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B. Roshan Lal Goswala Vs. District Board and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad
Decided On
Reported inAIR1935All802; 158Ind.Cas.626
AppellantB. Roshan Lal Goswala
RespondentDistrict Board and anr.
Cases ReferredIn N.C. Sarkar & Sons v. Baraboni Coal Concern Ltd.
Excerpt:
- - (a) by the chairman or a vice-chairman and by the secretary, or (b) by any person or persons empowered under sub-section (2) or (3) of the previous section to sanotion the contract if further and in like manner empowered in this behalf by the board. (it is true that exception i makes provision for a public officer required by law to be appointed in writing, but that is clearly for the purpose of proving merely that he was such public officer and not for proving the terms of his contract of employment). 3. the relations between the parties being those of contract and the value or amount exceeding rs. section 65(3) clearly provides that if a contract to which the section applies is executed otherwise than in conformity therewith, it shall not be binding on the board. the assumption.....bennet, j.1. this is a second appeal by a plaintiff whose suit has been dismissed by the lower appellate court. the plaintiff was employed as secretary of the defendant district board, and he claims for a declaration that the resolution of 16th october 1932 is void and that he has been wrongfully dismissed and that he is entitled to damages for wrongful dismissal, and he claims a large sum as damages made up of salary and leave allowances, etc. which, he would have received. the lower court finds that after his services were terminated by a resolution of the board abolishing the post of secretary and the post of engineer and creating a combined post of secretary-engineer he received four months pay. the first question which arises is whether the appellant has any right of suit. as an.....
Judgment:

Bennet, J.

1. This is a second appeal by a plaintiff whose suit has been dismissed by the lower appellate Court. The plaintiff was employed as secretary of the defendant District Board, and he claims for a declaration that the resolution of 16th October 1932 is void and that he has been wrongfully dismissed and that he is entitled to damages for wrongful dismissal, and he claims a large sum as damages made up of salary and leave allowances, etc. which, he would have received. The lower Court finds that after his services were terminated by a resolution of the board abolishing the post of secretary and the post of engineer and creating a combined post of secretary-engineer he received four months pay. The first question which arises is whether the appellant has any right of suit. As an abstract proposition of law such a right might arise in one of two ways; either by contract between the parties fixing the term's of service of the plaintiff or by statute fixing the terms of service of the plaintiff and giving the plaintiff a right to sue. The relief of damages claimed appears to be a claim under Section 73, Contract Act, compensation for loss or damage caused by a breach of contract. The relations between the parties are those arising from the contract to serve the District, Board for the payment of a monthly salary. Now in the different Acts in India for local bodies there are provisions for the manner in which contracts must be made. For District Boards in the United Provinces it is provided in the U.P. District Boards Act, Act 10 of 1922, Section 65:

(1) Every contract made by or on behalf of a Board whereof the value or the amount exceeds Rs. 100 shall be in writing. (2) Every such contract shall be signed; (a) by the chairman or a vice-chairman and by the secretary, or (b) by any person or persons empowered under Sub-section (2) or (3) of the previous section to sanotion the contract if further and in like manner empowered in this behalf by the Board. (3) If a contract to which the foregoing provisions of this section apply is executed otherwise than in conformity therewith, it shall not be binding on the Board.

2. The plaintiff has not based his suit on any such contract nor has he produced any such contract in Court. Section 91 Evidence Act, provides that:

in all cafes in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof...of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible.

(It is true that Exception I makes provision for a public officer required by law to be appointed in writing, but that is clearly for the purpose of proving merely that he was such public officer and not for proving the terms of his contract of employment).

3. The relations between the parties being those of contract and the value or amount exceeding Rs. 100, the contract is one to which Section 65, District Boards Act, would apply. To succeed in the present suit the plaintiff would have to produce a contract in writing signed in the manner prescribed, and containing the terms in regard to salary, leave allowances period of service, termination of service, on which his claim is based. In particular his counsel argues that the board has no right to terminate his service by mere notice without assigning cause. That is a general right existing in a master under the law of master and servant, and in a case based on contract the plaintiff would have to show that the contract contained a term by which the master gave up such a right. Learned Counsel relied on Section 70 which provides:

(1) Every Board shall, by special resolution, appoint a secretary who shall be a whole time salaried officer. (2) The appointment of the secretary and the conditions of his service shall be made in conformity with the rules framed by the local Government.

