Union of India v. Sri Pauhari Saran Misra — 1973 DIGILAW 88 (ALL)

JUDGMENT K.B. Asthana, J. - The plaintiff respondent Pauhari Saran Misra was at the material time permanently employed as a clerk in the Accounts Department of the office of the General Manager. North Eastern Railway at Gorakhpur. The plaintiff worked under the control and supervision of the Financial Adviser & Chief Accounts Officer (F. A. & C. A. O.). It appears that on 18-9-1958 some incident happened during the office hours as a sequal to which Sri. M. D. Gupta. Junior Sub-head in the office made a complaint against the plaintiff. On the following day that is 19-9-1958 the plaintiff was called by Sri K. N. Joshi. Accounts Officer and interrogated. A charge-sheet dated 22-9-1958 was then served on the plaintiff containing six head of charges and he was asked to submit his explanation. The plaintiff was also suspended by the order of even date pending enquiry into his conduct. The plaintiff submitted his written explanation but the F. A. & C. A. O. not being satisfied directed that a departmental enquiry be held. Sri N. R. Banerji was appointed as the Enquiry Officer. Sri Banerji held that enquiry from 1-12-1958 to 6-12-1958. Witnesses to prove the charges were examined and cross-examined. The plaintiff produced some defence witnesses who were examined. The plaintiff himself gave a statement and was cross-examined. The Enquiry Officer on a consideration of the evidence on record and relying upon the report of Sri Joshi as also the confidential file of the plaintiff, held that all charges were proved and the plaintiff was guilty. The plaintiff was then served with a notice dated 30-1-1959 to show cause why he should not be removed from service. The plaintiff then submitted a detailed explanation dated 2-3-1959. By an order dated 22-7-1959 under the signature of some officer for the F. A. & C. A. O. the plaintiff was removed from service. A departmental appeal by the plaintiff to the General Manager proved abortive. The plaintiff thereupon served a notice under Section 80 of the C. P. Code on the Union of India through the General Manager. N. E. Railway. The plaintiff then instituted the suit in forma pauperis. The Union of India through its General Manager. N. E. Railway was impleaded as a defendant. 2. The plaintiff thereupon served a notice under Section 80 of the C. P. Code on the Union of India through the General Manager. N. E. Railway. The plaintiff then instituted the suit in forma pauperis. The Union of India through its General Manager. N. E. Railway was impleaded as a defendant. 2. In his plaint the plaintiff challenged the legality and the propriety of the order on a number of grounds detailed more particularly in paragraph 7 of the plaintiff. The first relief sought was for a declaration that the plaintiff's removal from service of the Railway was illegal and that he was still an employee of the said Railway and the defendant be ordered to reinstate the plaintiff. The second relief claimed was that the defendant be ordered to pay to the plaintiff Rs. 5284.25 paisa towards his past salary and allowances. The third relief claimed was that the defendant be ordered to pay to the plaintiff at the rate of Rs. 176.20 Paisa Per month from the date of the suit up to the date of the reinstatement. The fourth relief was that the defendant be ordered to pay a sum of Rs. 2000/- as damages for his having not been permitted to appear at the departmental examination of November 1958. 3. The suit was contested on be half of the Union of India. In a written statement filed by the Deputy Chief Personnel Officer. N. E. Railway all the material allegations in the plaint questioning the propriety and legality of the order of removal were traversed. The usual plea that the notice under Section 80 of the C. P. Code was invalid was also taken. 4. The suit was tried by the Civil Judge. Gorakhpur who by his Judgment dated 18-3-1963 decreed the plaintiff's suit for the declaration sought and for recovery of Rs. 5284.25 P. as past salary and allowances. The suit for the other reliefs claimed was dismissed. From the decree of trial Court the defendant filed an appeal and the plaintiff filed a cross objection. The Additional District Judge dismissed the defendant's appeal and partly allowed the plaintiff's cross objection. Now the defendant has come up in second appeal. 5. Sri D. Sanyal, learned counsel appearing for the Union of India the appellant at the outset raised a new point. The Additional District Judge dismissed the defendant's appeal and partly allowed the plaintiff's cross objection. Now the defendant has come up in second appeal. 