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Bimalacharan Batabyal Vs. Trustees for the Indian Museum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal404
AppellantBimalacharan Batabyal
RespondentTrustees for the Indian Museum
Cases ReferredBeeston v. Collier
Excerpt:
- costello, j.1. this is a suit brought by bimalacharan batabyal against the trustees of the indian museum, in which the plaintiff is claiming a very large sum of money, which is said to represent an amount which he would have earned during the unexpired period of his service with the defendants and to be in the nature of commutation of the pension to which he would have been entitled had he completed his service with the defendants.2. the plaintiff was employed by the defendants as their head clerk and it is not disputed, and indeed it appears quite definitely from the service book, that his service with the defendants was of an entirely satisfactory character. the plaintiff was formerly employed under the geological survey of india and at that time it may be that he was in the position of.....
Judgment:

Costello, J.

1. This is a suit brought by Bimalacharan Batabyal against the Trustees of the Indian Museum, in which the plaintiff is claiming a very large sum of money, which is said to represent an amount which he would have earned during the unexpired period of his service with the defendants and to be in the nature of commutation of the pension to which he would have been entitled had he completed his service with the defendants.

2. The plaintiff was employed by the defendants as their head clerk and it is not disputed, and indeed it appears quite definitely from the service book, that his service with the defendants was of an entirely satisfactory character. The plaintiff was formerly employed under the Geological Survey of India and at that time it may be that he was in the position of a Government servant, but subsequently, upon his own application, he was taken into the service of the defendants and became a clerk to the Trustees of the Indian Museum on 14th February 1917, at a salary of Rs. 60 a month. That salary, in the following year was increased to Rs. 63 a month and then, in November of the year 1918, his salary was again altered and he was put upon a scale, of pay starting with Rs. 75 and rising by annual increment of Rs. 5 a year to a maximum of Rs. 175 a month and in Col. 2 of the service book, which the plaintiff had, his employment or the nature of his appointment is described as being 'substantive and permanent.' I do not think it necessary to deal with the correspondence which was put in evidence in any great detail. It is sufficient I think to say that, at the time when the plaintiff was appointed as head clerk by the defendants, the defendants at first sought the sanction of the Government of India for the making of that appointment and they were informed that no such sanction was required as they had sufficiently wide inherent powers to make an appointment of that kind of their own motion by virtue of the provisions of Section 9, Museum Act, which provides that:

subject to such regulations and conditions as may be prescribed by them in this behalf, the trustees shall appoint such officers and servants as may be necessary or proper for the care or management of the trust-property and may assign to such officers and servants such pay as they may think fit.

3. It appears that the real reason why the defendants applied to the Government of India for formal sanction to the granting of the increase of pay to the plaintiff, which the trustees were desirous of making, was because the defendants were anxious that the additional sum necessary for covering this increased pay should be provided by the Government of India by way of an increase to the annual fixed grant of Rs. 18,410, which is made by the Government of India to the Trustees of the Indian Museum for the purpose of the care and maintenance of the Indian Museum. During the course of the years 1925-26 and the early part of 1927, correspondence took place between the defendants and the Government of India with regard to this matter, and the attitude adopted by the Government of India was that they did not intend to increase the amount of the fixed grant made by them to the trustees and that, as the trustees had thought fit in the exercise of their powers under Section 9 of Act 1910 to raise the pay of their clerk, that was a matter which the Trustees should provide for by means of re-adjustment of their expenditure within the limits of the fixed grant which they received. In March 1927, the defendants received a letter from the Government of India, in such unequivocal terms, with regard to their finance, that they apparently then came definitely to the conclusion that they would not get any increased grant from the Government of India and that, therefore, they would have to re-adjust their expenditure to provide for the increase which they had granted to their clerk (the plaintiff) some two years before, or else they would have to put the clerk back on a different scale and reduce his emoluments. I am not concerned to enquire into the policy or the financial arrangements which the Trustees thought fit to adopt. The fact is that, by a resolution of the Trustees of the Indian Museum, at a meeting held on Monday, 11th April 1927, they resolved:

We having considered the question of increase in pay of the head clerk sanctioned by resolution No. 1, dated 6th January 1925, find it necessary to revert the head clerk to the old scale, with effect from 12th April 1927.

