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Jamini Kanta Das Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 1 of 1951
Reported inAIR1955Cal45,58CWN936
ActsConstitution of India - Articles 141 and 311; ;Code of Civil Procedure (CPC) , 1908 - Section 9 - Order 33, Rule 10; ;Army Act, 1911 - Sections 8, 9 and 10; ;Contract Act, 1872 - Section 73
AppellantJamini Kanta Das
RespondentUnion of India (Uoi)
Appellant AdvocateParty in person
Respondent AdvocateJajneswar Majumdar, Adv.
DispositionAppeal partly allowed
Cases ReferredRohini Kumar Pal v. Kusum Kamini
- b.p. mookerjee, j.1. the plaintiff appellant brought the suit out of which the present appeal arises for the recovery of arrears of pay and for damages for illegally withholding payment and for illegal discharge from military service. the suit was dismissed by the trial court.2. the case as made in the plaint may be shortly stated. it is alleged that during the continuance of the last world war, the plaintiff was enrolled on 13-3-1942, by the divisional superintendent of the asansol division of the east indian railway to serve as a clerk in the indian engineers section of that railway. it is further alleged that the terms and conditions of service agreed upon were that the plaintiff would receive pay on a civil rate, viz., rs. 150/- per month with certain additional allowances and.....

B.P. Mookerjee, J.

1. The plaintiff appellant brought the suit out of which the present appeal arises for the recovery of arrears of pay and for damages for illegally withholding payment and for illegal discharge from military service. The suit was dismissed by the trial Court.

2. The case as made in the plaint may be shortly stated. It is alleged that during the continuance of the last World War, the plaintiff was enrolled on 13-3-1942, by the Divisional Superintendent of the Asansol Division of the East Indian Railway to serve as a clerk in the Indian Engineers Section of that Railway. It is further alleged that the terms and conditions Of service agreed upon were that the plaintiff would receive pay on a civil rate, viz., Rs. 150/- per month with certain additional allowances and perquisites. The plaintiff was under the said agreement to serve during the operation of the last War and twelve months thereafter, if so required. He continued in service till the end of the War and was discharged on 5-11-1945. According to the plaintiff, he ought to have been retained in service for twelve months after the expiration of the War.

It is further alleged that while he was continuing in service he was suddenly in utter disregard of the terms of the agreement reduced in pay as on 24-11-1943. The substantive pay of Rs. 150/- which was, according to him, stipulated in the original agreement was reduced to an all inclusive pay of Rs. 65/- per month only. Such reduction was further given retrospective effect from the date of the original enrolment. He was at one time directed to refund Rs. 2450 and odd which he had drawn on the basis of the substantive pay of Rs. 150/- as originally stipulated. Further payments thereafter were stopped as from November, and the plaintiff preferred an appeal to the higher authorities. While such appeal was pending, he was placed for trial before a Court Martial on certain charges relating to the statements made by him at the time of his enrolment. He was sentenced to five months' rigorous imprisonment with reduction in rank. At the instance of the Deputy Judge Advocate-General, Central Command, Agra, according to whom no offence had been committed by the plaintiff, the Court Martial proceedings were set aside by the higher authorities who directed that the plaintiff be relieved of all consequences of the trial.

3. On 2-7-1945, however, an option was given to the plaintiff either to remain in service on the reduced scale of pay as already directed under the previous orders, or to take a discharge. The plaintiff preferred the latter. An order was passed directing that the amount alleged to have been paid in excess, viz., Rs. 2450 and odd, need not be recovered. He was since the date of the stoppage of the pay paid at the rate of Rs. 65/- per month. In spite of his protest that he was entitled to receive the basic pay of Rs. 150/- he was compelled to sign a printed form to the effect that he had received all arrears of pay from the authorities. He was accordingly paid at the rate of Rs. 65/-per mensem as from 1-12-1943, to 3-11-1945, on which date the military authorities purported to proceed on the basis that his services had been terminated.