5. Sri D. Sanyal, learned counsel appearing for the Union of India the appellant at the outset raised a new point. He contended that the suit of the plaintiff was not maintainable as he did not seek any relief against the appellate order into which the order of the punishing authority had merged and he was not entitled to any relief. Sri Chand Kishore, learned counsel appearing for the plaintiff respondent submitted in reply that the appellate order being one of dismissal of appeal no question of merger of the original order of punishment arose and the plaintiff was entitled to seek a relief from the civil court for setting aside of the order of punishment without seeking any specific relief against the appellate order but at the same time Sri Chand Kishore sought permission of the Court to amend the plaint. An application for amendment of the plaint then was filed for adding a paragraph 7-DD to the plaint to the following effect: "The statement in the appellate order Passed by the General Manager, North Eastern Railway. Gorakhour dated 20-4-1960 that the plaintiff had been removed from service only on account of charge No. 5 of the charge-sheet dated 23-9-1958 is incorrect. The plaintiff was given the second show cause notice and was required to show cause against all the six charges and he has been removed from service on the finding that all the six charges stood Proved against him. Numerous documents and the report of the Fact Finding Committee has been relied upon in passing the impugned order of removal copies of which were not given to the plaintiff and as such on this ground alone the order of removal and that passed in appeal dated 20-4-1960 is clearly illegal." 6. The other amendment prayed was in clause (Al) of the relief by adding the words "and the order of General Manager, N. E. Railway Gorakhpur dated 20-4-1960 passed in appeal." 7. On behalf of the defendant appellant Sri Sanyal filed an objection to the application. The other amendment prayed was in clause (Al) of the relief by adding the words "and the order of General Manager, N. E. Railway Gorakhpur dated 20-4-1960 passed in appeal." 7. On behalf of the defendant appellant Sri Sanyal filed an objection to the application. On 4-10-1972 I heard at length the learned counsel for the parties on the application for amendment and for the reasons recorded in the detailed order on the back of the Implication allowed the amendments to be incorporated in the plaint and gave opportunity to the defendant to file an additional written statement which was filed. In substance in the additional written statement it was pleaded that the punishing authority was fully justified in coining to the conclusion that even though it had issued notice to the plaintiff to show cause against findings on all the charges still it was fully justified in coming to the conclusion that only one of the charges, namely, charge No. 5 had been proved and the order of punishment imposed by it was upheld on appeal by the General Manager. By another application under Order 41. Rule 27. C. P. Code, on behalf of the defendant appellant, true conies of certain notings made on the departmental file by the officers were sought to be filed as additional evidence. This application was not opposed on behalf of the plaintiff respondent and I allow the copy of the notings of Sri. D. C. Joshi dated 6-6-1959 and of Sri P N. Raina dated 6-7-1959 to be brought on record. Now as the case stands the plaintiff having challenged the validity of the appellate order and having sought relief against the said order the point raised by Sri D. Sanyal as regards the maintainability of the suit no longer survives. 8. It is not disputed before me by Sri D. Sanyal that concurrent findings recorded by the Courts below that the findings on charges numbers 1 to 4 and 6 were vitiated on account of principles of natural justice not having been followed at the enquiry, the plaintiff not having been supplied with copies of the documents used by the Enquiry Officer, is legally correct. He contended that the finding on charge No. 5 recorded by the lower appellate Court that it was vitiated is legally erroneous. 9. He contended that the finding on charge No. 5 recorded by the lower appellate Court that it was vitiated is legally erroneous. 9. In order to appreciate the arguments advanced at the bar in respect of charge No. 5 it will be necessary to detail the said charge which was as follows: "1. A fact finding enquiry in the case as a result of your misbehaviour was conducted by the Assistant Accounts Officer Sri K. N. Joshi, Gazetted Officer Incharge of your branch on 19-9-1958 and you attended the same but went away with his permission to take tea and to come back after that but you did not attend the fact finding enquiry thereafter. A memo was sent to you in the afternoon on the same day under the signature of your A. A. O. directing you to attend his room immediately to enable him to complete the enquiry one copy being sent to you direct and the other copy was sent through your superintendent, but you refused to receive the memo sent to you direct through Sri Jasai, peon and also refused to note the orders of the Superintendent on the memo sent through Sri. M. A. Ansari at about 15 hours same date. Thereupon another memo was sent to you asking you if it was a fact that you were not taking delivery of the aforesaid memo and were not attending the room of the AAO (Sri K.N. Joshi): alternatively you were ordered to attend his room to enable him to complete the enquiry which you had left in between. You neither received this memo nor appeared for the enquiry. You were again called on 20-9-1958 through Jasai peon but you again did not comply with the orders of the AAO. Thus you have disobeyed the order of AAO on a number of occasions". 