JUDGMENT K.B. Asthana, J. - This is a plaintiff's appeal from a decree of dismissal of his suit for a declaration that his removal from service in the Northern Railway being illegal he continued in service and for recovery of his pay. The suit was decreed by the court of first instance but that decree was reversed by the lower appellate court. 2. The plaintiff, Abdul Aziz Khan, in November 1958 received an intimation from the office of the Divisional Superintendent. Northern Railway, Allahabad Division offering him a temporary appointment as cleaner in Loco provided he was found medically fit. The plaintiff then on the basis of the memo issued by the Assistant Personnel Officer appeared before the Assistant Medical Officer. The plaintiff was then appointed and started working from 8-12-1958 as Loco cleaner. In 1961 the plaintiff was declared unfit for working as Loco cleaner, a job of class AI but was found fit for working in a job in class B. whereupon the plaintiff was given an alternative job of an Electric Khalasi. It appears that on some reports an investigation was held and old records checked when it was discovered that some of the appointments of Loco cleaners including that of the plaintiff were irregular and fraudulent. It was then proposed to hold a departmental enquiry. By an order dated 3-8-1963 the plaintiff was suspended pending enquiry. The plaintiff was charged with the following offence: "You, in the year 1958, committed gross misconduct and failed to maintain absolute integrity and devotion to duty inasmuch as you secured appointment as cleaner in Loco Department by deceitful means and continued in the Railway service without disclosing true facts to the Administration." 3. The statement of allegations appended to the charge-sheet was as follows: "You never appeared before any selection Board of this office for the post of Loco Cleaners and were never selected for the same. By fraudulent means you managed to get yourself medically examined by the Railway Doctor, where you were declared unfit. Even after having been declared medically unfit for the post you managed to secure appointment as Cleaner on the Railway and concealed the facts of obtaining appointment by deceitful means." 4. By fraudulent means you managed to get yourself medically examined by the Railway Doctor, where you were declared unfit. Even after having been declared medically unfit for the post you managed to secure appointment as Cleaner on the Railway and concealed the facts of obtaining appointment by deceitful means." 4. The plaintiff was called upon to show cause why he be not dismissed from service or punished with any of the lessor penalties specified in Rule 1707 of the Indian Railway Establishment Code (Vol. 1). He was given seven days to submit his explanation. The plaintiff then made various applications for being supplied with copies of the documents and other evidence on the basis of which he was charged. There was somewhat lengthy correspondence on this demand of the plaintiff. Eventually an Enquiry Committee was appointed who enquired into the case of the plaintiff along with the case of others accused of the offence of the same nature and found the charge established. The plaintiff and others were then removed from service by the General Manager of Northern Railway by order dated 28-3-1966. The plaintiff thereupon served a notice under Section 80 of the C. P. Code on the Union of India through the General Manager, Northern Railway, then brought the suit giving rise to this appeal. 5. The validity of his removal order from service as a measure of punishment was attacked by the plaintiff mainly on the ground that he was not afforded a reasonable opportunity by the Enquiry Committee to defend himself inasmuch as the Enquiry Committee did not supply any copy of the documents pertaining to the charge and refused to examine the persons nominated by him as witnesses. The suit was defended by the Union of India on the plea that the enquiry was held against the plaintiff in accordance with the rules and the plaintiff was afforded all reasonable opportunity by the Enquiry Committee but he non-co-operated and did not care to produce his defence. Certain technical pleas were also raised that the suit was barred by Sections 15 and 22 of the Payment of Wages Act, the notice under Section 80 C. P. Code was invalid and the court had no jurisdiction to try the suit. 6. Certain technical pleas were also raised that the suit was barred by Sections 15 and 22 of the Payment of Wages Act, the notice under Section 80 C. P. Code was invalid and the court had no jurisdiction to try the suit. 6. The learned Civil Judge who tried the suit on the evidence on record and the circumstances of the case held that the order of removal of the plaintiff from service was illegal and void as he was not afforded a reasonable opportunity to defend himself and the Enquiry Committee unjustifiably