4. The plaintiff claims in the present suit that he had been appointed as from 13-3-1942, on the civil rate of Rs. 152/- per mensem and he was entitled to the difference between such rate and what was actually paid to him from 1-12-1943. He had also been discharged nine months before the completion of the term as in the agreement. He further alleged that owing to the stoppage of the pay and of all payments as from November, 1943, he had been put to great difficulties and loss. During that period famine was raging in Bengal where his family members resided. According to the arrangements made with the military authorities a portion of the pay was to be made available for the members of the family while a certain other portion was to be drawn by the plaintiff while in service. He further alleged that the arrest, trial and the orders of the Court Martial had been published in Bulletin Orders, but not the fact of his subsequent acquittal. He claims in the present suit damages and compensation for the monetary losses and physical and mental sufferings and for the loss of his reputation.

It is not necessary at this stage to refer in detail to the different items of compensation claimed. They will be dealt with when we consider each one of those specific claims after the general questions raised in the appeal are decided. We may state at this stage, however, that the total compensation claimed by the plaintiff was to be at Rs. 40,000/-. The plaintiff was permitted to sue as a pauper. He has also been permitted to file the present appeal as a pauper,

5. Various defences were raised on behalf of the Governor General in Council against whom the suit had originally been brought. The written statement filed was subsequently adopted by the Union of India after the Constitution came into force. It was contended 'inter alia' that the suit as framed was not maintainable; the claim was barred by limitation and waiver, on the merits it was alleged that the date of enrolment was on 19-3-1942, and not on 13-3-1942. The enrolment was claimed to be the only legal contract between the military personnel and the Government. As there was no endorsement as regards the rate of pay to be drawn by the plaintiff in this particular enrolment form, the terms and conditions of service of the plaintiff were to be regulated by the rules and conditions as provided in the Army Rules and Regulations. It was further contended that the admittance and even the payment of a basic pay of Rs. 150/- per month was under a misapprehension by the officers concerned. The Government as such was not bound by such acts on the part of the officers.

It was also alleged that the plaintiff had in fact misled the officers and had been party to certain alterations in the papers so as to make the date of enrolment to be on 13-3-1942, and not the correct date of 19-3-1942. It was further stated that the plaintiff had been sent for trial by the Court Martial for making false and untrue statements at the time of his enrolment. Though it was admitted that the orders and the conviction by the Court Martial had not been promulgated, the allegations made against him were true. The claims made by the plaintiff as regards the compensation and damages were resisted and controverted.

6. Various issues had been raised. The learned Subordinate Judge came to the conclusion that the suit as framed was maintainable. If the plaintiff had any legal claims such claims had not become barred by limitation, estoppel or waiver. The learned Subordinate Judge, however, held on the merits against the plaintiff. He came to the conclusion that the plaintiff having been enrolled on 19-3-1942, the pay as fixed by the authorities, viz., Rs. 65/- was the proper pay, and the plaintiff was not entitled to any relief at all.

7. Although the plaintiff appellant had originally filed the appeal through lawyers, he subsequently applied to the Court for leave to appear in person. Such permission having been given and the lawyers having already withdrawn, the plaintiff presented his case personally before this Court. He was accordingly heard in person and was given full and ample opportunity to do so.

8. Before we deal with the merits of the case it is necessary to consider the objections which had been raised on behalf of the defendant in the trial Court and which though overruled by that Court have been reiterated before us on behalf of the Union of India. These are about the maintainability of the suit.

9. It is urged on behalf of the defendant Union of India that the plaintiff was serving at the relevant time under the Crown and the claim for arrears of pay and/or damages is not maintainable in law. It is urged that the rule of English Law that a servant of the Crown cannot maintain a suit against the Crown is equally applicable in India. That rule of English Law was explained in the latest decision in -- 'Terrell v. Secy. of State for the Colonies', 1953-2 All ER 490 (A). In support of the contention that the English Rule has been applied to India reference was made to -- 'High Commr. for India v. I. M. Lall' as also to the earlier decisions in -- 'R. T. Rangachari v. Secy. of State' and -- 'R. Venkata Rao v. Secy. of State' 0043/1936 .

