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Gulzar Ahmad Jafri v. Government Of United Provinces
Structured Summary of the Opinion (Malik, C.J. and Desai, J.)
Factual and Procedural Background
Gulzar Ahmad Jafri (the appellant) was appointed a Sub‑Inspector of Police in the United Provinces on 23 October 1931. He was suspended on 3 October 1938 by the Superintendent of Police, Jaunpur, on charges of demanding and accepting illegal gratification. On 20 July 1939 charges were framed and a departmental enquiry by a Board (Deputy Inspector General as President and two Superintendents as members) was held. The Board found the charges proved, and the Deputy Inspector General of Police dismissed the appellant by order dated 18 August 1939.
The appellant appealed to the Inspector General of Police who dismissed the appeal on 20 July 1940; a revision to the Governor, United Provinces, was dismissed on 24 December 1940. The appellant obtained leave to sue in forma pauperis and filed suit seeking (a) a declaration that his dismissal was illegal and that he remained in Crown service, (b) monetary relief for withheld salary/subsistence (including specific sums claimed), and (c) costs.
After institution of the suit, and following authorities on the point, the Deputy Inspector General's earlier order was held to be vacated; the Inspector General of Police reviewed the Board's proceedings and on 8 July 1942 passed an order dismissing the appellant with retrospective effect from 18 August 1939. The lower court (Civil Judge) declined to grant the declaratory relief that the appellant remained in service but awarded subsistence allowance (one‑fourth of pay) of Rs. 606‑10‑8 for the period 18 August 1939 to 8 July 1942. The appellant appealed; the Provincial Government did not cross‑object. The appellate hearing produced the present opinions of Malik, C.J. and Desai, J.
Legal Issues Presented
- Whether a Sub‑Inspector of the subordinate police ranks appointed by the Inspector General could be validly dismissed by a subordinate authority (the Deputy Inspector General) in light of section 240(2) of the Government of India Act, 1935 and related earlier provisions (notably section 96‑B of the Government of India Act, 1919) and the Police Act and rules.
- Whether the procedural requirement of section 240(3) — that a civil servant be given a reasonable opportunity of showing cause against proposed dismissal — applied to a Sub‑Inspector of subordinate police ranks, and if so, whether the Inspector General's order dated 8 July 1942 was invalid for failure to give a fresh notice to show cause (as interpreted in High Commissioner for India v. I.M. Lall).
- Whether, assuming an invalid dismissal, the appellant was entitled to declaratory relief that he remained in service and/or to recover arrears of full salary for the periods claimed (including consequences of suspension and retrospective orders of dismissal), or only to subsistence allowance for suspension.
Arguments of the Parties
Appellant's Arguments
- The appellant relied on section 240, sub‑section (2) of the Government of India Act (1935) and the Privy Council decision in The High Commissioner for India v. I.M. Lall to assert that dismissal by a subordinate authority (the Deputy Inspector General) was illegal and ultra vires, so he continued to be a Crown servant.
- Challenged the Inspector General's order of 8 July 1942 on the ground that no intimation or opportunity was given by the Inspector General to the appellant to show cause against the proposed dismissal (i.e., non‑compliance with section 240(3) as interpreted in Lall).
Respondent's (Provincial Government's) Arguments
- Relied on section 243 of the Government of India Act, 1935 and on the Police Act (No. V of 1861) and rules framed thereunder to contend that rules existed permitting dismissal of a Sub‑Inspector by a subordinate authority (Deputy IG), and that those rules governed the subordinate police ranks.
