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Mahammad Abdul Wahed Vs. Province of Bengal - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1941Cal553
AppellantMahammad Abdul Wahed
RespondentProvince of Bengal
Cases ReferredDoya Narayan Tewary v. Secy. of State
- .....the second munsiff's court at krishnagore. after a somewhat chequered career, he was removed from government service in february 1939 and has brought a suit against the province of bengal claiming rs. 22 lakhs, general damages and nearly rs. 8000 for loss of salary and various allowances to which he claims to have been entitled under his conditions of service. the plaintiff appears in person and it is difficult to gather from his plaint the exact nature of his cause of action, but it appears to be mainly damages for wrongful dismissal. issues were framed by the court on 30th january 1941 and the case was set down for trial of three preliminary issues which are as follows:(1) is the suit maintainable against the defendant for alleged wrongful dismissal by reason of the provisions of the.....

McNair, J.

1. The plaintiff was appoint-ed in 1934 as reserve clerk in the Second Munsiff's Court at Krishnagore. After a somewhat chequered career, he was removed from Government service in February 1939 and has brought a suit against the Province of Bengal claiming Rs. 22 lakhs, general damages and nearly Rs. 8000 for loss of salary and various allowances to which he claims to have been entitled under his conditions of service. The plaintiff appears in person and it is difficult to gather from his plaint the exact nature of his cause of action, but it appears to be mainly damages for wrongful dismissal. Issues were framed by the Court on 30th January 1941 and the case was set down for trial of three preliminary issues which are as follows:

(1) Is the suit maintainable against the defendant for alleged wrongful dismissal by reason of the provisions of the Government of India Act?

(2) Is the suit maintainable as against the defendant by reason (a) of the alleged wrongful acts or any of them set out in paras. 3, 4, 5, 6, 7, 9, 11, 12, 13 and 14 of the plaint, (b) of the refusal of travelling allowance as alleged in paragraph 5 of the plaint?

(3) Has this Court jurisdiction to try this suit?

2. The defendant contends that assuming the suit is for wrongful dismissal and assuming further that the plaintiff was wrongfully dismissed, the suit is not maintainable owing to the provisions of section 240, Government of India Act, 1935. Section 240 provides:

Except as expressly provided by this Act, every person who is a member of a civil service of the Grown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

3. The section is similar to Section 96 (b),Government of India Act of 1919 except that Section 96 (b) contains the words:

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

4. In a decision of the Privy Council on the interpretation of Section 96 (b), Government of India Act, Venkata Rao v. Secy. of State 0043/1936 , the law has been finally laid down that the statute does not confer on a Government servant a right en-forcible by action in a Court of law, to hold his office according to the rules framed by the Government for members of his service and to have it terminated only in accordance with those rules. In that case the Privy Council upheld the finding of the lower Courts that the rules relating to an enquiry into the conduct of the plaintiff had not been followed and that the enquiry was defective, but they held further that, as a matter of law the plaintiff could obtain no redress in the Courts by action. 'To give redress is the responsibility,' said the Board, 'and, their Lordships can only trust, will be the pleasure of the Executive Government'. Their Lordships in giving the grounds for their decision accepted the view propounded in the lower Court and adopted by Lord Hobhouse in Shenton v. Smith (1895) 1895 AC 229 at p. 234. They considered that:

Unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown : not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit, but by an appeal of an official or political kind.

