Skip to content


Dinshaw J. Javery Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 3473 of 1919
Judge
Reported in(1922)24BOMLR210; 67Ind.Cas.280
AppellantDinshaw J. Javery
RespondentSecretary of State for India
Excerpt:
.....at pleasure-statutory restriction on the power.;the plaintiff was employed as an inspector in the excise department on a salary of rs. 125 per mensem. he was dismissed by the commissioner of customs, excise and opium, bombay, as a result of an enquiry into certain charges of bribery levelled against him. he filed a suit against the secretary of state for india alleging that his dismissal was wrongful as the inquiry in respect of the charges of misconduct was not conducted in accordance with the regulations framed by government for dismissal of non-covenanted servants and claiming rs. 50,000 as damages for loss of service and injury to his reputation. the defendant contended inter alia that the plaintiff held the appointment at the will and pleasure of government and had no cause of..........dismissal from service.2. it appears that the plaintiff was employed as an acting inspector in the excise department on a salary of rs. 125 a month and by an order dated the 13th september 1917 he was dismissed from service by mr. arthur, commissioner of customs, salt opium and abkari, bombay.3. two preliminary issues have been raised in the suit: (1) whether the plaintiff held his appointment at the will and pleasure of the crown, and (2) if so, whether the plaint discloses any cause of action 4. from the cases cited at page 213 in the case of jehangir m. cursetji v. secretary of state i.l.r (1902) bom. 189: 5 bom. l.r. 30 mr. justice tyabji stated that in all those cases it was laid down that you cannot limit the power of the grown to dismiss its officers at pleasure. it is conceded by.....
Judgment:

Kajiji, J.

1. The plaintiff has filed this suit to recover Rs. 50,000 as damages for his wrongful dismissal from service.

2. It appears that the plaintiff was employed as an Acting Inspector in the Excise Department on a salary of Rs. 125 a month and by an order dated the 13th September 1917 he was dismissed from service by Mr. Arthur, Commissioner of Customs, Salt Opium and Abkari, Bombay.

3. Two preliminary issues have been raised in the suit: (1) whether the plaintiff held his appointment at the will and pleasure of the Crown, and (2) if so, whether the plaint discloses any cause of action

4. From the cases cited at page 213 in the case of Jehangir M. Cursetji v. Secretary of State I.L.R (1902) Bom. 189: 5 Bom. L.R. 30 Mr. Justice Tyabji stated that in all those cases it was laid down that you cannot limit the power of the Grown to dismiss its officers at pleasure. It is conceded by Mr. Taraporevalla for the plaintiff that if the term of employment of the plaintiff was at will and pleasure of the Crown then the Crown is entitled to dismiss the plaintiff without assigning any reason at all. But Mr. Justice Tyabji has qualified the above proposition to this extent that the power of the Crown to dismiss its public officers is necessarily limited by any statutory provision that may have been enacted for the benefit of such public servants, and it may not have application to such of the servants of Government as are not charged with functions etc. Mr. Taraporevalla has argued that the plaintiff wag employed under Section 6 of Act V of 1878 and Section 6 enacts that:-

To aid the Collectors in carrying out the provisions on this Act, the Commissioners may, subject to such orders as may from time to time be passed by Government in this behalf, appoint such subordinate officers with such designations, and assign to them respectively such powers and duties under this Act, as they deem fit...

5. Mr. Taraporevalla has urged that the appointments of subordinate officers in the Excise Department are regulated by Section 6 of the Act and that power has been delegated by the Government to the Commissioner and the Commissioner is the only person who can make the appointments subject to the order limiting the number of subordinate officers who have to be appointed for the purpose of carrying out the provisions of Act V of 1878. The appointment is not made by Government direct. From the record that has been shown to me I find that these appointments in the Excise Department are made under the signature of the Commissioner and I have no doubt in my mind that these appointments of officers in the Excise Department and of the plaintiff was made under Section 6 of Act V of 1878. Then Section 7 provides in what cases, under what circumstances, and after what enquiry, can any such officer be dismissed. Section 7 provides:-.The Commissioners may at any time after inquiry recorded in writing fine, dismiss, suspend or reduce any subordinate officer appointed, or any officer on whom any additional powers or duties have been conferred or imposed by them under the provisions of the last preceding section, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct.

6. Mr. Taraporevalla has urged that having regard to the provision of Section 7 of Act V of 1878, the Government's powers of dismissal of one of its officers in the Excise Department have been fettered and restricted by statute and if that is so the rule laid down in the case of Gould v Stuart [1896] A.C. 575 must apply.

7. The Advocate General on behalf of the Government has urged that Section 7 only restricts the power of the Commissioner and does not restrict the power of the Government. But where Government has delegated the power of appointment to other officers and if that power is restricted as to dismissal then it has to be considered whether the Legislature has restricted the power of dismissal or not In my opinion Section 7 does restrict the power of the Commissioner for dismissal and therefore the employment of the plaintiff ceases to be at the pleasure and will of Government and the provisions of Section 7 of the Act must be strictly complied with before such officer can be dismissed. The case of Gould v. Stuart is a case in point.

8. Mr. Bahadurji says that the dismissal has to be confirmed by the Government. That, however, does not affect the merits of this case. The first order has to be passed by the Commissioner and it may be that a formal sanction or confirmation has to be obtained: it is a mere formality that has to be gone into.

9. In my opinion, the Legislature by statute has restricted the power of dismissal under Section 7 of Act V of 1878 and that provision under Section 7 of the Act is made for the protection of officers employed in the Excise Department.

10. Therefore, the preliminary issues, viz., (1) will be answered in the negative, (2) in the affirmative, and (3) is not necessary. Costs costs in the cause.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //