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Ram Das Hazra Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.922
AppellantRam Das Hazra
RespondentThe Secretary of State for India in Council
Cases ReferredCursetji v. Secretary of State
Excerpt:
crown, suit against - master and servant--wrongful dismissal--libel--whether action lies against crown for wrongful dismissal of servant or for damages for defamation--declaratory suit--specific relief act (i of 1877,) section 42, scope of--costs--whether court entitled to look to merits--difference of opinion between judges as to costs--opinion of senior judge to prevail--letters patent, section 36. - .....were no adequate reasons for dismissing the plaintiff from his said post, and that, under the government rules, the plaintiff's name was not fit to be published in the calcutta gazette or in any other newspapers of the government; (2) it be declared that the statement that the plaintiff was dismissed as guilty of heinous offences, which was published, is untrue and that the said publication should not remain published; (3) it may be declared that the said dismissal and publication were due to the deep rooted malice of the sheristadar, babu tinkori sarkar, against the plaintiff and were done by him and through his exertion; (4) that a decree may be passed for rs. 17-11-15 gundas claimed by the plaintiff as due for his salary; (5) that a decree be passed for the costs of the suit. on.....
Judgment:

Ashutosh Mookerjee, J.

1. This is an appeal on behalf of the plaintiff in a suit for the declaration that he has been wrongfully dismissed from Government service and for recovery of arrears of salary. On the 12th August 1890, the plaintiff was appointed to a ministerial post in the Burdwan Collectorate. On the 12th November 1900, he was suspended. He was subsequently prosecuted along with the other persons for offences under Sections 116, 161 and 466 of the Indian Penal Code. The Jury returned a somewhat ambiguous verdict which was interpreted by the Sessions Judge as a verdict of not guilty. The Sessions Judge made a reference to the High Court under Section 307 of the Criminal Procedure Code, as he disagreed with the verdict of the Jurors. This Court ultimately acquitted the accused on the 20th May 1902. King Emperor v. Chidghan Gossain 7 C.W.N. 135. The Collector subsequently perused the records and came to the conclusion that, although the appellant had been acquitted by the High Courts, he was really guilty of abetment of bribery and forgery. He based this conclusion not merely on the materials contained in the record of the criminal trial, bat also on several matters connected with the case, of which, in his own words, both the Sessions Judge and the High Court were unaware. The Collector, before he came to this adverse finding, did not call upon the appellant to show cause why he should not he dismissed; he stated explicitly that, had he not been prosecuted, he would have been called upon to show cause. Under the circumstances, on the 3rd October 1902, the Collector dismissed the appellant from Government service with effect from the date of his suspension. A Notification, dated the 20th July 1903, was subsequently issued in the Calcutta Gazette of the 22nd July 1903, to the following effect: 'Ram Das Hazra, late a Mohurir in the Burdwan Collectorate, having been dismissed from Government service, is debarred from re-employment in any capacity under Government.' The appellant sent representations to the Local Government as also to the Government of India but with no effect. The order of the Government of India was passed on the 4th December 1905 and was communicated to the plaintiff on the 20th January 1908. On the 17th January 1907, the plaintiff commenced this action against the Secretary of State for India in Council substantially for a declaration that be has been improperly dismissed from Government service; he prayed also for recovery of a small sum of Rs. 17 as arrears of salary, but this part of the claim has not been pressed in this Court. The plaintiff further stated that he would subsequently sue the Secretary of State for damages for wrongful dismissal. The claim was valued for purposes of jurisdiction at Rs. 5,117. The prayers in the plaint were in these terms: (1). A decree may be passed, declaring that there were no adequate reasons for dismissing the plaintiff from his said post, and that, under the Government rules, the plaintiff's name was not fit to be published in the Calcutta Gazette or in any other newspapers of the Government; (2) it be declared that the statement that the plaintiff was dismissed as guilty of heinous offences, which was published, is untrue and that the said publication should not remain published; (3) it may be declared that the said dismissal and publication were due to the deep rooted malice of the sheristadar, Babu Tinkori Sarkar, against the plaintiff and were done by him and through his exertion; (4) that a decree may be passed for Rs. 17-11-15 gundas claimed by the plaintiff as due for his salary; (5) that a decree be passed for the costs of the suit. On behalf of the Secretary of State for India in Council, the suit was defended on the ground that the plaint did not disclose any cause of action, and that the plaintiff had not been unjustly dismissed and had not suffered in the estimation of the public. The Subordinate Judge has dismissed the suit on the ground that the plaintiff has no cause of action and is not entitled to any of the declarations he seeks. The claim for arrears of salary has not been entertained as it was cognisable in a Court of inferior jurisdiction. And no reference has been made to this part of the case in the course of the arguments addressed to this Court. But, it has been strenuously argued that the plaintiff ought not to have been dismissed without an opportunity afforded to him to make his defence; that he has been seriously prejudiced by the ex parte order of dismissal passed in contravention of the rules prescribed by Government, and that, even if the plaintiff is not entitled to be restored to Government service, he is at least entitled to a declaration that his dismissal has not been made in accordance with th6 prescribed rules.