4. In its present form this section is derived from Section 9 of Act 1 of 1930. Learned Counsel does not show any rule of the Local Government which required that the conditions of service of the secretary of a District Board should be in the form of a contract under Section 65. The rules therefore do not make the provision which would give the secretary a right to sue the board for breach of the conditions of his service. The rules contemplate that the remedy of the secretary is by way of appeal to the Local Government, and if this were not provided by the rules the right of appeal would lie under Section 82 of the Act to the Local Government. Section 65(3) clearly provides that if a contract to which the section applies is executed otherwise than in conformity therewith, it shall not be binding on the board. A mere resolution of the board appointing a secretary, though it is in writing and signed by the chairman and by the secretary - apparently an acting secretary - would not amount to such a contract; because the conditions of service would not be set out in the resolution, and because the Act draws a distinction between resolutions and contracts. Section 65 lays down where contracts in writing are required. Section 64 lays down certain cases where such written contracts are not sufficient, and where the sanction of a resolution of the board is also necessary. Therefore a resolution does not dispense with the necessity of a contract in writing under Section 65, without which a board is not bound in law. The provisions of the law in regard to such matters have been strictly enforced by this High Court in Radha Krishna Das v. Municipal Board of Benares (1905) 27 All 592; where a contract with a Municipal Board, which according to Section 40 of Act 15 of 1883 and Section 47 of Local Act 1 of 1900 must be executed in a particular form, has not been so executed, no suit can be maintained against the Municipal Board in respect thereof, notwithstanding that there has been part performance of the contract and the plaintiff is claiming merely for the value of work done and materials supplied. This ruling followed Young & Co. v. The Mayor and Corporation of Royal Lemington Spa (1883) 8 A.C. 517 and British Insulated Wire Co. v. Prescot Urban District Council (1895) 2 Q.B.D. 463. See also Raman Chetti v. Municipal Council Kumbakonam (1907) 30 Mad. 290 and Abaji Sitaram v. Trimbak Municipality (1904) 28 Bom. 66. From these considerations it is clear that the plaintiff has not produced any contract which would give him a right, to sue in the present case. The learned Counsel for appellant, argued that under statute the plaintiff was entitled to a decree. He referred to Section 70, U.P. District Boards Act, 1922, as amended in 1930, and to Section 71:

A Board may by special resolution punish or dismiss its secretary, provided : (a) that such resolution is passed by the vote of not less than two-thirds of the total number of members of the Board for the time being, or (b) that it is passed by a vote of not less than one-half of the total number of such members and is sanctioned by the Local Government.

5. He argued that the procedure of Section 71 had not been followed. That is so but the board does not claim that the secretary was dismissed, and the resolution is not one of dismissal, but of abolition of the office of secretary and the office of engineer and the combination of the two offices. Section 81 provides:

Subject to the provisions of this Act or of any rule a Board may appoint one person to discharge the duties of any two or more offices.

6. Counsel argues that Section 70(1) provides that the secretary shall be a whole time officer; and that therefore his office shall not be combined with that of engineer or any other office. This interpretation is not that given in The law of Municipal Corporations in British India, by P.D. Aiyangar. 1924, p. 126:

The term 'whole time' officer is used in contradiction to 'part-time' officer. If a whole-time officer chooses to undertake some work which may be profitable to him, financially or otherwise in his spare time, then, provided it does not render him less efficient for the performance of the duties of his whole-time office he does not break this condition of his appointment.

7. The meaning of whole time officer is one who gives all his time to the service of the board, and an officer who did so would be a whole time officer even though part of his time was spent in doing the work of secretary and part in doing the work of engineer. Section 70 does not say that the secretary shall be a whole time secretary, but that he shall be a whole time salaried officer. The argument of counsel is that the District Boards Act and rules make provision for the appointment, conditions of service, and dismissal of the secretary, and that under one of those rules laid down in a Government Letter removal should also be under Section 71, and he claims that the plaintiff has a right to receive damages because his service has, been terminated otherwise than by dismissal under Section 71 in the manner laid down by that section. The assumption by counsel is that the plaintiff had a right to hold his office during good behaviour. It is true that in certain parts of the British Dominions such provision has been made by statute. But there is no such provision in, the District Boards Act, 1922, or in any similar Act in India, or for public or Government servants in India. Under Section 89 it is provided:

Every officer or servant of a Board shall be deemed to be a public servant within the meaning of the Penal Code; and in the definition of 'legal remuneration' in Section 161 of that Code, the word 'Government.' shall, for the purposes of this section, be deemed to include a Board.

