Skip to content


Karunanidhi Naidu Vs. State of Madras (by the Collector of Tanjore) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1956)IILLJ347Mad
AppellantKarunanidhi Naidu
RespondentState of Madras (by the Collector of Tanjore)
Cases ReferredIn P.B. Thiruvenkatacharyulu v. Secretary of Stale A.I.R.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - .....ramaswami, j.1. this is an appeal preferred against the decree and judgment of the learned subordinate judge of kumbakonam in o.s. no. 43 of 1947.2. the facts are: the appellant entered the madras police service as sub-inspector of police in 1927. he got promoted as circle inspector of police and was working at nagapattinam in february 1941. the proceedings of the inspector-general of police dated 2 may 1944, show that this appellant had shown promise and was responsible for good work and the higher authorities entertained a good opinion of him. but unfortunately, as not un often happens in factious places with wealthy persons around, this appellant seems to have been drawn into the vortex of local factions in the villages of andanapet and papakoil in 1941.3. in the villages of andanapet.....
Judgment:

Ramaswami, J.

1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Kumbakonam in O.S. No. 43 of 1947.

2. The facts are: The appellant entered the Madras Police Service as sub-inspector of police in 1927. He got promoted as circle inspector of police and was working at Nagapattinam in February 1941. The proceedings of the Inspector-General of Police dated 2 May 1944, show that this appellant had shown promise and was responsible for good work and the higher authorities entertained a good opinion of him. But unfortunately, as not un often happens in factious places with wealthy persons around, this appellant seems to have been drawn into the vortex of local factions in the villages of Andanapet and Papakoil in 1941.

3. In the villages of Andanapet and Papakoil, which were within the jurisdiction of the circle inspector of Nagapattinam, there were two factions one headed by two persons called Kaliappa Tevar and Govindarajulu Pillai and the other headed by Govindasami and Manikkam. This Govindarajulu Pillai, it is common ground, was a rich and influential man. This circle inspector has been found to be siding with Govindarajulu Pillai and his faction and this came out in crime No. 14 of 1941, Velipalayam police station.

4. On 4 February 1941 Kaliappa Tevar made a report that Govindasami and some of his partisans had thrown stones at him. It was registered as crime No, 10 of 1941, Nagapattinam town police station. Some of the accused were apprehended and Govindasami, the leader, was not traced and arrested. On 6 February 1941 this circle inspector is said to have deputed the sub-inspector of Velanganni, Sri Ignatius, one head constable, and some police constables to arrest Govindasami who was reported to be hiding in a choultry in the village of Sikkilipathu, within the jurisdic tion of Velanganni police station. Govinda rajulu and Kaliappa Tevar are stated to have accompanied the police party in a motor-car. Govindasami eluded arrest and Manikkam who happened to be there was severely man handled by Govindarajulu and his men with the result that he sustained several cut and stick injuries. Therefore, Manikkam had to be got away and it is the case for the State that at the instance of this circle inspector Manikkam was spirited away to Karaikal, one of the former French pockets to which people anxious to hide themselves get transported or were got transported. The fat was on the fire when in or about 12 February 1941 Govindasami petitioned to the District Superintendent of Police, Tanjore, narrating what all transpired at Sikkilpathu.

5. There was no option but to register this complaint as crime No. 14 of 1941 of Velipala yam police station and as a result of subsequent investigation Manikkam was finally traced. The higher police officers took the view that the Nagapattinam police had manoeuvred to hush up this occurrence. On 24 February 1941 Mr. Fredrick, the then District Superintendent of Police, Tanjore, made a report of this occurrence to the Inspector-General of Police in Ex. B. 1. In Ex. B.2, dated 6 March 1941, the Inspector-General of Police directed that severe disciplinary action should be taken against the concerned members of the District Police after the criminal court proceedings laid bare what really happened. It was proposed to prosecute the private individuals and deal departmentally with the police officials found to have brought about this sorry state of things. Crime No. 14 of 1941 was vigorously enquired into and charge sheeted. The private individuals implicated were Govindarajulu and Kaliappa Tevar and two others. The case was tried by Mr. Majeed, I.C.S., Joint Magistrate, Nagapattinam, in C.C. No. 296 of 1941. The Joint Magistrate, while convicting the accused, passed severe strictures on the conduct of this circle inspector as the front and head of this lurid episode. He categorically expressed the view that this circle inspector worked hand and glove with Govindarajulu and Kaliappa Tevar. He also narrated and relied upon portions of the testimony of the sub-inspector Mr. Ignatius, which was to the effect that the circle inspector spared no efforts to hush up the matter. On account of the fact that this circle inspector had not been examined as a witness and had no opportunity to meet the accusations that were levelled against him, though based upon reliable testimony, the learned Sessions Judge of East Tanjore, Mr. Barter, who heard the appeals preferred by the accused, against their convictions and sentences in C.C. No. 296 of 1941, expressed the view that the learned Joint Magistrate could better have abstained from making these strictures on the absentee circle inspector but at the same time expressed the hope in the penultimate paragraph of his judgment that proper action would be taken against the police officers who did their best to hush up the crime. There was a revision to the High Court which was disposed of by Byers, J., and the learned Judge observed that there was sufficient material on record to show that the police had taken some trouble to hush up the matter and that the directions conveyed in the penultimate paragraph of the learned Sessions Judge's order should be obeyed. A copy of this judgment was communicated to the District Superintendent of Police, Tanjore, in continuation of the High Court's letter No. 2845, dated 14 July 1942.

6. Subsequent to the judgment of the learned Sessions Judge, the Deputy Superintendent of Police of Nagapattinam suggested in his letter Ex. B. 6 to the District Superintendent of Police, Tanjore, that it would be sufficient to take disciplinary action against the circle inspector alone. On 8 August 1952 the District Superintendent of Police in Ex. B. 7 made a full report of this case to the Inspector-General of Police and enclosed copies of the judgments of the Joint Magistrate of Nagapattinam and of the Sessions Judge of East Tanjore. He directed the Deputy Superintendent of Police, Nagapattinam, to give a personal hearing to the plaintiff and the sub-inspector Ignatius, the head constable and the police constables concerned in the case. Thereupon the Deputy Superintendent of Police framed two charges against the plaintiff for gross neglect of duty in not investigating a case of rioting and causing hurt with deadly weapons, etc., to one Manikkam Nainar on 6 February 1941 at Sik kilipathu caused by Govindarajulu Pillai of Andanapet and some others reported to him soon after the occurrence by the then sub-inspector Ignatius of Velanganni station and head constable Duraisami Naidu of Naga pattinam town and for suspicious conduct in burking the occurrence and siding with Govindarajulu Pillai and Kaliappa Tevar of Andanapet who were leaders of a faction, and sent them on to the appellant for explanation at Ramanathapuram where he was then serving: see Exs. A. 1 and B. 9.

7. The circle inspector of police protracted the proceedings as far as he could and the following is a summary of what happened between 9 December 1942 up to the dismissal of this circle inspector by the Inspector-General of Police on 2 May 1944. In his letter Ex. B. 10 the plaintiff requested that the personal hearing may be held during the Christmas holidays of 1942. By Ex. B. 12 he requested the production of certain records from the custody of the department for cross-examining the witnesses for the prosecution. Exhibit B. 13 is another communication for permission to peruse the entire records called for by him and to file some of the records as exhibits on his side. Exhibits B. 14 to B. 16 arc other communications sent by him for postponing the enquiry. All these were granted. At the departmental enquiry into the charges, five witnesses for the prosecution and seven witnesses for the defence were examined. A court witness was also examined. Exhibit B. 34 is the record of the proceedings before the Deputy Superintendent of Police. Exhibits B. 35 to B. 38 and B. 40 to B. 78 are the records of the evidence adduced in the case. After the prosecution and the defence evidence was over, the Deputy-Superintendent of Police asked the plaintiff whether he had anything to say either orally or in writing. To this, the plaintiff replied that he would submit a full explanation in writing by 18 April 1943. Accordingly the plaintiff submitted his written arguments (Exs. B. 17 and B. 18). Thereafter the Deputy Superintendent of Police drew up the minute Ex. B. 19 and submitted it to the District Superintendent of Police. The District Superintendent of Police was not however satisfied with the wording of the charges. In his proceedings Ex. B. 20 he directed that the first charge relating to the non-investigation of the case should be dropped and greater prominence given to the charge of hushing up the occurrence in the minutes. He also indicated in what manner the minute could be improved. He made it clear that there should be no alteration of the charge at that stage because such alteration would necessitate a fresh personal hearing. He therefore directed that the facts which he wanted: to be included in the minutes should be set out under the second charge: see Para. 8 of Ex. B. 20. On receipt of this order, the Deputy Superintendent of Police, without altering the charges, split up charge 2 and embodied the fact in two charges and drew up a revised minute Ex. B. 22 and sent it on to the District Superintendent of Police. This was forwarded in due course with the findings of the District Superintendent of Police to the Deputy Inspector-General of Police for orders. The Deputy Inspector-General appears to have called upon the plaintiff to make such representations as he may desire, regarding the minute. Exhibit B. 25 is a latter written by the plaintiff to the Deputy Inspector-General requesting time for making his representations. Subsequently on 8 August 1943, the Deputy Inspector-General passed an order dismissing the plaintiff from service. The revised minute with the findings of the District Superintendent of Police and the final orders of the Deputy Inspector-General are Exs. B. 21 to B. 24. After this order, the plaintiff applied for copies of the depositions and exhibits for preferring an appeal: see Ex, B. 26. He did prefer an appeal to the Inspector-General of Police. That officer, holding that the Deputy Inspector-General had no jurisdiction to dismiss the plaintiff who had originally been appointed by the Inspector-General of Police, cancelled the order of dismissal, remitted back the papers to the Deputy Inspector-General for resubmission to the Inspector-General for passing orders under the Police Standing Order 94 of Vol. I. The Inspector-General was of the opinion that no fresh departmental enquiry was necessary and that the Deputy Inspector-General had only to forward the original minute with his remarks thereon and the connected records. The appeal petition of the plaintiff is Ex. B. 27. It is a lengthy printed document of 57 pages in which every aspect of the case was analysed and placed before the Inspector-General. After perusing the records and the appeal petition, the Inspector-General passed an order dismissing the plaintiff: see Ex. B. 28. An appeal to the Government against the order of the Inspector-General was also dismissed: see Exs. B. 29 to B. 33.

8. It is also mentioned before us that a mercy petition was preferred by this circle inspector to the Government but which was not pressed on account of this suit which had been filed in the meanwhile and therefore seems to have been closed.

9. This is a suit filed in the pauper form, occupying over 25 closely printed pages, for a declaration that the order dated 2 May 1944 of the Inspector-General of Police, dismissing the plaintiff from Police Service is wrongful, void, illegal, inoperative and that the plaintiff should be deemed to be a member of the police force and to direct the defendant, the province of Madras, represented by the Collector of Tanjore, to pay the plaintiff the sum of Rs. 9,071 as arrears of salary and allowance or damages up to the date of plaint and to direct the defendant to pay to the plaintiff till the date of his retirement which is stated to be October 1957, pay at the rate of Rs. 225 per month plus dearness allowance and travelling allowance Rs. 20. But if for any reason the Court holds that such relief cannot be given, viz., direct payment till October 1957 of Rs. 225 plus dearness allowance and travelling allowance, to permit the plaintiff to file a suit separately after the amounts accrue due and for costs.

10. The defendant Government contended that the procedure followed was perfectly regular, that the enquiry was properly conducted after affording every latitude and indulgence to the plaintiff to prepare and put forth his defence to the charges, that there is no defect whatever either in the procedure adopted or at the enquiry, that the plaintiff was given ample scope and opportunity to vindicate himself, that no provision of law or rule applicable to this case has been violated and therefore the plaintiff has no cause of action, that the suit was barred by limitation and that the plaintiff was not entitled to the reliefs claimed.

11. Before the learned Subordinate Judge by agreement of parties no oral evidence was adduced and this plaintiff filed Exs. A. 1 to A. 6 and the Government filed Exs. B. 1 to B.85.

12. The learned Subordinate Judge, holding that in respect of the charges on which the plaintiff had been found guilty and removed from service there was a proper and bona fide enquiry by a competent authority and that the enquiry was conducted by him in accordance with law and the principles of natural justice, that the plaintiff was given an adequate opportunity of defending himself at the said enquiry, that the order of removal of the plaintiff from service was not illegal, ultra vires and wrongful and void on the grounds mentioned in the plaint, that the plaintiff would have got a legal cause of action in the civil court if the grounds put forward by him in the plaint were true, that the plaintiff is not entitled to payments claimed and to any salary or damages as claimed by him and that the suit is not barred by limitation under Article 14 of the Limitation Act, dismissed the suit with costs and directed the plaintiff to pay the court-fee due to the Government on the plaint. Hence this appeal by the defeated plaintiff.

13. In order to determine the principles on which the jurisdiction of the civil court, in a suit, can be exercised to give a declaration that a Government servant continued in service till the filing of the plaint, based on a finding that the order of dismissal was void and has to be regarded as non-existent or ineffective, we must first of all examine the background to the general law of 'master and servant' and then consider the special position of Government servants in India.

14. In regard to the law of 'master and servant,' it falls under three heads, viz., private employment, employment by statutory bodies and service under the Crown or State. The first two do not arise here and the general principles relating to contract of service falling upon the first head will be found fully discussed in Hokes v. Dencaster Collieries (1940) A.C. 1014 and the general principles relating to employment by statutory bodies giving rise to both suits for declaration of the invalidity of their orders with the result that the plaintiff will be deemed to continue in service as well as the alternative remedy of damages, will be found discussed in Barnard v. Dock Labour Board (1952) 2 All. E.R. 494 and Vine v. National Dock Labour Board (1956) 1 All. E.R. 1. We shall proceed to discuss therefore the service under the Crown or State.

