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Ramesh Chandra Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 70 of 1948
Judge
Reported inAIR1953Cal188,57CWN767
ActsIndian Independence (Rights, Property and Liabilities) Order, 1947 - Schedule - Articles 10(2) and 12(2); ;Government of India Act, 1935 - Section 240, 240(1), 240(2) and 240(3), 241 and 241(2); ;Civil Services (Classification, Control and Appeal) Rules; ;Specific Relief Act, 1877 - Section 42
AppellantRamesh Chandra
RespondentState of West Bengal
Appellant AdvocateApurba Dhan Mukherji and ;Tarak Nath Roy, Advs.
Respondent AdvocateH.K. Das, Senior Govt. Pleader and ;Anil Das Gupta, Adv.
Cases ReferredPunjab Province v. Tara
Excerpt:
- das, j. 1. this is an appeal by the plaintiff and is directed against the judgment and decree of sri j. p. mukherjee, learned subordinate judge 6th court, alipur, dt. 24 parganas, dated 3-2-1948. 2. the suit out of which this appeal has arisen, was instituted on 18-12-1945 against the respondent, the province of bengal. the material allegations in the plaint were that the plaintiff was appointed a rationing officer by the province of bengal on a salary of rs. 400/-per month, that his appointment was duly notified in the calcutta gazette by an order of the governor, that by a letter dated 22-1-1944 the deputy controller of rationing notified to him, his appointment as rationing officer, that he was posted at panihati and acted as such till 5-6-1944, when he was transferred to garulia, that.....
Judgment:

Das, J.

1. This is an appeal by the plaintiff and is directed against the judgment and decree of Sri J. P. Mukherjee, learned Subordinate Judge 6th Court, Alipur, Dt. 24 Parganas, dated 3-2-1948.

2. The suit out of which this appeal has arisen, was instituted on 18-12-1945 against the respondent, the Province of Bengal. The material allegations in the plaint were that the plaintiff was appointed a Rationing Officer by the Province of Bengal on a salary of Rs. 400/-per month, that his appointment was duly notified in the Calcutta Gazette by an order of the Governor, that by a letter dated 22-1-1944 the Deputy Controller of Rationing notified to him, his appointment as Rationing Officer, that he was posted at Panihati and acted as such till 5-6-1944, when he was transferred to Garulia, that on 9-7-1944, he received a copy of an order dated 6-7-1944, passed by the Controller of Rationing, to the effect that he was discharged from service .

The plaintiff submitted that the order of discharge was illegal, arbitrary and 'mala fide', that the plaintiff was not informed about the charges laid against him, that no inquiry was made and no formal proceedings were drawn up as required by the Civil Service Rules and Regulations, that the order purported to have been made on the basis of confidential inspection notes, that the plaintiff sent petitions to the Minister, Civil Supply Department and a memorial to the Governor but to no effect. The plaintiff then served a notice under section 80, Civil Procedure Code. The plaintiff prayed for a declaration that the order of discharge was 'ultra vires' and illegal, and that his service as a Rationing Officer still continues and that the plaintiff be reinstated in his posts as Rationing Officer with pay from the date of his discharge. In the alternative.........the plaintiff claimed damages to the extent of Rs. 6906 annas 10 pies 8 for his wrongful discharge.

3. The Province of Bengal filed a written statement and 'inter alia' pleaded that the plaintiff was discharged with the approval of the Government on the ground that his work was unsatisfactory, that the plaintiff was not entitled to the declarations prayed for or to any damages.

4. The learned Subordinate Judge negativedthe allegation as to 'mala fides' on the partof the Deputy Controller of Rationing. Thelearned Judge however, held that

'the plaintiff was discharged without properinquiry as to his competence, and withoutbeing allowed any opportunity to explain thecharges of incompetence levelled against him.'

5. The learned Subordinate Judge was, however, of the opinion that even if the plaintiff be a permanent Civil servant under the Crown and a Gazetted officer, non-compliance with Section 240, Government of India Act, did not entitle the plaintiff to the declarations prayed for.

6. The learned Subordinate Judge seemed to hold that 'as the rationing itself was a temporary measure' and the plaintiff was an old retired officer, the plaintiff's appointment was a temporary one.

7. The learned Subordinate Judge further held that in case of temporary servants, an order of discharge could be made under Section 241(2)(b), Government of India Act, 1935; but as no notice had been given, the plaintiff was entitled to one month's salary viz., Rs. 400/-.

8. The learned Subordinate Judge further held that the plaintiff was not entitled to damages for wrongful dismissal.

9. In the result, a decree for Rs. 400/- was passed in favour of the plaintiff.

10. The decision under appeal was pronounced on 3-2-1948. Against this decision the plaintiff filed this appeal making the Province of Bengal as the sole respondent. While the suit was pending in the Court below, on 15-8-1947, India was partitioned. By virtue of Section 3, Indian Independence Act, (10 & 11, Geo VI C 30), the old Province of Bengal ceased to exist as from 15-8-1947, and in lieu thereof two new Provinces, to be known as West Bengal and East Bengal, were constituted,

11. A question, therefore, arises as to whether the appeal is properly constituted, because the respondent is still described as Province of Bengal which, in law, is now defunct.

12. In order to provide for contingencies which would arise in consequence of the above provision, the Indian Independence (Rights, Property and Liabilities) Order, 1947, was promulgated. The relevant provision is Article 12(2) of the Order which reads as follows:

'Where any Province from which property rights or liabilities are transferred by this order is, immediately before the transfer, a party to legal proceedings with respect to that property, rights or liabilities, the Province which succeeds to the property rights or liabilities in accordance with the provisions of this order, shall be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may continue accordingly.'

13. The above automatic substitution of one Province or another, for the defunct Province of Bengal, therefore, depends on the question as to which Province has inherited the property, rights, or liabilities which form the subject-matter of the pending legal proceedings.

14. The subject-matter of the appeal is the right to a declaration that the order of discharge is illegal and that the plaintiff must be deemed to be still in service. The alternative relief viz. a claim for damages for wrongful discharge, is not the subject-matter of the appeal.

15. Articles 4 to 9 of the Order, it is conceded on both sides, do not apply.

16. The question is whether Article 10(2) applies. The Article provides for the initial transfer of the liability of the Province of Bengal 'in respect of an actionable wrong other than breach of contract.' In the present case the liability, if any, of the Province of Bengal, on the appointed date i.e., 15-8-1947 was not founded on a breach of contract. It has thus to be seen if it was a liability 'in respect of an actionable wrong'. The meaning of the expression 'actionable wrong' fell to be decided in the case -- 'State of Tripura v. Province of East Bengal', (1951) S C R 1. Patanjali Sastri J. who delivered judgment of Kania C. J., Chan-drasekhara Aiyar, J. and of himself, observed that the learned Judges of this Court, whose judgment they reversed, had placed 'much to narrow a construction on the phrase 'liability in respect of an actionable wrong'', and dissented from the view of this Court that the phrase connoted 'only a liability for damages for a completed tortious act'.

17. At page 12, Patanjali Sastri, J. said as follows:

'We consider that the words are apt to coyer the liability to be restrained by injunction from completing what on the plaintiff's case was an illegal or unauthorised act already commenced.'

18. Mukherjee J. who agreed with the above conclusion, made the following pertinent observations :

'The plain language of the provision read in the light of the context would demand and justify a wider and more liberal interpretation. In my opinion, there can be an actionable wrong which does not arise out of breach of contract and at the same time does not answer to the description of a 'tort' as it is understood in English law............The word 'wrong' in ordinary legal language means and signifies 'deprivation of right'. An act is wrongful if it infringes the legal right of another. The word 'actionable' means nothing else than that it affords grounds for action in law.' (page 45)

19. Judged by the above principles, there can be no escape from the conclusion that the liability of the Province of Bengal which was the basis of the plaintiff's claim was a liability in respect of an actionable wrong other than breach of contract' as envisaged in Article 10(2). As the cause of action in the present case arose wholly within the territories which, as from the appointed day (i.e. 15-8-1947) are the territories of the Province of West Bengal, that liability is by force of Article 10(2)(b) the liability of the Province of West Bengal,

20. The combined effect of Articles 12(2) and 10(2) (b), therefore, is that as from 15-8-1947, the Province of West Bengal must be deemed to have been substituted for the Province of Bengal. Since the Constitution, the words 'Province of Bengal' must be adapted so as to read 'State of West Bengal' for the 'Province of West Bengal'.

21. The result, therefore, is that the State of West Bengal must be regarded as the sole respondent in this appeal, and any decision which we may come to, must be regarded as a decision binding on the State of West Bengal.

22. The memorandum of appeal must be amended by formally substituting the 'State of West Bengal' for The Province of Bengal'.

23. Mr. Mukherjee learned Advocate for the plaintiff-appellant relied on Section 240, Government of India Act, 1935 (25 & 26 Geo V, Ch 42), and contended that the discharge of the plaintiff was illegal.

24. It was first contended that the discharge of the plaintiff without giving him the requisite opportunity of showing cause as provided in Section 240(3) was illegal.

25. It was further urged that the plaintiff was appointed by the Governor and his discharge by the Controller of Rationing, an officer subordinate to the Governor, was invalid, being in contravention of Section 240(2),

26. On behalf of the State, the learned Se-nior Government Pleader contended that Section 240 had no application on the following grounds:

(1) The section did not apply as the plaintiff was not 'dismissed' but merely discharged from service.

(2) The section had no application to a temporary Civil servant like the plaintiff.

(3) The plaintiff was governed by the Conditions of Service as laid down in the Civil Services (Classification, Control and Appeal) Rules framed under Section 96B(2), Government of India Act, 1919, since replaced by Section 241(2), Government of India Act, 1935.

27. In 1946 when the plaintiff was discharged from service, Section 240 read as follows:

'240(1) Except as provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority Subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed from service or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him

Provided that this sub-section shall not apply-

(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.

(4) omitted.

28. In the eye of law, all officials and servants of the State are servants of the Crown. The plaintiff was the Rationing Officer, Supply Department, Government of Bengal. He therefore held a Civil post under the Crown in India,

29. The answer to the contentions of the learned Advocates depends on the true scope of Section 240 and Section 241, Government of India Act, 1935.

30. The matter may well be looked at from a historic perspective.

31. At Common Law, no Government or State official or Crown servant can sue the crown or bring any proceedings against the Crown for wrongful dismissal; even although the express terms of their engagement provided for a definite term of employment they are always dismissible by the Crown at its pleasure: -- 'Dunn v. The Queen', (1896) 1 QB 116. The above rule can be modified by Statute. 'Gould v. Stuart', (1896) A, C. 575.

32. In -- 'Shenton v. Smith', (1895) A. C. 229, the Judicial Committee held that a Colonial Government did not stand on a different footing from the Crown in England in the matter of employment and dismissal of public servants (p. 234).

33. In -- 'Shenton's case, (1895) A C 229, Lord Hobhbuse said:

'They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their office 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.' (pp. 234-235).

34. In dealing with the contention that the published regulations must be deemed to have formed part of the contract between the Crowrn and the public servant Lord Hobhouse further said,

'As for the regulations, their Lordships again' agree with Stone J. that they are merely directions given by the Crown to the Governments of Crown Colonies for general guidance, and that they do not constitute a contract between the Crown and its servants (p. 235)

35. The special cases envisaged in the first quoted passage, refer to express Statutory provisions inconsistent with the implied term of' employment of Crown servants that they hold office during the King's pleasure and not during good behaviour. Such a special case, it may be pointed out, formed the subject of decision in -- 'Gould v. Stuart, (1896) A C 575.

36. In this country similar questions fell to be decided and cleavage of judicial opinion manifested itself. The question ultimately came to be decided by the Privy Council in two appeals from Madras: -- 'Venkata Rao v. Secretary of State', 64 Ind. App. 55 (P. C.)' -- 'Rangachari v. Secretary of State', 64 Ind. App. 40. (P. C.)

37. Both the above cases turned on the construction of Section 96B, Government of India Act, 1919 (9 & 10 Geo V, C. 101). Section 96B(1) expressly provided that every Civil servant holds office during His Majesty's pleasure. 'Subject to the provisions of this Act and the rules made thereunder' and then specified certain' safeguards regarding dismissal of public servants. Section 96B(2) empowered the Secretary of State to make rules regarding condition of service etc. In pursuance of such powerCivil Service Classification Rules were framed.

38. In -- 'Venkata Row's Case', (64 Ind. App. 55 P. C.) the plaintiff appellant (i. e. the Civil servant) complained that his dismissal was contrary to the statute inasmuch as it was not preceded by any such inquiry as was prescribed by Rule 14, Civil Service Classification Rules, made under Section 96B(2).

39. The courts in India were of the opinion that such non-compliance did not afford any valid ground for an action against the Crown and concurred in dismissing the suit.

40. On appeal before the Privy Council counsel for the plaintiff appellant contended that the Statute gave the appellant a right enforceable by action to hold his office in accordance with the rules and that he could not be dismissed except in accordance with the procedure prescribed therein.

41. In repelling the contention Lord Roche observed as follows:

'Sec. 96B, in express terms, states that the office is held during pleasure... The argument for a limited and Special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far reaching to commend itself for acceptance.'

42. It was further observed that 'Section 96B & the rules make careful provision for redress of grievances by administrative process', and that

'Such redress is not obtainable from the Courts by an action'.

43. In -- 'Rangachari v. Secretary of State', 64 Ind App 40, (P.C.), their Lordships of the Judicial Committee of the Privy Council were of opinion that the purported dismissal of the appellant which emanated from an official lower in rank than the person who appointed the appellant to his office, was by reason of its origin bad and inoperative.

44. Section 96B, Government of India Act, 1919, was repealed by the Government of India Act, 1935. In lieu thereof, Sections 240 & 241 were enacted.

45. I have already quoted the relevant portion of Section 240. The effect of the section came to be considered by the Privy Council in the case of -- 'the High Commissioner for India and Pakistan v. I. M. Lall', 75 Ind App 225 (P.C.). It was held that the provision in s. 240(3) as to a reasonable opportunity of showing cause against the action proposed is mandatory and necessarily qualifies the right of the Crown under s. 240(1) to dismiss its Civil servants at pleasure. It was further pointed out that Sub-sections (2) and (3) of s. 240 are prohibitory in form, which is inconsistent with their being merely permissive.

46. In their conclusion, their Lordships substituted the declaration that

'the order of 10-8-1940, purporting to dismiss the respondent from the Indian Civil service 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 action on 20-7-1942', for the declaration made by the Federal Court 'that the plaintiff Mr. I. M. Lall was wrongly dismissed from the Indian Civil service on 4-6-1940'.

47. It may be pointed out that Article 311, Constitution of India, embodies provisions similar to Sections 240 and 241, Government of India Act, 1935.

48. The present case however falls to be decided by the provisions of Sections 240, 241, Government of India Act, 1935, as finally explained in I. M. Lall's case 75 Ind App 225 (P.C.), just cited.

49. In the present case the finding of the learned Subordinate Judge was that the plaintiff was not allowed any opportunity to show cause against his discharge and that there was also no proper inquiry as to the plaintiff's competence. The evidence on record fully justifies the finding. In fact no attempt was made on behalf of the respondent to controvert the finding. In this case the evidence shows that there was no notification of the action proposed as also of the grounds on which the authority was proposing that action should be taken, that no reasonable time was given to the plaintiff to make his representation against the alleged grounds, and that no further opportunity was given to the plaintiff to show cause against his purported discharge.

50. Mr. Mukherji accordingly contended that the above finding justified a declaration in the plaintiff's favour, on the terms set forth in --'I. M. Lall's case', 75 Ind App 225 (PC) just cited. Mr. Mukherji pointed out that it was not disputed that the provisos to Section 240(3) were not attracted in this case.

51. In answer, the learned Senior Government Pleader first contended that Sub-sections (2) & (3) of Section 240 use the word 'dismissed' or 'reduced in rank' and did not apply as the plaintiff was not 'dismissed' but merely 'discharged'. In Murray's Oxford Dictionary, the word 'discharge' is defined to include 'dismissal from service' (p. 413) and the word 'dismissal' is denned to include 'discharge from service' (p. 470).

52. Sub-section 3 of Section 240, it may be pointed out, uses the words 'dismissed' or 'reduced in rank' and specifies the same safeguards in either case. If the contention that 'dismissal' does not include, 'discharge' be accepted, the incongruous result will be that a person who is merely reduced in rank, will enjoy the immutable protection conferred by Section 240(3) but a person who is subjected to a more serious penalty by way of a 'discharge' will be deprived of the protection.

53. It may also be pointed out that in --'I. M. Lall's case', 75 Ind App 225 (PC) the purported 'removal' of the Civil servant was held to be synonymous with 'dismissal' so as to attract Section 240(3). The word 'discharge' has the same connotation as 'removal' and should be construed so as to be included within the term 'dismissal'. There is thus no ground to hold that the word 'dismissal' in Section 240 does not include 'discharge'. The first contention of the learned Senior Government Pleader must accordingly be overruled.

54. The learned Senior Government Pleader further contended that Section 240 does not include the case of a Civil servant who has been appointed for a temporary period.

55. The expression 'person as aforesaid' in Section 240(3) refers back to Section 240(1) and the includes 'every person who holds a Civil post under the Crown in India'. The last expression is widely worded and on a plain construction, includes all holders of Civil office, whether permanent or not. No contrary intendment can toe gleaned from Sub-section 241(2). That sub-section lays down that

'it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less'.

Section 241 itself, as pointed out in the cases already cited was inserted for a different purpose and Sub-section (2) of the section is relevant on the question of applicability of the Civil Service Regulations. As held in -- 'Venkata Row's case', 64 Ind App 55 (P C) the rules framed under Section 241 are irrelevant in obtaining redress by an action in Courts, and they merely provide for redress of grievances by administrative process. It would not, therefore, be apposite to control the scope of the above-quoted expression in Section 240(1) by spelling out a contrary intent on a reference to section 241 which has a different destination. In my opinion, there is no force in the contention raised on behalf of the respondent.

56. The learned Senior Government Pleader further contended that the plaintiff was governed by the Civil Services (Classification, Control and Appeal) Rules and that the only redress he can get is a month's notice or wages for one month in lieu of such notice, as provided in Chap. 15 Section II, Rule 352 (b) of the Rules.

57. The argument founded on the Rules has been incidentally dealt with already. The argument was negatived by the Privy Council in -- 'Venkata Row's case', 64 Ind App 55 (PC) which related to the interpretation of Section 96B, Government of India Act, 1919. In -- 'I. M. Lall's case', 75 Ind App 225 (PC) the Privy Council, on a construction of Section 240, Government of India Act, 1935, reached a similar conclusion and declared the order of removal to be invalid as being in contravention of Section 240(3)....... In the later decision -- 'North West Frontier Province v. Suraj Narain Anand', 75 Ind App 343 (PC) where the order of dismissal was in violation of Section 240(3), the Privy Council held the order of dismissal to be bad and resting on unsound foundations. There is thus force in the contention that mere compliance with the Rules does not justify either a dismissal or discharge of a Civil servant where the mandatory provisions of Section 240 (2) and (3) have not been complied with.

58. The result of the above discussion is that assuming that the plaintiff was not a permanent Civil servant, his discharge was invalid being in contravention of Section 240(3), Government of India Act, 1935.

59. Mr. Mukherji further contended that the plaintiff having been discharged by an officer subordinate to the appointing authority the order of discharge was in contravention of Section 240(2) and was inoperative.

60. The point was not specifically taken in the plaint and was not properly discussed at the hearing of the suit. Certain relevant materials have no doubt trickled through but, in my opinion, it is not desirable to base any conclusion on this important point, solely on such incomplete and inconclusive evidence.

61. The question then is whether the Court should in its discretion give the plaintiff any declaration and if so, what should be the form of the declaration.

62. It is not disputed that the Court has a discretion in the matter of granting declaratory reliefs. It is, however, urged that such discretion should be exercised judicially.

63. In -- 'Rangachari's case', 64 Ind App 40 (PC) already cited, the Privy Council did not give the appellant the declaration to which he was entitled on the ground that a declaration would have no greater effect than the decision and that in view of the state of health of the appellant and the long delay, no purpose would be served by restoring him to his office, and that the responsibility in this regard does not rest with the Court but with the Government.

64. In the case of -- 'Province of Bengal v. Bhupendra Kumar Roy Chowdhury', 44 Cal WN 79 Henderson J. refused to make a declaration. The learned Judge opined that the declaration would not entitle the plaintiff to get reinstatement, that it would be misleading if the declaration was intended to be used as a lever, that the declaration might not be conducive to justice in cases where the public 'servant was incompetent or undesirable.

65. In -- 'I.M. Lall's case', 75 Ind App 225 (PC) the Courts in India and the Privy Council did make the declaration, though the form of the declaration was differently worded by the Privy Council.

