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TMI Blog1948 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of the section. The High Commissioner for India and the High Commissioner for Pakistan have accepted that they should be treated as appellants in place of the Secretary of State for India by virtue of Section 15. Their Lordships find it convenient, however, for the purposes of their opinion, to continue to refer to the Secretary of State as the defendant in the suit and appellant in the Federal Court and before the Board. 4. In the plaint, the respondent claimed (1) a declaration that the order of removal was ultra vires of the defendant (2) that the order was not passed in due process of law and was wrongful, illegal and of consequence whatever, (3) that he was still a member of the Indian Civil Service, and and had a right to continue in it, and to hold office from which he was removed by the illegal order of the defendant, and (4) that as a member of the Indian Civil Service he was entitled to all rights secured to him by the Covenant and rules and regulations issued from, time to time by the appropriate authority. 5. The suit was originally instituted in the Court of the Subordinate Judge, First Class, Lahore, but it was transferred to the High Court and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployed in the North-West Frontier Province. In September 1937, the respondent received a letter from the Judicial Commissioner, enclosing a letter from the Chief Secretary to the North-West Frontier Government, informing the Judicial Commissioner that the Punjab Government had decided to hold a departmental enquiry under Rule 55 of the Civil Service (Classification, Control and Appeal) Rules into the conduct of the respondent while stationed at Multan during 1935-36, and that eight charges had been framed against the respondent of which copies were enclosed. The letter proceeded to ask that steps should be taken to serve the charges on the respondent and that he should be asked to furnish within a reasonable time a written statement of his defence and to state whether he wished to be heard in person or not. The eight charges were divided into two categories, the first of which alleged improper favoritism or nepotism in connection with Sundar Das; the second category alleged improper victimization of certain of the junior officials who had protested against the attempted promotion of Sundar Das by an order of the respondent in December 1936, At the end of each charge were indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e eight charges, and found that the nepotism was complete and deliberate, and that the charges of victimization were all fully proved. 8. In view of the opinion which their Lordships have formed as to the proper construction of Section 240 of the Act of 1933, it is unnecessary to consider in further detail the validity of the enquiries held by Mr. Anderson and Mr. Brayne, and whether the respondent was afforded a reasonable opportunity thereat of answering the charges. 9. On 2lst June 1939, the Government of the Punjab sent the records of the enquiry, including Mr. Anderson's and Mr. Brayne's reports, to the Federal Public Service Commission, and expressed their opinion that the respondent should be removed from the Indian Civil Service but should be granted a compassionate allowance. Thin Commission, in terms of Section 266(3)(c), Government of India Act of 1935, is consulted on all disciplinary matters affecting a person serving His Majesty in a civil capacity in India. The respondent made representations to the Commission, protesting against the procedure of the enquiry and submitting arguments on the merits. The Commission, in a letter dated 31st August 1939, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this sub-section shall not apply- (a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; or (b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause. (4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor-General, or, as the case may be, the Governor, deems it necessary in order to secure the service of a person having special qualifications, provide for the payment to him of compensation it before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post. 13. Before dealing with the important questions of construction their Lordships may note that the terms dismissal and rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it difficult to deal with this contention irrespective of the decision of the next question If Sub-section (3) is merely permissive, and not mandatory, there will be no substance in the first question; but, if Sub-section (3) is mandatory, their Lordships are of opinion that it would constitute an express provision of the Act, which would qualify the provisions of Sub-section (1) and provide a condition precedent to His Majesty's exercise of His power of dismissal provided by Sub-section (1). 16. In considering the second question of construction, it will be necessary to refer to the position prior to the Act of 1935, when the relevant statutory provision was made by Section 96B, Government of India Act, 1919, and, in particular, by Sub-section (1), which provided as follows: 96B. - (1) Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during. His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed, and the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged. 17. It is to be observed that the provisions of Sub-section (1) of Section 96B of the Act of 1919 are made subject to the provisions of this Act and of rules made thereunder, that it makes express provision corresponding to Sub-sections (1) and (2) of Section 240 of 1935, but no express provision corresponding to Sub-section (3) of 1935; that matter was left to Rule 55. It is interesting to contrast two decisions of this Board, delivered on the same day in 1936. In Rangachari v. Secy. of State 24 A.I.R. 1937 P.C. 27 it was held-that a dismissal of a civil servant by an authority subordinate to that by which he was appointed was contrary to the provisions of Section 96B, Sub-section (1) of the Act of 1919, and was bad and inoperative. Lord Roche, in delivering the judgment of the Board, said (at p. 53): It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this contention we are unable to agree. Bight charges were served on the plaintiff and at the end he was asked to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government Rules and conduct unbecoming to the Indian Civil Service. He was aware from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established, and in this sense he was showing, cause during the course of the enquiry against the action proposed. The plaintiff's contention that there should be two enquiries the first to establish that he had been guilty and the second to determine what should lie the appropriate punishment, and that in each stage lie should have reasonable and independent opportunities to defend and show cause does not appear to be correct or intended by the Legislature. In the Federal Court Varadachariar, J. agreed with the conclusion of the High Court on this question, but the majority of the Court held a contrary view, which is express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested. Punishments are merely hypothetical. It is on that stage, being reached that the statute gives the civil; servant the opportunity for which Sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition, of that stage, if duly carried out, but that would not exhaust his statutory right, and he would; still be entitled to represent against the punishment proposed as the result of the findings of the enquiry. 22. On this view of the proper construction of Sub-section (3) of Section 240, it is not disputed that the respondent has not been given the opportunity to which he is entitled thereunder, and the purported removal of the respondent on 10th August 1940, did not conform to the mandatory requirements of Sub-section (3) of Section 240, and was void and inoperative. It therefore becomes unnecessary to consider the respondent's challenge of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant : see Leaman v. King (1920) 3 K.B. 663, Smith v. Lord advocate 25 R. 112 and other cases there referred to. It also follows that this qualification must be read, as an implied condition into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a Civil Court of Justice, and that their only remedy under their contract lies in an appeal of an official or political kind. Their Lordships are of opinion that this is a correct statement of the law. In the present case there is no obligation as to pay in the respondent's covenant, as already m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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