It was urged that the contrary view expressed by the Federal Court in -- 'Punjab Province v. Tarachand', AIR 1947 FC 23 (EX was overruled by implication by the subsequent decision of the Judicial Committee in 'I. M. Lall's case (B)' referred to above. The decision of the Federal Court in 'Tarachand's case (E)' was on 11-4-1947, whereas the decision of the Judicial Committee in 'I. M. Lall's case (B)' was on 18-3-1948. It was contended that under Section 21, Government of India Act, 1935, the decision of the Judicial Committee must be binding on this Court in preference to the decision of the Federal Court. A decision of the Supreme Court would under Article 141 of the Constitution be no doubt binding in supersession of all other decisions whether of the Judicial Committee or of the Federal Court.

10. During the hearing we expressed our disinclination to accept the contention raised. It is not necessary for us to deal in detail as to the substance of the argument as regards the correctness of the contentions raised, as in the meantime the decision of the. Supreme Court in --'State of Bihar v. Abdul Majid', D/- 11-2-1954, has been reported in : (1954)IILLJ678SC , It has now been finally settled whatever doubt there might have been, as had been expressed in some of the decisions, as in -- 'Gulzar Ahmad v. Govt. of U. P.', : AIR1950All212 ; and -- 'Om Prakash Gupta v. United Provinces', : AIR1951All205 , that 'Tarachand's case (E), has not been overruled by the Privy Council. The Jaw which binds all the Courts now is to be as stated by the Supreme Court in the case just referred to. A suit for recovery of arrears of pay by a civil servant in India for the period he was actually in office is competent in a Civil Court. The rule of English Law that a Crown servant cannot maintain a suit against the Crown for recovery of arrears of pay has been negatived by the provisions of the statutory law in India, and that rule does not prevail in India. The recent Judgment of the Supreme Court having set at rest the question in issue, the objection raised on behalf of the Union respondent must be overruled.

11. We now proceed to deal with the merits of the case.

12. Apart from the subsidiary questions which arise the principal point which falls to be decided is, 'when was the plaintiff enrolled in service?'. If the date of enrolment be as on 13-3-1942, the defendant respondent concedes that the claim as made by the plaintiff cannot be resisted. If, on the other hand, it is found that he was enrolled not on 13-3-1942, but on the 19th March following, the defendant contends that the pay which the plaintiff is legally entitled to is Rs. 65/- per month. The plaintiff, on the other hand, contends, as an alternative case, that even if he had been actually enrolled on the 19th, he having been engaged on a pay of Rs. 150/- per month, and having been paid at that rate until he was given the option of discharge, he is entitled to receive from the Government pay at the rate of Rs. 150/- per month. The respective contentions will be clear when we deal with some of the details of fact on which these contentions are raised.

13. As regards the question as to on which date the plaintiff was really enrolled we do not think that there can be any serious doubt. At one stage a feeble attempt was made to make the date of recruitment to be the date of enrolment. That argument, however, cannot be sustained, as in various places in the Army Regulations to which reference was made by both the parties before us, a clear distinction is maintained as between recruitment and enrolment. There can be no doubt that in certain cases the date of recruitment is also the date of enrolment, but the enrolment is an act which is well defined under the Indian Army Act of 1911. Reference may be made to Sections 8 and 9 of that Act. The 1911 Act was in force at the time when the plaintiff was taken in military service. It is only after the enrolling officer is satisfied about certain particulars, and a form is signed by the person desirous of being enrolled, that the enrolling officer also signs the form, and under Section 9, Indian Army Act. 'the person shall then be deemed to be enrolled'. From the papers placed before us it is manifest that though the plaintiff had appeared before Mr. Uddin who was not the enrolment officer on 13-3-1942, Mr. Pandey, the enrolment officer who was away from the station on that date, signed the paper on 19-3-1942, after his return. The enrolment was, therefore, completed in terms of Section 9, Indian Army Act, on 19-3-1942. The learned Subordinate Judge also came to the same conclusion, though we need not refer to or express our agreement with all the reasons which had been given by him in reaching that conclusion.

