr. R.S. Narula, the learned counsel for the Union related to issue No. 1. It is submitted that no claim for money had been made in the notice u/s 80 as is clear from paragraph 9 of the notice and all that the plaintiff had said was that he would be obliged to file a declaratory suit. The Court below was of the view that a notice u/s 80 was not to be construed too strictly. Now, it is quite clear from paragraph 9 of the notice that the plaintiff had stated at more than one place that the order of termination of his service was illegal, wrongful and mala fide and that he was entitled to be reinstated in the post which he was holding and if that was not done he would be obliged to file a declaratory suit and in that eventuality the Government would be responsible for the costs and consequences thereof. In Lady Dinbai Dinshaw Petit and Others Vs. The Dominion of India and Another, Chagla C.J. and Bhagwati J. (as he then was) laid down that the object of section 80 was to give an intimation to the Government of the grievance that the subject had and to give to Government an opportunity to redress that grievance before it was brought to Court. If the notice u/s 80 did not definitely state the relief claimed but the allegations in the notice left no doubt as to the nature of the suit under contemplation, the object in giving the notice was served. In Pandurang Kashinath More Vs. Union of India, in the statutory notice given by the plaintiff he had not expressly asked for arrears of salary but the Court observed that the principal demand of the plaintiff was that the termination of his employment was in violation of the constitutional safeguards and that he had continued to remain in the employment of the defendant. As a declaration was being given to him that he was in service till judgment the right to salary in such a case incidentally arose from that declaration. The learned Judges did not consider that it would be fair and just to the plaintiff to deny him his salary to which he became entitled to receive only incidentally upon the declaration which he was being given. The plaintiff has asked for a similar declaration in the present case and the claim to salary would be incidental once that declaration is granted. The ratio of the decision in the Bombay case would clearly be applicable here. Moreover, this Court after a review of various authorities in Union of India v. The Landra Engineering and Foundary Works (1952) 64 P.L.R. 267 expressed a similar view with regard to the object of section 80 and it was further observed that that section did not define the rights of the parties and did not confer any rights on the parties. It only provided a mode of procedure for getting the relief in respect of a cause of action and that its provisions were not intended to be used as a trap for defeating the claimants suits against the Government. Consequently we are not inclined to accede to the contention raised with regard to the invalidity of the notice served by the plaintiff u/s 80.

Mr. Narula has next assailed the orders allowing amendment of the plaint by introduction of the relief (aa) with regard to the declaration which the plaintiff sought that his dismissal was illegal, invalid and ultra vires and that he was still a Social Guide in the Northern Railway. This relief had not been claimed initially in the petition dated 13th October 1955 which was confined only to the money claimed. It is true that when this amendment was allowed the declaratory suit had become barred by time. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil AIR 1957 S.C. 368 it had been contended inter aha that the High Court should not have exercised its power to allow amendment because the period of limitation for the suit bad already expired before the date on which the application for amendment was made. Their Lordships were of the view that the power exercised was undoubtedly one within the discretion of the High Court and that the amendment did not really introduce a new case and that the party had not been taken by surprise nor did he have to meet a new claim set up for the first time after the expiry of limitation. In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., their Lordships made it clear that undoubtedly the Courts would as a rule decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application but that was a factor to be taken into account in exercise of the discretion and did not affect the power of the Court to order it if that was required in the interest of justice. In the present case the discretion to allow amendment was properly exercised by the trial Court inasmuch as the right to the claim for salary as pleaded in the original application filed on 13th October 1955 was essentially founded on the alleged illegal termination of service of the plaintiff. This in itself involved a declaration being granted that the dismissal of his service was illegal, ultra vires and void and that he continued to remain in service of the railway. For this reason it cannot be held that the trial Court had not acted properly in allowing the amendment.