8. The preamble states:

An act to make better provision for Local Self-Government in rural areas of the United Provinces. Whereas it is expedient to make better provision for Local Self-Government.

9. Government of India Act, 1919, Section 96-B(1) provides:

Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Grown in India, holds office during His Majesty's pleasure.

10. This then is the general provision for all Government servants in India, that they hold office during His Majesty's pleasure, and not 'during good behaviour.' The District Boards Act 1922, does not contain any provision that a different rule was to be set up for servants of District Boards from the general rule for all Government servants. The situation is well-expressed in Aiyangar's Law of Municipal Corporations in British India, page 124:

All offices are held either 'at pleasure or 'during good behaviour.' Where an office is held at pleasure, the holder thereof is subject to dismissal at any time without any cause being assigned. No notice or framing of any charge is necessary; and the holder is removable at the sole discretion of the appointing authority. Where however an office is held during good behaviour, the holder thereof is appointed to all intents and purposes for life and has what is called a free-hold office, for his life. He can be removed from office only for want of good behaviour. In this case, notice of dismissal should be given and a charge framed and proved. It is well-known that except where it is otherwise provided by statute all public officers and servants of the Crown hold their appointment at the pleasure of the Crown; and speaking generally, they are subject to dismissal at any time without cause assigned; and an action for wrongful dismissal will not be entertained by a Court of law. All officers and servants of local bodies do hold public offices and are expressly stated to be public servants by the several Acts creating the said local bodies. The Acts contain express provisions regarding their appointment and dismissal. Except where a particular appointment is stated to be held during good behaviour, all officers and servants of local bodies would, according to the true intent and meaning and the legal construction of the enactments, hold their respective offices only at pleasure. They are accordingly removable from their offices without any notice being given and without any cause being assigned. They would be exactly in the same position as the officers and servants of the Crown.... Most, if not all, of the local bodies have made rules and regulations relating to the grant of pensions, gratuities, etc. These rules and regulations generally do not constitute a contract between the parties.... If the rules are not complied with, the remedy of the party concerned is not by a law suit but by way of appeal departmentally to higher authorities. He cannot have a right of action in a Court of law for wrongful dismissal against the local body concerned.

11. The authorities for this passage are contained in Shenton v. Smith (1895) A.C. 229, Wright v. Marquis of Zetland (1908) 1 K.B. 63, Gnana Sambanda v. Manikkavasaka 1917 Mad. 578, Ramdas v. Secy. of State (1913) 16 I.C. 922, Smyth v. Latham (1833) 9 Bing. 692, Notley v. London County Council (1915) 3K.B. 580, Chellam Ayyar v. Corporation of Madras 1918 Mad. 710, Meek v. Port of London Authority (1918) 2 Ch. 96, Hales v. The King (1918) W.N. 102 and Leaman v. The King (1920) 3 K.B.D. 663. Shenton v. Smith (1895) A.C. 229 is a ruling by their Lordships of the Privy Council on appeal from the Supreme Court of Western Australia. Dr. Smith was appointed by Government to act as medical officer during a definite period, in the absence of a Dr. Rogers on leave. After he had been so acting for over a year an order was passed by the Governor on 9th July 1888 that his tenure of office would cease at the end of the year. This was in consequence of blame attached to him at a coroner's inquest. He presented a petition of right making the Colonial Secretary the defendant, and the jury-found that the plaintiff was led to believe that he would hold the office during good behaviour as long as the office existed; and that Government had not given reasonable notice, and had no reasonable cause to dismiss him and they assessed damages at 200. In appeal the two judges of the Supreme Court differed on the questions of law. On appeal by the defendant to the Privy Council, the arguments for the plaintiff were similar to those in the present case before us. It was argued that:

The Civil Service Regulations contained provisions as to the procedure to be adopted by the Governor in case he desires to suspend or dismiss an officer from his office. The published regulations must be deemed to have formed part of the contract between the Crown and the respondent, and he could only be lawfully dismissed in accordance with the procedure prescribed thereby. This case ought to be treated on the same footing as if it were a question between subject and subject, being between a local Government and a subject. The Colonial Government is not the Grown, and dealt with the respondent on the same footing as a private corporation. It does not possess the immunities of the Crown, nor has it the same discretionary power of dismissing public servants.

