A suit for declaration, as prayed for, was not maintainable in the Civil Court as it was a contract of personal service.

( 1 ) THE present appeal is directed against the judgment and decree darted 9-9-1992 passed by the First Additional District Judge, Ghazipur in civil Appeal No. 83 of 1991. This Civil Appeal was filed by the present respondents sri Ram Sahan Rai against the judgment and decree dated 15. 3. 1991 passed by the 6th Additional Munsif Magistrate, Ghazipur in suit No. 580 of 1987.

( 2 ) THE suit was filed by Ram Sahan Rai for a declaration that the order of his removal from service dated 15-4-1987, which was served on him on 16-4-1987, was illegal, arbitrary and without jurisdiction. He had prayed for a declaration that he was continuing in service and for a direction that the defendant or his agent or servant may recognise the plaintiffs status and as such afford him the consequential benefits,

( 3 ) IN terms of the plaint, defendant No- 2 was the District Co-operative Bank represented by the Sachiv Samanya Prabandhak (Secretary / General Manager ). The plaintiff was initially appoimed as a clerk under defendant No. 2 and was posted on 11. 5. 1972 in the Accounts Section of the Bank. The plaint indicates that he worked as clerk in the Bank and had been on leave on medical grounds on different dates and had made over charge to one Virendra Nath under the direction of the Secretary of the Bank. It was stated that one Shri N. P. Pandey was the acting Secretary in the absence of the regular secretary and although Sri Pandey was not competent to record an order, he issued latter No. 1525/5 Anu-March 86-87 dated 15-4-1987 designating the plaintiff as a Clerk/cashier and accused him of absence from 11-10-1985. The notice charged him of misconduct of serious nature for illegally absconding from duties. This order was stated to have been passed without jurisdiction beyond rules 62-66 (3) (Kha) and 85 (2) (kha ). The notice indicates that he was found guilty of breach of Rule 84 (6) and he was removed from service which was a major penalty. The plaintiff was not paid his salary from 21-7-1985 to the date of alleged order of removal at the rate of Rs. 1,500/- per month. The plaintiff, due to paucity of fund, reserved his right to suo for the arrears of pay and only sued for a declaration that the removal order was illegal. For the purposes of Court fee the valuation of the suit was estimated at Rs. 300/- only.

( 4 ) THE suit was contested by respondent No. 2. The relevant averment were decided. It was, however, stated that a case of misconduct of serious nature was rightly proved against the plaintiff. It was further stated that there was no cause of action. He was appointed only on a temporary basis. He remained absent and never made over charge to Virendra Nath Rai. He absented himself without leave and did not made over charge inspite of notice. He did not report to duties inspile of demand and the Bank had to serve notice by publication in the newspaper. Even inspile of that he did not give any defence and ultimately the impugned action was taken against him.

( 5 ) THE suit was dismissed ex pane and the aforesaid civil appeal was filed. Coincidentally, the appeal too was taken up ex parte. However, this lime it was allowed in favour of the plaintiff which gave rise to the present second appeal.

( 6 ) LEARNED Counsels were heard on the point of admission ilself and the question on which they had advanced their arguments are as follows :1. Whether the lower appellate Court has correctly interpreted Regulations 62, 65 (iii) (c) and 85 (e) of the U. P. Co-operative Societies Service regulation, 1975 ?2. Whether the judgment and decree of the lower appellate Court are nullity as the same have been passed with out framing issues ?3. Whether the judgment and decree of the lower appellate Court are vitiated in law as the same are passed on misreading and misconstruing the averments in the written statement ?4. Whether the lower appellate Court was right in passing a decree for declaration and injunction in case of contract of pe