Find a Lawyer

Second Appeal No. 984 of 1947, decided on 16th June 1949, from the decree of Additional District Judge, Lahore, dated 1st May 1947, revers ing that of Subordinate judge, 2nd Class, Lahore, dated 24th February 1947,

(a) Government of India Act (1935), Ss. 240, 240 (3) and 241 (2) ‑Post of Sub‑Inspector in Civil Supplies Department of a Provincial Government is a civil post under the Crown" incumbent thereof though a temporary employee is entitled to notice before dismissal.

The expression "civil post" not being defined in the Constitution Act should be construed in the ordinary dictionary sense, namely, an appointment of an officer on the civil side of the administration as dis tinguished from the military side. There can, therefore, be no doubt that a post of Sub‑Inspector in the Civil Supplies Department of a Provincial Government is such a post. That the holder of such a post is a temporary employee does not mean that he is not within the expression "person holding a civil post under the Crown". Dismissal of the holder of such a post, without affirming an opportunity to him to show cause against the punishment proposed is void and inoperative.

A I R 1948 P C 121 followed.

(b) Tort‑No action lies against Crown‑Public servant's claim. for damages for wrongful dismissal not tenable.

On the principle that no action in tort lies against the Crown, no claim for damages by a public servant against the Crown would be tenable. While the plaintiff is entitled to a declaration voiding the order of dismissal made against him, he cannot claim any monetary relief against the Crown either by way of damages or on account of arrears of pay. His remedy in this respect lies in an appeal "of an official or political kind".

A I R 1948 P C 121 and 1926 S. C. 842, followed.

Petitioner, in person.

Abdul Aziz Khan, A. A. G. for Respondent.

.‑The appellant is one Yusaf Ali Khan who was employed for the period from the 15th September 1943, till the 14th April 1944, as a Sub‑Inspector of Civil Supplies by the late Punjab Government. On the later date he received intimation that he had been dismissed from service. It is established on the record by the documents Exhs. P. 15 and P. 16 that the dismissal was by the order of the Provincial Govern ment. The dismissal followed a departmental enquiry into certain allegations made against Yusaf Ali Khan. On the 2nd October 1945, he filed a suit against the Provincial Government for a declaration that this dismissal was not ordered in due process of law but was wrongful, illegal, ultra vires and void, and he was, therefore, still a "civil servant of the Crown in India" and he also prayed for payment of Rs. 1,468‑8‑0 by way of arrears of pay and allowances or in the alternative as damages for breach of contract by wrongful dismissal. The grounds upon which the plaint was based were as follows. It was said firstly that the inquiry was not a regular and valid enquiry and that it had not been held in fair and impartial manner, and further that the plaintiff had not been given reasonable opportunity of defending himself. Secondly, it was said that the mandatory provisions of subsection (3) of section 240, Government of India Act, 1935, had been contravened in his case inasmuch as he had not been given a reasonable opportunity of showing cause against the order of dismissal before it was passed. There was also a somewhat confused plea alleging contravention of section 241 of the Government of India Act 1935, resting on the allegation that the order of dismissal had not in fact been passed by the Provincial Government. The trial Court found as a fact that there had not been compliance with section 240, subsection (3) of the Government of India Act, as it was neither pleaded nor proved on behalf of the Government that after consideration of the enquiring officer's report they had called upon the plaintiff to show cause why he should not be dismissed. It had been pleaded by the Government that the plaintiff could not take advantage of section 240, subsection (3) by reason of the fact that he was temporary and not a permanent Government servant. The learnt d Sub‑Judge found that the statute itself made no difference between temporary and permanent Government servants in laying down the duty which the plaintiff alleged that the Government had failed to perform. The learned Sub‑Judge further held that the plaintiff had not been dismissed by the proper authority, viz., the Director of Civil Supplies. He accordingly came to the conclusion that the plaintiff was still in the service of. the Crown and as such was entitled to the emoluments of his office, which on calculation, the learned Sub‑Judge found amounted to Rs. 1,468‑8‑0. Accordingly the plaintiff's suit was decreed in full. The defendant appealed and a learned Additional District Judge of Lahore, accepted the appeal on the following grounds. Firstly, it was held that the Civil Service Rules contemplated a clear distinction between the conditions of service of temporary Government servants and the conditions of service of permanent Government servants and citing the proviso to sub section (2) of section 241, Government of India Act, but without making any reference to section 240, subsection (3) of the same Act, the learned Additional District judge recorded the following opinion :‑

" It is thus easy to hold that if the respondent was not given a notice to show cause before his dismissal, it was hardly necessary to do so. Even assuming for the sake of argument that such a notice was necessary, it would be deemed to have been sufficiently given to him when the enquiry itself was proceeding against him."