The next submission of Mr. Narula involved determination of the question whether the plaintiff was dismissed or removed from service or, whether his services were terminated or he was discharged pursuant to the conditions of his contract of service. The plaintiff has alleged violation of both the clauses of Article 311. His case is that he was dismissed or removed by an authority subordinate to that by which he was appointed and secondly that he was never charge-sheeted and no reasonable opportunity of showing cause against the action proposed to be taken was afforded to him. According to Mr. Narula, the plaintiff was admittedly holding a temporary post and, therefore, sub-sections (2) and (3) of section 240 of the Government of India Act would only apply if it can be said that he was dismissed and not if his services were terminated simplicter pursuant to the contractual terms. Article 311 would not apply to the plaintiff''s case as his services were terminated prior to the enforcement of the Constitution. For that reason we have to turn to section 240 of the Government of India Act, 1935, the material clauses of which, however, were in the same terms as Article 311 of the Constitution. Under the rule laid in Parshotam Lal Dhingra Vs. Union of India (UOI), even though he was a temporary servant, his case would be covered by sub-section(3) of that section if it can be said that his discharge had been ordered as a measure of punishment. The gist of the argument, therefore, is that since the plaintiff was only a temporary incumbent of a civil post and as his services were terminated in the ordinary course since they were no longer required he cannot ask for the protection of the aforesaid section. The legal position canvassed by Mr. Narula cannot be disputed and is unexceptional. It will, therefore, have to be determined on the evidence whether the plaintiff was dismissed from service and whether that dismissal was by an authority subordinate to that by which he was appointed and whether his dismissal or termination of services was by way of punishment for misconduct or any other reason justifying infliction of punishment. The trial Court was of the view that the plaintiff had been removed from the service while under suspension and there were a number of complaints against him on which some action had already been taken. As that was done as a measure of punishment both under the Constitution and under the Government of India Act he was entitled to a show-cause notice. He was also entitled under the railway rules to an opportunity to show cause before he was removed from service vide the rules contained in Chapter 17, Indian Railway Establishment Code. It is essential to determine first whether the termination of the plaintiff''s services was by way of punishment and for that purpose reference to some of the documents, which have been recapitulated before, may be made. According to the plaintiff, the letter of the Station Superintendent to the Divisional Commercial Officer dated 22nd August 1949 (Exhibit D.14) clearly showed that that officer was not prepared to tolerate such indiscipline at his station and that he had put the plaintiff off duty. A similar view had been expressed in the earlier letter also dated 1st August 1949 (Exhibit D.15). In paragraph 2 of the petition under Order XXXIII rule 1 the plaintiff had alleged that he was put off duty on 10th August 1949 but was allowed to rejoin duty on 10th August 1949 and that on 22nd August 1959 he was again put off duty and was treated under suspension on similar allegation he remained under suspension up to 15th October 1949. These allegations which were contained in paragraphs 2 and 3 of the plaintiff''s petition were not denied in the written statement filed by the Union. In schedule ''B'', which was attached to the aforesaid petition, the plaintiff had claimed full salary for the period from 31st July 1949 to 9th August 1949 and half salary from 21st August 1949 to 15th October 1949 apparently on the ground that he had been paid half the salary during that period of suspension. The correctness of the schedule was denied in the written statement but it was not stated specifically as to whether the plaintiff had ever been paid the full amount of his salary during the period of suspension. Although it is not clear from the record as to what was the exact period for which the plaintiff was paid only half the salary while he was under suspension, it has not been disputed that at least for some period he had been paid only half the salary which is payable when a servant is under suspension. The other facts stand established are that the plaintiff took up a somewhat obstinate attitude that he was entitled to have a holiday on Sundays but the Railway Administration did not agree that the terms of his service permitted such a holiday being observed by Social Guides. The Railway authorities were quite perturbed at his persistent assertion of being granted that privilege and it was even thought that his example might instigate others to make similar demands. A warning had actually been administered to him. The documents to which reference has already been made leave no room for doubt that the plaintiff was removed from service as the Railway authorities wanted to punish him for his contumacious conduct or act of indiscipline in putting forward what was called fantastic or irregular demands. It was abundantly clear from Exhibit P.12 which conveyed the orders of the General Manager that it was because of his conduct and behaviour and his abstention from duty without authority on more than one occasion that he was asked to go after verbal and written warnings had been given which had no effect on him. The position explained in the office note (Exhibit PW4/5) dated 17/19th December 1952 was on similar lines. It was further pointed out that as he was not the junior-most Social Guide and as he had been first suspended and then discharged which meant that it was the intention to remove him from service under the Discipline and Right of Appeal Rules as contained in Chapter 17, he should have been discharged from service after observing the requisite formalities prescribed in that Chapter. In the letter dated 30th September 1952 addressed by the Divisional Superintendent to the Generel Manager (Exhibit D.3) he wrote-

* * * * * *

It is a fact that Mr. Sawhney was not dealt with under the Discipline and Right of Appeal Rules. This it is considered was an error. He had more than 12 months'' service but even otherwise the Discipline and Right of Appeal Rules should have been observed in his case in view of the fact that he was placed under suspension which should have been followed by disciplinary action under the Code Rules.