10. The gravamen of the charge appears to be the utter disregard by the plaintiff of the order of the Assistant Accounts Officer. Sri K. N. Joshi to attend his office to complete the fact-finding enquiry. In his various explanations and also in his statement before the Enquiry Officer the plaintiff stated that he went to the office room of Sri K. N. Joshi in the forenoon of 19-9-1958 when called who interrogated him and recorded his statement. However when Sri Joshi asked him to sign the statement he enquired from Mr. In his various explanations and also in his statement before the Enquiry Officer the plaintiff stated that he went to the office room of Sri K. N. Joshi in the forenoon of 19-9-1958 when called who interrogated him and recorded his statement. However when Sri Joshi asked him to sign the statement he enquired from Mr. Joshi as to whether it was any formal enquiry into his conduct which was being held and when told that it was a formal enquiry he decided not to sign the statement as he had not come prepared for it for had he known that it was an enquiry being held in making the statement he would have given further details. Sri Joshi, however tried to force him to append his signature but some how with the permission of Sri Joshi he managed to leave the room and never went back in order to avoid an embarrassing situation, though repeatedly summoned. Sri Jasai, the poen, was also examined as a witness for the prosecution. It was elicited from him that Sri Joshi and the plaintiff were closeted together in the office room the doors of which were kept closed and when the plaintiff got out the witness was sent by Sri Joshi with a written memo to call him back but the plaintiff refused to accept the memo and the witness informed Sri Joshi accordingly. 11. There is no doubt that the above statement of the witness Jasai and of the plaintiff himself made before the Enquiry Officer would establish that the plaintiff disregarded the order of Sri K. N. Joshi a superior officer, to attend his office. The plaintiff also admitted the fact that the Superintendent of his office had also sent a note directing him to attend the office of Sri Joshi. The question then is whether the disregard of the order of Sri K. N. Joshi in the circumstances of the case will amount to serious misconduct. The learned counsel for the plaintiff respondent feebly argued that serious misconduct is not a ground mentioned for removal from service of a Railway servant in rule 1708 of the Indian Railway Establishment Code. Vol. The learned counsel for the plaintiff respondent feebly argued that serious misconduct is not a ground mentioned for removal from service of a Railway servant in rule 1708 of the Indian Railway Establishment Code. Vol. 1 (1951) but I do not find any tenability whatsoever, in this contention as a Railway servant could be removed from service on any of the grounds mentioned in rule 1706 of the Code on the basis of which he could be dismissed from service. Serious misconduct is one of the grounds on which a Railway servant was liable to be dismissed from service. Sub-rule (2) of Rule 1708 lays down that a Railway servant shall be liable to be removed from service for committing any offence for which he may be dismissed under rule 1706. Clearly serious misconduct is an offence for which a Railway servant may be dismissed under rule 1706. 12. The question still remains whether on the facts established the plaintiff could be held guilty of having committed serious misconduct. The plaintiff was charged for having committed serious misconduct. In the notice to show cause served upon him six circumstances were mentioned in support of that charge. The Enquiry Officer on charge No. 5 recorded his finding as follows: "In defying the order of the AAO to attend to his room and in refusing to accept the memo sent to him by the AAO Sri Misra acted clearly in an objectionable and in disciplined fashion." 13. The FA and CAO, the punishing authority recorded his final order as follows: "I have carefully studied the papers and find that this is a very bad case of indiscipline which deserves the extreme penalty. Considering his young age, however, I consider that removal from service will meet the end of justice." 14. It would be seen that neither the Enquiry Officer nor the punishing authority recorded in so many words that the plaintiff was guilty of charge of serious misconduct. It appears that the punishing authority having found that the plaintiff was guilty of charges I to 4 also that is, of having abused and assaulted in the office hours his sub-head Sri M. D. Gupta and then defied the summons of AAO. It appears that the punishing authority having found that the plaintiff was guilty of charges I to 4 also that is, of having abused and assaulted in the office hours his sub-head Sri M. D. Gupta and then defied the summons of AAO. a superior officer thus throttling the completion of fact-finding enquiry thought that cumulatively all what the plaintiff had done on the 18th and 19th of September 1958 in the office while on duty was objectionable amounted to an act of indiscipline, There is nothing to indicate in the order of the F. A. and C. A. O. the punishing authority that the conduct of the plaintiff in defying the summons of AAO alone made out a very bad case of indiscipline deserving of extreme penalty. The learned counsel for the defendant appellant relying upon the order of the appellate authority submitted that the punishing authority had awarded the punishment of removal from service only on proof of charge No. 5 and in any view of the matter it was always open to the appellate authority to uphold the order of punishing authority on the proof of charge No. 5 alone. The question then is whether the appellate authority had really and in fact upheld the punishment of removal on arriving at its own finding that charge No. 5 was established which made out the offence of serious misconduct? 