4. The head clerk concerned, that is to say, the plaintiff, was duly notified of that resolution and, thereupon, he wrote to the Hony. Secretary of the Trustees a letter, in which he said:

I have decided to exercise the option of retaining my old pay of Rs. 120-10-350 in accordance with Rule 231, of this Fundamental Rules.

and then he proceeded to quote from Section 13, Museum Act of 1910, which provides as follows:

All officers and servants appointed under this Act shall be deemed to be public servants within the meaning of the Indian Penal Code; and so far as regards their salaries, allowance and pensions and their leave of absence from duty, they shall be subject to the rules which under the Civil Service Regulations for the time being in force would be applicable if their service was service under Government.

and the plaintiff concluded his letter by submitting to the Trustees that the pay of a Government servant could not be reduced in contravention of the service rules. I ought to have said that, at the time when the plaintiff was put upon his scale of pay Rs. 120-10-350, he was receiving under his previous rate of pay the sum of Rs. 140 a month, and, under the resolution appointing him to the higher scale of pay, he was allowed to count, for the purpose of computing his pay, the years of service which he already had to his credit (that is to say some 10 years service) and that resulted in the plaintiff starting on the new scale at an initial salary of Rs. 220 a month. So the effect, of the resolution in April 1925, was to increase the actual pay of the plaintiff from Rs. 140 a month to Rs. 220 a month. By April 1927, the plaintiff had had two yearly increases in his remuneration and, therefore, at that time, his pay was Rs. 240 a month. After the plaintiff had put his case to the Trustees in his letter, to which I have referred (which was dated 23rd April 1927), a discussion ensued between the defendants and the plaintiff as to what his position was and what his rights were and, at one time, there seems to have been a suggestion that the plaintiff might be entitled to receive a compensation pension by virtue of the operation of Articles 426 and 4362, Civil Service Regulations. The plaintiff was not willing to accept a pension upon that footing and persisted in the attitude that he was entitled to remain in the employment of the defendants at his then existing remuneration and scale of pay by virtue of the provisions either of Article 1583, Civil Service Regulations or Rule 23, Fundamental Rules laid down by the Secretary of State for India under the provisions of the Government of India Act, 1919. Put quite shortly, the plaintiff took up the position that he was entitled, by virtue of the provisions of Section 13, Museum Act of 1910, to all the rights and privileges of a public servant and that he was in a position either identical with, or at any rate analogous to, the position of an ordinary civil servant, and the plaintiff accordingly contended that under the provisions of the Civil Service Regulations and the provisions of the Fundamental Rules, it was not competent to the defendants to terminate his employment, but that the nature of his appointment was such that he was entitled to remain in the service of the defendants on the scale of pay he was receiving in April 1927, and the proceed by yearly increment to the maximum salary of Rs. 350 a month provided for that in that scale and ultimately to earn a pension by virtue of service, for a number of years.

5. The case on behalf of the plaintiff was fully and ably argued and all that possibly could be said on behalf of the plaintiff has been said by Mr. S.C. Bose and Mr. S.C. Roy. Mr. Roy sought to argue that the effect of Section 13 of the Act 1910, read in conjunction with Section 96B, Government of India Act, 1919, is to put a person, who is in the position of the plaintiff, in service under the Trustees of the Indian Museum, certainly in the same position as an ordinary Government servant, if not in an even more privileged position than an ordinary civil servant would be. It was argued and contended on behalf of the plaintiff that the effect of Section 96-B, Government of India Act, 1919, is so far to cut down and limit the right of the Crown to dismiss persons from the service of the Crown in India, that it is no longer possible in law for the Government to terminate the employment of its servants excepting for definite misconduct and that the effect of the Civil Service Regulations and the Fundamental Rules is that it is obligatory upon the Government to permit civil servants to remain in their employment until they attain such an age as entitles them to a pension on the scale laid down in those regulations. In support of that argument, various cases were cited to me, including a case in the Privy Council Gould v. Stuart [1896] A.C. 575, in which case Sir Richard Couch, who delivered the judgment of the Board, said that the provisions of the New South Wales Civil Service Act of 1884:

which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the crown ray pat an end to it at its pleasure.

6. The opinion of the Judicial Committee of the Privy Council in that case was relied upon in a case, which was decided on a preliminary issue by my brother Buckland : namely the case of Salish Chandra Das v. Secy. of State : AIR1927Cal311 where Buckland, J., decided:

that notwithstanding Section 96-B, Government of India Act, 1915, the provisions of Rule 14 of the rules regarding civil servants in India, made by the Secretary of State for India in Council under Sub-section (2), Section 96-B, Government of India Act, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term than the Grown may put an end to it at pleasure.

7. Buckland, J., was merely following the decision in. Gould v. Stuart [1896] A.C. 575, and I Chink the effect of both the decisions of the Privy Council and of Buckland, J., merely comes to this that, by virtue of Section 96-B, Government of India Act, 1919, the right of the Crown, that is the Government, to dismiss a civil servant is subject to any provisions which are contained in the Act or in the rules made under the Act dealing with the procedure to be adopted or relating to any conditions precedent which must be fulfilled before a servant is in fact dismissed. In my opinion, Section 96-B, so far from abrogating the prerogative of the Crown, with regard to the dismissal of persons in the civil service, reiterates and emphasises the fact that the right of dismissal at pleasure still exists and enacts that that right is only limited in so far as there are definite and special or particular rules or regulations laying down the method by which or the circumstances in which the right is to be exercised. That view of the matter seems to me to be made clear by a decision of Bailache, J. in the case of Denning v. Secy. of State [1920] 37 L.T.R. 138, where it was held that a Crown servant, against whom any misconduct is alleged, is liable to dismissal at the pleasure of the Crown without notice, even if the form of agreement, under which he has been engaged, implies that, except in the case of misconduct the engagement can only be terminated by notice. In that case Bailaohe, J. reviewed the various authorities including Gould v. Stuart [1896] A.C. 575 and the case decided in the opposite sense, Shenton v. Smith [1895] A.C. 229.

8. In this connexion, I refer also to the case of Hales v. The King [1918] 34 T.L.R. 589, which came before the Court of Appeal in England, on appeal from a decision of Avory J. and Lord Pickford J. there held that it was a term of the employment of all servants of the Crown that their employment was at the pleasure of the Crown. It was pointed out that the matter was fully covered by Dunn v. The Queen [1896] 1 Q.B. 116 There is one other case to which I desire to refer, and that is the case of Young v. Waller [1898] A.C. 661, where Lord Watson explained the decision which the Board had previously given in Gould v. Stuart [1896] A.C. 575. He says that although it was decided by this Board in Gould v. Stuart [1896] A.C. 575 that the effect of the New South Wales Civil Service Act of 1884 was to deprive the Crown of the right to dismiss its civil servants summarily without following the procedure prescribed by the Act, it was certainly not suggested that the provisions of the Act either directly or by implication, took away the right of the Crown to abolish an office. The importance of the observations of Lord Watson is this: that he seems to say, what I have already pointed out that the real effect of the decision in Gould v. Stuart [1896] A.C. 575 was that, if the Civil Service Regulations whether embodied in a statute itself or made by virtue of the statute, or if the Fundamental Rules under the Government of India Act, 1919, for example, had contained a provision with regard to the procedure to be adopted on the dismissal of a servant of the Crown, then it is necessary that that procedure should be adopted, and, in my view, none of the cases which were cited to me on behalf of the plaintiff, nor Section 96-B itself seriously derogate from the right of the Crown to dismiss its civil servant at its pleasure. Having said that, I would only add that in my opinion, the decision in Bam Das Hazar v. Secy of State [1912] 18 C.W.N. 106 is still good law in that it says that a servant of the Crown is still liable to dismissal without notice.