14. It is contended on behalf of the Union of India that once the Court comes to the conclusion that the enrolment was on 19-3-1942, the plaintiff's suit ought to be dismissed. We do not think that the conclusion on the first point as aforesaid concluded the plaintiff's claim and case altogether. There are various other rules and provisions in the statute as also orders passed by or on behalf of the Government which will require the serious consideration of the Court.

15. It will be convenient if we just indicate at this stage the procedure which was followed and the action taken by the various departments and officers.

16. The plaintiff was originally recruited at Howrah on 19-2-1942, and enrolled on 20-2-1942, with a direction to join work at Mogulsarai on 1-3-1942 (exhibit A(1) ). He was, however, discharged from military service at his own request on and from 12-3-1942, on the ground that he had been irregularly enrolled, having been promised civilian rates of pay based oh terms and conditions of service when he was in Burma Railways whereas on the enrolment form subsequent to signature of the parties an expression had been introduced designating him as clerk of grade III (exhibit 11).

17. On the next day, viz., on 13-3-1942, he appeared at Asansol before one of the officers, viz., Mr. M. A. Uddin. The enrolment form was filled in and signed by the enrolling officer Pandey on 19-3-1942. It ought to be mentioned that the date as appearing on this enrolment form was subsequently altered on 13-3-1942, under circumstances which will be narrated immediately.

18. In the enrolment form (exhibit A) there was no mention of pay or allowances to which the plaintiff would be entitled on such enrolment. On the same day, we find from the Minute Sheet (exhibit ) a letter addressed by the Divisional Superintendent to the Officer Commanding Camp Adjutant, Lucknow. There it was mentioned that Jamini Kanta Das had been appointed as a clerk enrolled in Indian Corps of Engineers on the 19th (subsequently penned through and altered to 13th) March, 1942. The concluding paragraph of this Minute Sheet was in the following terms:

'He is an ex-employee of Burma Railways and has elected civil rate of pay, plus percentage on Rs. 150/- p.m., the last pay drawn by him.'

19. On the same day a second class ticket pass was made over to the plaintiff for travelling from Asansol to Howrah and back (exhibit 6), On the same date, i.e., 19-3-1942, the Divisional Superintendent addressed a letter to Major Tidy, Officer Commanding, 151, Railway Construction Company, Lucknow, introducing the plaintiff as the fittest person to work in his Company and giving his qualifications. The plaintiff was under the orders aforesaid to report himself at Lucknow by 31-3-1942.

20. In the meantime a circular letter was issued from the Office of the Officer Commanding Technical Group, East Indian Railway, Allahabad, intimating that the Jullunder Headquarters had drawn attention to a recent amendment of the Rules which required all Railway personnel enrolled for Railway Military Units with effect from 14-3-1952, to be given military rates of pay. The implication, it is said, was that if any one had been incorrectly enrolled as and after the 14th March on pay in excess of what was indicated, 'he should be given the choice between accepting Military Rates of Pay and his discharge (exhibit C(8) ),

21. It cannot be ascertained on which date this circular letter was received by the Lucknow Office. The two communications sent from Asan-sol on 19-3-1942, viz., exhibit 1 and (exhibit C(7)), referred to above were received at Lucknow before 27-3-1942. On this latter date. Major Langley, I. E., O. C., 151, Railway Construction Company, Lucknow, wrote to the Divisional Personnel Officer, Asansol (exhibit C(1) ) as also to the Divisional Recruiting Officer, Asansol (exhibit C(3) ), pointing out that there had been a mistake in the Minute Sheet of 19-3-1942 (exhibit 1) referred to above; the date of enrolment of the plaintiff was the 13th March and not 19-3-1942. The letter (exhibit C(1) ) concluded with the intimation:

'The necessary correction has been made In the papers in this office and I shall be obliged if you will correct your office copy.'