15. It is unfortunate that the order passed by the appellate authority was not produced in evidence. The plaintiff exhibited a certified copy of the communication which he received from the Chief Personnel Officer dated 22-4-1960. This communication is reproduced below: "Reg. A.D. Office of the General Manager, N. E. (88) 19-203pt. II/5020 N.E. Railway Gorakhpur April 22, 1960. Shri Pauhari Sharan Misra, ex-Clerk, Accounts Department. Through FA and CAO/Gorakhpur. Ref: - Your appeal dated 20-8-1959 against the order of removal from service passed by FA and CAO The General Manager has carefully considered your appeal quoted above. After going through all relevant Papers, the General Manager has directed that you should be advised as below: "The order of removal from service passed against Shri Misra was in respect of item No. (v) of the charge-sheet No. P-28 GB dated 23-9-1958 and not in respect of the other items mentioned in the charge-sheet. After going through all relevant Papers, the General Manager has directed that you should be advised as below: "The order of removal from service passed against Shri Misra was in respect of item No. (v) of the charge-sheet No. P-28 GB dated 23-9-1958 and not in respect of the other items mentioned in the charge-sheet. In passing the order of removal from service on this charge only such evidence as was permissible under the rules was taken into account and the General Manager is satisfied that the orders of removal from service were fully justified and there is no reason to interfere with these orders". Sd/- Illegible For Chief Personnel Officer. Address: Village Bhaluhi P.O. Thurkdiha (Pipraich) Dist. Deoria." 16. I think the language of the advice tendered quoted in the said communication leaves no room for doubt that the appellate authority took the view that the order of removal from service passed against the plaintiff by the punishing authority was in respect of item No. 5 of the charge-sheet dated 23-9-1958 and not in respect of the other items mentioned in the charge-sheet. It is not possible, therefore, to agree with the submission of the learned counsel for the defendant appellant that it was the decision of the appellate authority itself that charge of serious misconduct was made out on proof of charge No. 5 even though the other charges may not have been established. An attempt was made by the learned counsel for the defendant appellant in this connection to bring to his aid the notings of two officers true copies of which have been filed as additional evidence. The first noting is that of Sri D. C. Joshi, Senior Accounts Officer, bearing date 6-6-1959. It is in the nature of a comment on the findings recorded by Sri Banerji, the Enquiry Officer. It shows that Sri Banerji had discussed the matter with some other officer who was of the opinion that the findings of the departmental enquiry were vitiated to the extent that the conclusions drawn were not entirely on the evidence produced before the enquiry committee but Sri Joshi himself commented that the charge No. 5 regarding disobedience of the orders of the AAO was proved and that alone was sufficient to warrant removal from service. It is significant that Sri Joshi did not say that disobedience of AAO's order amounted to serious misconduct. It is significant that Sri Joshi did not say that disobedience of AAO's order amounted to serious misconduct. The file then seems to have been placed before Sri P. N. Raina the Deputy Chief Accounts Officer who in his note dated 6-7-1959 opined that Sri Misra in the circumstances of the case be removed from service. Sri Raina again did not say that the plaintiff was guilty of serious misconduct. It was, however suggested on behalf of the defendant appellant that these notings were seen by the punishing authority when the file was finally placed before him, therefore, the order passed by the punishing authority would be one based on the proof of charge No. 3 alone and when the matter went up before the appellate authority who perused the whole file and it was right in holding that the plaintiff had been punished on proof of charge No. 5 alone and not on the basis of any other charges and since there was no defect in the procedure adopted in so far as charge No. 5 was concerned the upholding of the order of punishment was justified. Learned counsel for the defendant appellant was not able to satisfy me that the procedure for awarding punishment of removal provided by rule 1709 of the Railway Establishment Code contemplates conference by the Enquiry Officer with any other senior officer before recording his findings or notings by way of comments by other senior officers in the nature of advice to the punishing authority. The notings of Sri Joshi and Sri Raina ought, therefore, be ignored. If what the learned counsel for the defendant appellant submitted were true that the punishing authority actually was aware of the notings of Sri Joshi and Sri Raina then the final order passed by the punishing authority reproduced above on its own language will militate against the submission that the punishing authority isolated charge No. 5 and based the order of punishment on the proof thereof alone. To my mind there is no escape from the conclusion that the punishing authority based its order removing the plaintiff from service on the cumulative effect of the