- (1.) R. K. Mahajan, J. This is a Second Appeal against the judgment and decree dated 10-8-1983 passed by Shri S. S. Gupta, Ilnd Additional District Judge, Agra arising out of Suit No. 46 of 1977 by virtue of which the appeal was allowed setting aside the decree of the lower Court which was to the effect that the appellant be given alternative job by the respondent w. e. f. 14-3-1975 and the order of job of Safaiwala which was offered to him is illegal.
(2.) THIS controversy has arisen from the following facts. Admittedly the plaintiff-appellant's leg was amputated when he was serving as a "rakshak" in the Railway Protection Force on 15-8-1981. He was at relevant time in Agra Cantt. and the acci dent took place at Mathura Junction. He received injuries from a shunting bogie and he suffered injuries resulting into amputa tion of leg. He remained under the medical treatment from 24-2-1975 to 14-3-1975 and he was declared fit for C-l post and reported for duty. The case of the appellant is that according to Medical Rules he was to be given alternative job of Waterman, Waiting Room Attendant, Retiring Room Atten dant, Office Peon or Watchman. He was given job of Safaiwala which was not suitable. He served notice under Section 80 C. P. C. and thereafter instituted a suit for mandatory injunction and that the order dated 14-3-1975 is illegal and he be ab sorbed in the alternative job as required under law and as per choice given by him considering the nature of injuries. It appears that during the pendency of the suit he was discharged vide Ext. No. A-19 order dated 19-3- 1977 with retrospec tive effect. The case of the defendant-respondent is that he was given alternative job of Sweeper but he refused and ultimate ly there was no other course except to dis charge him. The trial Court decreed the suit. The appellate Court dismissed the suit on a tech nical ground that since the order of dis charge has not been challenged so the suit could not have been decreed with retrospec tive effect. However, the appellate Court expressed the hope and trust that good sense would prevail on the defendants to absorb him in a suitable job under the Rules.
(3.) FEELING aggrieved the present Second Appeal is filed and the following questions of law have been framed: - "whether the plaintiff-appellant was en titled to decree in view of the provisions contained in Chapter 26 of the Indian Railways Estab lishment Manual and as to whether the decision arrived by the lower appellate Court is vitiated on account of the burden being case upon the plain tiff appellant to aver and establish the alternative suitable jobs available ?" Learned counsel for the appellant Shri Prakash Gupta has submitted that the lower Court has violated the provisions of Chapter XXVIof the Indian Railway Estab lishment Manual and has relied upon Rules 2601,2604,2606,2609,2610and 2611 of the Indian Railway Establishment Manual.;