# Union of India & Ors v. Ramdhani Prasad

- **Citation:** (2023) 1 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Second Appeal No. 676 of 1991
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-ramdhani-prasad-49569
- **Pages:** 6

## Headnote

Civil Law- Civil Procedure Code, 1908 -
Section 100 - Railway Protection Force
Act, 1886 - Sections 6, 9 & 9(21)(i) -
Railway Protection Force Rules, 1886 -
Rules 20 & 43 - Constitution of India,
1950 - Articles 311 & 311(1): - Service -
Removal - Original suit, challenging the order of
removal - dismissal of suit - Civil Appeal - first
appellate court reverse the judgment of Trial
Court - Second Appeal - Substantial question of
Law - 'Whether ASO/Adjutant has power to pass
an order of removal from the services against
the plaintiff-respondent who was appointed on
the post of Rakshak by the order of CSO' - court
finds that, in present case dismissing officer is
different but is junior/subordinate to the
appointing authority, this does not satisfy the
protection afforded to an employee under Article
311 of the Constitution of India - Held, since the
appellant was appointed by the Chief Security
Officer and has been removed from service by
an officer who was subordinate in rank to the
Chief Security Officer on the date of appellant's
appointment - it must be held that Assistant
Security Officer/Adjutant had no power to
remove the appellant from service - Second
appeal dismissed.(Para - 6, 10, 12, 14)

Second Appeal Allowed. (E-11)

List of Cases cited:

## Text

1 All. Union of India & Ors. Vs. Ramdhani Prasad
1099
the suit. In fact, issues on the merits of a
party's case may not at all be gone into if the
Civil Court thinks that the suit is not
cognizable by it, but by the Revenue Court in
view of the provisions of Section 331 of the
Act. There is a provision under the Code of
Civil Procedure entitling the Court, in case it
comes to the conclusion that the suit is not
cognizable by it but another Court, to direct a
return of the plaint under Order VII Rule 10
of the Code.

58. Substantial Question of Law No. 2
is, therefore, answered in the affirmative and
it is held that in a case where the Civil Court
finds that the suit is not cognizable by it but
the Revenue Court, the appropriate order to
make is to direct a return of the plaint and not
dismissal of the suit.

59. In the result, this appeal succeeds
and is allowed in part. The decree passed by
the Lower Appellate Court is set aside and an
order made directing the Trial Court to return
the plaint to the plaintiff for presentation to
the Court of competent jurisdiction. Costs
easy.
----------
(2023) 1 ILRA 1099
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Second Appeal No. 676 of 1991

Union of India & Ors. ...Appellants
Versus
Ramdhani Prasad ...Respondent

Counsel for the Appellants:
Sri Amresh Singh, Sri Arvind Kumar Goswami,
Sri Lalji Sinha, Sri Sidheshwari Prasad, Sri Tarun
Verma, Sri Vivek Kumar Rai, Sri Swaraj Prakash

Counsel for the Respondents:
Sri Malik Syed Uddin, Sri R.K. Shahi, Sri S.K. Om

Civil Law- Civil Procedure Code, 1908 -
Section 100 - Railway Protection Force
Act, 1886 - Sections 6, 9 & 9(21)(i) -
Railway Protection Force Rules, 1886 -
Rules 20 & 43 - Constitution of India,
1950 - Articles 311 & 311(1): - Service -
Removal - Original suit, challenging the order of
removal - dismissal of suit - Civil Appeal - first
appellate court reverse the judgment of Trial
Court - Second Appeal - Substantial question of
Law - 'Whether ASO/Adjutant has power to pass
an order of removal from the services against
the plaintiff-respondent who was appointed on
the post of Rakshak by the order of CSO' - court
finds that, in present case dismissing officer is
different but is junior/subordinate to the
appointing authority, this does not satisfy the
protection afforded to an employee under Article
311 of the Constitution of India - Held, since the
appellant was appointed by the Chief Security
Officer and has been removed from service by
an officer who was subordinate in rank to the
Chief Security Officer on the date of appellant's
appointment - it must be held that Assistant
Security Officer/Adjutant had no power to
remove the appellant from service - Second
appeal dismissed.(Para - 6, 10, 12, 14)

Second Appeal Allowed. (E-11)

List of Cases cited:

1. U.O.I. & anr. Vs Chandra Pal Pandey, AIR
1993 SC 205,

2. Krishna Kumar Vs Divisional Assistant Electric
Engineer & ors., (1979) 4 SCC 289,

(Delivered by Hon'ble 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).
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

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 chargesheet.
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 unserved 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 defendantappellant 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
1 All. Union of India & Ors. Vs. Ramdhani Prasad
1101
appointment
letter
of
the
plaintiffrespondent issued by the Chief Security
Officer. Paper No. 26 Ga, which is held as
the appointment letter by the learned Trial
Court is infact a posting letter issued by the
Assistant Commandant for posting of the
plaintiff-respondent after the completion of
his training. Learned Counsel for the
appellant could not dispute the said
documents.

