- (1.) THE plaintiff respon dent was a Travelling Ticket Examiner in the North Eastern Railway and on 11-8-59 he was working as such on the 39 Up Passenger between Pilibhit and Shahjahanpur. The said train was raid ed by the Magisterial Checking Squad. One of the first class compartments of the said train was found bolted from inside. After the said compartment was opened the plaintiff was found asleep in the said compartment. Besides him two others passengers who were travelling without ticket in the same compartment were produced before the Magistrate and during their trial it was disclosed that they were travelling with the permission of the plaintiff-respon dent. The District Traffic Superinten dent ordered an enquiry against the plaintiff-respondent. One Shri H. R. Bhagga, the then Assistant Traffic Superintendent Izatnagar, was appointed the enquiring officer. Sri Bhagga found the charges of serious misconduct estab lished against the plaintiff. He submit ted the result of his enquiry to the Dis trict Traffic Superintendent who agreed with the findings and gave a show cause notice proposing the penalty of removal from service and finally ordered his re moval. The plaintiff respondent, after necessary notice under Section 80, Civil P. C., filed the suit out of which this appeal has arisen. It was contended by the plaintiff that the District Traffic Superintendent was not competent to award the punishment of removal from service. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower ap pellate court. According to the findings of the court below the District Traffic Superintendent was neither empowered to charge-sheet the appellant nor was he empowered to order an enquiry and award the punishment of removal from service.
(2.) THE reasoning of the courts below is that the plaintiff was charged with an offence the maximum penalty for which was dismissal and therefore the General Manager alone was compe tent to remove him from service. The plaintiff had also chal lenged that the District Traffic Superin tendent was not the appointing autho rity but his contention was repelled by both the courts. The findings of the two courts that the District Traffic Supe rintendent was the appointing authority is also challenged by the plaintiff in this appeal. Before the other contention of the appellant is considered it is desirable to examine if the District Traffic Supe rintendent was the appointing authority or not. The appointment letter, Ext- 8, is from the District Traffic Superinten dent and is addressed to the Station Master, Gola. It is in these words: "Subject to Traffic Manager's appro val, the above named is appointed as Ticket Collector at yours on Rs. 30 plus Rs. 10 as W/A per month from 16-7-45, vice S. C. Banerji transferred to LJN as APC. His services are liable to be ter minated without any notice owing to war embargo on permanent recruitment." The learned counsel for the plaintiff res pondent has contended that the appoint ment being subject to the approval of the Traffic Manager, the appointing authority was the Traffic Manager and not the District Traffic Superintendent. It is also contended by him that this letter was only a letter of posting and not an appointment letter. He contend ed that the appointment letter was some other letter issued by the Traffic Mana ger. Under issue No. 1, the trial court has discussed the case of the plaintiff on this point. It is not necessary for me to repeat the reasons given by the trial court in holding that the District Traffic Superintendent was the appoint ing authority. I fully agree with the finding of the trial court.
(3.) THE next question for deter mination is whether the order of the removal passed by the District Traffic Superintendent was an order of a com petent authority or not. The well re cognised rule is that the appointing authority can dismiss the employee in the absence of any statutory provision to the contrary. The Indian Railway Establishment Code, Chapter XVII, deals with Discipline and Appeal Rules (Non gazetted) Staff. Rule 1702 enumerates the penalties that may be imposed on railway servants. Removal from service and dismissal from service are two dis tinct penalties enumerated in sub-els. (7) and (8) of the said rule. Rule 1703 states the consequences of the two penalties. It says that dismissal from service shall disqualify the railway servant from future employment but removal from service is not an absolute disqualifica tion. Rule 1704 deals with the autho rity competent to impose penalty and is as follows: "Subject to the provisions of R. 1705, (i) the authorities specified in Column 3 of Schedule 1 appended to the rules in this Chapter may impose the penalties specified in Col. 4 upon the classes of railway servants shown in Col. 2 of that schedule; (ii) The General Manager in respect of railway servants under his adminis trative control, may impose any of the penalties specified in Rule 1702 and may, subject to any conditions he may consi der necessary, delegate to the authori ties subordinate to him power to impose these penalties except the withholding of provident fund contribution and gratuity and the reduction or withholding of pen sion subject to the following provisos:- (a) that in respect of railway ser vants, other than inferior servants with less than seven years' service, the power of dismissal shall not be delegated to an authority lower than a Head of a Depart ment or a Divisional Superintendent or, in relation to the North Western Rail way a Deputy General Manager; and the power of removal from service shall not be delegated to an authority lower than a District Officer provided that in case of incivility to the public to be dealt with under Rule 1709 (c), the power of removal from service shall not be dele gated to officers below the rank of those specified in that rule, and (b) that the power of dismissal of inferior servants with less than seven years' service shall not be delegated to an authority lower than a District Officer and the power of removal from service shall not be dele gated to an authority other than the holder of a gazetted post." Rule 1705 is as under:- "Notwithstanding anything contained in the rules in this section. (a) a fine shall not be imposed upon railway servants who are exclusively em ployed on clerical work; (b) the penalty specified in item (4) of Rule 1702, viz. withholding of incre ments or promotion, or stoppage at an efficiency bar, shall not be imposed by an authority lower than a Divisional Superintendent or the authority compe tent to make a substantive appointment to the post which the railway servant holds; (c) no railway servant shall be re moved or dismissed by an authority lower than that by which he was ap pointed to the post held by him sub-attentively; (d) pension admissible to an upper subordinate, in the Engineering Depart ment shall not be reduced or withheld by an authority lower than the Railway Board." ;