Judgment M. P. Singh, J. 1. The appellant Khartar Saw M. M. C. T. No.15880 a a foundry attendant in the grade of the sami skilled workers in G. I. F. Eastern Railway in the Jamalpur work-shop filed a suit in the court of the munsif, Monghyr, challenging his removal from his service by an order ext. F) dated 10th January, 1959 mainly on the ground that the could not be removed by an authority subordinate to that by which he was appointed. This order was passed by Mr. Avedi works Manager (A senionr scale Officer) on a charge of an attempt to pilfer 5 pieces of lead weighing 1 seer from the builder-shop His departmental appeal was dismissed on February 29, 1969 by the Dy. C. M. B. In the suit he claimed a declaration that the order of discharge dated 10th January 1969 (to take effect from 18.1.69) was illegal, null and void, invalid and inoperative and that he still continued in service. Both of the courts below dismissed the suit holding that he had been appointed by an assistant Personnel Officer (a jonior scale officer) and he was removed from service by the Work Manager, a senior scale officer. 2. Counsel for the appellant contended that the appellant was appointed as a Coolie by the railway administration on 28th May 1947 under the temporary service agreement (Ext. E) by the Dy. C. M. E. , that he was permanently appointed as a Khalasi on 28th May 1952 under the service agreement (Ext. D) by the President of India acting through the Assistant Personnel officer and later he became an attendant in the Foundry in the year 1955 on the recommendation of a Trade Test Board (Evt.5) and thus his appointing authority was the President of India acting through the D. C. M. E. ann he could not be removed from service by the Works Manager, who was subordinate in rank to the D. C. M. E. It was also contended that Mr. G. C. Chakraverty, the Assistant Works Manager was not competent to issue the chaege-sheet against the plaintiff nor Mr. Avedi the Worke Manager was competent to issue the show-cause notice in absence of any authority delegated to them by the appointing authority. G. C. Chakraverty, the Assistant Works Manager was not competent to issue the chaege-sheet against the plaintiff nor Mr. Avedi the Worke Manager was competent to issue the show-cause notice in absence of any authority delegated to them by the appointing authority. Counsel submitted that the appellant could be removed any by one of the authorities mentioned in Rule 134 of the Railways establishment Ccce (Vol.1) (The Central Manager in the instant case ). He, therefore, urged that the charge-sheet which was issued on 24th March, 1967 by Mr. G. C. Chakravarti the Assistant Worke Manager, as well as the departmental enquiry held by him in the capacity of disciplinary authority were illegal and without jurisdiction and that the show-cause notice issued by Mr. Avedi the Works Manager describing himself as another disciplinary authority was also without jurisdiction. Counsel, therefore, canvassed that the order of dismissal was null and voild, ultra vires and without jurisdiction. 3. Afcer having considered the submissions advanced on behalf of the parties and after giving due weight to them, I am of the opinion, that both the courts below have failed to make proper approach to the case when they came to the conclusion that the Assistant Personnel Officer had appointed the plaintiff and that the plaintiff was rightly removed from service "by the Works manager, a senior scale officer. None of the two courts below has properly decided as to who was the appointing authority of the plaintiff. It may be noted that the appointing authority as referred to in Article 311 (1) of the constitution means the authority who appointed the Government servant to the post from which he has been dismissed or removed. The courts below, therefore, were bound to consider as to who appointed the plaintiff to the post of foundry attendant. This has not been decided. The plaintiff was firstly appointed as Coolie in the year 1947 under the temporary service agreement (Ext. E)by the D. C. M. E. According to the agreement, therefore, Deputy Chief mechanical Engineer would be his appointing authority in 1947. He was permanently appointed as a Khalasi in 1952 under the service agreement (Ext-D)with the President of India acting through the Assistant Personnel Officer. His appointing authority, therefore, was the President of India in 1952. E)by the D. C. M. E. According to the agreement, therefore, Deputy Chief mechanical Engineer would be his appointing authority in 1947. He was permanently appointed as a Khalasi in 1952 under the service agreement (Ext-D)with the President of India acting through the Assistant Personnel Officer. His appointing authority, therefore, was the President of India in 1952. In the year 1955, he was appointed as an attendant in the foundry of the Jamalpur work shop after passing the test examination before the Trade Test Board. The relevant recommendation in favour of the plaintiff is Ext.5. At the time of removal from service he was working as an attendant in the Foundry. None of the two courts below has said in its judgment as to who was the appointing authority of the plaintiff at the time of removal in 1969. No approach was made to the case from this point of view. Therefore, the main issue which arose in the suit was left undecided. 