2. I am clearly of opinion that the plaintiff ought to have been heard before he was dismissed from Government service. The Col-lector wholly misunderstood the scope and effect of the rules on the subject, when he held that as the plaintiff had been prosecuted, he need not be called upon to show cause why he should not be dismissed. The plaintiff had been acquitted by this Court at the criminal trial. His dismissal was not and could not be based on the ground that he had been convicted of a criminal offence. The Collector proceeded on the ground that he had other evidence before him, of which both the Sessions Judge and the High Court were unaware; his decision was consequently founded upon matters which the plaintiff was allowed no opportunity to rebut. Under these circumstances, the Collector was bound to hear the plaintiff before he was dismissed. The rule on the Subject will be found in the Board's Rules 1902 page 70, Section 14. The Resolution of the Government of India, dated the 29th July 1879, mentioned there, explicitly requires that (except in the cases of public servants who are dismissed in consequence of facts or inferences elicited at a judicial trial), in all cases of removal or dismissal, the charge against the public servant concerned shall be reduced to writing, and that the decision thereon shall also be in writing. The rule further provides that when witnesses are examined, they should, when possible, be heard in the presence of the accused, who should be allowed to cross-examine, and a memorandum of the evidence shall be placed on the record. The rule specifically states that substantial compliance with these orders is not sufficient, that they are to be strictly carried out, and that Commissioners and other Appellate Officers are precluded from confirming orders of removal or dismissal passed in, contravention of these orders. The present case is plainly not covered by the exception; the plaintiff was not dismissed in consequence of facts or inferences elicited at a judicial trial; he had been acquitted, and he was dismissed because of facts and circumstances brought to the notice of the Collector but not known either to the Sessions Judge or to the High Court. The exception clearly contemplates cases where the public servant has been convicted at a judicial trial; as the Government of Bombay put it in their Proceedings dated the 16th October 1883, paragraph No. 13 (Board's Rules, 1902, page 91), a public servant, unless himself convicted at a judicial trial, has a right to defend himself depart-mentally against any imputation that he may have therein incurred, and this view is in accord with the Despatch of the Court of the Directors of the East India Company No. 42 of the 6th August 1851, as to the effect of Section 4 of Regulation I of 1829. There can, in my opinion, be no room for controversy as to the true scope of the exception and that this view is correct is conclusively established by the form in which the rule stands in the latest edition of the Board's Rules. I must take it, therefore, that the Collector misunderstood the effect of the rule and acted in contravention thereof when he dismissed the plaintiff without any opportunity afforded to him to make his defence; he has consequently a grievance, namely, that he has been dismissed without a hearing and without an opportunity of justifying himself. It is worthy of note that, at the hearing before us, no suggestion was made on behalf of the Crown that the Court should not consider whether or not the plaintiff was dismissed in contravention of the rules. On the other hand, the matter was elaborately discussed for three days by the learned Vakils on both sides with great ability, till the learned Government Pleader was constrained to admit, with the fairness which always characterises his arguments, that the plaintiff had been dismissed in contravention of the rule. I cannot appreciate why, under these circumstances, the Court should hesitate in the remotest degree to express its opinion upon the merits of the case. It is wholly immaterial that such conclusion may show that the officers of the Crown have failed to follow the prescribed rules. It is not right, till we know what has actually happened, to pronounce an opinion upon the question whether the Court is competent to grant the relief claimed. The question now arises whether, in the events which have happened, the plaintiff has any remedy against the Crown by a suit in the Civil Court.

