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A.E. Voss Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectCivil;Service
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal669
AppellantA.E. Voss
RespondentSecretary of State for India
Cases ReferredGould v. Stuart
Excerpt:
secretary of state, liability of - government servant, suit by--power of the government to dismiss its servants--cause of action--plaint. - .....no authority representing the crown is able in the employment of persons in the service of the crown to contract with them so as to deprive the crown of the enjoyment of that power, and thirdly that that power can only be excluded and restricted by an act of the legislature. the plaintiff has alleged a contract of service with the crown, but in his plaint he has alleged nothing, which restricts the power of the crown to dismiss him. he alleges that it was a term of the contract that he should not be dismissed arbitrarily or otherwise than for good cause and in accordance with the orders, rules and regulations of the government on the subject. to begin with no order, rule, or regulation restricting the power of the crown in this respect has been set out in the plaint nor has any.....
Judgment:

Harington, J.

1. This is an objection in the nature of a demurrer by the defendant to the plaint. The suit is one in which the plaintiff claims arrears of salary and a declaration that he is entitled to a pension. The defendant says that on the face of the plaint the cause of action is barred by limitation, and, moreover, the allegations in the plaint, if all are admitted to be true, disclose no right in the plaintiff, which is enforceable according to the law of this country. The suit is brought on the allegation that the plaintiff entered the service of the Government of India as a clerk in the Foreign Office, and the plaint states: 'and it was contracted and agreed and it became a term of his employment that he should not be dismissed arbitrarily or otherwise than for good cause and in accordance with the orders, rules and regulations of the Government on the subject.'

2. It then goes on to allege what the plaintiff's salary was and that he was entitled to a pension, and in the third paragraph that 'on or about the 10th January 1900 the Government of India' 'in Calcutta dispensed with his, the plaintiff's service and refused' 'to employ him further and proposed removing the plaintiff's' 'name from the establishment of the Foreign Office--to dismiss' 'him from the service of the Government of India (sic)'--but such' 'steps were taken by the Government of India wrongfully and' '' illegally and without just cause and in violation of the orders,' 'rules and regulations of the Government of India.' Then the plaintiff states that he refused to accept the alleged termination of his contract and that he has always been ready and willing to do his duties and claims to be entitled to his salary from the 10th January 1900 to the 10th May 1905 and to the end of his correspondence with the Government, when he received the final refusal on the 1st April 1904. These are the main points in the plaint which call for any observation. The prayers are for judgment for Rs. 9,605 for salary from the 10th January 1900 to the 10th May 1905, and for a declaration that the plaintiff is entitled to a pension at the rate of Rs. 75 a month. Now the substantial and important point taken on behalf of the defendant is that the facts set out in the first paragraph to the plaint do not constitute a contract enforceable against the Government under the laws of the country. The law relating to the liability of the Crown in suits of this nature has been considered in several cases and has been clearly laid down in the case of Dunn v. The Qneen (1896) 1 Q.B. 116, which was decided in 1895. There Lord Esher, quoting a judgment of Lord Watson in the House of Lords, says 'such a concluded contract (i.e., a contract to serve the Crown), 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, it 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.'

3. Lord Herschell, in dealing with the same point in his judgment, says: 'I take it that persons employed as the petitioner was in the service of the Crown, except in cases where there is some statutory provision for a higher tenure of office, are ordinarily engaged on the understanding that they hold their employment at the pleasure of the Crown, so I think that there must be imported into the contract for the employment of the petitioner the term, which is applicable to Civil servants in general, namely, that the Crown may put an end to the employment at its pleasure.' Now that case is an authority for the proposition that the Crown has the power of dismissing its servants at will, secondly that no authority representing the Crown is able in the employment of persons in the service of the Crown to contract with them so as to deprive the Crown of the enjoyment of that power, and thirdly that that power can only be excluded and restricted by an Act of the Legislature. The plaintiff has alleged a contract of service with the Crown, but in his plaint he has alleged nothing, which restricts the power of the Crown to dismiss him. He alleges that it was a term of the contract that he should not be dismissed arbitrarily or otherwise than for good cause and in accordance with the orders, rules and regulations of the Government on the subject. To begin with no order, rule, or regulation restricting the power of the Crown in this respect has been set out in the plaint nor has any reference been made in the plaint to any such order, which would enable any person reading the plaint to understand to what it was that the plaintiff desired to refer. That is the first objection which, I think, can be properly made to the first paragraph of the plaint, namely, that it is too vague to enable the defendant, who has to answer it, to know what the plaintiff relies on to take his case out of the ordinary rule of law. Then apart from that I think the pleading is insufficient. The plaintiff has alleged a contract, under which he could bring under the general law no action against the Secretary of State, because under the general law the Secretary of State as representing the Crown has the power of dismissing the plaintiff. If the plaintiff desires to show that in his case he is exempted from the general law he must plead the facts, which bring him within the exception and exempts him from the ordinary law. For example, if any statutory provision exists, which gives him a higher tenure of office such as existed in the case of Gould v. Stuart (1896) App. Cas. 575, the plaintiff must allege it on his pleadings. It is not sufficient in my opinion to allege a contract restricting the power of the Grown, which no authority representing the Crown is entitled to make without alleging the existence of some statutory power under which the right of the Crown to dismiss its servant is so restricted. In my opinion therefore the plaint does not disclose any cause of action enforceable at law, because it does not allege that any statutory enactment exists, which has the effect of exempting the plaintiff from the liability which the law imposes on those who are engaged in the service of the Crown. That being my view it becomes unnecessary to discuss the question of limitation.

4. There must be judgment for the defendant with costs.


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