9911796707
TMI Blog1954 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the last War and twelve months thereafter, if so required. He continued in service till the end of the War and was discharged on 5-11-1945. According to the plaintiff, he ought to have been retained in service for twelve months after the expiration of the War. It is further alleged that while he was continuing in service he was suddenly in utter disregard of the terms of the agreement reduced in pay as on 24-11-1943. The substantive pay of ₹ 150/- which was, according to him, stipulated in the original agreement was reduced to an all inclusive pay of ₹ 65/- per month only. Such reduction was further given retrospective effect from the date of the original enrolment. He was at one time directed to refund ₹ 2450 and odd which he had drawn on the basis of the substantive pay of ₹ 150/- as originally stipulated. Further payments thereafter were stopped as from November, and the plaintiff preferred an appeal to the higher authorities. While such appeal was pending, he was placed for trial before a Court Martial on certain charges relating to the statements made by him at the time of his enrolment. He was sentenced to five months' rigorous impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be dealt with when we consider each one of those specific claims after the general questions raised in the appeal are decided. We may state at this stage, however, that the total compensation claimed by the plaintiff was to be at ₹ 40,000/-. The plaintiff was permitted to sue as a pauper. He has also been permitted to file the present appeal as a pauper, 5. Various defences were raised on behalf of the Governor General in Council against whom the suit had originally been brought. The written statement filed was subsequently adopted by the Union of India after the Constitution came into force. It was contended 'inter alia' that the suit as framed was not maintainable; the claim was barred by limitation and waiver, on the merits it was alleged that the date of enrolment was on 19-3-1942, and not on 13-3-1942. The enrolment was claimed to be the only legal contract between the military personnel and the Government. As there was no endorsement as regards the rate of pay to be drawn by the plaintiff in this particular enrolment form, the terms and conditions of service of the plaintiff were to be regulated by the rules and conditions as provided in the Army Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot maintain a suit against the Crown is equally applicable in India. That rule of English Law was explained in the latest decision in -- 'Terrell v. Secy. of State for the Colonies', 1953-2 All ER 490. In support of the contention that the English Rule has been applied to India reference was made to -- 'High Commr. for India v. I. M. Lall' as also to the earlier decisions in -- 'R. T. Rangachari v. Secy. of State' and -- 'R. Venkata Rao v. Secy. of State'. It was urged that the contrary view expressed by the Federal Court in -- 'Punjab Province v. Tarachand', AIR 1947 FC 23 (EX was overruled by implication by the subsequent decision of the Judicial Committee in 'I. M. Lall's case (B)' referred to above. The decision of the Federal Court in 'Tarachand's case (E)' was on 11-4-1947, whereas the decision of the Judicial Committee in 'I. M. Lall's case (B)' was on 18-3-1948. It was contended that under Section 21, Government of India Act, 1935, the decision of the Judicial Committee must be binding on this Court in preference to the decision of the Federal Court. A decision of the Supreme Court would under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per month. The respective contentions will be clear when we deal with some of the details of fact on which these contentions are raised. 13. As regards the question as to on which date the plaintiff was really enrolled we do not think that there can be any serious doubt. At one stage a feeble attempt was made to make the date of recruitment to be the date of enrolment. That argument, however, cannot be sustained, as in various places in the Army Regulations to which reference was made by both the parties before us, a clear distinction is maintained as between recruitment and enrolment. There can be no doubt that in certain cases the date of recruitment is also the date of enrolment, but the enrolment is an act which is well defined under the Indian Army Act of 1911. Reference may be made to Sections 8 and 9 of that Act. The 1911 Act was in force at the time when the plaintiff was taken in military service. It is only after the enrolling officer is satisfied about certain particulars, and a form is signed by the person desirous of being enrolled, that the enrolling officer also signs the form, and under Section 9, Indian Army Act. the person shall then be deemed to be enrolled . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Divisional Superintendent to the Officer Commanding Camp Adjutant, Lucknow. There it was mentioned that Jamini Kanta Das had been appointed as a clerk enrolled in Indian Corps of Engineers on the 19th (subsequently penned through and altered to 13th) March, 1942. The concluding paragraph of this Minute Sheet was in the following terms: He is an ex-employee of Burma Railways and has elected civil rate of pay, plus percentage on ₹ 150/- p.m., the last pay drawn by him. 19. On the same day a second class ticket pass was made over to the plaintiff for travelling from Asansol to Howrah and back (exhibit 6), On the same date, i.e., 19-3-1942, the Divisional Superintendent addressed a letter to Major Tidy, Officer Commanding, 151, Railway Construction Company, Lucknow, introducing the plaintiff as the fittest person to work in his Company and giving his qualifications. The plaintiff was under the orders aforesaid to report himself at Lucknow by 31-3-1942. 