- Pleading in the written statement acknowledged the Federal Court/Privy Council pronouncements vacated the Deputy IG's order, and asserted that the Inspector General's later order (8 July 1942) dismissed the appellant (with retrospective effect); alternatively, if that order could not be retrospective, the respondent asserted that the appellant's proper entitlement was subsistence allowance for the suspension period (one‑fourth of substantive pay, amounting to an extra Rs. 606‑10‑8 for the period 18 August 1939 to 8 July 1942).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suraj Narain Anand v. The North‑West Frontier Province (Federal Court, 4 Dec 1941) | Held (by the Federal Court) that dismissal of a Sub‑Inspector appointed by the Inspector General by a Deputy Inspector General was not in accordance with sub‑section (2) of section 240 (Government of India Act, 1935) and was null and void (in the Federal Court's view under the statutory regime then considered). | The courts below and the parties treated this decision as central; it prompted the Provincial Government to vacate the Deputy IG's order and for the Inspector General to pass a fresh order. The opinion discusses the Federal Court's holding as part of the statutory interplay analysis. |
| The North‑West Frontier Province v. Suraj Narain Anand (Privy Council) | The Judicial Committee held that the words "conditions of service" in section 243 of the Government of India Act, 1935 are wide enough to include the circumstances under which an employer could terminate service (i.e., dismissal procedure) and, therefore, rules under section 243 could permit dismissal by a subordinate authority in certain circumstances. | The opinion recounts the Privy Council's differing view from the Federal Court and discusses its impact on whether section 240(2)/(3) applies to subordinate police ranks; the Privy Council decision led to further litigation and review application, and the appellate history is recited and analyzed in determining applicability of section 240 to subordinate police. |
| The High Commissioner for India v. I.M. Lall (Privy Council) | Interpreted section 240(3) to mean that "action is not proposed" until a definite conclusion has been reached on charges and punishment provisionally determined; identified two stages where opportunity to show cause may be required (the inquiry stage and the post‑inquiry stage when punishment is proposed). | The court applied Lall's interpretation of section 240(3) to assess whether the Inspector General's action (8 July 1942) required a fresh opportunity to show cause. The opinion accepts Lall's two‑stage analysis for the meaning of section 240(3). |
| R.T. Rangachari v. Secretary of State for India in Council (Privy Council) | Addressed section 96‑B (Government of India Act, 1919) and whether dismissal by a subordinate authority (an authority lower in rank than appointing authority) is valid; Privy Council found such a dismissal bad and inoperative. | Used by the court to highlight precedent under the 1919 Act that dismissals by subordinate authorities could be invalid where rules purported to delegate dismissal power inconsistent with the statutory proviso. |
| Punjab Province v. Tara Chand (Federal Court) | Considered whether a Crown servant could recover arrears of pay after wrongful dismissal; Federal Court gave a declaration that dismissal was wrongful and awarded arrears of pay for three years (applying limitation principles). | The opinion uses Tara Chand to discuss whether an employee dismissed wrongfully can recover salary/arrears from the Crown in British India and contrasts the Lall decision (where recovery of arrears was not permitted) with Tara Chand (where arrears were awarded). The court examined these authorities in relation to appellant's claim for salary. |
| Provincial Government, G.P. v. Shamsul Husain (High Court of Nagpur) | Held a dismissal by a Deputy Inspector General of a Sub‑Inspector appointed by the Inspector General to be illegal. | Cited as one of the earlier authorities consistent with the Federal Court's pre‑Privy Council view that subordinate dismissals were invalid; used in discussion of the legal background. |
| Relying English authorities and texts: Halsbury's Laws of England (volumes cited), Leaman v. Rex, Mitchell v. R., Gould v. Stuart, Reilly v. King | Authoritative statements (as cited) that Crown servants hold office durante bene placito at common law; limitations on suing the Crown for salary or damages; principles on implication/exclusion of powers to dismiss at pleasure where contract prescribes fixed term or "for cause". | The opinion draws on these English materials to explain the common‑law background (durante bene placito) and statutory overlay in India; used to reason about the possibility and limits of claims for arrears and the role of statutory rules constraining Crown's liberty to dismiss. |
Court's Reasoning and Analysis
The court's analysis proceeds in two parallel strands (as reflected in opinions of Malik, C.J. and Desai, J.), focusing on (A) statutory construction of section 240 (sub‑sections (2) and (3)) and section 243 of the Government of India Act, 1935, in relation to subordinate police ranks; and (B) the consequences, if any, flowing from invalidity of the Deputy Inspector General's 1939 order and the validity of the Inspector General's subsequent 8 July 1942 order.
(A) Applicability of section 240(2) and (3) versus section 243 (subordinate police):
- The court accepted the Judicial Committee's interpretation in Lall that section 240(3) contemplates two stages: (i) the inquiry stage where charges are determined (and a defence opportunity must be afforded at that stage), and (ii) the post‑inquiry stage where punishment is provisionally determined and the civil servant must be given notice to show cause specifically against the proposed punishment.