declined to examine the witnesses nominated by the plaintiff. The learned Civil Judge also repelled the technical pleas of the suit being barred, the court having no jurisdiction and the notice under Section 80, Civil Procedure Code being bad. The suit of the plaintiff was decreed. On appeal by the Union of India the learned Additional District Judge reversed the decree and dismissed the plaintiff's suit. He held that the reasons given by the Enquiry Committee in refusing to examine the witnesses nominated by the plaintiff were justified and he further held that the civil court had no jurisdiction to go into that question as the Enquiry Committee was within its right to refuse to examine any witnesses. The view which the learned Judge of the lower appellate Court seems to have taken was that the plaintiff not having established the facts by evidence how he was prejudiced on the refusal of the Enquiry Committee to examine witnesses nominated by him, was not entitled to any decree. 7. Learned counsel for the plaintiff appellant assailed the decree of the lower appellate court on the ground that the lower appellate Court fell into a grave legal error in holding that it was not open to the plaintiff in the suit to question the propriety and legality of the refusal by the Enquiry Committee to examine witnesses nominated by the plaintiff in support of his defence. I think the learned counsel is right in contending that the Court below took an erroneous view. I think the learned counsel is right in contending that the Court below took an erroneous view. No doubt it was within the power of the Enquiry Committee to supervise and control the proceedings before it and the Committee was not bound to examine all the witnesses nominated by the plaintiff, but if in the guise of regulating the proceedings the Committee altogether refused to examine witnesses nominated by the plaintiff the prejudice caused to the plaintiff becomes self-evident and he need not in the suit adduce evidence showing what the prejudice was and the denial of reasonable opportunity to the plaintiff by the Enquiry Committee would be established. In my judgment it is always open to a dismissed Government servant to question the legality and propriety of the order passed by the enquiring authority in a departmental trial on the grounds of refusal to examine witnesses nominated by him and refusal to supply copies of material documents and other evidence forming the basis of the charge. The learned Judge of the lower appellate court fell into a legal error in holding that the civil Court could not be invited by the plaintiff to question the legality and propriety of the order of the Enquiry Committee refusing to examine witnesses nominated by the plaintiff. The question still remains whether the reasons which led the Enquiry Committee to refuse examination of the witnesses nominated by the plaintiff were justified and the plaintiff cannot, therefore, complain of denial of reasonable opportunity. 8. It would be seen that the Enquiry Committee altogether refused examination of the witnesses nominated by the plaintiff. The plaintiff wanted to examine Sri C.D. Dahiya, Assistant Personnel Officer, who is said to have checked the records and discovered irregularities in the matter of appointment of Loco cleaners in the year 1958 and arrived at a tentative finding that the plaintiff and others had obtained the letters of appointments by deceitful means concealing the fact that they were found unfit by the medical officer. The Enquiry Committee in refusing to summon Sri Dahiya for examination reasoned that the plaintiff must first adduce affirmative evidence concerning the alleged alteration and interpolation of the medical records by Sri Dahiya when reconstructing the record and then the question would arise of the examination of Sri Dahiya. I do not think this could be a justifiable or proper reason. I do not think this could be a justifiable or proper reason. Admittedly Sri Dahiya had reconstructed the old service record of the plaintiff and others and discovered irregularity of a serious nature amounting to fraud. It was on the basis of the report of Sri Dahiya that the plaintiff was charged. It will hardly matter that the subject-matter of the charge was founded on incidents which took place prior to the appointment of Sri Dahiya as Assistant Personnel Officer in Northern Railway. Allahabad. Division. This circumstance seems to have impressed the Enquiry Committee. What the plaintiff could have established on questioning Sri Dahiya was not for the Enquiry Committee to speculate. Suffice it to say that in the circumstances of the case and the nature of the charge levelled against the plaintiff the evidence which Sri Dahiya would have furnished could not be said by any stretch of imagination as irrelevant. Sri Dahiya was a necessary witness. In fact he ought to have been summoned by the Enquiry Committee even without any request of the plaintiff. 