Hon’ble Harsh Kumar, J.—This second appeal has been filed by the Union of India through General Manager, North Eastern Railway, Gorakhpur against the judgement and decree passed by IXth Additional District Judge, Gorakhpur in Civil Appeal No. 78 of 1991, arising out of original suit No. 214 of 1983 Ram Narayan Prasad v. Union of India.

2. The brief facts relating to the case as mentioned in plaint are, that plaintiff, a constable in Railway Protection Force, hereinafter mentioned as R.P.F., fell ill on 18.7.1975 whereafter he left for his home town and was under treatment in Deoria for a period from 5.11.75 to 5.6.76; that the plaintiff returned to his duty on 19.6.76 with medical certificate, upon which he was permitted to join on 23.6.76; that Departmental enquiry was initiated against the plaintiff, who was served with the charge-sheet for dereliction in duties and unauthorized absence from duty for a period of 19.7.75 to 7.6.76 and on completion of enquiry was punished with the removal from service.

3. In Civil Suit filed by plaintiff/respondent a decree for declaration was sought with the prayer that “it be declared that order No. E/P.R.O.-1476 dated 15.1.1977 passed by Assistant Security Officer, the order of the Assistant Security Officer, Varanasi communicated vide A.S.O. Gorakhpur No. E.PRO-1476/633 dated 13/15.9.1978 and the order dated 24.6.81 passed by the Chief Security Officer, Gorakhpur are illegal, unconstitutional and against law rules and principles of natural justice and the same is not binding upon the plaintiff and he is continuing in service”. The defendant/appellant filed a written statement denying the allegations made in plaint and pleaded that the suit is not maintainable and is liable to be dismissed with costs.

4. Upon parties pleadings, the trial Court framed as many as 8 issues out of which issue No. 3 was framed regarding maintainability of suit and issue No. 1 was framed with regard to validity of orders dated 15.1.77, 13.9.78 and 24.6.81.

5. After recording the evidence of both the parties and analysing the evidence on record, the trial Court upholding the validity of the above three orders dated dated 15.1.77, 13.9.78 and 24.6.1981 decided issue No. 1 against the plaintiff and holding that the suit is not maintainable decided, the issue No. 3 in favour of the defendant and dismissed the suit with costs.

6. Feeling aggrieved, the plaintiff filed Civil Appeal No. 78 of 1991 under Section 96 of C.P.C. before the District Judge, Gorakhpur, which was transferred to and was decided by IXth Additional District Judge, Gorakhpur allowing the appeal and decreeing the suit. In the impugned judgement and decree the lower appellate Court confirmed the findings of the trial Court on all points except one and holding that the grant of leave without pay to the plaintiff/respondent by the defendant/appellant, amounts to condoning the alleged misconduct of plaintiff, (of his remaining absent from duty without notice) and so further punishment of removal from service, for the same misconduct, which was condoned is not permissible under law.

7. Feeling aggrieved, the defendant/appellant has come before this Court in Second Appeal challenging the above findings of First Appellate Court.

8. Following 3 substantial questions of law were framed in the appeal, question No. 1 on 26.8.2014 and questions No. 2 and 3 on 18.5.2016.

(1) Whether the unauthorised absence from duty of a enrolled number of Disciplined Armed Forces is amount to misconduct under the R.P.F. Act 1957 and punishment of removal is justified under Rule 156(b) III, of the R.P.R., Rules, 1987?

(2) Whether the plaintiff-respondent was not allowed pay for the unauthorised period of absence from 19.7.1975 to 7.6.1976 on the basis of principle of ‘no work no pay’, it was open for the lower appellate Court to treat the same as sanctioned leave by the competent authority without pay? If so its effect?

(3) Whether the suit is hit by the provisions of S