- Malik, C.J. analyzed whether the words "no such person as aforesaid" in section 240(2) and section 240(3) are to be read as covering only those who hold office during His Majesty's pleasure (i.e., ordinary civil servants) or whether they also include members of subordinate police ranks (who are governed by section 243). He concluded that section 240(2) applies only to civil servants who hold office during His Majesty's pleasure and does not apply to subordinate police governed by section 243; consequently section 240(3) likewise does not apply to them. Therefore, non‑compliance with section 240(3) could not invalidate the Inspector General's order unless section 240 applied.
- Malik, C.J. observed relevant precedents (Rangachari, Anand/NWFP) and noted the complex appellate history, concluding that since section 243 governs conditions of service for subordinate police ranks, those officers are governed by their contract/rules rather than section 240(2)/(3) (subject to whether rules themselves were validly made at the relevant time).
- Desai, J. similarly concluded that dismissal of a Sub‑Inspector is governed by rules of the Police Regulations 1928 (so far as they were valid and in force when the dismissal occurred). Desai found that rules made under the 1919 Act that purported to empower subordinate dismissals were invalid while the 1935 Act's section 243 could validate rules made thereafter only prospectively; rules made in 1936 (under the 1919 regime) were invalid ab initio and could not be retrospectively validated by the 1935 Act when it came into force in 1937. On that reasoning the Deputy IG's order (18 Aug 1939) was invalid and inoperative.
(B) Validity of the Inspector General's 8 July 1942 order and remedial consequences:
- The Provincial Government conceded that the Deputy IG's 1939 order had been vacated. They produced the Inspector General's order of 8 July 1942, dismissing the appellant after studying the Board's proceedings; the Inspector General made the dismissal retrospective to 18 August 1939.
- Malik, C.J. accepted that the Inspector General had based his order on the Board's record and that no further notice to show cause was given by the Inspector General; but because Malik held section 240(3) did not apply to subordinate police governed by section 243, the lack of a fresh show‑cause notice did not render the Inspector General's order illegal under section 240(3). Malik therefore concluded the Inspector General's order was ultra vires only if section 240(3) applied — which, on his reading, it did not — and dismissed the appellant's claim for declaration that he remained in service.
- Desai, J. reached complementary conclusions through a slightly different route: he held that the Deputy IG's order (18 Aug 1939) was invalid (because the enabling rule in 1936 was invalid under the 1919 Act), but the Inspector General's 8 July 1942 order (passed after reviewing the Board's proceedings) was valid and binding on the appellant. Desai found that the appellant had not proved that the Inspector General had acted without authority or failed to give necessary procedural rights under applicable rules (and in any event section 240 was not the governing source for subordinate ranks). On this basis, Desai held that a declaration of continuing service would be futile in the face of the Inspector General's valid order.
- On the question of monetary relief, both judges considered whether the appellant could claim full arrears of salary for periods of alleged wrongful dismissal. The court reviewed common‑law principles concerning Crown servants (durante bene placito) and the English and Indian precedents (Tara Chand, Lall) bearing on the recoverability of pay from the Crown. Malik, C.J. was cautious: even if a dismissal is set aside, automatic reinstatement or full salary recovery does not necessarily follow; where a suspension was lawful and the officer is ultimately held guilty, full pay may not be justified. Desai, J. accepted the lower court's award of subsistence allowance for the suspension period (one‑fourth of pay) and did not disturb it, noting that the civil judge's decree was not attacked by the Provincial Government.
Holding and Implications
Holding: APPEAL DISMISSED.
Direct effects on the parties (as reflected in the opinion):
- The appellate court dismissed the appellant's appeal with costs.
- The lower court's decree awarding the appellant Rs. 606‑10‑8 as subsistence allowance for the period 18 August 1939 to 8 July 1942 was not challenged on cross‑objection by the Provincial Government and therefore stands.
- The appellant was not granted a declaratory judgment that he remained in Crown service; the Inspector General's order of dismissal of 8 July 1942 (whose validity was upheld or not successfully attacked in the proceedings) was treated as operative for purposes of the relief sought.