The question to be decided is whether section 240(3), Government of India Act, which was in similar terms as Article 311(2) would be attracted by all the facts and circumstances set out before. The decision in Parshotam Lal Dhingra Vs. Union of India (UOI), which has become locus classic us on the subject has come up for interpretation and discussion in a number of subsequent cases decided by their Lordships. The latest pronouncement is in S. Sukhbans Singh v. The State of Punjab S.C.A. 412 of 1960 (Civil Appeal No. 412 of 1960) decided on 6th April 1962. The following passage may be cited with advantage:-

Even though that is so, a probationer cannot be as pointed out in Dhingra''s case punished for misconduct without complying with the requirements of Article 311(2). The question then is whether it can be said that the appellant was so punished. The sequence of events which led up to a departmental enquiry against him, his exoneration his transfer to Jullundur, the successful attempt of Mr. Kashyap, the Deputy Commissioner to have the transfer cancelled followed by his being asked to stop collecting funds for a Government College and then by his reversion on May 20, 1952 would go to show that the reversion was not in the ordinary course. No reason was given for his reversion but it would not be easy to say that the reversion must, therefore, be regarded as having been made in the ordinary course or in the bona fide exercise of the Government''s undoubted power to revert a probationer because of his unsuitability for the higher post.

After referring to the various good remarks and commendation certificates which the aforesaid officer received their Lordships proceeded to observe-

Shortly thereafter we find that the appellant was reverted. Though no reasons were stated at that time, on September 18, 1953, that is a year and half after the reversion he received the warning from the Government, which we have already quoted. The only reasonable inference which can be drawn from all these facts is that Government in fact wanted to punish him for what it thought was misconduct on his part and, therefore, reverted him. The omission of the Government to give reasons for his reversion does not make the action any the less a punishment but as the requirements of Article 311(2) were not fulfilled, as they ought to have been, the Government wanted to give the reversion the appearance of an act done in the ordinary course entailing no penal consequences.