3. It is now finally settled that, except when it is otherwise provided by statute as in Gould v. Stuart (1896) A.C. 575 : 65 L.J.P.C. 82 : 75 L.T. 110 all public officers and servants of the Crown hold their appointments at the pleasure of the Crown: Dunn v. Queen (1896) 1 Q.B. 116 at p. 119 : 65 L.J.Q.B. 279: 73 L.T. 295 : 44 W.R. 243 : 60 J.P. 117 and all, in general, are subject to dismissal at any time without cause assigned; In re Tufnell (1876) 3 Ch. D. 164 : 45 L.J. Ch. 731 : 34 L.T. 838 : 24 W.R. 915; Young v. Adams (1898) A.C. 469 : 67 L.J.P.C. 75 : 78 L.T. 506 14 T.L.R. 373; Ex parte Robertson (1858) 11 Moore P.C.C. 288; Shenton v. Smith (1895) App. Cas. 229 : 11 R. 375 : 72 L.T. 130 : 43 W.R. 637 : 64 L.J.P.C. 119; Grant v. Secretary of State for India 2 C.P.D. 45 : 46 L.J.C.P. 681 : 37 L.T. 188 : 25 W.R. 848 Dickson v. Combermere (1863) 3 F. & F. 527; nor will an action for wrongful dismissal be entertained. As Sir William Anson pats it (Law and Custom of the Constitution, Volume 2, Part I, page 221, third edition, 1907), all offices are held either 'at pleasure' or 'during good behaviour' and, unless it is otherwise stated, their occupants 'hold at pleasure.' This principle has been repeatedly recognised in the Courts of this country; Voss v. Secretary of State 33 C. 669; King v. Secretary of State 13 C.L.J. 357 : 9 Ind Cas. 858 : 15 C.W.N. 486 note; Cursetji v. Secretary of State 27 B. 189 : 5 Bom. L.R. 3. It is plain, therefore, that the plaintiff was liable to dismissal at any time without cause assigned. What the Crown could do independently of any inquiry and without the assignment of any reason, cannot very well be questioned in a Court of law on the ground that the inquiry has not been satisfactory or in proper form, or that the reason assigned is unsound and open to criticism [see the observations of Denman, C.J. in In the matter of Poe (1833) 5 B. & A.j 681 at p. 688 : 2 N. & M. 636 : 3 L.J.K.B. 33. It is thus impossible to hold, as his tenure of office was so precarious, that the plaintiff can successfully claim any relief against the Crown. It has been suggested, however, that relief may be afforded to the plaintiff by a declaration, on either or both of two grounds, namely, first, that he has been dismissed in contravention of the rules, and, secondly, that his dismissal ought not to have been notified. In my opinion, he cannot possibly claim relief on either of the two grounds mentioned. The plaintiff is not entitled to a declaration that his dismissal has been in contravention of the rules, because it does not fall within the scope of Section 42 of the Specific Relief Act, nor can it admittedly lead up to any consequential relief against the Crown which the Court is competent to grant. Section 42, as was explained in Deokali Koer v. Kedar Nath 39 C. 704 : 15 Ind. Cas. 427 : 16 C.W.N. 838 does not sanction every form of declaration but only a declaration that the plaintiff is entitled to a specific legal character or right as to property. Now, there is obviously no claim by the plaintiff as to a right to any property; can we then say, that he has a claim or title to any legal character which the defendant is interested to deny? The question must obviously be answered in the negative. The Court invited the learned Vakil for the appellant, in the course of argument, to frame a declaration which the plaintiff may seek in this case in the terms of Section 42: his endeavour to frame such a declaration was entirely un-successful, the only declaration he could suggest was that the plaintiff has been dismissed contrary, to, the rules. In my opinion, although the dismissal has been contrary to the rules, the plaintiff cannot be granted such a declaration under Section 42 of the Specific Relief Act. Nor is the Court able to grant the plaintiff any relief on the ground that his dismissal should not have been notified. It has been argued with reference to the Resolution of the Government of India, dated the 15th June 1895, (Board's Rules 1902, page 84), that the very fact that his dismissal was notified, implied that he had been dismissed for a heinous offence, as indeed was stated by the Collector in his order of the 3rd October 1902. It has been argued that, in this view, the notification of the dismissal of the plaintiff amounted to a libel on his character. I am unable to accept this contention as well founded. The plaintiff has not sued the Secretary of State for India in Council for recovery of damages for libel; if he had made the attempt, his suit would have been liable to dismissal On the principle explained in Grant v. Secretary of State 2 C.P.D. 45 : 46 L.J.C.P. 681 : 37 L.T. 188 : 25 W.R. 848 and Cursetji v. Secretary of State 27 B. 189 : 5 Bom. L.R. 3. The former of these cases arose under somewhat peculiar circumstances. By a general order, it was declared that all un-emloyed Indian officers ineligible for public employment by reason of misconduct or physical or mental inefficiency, should be removed to the pension list, Under this order-the plaintiff was removed to the pension list and a notification of such removal was published in the Gazette of India. It was ruled on demurrer, that no action lay either for the removal of the plaintiff or for the official publication of the fact, although special damage was alleged see also Doss v. Secretary of State for India (1895) L.R. 19 Eq. 509 : 32 L.T. 294 : 23 W.R. 773 and Olider v. Lord William Banbuch (1811) 3 Tarreston 456. It is manifest, therefore, that the plaintiff cannot sue the Crown for libel, nor can he ask for a declaration upon the Secretary of State that the notification be cancelled or withdrawn. Besides, the notification by itself is harmless; it merely states the fact that the plaintiff has been dismissed from Government service, and the object of the notification is to guard against the possibility of his re-employment in Government service in any capacity. Bat it is contended that as, under the Resolution of the Government of India, dated the 15fch June 1895, the dismissal of public servants is notified in the Gazette, only in two classes of cases, namely, first, when it in necessary to notify the public of the removal from the service, of an officer, whether because his appointment was previously gazetted or from any other cause, and secondly, when it is specially desired to exclude from re-employment in the service of Government or public servant who has been dismissed for a heinous offence, such as fraud or falsification of accounts, the inference may be drawn that the plaintiff has been dismissed for such heinous offence. I am unable to hold that the plaintiff has any real grievance in this matter. The inference adverse to him could be drawn at best only by people familiar with the rule in question but even such a person could not, from the mere fact of the Notification, infer whether it had been issued on the first or the second ground. The order of the Collector was not published, and the reason for the dismissal of the plaintiff has never been made public by the Government in accordance with the well recognised principle that the reason for the dismissal of a public officer should not be stated in the (Notification regarding his dismissal even in cases in which a conviction has been obtained in a Criminal Court. In -fact, but for the publicity given to the order of the Collector in the present suit, no one outside the official circle need ever have known the grounds upon which his order was based. In my opinion, the Government clearly acted within its rights when it notified the fact of the dismissal of the plaintiff solely with a view to prevent his re-employment in Government service in any capacity. The publication of this Notification, therefore, does not entitle the plaintiff to any relief against the Secretary of State. It may finally be added that although various imputations were made against the Sheristadar Tinkori Sarkar, he was not added as a party defendant and the third prayer in the plaint cannot consequently be granted.