Implications regarding legal principles (limited to what is stated in the opinion):
- The court engaged in detailed statutory interpretation of section 240(2) and (3) and section 243 of the Government of India Act, 1935. Malik, C.J. concluded that section 240(2) and (3) apply only to civil servants who hold office durante bene placito and not to subordinate police ranks governed by section 243; hence the specific procedural protection in section 240(3) (the post‑inquiry show‑cause notice) did not apply to such subordinate police officers. Desai, J. similarly treated subordinate police ranks as governed by valid Police Act rules where those rules are valid, but also explained the invalidity of the 1936 rule (made under the 1919 Act) as not retrospectively saved by the 1935 Act.
- The opinion emphasizes that the Court will treat as operative later valid administrative action (here, the Inspector General's order) passed during pendency of litigation and that a declaratory remedy would be futile where an intervening valid order has been made.
Note: This summary is confined to the matters and conclusions expressly contained in the provided opinion. No facts, holdings, or implications have been added beyond what appears in the text.
Malik, C.J:— Gulzar Ahmad Jafri, the appellant, was a Sub-Inspector of Police in the United Provinces and was appointed as such by the Inspector General of Police on the 23rd of October, 1931. On the 3rd of October, 1938, he was suspended by the Superintendent of Police Jaunpur, on a charge of having demanded and accepted illegal gratification. On the 20th of July, 1939, charges were framed against the appellant in accordance with certain rules made under the Police Act and an enquiry was held by a Board, consisting of the Deputy Inspector General of Police and two Superintendents of Police. There is no complaint about the procedure followed at the enquiry. The appellant appeared before the Board, and the Board, ultimately, after considering the materials placed before it, held that the charges were proved and the appellant was dismissed from service under orders of the Deputy Inspector General of Police dated 18th of August, 1939. The appellant appealed to the Inspector General of Police who dismissed the appeal on the 20th of July, 1940. The appellant then went up in revision to His Excellency the Governor, United Provinces, but the revision was dismissed on the 24th of December, 1940.
The plaintiff filed an application for permission to sue in forma pauperis on the 17th of February, 1942. The leave was ultimately granted. The reliefs claimed by the plaintiff were as follows:
(i) It be declared that the plaintiff's dismissal from service being illegal and ultra vires, he should stilt be deemed to be in service of the Crown as a Sub-Inspector of Police.
(ii) That a decree in favour of the plaintiff against the defendant be passed in the following terms:
(a) Rs. 551-4 being the amount wrongfully deducted from the plaintiffs salary from 3rd October, 1938 the date of his suspension up to 18th August, 1939, the date of his alleged dismissal.
(b) Rs. 2,100 being the amount of his pay, from the date of the plaintiff's alleged dismissal up to the date of the suit at the rate of Rs. 70 per month.
(c) The plaintiff be awarded pendente lite and future salary till the date of his re-instatement.
(iii) Plaintiff be awarded cost of this suit against the defendant.”
The ground on which the plaintiff claimed the above reliefs was that the plaintiff had been appointed by the Inspector-General of Police and his dismissal by the Deputy Inspector-General of Police was illegal and reliance was placed on section 240 of the Government of India Act, 1935.
The Federal Court, on the 4th of December, 1941, had decided the case of Suraj Narain Anand v. The North-West Frontier Province(1) in which it was held that the dismissal of a Sub-Inspector, appointed by the Inspector General of Police, by the Deputy Inspector-General of Police, was not in accordance with the provisions of sub-section (2) of section 240 of the Government of India Act, 1935, and was, therefore, null and void. The defendant filed a written statement on the 4th of November, 1942, in which it is mentioned that by reason of the pronouncement of the Federal Court the order of dismissal passed by the Deputy Inspector General of Police on the 18th of August, 1939, was vacated, and the Inspector General of Police, after studying the evidence recorded by the Board, had dismissed the plaintiff on the 8th of July, 1942, with retrospective effect from the 18th of August, 1939. It was further pleaded that, even if the order could not be retrospective, the utmost that the plaintiff could claim was the subsistence allowance payable during the period of suspension, i.e; an extra sum of Rs. 606-10-8, at the rate of Rs. 17-8 per mensem, being one-fourth of Rs. 70, the substantive pay of the plaintiff for the period between the 18th of August, 1939, and the 8th of July, 1942. The plaintiff filed a petition in reply in which he mentioned that no intimation was given to the plaintiff of the enquiry by the Inspector-General of Police and also no opportunity was given to the plaintiff to meet the charges levelled against him. In this petition certain interrogatories were also required to be answered and the interrogatory no. 2 was to the following effect:
“Is it a fact or not, that the plaintiff was given no intimation by the Inspector General of Police that his dismissal by the Deputy Inspector General of Police on the recommendation of the Board as illegal and void and, therefore, he would hold another enquiry himself and also no opportunity was given to the plaintiff to place his case before the Inspector General of Police and the order was passed behind the back of the plaintiff without any enquiry.”
The answer to this interrogatory by Jasoda Nand Asthana, Head Clerk, Office of the District Superintendent of Police, Jaunpur, on behalf of the defendant was as follows:
“No. The Inspector General of Police studied the file and the proceedings and the evidence recorded by the Inquiry Board and based his findings on that material. No further Opportunity was given to the plaintiff.”
The parties made a statement on the 13th of March, 1943, that they did not wish to produce any oral evidence.
The lower court came to the conclusion that, the Inspector General of Police having dismissed the plaintiff on the 8th of July, 1942, the plaintiff could not get a declaration that he was still in service. The lower court, however, held that inasmuch as the order of the Inspector General of Police was passed on the 8th of July, 1942, the plaintiff must be deemed to have remained under suspension up to that date and gave him a decree for Rs. 606-10-8, being one-fourth of the substantive pay, as subsistence allowance from the 18th of August, 1939, to the 8th of July, 1942. The plaintiff has filed this appeal but the defendant has submitted to the order passed by the lower court.
On behalf of the plaintiff reliance has been placed on section 240, sub-section (2) of the Government of India Act and on the decision of their Lordships of the Judicial Committee in The High Commissioner for India v. I.M Lall, and it has been urged that the order passed by the Inspector General of Police on the 8th of July, 1942, was illegal inasmuch as an opportunity was not given by the Inspector General of Police to the appellant to show cause against the proposed order of dismissal.
On behalf of the respondent reliance is placed on section 243 of the Government of India Act and on Police Act (No. V of 1861) and certain rules framed thereunder and it is said that the Deputy Inspector General of Police had the authority to dismiss the appellant Apart from the fact that I do not think there is much force in this contention, after the decision of the Federal Court and the Privy Council that the rules framed under the Police Act were ultra vires in view of the provisions of section 96-B of the Government of India Act, 1919 [see Suraj Narain Anand v. The North-West Frontier Provinces(2) and The North-West Frontier Province v. Suraj Narain Anand(3)], the defendant having clearly pleaded in the written statement that the order of the Deputy Inspector General of Police had been vacated and not having placed any reliance on the same in the lower court I do not think I can allow him to rely on that plea.
The question, therefore, narrows itself to this, whether the order of the Inspector General of Police dated 8th of July, 1942 was valid. I have already said that this order was challenged before me by Mr. Pathak, learned counsel for the appellant, only on one ground and that was that the requirements of sub-section (3) of section 240 of the Government of India Act were not fulfilled. The relevant portion of section 240 of the Government of India Act is as follows:
“(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided…”
Dealing with sub-section (3) of section 240 of the Government of India Act their Lordships of the Judicial Committee held in the High Commissioner for India v. I.M Lull that—
“no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow 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.”
It is clear, therefore, that their Lordships have held that there are two stages: the first being when the charges are enquired into and at this stage the person required to meet the charges should be given a reasonable opportunity to enter into his defence, and the second stage is when after the enquiring authority has come to its conclusions on the charges and there arises the question of the proper punishment to be awarded. A notice has then again to be given to show cause against the punishment proposed. The facts are admitted that the Inspector General of Police merely studied the evidence recorded by the Board of Enquiry and passed the order of dismissal on the basis thereof without giving any further opportunity. No point was made before me that the Inspector General of Police should not hive passed the order of dismissal without a fresh enquiry and merely on the basis if the materials placed before the Board and I need not, therefore, express any opinion on the point. The fact is admitted that no further notice was given to the appellant to show cause against the order proposed as required by section 240(3) of the Government of India Act, 1935, as interpreted by their Lordships of the Judicial Committee in the High Commissioner for India v. I.M Lall. If, therefore, section 240(3) is applicable there can be no doubt that the order of the Inspector General of Police was illegal and was ultra vires.