15. The English law regarding service under the Crown is that a civil servant holds office at the pleasure of the Crown. It has its origin in the Latin phrase durante bene placito (during pleasure), meaning that the tenure of office of a civil servant except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their services; see Fraser's Constitutional Law, p. 126;Chalmer's Constitutional Law, p. 186; Shenton v. Smith (1895) A.C. 229,; Dunn v. the Queen (1896) 1 Q.B. 116, cited in the State of Bihar v. Abdul Majid (1954) S.C.R. 786 .

16. But if there is an order of dismissal or other order such as suspension, in order to signify the King's pleasure in the matter, the order must be by an officer or authority competent to signify the King's pleasure. This question of competence will be governed by the principle enacted in Section 16 of the General Clauses Act, 1897, which provides that a power of appointment includes the power of suspension or dismissal. Subject to this, the Government servant has no remedy in England; see Street's Govern mental Liability under the heading 'Civil Service' at pp. 1ll to 119 and Parkin's Administrative Law, p. 98, for the position in America.

17. Turning to India, the relevant principles have to. be deduced from Section 240 of the Government of India Act, 1935, or Article 311 of the Constitution of India, relating to Government servants. Section 240 of the 1935 Act began with the general provision that very officer holds office during His Majesty's pleasure except as otherwise expressly provided and this is now repeated in Article 311(1) of the Constitution. The second part of Section 240 of the Government of India Act, 1935, is re-enacted in Article 311 of the Constitution. In short, Article 311 reproduces Sub-sections (2) and (3) of Section 240 of the Act of 1935 with the addition of provise (c) to Clause (2), which is new and irrelevant for our purpose. Therefore, the second part is the express provision which makes an exception to the general rule that service is during pleasure.

18. Before analysing the cardinal requirements under Section 240(2) & (3) of the 1935 Act or Article 311 of the Constitution, two matters will have to be noticed. It is now well settled that this provision covers only dismissal, reduction in rank or removal from service resorted to as punishment. A mere termination of service except as punishment is not covered by Section 240 of the 1935 Act or Article 311 of the Constitution: Shyam Lal v. State of Uttar Pradesh and the Union of India : (1954)IILLJ139SC . A Government servant cannot also sue for his salary in India as in England: State of Bihar v. Abdul Majid 1954 S.C.R. 786 : : (1954)IILLJ678SC ; Om Prakash Gupta v. State of Uttar Pradesh : (1956)ILLJ1SC . But this does not affect the consideration of the principle on which the declaration has to be granted.

19. In such matters the civil court is not sitting in appeal over the decision of the departmental authorities. In I.M. Lall v. Secretary of State : (1956)ILLJ1SC , their lordships have observed at p. 258 as follows:--

We are not concerned with the question whether Mr. Brayne's conclusions are correct or not, nor even whether they are supported by sufficient evidence. We cannot sit in appeal on his judgment. Any appeal that lies from these findings is only of an administrative kind and the benefit of this the plaintiff has already had. We cannot even insist that the procedure should be that employed in courts of law any more than that the standards of proof should be those insisted upon in law courts. The conclusions and findings are and can be relevant only to find out whether or not the procedure employed has caused prejudice to the plaintiff in the course of the enquiry by hampering or embarrassing him in his defence and whether the principles of natural justice have in this respect been violated in any way.

20. The essential factors which a civil court will examine in order to come to the conclusion whether a declaration that the Government servant continued in service till the date of the filing of the suit on the foot that the order of dismissal was void and has to be regarded as non-existent or ineffective, are four in number:

(i) whether the plaintiff has been dismissed by an authority which appointed him;

(ii) whether before he was dismissed from service he has been given a reasonable opportunity of showing cause against the action proposed to be taken;

(iii) in determining point (ii) whether the procedure adopted in the departmental enquiry has so prejudiced the plaintiff that it has resulted in the denial of a reasonable opportunity; and

(iv) whether on the whole principles of natural justice have not been violated.