conduct of the plaintiff in the incidents of 18th and 19th of September 1958. The appellate authority, therefore as shown by Ext. To my mind there is no escape from the conclusion that the punishing authority based its order removing the plaintiff from service on the cumulative effect of the conduct of the plaintiff in the incidents of 18th and 19th of September 1958. The appellate authority, therefore as shown by Ext. 2 was in error in holding that the order of the punishing authority was based on the proof of charge No. 5 alone. I had afforded an opportunity to the learned counsel for the defendant appellant by adjourning the hearing for a month to enable him to produce the original order passed by the appellate authority but at the further hearing of the appeal the learned counsel expressed his inability to produce the original order of the appellate authority as it is said to be not traceable. 17. It appears to me that the appellate authority having been faced with the irregularities and illegalities committed by the Enquiry Officer in relying upon evidence furnished by the records maintained by Sri K. N. Joshi and the personal file of the plaintiff as also on the complaint made by Sri Mehrotra the copies of which the plaintiff was never given was advised to justify the punishment of removal on the basis that the punishing authority took into consideration charge No. 5 alone and not any other charge. Had the appellate authority been cognizant of its duties as given in Rule 1721 of the Establishment Code it would have perused the whole record and after eliminating charges 1 to 4 and No. 6 from consideration the findings on which were vitiated, would have applied its own mind to the merits of charge No. 5 and then recorded its conclusion that the facts proved amounted to serious misconduct deserving imposition of the Penalty of removal from service. This the appellate authority did not do. Its order as communicated in Ext. 2 shows that it did not amply its own mind as required by rule 1721 of the Establishment Code. The appellate order, therefore, is vitiated. 18. Reverting to the question whether the plaintiff was guilty of serious misconduct, I find it difficult on merit to hold that in the circumstances the disregard by the plaintiff of the memo of the AAO amounted to serious misconduct. The appellate order, therefore, is vitiated. 18. Reverting to the question whether the plaintiff was guilty of serious misconduct, I find it difficult on merit to hold that in the circumstances the disregard by the plaintiff of the memo of the AAO amounted to serious misconduct. Firstly, the AAO was not carrying on any departmental enquiry under the rules on 19-9-1958 and the plaintiff was under no duty to appear before the AAO for answering questions and for having his statement recorded: secondly, the plaintiff in fact responded to the call of the AAO and appeared before him for answering questions. As stated by the plaintiff which was not refuted at the departmental enquiry, he declined to sign the statement and came away after taking permission of the AAO. I have not been referred to any rule requiring the plaintiff to give a signed statement before the AAO at the informal enquiry held by him on the complaint of Sri N. D. Gupta the sub-head on 19-9-1958. According to the plaintiff whatever the AAO asked him he had answered and nothing else remained to be done except appending his signatures on the recorded answers at the insistence of the AAO for which there was no warrant. Could it be said that the plaintiff committed any breach of rules and thus defied the AAO when on 19-9-1958 he refused in the face of the AAO to give a signed statement? Had the plaintiff come away telling the AAO that he would not sign the statement nothing could have been done against him. If in the circumstances as prevailing he came away on a pretext and then never went back to sign the statement, should that make any difference? That plaintiff stated before the Enquiry Officer that to avoid embarrassment he did not go back. The proceedings of the Enquiry Officer have been exhibited and I do not find that Sri K. N. Joshi had been examined as a prosecution witness. The statement of the plaintiff made before the Enquiry Officer went unrefuted and so remained unrebutted all the statements of fact made by him in his previous explanation. The Enquiry Officer as his report shows himself did not apply his mind to all the aspects of the matter arising on the charge No. 3. He seems to have proceeded as if there was admission on the part of the plaintiff. The Enquiry Officer as his report shows himself did not apply his mind to all the aspects of the matter arising on the charge No. 3. He seems to have proceeded as if there was admission on the part of the plaintiff. Certainly the plaintiff admitted that he did not respond to the memo served upon him and even refused to accept it, but before that admission could be used against him it was the duty of the Enquiry Officer to have considered the other circumstances accompanying such conduct on the part of the plaintiff. Even if Enquiry Officer was remiss in his duty it was for the Punishing Authority to have considered the matter in all its aspects as was its duty under the rules. Unfortunately the order of the punishing authority is not a speaking order as it does not give the reasons for arriving at the conclusion that the penalty of removal from service was deserved