1948 (3) TMI 51 - Other - Indian Laws

Summary

Issues Involved:
1. Validity of the order removing the respondent from the Indian Civil Service.
2. Proper construction of Section 240, Government of India Act, 1935.
3. Whether the respondent was given a reasonable opportunity to show cause against the dismissal.
4. Entitlement of the respondent to arrears of pay and damages.

Detailed Analysis:

1. Validity of the Order Removing the Respondent from the Indian Civil Service:
The respondent, a member of the Indian Civil Service since 1922, challenged the validity of an order dated 10-8-1940, which purported to remove him from service. The High Court initially declared the removal order as wrongful, void, illegal, and inoperative. The Federal Court later varied this decree, stating that the respondent was wrongfully dismissed on 4-6-1940. The Privy Council concluded that the purported removal on 10th August 1940 did not conform to the mandatory requirements of Sub-section (3) of Section 240 and was therefore void and inoperative.

2. Proper Construction of Section 240, Government of India Act, 1935:
The main questions raised involved the construction of Section 240, which includes:
- Whether Sub-section (1) is qualified by Sub-section (3).
- Whether Sub-section (3) is mandatory or permissive.
- The proper construction of the phrase "the action proposed to be taken in regard to him."

The Privy Council held that Sub-section (1) is qualified by Sub-section (3), which is mandatory. Sub-section (3) provides a condition precedent to His Majesty's exercise of the power of dismissal. The phrase "the action proposed to be taken in regard to him" means that a definite conclusion on the charges and the actual punishment must be provisionally determined before the civil servant is given the opportunity to show cause.

3. Reasonable Opportunity to Show Cause Against Dismissal:
The respondent was not given a reasonable opportunity to show cause against the dismissal. The Federal Court majority held that the civil servant must be informed of the proposed punishment and the grounds for it, and must be given a reasonable time to make representations. The Privy Council agreed with this view, stating that no action is proposed until a definite conclusion on the charges and the punishment is provisionally determined. The respondent was not given this opportunity, making the dismissal void and inoperative.

4. Entitlement to Arrears of Pay and Damages:
The respondent claimed arrears of pay from the date of the purported dismissal up to the date of action. The Privy Council noted that no action in tort can lie against the Crown, and any right of action must be based on contract or conferred by statute. The respondent's covenant did not include an obligation as to pay, and no statutory right to recover arrears of pay by action was found. Therefore, the respondent's claim to arrears of pay failed.

Conclusion:
The Privy Council advised that the judgment and order appealed from should be varied by declaring the order of 10th August 1940, purporting to dismiss the respondent, as void and inoperative. The respondent remained a member of the Indian Civil Service at the date of the institution of the present action on 20th July 1942. The order for a remit to the High Court was set aside, and the judgment was otherwise affirmed. The costs of the respondent were to be paid by the appellant as between solicitor and client, but the application for costs of the respondent's travel from India was not acceded to.