9. The plaintiff also wanted to cross-examine the handwriting expert to whom the signatures of the then Assistant Personnel Officer who had made the appointments in 1958 were sent for comparison. Since the handwriting expert had not given any definite opinion in his report on the genuineness of the signatures, finding that the data sent to him was too insufficient for comparison the refusal by the Enquiry Committee to summon the handwriting expert cannot, in the circumstances, be said to be improper. The plaintiff had also sought to examine four other colleagues of his who also had been appointed as Loco cleaners in 1958. The Enquiry Committee refused to summon them as it thought that their evidence would be irrelevant. It may be mentioned here that these four Loco cleaners were also removed from service on a charge of similar nature but they succeeded in getting the orders of their removal from service quashed by the High Court on a writ petition under Article 226 of the Constitution. Here again the Enquiry Committee speculated and thought that none of these witnesses would be able to throw any light on the controversy arising on the charge against the plaintiff. Here again the Enquiry Committee speculated and thought that none of these witnesses would be able to throw any light on the controversy arising on the charge against the plaintiff. The Enquiry Committee could have refused to summon all the four of them and should have left it to the plaintiff to produce one or two of them to avoid repetition. See Budha Singh v. State of Uttar Pradesh ( AIR 1958 All 607 ). 10. Learned counsel for the plain tiff appellant further contended that there was no evidence in support of the charge and the plaintiff has wrongly been punished by removal from service. In paragraph 12 of the plaint the plaintiff pleaded that the prosecution witnesses failed to establish any charge, rather their statements established that the plaintiff's appointment was perfectly valid. It cannot, therefore be said that the plaintiff did not plead that the order of removal was not vitiated because the charge brought against him was not supported by any legal evidence. At the trial and as well as in appeal before the lower appellate court, the case of the plaintiff was not considered and examined on the basis of such plea. Since purely a question of law arises I allowed learned counsel for the plaintiff appellant to address the Court in support of this plea. 11. An analysis of the charge will show that the plaintiff was accused of having committed gross misconduct and of failing to maintain absolute integrity and devotion to duty inasmuch as he secured appointment as cleaner in Loco Department by deceitful means. Further he was accused of having continued in the Railway service without disclosing true facts to the Administration. If anything the charge so framed is not only vague to a great extent but also is defective.Securing appointment as Loco cleaner by deceitful means could not be in the course of performance of his duty as a Railway servant by the plaintiff. It is, therefore not easily understandable how the alleged appointment of the plaintiff as a cleaner in Loco Department would amount to gross misconduct and will show lack of maintenance of absolute integrity and devotion to duty. Assuming that the plaintiff did procure an appointment as Loco cleaner by resorting to deceitful means no question of his disclosure arises to the Administration. Assuming that the plaintiff did procure an appointment as Loco cleaner by resorting to deceitful means no question of his disclosure arises to the Administration. It would be for the Administration to discover the fraud which it alleges to have discovered when Sri Dahiya the Assistant Personnel Officer examined the matter of appointment while reconstructing the records. The whole upshot of the charge is that the appointment of the plaintiff as cleaner in Loco Department was procured by him by deceitful means The statement of allegations to the charge-sheet made against the plaintiff shows that: (1) he never appeared before a Selection Board: (2) he was never selected by any Selection Board: (3) he got himself medically examined by the Railway Doctor by fraudulent means: (4) the Railway Doctor declared him unfit: (5) he managed to secure appointment as cleaner and (6) concealed the fact of obtaining appointment by fraudulent means. I have perused the findings of the Enquiry Committee and I do not find the Committee having recorded specific findings on the above allegations against the plaintiff. The Committee seems to have inferred that the plaintiff never appeared before Selection Board and was never selected by it from a reconstructed Panel of names of selected candidates. But Sri S. Diesh, who was posted as Assistant Personnel Officer in 1958 in the Allahabad Division and who was examined as a prosecution