21. If there are merely defects in procedure without any contravention of the statutory provisions of Section 240(2) & (3) of the 1935 Act, the plaintiff will not have a cause of action to file a civil suit. In the case of infringement of the rules of procedure, his only right will be to pursue the remedies provided by the rules governing his services; that is to say, he should prefer his appeal to the authority constituted to hear it and will have no cause of action for a civil suit. This has been recognized in the decision in Rangachari v. Secretary of State I.L.R. 1937 Mad. 857 which was an appeal from Rangachari v. Secretary of State : AIR1934Mad516 ; Venkata Rao v. Secretary of State I.L.R. 1937 Mad. 532 and Nilamegham Pillai v. Secretary of State : AIR1937Mad777 . These principles have been reiterated by their lord ships of the Privy Council in Secretary of State v. I.M. Lall 1945 F.C. 47. The question whether in any given case an accused officer has been given a reasonable opportunity of showing cause is a question of fact as observed by Spens, C. J., in Secretary of State v. I.M. Lall 1945 F.C. 47 . It is in accordance with the above principles that this case should be judged.

The form of relief given in such cases is specific relief by way of declaration. After discussing the nature of the opportunity to be given under Section 240 of the 1935 Act, their lordships in Lall case 1945 F.C. 47 at 65 amended the declaration as follows:.The declaration should be varied so as to declare that the purported dismissal of the respondent on 10 August 1940 was void and inoperative, and that the respondent remained a member of the Indian Civil Service at the date of the institution of the present suit on 20 July 1942. Any further action by the Crown that may have occurred since the raising of the action is not covered by the present suit.

See also the observations at p. 67. The matter is not fully discussed but it is important to consider on what principle such a declaration is given.

22. The basic principle, as has been stated above, is that the officer holds office during the King's pleasure. But there is a statutory provision that dismissal and removal or reduction in rank can be done only by an authority not subordinate to that by which he was appointed. In England the general principle is that only the person having authority to appoint will have the authority to dismiss and therefore a lower authority cannot do that because it would not be proper signifying of the King's pleasure. On the other hand, in India our decisions are based on the language of Article 311(1) of the Constitution which refers to the authority by which the accused officer was appointed and entails that even though an authority would have appointed him, if the appointment was actually made by a higher authority, then the power of dismissal, suspension, reduction in rank, etc., would be vested in the authority which in fact appointed him or a higher authority. It has also been held that an appeal or revision, which has been heard by a competent authority, will not validate the order passed by a subordinate officer Suraj Narain Anand v. North-west Frontier Province 1941 F.C.R. 37. The second requirement relates to the manner in which the power would be exercised. Now, the principle on which the Court will regard an order, either passed by an incompetent authority or not exercised sub mode is this: The Crown or the Constitution has provided by statute two things; the authority and the manner in which the power should be exercised. If the power is exercised by an incompetent authority or is exercised by a competent authority but not according to the manner prescribed by the statute, then the order itself should not be attributed to the Crown or the State as being an incompetent order. Therefore, it is null and void and the Court grants a declaration. This position has been well put in Larson case (1948) 337 U.S. 682 : 93 L. Ed. 1628. it is observed:

On a similar theory, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not Sovereign actions. The officer is not doing the business which the Sovereign has empowered him to do or he is doing it in a way which the Sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.

23. The point whether a specific relief by way of declaration would be sufficient for giving relief to the accused public servant and secondly whether the Court has got a discretion in granting that relief, will have to be considered finally. In regard to the former, when the Court gives a declaration the Sovereign or State will note that the purported act or order is illegal and will act according to the Court's views. This has been well put by Lord Reading in Rex v. Speyer (1916) 1 K.B. 595 as follows:--

This is the King's Court; we sit here to administer justice and to interpret the laws of the realm in the King's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown.

See also Dyson (1911) I K.B. 410 and Wigg 1927 A.C. 674. It is equally well settled that being specific relief it is discretionary. This is discussed in Vine case (1956) 1 All E.R. 1. It is a case relating to a statutory body against which both the specific relief and the alternative relief of damages could be available, as already mentioned. Single ton, L. J., discusses it at p. 8 and Parket, L.J., discusses it at p. 13. Being a discretionary relief, the Court will have to follow the well-established rules relating to specific relief. For example, the Court will not declare that the officer had continued in service till the date of the plaint, if for instance the plaintiff had been, prior to the suit, in any alternative employment, because a declaration contrary to facts cannot be given. Similarly, if the plaintiff comes to Court with the knowledge of something which he did not put before the authorities at the earlier stages, the Court may in its discretion refuse the declaration.

24. The sum and substance of all this analysis is that the general rule that the service is during pleasure of the Crown or State is protected only to the extent and within the limits prescribed by the relevant statute and while Courts will take care to see that the cardinal requirements prescribed by the statute are fulfilled and the principles of natural justice have not been violated and the public servant has had a fair deal, equally the Court will have discretion to refuse in suitable cases a declaration on the well-settled principles applicable to specific relief.