The present case would stand concluded by the above mentioned decision of the Supreme Court but, contends Mr. Narula, the rule laid down in Purshotam Lal Dhingra''s case does not justify such a conclusion. It is said that whatever may be the reasons which motivated the dismissing authority or which were responsible for the termination of the service of a Government servant, according to Dhingra''s case what has to be seen is the result of the order made against the servant. If it visits him with evil consequences, then even though he be a temporary servant, Article 311(2) would be attracted but if no evil consequences flow from the order of removal then even though the real motive was to get rid of him because he was either considered inefficient or he had been guilty of some conduct which did not have the approval of his superiors a temporary servant would not be entitled to the protection guaranteed by the Constitution and the position would identically be the same u/s 240(3) of the Government of India Act by which the plaintiff''s case would be governed. It is pointed out that in Dhingra''s case the remarks made by the superior officers were adverse to Dhingra as was clear from what was set out at page 39 of the report. From page 47 onwards S.R. Das C.J. stated the manner in which it had to be ascertained as to when an order of termination of service was inflicted as and by way of punishment. The case of a person who had been appointed substantively to a permanent post presented little difficulty because he had a right to hold the post but where a person had been appointed to a temporary post he did not have such a right. The termination of his employment did not deprive him of any right and, therefore, by itself it could not be a punishment. According to the learned Chief Justice, cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In that event the servant would be entitled to the protection of Article 311(2). By way of illustration it was pointed out that if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his further chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government had terminated the employment as and by way of penalty. In P. Balakotaiah Vs. The Union of India (UOI) and Others, a notice was served on the appellant before their Lordships under the Railway Services (Safeguarding of National Security) Rules of 1949 that he was engaged in subersive activities calling upon him to show cause why his services should not be terminated. After enquiry, it was found that charges had been proved against him and the General Manager terminated his services. After referring to various decisions, the rule laid down in Dhingra''s case was taken to mean that if the order would result in loss of benefits already earned and accrued, that would be punishment. As the Security Rules preserved the rights of the employee to all benefits of pension, gratuities and the like, it was held that no forfeiture of benefits took place and that the person discharged under the rules could not be said to be ineligible for re-employment. For that reason the order was neither of dismissal nor of removal within the meaning of Article 311. In Union of India (UOI) Vs. Jeewan Ram, the plaintiff who was a permanent booking clerk in the service of a Railway Company was charge-sheeted on the allegation of certain misconduct and was directed to show cause against his dismissal. After he had submitted an explanation, an order was passed against him that he would be given one month''s pay in lieu of notice of; removal from service. The order was headed "Notice of imposition of penalty of removal from service under item 8 of Rule 1702" and the order itself stated that the plaintiff was being deprived of half of his pay during the period of his suspension. He had also been deprived of his dearness allowance arid house rent allowance during his suspension. It was held that the order of removal passed against him was certainly of a penal nature, that is by way of punishment and as the order clearly contravened the provisions of section 240(3) of the Government of India Act, 1935, it was illegal and ineffective. While the respondent''s counsel has sought to rely on this case, Mr. Narula pressed into service P. Balakotaiah''s case, referred to before. According to Mr. Narula, the facts in Jeewan Ram''s case were distinguishable as he had actually been charge sheeted and the order which was served on him showed that he had been deprived of half of his pay as also of his allowances. In the present case, as has been found before, the plaintiff had been deprived of half of his salary for a certain period while he remained under suspenesion. It is also not clearly established that he was paid the full allowance during this period. There is thus similarity to the aforesaid extent between Jeewan Ram''s case and the present one. Our attention has also been invited to The Union of India v. Pandurang Kashinath More AIR 1992 S.C. 630 in which the point taken was that as subsistence allowance during the period of suspension had not been paid, the services of the servant had in fact been terminated by way of punishment. Their Lordships negatived this contention in the following words:-

We do not think that the refusal to pay the subsistence allowance indicates that the termination of service was by way of punishment. It is clear that such refusal was due only to a misreading of the relevant rules by the appellant''s officers. The withholding of subsistence allowance during the period of suspension had no connection with the termination of service and did not follow as a consequence of it at all. As regards the order of suspension, it is sufficient to say that Article 311 is not concerned with the suspension from service.

The learned counsel for the plaintiff has pointed out that in the present case the withholding of half the salary during the period of suspension was not due to any misreading of the relevant rules and was directly connected with the termination of the plaintiff''s service. In The The State of Bihar Vs. Gopi Kishore Prasad, a probationer had been discharged from service because the Government had on enquiry tome to the conclusion that he was unsuitable for the post he held on probation. This according to their Lordships, was clearly by way of punishment, and it was observed that instead of discharging him without holding any enquiry into his alleged misconduct, the Government chose to start proceedings against him and to brand him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Article 311(2). Civil Appeal No. 59 of 1961 (The State of Bombay (now Maharashtra) v. F.A. Abraham S.C.A. 59 of 1961) decided by the Supreme Court on 12th December 1961 related to the case of an Inspector of Police who had been given the officiating appointment of Deputy Superintendent of Police but was later on reverted to his original rank. It was held that he had been reverted because he was found unsuitable for the higher rank to which he had been given an officiating appointment and the reversion had not in any way affected his condition and prospect of service.

