Das Gupta, J. - (1.) The appellant entered the service of the East Indian Railway on 15-1-1942 as a temporary cleaner. On 29-5-1942 he was confirmed as a cleaner. Thereafter, he has continued to serve the Railway as a permanent employee of the Railway till in September 1949 he was serving the Railway as a Driver. On 19-9-1949 a report was made against him for his alleged conduct deliberately aiding the removal of coal from a wagon. This matter was enquired' into by some officers of the Railway who submitted a report against the appellant, the report being that he was guilty of the conduct alleged. A charge sheet was then served on him wherein he was formally charged with the offence of "aiding in the removal of coal from the wagon drawn from the colliery siding while working 1st Down Asansol Pilot on 18-9-49 with engine 523 CA while standing at the Bogra Level crossing gate Lodge'". His explanation was that he had already replied to the charge brought against him in the enquiry held on 21-9-1949 and that he had nothing further to say. It is not disputed that in the enquiry held on 21-9-1949 he had pleaded not guilty to the charge. After this an order was made by the Divisional Superintendent. East Indian Railway; "Remove him from service". Thereafter, the Divisional Superintendent issued on him a notice the relevant portion of which ran thus : "As your services are no longer required by the administration, you are hereby removed from service by my order in terms of your agreement and conditions of service, and you are hereby given one month's notice with effect from 6-11-49 as provided for therein. Your services will accordingly terminate on the fore-noon of 6-12-49". The notice bore the date 1-11-49, hut was signed by thq Divisional Superintendent on 4-11-49. An appeal by him to the Deputy General Manager, Calcutta against this order was unsuccessful. The present suit was brought by the appellant with the averment that the Railway Administration had acted wrongfully and arbitrarily and without any jurisdiction in dismissing him from his service. He prayed for a declaration that the dismissal order passed by the Divisional Superintendent and communicated to the plaintiff was wrongful, illegal and unjust and was not binding on the plaintiff. It was mentioned in the plaint that a notice under Section 80 of the Code of Civil Procedure had been sent by him through registered post on 21-1-1950 and had been duly received by the General Manager, East Indian Railway on 28-1-1950. It was further stated that a further notice under Section 80 of the Code of Civil Procedure was sent by registered post to the General Manager and was received by him on 2-3-1951.
(2.) The defence was two-fold. First, it was said that the Divisional Superintendent was perfectly right and justified in removing the plaintiff from service on and from 6-12-1949 with a month's notice dated 1-11-1949 and that no arbitrary and unjustified order had been passed and the removal of the plaintiff was according to the rules. The second defence was that there was no valid and sufficient notice under Section 80 of the Code of Civil Procedure. Though that was the substance of the defence, it is necessary that the exact words of paragraph 12 of the written, statement in which this defence was raised should be set out at this stage. That paragraph is in these words: "That the plaintiff has made out an inconsistent end a new case as against that as set out in the notice under Section 80 C. P. C. Hence the suit is to be dismissed".
(3.) Two of the issues that were framed need only be set out. They are issues Nos. 4 and 5 and are in these words: "4. Was the plaintiff wrongfully dismissed from service? 5. Has proper legal and valid notice under Section 80 C. P. C. been served? Is the suit liable to be dismissed for want of such proper notices?";