8. Counsel for the defendant-appellant
has placed before this court Rule 20 and
Schedule 1 of the Railway Protection
Force Rules, 1959 (hereinafter referred as
"the Rules, 1959"), which provides the
appointing
authority
for
different
member/cadre of the Railway Protection
Force. It reads,

"20. Powers of appointment.- The
powers of superior officers to appoint
members of the Force shall be as specified
in Schedule I."

Schedule I

(Rule 20)

Powers of Superior Officers to make
appointments to the Force

Chief
Security
Officer
Security
Officer
Assistant
Security
Officer
All Members of
the Force
SubInspectors,
Assistant
Sub-
Inspectors,
Head
Rakshaks,S
enior
Rakshaks,R
akshaks

Senior
Rakshaks,
Rakshaks

Learned counsel for the appellant
submits
that
Assistant
Security
Officer/Adjutant is also empowered under
the Rules, 1959 to appoint a Rakshak in the
Railway Protection Force. He further relies
on Rule 43 and Schedule II of the Rules,
1959 which provide for the disciplinary
authority empowered to impose penalty and
pass disciplinary orders for specific cadre
of members of the Railway Protection
Force. Rule 43 and relevant portion of the
Schedule II reads,

"43
Disciplinary Authority.-
The
disciplinary authority in respect of a
member of the Force for the purpose of
imposing any particular penalty or the
passing of any disciplinary order shall be
the authority specified in this behalf in
Schedule II in whose administrative control
the member is serving and shall include
any authority superior to such authority."

Schedule II

(See rules 40 and 43)
Schedule of disciplinary authorities and
their powers to pass different disciplinary
orders in respect of different classes and
grades and ranks of members of the
Force.

Sl.
No
Nature
of
Discipli
nary
Order
Inspect
orGeneral
Chie
f
Secu
rity
Offi
cer
Secu
rity
Offi
cer
Assist
ant
Securi
ty
Office
r
1.
Suspen
sion
All
Membe
rs of the
Force

All
Me
mber
s of
the
Forc
e
All
Memb
ers of
the
Force
of and
below
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Class
of
SubInspec
tors
2.
(a)Dis
missal
Do.
Do.
All
mem
bers
of
the
Forc
e
exce
pt
Insp
ector
s
and
SubInsp
ector
s.
No
power
s.

(b)
Remov
al
Do.
Do.
Do.
Senior
Raksh
aks
and
Raksh
aks.

Learned counsel for the appellant further
submits that by joint reading of Rules 20 and 43
along with the Schedules I and II, it is clear that
a Rakshak of Railway Police Force can be
removed
by
an
Assistant
Security
Officer/Adjutant even if the Rakshak was
appointed under the hand and seal of a Chief
Security Officer. He also relies upon the
judgment of the Supreme Court in the case of
Union of India and another vs. Chandra Pal
Pandey;AIR 1993 SC 205.

9. Counsel for the plaintiff-respondent
supports
the
judgment
of
the
First
Appellate Court. He argues that it is a
settled law that order of dismissal/removal
can only be passed by an authority
equivalent to or superior to the appointing
authority. Assistant Security Officer being
subordinate to the Chief Security Officer
can not pass an order of removal of the
plaintiff-respondent. He relies upon the
judgment of the Supreme Court in the case
of
Krishna
Kumar
vs.
Divisional
Assistant Electric Engineer and Others;
(1979) 4 SCC 289.

10. Contention of the counsel for the
appellant that the Assistant Security Officer
is empowered to appoint a Rakshak,
therefore, he can also pass an order for
removal of any Rakshak does not paint a
complete picture. No doubt an Assistant
Security Officer can remove a Rakshak
from service but it has to be first seen who
was the appointing authority of such a
Rakshak.
Protection
afforded
to
an
employee
by Article
311(1)
of
the
Constitution provides that an order of
removal/dismissal from service can only be
passed by the appointing authority or any
other authority senior to the appointing
authority. In the present case the plaintiffrespondent was appointed by the Chief
Security Officer and removed by the
Assistant
Security
Officer,
who
is
subordinate to the Chief Security Officer in
the hierarchy of the Railway Police Force,
this does not satisfy the protection afforded
to an employee by the Article 311 of the
Indian Constitution.

11. The judgment of the Supreme
Court in Chandra Pal Pandey (supra)
relied upon by the counsel for the appellant
is distinguishable from the facts of the
present case. In that case, the primary issue
was, whether the Chief Security Officer
alone was empowered to appoint Rakshaks
1 All. Union of India & Ors. Vs. Ramdhani Prasad
1103
and therefore any appointment of Rakshak
under the hand and seal of Assistant
Security Officer was illegal. Relevant
paragraph 14,15,16 and 19 of the aforesaid
judgment reads as under,

