JUDGMENT :

VIVEK CHAUDHARY, J.

1. By the present second appeal, the appellant is challenging the judgment and order dated 07.12.1990 passed by the learned Additional District Judge, Gorakhpur in Civil Appeal No. 30 of 1989 (Ramdhani Prasad and Others vs. Union of India and Others).

2. Brief facts of the case are that the respondent in this second appeal was appointed to the post of ‘Rakshak’ in Railway Police Force by the order dated 04.12.1979, under the warrant of the Chief Security Officer. The respondent was thereafter suspended by an order dated 15.11.1982, signed by Assistant Commandant No. 7 Battalion, Railway Protection Special Force, Lumding-Assam, without serving him any charge-sheet. During the suspension, the respondent shifted to his village where he fell ill and had to be admitted to the Railway Hospital, Gorakhpur from 29.12.1982 to 07.03.1983. In the meantime, a departmental enquiry was initiated against the respondent in his absence on 01.01.1983. On 26.02.1983 a show cause notice was sent to the respondent which returned as un-served due to unavailability of the receiver. On 18.03.1983, the Adjutant/Assistant Commandant, Railway Protection Special Force, Lumding-Assam passed an order of removal of respondent from service. When respondent came to know about his removal order, he appealed it before the Commandent, Railway Protection Special Force, Lumding-Assam, which was dismissed on 07.11.1984.

3. Against the said orders, the respondent filed the original suit bearing No. 2662 of 1986 (Ramdhani vs. Union of India and two others) seeking relief that the order dated 18.03.1983 passed by the Adjutant, Railway Protection Special Force, Lumding-Assam and order dated 07.11.1984 passed by Assistant Commandant, Railway Protection Special Force, Lumding-Assam be set aside and he be declared a member of the Railway Protection Special Force. The suit by the plaintiff-respondent was dismissed. Against the judgment of the Trial Court, the plaintiff-respondent filed an appeal which is decided in his favour. Aggrieved by the order of the first Appellate Court, the defendants have filed this second appeal.

4. Learned Counsel for the defendant-appellant assails the judgment of the First Appellate Court on the ground that the Appellate Court was wrong in holding that the respondent could not be removed by the Assistant Commandant/Assistant Security Officer as the plaintiff-respondent is appointed by the order of Chief Security Officer. He supports the finding of the Trial Court that the respondent was appointed by the order of the Assistant Commandant and therefore he could be removed by the Assistant Commandant/Assistant Security Officer.

5. Heard Counsel for the parties and pursued the record with their assistance.

6. In this second appeal following substantial question of law is framed-“Whether Assistant Security Officer/Assistant Commandant/Adjutant has power to pass an order of removal from the service against the plaintiff-respondent who was appointed on the post of ‘Rakshak’ by the order of the Chief Security Officer?”

7. Counsel for the defendant-appellant contends that the Trial Court has given a finding that the plaintiff-respondent was appointed by the Assistant Commandant/Assistant Security Officer and therefore Assistant Security Officer is empowered to pass an order of dismissal however, the First Appellate Court has wrongly reversed it. A perusal of the case records shows that the Appellate Court has reversed the said finding of the Trail Court by referring to Paper No. 65 Ka, the appointment letter of the plaintiff-respondent issued by the Chief Security Officer. Paper No. 26 Ga, which is held as the appointment letter by the learned Trial Court is in-fact a posting letter issued by the Assistant Commandant for posting of the plaintiff-respondent after the completion of his training. Learned Counsel for the appella