25. Bearing these principles in mind, we shall examine the facts of this case. The first point for consideration is whether the plaintiff was dismissed by the actual authority which would have had power to appoint him. In this case even though under the statutory rules printed as annexure 8 in the Police Standing Orders (Ex. B. 79) the Deputy Inspector-General was perfectly competent to dismiss the plaintiff, the Inspector-General, who appointed the plaintiff as inspector of police, passed the order of dismissal. He cancelled the order of dismissal passed by the Deputy Inspector-General on the ground that the latter was not empowered to dismiss him. This was on account of the fact that at that time it was thought that Section 243 of the Government of India Act, 1935 which related to the conditions of service of the subordinate ranks of the police force in India, was not applicable to disciplinary matters. Section 243 provides that as regards the subordinate ranks of the police forces in India, their conditions of service shall be such as may be determined by or under the Acts relating to this force respectively. Section 10 of the District Police Act (Act XXIV of 1859) vests the powers of dismissal, suspension or reduction in the Inspector-General of Police, the Deputy Inspector-General and the District Superintendent of Police. Under this section, the Government has framed rules, called the Police Orders, laying down the procedure to be followed in departmental enquiries. The Police Order 90 printed at pp. 43 to 46 of Chap. X of the Police Standing Orders, 1938 edn., Vol. I., related to the procedure to be followed before an order of removal, dismissal or reduction is passed. At that time the prevalent view, as just now mentioned, was based upon Suraj Narain Anand v. North-west Frontier Province 1941 F.C.R. 37 that expressions ' conditions of service' in Section 243 are not applicable to disciplinary matters, But this view was dissented from by their lord ships of the Privy Council in North-west Frontier Province v. Suraj Narain Anand (1949) 1 M.L.J. 222 so that under the statutory rules the Deputy Inspector-General had the power to dismiss. In this case, however, as the Inspector-General passed the order of dismissal even the provisions of Section 240(2) of the 1935 Act were satisfied. Therefore, the decisions relied upon by this plaintiff, viz., Abdul Vakil v. Secretary of State , where a sub-inspector of police appointed by the Inspector-General of the United Provinces was dismissed by a disciplinary board created by the United Provinces Government, a subordinate in authority to the Inspector-General, it was held that the order of dismissal passed offended Section 240(2) of the 1935 Act, and Provincial Government, Central Provinces and Berar v. Shamshul Hussain Siraj Hussain , where a sub-inspector appointed by the Inspector-General in the respective Provinces was dismissed by the Deputy Inspector-General and the order of dismissal was held contrary to the provisions of Section 240(2) of the 1935 Act, are irrelevant in the circumstances of this case.

26. Therefore, the next point for consideration is whether this plaintiff before he was dismissed from service had been given a reasonable opportunity of showing cause against the action proposed to be taken and secondly, in determining it whether the procedure adopted at the departmental enquiry has in any way prejudiced the plaintiff that it has resulted in the denial of reasonable opportunity.

27. The term 'reasonable opportunity' has been considered by their lordships of the Privy Council in High Commissioner v. Lall a case under the corresponding provision of the Government of India Act, affirming Secretary of State v. Lall A.I.R. 1945 P.O. 47 and it leads to the view that the person charged has the right to reasonable opportunity of showing cause twice, before the order of dismissal, etc., is passed. There are two stages in a proceeding under the present Article 311; the first being when the charges are enquired into and at this stage, the person required to meet the charges should be given a reasonable opportunity to enter into his defence; and the second stage is when after the enquiring authority has come to its conclusions on the charges and there arises the question of the proper punishment to be awarded. A notice has then again to be given to show cause against the punishment proposed. What Clause (2) of Article 311 requires is not only a notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. In some cases it may be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced, if all or any of the charges are proved, dismissal or reduction in rank will follow. But each case will have to turn on its own facts, and the substance of the provision is that the person to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment shall not be imposed.

28. In this case such reasonable and adequate opportunity has been given and before drawing up the minute, the Deputy Superintendent of Police called upon the plaintiff to state if he had anything to say and the plaintiff submitted lengthy explanations Exs. B. 17 and B. 18. Ho has also been called upon to make his representations in regard to the minute for the dismissal charge. This appears from Ex. B. 25. Subsequently he has preferred the appeal Ex. B. 27 covering all the grounds in very great detail. Similarly in Exs. B. 29, B. 30 and B. 32 also he submitted a very elaborate statement of his case to the Government and to His Excellency the Governor of Madras in appeal against the order of the Inspector-General. It is important to note that at the time he preferred the appeal to the Inspector-General he knew that the action contemplated against him was one of dismissal. It was with reference to that and just before the order of dismissal was passed by the Inspector-General that he submitted a 57-page memorandum of appeal. Therefore, he has been afforded every reasonable opportunity of showing cause against the punishment which was intended to be inflicted.

