KISHAN PRASAD Vs. UNION OF INDIA

JUDGEMENT

(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 :

(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: