Case: The State Of Bihar Vs. Abdul Majid

The undisputed facts of the case are:That the respondent was appointed a Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January, 1920. In the year 1937 departmental proceedings were taken against him and he was found guilty of cowardice and of not preparing search lists and was punished by demotion for ten years. On appeal; the Deputy Inspector-General of Police held that the respondent was guilty of cowardice but acquitted him of the other charge. By an order dated the 23rd July, 1940, which was communicated to the respondent on the 29th of July, 1940, the Deputy Inspector-General of Police having found him guilty of cowardice made an order dismissing him from service. Further appeals by the respondent to the Inspector- General of Police and to the Governor of Bihar were unsuccessfulAggrieved by the departmental action taken against him, the respondent filed the suit out of which this appeal arises in the court of additional subordinate judge against the State of Bihar for a declaration that the order of the Deputy Inspector-General of Police dismissing him from service was illegal and void and that he should be regarded as continuing in office. He also claimed a sum of Rs. 4, 241 from 30th July, 1940, to the date of the suit on account of arrears of salary. The State contested the claim and pleaded that the plaintiff held his service at the pleasure of the Crown, and could not call in question the grounds or the reasons which led to his dismissal, and that in any case he had been reinstated in service from the 30th of July, 1940, and the order of dismissal therefore was no longer operative, and the suit had thus become infructuous. The additional subordinate judge by his judgment dated the 2nd February, 1945, dismissed the suit on the finding that the Government having reinstated the respondent he had no cause of action. As regards the arrears of salary, it was held that the claim to it could only be made according to the procedure prescribed under rule 95 of section 4-of Chapter IV of Bihar and Orissa Service Code. This decision was confirmed in appeal by the additional district judge.On further appeal the High Court reversed these decisions and decreed the claim for arrears of salary in the sum of Rs. 3, 099-12-0. It was held that rule 95 of the Bihar and Orissa Service Code had no application because the respondent had never been dismissed within the meaning of that rule. It was further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision of the Federal Court in Tara Chand Pandits case ([1947] F.C.R. 89.) the correctness o15 which was not affected by decisions of the Privy Council in cases of1. M. Lall 75 I.A. 225.) and Suraj Narain Anand (75 I.A. 343).

Reasoning:
The respondent here was dismissed by the Deputy Inspector-General of Police, though he was appointed by the Inspector-General of Police. This was clearly contrary to the provisions of section 240 (3) ofthe Government of India Act,1935,which provides that no person shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed. But nevertheless the appeal-preferred by him to the Inspector-General of Police was rejected and his petition to the Government of the State met with the same fate, so that he was never reinstated by the order of any revising or appellate authority. It was only after the present suit was filed that the Government reinstated him. This was no proceeding in revision or appeal. In these circumstances the enabling provisions of rule 95 had no application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the ruleIn the proviso to section 60 clause (i) the word salary is used as applicable to private employees and to Government servants also. The word salary in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the Crown a different meaning in the same clause. It seems to me therefore that the Imperial Parliament has not accepted the principle that the Crown is not liable to pay its servant salary for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the Crown is at His Majestys pleasureWe are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in1. M. Lalls case(75 I.A. 225.), without a consideration of the provisions of theCode of Civil Procedurerelevant to the inquiry and without a consideration of the reasoning of the Federal Court in Tara Chand Pandits case(2), cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject. We are in no way bound by the decision given either in Tara Chand Pandits case(2 ), or by the decision given by the Privy Council in I. M. Lalls case (75 I.A. 225.) But on a consideration of the reasons given in the two judgments we think that the rule of English law that a, civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the statute law in IndiaIn our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown ex grati or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fieldsThe rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase" durante bene placito" ("during pleasure") meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their servicesThe present claim is not based on tort but is based on quantum meruit or contract and the court is entitled to give relief to him. TheCode of Civil Procedurefrom 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary processThis rule of English law has not been fully adopted in section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by theCode of Civiln 292 of theGovernment of India Act,1935,provides that the law in force in British India immediately before the commencement of the Act shall continue in force until altered, repealed or amended by a competent legislature. Sections 100 to 104 of the Government of India Act.1935,confer legislative powers on the different legislatures in the countryIt is clear therefore that the Indian Legislatures were conferred bythe Government of IndiaAct,1935,power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that could be granted in such actions. These provisions ofthe Government of IndiaAct,1935,stand by themselves independently of what is contained in section 240, and therefore no question arises that section 60 of theCode of CivilProcedurewhich has the sanction ofthe Government of IndiaAct,1935,itself is in status lower than the rule laid down in section 240.