Reliance is placed on section 243 of the Government of India Act which is as follows:
“Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively.”
I have already quoted the relevant portion of section 240. This section provides that all civil servants hold office during His Majesty's pleasure, except those who have been expressly excluded under the provisions of the Act. A member of the subordinate ranks of the various police forces in India does not, therefore, come under sub-section (1) of section 240 of the Government of India Act. The question arises whether sub-section (2) applies only to those civil servants who hold office during His Majesty's pleasure or also to those who are excepted under sub-section (1) of section 240. If this sub-section applies to all civil servants, those who hold office during His Majesty's pleasure and others, then any rule to the contrary even under the Government of India Act, 1935 would be ultra vires as it was under the Government of India Act, 1919. If sub-section (2) does not apply to a Sub-Inspector, who is a member of the subordinate ranks of the police forces, sub-section (3) will also not apply to him. In that case non-compliance with the provisions of sub-sections (2) and (3) would not effect the question of the validity of the order passed by the Inspector General of Police, the said order not having been challenged on any ground other than the non-compliance of the provisions of sub-section (3) as to notice. Barring the sections quoted above and the decision of the Privy Council in Lall's case no other case on this point was cited at the Bar, it being assumed that Lal's case concluded the point. It has been now held, in The North-West Frontier Province v. Suraj Narain Anand. That the words “conditions of service” in section 243 include the circumstances under which the employer is to be entitled to terminate the service. Their Lordships held in that case that the words “conditions of service” in section 243 were wide enough to include the circumstances under which an order of dismissal could be passed and the order of dismissal passed in that case was not invalid though it was passed by an officer subordinate in rank to the Inspector General of Police by whom the Sub-Inspector had been appointed.
I have already pointed out that sub-section (2) of section 240 clearly lays down that “no such person as aforesaid” shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. There is no exception mentioned in this sub-section and, if the words “no such person as aforesaid” in this sub-section is meant to include those who hold office during His Majesty's pleasure and those others expressly provided for in the Government of India Act, 1935, i.e, members of the subordinate police force, then no rule can be validly made for the discharge of the latter class of servants also by any authority subordinate to that by which he was appointed. The language of the sub-section is absolute. Their Lordships of the Judicial Committee having held in Anand's case that if there are rules to the contrary under the Police Act a subordinate police officer can be dismissed by an authority subordinate to the authority appointing him it must be held that cases of officers governed by section 243 of the Government of India Act, 1935, are not covered by section 240(2). This result would follow only if the words “no such person as aforesaid” in section 240(2) are interpreted to mean a person who holds office during His Majesty's pleasure. The others who come under section 243 must be deemed to be governed by their contract or by their rules of service.
section 96-B of the Government of India Act, 1919, was as follows:
“(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 Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed.
If any such person appointed by the Secretary of State in Council thinks himself wronged by an order of an official superior in a Governor's province and on due application made to that superior does not receive the redress to which he may consider himself entitled, he may, without prejudice to any other right of redress, complain to the Governor of the Province in order to obtain justice and the Governor is hereby directed to examine such complaint and require such action to be taken thereon as may appear to him to be just and equitable.
(2) The Secretary of State in Council may make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. Such rules may, to such extent and in respect of such matters as may be prescribed, delegate the power of making rules to the Governor General in Council or to local Governments or authorise the Indian legislatures or local legislatures to make laws regulating the public services:
Provided that every person appointed before the commencement of the Government of India Act, 1919, by the Secretary of State in Council to the civil service of the Crown in India shall retain all his existing or accruing rights, or shall receive such compensation for the loss of any of them as the Secretary of State in Council may consider just and equitable.
(3) The right to pensions and the scale and conditions of pensions of all persons in the civil service of the Crown in India appointed by the Secretary of State in Council shall be regulated in accordance with the rules in force at the time of the passing of the Government of India Act, 1919. Any such rules may be varied or added by the Secreatry of State in Council and shall have effect as so varied or added to, but any such variation or addition shall not adversely effect the pension of any member of the service appointed before the date thereof.
Nothing in this section or in any rule thereunder shall prejudice the rights to which any person may, or may have, become entitled under the provisions in relation to pension contained in the East India Annuity Funds Act, 1874.
