R.S. Narula, J. - (1.) THIS unsuccessful Plaintiff's Regular First Appeal is directed against the judgment and decree of the Court of Shri Onkar Nath, Subordinate Judge, 1st Class, Rohtak, dated October 10, 1960, whereby the Appellant's suit for recovery of Rs. 25,099.25 P. which had been filed in forma pauperis was dismissed with costs.
(2.) THE facts relevant for the decision of this appeal are no more in dispute. Gulab Rai, Plaintiff -Appellant, whom I will call the Plaintiff in this judgment, was in the permanent service of the Railway Department of the Union of India, and was transferred on November 17, 1952, to Bahadurgarh Railway Station in Rohtak district as a Head Booking Clerk. On March 14, 1953, he was arrested for having allegedly accepted a sum of Rs. 11 on that day from one Jawala Parshad by corrupt and illegal means, and by otherwise abusing his position as a public servant while employed as such. Section III(1) of Appendix XXXI -R to the Indian Railway Establishment Code, Volume II, which governed the service conditions of the Plaintiff provided as below: A railway servant against whom proceedings have been taken either for his arrest for debt or on a criminal charge should be considered as under suspension for any period during which he is detained in custody or is undergoing imprisonment and not allowed to draw any pay and allowances other than any subsistence allowance that may be granted in accordance with the principles laid down in Rule 2043 -R (Fundamental Rule 53) for such periods until the termination of the proceedings taken against him. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being proved that the officer's liability arose from circumstances beyond his control. As soon as the Divisional Personnel Officer of the Northern Railway was informed of the arrest of the Plaintiff in the abovesaid circumstances, he issued telegram, Exhibit D.W. 2/13, dated March 14, 1953, to the Station Master, Bahadurgarh, reading as follows: Place B.C. (Booking Clerk) Gulab Rai under suspension immediately aaa advise date aaa. He will draw half pay plus dearness allowance as admissible as subsistence allowance aaa. The Plaintiff was in due course, put up for trial under Section 5(1)(d) of the Prevention of Corruption Act on the allegation that he had committed an offence punishable under Section 5(2) of the said Act. Sanction for his prosecution was, however, obtained only on October 21, 1953. Though the Plaintiff had originally claimed that his date of birth was December 30, 1903, the finding of the trial Court to the effect that his date of superannuation had to be determined on the basis of his date of birth being July 1, 1899, has not been disputed before us. The Plaintiff, therefore, attained the age of 55 years on June 30, 1954. Rule 2046(2)(a) of the Indian Railway Establishment Code, Volume II, which prescribes the age of compulsory retirement of a railway ministerial servant like a Booking Clerk is in the following terms: A ministerial servant, who is not governed by Sub -clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the competent authority.
(3.) IT is the admitted case of both sides that the case of the Plaintiff was governed by Clause (a) of Sub -rule (2) of Rule 2046, and further that no order was passed by any competent authority at any stage requiring the Plaintiff to retire at the age of 55 years. By order of Shri I.M. Lal, Special Judge, Ambala, dated August 30, 1954 (Exhibit P. 6), the Plaintiff was discharged from the abovesaid criminal case on the technical ground that the sanction for his prosecution, which had been granted by the Divisional Commercial Superintendent, Northern Railway, was not by a competent authority - Proper sanction for his prosecution from the Chief Commercial Superintendent, a competent authority was then obtained (Exhibit P. 70) on September 24, 1954. On the basis of the said sanction, the Plaintiff was again sent up for trial to the Court of the Special Judge, Ambala, on March 25, 1955. Shri Hans Raj Khanna, Special Judge, Ambala (now Hon'ble Mr. Justice H.R. Khanna of the Delhi High Court), by his judgment, dated May 27, 1957, held the Plaintiff guilty of having committed an offence under Section 5(1)(d) punishable under Sub -section (2) of Section 5 of the Prevention of Corruption Act, and while convicting the Plaintiff under the said provision, sentenced him to undergo rigorous imprisonment for a period of two months and to pay a fine of Rs. 100. When the conviction report of the Plaintiff was received from the Superintendent of Police, Special Police Establishment, Ambala City, the Divisional Superintendent, Delhi passed order Exhibit D.W. 3/1 on June 18, 1957, to the following effect: The employee may be dismissed from service in view of his conviction. On account of proviso (a) to Clause (2) of Article 311 of the Constitution, the Plaintiff had admittedly earned summary dismissal from service without the requirement of any enquiry or any other formality. On the basis of the abovesaid order of the Divisional Superintendent, the communication, Exhibit D -W. 2/16, dated June 20, 1957, was sent to the Divisional Personnel Officer requiring him to dismiss the Plaintiff from service in view of his conviction. On the receipt of the communication Exhibit D.W. 2/16, the Divisional Personnel Officer passed the formal order Exhibit D.W. 2/15, dated June 21, 1957, addressed to the Plaintiff in these words: You are hereby informed that in accordance with the orders passed by D.S., Delhi, (Divisional Superintendent, Delhi), the following penalty has been awarded to you: As a result of your conviction by the Court of law you are dismissed from service with effect from 23rd June, 1957 (F.N -). Exhibit D.W. 2/8 is another copy of the same order - Thereafter formal order Exhibit D -W. 2/14, dated November 12, 1957, regarding the emoluments to which the Plaintiff was entitled for the period of his suspension, was passed in the following terms: He (Gulab Rai Plaintiff) will not draw anything more than what he had already drawn as subsistence allowance. The period of suspension to be treated as SUS, i.e., not qualifying for service.;