- (1.) GHANSHYAM Dass, J. The instant second appeal is being preferred by the defendant Union of India against the judgment and decree dated 31-10-1985, passed by the then III Addl. District Judge, Moradabad in Civil Appeal No. 457 of 1982, arising out of judgment and decree dated 20-8-82 passed by the then Civil Judge, Moradabad in Original Suit No. 20 of 1979, Tej Pal v. Union of India.
(2.) THE plaintiff Tej Pal brought the suit against Union of India before the trial Court for declaration that the order of removal from service of the plaintiff dated 12-9-77 passed by Assistant Security Officer, Northern Railway, Moradabad is illegal, inoperative and void and also for grant of decree of Rs. 5,600 being the arrears of salary and allowances. The plaintiff was appointed on 24-12-1957 in Railway Protection Force and while posted as Senior Rakshak at Laskar Station in Moradabad Division, he was suspended and charge sheeted for gross negligence of duty for which enquiry was held. He was found guilty and order of removal from service was passed. The order of removal was challenged on the factual as well as legal ground consisting of competency of punishing authority. The suit was contested by the defendant denying the assertions made by the plaintiff. It was alleged that the charge of gross negligence of duty was proved and he was removed from service by the competent authority after affording due opportunity of hearing. The plaintiff had also preferred departmental appeal and the same was dismissed by the competent authority. After hearing the parties, the learned trial Court dismissed the suit. It was held that the plaintiff was removed from service by the competent authority since the Assistant Security Officer had the power to remove the plaintiff from service. The order of dismissal of suit was challenged before the first appellate Court. The appeal was allowed by the first appellate Court by the order impugned and the suit of the plaintiff was decreed in toto.
(3.) THE first appellate Court held in its judgment and order impugned that punishment of removal from service cannot be imposed by an authority subordinate to one by whom he was appointed. Since the appointment letter was not brought on record, the plaintiff was deemed to have been appointed by General Manager. THE removal had been made by the officer below the rank of General Manager and hence removal is bad in law. It has been further held that the Railway Protection Force Act (23 of 1957) came into force on 10-9-1959 after publication in Gazette of India of 1959. It was not in resistance on the date of appointment i. e. 18-12-1957. No doubt the first entry was made in the service book under the initial of Assistant Security Officer but this by itself could not mean that the appointment itself was made by Assistant Security Officer since Railway Protection Force Act itself had not come into existence. I have heard the learned counsel for the parties and have gone through the record.;