12. Their Lordships did not accept these arguments; they held that a Colonial Government is on the same footing as the Home Government as to the employment and dismissal of public servants and held that Dr. Smith had no right to sue. On, pp. 234 and 235 it was stated:

They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law-suit, but by an appeal of an official or political kind. Dr. Smith did in fact make such an official appeal to the Secretary of State.... As for the regulations, their Lordships again agree with Stone, J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants.... They are alterable from time to time without any assent on the part of Government servants, which could not be done if they were part of a contract with those servants.... The difficulty of dismissing servants whose continuance in office is detrimental to the State would, if it were necessary to prove some offence to the satisfaction of a jury, be such as to seriously impede the working of the public service. No authority, legal or constitutional, has been produced to countenance the doctrine that persons taking service with a Colonial Government to whom the regulations have been addressed can insist upon holding office till removed according to the process thereby laid down. Any Government which departs from the regulations is amenable, not to the servant dismissed, but to its own official superiors, to whom it may be able to justify its action in any particular case.

13. That the same principle applies to local self-Government bodies is shown in Notley v. London County Council (1915) 3 K.B. 580. The plaintiff brought an action in the King's Bench Division claiming a declaration that a resolution of the defendants purporting to dismiss the plaintiff from his office of district surveyor was illegal and void and that plaintiff was entitled to hold the said office notwithstanding the resolution, and claiming an 'injunction against the defendants. The plaintiff had held the office from 1875 to 1915. The plaintiff argued that the power to dismiss must be exercised judicially and reasonably and not arbitrarily. That district surveyors had judicial functions and were not servants of the defendants though appointed by them. It was held that under Section 32, Metropolitian. Buildings Act. 1855 the defendants may:

by order, at their discretion...dismiss or suspend any future district surveyor.... In my judgment the words perfectly clearly denote and describe an office held at the pleasure of this body.... Of course, if there were anything in the Act of 1855 beyond the words I have referred to, which pointed to some tenure, such as a freehold tenure or tenure dum se bene gesserit or subject to any notice, or anything of that kind, I should very readily construe the words 'at their discretion,' and 'may dismiss' as being subject to those terms and should hold that the defendants were, in exercising their discretion, to carry and work out that tenure and give effect to it.... I must hold that this action fails because the County Council have power to terminate this gentleman's tenure of office at their pleasure.

14. The language of the different District Board Acts may be examined from this point of view. N.W.P. and Oudh Local Boards Act, Act 14 of 1883, Section 34 stated:

(1) Every District Board and every Local Board shall, from time to time, appoint one or more of the members, or, with the sanction of the Commissioner of the division, any other person or persons, to be its secretary or secretaries, and may remove any parson so appointed.

15. U.P. District Boards Act. Act 3 of 1906 stated in Section 30:

(1) Every Board shall, from time to time, at a special meeting, appoint one or more of its members, or, with the sanction of the Commissioner, any other person or persons, to be its secretary or secretaries. 34. In the absence of a written contract to the contrary, every officer or servant employed by a Board shall be entitled to one month's notice before discharge or to one month's wages in lieu thereof, unless he is discharged for misconduct or was engaged for a specified term and discharged at the end of it.

16. Act 10 of 1922 provided:

70. Every Board shall by special resolution appoint a secretary, who shall be a whole-time salaried officer, and prescribe, subject to the provisions of Section 85, the salary and other conditions of his appointment.

17. This has been amended by Act 1 of 1930 to state:

70 (1) Every Board shall by special resolution appoint a secretary who shall be a whole-time salaried officer. (2) The appointment of the secretary and the conditions of his service shall be made in conformity with the rules framed by the Local Government. 71. A Board may by a special resolution punish or dismiss its secretary provided : (a) that such resolution is passed by a vote of not less than two-thirds of the total number of members of the Board for the time being, or (b) that it is passed by a vote of not less than one-half of the total number of such numbers and is sanctioned by the Local Government.