The above discussion of the decisions of the Supreme Court in which the principles laid down in Dhingra''s case were referred to and applied shows that they were applied in the light of the peculiar facts of each case. None of these cases, apart from the latest decision in Sukhbans Singh''s appeal, are apposite, so far as the facts are concerned, to the present case. In Sukhbans Singh''s case neither any enquiry had been held prior to the reversion nor any of the other tests which had been adopted in the decisions relied on by Mr. Narula had been satisfied. What was found from the various facts was that the Government wanted to punish the servant for what it thought was misconduct on his part and for that reason he had been reverted. ff the only reasonable inference that can be drawn from the facts proved in the present case is that the Railway authorities wanted to punish the plaintiff for what they thought was misconduct on his part and for that reason terminated his services, the ratio of the decision in Sukhbans Singh''s case would at once apply. Apart from this, the plaintiff had been deprived of half of his salary for a certain period during which he remained under suspension which would indicate that he had been visited with evil consequences in terms of the rule laid down in Dhingra''s case. That would also attract the applicability of section 240(3) of the Government of India Act. The judgment of the Division Bench of this Court in The State of Punjab v. Madan Gopal A.I.R 15 Punjab (sic) does not require much discussion as this Court is bound by what has been laid down by their Lordships in Sukhbans Singh''s case.

The Court below held that the plaintiff was entitled under the Railway rules to an opportunity to show cause before he was removed from service and as that had not been done, his removal was illegal and void. This view has been assailed by Mr. Narula on the ground that even if it be assumed that the Railway rules were not followed, it was not open to the plaintiff to claim any relief for that ''reason in a suit as that matter was not justiciable. It is wholly unnecessary to decide this matter owing to the conclusion at which we have arrived with regard to the applicability of section 240(3) of the Government of India Act to the present case.

A good deal of argument has been addressed on the question whether the order of termination of service was passed by an authority subordinate to that by which he had been appointed. This point also loses all importance in view of the decision given with regard to the impugned order that it did not conform to the requirements of sub-section (3) of section 240 of the Government of India Act. At any rate, it appears that after the selection had been made by the Selection Board it was the Chief Administrative Officer who wrote on 17th February 1948 (Exhibit P.W. 4/1) that the plaintiff had been selected along with others and that the final letter of appointment would be issued by the Divisional Superintendent. In the letter addressed to the Station Superintendent on 23rd February 1948 (Exhibit D.16), it was repeated that, the Divisional Superintendent concerned would issue the formal letter of temporary appointment. Thus the appointing authority, according to the aforesaid document, was the Divisional Superintendent and not the Divisional Personnel Officer. It is true that what was called a notice saying that certain personnel had been appointed as Guide (Exhibit D.17) was issued by the Divisional Personnel Officer. He admittedly does not hold the same rank as a Divisional Superintendent but according to Mr. Narula, the powers of the Divisional Superintendent had been delegated to him. No such delegation of powers has been proved on the record by clear and cogent evidence. The result is that it must be held that the appointment was made by the Chief Administrative Officer himself because he had finally directed that the letter of appointment should be issued by the Divisional Superintendent and it was the latter who was bound to issue the letter. The plaintiff, therefore, could not be dismissed by the Divisional Personnel Officer, who was subordinate in rank even to the Divisional Superintendent.

Lastly, it was contended that the trial Court was in error in granting Rs. 360/- as local allowance and Rs. 540/- as house allowance. Reliance has been placed on The Divisional Engineer, G.I.P. Railway Vs. Mahadeo Raghoo and Another, where it was held that the definition of wages in the Payment of Wages. Act excludes from its operation the value of house accommodation. That decision was given on the scope and ambit of the provisions contained in sections 7 and 11 of the Payment of Wages Act as also section 2(vi)(a). It was held that the Legislature has used the expression "value of any house accommodation" in the definition of wages as denoting something which can be deducted from the wages and the one excludes the other. Clearly that decision can be of no assistance in the present case. According to the letter of appointment (Exhibit P.W. 4/1) dated 17th February 1948 the plaintiff was eligible for dearness allowance and grain shop concession according to the rules. In answer to interrogatory 69 at page 23 of the record, Bishamber Dev, Clerk of Divisional Superintendent''s Office, stated that the plaintiff had been allowed house rent at a flat rate of Rs. 15/- p.m vide Railway Board''s letter No. E. 47/C.P.C.14, dated the 13th August 1949. Mr. Narula has not been able to satisfy us how these allowances were not payable to the plaintiff once it was held that he continued to remain in service of the Railway. This disposes of all the points that arise for decision in the first appeal filed, by the Union.

The appeal filed by the plaintiff must fail as admittedly the claim with regard to the salary etc. for a period beyond three years would be barred by time. In the result both the appeals are dismissed with costs.

Capoor, J.

I agree.