by the plaintiff on the ground of serious misconduct. The order of the punishing authority does not even show that it was even cognisant that it had to give a finding that the plaintiff was guilty of serious misconduct for which he was charged. As pointed out above the Punishing authority has not even in so many words said in its order that the charge of serious misconduct was established against the plaintiff. It has been held in the 'State of Punjab v. Bakhtawar Singh ( AIR 1972 SC 2083 ) that the order of removal which amounts to punishment should be a speaking order and where the order does not disclose that the authority had applied its mind to the material on record it could I not be upheld. It was contended by the learned counsel for the appellant that this decision of the Supreme Court would not be of any benefit to the respondent as it did not deal with the case of a servant being removed from service but I do not think that would be a ground for distinguishing the case cited. The principle underlying the decision is equally applicable to the case of removal of servants. 19. The principle underlying the decision is equally applicable to the case of removal of servants. 19. It was then suggested by the learned counsel for the defendant appellant that no such plea having been raised in the plaint that the order of the punishing authority was not a speaking order and thus vitiated, the plaintiff respondent ought not to be heard for the first time in second appeal in attacking the order of punishment on that ground. No doubt in the plaint no specific plea has been raised assailing the validity of the order of punishment on any such ground but I think the pleas raised in paragraph 7 of the plaint covered the ground being canvassed now before me. It is well settled that the pleadings ought not to be interpreted and construed in a pedantic manner. There is thus no force in the contention that the point was being raised for the first time in second appeal. Moreover to my mind it is purely a question of law capable of being decided on the admitted or proved facts on record. The plea that the order of punishment was illegal and void and against the rules having been raised in the plaint it will always be open to the plaintiff to advance all legal grounds in support of that plea. 20. It was then contended for the defendant appellant that the Civil Court cannot go into the question whether the facts proved made out a case of serious misconduct as it was for the punishing authority and the other departmental authorities under the rules to consider that question and they having come to the conclusion that the plaintiff was guilty of serious acts of indiscipline deserving punishment of removal this Court cannot record its own findings that the proved facts do not establish serious misconduct. I am unable to accept this submission. A Railway servant can only be removed from service if he is found guilty of any of the grounds mentioned in rule 1708 of the Establishment Code. It is always open to the Railway servant to assail the order of punishment of removal before a Civil Court on the plea that none of the grounds on which he could be removed under the rules existed and the order of removal was thus void. It is always open to the Railway servant to assail the order of punishment of removal before a Civil Court on the plea that none of the grounds on which he could be removed under the rules existed and the order of removal was thus void. It would then be for the civil court to construe and interpret the relevant rule in order to find out its content and scope. I have repelled above the contention put forward on behalf of the plaintiff respondent that removal from service cannot take place on the basis of serious misconduct as it is not covered by rule 1708 of the Establishment Code. Since serious misconduct is a ground of dismissal under rule 1706 so it would also be a ground for removal under rule 1708. The next question will then arise as to what is the meaning and content of serious misconduct. I think it is a justiciable issue and it will always be open to the civil court to come to its own conclusion whether on the proved facts serious misconduct was established. If that power is not with the civil court, then a Railway servant cannot pet any relief from any arbitrary conclusion of the punishing authority. Even a most trivial disregard of an order of the superior officer could be held to establish serious misconduct by the punishing authority and the Railway servant would be remediless. I am not prepared to countenance such a position which will render the civil court completely ineffective in suits filed by the Railway servant, or for the matter of that by any public servant. Questioning the validity of punishment awarded to him in departmental disciplinary proceedings. 