18. It is to be noted that this section entitles the board to dismiss its secretary at pleasure, and that the secretary holds his office at pleasure of the board, just as any other public servant. That no distinction can be drawn between a servant of a board and other public servants in this respect is shown, by the fact that the Secretary of State for India in Council is also made a party to this suit, and as already pointed out Section 96-B(1), Government of India Act 1919, makes the tenure of every servant of the Crown in India 'during His Majesty's pleasure. The only provision made by Section 71 as, regards the way in which the right is to be exercised, and there is no limitation of the right to dismiss at pleasure. The lower appellate Court finds that the resolution was passed by 19 members out of 21 present, two not voting, and that the total number of members was 34. If the resolution had been one of dismissal under Section 71. the irregularity would have been a matter for the plaintiff to bring to the notice of Government on appeal, as an appeal is allowed by the rules and the Act. But on the principle of Shenton v. Smith (1895) A.C. 229, where irregularities were found in the dismissal, such irregularities cannot give a right to sue in a Court of law. Further the finding of the lower appellate Court is that the resolution was not one of dismissal under Section 71 but it was a resolution under Section 81 which provides:

Subject to provisions of this Act or of any rule, a Board may appoint one person to discharge the duties of any two or more offices.

19. A resolution under this rule does not require a two-thirds majority of the total number of members. The finding on this point is correct, and there is nothing in the Act to the contrary. The resolution against which the suit is directed is the resolution of 16th October 1932 stating:

The Board resolves that the post of the Secretary and the Engineer be abolished and a new post designated as Secretary-Engineer be created, on Rs. 250-15-350, and the services of both the incumbents be dispensed with owing to the abolition of their posts.

20. In the District Board Manual, page 279, certain qualifications are necessary for an engineer. The secretary therefore could not hold the combined post. The necessary consequence of the resolution was that the service of the secretary terminated. On p. 146 of the Manual there is a rule made by Government:

The removal of a secretary from the post of secretary without his written consent is a dismissal within the meaning of Section 71 of the Act, whether the secretary is thereby removed from the Board's service or is transferred to another post in the Board's service.

21. The secretary has however not been removed from the post of secretary but the post itself has been, abolished, and the secretary is not technically qualified to fill the combined post of secretary-engineer. Even on the assumption that the case would come under this rule of Government, on the principle of Shenton v. Smith (1895) A.C. 229 irregularities in an order of dismissal do not give a public servant any right to sue in a Court of law. In Wright v. Marquis of Zetland (1908) 1 K.B. 63, a scheme under the Endowed Schools Act, 1869 provided that: the head master of an endowed school might 'at pleasure' dismiss all assistant masters in the school. The plaintiff sued for damages for wrongful dismissal without notice. The jury found that by custom assistant masters were entitled to a term's notice of dismissal. The Court of Appeal held that such a custom was excluded by the terms of the scheme, and therefore the plaintiff was not entitled to notice of dismissal, and that in any case the action was not maintainable against the Governors. On p. 69 the judgment of the Court of Appeal stated:

Clause 30 is as follows : The Governors may at pleasure dismiss the headmaster without assigning cause, after six calendar months' written notice given to him in pursuance of a resolution passed at two special meetings held at an interval of not less than H days, such resolution being affirmed at each meeting by not less than two-thirds of the governors present and voting on the question. It seems to me that the provision that dismissal at pleasure shall be carried out or expressed by a resolution passed at two special meetings is not inconsistent with dismissal at 'pleasure' any more than if it was said that the dismissal must be in writing or under seal. It is a mere mode of the expression of the pleasure or will of the Governors without assigning cause that the head master shall be dismissed.

22. This ruling shows that even where provisions exist as in Section 71, District Boards dismissal is still a dismissal 'at plea-Act, that a special resolution and a two-thirds majority are required, the sure' because no cause has to be assigned for the dismissal. And where the office is held 'at pleasure' then on the principle of Shenton v. Smith (1895) A.C. 229 no action will lie for an order of dismissal which is made not in accordance with rules. In Ramdas v. Secy. of State (1913) 16 I.C. 922 the plaintiff, a clerk in a Collector's office, sued for a declaration that he had been wrongfully dismissed and few arrears of salary. He was prosecuted and acquitted. Without giving him any opportunity to explain or answer the charges, the Collector after his acquittal dismissed him on account of some other facts not elicited at the trial. The judgment of Mukerjee, J., on page 78 stated:

I am clearly of opinion that the plaintiff ought to have been heard before he was dismissed from Government service. The Collector wholly misunderstood the scope and effect of the rules on the subject, when he held that as the plaintiff had been prosecuted, he need not be called upon to show cause why he should not be dismissed.

