Judgment

S. R. DAS J. : This is an appeal in a suit for a declaration that the order of the plaintiff s removal from service passed by the Chief Administrative Officer of the East Punjab Railway, Delhi, on the 30th June 1949 and communicated to him on the 4th July 1949 was wrong, illegal, ultra vires; and void in law and that he was still an employee of the Railway and entitled to work as such. The trial Court passed a decree in favour of the plaintiff. On appeal, the East Punjab High Court reversed the decision and dismissed the plaintiff s suit. The present appeal has been filed in this Court with a certificate granted by the East Punjab High Court under Article 133 of the Constitution.

2. The plaintiff joined the Railway service in 1918. In March 1945 he was selected as Railway Sectional Officer of the Delhi Special Police Establishment. In June 1948 the Inspector-General of Special Police Establishment decided to revert the plaintiff to the East Punjab Railway service. The plaintiff accordingly assumed charge in the office of the Divisional Superintendent, East Punjab Railway, at Ferozepore Cantonment on the 30th June 1948 but was immediately thereafter put under suspension and remained under suspension till the 19th August 1948. On the 20th August1948 the plaintiff was reinstated, the period of suspension being treated as leave. On the 30th June 1949 the chief Administrative officer, East Punjab, Railway, in exercise of his special powers made an order (Ex. D/8) removing the plaintiff from service in terms of his agreement. That order was communicated to the plaintiff by a letter (Ex. D/14) dated the 1st July 1949, reading as follows:

"You are hereby informed that in accordance with the order passed by C.A.O.R., Delhi, in exercise of his special powers vested in him under Para. 1708 RI you are given one month s pay in lieu of notice of discharge from service with effect from the 4th July 1949 A. N."

On the 30h July 1949 the plaintiff appealed from the order passed by the chief administrative Officer and contended that the said order was illegal, being in contravention of section 240 of the Government of India Act, 1935. No point was taken that the plaintiff had not in fact executed any service agreement in terms of which he could be removed from service on one month s notice. That appeal was dismissed by Railway Board in November 1949. The plaintiff thereupon, on the 3rd October 1950, filed the suit out of which the present appeal arises.

3. The trial Court found that the defendant had not proved that the plaintiff had executed any service agreement and that being so there was no question of his discharge from service on a month s notice and without formulating a charge-sheet and giving him an opportunity to answer the same. Accordingly a decree was passed in terms of the prayer. On appeal by the defendant, the High Court came to the conclusion that the defendant had amply proved the service agreement and reversing the decree of the trial Court, dismissed the suit.

4. It is not disputed that the plaintiff joined the Railway service at Lahore and that he was at the date of his discharge in June 1949 a non-pensionable and non-gazetted Railway servant. After the partition of India most of the papers relating to the plaintiff were left in Lahore and had not been received from the Pakistan authorities. The defendant sought, in the circumstances, to adduce secondary evidence to establish the fact of execution of such agreement and the terms thereof.

It is quite true that none of the defence witnesses had any personal knowledge of the fact of the execution of such a service agreement by the plaintiff but their evidence shows that according to the rules it was incumbent on a Railway servant to enter into such agreement. Indeed, this is also admitted by J. N. Khanna (P. W. 1). It is further in evidence that such agreements were to be in the form set out in the rules and invariably contained a clause that the service would be terminable