A railway servant, whose service is terminable by one month's notice on either side, is not entitled to the protection under Section 240(3) of the Government of India Act, 1935, or Article 311 of the Constitution of India.

Kapur, J.

1. This is an appeal brought by the plaintiff against a judgment and decree of the Senior Subordinate Judge, Amritsar, dated 28-1-1952 dismissing the plaintiffs suit for declaration with costs.

2. The plaintiff was recruited as a clerk in 19(sic) by the old North-Western Railway. On 29-1-19(sic) he was a Booking Clerk at Amritsar Railway Station. On that day one Ved Prakash made a complaint to the Chief Booking Clerk in regard to an excess payment of Rs. 100/- in the following circumstances. He purchased 5 1/2 inter class tickets to Kanpur and in payment of that he had handed over a hundred-rupee currency note to the Booking Clerk and the latter demanded another Rs. 147-6-0 from him against which the complainant protested, but (sic) the Booking Clerk denied that he had received Rs. 100/- he paid another Rs. 150/-. Later on the plaintiffs cash was checked and an excess of Rs. 100 was found which was returned to the complainant and (sic) acknowledgment received on the back of the complaint. On 29-1-1948 Assistant Transportation Officer S.R. Paul D. W. 1 sent communication Ex. D-1 to the Divisional Commercial Officer, Ferozepore, mentioning the facts contained in the complaint of Ved Prakash. As from 6-2-1948 the plaintiff was put under suspension and Ex. D-2 at page 38 of the paper book shows that Sita Ram plaintiff was charge sheeted and he was asked to put in his defence within seven days under the Rules of the Railway Rules. He was also informed that if he wanted to be heard in person, he could apply for it, by the granting of the request was entirely within the discretion of the officer empowered to punish him. His defence is at page 39 and is dated 24-2-1948 He practically admitted the facts but stated that (sic) was a mistake and there was no dishonesty. On 28-2-1948 the Divisional Commercial Officer said that he was not prepared to accept the explanation of the plaintiff and he (plaintiff) was removed from service, and the final order of removal was made on 15-3-1948 in which it is stated-

"You are hereby informed that in accordance with the orders passed by Divisional Commercial Officer, Ferozepore, you are removed from ser- vice. Pay in lieu of notice of discharge from service with effect from 15-3-1948."

Exhibit D-8 is a letter of the Station Master, Amritsar, showing that the notice of discharge was delivered to the plaintiff and his acknowledgment was sent to the Divisional Superintendent.

3. The plaintiff then took an appeal to the Divisional Superintendent, Eastern Punjab Railway, but that gentleman dismissed his appeal on 16-4-1948 and this order was conveyed on 19-5-1948 to the plaintiff.

4. On 12-6-1950 the plaintiff brought the suit but of which this appeal has arisen for a declaration that his removal dated 15-3-1948 is illegal, void and ultra vires and is not binding on him and he is therefore still a servant of the Railway. He alleged that his appointment was under Rule 143, Indian Railways Administration Code and that in pursuance of that Rule he entered into an agreement with the Railway Administration which was an possession of the agreement, that he had served as a Booking Clerk for about 28 years to the satisfaction of his superior officers and after reciting the facts which I have given above he alleged that no proper enquiry was made or opportunity given to him to defend himself and he was given no notice of the action proposed to be taken against him to show cause why he should not be dismissed from service.

5. For some reason best known to the Railway the allegation in regard to Rule 143 and the entering into the contract was denied by the Railway. They also pleaded that the plaintiff was served with a charge-sheet and he was removed from service on payment of his month wage in lieu of notice of discharge from service and that his appeal had been dismissed. The following three issues were framed by the learned Judge-

1. Was the dismissal of the plaintiff wrongful, improper and ultr