29. In regard to the procedure adopted at the departmental enquiry whether it has prejudiced the plaintiff in that it has resulted in the denial of a reasonable opportunity to the plaintiff, Police Order 90 relates to the procedure to be followed before an order of removal, dismissal or reduction is passed. Rule 2 of the Discipline and Appeal Rules applicable to the Madras Police Service printed at p. 926 of Part I of the Fort St. George Gazette, dated 15 September 1942, lays down that in cases of this kind a definite charge or charges should be framed and communicated to the persons charged together with the statement of the allegations on which each charge is based and any other circumstance which is proposed to be taken into consideration in passing orders in the case. It provides that the accused officer should he called upon to put in a written statement of his defence and to state whether he desires an oral enquiry. At such enquiry, evidence should be let in in proof of the charges, if they are not admitted. The accused officer will be entitled to cross-examine the witnesses and to give evidence in person. After the enquiry, he is entitled to put in any written statement in his defence. If after the enquiry it is proposed to pass an order other than censure, he should be given an adequate opportunity of making any representation that he may desire to make against the issue of such an order and in case the authority competent to impose a penalty is acting upon the report of the investigating officer, a copy of the report of the latter should be communicated to the accused officer. This rule has been amended as per the notification printed at p. 1214 of Part I of the Fort St. George Gazette, dated 1 December 1942.

30. In regard to this procedure there can be no dispute whatsoever that this procedure has been fully complied with and the only point of substance is that the charges originally framed were subsequently altered without notice to the plaintiff and that therefore it offends the general instructions printed at p. 95 of the Madras Police Gazette, dated 2 April 1932, and which deserved a separate paragraph by itself.

31. This complaint of the plaintiff is wholly devoid of any substance and on a careful consideration of the charges before and after amendment, it is found that there has really been no alteration of the charges at all. The amendment is more verbal and formal than material and substantial. The first charge was dropped and the matters coming within the purview of the second charge were split up into two charges so that there has been no material change in the charge. Then a copy of this revised amended charge was served upon the plaintiff and it is with reference to it that he has submitted an elaborate explanation to the Inspector-General of Police and he has objected to the Deputy Superintendent of Police being instructed by the District Superintendent of Police to amend the charge and about this procedure being in contravention of the general instructions. The Inspector-General of Police has dealt with both these objections in his proceedings, dated 2 May 1944. In regard to the Deputy Superintendent of Police, after the personal hearing was over, without notice to the plaintiff, altering and dividing up the charges, ignoring Police Standing Order 90C and Police Standing Order 95, the Inspector-General of Police writes:

In regard to this alleged irregularity, the Deputy Superintendent of Police had every right to rewrite the minute as instructed by the District Superintendent of Police. Granted that the wording of the charge was modified in the revised minute, the fact that, the wording in the memo of charge was not adopted in the minute does not prejudice appellant's case as the revised minute was based on the same evidence. There was, therefore, no violation of the statutory orders as alleged.

In his memorandum of appeal as well as in his subsequent petition to the Government and the plaint in this suit, beyond alleging an irregularity in this departmental enquiry, this plaintiff has not stated anywhere that this resulted in any denial of any reasonable opportunity of showing cause by him or that he would have adduced any other evidence on account of the amendment of the minute. In fact, besides making this as a talking point, he does not at all allege that he was prejudiced in any way. I need not finally point out that a mere defect in procedure, without any contravention of statutory provision contained in Clauses (2) and (3) of Section 240 of the 1935 Act, would not furnish a cause of action to file a civil suit. In the case of infringement of the rules of procedure, the plaintiff's only right will be to pursue the remedies provided for by the rules governing the services. The existing Civil Services (Classification and Appeal) Rules gives to a dismissed public servant a right of appeal. In the case of officers of State Service, the appeal lies to the Governor. The appeal lies not only in the case of dismissal but also in the case of any of the penalties specified in Rule 49 of these rules. These rules were framed under Section 96(2) of the Government of India Act, 1919. Under that Act it was held in Venkata Rao v. Secretary of State I.L.R. 1937 Mad. 532 that the rules framed under Section 96B(2) did not fetter the power of the Crown to dismiss at pleasure, and that accordingly, dismissal in contravention of these rules did not give rise to any right of action in the Courts. These rules were merely in the nature of administrative directions. Under the Constitution too, it has been held that these rules are not founded on any provision of the Constitution and so the Courts cannot interfere for violation of any of these rules, in the absence of any contravention of Article 311 of the Constitution: Krishnamoorthy v, State of Madras : AIR1951Mad882 . There is therefore no substance in this contention.

