Falshaw, J. - (1.) This is a second appeal by a plaintiff whose suit was decreed by the trial Court but dismissed by the Court of first appeal. The appeal originally came up for hearing before a learned Single Judge of this Court, Bhandari, j., who has referred it to a Division Bench because of the difficulty of the point involved. The plaintiff Des Raj entered the service of the North Western Railway as a Signaller in December 1920 but his services were dispensed with under a scheme of retrenchment in July 1923. He was, however, re-employed again as a signaller under the orders of the Superintendent of Telegraphs at Lahore in June 1924. He rose to the rank of Assistant Station Master Ordinary Grade in 1927, and in January 1942 was officiating as Assistant Station Master First Grade, but in October 1942 he reverted to his substantive appointment as Assistant Station Master Ordinary Grade. On the 9th of October 1942 he was placed under suspension in consequence of certain alleged irregularities committed by him while working as Train Despatcher at Amritsar. Charges were framed against him and his explanation was submitted and on the 3rd of November 1942 he received a communication from the Divisional Personnel Officer as follows: "You are hereby informed that in accordance with the orders passed by the Divisional Transportation Officer you are given one month's pay in lieu of notice of discharge from service with effect from the 3rd of November 1942, forenoon. You are released from suspension from the 2nd of November 1942." The plaintiff thereafter filed an appeal under the rules governing disciplinary action in the Railway, but his appeal was dismissed by the Divisional Superintendent on the 20th of December 1942. After serving a notice on the Crown under Section 80 of the Civil Procedure Code in April 1945 the plaintiff instituted a suit in January 1946 for a declaration that his reduction to the post of Assistant Station Master Ordinary Grade and discharge were illegal and inoperative and that he was still an Assistant Station Master of the First Grade. The Governor-General-in-Council was impleaded as defendant. After certain preliminary objections raised by the defendant had been decided the following issues were framed: (1) Is the order of reduction of the plaintiff wrong, illegal and 'ultra vires' and had the officer passing the order no authority to do so? 2.Is the order by which the plaintiff has been removed from service illegal, wrong and not binding on the plaintiff and had the officer passing the order no authority to do so? 3.Can this Court determine that no proper opportunity was granted to the plaintiff to defend himself? 4.If Issue No. 3 be proved, was proper opportunity granted to the plaintiff? The findings of the trial Court on these issues were that the first did not arise as the plaintiff had not been reduced in rank but had merely been reverted to his substantive post, that the officer who passed the order discharging the plaintiff had no authority to do so and that this order amounted to removal from service, and that while the Court could go into the question whether the plaintiff had been given a proper opportunity to defend himself or not, the proper procedure had been complied with in the plaintiff's case. In view of the second of these findings the plaintiff was granted a declaration that the order of his discharge from service was illegal, void and 'ultra vires' and that he was still an Assistan Station Master Ordinary Grade. On the defendant's appeal the learned Senior Subordinate Judge held that the final order of discharge must be considered to have been passed by the Divisional Traffic Superintendent who dismissed the plaintiff's service appeal and who was a competent authority to pass the order. He also held that the plaintiff had been rightly dismissed and dismissed the plaintiff's suit.
(2.) It seems that when the second appeal came before this Court the matter was considered from a rather different standpoint, namely whether in view of the fact that the contract of service under which the plaintiff was employed by the Railway provided for the termination of his service by one month's notice by either party, his discharge with one month's pay in lieu of notice could be regarded as dismissal within the meaning of Sub-section (3) of Section 240 of the Government of India Act Sub-section (1) of which reads: "Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure." Sub-section (2) provides that no such person shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed, and Sub-section (3) provides that no such person shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
(3.) The learned Single Judge before whom the appeal was first argued found it difficult in the absence of any authority to decide the question whether a person who has entered into a contractual relationship with Government, and whose terms of agreement provided that his services may be terminated at any time with a particular notice being given, and who is served with the prescribed notice and required to relinquish his appointment, can be said to have been dismissed within the meaning of the expression in Sub-sections (2) and (3) of Section 240.;