D.P.SINHA, J.

1. This second appeal has been preferred against the judgment and decree passed by the District Judge of Santhal Parganas in Title Appeal No. 31 of 1970 dismissing Title Suit No. 5 of 1966 which had been decreed in favour of the appellant by the 3rd 38 of 1968 Additional Subordinate Judge of Deoghar.

2. The appellant, Julal Mandal, was, at the relevant time, employed as a Permanent Way Mistry under the Eastern Railway. On 8-3-1965 the engine of the 71-Up Parcel Express collided with a stationary loaded Dip Lorry which was unloading materials at a place between Shankarpur Station and Mathurapur Halt on the UP line situated within the jurisdiction of A.E.W. Eastern Railway, Madhupur, respondent No. 3. A fact finding Committee was constituted which submitted a report on the basis of which a departmental proceeding was started against the appellant. The proceeding was conducted by the A. E. W. Madhupur (Shri B. R. Sen) who submitted a report to the Divisional Engineer, respondent No. 2, saying that the appellant was responsible for the accident and that he should be dismissed from service. The Divisional Engineer accepted that report and called upon the appellant by his memo. dated 10-12-1965 to show cause why he should not be removed from service and subsequently it was alleged, without giving him reasonable opportunity to show cause, he had dismissed him.

3. Thereupon the appellant instituted the title suit (Title Suit No. 5 of 1966) for setting aside the order of dismissal after a declaration that he was not responsible for the accident as he was not in-charge of the Dip Lorry, the persons in-charge being one Bhaktu, an untrained and unlicenced Mistry. According to him Shri B. R. Sen, the A. E. W., Madhupur had not been properly appointed to hold the inquiry by the Divisional Engineer who was the competent authority to make such appointment and he being himself responsible for the accident on account of his having deputed Bhaktu to drive the Dip Lorry in spite of the fact he was an untrained and unlicenced person, should not have been allowed to hold the inquiry. It was further alleged that after the service of the show cause notice the Divisional Engineer (Respondent No. 2) had not given the appellant reasonable opportunity of preparing his show cause against the proposed punishment and that the petitioner had also learnt that the Divisional Engineer had either already passed the order of dismissal or was about to do so. He, therefore, prayed among other things that the order dated 10-12-1965 by which the Divisional Engineer had held him guilty and liable to be dismissed be declared illegal, void and without jurisdiction. He further prayed by an amendment of the plaint, which was allowed on 9-7-1968, that the order of dismissal, if any, passed on the basis of the said order dated 10-12-1965 be declared to be illegal, void and without jurisdiction and that the appellant continued to be in service and was entitled to get his salary and allowances which he was getting prior to the illegal order of dismissal was given effect to.

4. As to the service of notice under S. 80 of the Code of Civil Procedure, the appellant had said in the plaint that in view of the impending action contemplated to be taken against him by the Divisional Engineer (respondent No. 2) there was hardly any time to serve the notice and, therefore, it should be deemed that the requirement of the notice had been waived. He had further stated that he had sent the notice by registered post on the day he had filed the plaint.

5. The Union of India respondent No. 1, as representing the Eastern Railway through its General Manager, the Divisional Engineer (respondent No. 2) Eastern Railway, Asansole and the A. E. W., Eastern Railway, (respondent No. 3) Madhupur, were impleaded as defendants 1, 2 and 3 respectively. The suit was contested by defendant No. 1 which filed a written statement. In substance, its contentions were that the appellant was r