witness before the Enquiry Committee, said that there was no panel of Loco cleaners maintained in the office from June 1958 to June 1961 when he left the Allahabad Division. When asked why he thought that the appointment of the plaintiff and others was fraudulent he stated that as he was not shown any notes having been put up before him in the office for obtaining his orders, hence he thought that all the appointments were made without his knowledge and therefore fraudulent. It was elicited from this witness that senior subordinates were engaging men and the dealing clerks and the Record clerks also misused their powers by taking undue advantage of the panel not being available which was not finalised even by the time the witness left Allahabad Division and he understood that this kind of hanky-panky continued even after he had left. It is clear therefore from the statement of Sri Diesh that no panel of names was prepared in the year 1958 when the plaintiff was offered the job of cleaner in the Loco Department and appointed as such in December 1958. The panel seems to have been prepared by reconstruction for the first time by Sri Dahiya who succeeded Sri Dinesh as Assistant Personnel Officer, Northern Railway, Allahabad Division, in the year 1961. To clear this matter I think it was necessary for the Enquiry Committee to have summoned Sri Dahiya. Assuming that the plaintiff's name was not on the panel that circumstance would not necessarily lead to the conclusion that he did not appear before the Selection Board for a person who is not selected by the Selection Board after he had been interviewed by that Board would not find his name on the panel. It is only the names of the selected candidates which came on the panel. Absence of a name, therefore, from the panel would not be evidence of the fact that the candidate did not appear before the Selection Board. There was, therefore, no evidence before the Enquiry Committee in support of the allegation that the plaintiff never appeared before a Selection Board. Again the inference of the Enquiry Committee that the plaintiff was never selected for the post of Loco cleaner is based on inference from three circumstances: (1) his name was not on the panel: (2) the plaintiff by fraudulent means managed to get himself medically examined and (3) he was declared unfit by the Railway Doctor. The fact that his name was not on the panel is not established as Sri Diesh stated before the Enquiry Committee that no panel was maintained in 1958. The question, therefore, did not arise. It is Sri Dahiya who seems to have prepared a panel otherwise by reconstituting the records. No evidentiary value can be attached to a panel which was prepared later excluding the names of the plaintiff and others. As to the second fact that the plaintiff managed to get himself medically examined by fraudulent means it appears from the documents produced before the Enquiry Committee that the plaintiff in November when offered an appointment as Loco cleaner was asked to get himself medically examined before the appointment could be given. As to the second fact that the plaintiff managed to get himself medically examined by fraudulent means it appears from the documents produced before the Enquiry Committee that the plaintiff in November when offered an appointment as Loco cleaner was asked to get himself medically examined before the appointment could be given. The offer sent to the plaintiff under the signature of A. P. O. was not said to be a forged or made up-communication before the Enquiry Committee. Then there is a medical memo on record directing the Medical Officer to examine the plaintiff. Sri Diesh stated that he was not sure whether it bore his initials. He admitted that he often initialled such memos. There was no evidence before the Enquiry Committee that the initials of Sri Diesh on the medical memo, were forged. The Enquiry Committee has not recorded any specific findings. It is clear, therefore, that the documentary evidence supported the plaintiff's case that he was sent up for medical examination by the A. P. O. It is difficult to find any fraud having been committed by the plaintiff in appearing before the Medical Officer for his examination. Coming to the allegation that up was declared unfit, it appears that a counterfoil kept in the office of the Medical Officer was produced. The foil which is the primary document under the rules was not produced before the Enquiry Committee though it was admitted that under the office procedure that must have been sent to the A. P. O. by the Medical Officer. Dr. Bishwanath Pushkar, Assistant Medical Officer was examined as a witness by the Enquiry Committee. He proved the contents of the counter-foil and stated that the plaintiff was declared unfit. Against item No. 39 "Remarks by Medical Examiner" there is an entry. "Unfit A, 1". Dr. Pushkar stated in his evidence that the plaintiff was found