9. In my view, however, it is unnecessary, for the purpose of deciding the present case that I should deal with the matter upon the footing that the plaintiff here has the rights of a civil servant so far as the tenure of his office is concerned. In other words, I think there is nothing in S.13, Museum Act of 1910 which confers upon the plaintiff any rights with regard to the duration of service in any way whatever. Section 13 is quite definite as to the matters with which it purports to deal and all that it provides is that so far as regards their 'salary.' 'allowances' and 'pension' and their leave of absence from duty, they (i.e., officers and servants appointed under the Act) shall be subject to the rules which under the Civil Service Regulations for the time being in force would be applicable, if their service was service under the Government. I think that section has no reference at all to the question of the tenure of the plaintiff's office, nor the conditions under which he is employed, other than the conditions with regard to those specific things which are mentioned. In the ordinary way the question of the period of the plaintiff's employment would have been, or should have been dealt with by the Trustees under the powers conferred upon them by Section 9 of the Act of 1910. Apart from what is to be gathered from the entries in the plaintiff's service book, apparently nothing was said by either side (i.e., either by the plaintiff or by the Trustees of the Indian Museum as to the period for which he was taken into the service of the Trustees. I have already said that the plaintiff relies upon the fact that in the service book, his appointment is described as substantive and permanent,' and Mr. Roy invited me to come to the conclusion that the insertion of those words by the plaintiff, with the acquiesence and the consent of the defendants, indicated that the intention was that his service with the defendants should last for at least such a period as would enable him to receive a salary at the highest rate in his scale of remuneration or even for such a period as would enable the plaintiff to earn a pension at the age of 55 of such a kind as is provided for in the Civil Service Regulations in the 'articles' dealing with the question of pensions. In my view, that contention on behalf of the plaintiff cannot be supported.

10. The position seems to be this. If by virtue of the terms of Section 13, the plaintiff acquired all the rights conferred on civil servants by the provisions of the Civil Service Regulations and/or the Fundamental Rules, it would follow that he at the same time would take upon himself all the liabilities of civil servants under these regulations and those rules, and he would be subject to such disabilities as fall on a civil servant by virtue of the operation of the prerogative of the Crown to which I have already referred. It would, therefore, seem that if the plaintiff stood for all purposes in the position of a 'public servant' he would, like all other civil servants, be subject to dismissal more or less summarily, subject only to such provisions with regard to antecedent procedure and machinery as could be found in the Regulations and Rules themselves, including of course the Fundamental Rules made under Section 96-B, Government of India Act of 1919.

11. If, on the other hand, it is said that the plaintiff is only in the position of a public servant so far as such matters as salary, allowances, pension and leave are concerned, then it follows that, as regards matters outside those particular things, his employment, in the absence of any special provisions, was subject to the ordinary rules of law as to the duration of that service. I think that the words 'substantive and permanent' as used in the service book import no more into the relationship between the plaintiff and the Trustees of the Museum than that his employment is of a permanent as opposed to a purely temporary character, and that he is the incumbent of his appointment and not merely 'acting' and was entitled to the emoluments of it in such a way that, in the ordinary course, if his employment had continued ho would be entitled to and subject to all the rights and liabilities incidental to the service in accordance with the Civil Service Regulations. In other words, the phrase 'substantive and permanent' is more descriptive of the nature and character of the appointment than indicative of the duration of that appointment.

12. I, accordingly, hold that there is nothing in the plaintiff's service book which indicates that the defendants were binding themselves to employ him either for the rest of his life or for as long as he chose to remain in their service or until he attained the age of 55 or until he was entitled to receive a pension. I think the right view of the nature of the employment was that although it was with a body of quasi-Government character, this employment, so far as the tenure of it was concerned, had all the incidence of employment by private employers, and that it was only so far as salary, allowances, pension and leave are concerned, that the principles and scheme of the Civil Service Regulations were intended to apply.

