Dave, J.—This is a second appeal by the plaintiff against the judgment and decree of the District Judge, Bhilwara dated the 12th of May, 1952, reversing the decree of the Munsiff Bhilwara dated 25th of August 1951.

2. It involves an interesting question of law viz. whether the Union of India is responsible to pay damages in torts to a public servant in its employ on account of some mistake or wrong, if any, committed by another officer in its employment.

3. Before dealing with the question, it would be proper to narrate the facts giving rise to the present action. The plaintiff was station master and was posted at the station Lambia in the year 1948. On 6th of April, 1951, he filed the present suit for declaration and for award of Rs. 500/- as damages. His case was that on the 13th of May, 1948, he was continuously on duty for the last 56 hours since he got no relief from Bhilwara inspite of repeated intimations and so he fell ill on account of the strain of work. He found it impossible to work single handed any more and, therefore, he had to close the station and retire to his quarters within the premises of the same station. For this action, he was severely censured by the then D. T. S. Mhow and a note was made in his service-sheet He preferred an appeal to the T. S. Ajmer and after enquiry, he was found faultless and, therefore, the said censure note was cancelled. It was alleged that after the transfer of the T. S., his successor issued a charge-sheet against the plaintiff and inspite of the plaintiffs explanation, the D. T. S. Mhow passed an order No. EG.5148 dated 31-5-1950 directing the plaintiffs reversion for one year from the station masters post to that of a signaller with effect from 1st of July, 1950. The plaintiff filed an appeal against the said order on 18th of August, 1950, but inspite of reminders, he got no reply. It was averred by him that his order of reversion was absolutely illegal since the matter which was once decided could not be reopened. It was further stated that the illegal and unjust order passed against him caused him a lot of anxiety and worry with the result that his health broke down and he had to spend Rs. 400/- to regain his health. He had to spend a further amount of about Rs. 100/- on passage fare, telegrams etc. It was prayed by him that his order of reversion should be declared illegal and unjust, that he should be ordered to reinstated as a station master and Rs. 500/- should be awarded to him as damages against the defendant. On 25th of August, 1951, the Munsiff Bhilwara decreed the suit ex parte with costs. The defendant had filed an application for setting aside the ex parte decree in the trial court, but it was dismissed The defendant, therefore, filed two appeals in the court of the District Judge, Bhilwara, one against the order dismissing his application and the other against the decree. The appellate court dismissed the appeal against the order for setting aside the ex parte decree but it allowed the other appeal and set aside the decree of the trial court. It was found by the appellate court that the order of the plaintiffs reversion was cancelled and he was reinstated as station master before the decree of the trial court and therefore the declaratory decree passed by it was redundant. As regards the decree for damages, it was held by the learned District Judge that his suit was not maintainable.

4. Learned counsel for the appellant has urged that after the plaintiff had filed his suit, he had also presented an application for injunction and it was thereafter,lhat the departmental appeal was accepted and the plaintiff was reinstated. It was urged by him that he could not wait indefinitely for the decision of his departmental appeal and since he had received no reply for a long time, he had to file the suit According to learned counsel, the first appellate court should not have therefore disallowed to him the costs incurred by him in the trial court. His next contention is that

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