4. I hold accordingly that the suit as framed must fail, but, in view of my conclusion that the plaintiff has been dismissed without a hearing as required by the rules, each party will be directed to bear his own costs throughout this litigation.

5. Under Clause 36 of the Letters Patent, the view of the Senior Judge will prevail upon the question of costs; and if any sum has been paid or deposited by the appellant in that behalf, it will be refunded to him.

Beachcroft, J.

6. I entertain no doubt whatever that the suit of the plaintiff does not lie and that the appeal must be dismissed.

7. The first two prayers in the plaint are, (1) that a decree may be passed declaring that there were no adequate reasons for dismissing the plaintiff from his said post and that under the Government rules, the plaintiff's name was not fit to be published in the Calcutta Gazette or in other newspapers of the Government, (2) that it be declared that the statement that the plaintiff was dismissed as guilty of heinous offence which was published is untrue and that the said publication should not remain published.

8. In arguing the appeal) the learned Pleader for the appellant has conceded that the declaration asked for in the first part of the first prayer cannot be given, but he presses for the declaration asked for in the second part of the first prayer and in the second prayer. The case in which declaratory decrees can be made was recently considered by this Court in the case of Deokali v. Kedar Nath 39 C. 704 : 15 Ind. Cas. 427 : 16 C.W.N. 838 and, on the authority of that decision and the plain words of Section 42 of the Specific Relief Act, it is clear that the plaintiff cannot get the decree which he seeks for in this suit.

9. Apart from the plain words of the statute, it is clear that the suit must fail on general principles. It is settled by a long course of decisions that, in the absence of a statute to the contrary, the Crown can dismiss its servants at pleasure, and that the servant has no remedy against such dismissal. If the Crown can so dismiss its servants, there can be no reason why it should not notify the fact of a dismissal and forbid re-employment. The Government Notification in the present case does no more than that. It consists merely of a statement of fact and an order.

10. But the plaintiff objects that the effect of the Notification is to prevent his getting employment anywhere because it amounts to a statement that he was guilty of a heinous offence. In fact, it does not amount to such a statement. Conceding, however, for the purpose of argument that the construction might reasonably be put on the Notification that it amounted to a statement that he had been dismissed on the ground that he had been guilty of a heinous offence, I am of opinion that no suit lies. In that view, it is in effect one for defamation, not it is true for damages, but for a declaration that he has been defamed. But he could not maintain a suit for damages for defamation Cursetji v. Secretary of State 27 B. 189 : 5 Bom. L.R. 3. In effect, the plaintiff is trying to do indirectly what he cannot do directly. The Court will not give a declaration that a plaintiff has suffered an injury if it is powerless to give compensation for that injury.

11. I purposely refrain from expressing any opinion on the question whether the plaintiff's dismissal was in accordance with the Government's rules or not. I think that is a question into which we ought not to enter. If the suit does not lie, we ought not to look at the merits. For if we say the dismissal was not in accordance with the rules, I think we practically stultify ourselves, for we give in our judgment the declaration which we say we cannot give in our decree, and encDurage1 the institution of untenable suits.

12. I accordingly agree in dismissing the appeal. I consider the respondent is entitled to costs, though possibly Government may not wish to enforce them.


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