unfit to hold a post in class A. I which includes the post of Loco cleaner. Chapter X contained in the Indian Railway Establishment Manual, II Edition, in its Section D classifies the staff into different classes in respect of the vision tests. The post of the cleaner in Loco Department falls in class Annexure 3 to Ch. X Prescribes for class Al the distant vision should be 6 x 6 without glasses. Chapter X contained in the Indian Railway Establishment Manual, II Edition, in its Section D classifies the staff into different classes in respect of the vision tests. The post of the cleaner in Loco Department falls in class Annexure 3 to Ch. X Prescribes for class Al the distant vision should be 6 x 6 without glasses. A perusal of the said counterfoil shows that at item No, 37 dealing with acuity of vision the distant vision of the plaintiff of the right eye was 6 x 6 and of the left eye was also 6 x 6. This is what is recorded under the column 'naked eve' in the said counterfoil. How then the plaintiff was declared unfit for class A 1 post is difficult to understand. It is unfortunate that Dr. Pushkar was not specifically cross-examined on the circumstance before the Enquiry Committee on behalf of the plaintiff. How then the plaintiff could be declared unfit for class A 1 post when the acuity of vision of both of his eyes without glasses was of the prescribed standard? It has come in evidence on the record of the suit that it was in the year 1961 that the plaintiff when he went for re-examination as required by the rules that acuity of vision in both of his eyes was found below standard and that is why he was given an alternative Post of an Electric Khalasi falling in class B 1. Had the Enquiry Committee carefully scrutinised the evidence before it furnished by the documents and the statement of Dr. Pushkar it would have found that there was no evidence before it of the plaintiff being medically disqualified for the post he was appointed to in the year 1958. 12. The allegations of fact do not contain any specification as to how the plaintiff managed to secure appointment as it has not been alleged that the plaintiff obtained a forged letter of appointment. That is not the subject-matter of the charge either. That being the position the Enquiry Committee in investigating into the genuineness of the appointment letter seems to have exceeded its jurisdiction. No charge was framed against the plaintiff nor any allegation made against him that he procured and forged letter of appointment. I think the Enquiry Committee was not competent to take into consideration the letter of appointment and holding it to be forged. No charge was framed against the plaintiff nor any allegation made against him that he procured and forged letter of appointment. I think the Enquiry Committee was not competent to take into consideration the letter of appointment and holding it to be forged. Moreover, the handwriting expert examined by it did not give any opinion that the signatures or initials of the A. P. O. on the letter of appointment were forged, Sri Diesh, the then A. P. O., also did not say that the letter of appointment bore forged initials. It was elicited from Sri Diesh that the initials on the letter of appointment bore great resemblance with his genuine initials. Though Sri Diesh did state that he never signed any appointment order but he further admitted that in the rush of work some Assistant might have got his initials on the letter of appointment. Assuming that Sri Diesh was made to sign or initial the letter of appointment of the plaintiff and he was not conscious of the fact that he was signing a letter of appointment, there was no evidence before the Enquiry Committee that the plaintiff was in conspiracy with the clerks in the office and was instrumental in procuring the letter of appointment. The plaintiff may himself have been a victim of the fraud going on in the office of Sri Diesh and he may never have known that his appointment order was irregularly signed. No question therefore, would arise of his concealing the fact of obtaining appointment by deceitful means. The plaintiff admittedly was given an alternative job of class B1 by an order dated 29-3-1962, He was absorbed as an Electric Khalasi. It is not the case of the Railway Administration against the plaintiff that he secured the appointment of Electric Khalasi by deceitful means. The plaintiff was holding the post of Electric Khalasi having been duly appointed on that post. This aspect of the matter has been entirely missed by the Railway Administration when removing him from service. 13. It was, however, urged by the learned standing Counsel that the plaintiff was not entitled to a decree as his appointment itself being void he was not a Railway servant and not entitled to enforce the rules of procedure prescribed by the Railway Establishment Code and Article 311 (2) of the Constitution. 