As regards the question whether the order of dismissal was made by the proper officer, the opinion of the learned Additional District judge was that the Director of Civil Supplies had communicated a direction through the Commissioner of the Ambala Division that the respondent should be dismissed, and he concluded as follows :‑

"This direction obviously tantamounts to the order of dismissal having been passed by the Director of Civil Supplies."

On these two grounds the appeal was allowed and the plaintiff's suit was dismissed, the parties being left to bear their own costs. The plaintiff has now come up before this Court in second appeal. The two questions upon which the learned Additional District judge has recorded his opinion were both questions of considerable importance involving interpretation of the Constitution Act as well as of Government orders. It is to be stated with regret that neither of the questions has been examined or dealt with in the manner or with the care that was necessary. This will be sufficiently clear from the fact that, although section 240 of the Government of India Act, was relevant and had been cited and relied upon by the learned Sub‑Judge of the trial Court, it was not discussed at all in the judgment of the learned Additional District Judge. Section 240 relates to "every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India." It does not appear that the personnel of the Civil Supplies Department had been incorporated into a service, and, therefore, all incumbents of appointments in that department would fall into the second category, viz., of persons holding civil posts under the Crown in India, I have examined the various definition clauses in the Constitution Act and. fail to find any definition of the expression "civil post". The expression must, therefore, be construed in the ordinary dictionary sense of the words employed, namely, an appointment of an officer on the civil side of the administration as distinguished from the military side. There can be no doubt that a post of Sub‑Inspector in the Civil Supplies Department of a Provincial Government is such a post. Can it be said that because the post is declared to be temporary, or the holder thereof is a temporary employee, he is not within the expression "person holding a civil post under the Crown in India" I have been unable to find anything in the Constitution Act which can lend support to the view taken by the learned Additional District judge that a temporary employee or holder of a temporary post does not satisfy the condition of holding a civil post under the Crown in India. The reference to the proviso to sub section 241 (2) of the Constitution Act, which merely lays down that " it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less," while it may be relevant to the question whether the Civil Service Rules were applicable to the case of the plaintiff is wholly irrelevant in regard to the application of section 240, subsection (3) of the Constitution Act to the plaintiff's case. For, the latter provision is worded so as to apply to "every person who holds a civil post under the Crown in India" and it has been seen that Yusaf Ali Khan falls within this category. Section, 240 subsection (3) is in the following terms :‑

"No such person as aforesaid shall be dismissed or reduced in rank until lie has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

By "person as aforesaid" is meant a person who is either a member of a civil service or holds a civil post under the Crown in India. Admittedly, the plaintiff was not given as opportunity at the penultimate stage of the proceedings before him to show cause why he should not be dismissed. The learned Additional District judge's view that this was "hardly necessary" and that the plaintiff should be deemed to have had notice by reason of the enquiry proceedings is directly opposed to the view authoritatively expressed by their Lordships of the Privy Council in the well known case of Mr. I. M. Lall published as A I R 1948 P C 121: P L D 1948 P C 150. Speaking with reference to subsection (3) of section 240, Lord Thankerton observed as follows :‑

"In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a reputation of that stage, if duly carried out, for that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.

On this view of the proper construction of subsection (3) of section 240, it is not disputed that the respondent has not been given the opportunity to which he is entitled thereunder, and the purported removal of the respondent on the 10th August 1940, did not conform to the mandatory requirements of subsection (3) of section 240, and was void and inoperative."

These observations apply verbatim to the present case where also after a departmental enquiry had been held on charges of corruption, etc., and the Provincial Government had come to the conclusion that dismissal was the proper punishment, no opportunity was given to the plaintiff to show cause against such punishment. The order of dismissal must, therefore, be held to be void and inoperative.