As stated already, a copy of exhibit C(1) was sent to the Divisional Recruiting Officer also for making alterations in his office papers as well.

22. On 31-3-1942, the plaintiff reported before Major Tidy, Officer Commanding, 151, Railway Construction Company, and his arrival was recorded in the official records (exhibit 11).

23. On the same date, it now appears from the records, the Divisional Superintendent, Asansol wrote to the Camp Adjutant, Railway Construction Company, Lucknow, that Jamini Kanta Das had been enrolled on 19-3-1942 and had been sent to report to him for joining as from 31-3-1942, and that he had elected civil rates of pay plus percentage; as from the Allahabad Circular (exhibit C(8) ) it appeared that that was irregular, the Lucknow Officer was requested to deal with the case according to the instructions contained in the Circular Letter issued from Allahabad. This letter was sent, as it appears on the face of it, in reply to the letters of request which had been sent from Lucknow to Asansol for making necessary corrections in the papers of Jamini Kanta Das, the plaintiff, as contained in exhibits C(1) and C(3).

These two letters were dealt with by the Asansol Office on 2-4-1942, when by exhibit C(5) the Divisional Superintendent, Asansol, refused to correct the date of 19-3-1942, to 13-3-1942, it being pointed out that no correction should be made in the enrolment form, as it had already been intimated by the Lucknow office in the letter, dated 27-3-1942. On which date this letter, dated 2-4-1942. reached the Lucknow office has not been ascertained or pointed out to us. There is, however, on the record a copy of a letter which was sent by the plaintiff Jamini Kanta Das to the' recruiting officer M. A. Uddln intimating that corrections had already been made about the date of enrolment in the Lucknow office and he would take necessary steps for making such corrections in the Asansol records as well.

24. In exhibit 11 to which reference has already been made under the signature of Major Tidy, the Officer Commanding at Lucknow, orders were recorded accepting the enrolment of the plaintiff Jamini Kanta Das as from 13-3-1942, correcting the original date 19th. It appears that the plaintiff joined as Havildar Chief Clerk from the next day, i,e., 12-4-1942. On 14-4-1942, a letter (exhibit C(4) ) was sent from Asansol by Pandey to Major Tidy at Lucknow explaining that though the plaintiff Jamini Kanta Das had been enrolled on 19-3-1942, he had been allowed to draw the civil rates of pay, but in terms of the subsequent Circular letter issued from Allahabad he was found not to be entitled to the same as he was actually enrolled on 19-3-1942. Reference was made to the D. O. Letter written by the plaintiff Jamini Kanta Das (exhibit C) referred to above as conveying the information that the corrections which had already been made in the Lucknow papers had not been rectified. Major Tidy was requested to look into the matter personally, to rectify the alterations made and to deal with case as per Allahabad Circular.

24a. From the records now before us, it appears that no further action was taken on this letter until more than a year later, i.e., some time in October or November, 1943. The plaintiff had after joining his appointment been drafted to active service and had been moving from one place to another, either in Burma or in India or elsewhere. There are no records from which it can be ascertained, far less proved, that any action was taken in terms of the Circular Letter issued by the Allahabad office, even if it be taken that Jamini Kanta Das had been wrongly enrolled after 14-3-1942 and been treated as one entitled to draw the higher civil pay and not the usual military pay under the Rules.

25. Prom the statement of facts as narrated above it is significant that the Lucknow authorities had to alter the date of appointment from 19-3-1942, to 13-3-1942. This altered date appeared in papers which had been sent out from Asansol. The new documents which were issued from the Lucknow office under which the different disbursing authorities were to make payment and the officer concerned was entitled to draw were on the basis that the date of enrolment was 13-3-1942. The fact that the date was not 13th March, but the 19th was not intimated at any stage either to the officer concerned until more than a year later as stated above, or to the different disbursing officers by whom payments were being made either to the plaintiff himself or to the members of his family in Bengal.