13. It was also argued by Mr. Roy in his very able argument before me that because the plaintiff was remunerated upon a scale of pay involving regular annual increments, whereby the maximum salary specified would only be attained after a definite number of years of service, that, of itself, implied that the Trustees were binding themselves to employ the plaintiff for such a period as would enable him to obtain and enjoy a salary at a maximum rate. In other words, Mr. Roy realising the difficulty of establishing that the plaintiff was entitled, as it were, to a freehold in his office, and the difficulty of maintaining that as a public servant, the plaintiff could not be dismissed from his employment, Mr. Roy fell back upon the argument that there was a contract of service between the plaintiff and the Trustees, one of the terms of which, either expressly or impliedly, by virtue of the expression 'substantive and permanent,' and by virtue of the method of remuneration, was that the plaintiff should be employed for at least such a period as would enable 'him to earn remuneration at the highest 'rate. No doubt it was open to the plaintiff to contract with the defendants with regard to the 'term' of his employment but that particular contention of Mr. Roy seems to be negatived by a decision in the case which was cited on behalf of the plaintiff on another point. I refer to the case of Fawcett v. Gash [1834] 5 B. Ad. 905, where incidentally, by implication, it was held that the fact that a servant was employed on a rising scale of pay did not import that the employment should last longer than one year, and it was held, further, that there wag a yearly hiring and, in effect, that, as each incre nent became due, there was a fresh employment at the higher rate of pay. For the reasons I have given, I hold that, in this case, so far as the duration of the plaintiff's employment was concerned, that was entirely a matter of contract, express or implied, as between him and the Trustees of the Indian Museum, and, neither by virtue of Section 13 of the Act of 1910 nor Section 96-B of the Act of 1919, was the plaintiff entitled to take up the attitude that, in no circumstances, could his employment with the defendants be terminated.

14. What the plaintiff in fact did was to decline to accept a lower scale of pay, and he, accordingly, refused to remain in the employment of the defendants on any scale of pay other than that which he had been receiving for the previous two years or more. Upon that, by a letter dated 20th August, the defendants gave notice to the plaintiff that he was:

to consider himself as discharged as from Monday, 22nd August, and that ho would not be allowed to attend office on that clay.

15. I take the view, and I, accordingly, hold that the employment of the plaintiff, so far as his tenure of his appointment is concerned, was of such a kind that, in the absence of any special agreement, and in the absence of any regulations or conditions prescribed by the Trustees under Section 9 of the Act of 1910, it was of such a character that it could be terminated by reasonable notice. It is clear, and indeed it is not disputed, that the plaintiff did not receive reasonable or any notice (unless it could be successfully contended that, in effect, he had notice in April at the time when the resolution was made by the trustees to reduce his salary), that his employment would terminate either in August or at any rate on a date, representing three months after the date of the resolution, and the Advocate-General invited me to say that because the plaintiff had notice in April that it was proposed to reduce his salary, therefore, in effect, he had notice that his employment would actually coma to an end, at any rate by or before the month of August 1927.

16. I am not disposed to accept that view of the matter, because it is clear from the correspondence, and indeed it has not been suggested otherwise, that throughout the intervening time from April until August 1927, the parties were in more or loss amicable negotiation with regard to the plaintiff' position, At no time, has it been suggested by the defendants that they have any kind of animus against the plaintiff; on the contrary, it is clear throughout that the defendants (the Trustees of the Indian Museum) were entirely satisfied with the plaintiff's work and conduct, and they regarded him in every way as an efficient and satisfactory clerk, and it was, purely by reason of the financial position, that they felt constrained to put an and to his employment. As I have said, from April to August, the position of the plaintiff was under discussion, and as late as 13th August 1927, there was a resolution of the defendants so this effect:

As the head clock has expressed unwillingness to accept the lower rate of pay, the Trustees, after consulting the Accountant-General, come to the conclusion that the case is covered by Article 426 of the Civil Service Regulations and the head clerk is entitled to a compensation pension.

(That of course would have been the pension provided for in the circumstances set forth in Article 426, Civil Service Regulation).

The Accountant General has given detailed reason in the note, which is filed, for taking this view. The trustees, therefore, rosolve that the head clerk should immediately retried on compensation pension or express willingness, in writing, to continue on the lower rate of pay. If the head clerk had retired on compensation pension, from the date of information of the reduction of the pay to him, ho would, under Article 436, Civil Service Regulation, have been entitled to three months pay at the higher rats. By, continuing in his post, ho has) waived this right. The Trustees, however, as a matter of grace, are prepared to give him his pay for three months, if ha retires on compensation pension immediately. If ho accepts the other alternative of continuing on the reduced pay, then the Trustees are still prepared to allow him to draw pay at that rate from 22nd April 1927, the date on which the decision regarding reduction of pay was conveyed to him.