In this view of matter, it is hardly necessary to enquire into the further question whether the order of dismissal was made by the proper authority. On this point, however, both the Courts below have failed to attach the proper value to the two documents Exhs. P. 15 and P. 16 which were placed on the record by the plaintiff himself Exh. P. 16 is a letter addressed to the plaintiff by B. Gurdial Singh ;P. C. S., who was described "Assistant Director of Civil Supplies and Under‑Secretary to Government Punjab (Supplies)," and purports to forward in response to an application by the plaintiff, "an attested copy of Punjab Government order, dated the 8th April 1948, dismissing him from Government service". The letter is duly signed in the name "Gurdial Singh", and this signature also appears in the attestation form on the document Exh. P. 15 which purports to be a copy of the Punjab Government order dismissing the plaintiff. The order reads as follows :‑

" The Punjab Government are satisfied that the charges of corruption and misconduct have been proved against M. Yusaf Ali Khan Civil Supplies Sub‑Inspector, Gurgaon, and consider that he is not a fit person to be retained in Government Service. It is accord ingly directed that M. Yusaf Ali Khan should be dismissed from service immediately."

Under subsection (2) of section 240, it is provided that inter alia a person holding any civil post under the Crown in India shall not be dismissed from the service of His Majesty "by any authority subordinate to that' by which he was appointed." It is admitted before me that the plaintiff was appointed by the Director of Civil Supplies. It is perfectly clear that the Provincial Government under whom the Director of Civil Supplies was not subordinate to the authority by which the plaintiff had been appointed and consequently provided that on the strength of the documents Exhs. P. 15 and P. 16 it can be held that the order of dismissal was made by the Provincial Government it would appear that there has been no contravention of section 240, subsection(2). There is no doubt of the authority of an Under‑Secretary to Govern ment to authenticate and execute documents on behalf of that Government; this provided by rules of business under section 59 of the Government of India Act. Accordingly it may be accepted without hesitation that Exh. P. 15 is a duly attested copy of the order by which the plaintiff was dismissed, and it may consequently be held that such an order was in fact made by the Provincial Government. The contention raised by the plaintiff on this score was mainly due to the order having eventually been communicated to him by the Deputy Commissioner of Gurgaon district where he was at the time working. That, however, did not alters the essential facts that the dismissal was directed by the highest Provincial authority, whose power to make the order cannot be doubted. Inevitably, the order had to be communicated to a subordinate official like the plaintiff through a number of intermediate offices but this necessity could not have effect of making any of these intermediate offices the source of the dismissal order, for the purposes of section 240, subsection (2).

There remains the question of the relief which the plaintiff is entitled to claim, and here again the view of their Lordships of the Judicial Committee expressed in the case of Mr. I. M. Lall is binding on this Court and must be given effect to. In that case, the plaintiff Mr. I. M. Lall had maintained that he was entitled to recover by his action arrears of pay from the date of the purported order of dismissal up to the date of action. Lord Thankerton observing that it was unnecessary to cite authority to establish that no action in tort can lie against the Crown and, therefore, any right of action must be either .based on contract or conferred by statute, referred to the judgment of Lord Blackburn in a section case Mulvenra v. The Admirality 1926 S C 842 where it had been observed as follows :‑

" The terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant. It also follows that this qualification must be read, as an implied condition into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a Civil Court of Justice, and that their only 'remedy under their contract lies in an appeal of an official or political kind."

Observing that their Lordships were of the opinion that this was a correct statement of law, the Judicial Committee held that the respon dent failed in his claim to arrears of pay. On the principle that no action in tort lies against the Crown, no claim for damages would be tenable in the same circumstances.

Apply these principles to the present case, it follows that while the plaintiff is entitled to a declaration voiding the order of dismissal made against him, he cannot claim any monetary relief against the Crown either by way of damages or on account of arrears of pay. His remedy in this respect lies in an appeal "of an official or political kind".

I accordingly allow this appeal and setting aside the order of the learned Additional District Judge, I make a declaration in favour of the plaintiff that the order of the 8th April 1944, purporting to dismiss him from the service of the Provincial Government was void and inoperative, and that he remained a Sub‑Inspector of Civil Supplies at the date of the institution of his suit, viz., the 2nd October 1945. His suit in respect of others reliefs will stand dismissed. The appellant is also allowed his costs throughout in relation to the declaratory relief only.

A. H. Appeal partly allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.