66. In the facts of this case, the discharge was made in 1944, the plaintiff was then a retired officer. The plaintiff is now fairly old being aged about 70 years. His service was under the Province of Bengal, and was a wartime appointment. 8 years have passed since, his discharge. The war has ended. Great political changes have taken place. The old Province of Bengal is now defunct. It is doubtful if the present Supply Department can be regarded as a continuation of the old war-time department. The responsibility of reinstatement rests with the State. There were allegations of incompetence which were not properly investigated. The decision of this Court is a sufficient indication of the effect of the order of discharge, and has the same force as an express declaration. In a similar state of facts, the Privy Council in -- 'Ranga Chari's case', 64 Ind App 40 (PC) was disinclined to give the public servant any declaration.

67. In -- 'I. M. Lall's case', 75 Ind App 225 (PC) the circumstances were different. The Courts in India did exercise their discretion. Before the Privy Council, no argument seems to have been advanced by the Government that the Court should not make the declaration.

68. In my opinion, no declaration should be made by the Court in the facts of this case.

69. The above finding renders it unnecessary to state the form of the declaration. The form was specifically stated in -- 'I. M. Lall's case', 75 Ind App 225 (PC).

70. Mr. Mukherji learned Advocate for the plaintiff appellant also contested the propriety of the finding of the learned Subordinate Judge that the plaintiff was a temporary servant.

71. The order of appointment Ex. 2 as communicated to the plaintiff merely, stated that the plaintiff had been appointed a Rationing Officer. The order was passed in January 1944 during the continuance of the war. The plaintiff was a retired officer. The inference which can legitimately be drawn from the above facts is that the appointment was understood by both parties to be for an indefinite period though not permanent. In the view taken by me, this question is however, not of much moment.

72. In the alternative Mr. Mukherji contended that if the plaintiff is not given the declaration to which he is legally entitled, his Claim for damages for wrongful dismissal should be decreed. Such a prayer was allowed to be raised in the plaint by order No, 10 dated 10-6-1946. An express issue, issue No, 5, was framed.

73. The learned Subordinate Judge disposed of this issue by the following observation: From all these I find that the plaintiff is entitled to Rs. 400/-, in lieu of one month's notice, which amount may also well be regarded as compensation, considering the plaintiff's position and other circumstances of the present case.'

74. In the memorandum of appeal, the plaintiff expressly limited his appeal to the prayer for declaration only and paid, Rs. 20/- as Court Fees on that basis. It was expressly stated that 'the alternative prayer for damages being given up in this appeal.'

75. I may add, in fairness to the learned Advocate, that the claim was properly abandoned in this appeal.

76. It is well settled that the right to bring an action, for wrongful dismissal is merely illustrative of the rule that an action will lie for unjustifiable repudiation of a contract. A Civil servant holds his office during the King's pleasure. As such, remedy by suit against the Crown for breach of the contract of service is hardly available to a Civil servant. In England, breach of contract by the Crown can be raised by a petition of right. The above view is in consonance with the opinion of the Privy Council in -- 'Venkata Row's case', 64 Ind App 55 (PC) already cited. It is not, however, necessary to decide this point for the purpose of this appeal.

77. In view of the course of proceedings, we are also relieved from the duty of considering whether the rule of English law enunciated as far back as 1839 in -- 'Gibson v. East India Co.', (1839) 5 Bingh N C 262 that pay cannot be recovered by action against the Company but only by petition, memorial or remonstrance, and followed in later cases: See -- 'Nixon v. Attorney General', (1930) 1 Ch 586, should be applied in a case like the present where the order of discharge is altogether void. I may refer in passing to the decision of the Federal Court in the case of the -- 'Punjab Province v. Tara chand', 52 Cal W N (FR) 2. I refrain from expressing any opinion on this question, as it is not necessary for the purpose of the decision of this appeal.

78. In view of our finding on the different points raised in this appeal, this appeal must fail. It is accordingly dismissed but in the circumstances of this case parties will bear their own costs in this appeal except as indicated below. The decree for full costs made by the Court below in plaintiff's favour was not challenged in this Court on behalf of the respondent and must stand.

79. The sum decreed in favour of the plaintiff on account of claim and costs, as made by the Court below must be paid within 3 months from date, if the same has not been already paid.

80. In view of the finding contained in our judgment, the memorandum of appeal must be formally amended by substituting 'State of West Bengal' for 'The Province of Bengal'. As the respondent opposed this prayer, the substituted, respondent must pay the appellant a part only of the costs of the hearing, which I assess at 5 gold mohurs, and this payment must also be-made within 3 months from date.

P.N. Mukherjee, J.

81. I agree.


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