20. In the meantime a circular letter was issued from the Office of the Officer Commanding Technical Group, East Indian Railway, Allahabad, intimating that the Jullunder Headquarters had drawn attention to a recent amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in exhibits C(1) and C(3). These two letters were dealt with by the Asansol Office on 2-4-1942, when by exhibit C(5) the Divisional Superintendent, Asansol, refused to correct the date of 19-3-1942, to 13-3-1942, it being pointed out that no correction should be made in the enrolment form, as it had already been intimated by the Lucknow office in the letter, dated 27-3-1942. On which date this letter, dated 2-4-1942. reached the Lucknow office has not been ascertained or pointed out to us. There is, however, on the record a copy of a letter which was sent by the plaintiff Jamini Kanta Das to the' recruiting officer M. A. Uddin intimating that corrections had already been made about the date of enrolment in the Lucknow office and he would take necessary steps for making such corrections in the Asansol records as well. 24. In exhibit 11 to which reference has already been made under the signature of Major Tidy, the Officer Commanding at Lucknow, orders were recorded accepting the enrolment of the plaintiff Jamini Kanta Das as from 13-3-1942, correcting the original date 19th. It appears that the plaintiff joined as Havildar Chief Clerk from the next day, i,e., 12-4-1942. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Army Act and the Rules and Regulations of the military department. He was paid on that footing and continued to receive payments on the basis of civil pay at the basic rate of ₹ 150/-per month. The book as it appears from page 10 purports to have been opened with effect from 13-3-1942. The book contains attestations and signatures of superior officers. The last payment recorded is on 15-10-1943, with a note thereafter in red ink, No more payments to be made until further orders. S. Tidy 26/11/43. 27. A new pay book exhibit 2 (a) was subsequently issued which the plaintiff refused to sign at page 10. This new pay book showed the date of enrolment as on 19-3-1942, and on 31-3-1944, there was a debit balance of ₹ 2450/- 11 as. under the signature of the Officer Commanding, Lieutenant Stone. 28. Reference may at this stage be also made to the discharge certificate (exhibit 3) which was issued after the final discharge on 4-11-1945. It is significant that in this discharge certificate at page 7 the date of enrolment still appears to be 13-3-1942. and the ground for the discharge is recorded on the same page as being by order of Commandant, 2 T. T. C., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified Rule, he should be given the choice between accepting Military Rates of Pay and his discharge. There is no provision -- far less any direction -- that for the services already rendered by such a person he should be deemed to have been engaged as under the low scale of pay and be disentitled till the date of discharge to receive the original pay as fixed. There is no explanation why steps were not taken to give the choice until more than eighteen months had rolled on. 32. We also notice that the materials which had been brought before the Court are not complete. Fruitless attempts were made on behalf of the plaintiff to obtain from the defendant's officer various original papers and orders of which specific reference was made in the petitions filed before the Court under Order 12, Rule 8, Civil P. C. On more than one occasion such applications had been filed. The only answer which we have on the record is a telegram which was received by the Subordinate Judge at Asansol in reply to the summons for the papers specified was to the effect that they were not traceable. Witnesses who were examined on behalf of the defendant Union could not satisfactorily explain that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that he had actually been enrolled on terms different from those which are contained in the Regulations. 34. On the conclusion reached by us that though not in terms of Section 10, Indian Army Act, yet on the principles underlying the same as also on equitable grounds which find an echo in the Circular Letter issued from Allahabad the plaintiff is entitled to a basic pay of ₹ 150/- per month for the period that he was in service, i.e., until the date of his discharge. 35. This takes us to the next part of the plaintiff's case as to whether he had been discharged before time and that he must be deemed to be still in service in terms of the conditions included in the enrolment paper. We do not think that there is any substance in this contention. The entry in the enrolment paper clearly indicated that he had stipulated to remain in service during the period of war and for a certain period thereafter, if required . Therefore, after the conclusion of the War when the Units were being disbanded a person so discharged cannot complain that he could not have been discharged. There was an option reserved which could be exercised by the Military authorities and that option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which different items of claim put forward under the four sub-heads can be substantiated. The amounts claimed also are such as cannot be entertained regard being had to the position and status of the appellant. One of the items is loss of properties. He attempted to state that because of difficulties in which he had been placed and of the scarcity prevailing at that time some of his properties were sold which would not have been sold had he received the salary in time. He further attempted to claim that the value fetched at that time was abnormally low. These are questions which cannot be considered as justiciable ones even if relevant evidence had been available. This part of the claim must, therefore, be dismissed. 41. The last item consists of damages for illegal discharge from service. As we have already held that the discharge was not an illegal one, but within the powers and jurisdiction of the authorities as under the terms of the enrolment, it is not necessary for us to consider the claim for damages under this head, He is not entitled to any damages as he has not been illegally discharged 42. The result, therefore, is that this appeal is allowed in part. It is de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