23. But on p. 80 Mukerjee, J., held:

It is now firmly settled that, except where it is otherwise provided by statute, as in Gould v. Stuart (1896) A.C. 575, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown : Dunn v. Queen (1896) 1 Q.B. 116 and all, in general, are subject to dismissal at any time without cause assigned. In re Tufnell (1876) 3 Ch. D. 164, Young v. Adams (1898) A.C. 469. Ex parte Robertson (1858) 11 Moo. P.C. 288, Shenton v. Smith (1895) A.C. 229, Grant v. Secy. of State (1877) 2 C.P.D. 445 and Dickson v. Combermere (1863) 3 F. & F. 527, nor will an action for wrongful dismissal be entertained. As Sir William Anson puts it (Law and Custom of the Constitution, Vol. 2, Part 1, p. 221, Edn. 3, 1907), all offices are held either 'at pleasure or during good behaviour,' and, unless it is otherwise stated, their occupants hold 'at pleasure.' This principle has been repeatedly recognized in the Courts of this country : Voss v. Secy. of State (1906) 33 Cal. 669, King v. Secy. of State (1911) I.C. 858 and Cursetji v. Secy. of State (1903) 27 Bom. 189. It is plain therefore that the plaintiff was liable to dismissal at any time without cause assigned. What the Crown could do independently of any inquiry and without the assignment of any reason, cannot very well be questioned in a Court of law on the ground that the inquiry has not been satisfactory or in a proper form, or that the reason assigned is unsound or open to criticizm. It is thus impossible to hold, as his tenure of office was so precarious, that the plaintiff can successfully claim any relief against the Crown.... The plaintiff is not entitled to a declaration that his dismissal has been in contravention of the rules, because it does not fall within the scope of Section 42, Specific Relief Act, nor, can it admittedly lead up to any consequential relief against the Crown which the Court is competent to grant. Section 42, as was explained in Deokali Koer v. Kedar Nath (1912) 39 Cal. 704, does not sanction every form of declaration but only a declaration that the plaintiff' is entitled to a specific legal character or right as to property.

24. The reasoning given in this judgment applies to the relief of a declaration asked for by the present plaintiff that the resolution of 16th October 1932 is void, and such a declaration cannot be granted under Section 42, Specific Relief Act. In Dunn v. Queen (1896) 1 Q.B. 116, it was decided that servants of the Crown, civil as well as military, except in special cases where it is otherwise provided by law, hold their offices only during the pleasure of the Crown. Lord Esher, M.R., quoted a passage from the judgment of Lord Watson in DeDohse v. Reg (decided in Court of Appeal on 2nd June 1885. by Brett, M.R., Baggallay, L.J., and Bowen, L.J., in the House of Lords on 25th Nov. 1886 by Lord Halsbury, L.C. and Lords Blackburn, Watson and Fitz Gerald - unreported - Ed.):

In the first place it appears to me that no concluded contract is disclosed...; and in the second place, I am of opinion that such a concluded contract, if it had been made, must have been held to have imported into it the condition that the Crown has the power to dismiss. Further, I am of opinion, that if any authority representing the Crown were to exclude such a power by express stipulation, that would be a violation of the public policy of the country, and could not derogate from the power of the Crown.

25. This dictum was followed in Hales v. The King (1918) W.N. 102, where a clerk claimed to have been engaged in the Admiralty subject to a week's, notice. In Leaman v. The King (1920) 3 K.B.D. 663, plaintiff sued on a contract by petition of right, alleging that he was enlisted in 1914 for one year or the duration of the war at 6s. a day, and received a pay book showing this amount and was so paid till June 1916, when he was informed that he had in fact been enlisted as a 'time serving soldier' for seven years at 1 shilling a day and he was compelled to refund by deduction the excess pay he had drawn since 1914. On discharge in 1920 he brought this petition. He referred to the Manual of Military Law, Ch. 10, paragraph 18. p. 189 where it is stated:

The enlistment of the soldier is a species of contract between the Sovereign and the soldier, and under the ordinary principles of law cannot be altered without the consent of both parties.

