JUDGMENT
S. Ali Ahmad, J.
1. This appeal is by the defendants and arises out of a suit filed by the plaintiff-respondent for a declaration that the order dated 10.1.1964 removing the plaintiff from service, the order dated 13th July, 1964, confirming the order of removal of the plaintiff from service and the order dated 29.1.1965 passed by the Divisional Commercial Superintendent are unconstitutional, ultra vires, void and inoperative.
2. It is not necessary to mention in any detail the respective cases of the parties. All that need be said is that the plaintiff was an employee of the Eastern Rly. and was posted as an Asstt. Station Master of Wazirganj Railway Station at the relevant time. There a departmental proceeding was initiated against him and charges were framed. He filed show cause to the charges but that was not acceptable. A domestic enquiry thereafter followed in which the plaintiff was found guilty and after another notice he was removed from service. The grievance of the plaintiff is that the departmental enquiry was not proper inasmuch as a reasonable opportunity to defend him was not given.
3. The suit was contested by the defendants. They claimed that the suit was not maintainable on account of non-inclusion of the Union of India as a party-defendant to the suit. On merit also their case was that due opportunity was given to the plaintiff to defend himself in the enquiry and that there was no infraction either of natural justice or of any rule.
4. The trial Court was of the view that the Union of India was not a necessary party, but according to it, the plaintiff had failed to establish that the enquiry was vitiated on account of infraction of the rules of natural justice or of any particular rule. It, therefore, dismissed the suit. An appeal was taken to the District Judge, Patna, which was heard by the Addl. District Judge. The learned Additional District Judge agreed with the view taken by the trial Court that the Union of India was not a necessary party, but it disagreed on the other issues and held that the enquiry was not proper inasmuch as a reasonable opportunity was not given to the plaintiff to cross-examine the witness. On the basis of these findings, the suit was decreed.
5. Learned Counsel for the appellants contended that the view taken by the Courts below that the Union of India was not a necessary party is erroneous in law. According to him, Section 79 of the Code of Civil Procedure read with Article 300 of the Constitution of India makes it absolutely clear that in absence of the Union of India, the suit must be held to be defective for want of necessary party. I think, learned Counsel is correct, Section 79 of the Code of Civil Procedure prescribes that in a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be the Union of India in case the suit is filed by or against the Central Government. Article 300 of the Constitution of India also says that the Government of India may sue or be sued by the name of the Union of India. It is not disputed that the Union of India is the owner of the Railways. Therefore, both under Section 79 of the Code of Civil Procedure and under Article 300 of the Constitution of India, the Union of India ought to have been made a party to the suit and in its absence the suit must fail. I am supported in my view by two decisions of the Supreme Court in the oases of State of Kerala v. The General Manager, Southern Rly . and Ranjit Mal v. General Manager, Northern Railway, New Delhi . Mr. Dayal could not dispute this proposition of law. He, however, urged that notice on behalf of the Union of India under Section 80 of the Code of Civil Procedure can be served on the General Manager of the, concerned Railways. He says that in this case notice was served on the General Manager of Eastern Railways, He further urged that all what the Union of India could say in the case was said by the officer. Learned Counsel, therefore, says that non-mention of the Union of India in the category of defendant was merely a clerical or formal matter. I am afraid it is not possible to accept this position. In the case (supra) different officers were made as respondents, yet the application was dismissed on the ground that the Union of India was not a party. Alternatively, Mr. Dayal also urged that the case may be adjourned to enable him to file an application for adding the Union of India as a party defendant. Although he did not specifically say so but, perhaps, Section 21(1) Proviso of the Limitation Act was in his mind which says that if the omission to include the defendant was made in good faith then while adding him as a party, the Court may direct that the suit shall be deemed to have been instituted against him on any earlier date with a view to save limitation. True this provision has been engraphed under the new Limitation Act. But, as I have said above, the omission to implead must be bona fide. In this case, an objection was taken at the stage of the suit itself. The plaintiff at that time could have filed an application for adding the Union of India as a party. It did not file any application even at the lower appellate stage. Here also for the first time a prayer to adjourn the case to enable him to file an amendment application was made after the learned Counsel for the appellants had finished his arguments. These facts, in my view, do not justify the advantage mentioned under the Proviso to Section 21(1) of the Limitation Act.
6. For the reasons stated above, I do not think any useful purpose would be served by acceding to this request of Mr. Dayal. The result is that the judgment and decree passed by the Court of appeal below are set aside and the appeal is allowed. The parties will bear their own costs throughout.