26. One of the most important pieces of evidence which has been produced in Court is exhibit 2, the pay book which is maintained under the Indian Army Act and the Rules and Regulations of the military department. He was paid on that footing and continued to receive payments on the basis of civil pay at the basic rate of Rs. 150/-per month. The book as it appears from page 10 purports to have been opened with effect from 13-3-1942. The book contains attestations and signatures of superior officers. The last payment recorded is on 15-10-1943, with a note thereafter in red ink,

'No more payments to be made until further orders.

S. Tidy


27. A new pay book exhibit 2 (a) was subsequently issued which the plaintiff refused to sign at page 10. This new pay book showed the date of enrolment as on 19-3-1942, and on 31-3-1944, there was a debit balance of Rs. 2450/- 11 as. under the signature of the Officer Commanding, Lieutenant Stone.

28. Reference may at this stage be also made to the discharge certificate (exhibit 3) which was issued after the final discharge on 4-11-1945. It is significant that in this discharge certificate at page 7 the date of enrolment still appears to be 13-3-1942. and the ground for the discharge is recorded on the same page as being by order of Commandant, 2 T. T. C., Jullunder in consequence of his services being no longer required under Item/section iii(v) of the Indian Army Act and that he had served for 3 years and 235 days.

29. That there was some mistake somewhere, even if conceded, it is incontrovertible that the plaintiff was actually placed on duty on the basis of civil pay at the basic salary of Rs. 150/- per month, and he was not intimated at all of the orders which were passed by the officers to give him an option under the Allahabad Circular.

30. An attempt which was made at one stage of the suit by the plaintiff on the footing that the defendant was barred by estoppel and waiver was not accepted by the Lower Court. On the other hand, in this Court an attempt was made by the learned Advocate appearing on behalf of the defendant that wrong orders issued by particular officers accepting the claim of the plaintiff to civil pay could not and did not bind the Government. This question may, and in our opinion should, be disposed of from another point of view.

When during an emergency period a large number of persons had to be enrolled and quickly drafted for services in different parts of India and abroad there might be mistake or omission in the enrolment form or for the matter of that in enrolment papers. If a person continued for the space of six months drawing pay as a member of the military personnel and his name be borne on the rolls of any Corps or department he would under Section 10, Indian Army Act, be deemed to have been duly enrolled. That is the statutory presumption which is raised. No doubt, the concluding words of that section referred to places a bar on the person concerned disentitling him to claim a discharge because of such irregularity or even illegality. But it is quite clear that the Legislature kept in view the consequences of a person actually remaining enrolled not being considered to be illegally enrolled after the lapse of a certain period.

31. Prom equitable considerations also if a person is actually engaged and is required to render services on terms of a certain pay and emoluments the only way in which the case, on a mistake being found out, is to be handled is as indicated in the Circular Letter issued by the Allahabad office (exhibit C(8) ) in the case. The direction was that if any one had been incorrectly enrolled in violation of the directions contained in the modified Rule, 'he should be given the choice between accepting Military Rates of Pay and his discharge.' There is no provision -- far less any direction -- that for the services already rendered by such a person he should be deemed to have been engaged as under the low scale of pay and be disentitled till the date of discharge to receive the original pay as fixed. There is no explanation why steps were not taken to give the choice until more than eighteen months had rolled on.

32. We also notice that the materials which had been brought before the Court are not complete. Fruitless attempts were made on behalf of the plaintiff to obtain from the defendant's officer various original papers and orders of which specific reference was made in the petitions filed before the Court under Order 12, Rule 8, Civil P. C. On more than one occasion such applications had been filed. The only answer which we have on the record is a telegram which was received by the Subordinate Judge at Asansol in reply to the summons for the papers specified was to the effect that they were not traceable. Witnesses who were examined on behalf of the defendant Union could not satisfactorily explain that any reasonable attempt had been made to trace the relevant papers.