"14. A bare reading of the Act,
particularly Section 6, will show that the
Act contemplates that the "appointment of
members of the Force shall rest with the
Chief Security Officer" who is supposed to
exercise powers in accordance with the
Rules made under the Act. The proviso to
Section 6 contemplates other authorities
being
authorised
for
making
the
appointment as may be delegated to such
officers by the Chief Security Officer.
Therefore, there can be no doubt that the
Act contemplates appointment of members
of the Force not only by the Chief Security
Officer but also by others. The question,
therefore, arises is what is the meaning of
the expression "appointment of members of
the Force shall rest with the Chief Security
Officer"? The expression "rest" in this
Section conveys the idea of overall control
of appointment resting with the Chief
Security Officer subject to the provisions of
the Rules. As we have stated earlier Section
6 of the Act contemplates appointment of
the members of the Force by such
authorities as may be authorised. The
proviso
to
Section
6
contemplates
specifically written order of delegation by
the Chief Security Officer but this does not
derogate from the power of the rule-making
authority to confer the said power. The
Section and the proviso in our opinion do
not rest the power of appointment merely
with the Chief Security Officer. What is
contemplated is that the Chief Security
Officer will have overall control in the
matter of appointment and that control be
exercised in accordance with the Rules. If
the Rules provide for appointment by other
superior officers, it cannot be said to be in
derogation of the Act or the purposes of the
Act.

15. A bare reading of Section 9 of the
Act also shows that it is only subject to the
provisions of Article 311 of the Constitution
and
to
such
rules
as
the
Central
Government may make under the Act, that
any superior officer could exercise the
powers mentioned in Section 9(1)(i) of the
Act. If only the Chief Security Officer, who
is one of the superior officers, alone has the
powers of dismissal on the hypothesis that
he alone was competent to appoint
members of the Force then Section 9 of the
Act would not have been worded in the
manner it has been so enacted.

16. It is clear from Section 21 of the
Act that the power of the Central
Government for making the Rules is for
carrying out the purposes of the Act. One of
the purposes of the Act surely is recruitment
of members of the Force and, therefore, the
Rules could provide for the appointing
authority so long as it is not in derogation
of the express provisions of the Act. Section
6 does not contemplate that the order of
appointment cannot be made by any other
person other than the Chief Security
Officer.

19. In this view of the matter we are of the
view that since both the contesting
respondents in the aforesaid two cases were
appointed by the Assistant Security Officer
who
could
also
remove
them
and,
therefore, their dismissal has not been in
violation of Article 311 of the Constitution
of India or the Act.

In Chandra Pal Pandey (Supra), the
Rakshak whose service was dismissed by
the Assistant Security Officer was also
appointed by the Assistant Security Officer
and therefore his dismissal was ordered by
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
the appointing authority. Unlike in the
present case where not only the dismissing
officer is different but is junior/subordinate
to the appointing authority.

12. Furthermore, even if the power of
appointment is later extended to subordinate
officers, the constitutional protection to an
employee under Article 311 was operational
right from the date of his appointment. For
finding out the appropriate authority eligible
to pass an order of removal/dismissal, the
state of affairs as they existed on the date of
appointment are relevant. The law in this
regard is settled by the Supreme Court in
Krishna Kumar (supra), in paragraph 6 and
7 it has been held as under,

"6. Besides, delegation of the power to
make a particular appointment does not
enhance or improve the hierarchical status of
the delegate. An Officer subordinate to
another will not become his equal in rank by
reason of his coming to possess some of the
powers of that another. The Divisional
Engineer, in other words, does not cease to be
subordinate in rank to the Chief Electrical
Engineer merely because the latter's power to
make appointments to certain posts has been
delegated to him.

7.
Since
the
appellant
was
appointed by the Chief Electrical Engineer
and has been removed from service by an
order passed by Respondent 1 who, at any
rate, was subordinate in rank to the Chief
Electrical Engineer on the date of appellant's
appointment, it must be held that Respondent
1 had no power to remove the appellant from
service. The order of removal is in patent
violation of the provisions of Article 311(1) of
the Constitution."

13. First Appellate Court was right in
allowing the appeal of plaitiff-respondent.
In its judgment, the First Appellate Court
has rightly applied the protection extended
to an employee inherent in Article 311(1)
and reversed the judgment of the Trial
Court.

14. In light of the above observation
this second appeal is dismissed. Judgment
dated 07.12.1990 by the First Appellate
Court is affirmed.
----------
(2023) 1 ILRA 1104
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 732 of 2016

Ureha ...Appellant
Versus
Bharose & Anr. ...Respondents

Counsel for the Appellant:
Sri Anand Kumar Srivastava

Counsel for the Respondents:
--

Civil Law- Civil Procedure Code, 1908 -
Section 100 - Order 41 Rule 11, 31 - UP
Zamindari
Abolition and
Land
Reforms
Act,1950 - Section - 331: - Plaintiff's Second
Appeal - challenging the Judgment & decree passed
by court below respectively - Suit for permanent
injunction and cancellation of Sale deed - both are
rejected by court below - while examine the
substantial question of law, court finds - on the date
of institution of Civil Suit, neither the name of
plaintiff-appellant was recorded in the revenue
records nor they have possession over the said
property in question - as such, Suit in question is
barred by section 331 of CPC - hence, plaintiffappellant cannot maintain a Civil Suit rather plaintiff
can avail the remedy of Revenue Court for
declaration of their rights and title - second appeal
lacks merit and is dismissed under Order 41 Rules
11 of CPC. Para - 12, 16, 18)