13. It was, however, urged by the learned standing Counsel that the plaintiff was not entitled to a decree as his appointment itself being void he was not a Railway servant and not entitled to enforce the rules of procedure prescribed by the Railway Establishment Code and Article 311 (2) of the Constitution. Reliance was placed on a learned Single Judge's decision of the Calcutta High Court in Subodh Ranjan v. Major A. O.' Callaghan ( AIR 1953 Cal 319 ). I do not find any tenability whatsoever in this contention raised by the learned Standing Counsel in support of the decree of dismissal of suit. In the Calcutta case cited the decision turned on the fact that no valid contract of service came into being between the petitioner and the Government as no agreement was executed complying with the requirement, of Article 299 of the Constitution. Here in the instant case the rules of recruitment and appointment to class IV servants of the Indian Railways do not require any agreement to be executed complying with the provisions of, Article 299 of the Constitution. Assuming that the plaintiff procured his appointment as Loco cleaner by deceitful means the contract between him and the Railways would at best be voidable but not void under Section 19 of the Contract Act. 14. It was then urged that the Railway Administration having removed the plaintiff from service and he being no longer in the service the contract would be deemed to have been avoided and the plaintiff is not entitled to any declaration or decree since he was guilty of fraud and for the same reason he cannot plead estoppel against the Railway Administration as his conduct was fraudulent and on that conduct no estoppel would arise. The arguments so raised by the learned standing Counsel will appear to be tenable if of course it were found that the plaintiff's conduct in obtaining his appointment as Loco cleaner was deceitful and fraudulent but there is no such finding. 15. It was strenuously urged by the learned standing Counsel that the civil Court cannot go into the question of the correctness of the finding recorded by the Enquiry Committee. I have held above that the plaintiff succeeded in demonstrating that there was no legal evidence before the Enquiry Committee in support of the charge. 15. It was strenuously urged by the learned standing Counsel that the civil Court cannot go into the question of the correctness of the finding recorded by the Enquiry Committee. I have held above that the plaintiff succeeded in demonstrating that there was no legal evidence before the Enquiry Committee in support of the charge. It is not disputed by the learned standing Counsel that the civil Court has jurisdiction and power to strike down an order of punishment of a Government servant if it were found that there was no legal evidence in support of the charge of misconduct and thereby the verdict of the departmental trial will be vitiated. I need not, therefore, further consider the legal argument so raised by the learned Standing Counsel as I do not find any factual basis for the same. 16. Lastly it was urged by the learned Standing Counsel that the plaintiff having not cooperated with the Enquiry Committee and having refused to participate in its proceedings would not be entitled to a decree of declaration from the civil Court. I am not aware of any such proposition of law. No provision of the law or any precedent has been shown to me that merely because a charged Government servant is non-cooperative with the departmental enquiry or does not participate in the proceedings of the departmental enquiry he will be out of Court for assailing the final verdict of penalty on any of the grounds which have been recognised as available to him before the civil Courts. The observations of the Supreme Court in an unreported decision in Civil Appeal No. 322 of 1957. Raizada Trilok Singh v. Union of India, decided on 1-11-1960. to which my attention was drawn by the learned counsel for the Plaintiff appellant militate against this argument. In fact the plaintiff had cooperated with the Enquiry Committee and participated in its proceedings unto a certain stage. It was only when he found that the Enquiry Committee was bent upon refusing his applications for simply of copies of material documents and for summoning of defence witnesses that he thought that his future participation would be of no use and benefit that he did not appear in further proceedings. 17. It was only when he found that the Enquiry Committee was bent upon refusing his applications for simply of copies of material documents and for summoning of defence witnesses that he thought that his future participation would be of no use and benefit that he did not appear in further proceedings. 17. As a result of the discussion above I allow this appeal, set aside the judgment and decree of the lower appellate Court and restore that of the court of first instance with costs throughout.