It is clear that most of the relevant papers had been placed before the Court Martial, and they were to be found quite easily if an attempt had been made. If such papers had been available to which reference is made in the petitions by the plaintiff (for instance, those printed at pages 24 to 26 of the paper book) many of the questions could have been satisfactorily decided. In the absence of such papers it was not possible to ascertain definitely what effect, if any, there was from the copy of a letter which had been issued by the Government of India on 25-10-1943, to the Adjutant General. A copy of this letter was attached to the notice issued by the plaintiff, and the original though called for had not been produced. The plaintiff attempted to argue on this letter, dated 25-10-1943, that the previous stringent rule which had been the basis of the Allahabad Circular had been subsequently modified, but we have not sufficient materials on which a definite conclusion can be reached on this line of argument.

33. The contention on behalf of the defendant respondent is that the enrolment paper is the most important paper. But when the enrolment paper does not contain the terms of appointment or the pay to be drawn, the Minute Sheet which was recorded by Asansol officers and forwarded to Lucknow and the letters sent out are not only relevant but of great importance in finding out what the terms of the appointment were. The learned Advocate for the Union contended that in the absence of any entry in the enrolment paper we can and need refer to the Regulations only to find out what should be the basic pay of the officer concerned. We do not think that this approach is a correct one. The case of the plaintiff is that he had been appointed -- whether it be on the 13th or 19th March, 1942 -- on a basic pay of Rs. 150/- per month. That he had been so appointed is conclusively proved by the papers forwarded by Asansol Officers and the pay book. The effect of the subsequent modification has only to be considered by us. To find out what pay was actually settled with reference to the regulations is not necessary. Reference to the Regulations becomes relevant only for consideration as to whether in view of such provisions in the Regulations the person concerned was disentitled to claim any other pay or that he had actually been enrolled on terms different from those which are contained in the Regulations.

34. On the conclusion reached by us that though not in terms of Section 10, Indian Army Act, yet on the principles underlying the same as also on equitable grounds which find an echo in the Circular Letter issued from Allahabad the plaintiff is entitled to a basic pay of Rs. 150/- per month for the period that he was in service, i.e., until the date of his discharge.

35. This takes us to the next part of the plaintiff's case as to whether he had been discharged before time and that he must be deemed to be still in service in terms of the conditions included in the enrolment paper. We do not think that there is any substance in this contention. The entry in the enrolment paper clearly indicated that he had stipulated to remain in service during the period of war and for a certain period thereafter, 'if required'. Therefore, after the conclusion of the War when the Units were being disbanded a person so discharged cannot complain that he could not have been discharged. There was an option reserved which could be exercised by the Military authorities and that option had been exercised. In the Discharge Certificate (exhibit 3) the reason for the discharge is clearly indicated and no objection can be raised to the same. The plaintiff must, therefore, be deemed to have been rightly discharged as and from 4-11-1945.

36. We have next to deal with the different items of claim for compensation and damages under different counts.

37. So far as the claim for ration allowance at various rates is concerned neither the period nor the rate, far less the provisions under which such claim could be made, have been placed before us. Similarly with regard to the claim for the night duty allowance, there is no evidence either as regards the rate or the period mentioned except at one place in the uncorroborated testimony of the plaintiff which we are not disposed to accept.

38. The next item about travelling allowance being the difference between second class and third class fares for journey from Jullunder to Munshigonj after the plaintiff had been discharged is made under a misapprehension. He was given a third class permit on the basis of the basic pay which according to the military authorities he was entitled to. If he had been -- as we have now found that he was -- entitled to a basic pay of Rs. 150/- per month a permit of a higher class would have been appropriate. We have no materials before us on which we can definitely say that he travelled in a higher class and spent a larger amount for which he should be compensated. Travelling having been completed and permit for such travelling having been given no question of difference of fare at this stage can arise.

39. The next item is for damages for illegally withholding payment to the extent of Rs. 34000/-, under one sub-item for starvation and loss of health and another for medical treatment for such loss of health, loss of education and loss of property. These are on the face of it claims which are too remote and far fetched, even if withholding of the payment for the last few months of the service could in any view be regarded as leading, to such consequences.