26. On p. 668 Acton, J., held:

It by no means follows that it vests in the soldier the right to enforce by proceedings in a Court of law the payment of the sums to which he claims to be entitled in respect of his services.

27. It was held that the engagement was voluntary only on the part of the Crown. Against all this authority, learned Counsel for the appellant, after having an interval for research, was only able to cite four rulings which laid down that corporate bodies were not exempt from the jurisdiction of civil Courts - a proposition that no one denies - and one ruling relating to a, suit by a District Board servant. The four rulings did not deal with cases of servants, but with other matters with which the present suit is not concerned. The solitary ruling relating to a servant is reported in Sheo Narian v. District Judge Shahjahanpur 1933 All. 826, and is by a Single Judge, Young, J., The circumstances were very similar to the present case. A District Board (Shahajahanpur) by a resolution dismissed its secretary, alleging the economic situation and the desirability of amalgamating the offices of the engineer and the secretary, and secondly that the secretary was unsatisfactory, incompetent, and had been creating friction among the members of the Board. Next day the secretary filed a suit in the Court of the Munsif for an injunction, restraining the defendants (apparently the District Board) from interfering with the discharge of his duties as secretary and prohibiting them from illegally discharging him from office. The ruling states:

I would like to note here that though in the ordinary case of a master and servant an injunction certainly would not lie restraining a master from dismissing his servant; the remedy of the servant if he has been wrongly dismissed, would be for damages : but in the case of a District Board they are governed by a statute. Under Section 71, District Boards Act (10 of 1922) the Board may punish or dismiss a secretary subject to the rules made under the authority of the statute by the Local Government. The rules in accordance with the statute have been framed by the Local Government. Rule 3 enacts as follows : 'No officer or servant shall be dismissed without a reasonable opportunity being given to him of being heard in his own defence.' It is clear therefore that it would be open for a dismissed servant to allege that the rule had not been complied with and that therefore he was not legally dismissed from his office. He would then be in a position to ask the Court for an injunction.

28. The ruling proceeds to state that the Munsif issued and withdrew an interim injunction, that on appeal the District Judge stayed the order of the Munsif to cancel the interim injunction that the chairman disobeyed it by appointing the engineer as secretary, that the District Judge committed the chairman and the engineer to the civil prison for six months for disobedience, and on apologies being given the learned Single Judge remitted the imprisonment and fined the chairman Rs. 500 (though Order 39, Rule 2 does not authorise fine) and held that the engineer was not guilty of contempt of Court. Now the ruling of Young, J., cannot be taken as any authority on, the question of whether a suit will lie by a servant of a District Board against the board, because it apparently never occurred to him or to the learned Counsel in that case that any question could arise that the servant of a District Board had no such right, He quotes no authority on the subject nor does he attempt to, distinguish between the case of a servant of a District Board and any other public servant. It is true that the judgment recognises the rule of law that an injunction does not lie to restrain a master from dismissing a servant. But the learned Judge thought that because the board was governed by a statute and by rules of the Local Government therefore an injunction could issue. There is nothing to this effect in the Specific Relief Act, Act 1 of 1877, which provides in Section 56(f) that an injunction cannot be issued to prevent the breach of a contract, the performance of which would not be specifically enforced; and in Section 21(b) that a contract cannot be specifically enforced:

which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms.

29. Illustrations to this (b) show that the contract of personal service cannot be specifically enforced. In Nusserwanji v. Gordon (1881) 6 Bom. 266 it was held that for this reason a Court would not decree specific performance of an agreement that plaintiffs should be the agents of a company. In N.C. Sarkar & Sons v. Baraboni Coal Concern Ltd. (1912) 13 I.C. 868, it was laid down:

Under Sections 21 and 57, Specific Relief Act, a limited liability company cannot be restrained by injunction from dispensing with the services of managing agents, even when the contract of service provides that the managing agents are only to be removed in a specified manner and after a specified time. The remedy of the managing agents for dismissal if wrongful is a suit for damages.

30. The judgment therefore puts the District Board in a worse position than an ordinary master or a limited liability company. It is difficult to sec why this should be so, in view of the principle that public servants should lie removeable at pleasure in the interests of the public, and that they should not have a right to sue for wrongful dismissal. If we examine the rules on p. 135 of the U.P. District Board Manual to which, the learned Single Judge referred, we find that the rule quoted by him would not apply in the present case because the footnote to Rule 3 says:

This rule shall not apply to cases in which a Board discharges an officer or servant for some other reason than a fault committed by him.

