1. A preliminary objection has been taken on behalf of the respondent which, in my opinion, must succeed, although I may say that that conclusion is not one which I very much like.
2. The appellant was an Inspector of Central Excise and his services were terminated by two months' notice, given on 30-11-1951. The step of terminating the services of the appellant is claimed to have been taken under Rule 5(a) of the Central Services (Temporary Services) Rules. The respondent to the application before the Court below was one Mr. J.W. Orr who was then the Collector of Central Excise, Calcutta, and who made the order by which the appellant's services were terminated.
It appears, however, that even before the application came up for final hearing, the respondent was transferred from Calcutta ana ceased to be the Collector of Central Excise at this station. In fact, he was transferred on 5-7-1952. In spite of that, however, an affidavit was affirmed by him on 13-8-1952, and no objection that he could no longer carry out any writ that might be issued to him in respect of the notice given to the appellant was taken before the learned Judge below, although the application was not finally disposed of till 27-8-1952.
3. The learned trial Judge discussed the various points taken on behalf of the appellant; but he was unable to accept any one of them. He held that Rule 5(a) of the Central Services (Temporary Services) Rules did apply to the appellant and if it did, his services were liable to be terminated in the manner that had been adopted. In the learned Judge's view, no question of any infringement of any fundamental right arose.
4. Thereafter, the appellant preferred the present appeal. The preliminary objection taken on behalf of the respondent, who is still Mr. J.W. Orr, is that the appeal has become infructuous, inasmuch as Were we to allow the appeal, we would have to direct Mr. Orr by a writ of mandamus either to refrain from giving effect to the order passed on 30-11-1951. or to withdraw or cancel that order.
In view of the fact that Mr. Orr had ceased to be the Collector of Central Excise, Calcutta, it had become impossible for him to carry out any such direction, should it be given to him, and accordingly it was contended that the appeal could no longer succeed, inasmuch as this Court would not issue a writ which was bound to prove ineffectual.
Mr. Barman, who appears on behalf of the appellant, does not dispute that, as the appeal is now constituted, he cannot obtain from the appellate Court an effective order which will be of any practical benefit to his client, even if all the arguments advanced in his favour might be accepted. What however he asks is that an opportunity should be given to him to make a fresh demand for justice From the present Collector of Excise and should justice be denied to him, to implead him then as an additional party.
It was pointed out to Mr. Batman by us that if he desired to follow the course proposed by him, there would be an application against the present Collector of Central Excise before any demand of justice had been made to him, because mat would obviously be the position if the present application was kept pending and the present Collector was brought in afterwards as a party to this very application.
Mr. Barman saw the difficulty of the position which he was proposing to adopt and ultimately suggested that his client should be left to fresh proceedings without his being prejudiced in any way by the failure of the present one.
5. It was conceded by Mr. Barman that there could be no question of substituting the present Collector of Central Excise for Mr. Orr, because no liability in respect of any erroneous order which Mr. Orr might have passed could be said to have been transmitted to the present Collector on his succeeding to the office, making him thereby a legal representative of Mr. Orr as that term is understood in law.
Our attention was drawn to certain passages in a text book where it is stated that in certain jurisdictions substitution has been allowed under the provisions of special statutes, but on general principles it does not appear that any substitution is possible.
6. The position is undoubtedly not a very satisfactory one, inasmuch as transfers of Government Officers are ordinary incidents of their service and if an application for a writ is to be defeated by the mere fact that the person whose order is complained against and against whom a writ was originally sought and sought properly has been transferred, such applications may be defeated by the easy expedient of a transfer or even when no transfer is deliberately made, for no fault of the petitioner.
It appears to me, however, that ho petitioner for a writ need expose 'himself to such a position. He can always implead a public officer by the designation, of his office, instead of individually and he can strengthen his position further and ensure himself against subsequent defects in the constitution of his proceedings by impleading the relevant State as a party.
7. So far as the present matter is concerned, we think we should accede to Mr. Barman's prayer and allow his client to take such fresh and further steps as he may be advised to take and also direct that inasmuch as the present proceedings are failing by reason of a technical defect, he should not be prejudiced in any manner by their failure. We would not have given this direction but for the omission on the part of the respondent to bring it to tile notice of the learned trial Judge, at the time he was considering the application, that he had ceased to be the Collector of Central Excise, Calcutta.
It is perfectly true that, primarily, it was the duty of the appellant to see that he had a proper respondent on the record, But the respondent, who is a Government servant, is not without responsibility to be fair and it was equally his duty to inform the petitioner when he has ceased to hold the office in which he was proceeded against, that such a change of circumstance had happened.
Since this was not done in the present case and the appeal was filed in the present form, partly at least for the reason that the respondent did not inform the appellant of his having ceased to be the Collector of Central Excise, Calcutta, although occasion for doing so had clearly arisen when the learned trial Judge proceeded to dispose of the application, we think it proper that the appellant should 6e allowed to begin afresh, if he so desires and If he is so advised.
8. For the reasons given above, this appeal is dismissed on the ground that it has become infruotuous for a technical defect, but we direct that nothing said by us in this appeal or by the learned trial Judge shall prevent the appellant from taking any fresh or further steps against the order complained of by him, if he be so advised.
9. There will be no order for costs in this appeal.
10. I agree.