40. If a person is not paid the due salary which is payable, he is certainly entitled to compensation for such withholding of payment by way of interest or reasonable compensation which flow directly from the fact of the withholding of such payment. There are further no sufficient materials before us on which different items of claim put forward under the four sub-heads can be substantiated. The amounts claimed also are such as cannot be entertained regard being had to the position and status of the appellant. One of the items is loss of properties. He attempted to state that because of difficulties in which he had been placed and of the scarcity prevailing at that time some of his properties were sold which would not have been sold had he received the salary in time. He further attempted to claim that the value fetched at that time was abnormally low. These are questions which cannot be considered as justiciable ones even if relevant evidence had been available. This part of the claim must, therefore, be dismissed.

41. The last item consists of damages for illegal discharge from service. As we have already held that the discharge was not an illegal one, but within the powers and jurisdiction of the authorities as & under the terms of the enrolment, it is not necessary for us to consider the claim for damages under this head, He is not entitled to any damages as he has not been illegally discharged

42. The result, therefore, is that this appeal is allowed in part. It is declared that the pay of the plaintiff during the period of his service was Rs. 1507- (Rupees one hundred and fifty only) per mensem at the basic pay with allowances and perquisites. He had been paid at the rate of Rs. 150/- up to 30-11-1943. From 1-12-1943 to 3-11-1945, he has been paid at the basic rate of Rs. 65/-per month. He had been paid at the gross rate of Rs. 18778/- from 18-4-1943 to 30-11-1943, as it appears from exhibit 9 (Statement of final settlement of accounts). For the period of 1-12-1943 to 3-11-1945, he will be entitled to an additional amount, viz., the difference between Rs. 18778/-and Rs. 65/- (which was actually paid) per month, i.e. Rs. 12278/- will represent the arrears of pay per month to which the plaintiff was entitled during this period and which was not paid to him. The plaintiff will be entitled to Interest on the total amount so found from the date of discharge. (4-11-1945) till the date of payment at the rate of six per cent, per annum.

43. As we have indicated already, the plaintiff appellant had been permitted to file the suit in the trial Court and to prosecute the appeal in this Court as a pauper. It is now necessary to give necessary directions under Rule 10 of Order 33, Civil P. C., as regards costs. The plaintiff has succeeded in part. There is discretion given to the Court under Rule 10 of Order 33, and it is open to the Court to give necessary directions as to the party from whom the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue and to prosecute the appeal as a pauper would be recoverable by the State. It is not incumbent on the Court to allocate in every case the costs as amongst the parties proportionate to the success. See -- 'Rohini Kumar Pal v. Kusum Kamini' : AIR1928Cal196 .

44. We have considered the circumstances of this case. The amount claimed for damages and compensation was high and has not been allowed by us. But in view of the defence denying every part of the relief which the plaintiff had claimed, raising a very important question as regards the jurisdiction of the civil Court to entertain such suits, we think that in the special circumstances of this case the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper and prosecute the appeal in this Court as a pauper would be recoverable by the State of West Bengal from the Union of India. Thus court-fees amounting to Rs. 1800/- for the suit in the trial Court and Rs. 3000/- for the appeal in this Court, aggregating to Rs. 4800/- (Rupees four thousand and eight hundred only) will be recovered by the State of West Bengal from the Union of India.

45. The question of principle about the jurisdiction of the Court was a debatable one, and different Courts had expressed different views until during the hearing of the appeal in this Court, the Supreme Court has now settled the question.

46. As we have not made the plaintiff-appellant liable for any portion of the court-fees which would have been paid by him on the plaint in the trial Court and the memorandum of appeal in this Court we do not think that the costs of hearing should be apportioned. The parties will bear their respective costs excluding the costs of court-fees in both the Courts.

47. Let a copy of the decree of this Court be forwarded to the Collector.

Renupada Mukherjee, J.

48. I agree.

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