31. In the face of the numerous rulings already set out which show that public servants have no right to sue in a Court of law for wrongful dismissal the solitary ruling of a learned Single Judge, in which the point was not even considered, cannot prevail. The fact that Government controls a District Board in these matters is shown by the provision in Section 71(b) that where the secretary is punished or dismissed by special resolution by a vote of not less than one-half of the total number of such members (as in the present case) the sanction of Government is required. If on the other hand the case was regarded as one of combination of offices under Section 81, then there is the control of the Commissioner over all proceedings of a board under Section 164(d), and the Commissioner could report the matter to Government for orders. There is no doubt that the ultimate authority under the District Boards Act and the rules is the Local Government, and therefore there seems to be no reason to consider that the servant of a District Board holds his position in any way differently than any other public servant who holds his position 'at pleasure.' If there had been any intention to create a different tenure, a provision would have been inserted in the Act. The provision in Section 71 is not such a provision, and is intended to create a check on the way in which a board works-either two-thirds majority of the total number, ox one-half and the sanction of the Local Government for the dismissal of a secretary or his punishment. But the creation of such a check does not give the secretary a right to sue even if the case came under Section 71. It is for the Local Government and not for the Courts to see that the Board has acted in accordance with the section in a case coming under the section.

32. As regards the general law of master and servant, even if the plaintiff did come under it, all that he would be entitled to claim would be reasonable notice or salary in lieu of notice. In the present case the four months pay received after abolition of his post would be ample in lieu of notice. The conclusion therefore is a District Board servant is under the general disability of other public servants in that he holds his office 'during pleasure.' and he cannot sue the District Board or the Secretary of State in a Court of law for wrongful dismissal; nor can he sue for a declaration that a resolution removing him is null and void as such a declaration would not come under Section 42, Specific Relief Act.

Allsop, J.

33. I have had the advantage of seeing the judgment of my learned brother. In my opinion the resolution of the board amounted to an order of dismissal. The board is not empowered to abolish the office of secretary and although it purported to do this, that was not in effect the result of its resolution that there should be a joint office of secretary and engineer. Neither the office of secretary nor the office of engineer was abolished. The resolution was that the two offices should be held by one person. In order that this resolution should be carried into effect, it was necessary that either the secretary or the engineer for the time being should be dismissed. The board dismissed the secretary and appointed the engineer to hold both offices.

34. The fact that the secretary was dismissed does not however necessarily lead to the inference that he was entitled to institute a suit against the board. No doubt, the order of dismissal should have been by means of a resolution passed by a majority consisting of two-thirds of the members of the board but the question is whether the secretary can enforce any remedy in a Court of law because the resolution was passed by a majority of less than the requisite number of members. I agree with my learned brother that he could not. It is unnecessary to reiterate the arguments with which I am in agreement. The powers of the board are exercised subject to the general control of the Local Government and it is for the Local Government in its discretion to compel the hoard to exercise those powers in a proper manner. I do not consider that the provision that a secretary should be dismissed only by a resolution passed by a certain majority gives the secretary a right to institute a suit against the board. He can doubtless appeal to the Local Government if his dismissal is not warranted.

35. It is difficult to see what cause of action the appellant can possibly have. It is clear that there can be no decree for specific performance of a contract of personal service. There can be no injunction compelling a board or anybody else to employ a particular person. Indeed, as the learned Judge of the lower appellate Court has pointed out. the appellant did not even seek an injunction against the board. If the appellant is suing for damages on the basis of a contract, the most that he could expect would be salary for a certain period in lieu of notice. It has been found that he received his salary for a period of four months after his dismissal and that is amply sufficient to compensate him. The learned Judge of the lower appellate Court has also pointed out that the secretary sought a, declaration which could not be in any case granted, because it would have been fruitless. The appellant informed the chairman of the board that he accepted the resolution and accordingly he actually gave over charge to his successor and had not been carrying on the duties of secretary for a considerable period when he instituted the suit. Even if he obtained a declaration, that would not in any way benefit him. In my opinion there is no force in the appeal and I would dismiss it under Order 41, Rule 11.


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