AGARWALA, J. :- This is a plaintiffs appeal arising out of a suit for a declaration that the plaintiffs removal from service was unjustified, illegal and wrongful and that he should be deemed to be continuing in service and further that a decree for Rs. 4,725/-as compensation for the period the plaintiff was illegally deprived to serve the Government be passed in favour of the plaintiff-appellant. The facts giving rise to the suit are as follows :

2. The appellant Dr. Ishwar Narain Sinha was appointed as a temporary Assistant Medical officer of what was formerly known as O. T. Railway in the year 1945. He was admittedly appointed by the Principal Medical Officer of that Railway and was at first posted to Gorakhpur and then transferred to Samastipur Railway Hospital. He was confirmed on the 21st February 1946.

The letter of confirmation addressed to him was on behalf of the Chief Medical Officer. There is a little dispute as to who in law would be deemed to have confirmed the appellant as the direction to the Chief Medical Officer to issue the letter of confirmation was given by the General Manager and it is the appellants case that he should be deemed to have been in fact confirmed by the General Manager and therefore appointed by the General Manager and not by the Chief Medical Officer.

3. On the 9th August, 1949, Dr. Sinha examined the eye sight of one Ram Lakhan. He found him fit for Class A-1 service. This Ram Lakhan was a driver and on the appellants aforesaid report he was allowed to continue in service as a driver.

4. About a year later the Chief Medical Officer happened to examine Ram Lakhan and he found that he had no vision in the left eye and even in the right eye his vision was so defective that he could not have been found fit for A-1 service. Thereupon under orders of the Chief Medical Officer the appellant was asked to explain the discrepancy between the findings of the appellant and the findings of the Chief Medical Officer.

It was added that the cause of Ram Lakhans visual defect was not likely to have developed since his examination by the appellant.

5. The appellant submitted his explanation and stated that the discrepancy might be due to any of the three under-noted factors :

(1) Impersonation.

(2) Helping hand of the peon present to cover at the time of testing sight,

and

(3) Accidental effects natural or unnatural after examination of sight by him. He also wanted to be furnished with some particulars including the date of birth of Ram Lakhan driver, the date of the cataract operation in Ram Lakhans eye, date of subsequent examinations after operation, whether the operated eyes of Ram Lakhan were detectible at a glance or on close examination, and whether the signature of Ram Lakhan agreed with that present on the counterfoils of the certificate issued to him on each occasion he appeared for medical tests after the cataract operation.

6. Thereafter the Chief Medical Officer served the appellant with a charge-sheet, the charge being"gross neglect of duty likely to result in loss to the Railway Administration and danger to the lives of persons using the Railway."

The facts and circumstances upon which this charge was framed were mentioned as below :

"You examined Driver Ram Lakhan I of Sonepur Shed on 20th August 1949 and according to the findings recorded by you on the obverse of form G. 103 No. 23 M/49/47, dated 19-8-49 you declared him fit for A-1 with glasses whereas he was actually fit then for class C-2 only, it having been established that in 1947 he had undergone an operation in the right eye for cataract which rendered him unfit for any class above C-2 according to rules in force."

In this charge sheet which was in compliance with rule No. 1708 of General Managers circular No. 1 of 1946 (Rules regulating Discipline and Right of Appeal of Non-gazetted Railway Servants), a written explanation was asked for to be submitted within three days of the receipt of the charge. It was further provided :

"This charg