5. Issue 2 deals with the specific acts of the Government which the plaintiff alleges in his plaint, whereby he is said to have suffered damage. Mr. Mozumdar on behalf of the Government has referred to a number of cases in support of his contention that no suit lies for wrongful dismissal, and if that be so, no suit lies also for damages suffered by reason of suspension or reduction. It is clear that no suit is maintainable against the individual members of Government for their official acts; in fact no such suit has been brought. It is equally clear that no such suit can lie against the Secretary of State for such acts, nor against the Provincial Government. The plaint, so far as I can understand it, is based on breach of contract, but some of the paragraphs suggest that the action is based on damages for misconduct or dishonesty on the part of Government officials which, according to the plaintiff, caused him mental pain and trouble. I refer in particular to paras. 6, 7, 11 and 14 of the plaint, and I confess I am unable to appreciate the exact cause of ac-tion to which these allegations give rise, unless it is based on libel. I have tried to give the plaintiff such help as is in my power, to enable him to formulate his own case and to understand and meet the case which has been set up on behalf of the Government; but assuming that his statements as to what occurred are correct, it appears to me that his right at law does not exist. It was held by this Court in Nobin Chunder Dey v. Secy. of State ('75) 1 Cal 11 that no suit was maintainable against the Secretary of State in respect of acts done by Government in exercise of sovereign powers. There the plaintiff had made the highest bid at an auction of licenses for five shops for the sale of ganja and sidhi and he paid the necessary deposit for the licenses. Subsequently the licensing authorities refused the plaintiff the licenses for the shops and retained his deposit. The Court held that laws for the taxation of subjects by the imposition of customs duties are laws that can only be made or enforced in the execution of sovereign powers, and the sale at which the plaintiff purchased his rights only constituted a portion of the machinery by which the imposition and collection of excise duties were regulated. In my view the plaintiff before me is faced with the same obstacle : he was a clerk in a subordinate Court of justice, and the duties carried out by him and by his superior officers were part of the machinery for carrying on the administration of justice. That clearly is in exercise of sovereign powers.

6. I am further of opinion that the plaintiff has no cause of action in respect of the suspension to which he refers in para. 3 of his plaint. With deference I agree with the view of the learned Judge stated in Jehangir M. Cursetji v. Secy. of State ('03) 27 Bom 189, that the power of dismissal must necessarily include all other powers. The power to dismiss must include the power to suspend or reduce. It would be impossible for any Government or corporation or even for an individual employer to maintain discipline or insist on efficient service unless ha had the power to enforce it by some such means. I, therefore, decide issue 2 against the plaintiff. On issue 3 I hold that the Court has no jurisdiction to entertain this suit. It is admitted that the plaintiff was appointed in Nadia and dismissed in Nadia, and his entire service has been in districts outside the jurisdiction of this Court. It is true that formal leave was granted under Clause 12 of the Letters Patent for the institution of this suit at the time when the plaint was filed, but it is well established that such leave can be revoked when the facts are brought before the Court. The only possible ground for bringing the suit in this Court would be if the plaintiff could establish that the defendant dwelt or carried on business or personally worked for gain within the jurisdiction. It has been held in Doya Narayan Tewary v. Secy. of State ('87) 14 Cal 256 that the Secretary of State is not a body corporate though it is allowed to be sued as a body corporate; it is merely a name by which the Government of India may sue or be sued. Similarly, the Government of the country is not a business within the meaning of Clause 12, Letters Patent, and the Secretary of State cannot be said either to dwell or carry on business within the jurisdiction of this Court. By Section 176, Government of India Act, 1935, a Provincial Government may sue or be sued by the name of the province in relation to its affairs in the like case as the Secretary of State in Council might have sued or been sued if that Act had not been passed. I hold, therefore, that there is no jurisdiction in this Court to try this suit.

7. The preliminary issues are, therefore, all decided against the plaintiff, and since those issues have been decided on the assumption that the facts are as stated by the plaintiff, it appears to me undesirable that the parties should be put to the expense of calling evidence at this stage to prove the facts. The plaintiff has not produced any documents, but he has referred in detail during his argument to the facts as he alleges they took place. He has called for certain documents from the defendant, but on each occasion when the document was produced he alleged that it was not the document to which he referred, although he has based his argument on some portion of it. He has made allegations that various documents, of which he had sought discovery, have not been shown to him and that documents in respect of which he has been given discovery, are not the originals, or else that they had been tampered with since the date on which they were made. These are all matters with which I am unable to deal at this stage and I consider it would not be in the interest of the parties to embark on a lengthy trial on evidence in view of the fact that on the preliminary questions of law 1 am of opinion that this suit cannot succeed. I express no opinion on the facts which have been related to me by the plaintiff, and if at some future date it is desirable that the facts should be gone into, the Judge who then deals with the evidence will be able to decide whether the plaintiff has or has not any form of grievance. The only point which I decide at this stage is that he has no right of action in this Court. On the preliminary issues the suit is dismissed with costs.

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