21. Lastly it was urged by the learned counsel for the defendant appellant that it was not open to the civil courts to grant a decree for declaration to the plaintiff if on facts it was established that the punishment of removal would be justified on even one charge sustainable in law against the plaintiff, no matter the findings on the other charges recorded by the punishing authority were not found sustainable in law. Reliance was placed on State of Orissa v. Bidvabhushan Mohapatra ( AIR 1963 SC 779 ) where it was-held that if the order of dismissal was based on a number of charges and if on some of the heads of charges it was found that the court could not interfere with the findings of the punishing authority and the servant was prima facie guilty on those findings, the court would not interfere and direct the punishing authority to reconsider the order of punishment in case the findings on other heads of charges were not found to be sustainable. The decision in this case was explained in a later case decided by the Supreme Court in the State of Maharashtra v. Babulal Kriparam Takkamore ( AIR 1967 SC 1335 ) in the following words:- "The principle underlying these decisions appears to be this. An administrative or quasi-judicial order based on several grounds all taken together cannot be sustained if it be found that some of the grounds are non-existent or irrelevant, and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the Court is 'satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of the irrelevant or non-existent grounds could not have affected the ultimate opinion or decision." 22. In my judgment the learned counsel for the plaintiff respondent is on strong grounds in submitting that on the facts established in the instant case there is nothing to indicate that the punishing authority would have awarded the punishment of removal from service on the basis of the proof of charge No. 5 alone. I have repelled above the contention of the defendant appellant that the punishing authority and as well as the appellate authority awarded the penalty of removal on proof of charge No. 5 alone. Apart from the fact that I have held that the order of the punishing authority not being a speaking order will be vitiated, assuming that it does not suffer from that vice it is an order which takes into consideration the cumulative effect of the findings on all the six charges. Apart from the fact that I have held that the order of the punishing authority not being a speaking order will be vitiated, assuming that it does not suffer from that vice it is an order which takes into consideration the cumulative effect of the findings on all the six charges. There is nothing to indicate therein that the finding on charge No. 5 alone in the opinion of the punishing authority will amount to an act of serious indiscipline. There is no doubt in my mind that the punishing authority in its final decision was affected by the fact that abusing the sub-head and assaulting him in office hours by the plaintiff was a serious act of indiscipline and that is why cumulatively it thought that the incidents which followed on the 19th of September 1958 added to that act of indiscipline showing the stubbornness and obduracy of the plaintiff, thereby adding fuel to the fire so to say. Had the punishing authority been conscious of the fact that the findings on charge Nos. 1 to 4 were not sustainable, it would not have regarded the conduct of the petitioner on 19th September, 1958 as a serious act of indiscipline, more so a serious misconduct for which the plaintiff was charged and ultimately punished. The appellate authority instead of applying its own mind and recording an independent finding misread and misinterpreted the order of the punishing authority as one solely based upon the finding on charge No. 5 and then rejected the appeal. There is thus nothing to indicate that the Punishing authority or the appellate authority on a consideration of the entire material on record while applying its judicial mind punished the plaintiff on proof of charge No. 5 alone or as a matter of law would have punished him on proof of charge No. 5 alone. I do not find that the punishing authority or the appellate authority even applied their mind to the question whether the finding on charge No. 5 amounted to serious misconduct. As observed above, they regarded it as an act of indiscipline. When does an act of indiscipline amount to a serious misconduct has not been considered by them. 23. The court below affirmed the decree of the trial court awarding a sum of Rs. 5000/- and odd as past salary and allowance. As observed above, they regarded it as an act of indiscipline. When does an act of indiscipline amount to a serious misconduct has not been considered by them. 23. The court below affirmed the decree of the trial court awarding a sum of Rs. 5000/- and odd as past salary and allowance. It was urged for the defendant appellant that such a decree could not be passed by the Civil Court as a suit for recovery of arrears of pay and allowances was barred by Section 22 of the Payment of Wages Act. No such plea was raised in the written statement. No argument on that question was advanced before the trial Court or the lower appellate Court. The plea was raised during the course of argument, though it has been indicated also in the memorandum of second appeal. I think it is too late in the day for the defendant to challenge the legality of the decree of the court below on such a ground. The requirement of the C. P. Code is that all the pleas relating to maintainability of a suit in respect of any relief claimed must be specifically raised in the written statement by the defendant. I would not be justified in allowing such a plea to be raised without the amendment of the written statement. No such permission was sought either in the court below or here for amending the written statement. This contention is rejected. 24. As a result of the discussion above. I do not find any force in this appeal and dismiss it with costs.