32. Finally, we have got to see whether the principles of natural justice have been violated as vaguely alleged by this plaintiff. By natural justice we mean that which is founded in equity, in honesty and rig-lit and its principles are:

(1) A person must not be a judge in his own cause : Frome United Breweries v. Bath Justices (1926) A.C. 5861, Halsbury Hailsham, Vol. IX, Para. 1487, Vol. XVI, Para. 606, Vol. IX, p. 884; Queen v. Bolingbroke (1893) 2 Q.R. 347; Exparte Workington Overseers (1894) 1 Q.B. 416. Reg v. Justice of Hertfordshire (1845) 6. Q.B. 853; Reg v. Meyer (1876) 1 Q.B. D. 173; Queen Justice of Yarmouth (1882) 8 Q.B.D. 525; Cooper v. Wilson (1937) 2 All. E.R. 726; and Moti Lal v. Uttar Pradesh : AIR1951All257

(2) A person must not be condemned unheard: Reg v. Huntingdon Confirming Authority (1929)1 K.B. 698; Errinqton v. Minister of Health (1935) 1 K.B. 249; and Horn v. Minister of Health (1937) 1 K.B. 164.

(3) The decision must be made in good faith: Marshall v. Corporation of Blackpool 1935 A.C. 16.

33. In this case there is no question of any principle of natural justice being violated. Chargos had been framed, ample opportunity ties wore given to the plaintiff not only to produce his evidence but also to cross-examine the Government's witnesses and he was given an opportunity for putting forth his own defence as against the evidence and the circumstances of the case by means of writ ten memorandum. No doubt the civil court can go into the question whether there has been an infringement of the statute in the disciplinary proceedings. But in this case nothing more has been alleged and shown than a mere irregularity in the procedure which cannot confer a right of action in the civil court to the plaintiff. This is not a case to which the reasoning of the decisions in Vijaya Ragava v. the Secretary of State I.L.R. Mad. 466. and a pleader v. the Judges of the High Court of Madras ; will apply. On the other hand, in respect of the charges for which the plaintiff was found guilty and removed from service, there was a proper, bona fide enquiry by a competent officer and the enquiry was conducted by him in accordance with law and the principles of natural justice and the plaintiff was given an adequate opportunity of defending himself in the said enquiry. Therefore, the order of removal of the plaintiff from service is not illegal, ultra vires and wrongful or void and the plaintiff had no legal cause of action for a civil suit.

34. There is however no substance in the plea of limitation raised by the Government. It was contended that this suit is barred under Article 14 of the Indian Limitation Act. If the order of dismissal contravened Section 240(2) of the 1935 Act, it is void and no question of setting it aside will arise. Consequently, Article 14 will not apply: see Gangu v. Mahanraj A.I.R. 1934 Lah. 384, . Thiruvenkatacharyulu v. Secretary of State A.I.R. 1934 Mad. 147. In Abdul Vakil v. Secretary of State , it has been held that a suit by a sub-inspector of police to recover salary wrongfully withheld is governed by Article 120. In the Punjab Province v. Thara Chand A.I.R. 1947 F.C. 23, it has been held that the article of the Limitation Act applicable for a suit for recovery of arrears of pay will be Article 132. To the same effect is the decision in Provincial Government, Central Provinces and Berar v. Shamshul Hussain Siraj Hussain . In P.B. Thiruvenkatacharyulu v. Secretary of Stale A.I.R. 1934 Mad. 147, it has been held that where a declaration and injunction is sought for in respect of an act which is illegal or ultra vires, the article of limitation applicable to such a suit is Article 120. Therefore, whether this suit fell under Article 102 or 120, it was not barred by limitation.

35. In the result, there are no merits in this appeal and it has got to be dismissed and is hereby dismissed and in circumstances of the case without costs as it is found that this officer has become practically destitute and finds himself practically in the street after service which though at the and invited disciplinary action was distinguished till then by good work and signs of promise, as mentioned by the Inspector-General of Police in his proceedings. In dismissing the appeal we would also like to express our opinion that we could not wholly divest from our minds an uneasy feeling that the punishment of dismissal was perhaps far too severe and unlikely to have been imposed under the present merciful democratic dispensation. Therefore, it will be comforting thought if Government can find its way to take a merciful view and provide this officer who has got still some years of useful service any suitable employment or make an ex gratia grant or allowance.


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