4. Counsel for the Railway Administration contended that the plaintiff did not produce his appointment letter. The argument is futile. The plaintiff clearly proved that his first service agreement ( Ext. E) was with the D. C. M. E. and another service agreement (Ext. D) was with the Assistant Personnel Officer acting on behalf of the President of India. There is therefore no force in the contention raised on behalf of the railway administration. Further that the plaintiff was working as an attendant in the foundry at the time of his removal from service in 1969. The removal notice (Ext. F) was addressed to the plaintiff as M. M. C. (perhaps Molten Metal Coolie ). It is not disputed that the authority competent to make the first appointment is the General Manager under rule 134 (c) of the Indian Railways Establishment Code, be he a Coolie or a khalasi or a Foundry attendant. Counsel for the railway administration contended that the General Manager had delegated his power to impose penalty on the IVth grade employees to the various lower authorities including the works Manager. He referred to the Office Circular no.5642-E-308/0/4 dated 9th April 1964 and serial No.2130 Office Circular No. AE 1795/9 dated october 9th, 1952. Counsel for the railway administration contended that the General Manager had delegated his power to impose penalty on the IVth grade employees to the various lower authorities including the works Manager. He referred to the Office Circular no.5642-E-308/0/4 dated 9th April 1964 and serial No.2130 Office Circular No. AE 1795/9 dated october 9th, 1952. He also made reference 10 the schedule of powers framed under Act 309 ot the Constitution of India and relied upon AIR 1955 Patna 305 for the purpose showing that a delegated authority can exercise the power of appointment and dismissed. Difficulty arises, however, due to the fact that the lower appellate court has not properly applied his mind to the critical question as to who was the appointing authority of the plaintiff at the time of removal from service and so it is difficult to find as to whether the plaintiff was appointed. Surprisingly enough, the courts below have relied upon the oral evidence of D. W.3 Jasimuddin a railway employee for holding that it was personnel Officer (junior scale officer) who was the appointing authority of the plaintiff. Even D. W.3 said in the very first time of cross-examination that t. D. Prasad the Assistant Personnel Officer had signed the service agreement on behalf of the Government of India. The findings reached by the courts below are thus clearly against the documentry evidence on record (vide Exts. E and D ). 5. Counsel for the Railway Administration next contended that it was never the case of the plaintiff that the D. C. M. E. was his appointing authority and hence the plaintiff-appellant in this case should not be permitted to raise this point for the first time in this second appeal. He relied on Sri Venkatra-mana Kevarti V/s. State of Mysore ( AIR 1958 SC 255 ) and State of Bihar V/s. Raja Bahadur K. N. Singh (1961 B. L. J. R.446 at 450 ). It was pointed put that the case of the plalntitf in his plaint was that he had been appointed by the/ general Manager and hence he cannot be allowed to contend that he has been appointed by the D. C. M. E. There can be no doubt that a party is bound by his pleadings. It was pointed put that the case of the plalntitf in his plaint was that he had been appointed by the/ general Manager and hence he cannot be allowed to contend that he has been appointed by the D. C. M. E. There can be no doubt that a party is bound by his pleadings. But I do not see as to why an important legal point cannot be allowed to be raised if it can be decided on the evidence already on record. It may be noticed that even in the removal notice (Ext. F) dated 10.1.69, it has been noted at the bottom "for Dy. Chief of Mechl. Engineer. E. Raiiway/jamalpur". This may indicate that the Works Manager acted on behalf of D. C. M. E, there is nothing to show in any of the decisions of the two courts below that d. C. M. E. had delegated its authority to the Works Manager to remove the plaintiff from service. It was not right for the courts below to decide this point only on the oral testimony of D. W.3. Counsel for the Railway Administration went on the argue that the onus was on the Plaintiff to prove as to who was his appninting authority and he having failed to prove it, his suit must fail on the authority of AIR 1960 Patna 162. That was a case where no evidence had been laid by any party and the only question involved in that case was as to who would lead the evidence. In the present case evidence was adduced by both the parties and a point arose to be decided as to who was the appointing authority of the plaintiff. So this case is cf no help to him. 6. Counsel for the appellant urged that under rule 1713 of the Discipline and Appeal Rules, the disciplinary authority if he is not the inquiring authority is bound to consider the record of the enquiry ane record iis own findings on each charge, but in the instant case nothing except mentioning removal has been said in the removal notice (Ext. F) and hence the order of removal is illegal for violation of rule 1713. Counsel for the respondent argued that this point was not raised In any of the two courts below. F) and hence the order of removal is illegal for violation of rule 1713. Counsel for the respondent argued that this point was not raised In any of the two courts below. It is not necessary for me to express any opinion on this point as the case is being remanded tothe Munsif, Monghyr, for fresh decision. It will be open to the parties to raise any point there which they choose to urge. 7. In the result, the appeal is allowed, the decisions of both the courts below, namely, of the Additional Munsif, Monghyr, dated 23rd February, 1976, and of the Additional District Judge, dated ,23rd May, 1978, are set aside and the suit is sent back to the court of the Munsif, Monghyr, for fresh decision in accordance with law and in the light of the observations mace above. The suit can be disposed of either by the Munsif, Monphyr or by any Addl. Munsif of that place. In the circumstances, there will be no order as to costs. Appeal allowed.