17. That resolution was sent to the plaintiff, and a note was made of that fact by the Honorary Secretary to the Trustees, in which he said that:

he (the head clerk will convey to me the course be proposes to adopt before Monday, 22nd instant.

18. So it seems to be clear at that time that neither side regarded this employment as having been terminated, and that both sides were proceeding upon the footing that it might be continued.

19. That being so, I hold that no sufficient or valid notice in law was given by the defendants terminating the plaintiff's employment, and that ho was to all intents and purposes summarily dismissed on 22nd August 1927.

20. Mr. S.C. Bose, on the authority of the case of Beeston v. Collier [1827] 4 Bing. 309, has argued that the effect of the charaater of the remuneration of the plaintiff and the fact that ha was on what is generally called a time scale, indicates that the hiring of the plaintiff was a yearly one, and that the effect of giving a yearly increment of Rs. 10 was to create a fresh hiring for each year of the plaintiff's employment.

21. I am very doubtful whether the principles laid down in Beeston v. Collier [1827] 4 Bing. 309 ought to be applied to a. case of this kind. I think the more modern authorities would indicate that even where a person is employed upon a remuneration which is a starting basis, and even where there is an agreement for an increase by annual increments up to a certain sum, there is certainly no obligation or implied condition that a servant would be allowed to remain long enough to earn a maximum salary : and I think also there is no intention, unless it were definitely expressed on the part of the contracting parties, that each year or the beginning of each year of service should be regarded as a new contract of employment. I think the proper way of regarding a contract of this kind is that it is one subject to reasonable notice on either side. The question of what is reasonable notice is la question of fact, and depends largely upon the circumstances of each particular case Had I thought it necessary to lay down a general principle applicable to employment of this character, I think I should come to the conclusion that a reasonable notice would be a three months notice on either side. Having regard to the scope of the duties, performed by the plaintiff, as head clerk of the defendants, I do not propose), however, to deal with this case solely upon that footing, because, as Mr. Ameer Ali says, so far as the question of notice and compensation to the plaintiff is concerned, the defendants are content to leave the matter in the hands of the. Court.

22. Accordingly, I find and hold that, in the case of an appointment of this character, three months notice is reasonable notice, and I find as a fact that no notice was given or, if notice was given, it was not acted upon by either party until 22nd August, and the position was that,' on 22nd August, the plaintiff was dismissed and his employment was terminated, whereupon, lie became entitled to a reasonable sum in lion of notice. The plaintiff was accordingly entitled to such a sum as represents three months salary as from 22nd August, together with the balance of the salary for the preceding months. At the same time bearing in mind the circumstances of this particular case I express the view that the trustees ought to pay salary up to the end of the financial year, the end of March 1928. (Judgment was then ordered 'for the plaintiff with costs).

1. Rule 23 is in the following terms:

The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a now post on the new pay; provided that ha may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time scale. The option once exercised is final.

2. Articles 426 and 436 are in the following terms:

426. A compensation pension is awarded to an officer discharged from the public service because, on a reduction of establishment, his appointment is abolished and other suitable employment cannot be found for him. An appointment, the pay of which is reduced as part of a general scheme of revision, is abolished within the meaning of this article. But in such case it may sometimes be cheaper to grant a personal allowance than a pension.

436. Reasonable notice should be given to an officer in permanent employ before his services are dispensed with on the abolition of his office. If in any case, notice of at least three months is not given, and the officer has not been provided with other employment on the date on which his services are dispensed with, then, with the sanction of the authority competent to dispense with the officer's services, a gratuity not exceeding his emoluments for the period by which the notice actually given to him falls short of three months, may be paid to him, in addition to the pension to which he may be entitled under Articles 474 to 481; but the pension shall not be payable for the period in respect of which he receives a gratuity in lieu of notice.

3. Article 158 is in the following terms:

158. The incumbent of an appointment the pay of which is changed shall be treated as if he were transferred to a new appointment on the new pay: provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old pay or until he vacates his appointment. This option once made is final. (Edn. 2, 2nd reprint, No. 82, dated 8th February 1919).


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