KHARTAR SAO Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant Khartar Saw M. M. C. T. No. 15880 a a foundry attendant in the grade of the sami skilled workers in G. I. F. Eastern Railway in the Jamalpur work-shop filed a suit in the court of the Munsif, Monghyr, challenging his removal from his service by an order Ext. F) dated 10th January, 1959 mainly on the ground that the could not be removed by an authority subordinate to that by which he was appointed. This order was passed by Mr. Avedi works Manager (A senionr scale Officer) on a charge of an attempt to pilfer 5 pieces of lead weighing 1 seer from the builder- shop His departmental appeal was dismissed on February 29, 1969 by the Dy. C. M. B. In the suit he claimed a declaration that the order of discharge dated 10th January 1969 (to take effect from 18.1.69) was illegal, null and void, invalid and inoperative and that he still continued in service. Both of the courts below dismissed the suit holding that he had been appointed by an Assistant Personnel Officer (a jonior scale officer) and he was removed from service by the Work Manager, a senior scale officer.

(2.) Counsel for the appellant contended that the appellant was appointed as a Coolie by the railway administration on 28th May 1947 under the temporary service agreement (Ext. E) by the Dy. C. M. E., that he was permanently appointed as a Khalasi on 28th May 1952 under the service agreement (Ext. D) by the President of India acting through the Assistant Personnel Officer and later he became an attendant in the Foundry in the year 1955 on the recommendation of a Trade Test Board (Evt. 5) and thus his appointing authority was the President of India acting through the D. C. M. E. ann he could not be removed from service by the Works Manager, who was subordinate in rank to the D. C. M. E. It was also contended that Mr. G. C. Chakraverty, the Assistant Works Manager was not competent to issue the chaege-sheet against the plaintiff nor Mr. Avedi the Worke Manager was competent to issue the show-cause notice in absence of any authority delegated to them by the appointing authority. Counsel submitted that the appellant could be removed any by one of the authorities mentioned in Rule 134 of the Railways Establishment Ccc'e (Vol. 1) (The Central Manager in the instant case). He, therefore, urged that the charge-sheet which was issued on 24th March, 1967 by Mr. G. C. Chakravarti the Assistant Worke Manager, as well as the departmental enquiry held by him in the capacity of disciplinary authority were illegal and without jurisdiction and that the show-cause notice issued by Mr. Avedi the Works Manager describing himself as another disciplinary authority was also without jurisdiction. Counsel, therefore, canvassed that the order of dismissal was null and voild, ultra vires and without jurisdiction.

(3.) Afcer having considered the submissions advanced on behalf of the parties and after giving due weight to them, I am of the opinion, that both the courts below have failed to make proper approach to the case when they came to the conclusion that the Assistant Personnel Officer had appointed the plaintiff and that the plaintiff was rightly removed from service "by the Works Manager, a senior scale officer. None of the two courts below has properly decided as to who was the appointing authority of the plaintiff. It may be noted that the appointing authority as referred to in Article 311(1) of the Constitution means the authority who appointed the Government servant to the post from which he has been dismissed or removed. The courts below, therefore, were bound to consider as to who appointed the plaintiff to the post of foundry attendant. This has not been decided. The plaintiff was firstly appointed as Coolie in the year 1947 under the temporary service agreement (Ext. E) by the D. C. M. E. According to the agreement, therefore, Deputy Chief Mechanical Engineer would be his appointing authority in 1947. He was permanently appointed as a Khalasi in 1952 under the service agreement(Ext-D) with the President of India acting through the Assistant Personnel Officer. His appointing authority, therefore, was the President of India in 1952. In the year 1955, he was appointed as an attendant in the foundry of the Jamalpur Work shop after passing the test examination before the Trade Test Board. The relevant recommendation in favour of the plaintiff is Ext. 5. At the time of removal from service he was working as an attendant in the Foundry. None of the two courts below has said in its judgment as to who was the appointing authority of the plaintiff at the time of removal in 1969. No approach was made to the case from this point of view. Therefore, the main issue which arose in the suit was left undecided.