(4) For the removal of doubts it is hereby declared that all rules or other provisions in operation at the time of the passing of the Government of India Act, 1919, whether made by Secretary of State in Council or by any other authority relating to the civil service of the Crown in India, were duly made in accordance with the powers in that behalf and are confirmed, but any such rules or provisions may be revoked, varied or added to by rules or laws made under this section.
(5) No rules or other provisions made or confirmed under this section shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the civil service of the Crown in India in such manner as may appear to him to be just and equitable, and any rules made by the Secretary of State in Council under sub-section (2) of this section delegating the power of making rules may provide for dispensing with or relaxing the requirements of such rules to such extent and in such manner as may be prescribed:
Provided that where any such rule or provision is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by the rule or provision.”
There was no section in the Government of India Act, 1919, similar to section 243 of the Government of India Act, 1935. A Sub-Inspector of Police in the Presidency of Madras was dismissed from service on 28th February, 1928. The order of dismissal had been passed by an authority subordinate to the authority appointing him. He had before that been invalidated and was drawing an invalid pension. After his dismissal the pension was stopped and he brought a suit for the recovery of his pension. The case was fought up to the Privy Council and the decision of their Lordships of the Judicial Committee is reported in R.T Rangachari v. Secretary of State for India in Council. Their Lordships held in that case that section 96B of the Government of India Act, 1919, confers no right of action to enforce the rules made thereunder, including the pension rules, but on the question of the power of dismissal by a subordinate authority than the one appointing him their Lordships observed as follows:
“Section 96-B contains the following proviso:
‘But no person in that service (the civil service of the Crown) may be dismissed by any authority subordinate to that by which he was appointed.’
The purported dismissal of the appellant on February 28, 1928, emanated from an official lower in rank than the Inspector General who appointed the appellant to his office. The courts below held that the power of dismissal was in fact delegated and was lawfully delegated to the person who purported to exercise it. Counsel for the respondent candidly expressed a doubt as to the possibility of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under rules it would wipe out a proviso and destroy a protection contained not in rules but in the section itself. Their Lordships are clearly of opinion that the dismissal purporting to be thus ordered in “February was by reason of its origin bad and inoperative.”.
For the reasons stated by their Lordships in their judgment their Lordships however did not give the declaration that the order of dismissal was bad and inoperative.
The case of Suraj Narain Anand v. The North-West Frontier Province came up for consideration before the Federal Court and was decided on the 4th of December, 1941. Suraj Narain Anand, the plaintiff in that case, was a Sub-Inspector of Police in the North-West Frontier Province. He was dismissed in April, 1938, by the Deputy Inspector General of Police of that Province. Reliance was placed in that case on section V of the Police Act (no. V of 1841) which is as follows:
“(Subject to such rules as the Provincial Government may from time to time make under this Act, the Inspector General, Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks) whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same; or may award any one or more of the following punishments to any police officer (of the subordinate ranks) who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely:
(a) fine to any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment drill, extra guard, fatigue or other duty;
(c) deprivation of good-conduct pay;
(d) removal from any office of distinction or special emolument.”
By the words “police officer of the subordinate ranks” is meant an officer below the rank of the Deputy Superintendent of Police. Rules were framed as required by section 7 of the Police Act for the appointment and dismissal of different grades of officers in the subordinate police service and in the rules, as amended in 1934, a Sub-Inspector could be dismissed by the Deputy Inspector General of Police. The rule did not differentiate between Sub-Inspectors appointed before 1934 or appointed later. Their Lordships of the Federal Court were of the opinion that the provision in section 96-B of the Government of India Act, 1919, was not qualified by anything corresponding to section 243 of the Government of India Act, 1935, and the rules made in 1934 giving an authority subordinate to the authority appointing the right to dismiss could not prevail against section 96-B of the Government of India Act, 1919, as under section 84 of that Act any law made by any authority in British India would be void so far as it was repugnant to any provision of that statute. That a rule which was invalid when it was made could not be come valid on the new Government of India Act of 1935 coming into force on the 1st April, 1937. Their Lordships were also of the opinion that the words “conditions of service” in section 243 did not include, the circumstances under which an order of dismissal could be passed and the protection afforded by sub-section (2) of section 240 must equally be held to have been intended for the benefit of officers referred to in section 243 as to other public servants. In the result they held the dismissal to be invalid and gave a declaration to that effect and sent the case back for decision on the other points. There was a further appeal to the Privy Council and the decision of their Lordships of the Judicial Committee is reported in the North-West Frontier Province v. Suraj Narain Anand. Their Lordships of the Judicial Committee were of the opinion that the words “conditions of service” were wide enough to include circumstances under which the employer could terminate a contract of service. Their Lordships then considered whether at the time when the plaintiff was dismissed there was a rule in existence made after the Government of India Act, 1919, had become inoperative giving the Deputy Inspector General of Police a right to dismiss a Sub-Inspector of Police appointed by the Inspector General. Their Lordships were of the opinion that though under section 96-B of the Government of India Act, 1919, such a rule was invalid, under the Government of India Act 1935, by reason of section 243, a Sub-Inspector could be dismissed by an authority subordinate to the appointing authority if the rules had so provided. This could only be possible, if, by reason of Section 243, sub-section (2) of section 240 was not applicable to a Sub-Inspector of Police and he was governed by the Police Act and by the rules framed thereunder by reason of section 243. The appeal was allowed. Thereafter an application was filed for review on the ground that the new rules had come into force four days after the appellant had been dismissed. Their Lordships being satisfied on that point advised His Majesty to dismiss the appeal and to affirm the decision of the Federal Court, dated 4th December, 1941 [see The North-West Frontier Province v. Suraj Narain Anand.]
The point whether the words “no such person as aforesaid” in sections 240(2) and 240(3) apply to all public servants or only to those who hold office during His Majesty's pleasure has not come up for consideration before the Federal Court after the decision by the Privy Council in Anand's case that the words “conditions of service” include proceedings for dismissal. On the review application in Anand's case, it being established that there was no valid rule under the Police Act giving an authority, subordinate to that by which Anand was appointed, the power to dismiss him, the appeal of the North-West Frontier Province failed.
Even, apart from the statutory provision contained in section 96-B of the Government of India Act, 1919, or section 240(2) of the Government of India Act, 1935, under the general law, see section 16 of General Clauses Act (U.P Act I of 1904 and Central Act X of 1897), a person should be dismissed only by the authority appointing him or some superior authority. In the absence of some law, rule or regulation which gives an authority subordinate to the appointing authority the right to dismiss, it is difficult to see how a subordinate authority can pass an order of dismissal. Section 240(2), to my mind, is a statutory recognition of a well-recognized rule, while section 240(3) introduces a technical rule about notice and it should apply only to cases to which the sub-section applies. Under the rule of natural justice all that is necessary is that due notice of the charges proposed and the punishment contemplated should be given to the person concerned so that he may have an opportunity of putting forward his defence. If such an opportunity has been given and it cannot be said that the defence was, in any way, prejudiced this technical rule introduced by section 243 of two separate notices, the second notice being given after the inquiring authority has come to a conclusion on the charges, would not necessarily vitiate the order. In my view section 240(2), applies only to public servants holding office at His Majesty's pleasure and not to a police officer of the subordinate ranks governed by section 243 of the Government of India Act, and if sub-section (2) of section 240 does not apply to a police officer of the subordinate ranks, sub-section (3) of section 240 would be equally inapplicable to him. No point was raised in the lower court and it was not urged before us that the order of the Inspector General of Police dismissing the appellant was in any way invalid by reason of its being contrary to any provisions of the Police Act or the rules framed thereunder. As, a matter of fact, no reliance was placed on them.
In my opinion, sub-section (3) of section 240 not being applicable, the plaintiff's suit for a declaration that he was still in service was rightly dismissed.
Another point argued before us was whether a public servant was entitled to get a decree for arrears of pay on the ground that he had been wrongly dismissed. The law on the subject in England is summarised in Halsbury's Laws of England, Hailsham Edn., Vol. 6, p. 486, as follows:
“Under the general rule at common law, no proceeding, civil or criminal, is maintainable against the Sovereign in person, for, the courts being his own, they can have no jurisdiction over him; and so far is this reasoning carried that the Crown cannot be compelled to become a party to an inter-pleader issue.
Redress may, however, be sought against the Crown by petition of right, in civil cases arising out of contract or relating to real or personal property, or indeed, probably, in any case where an action can be brought against a subject, or to enforce a right to compensation given by statute or by the rules of international law, with the exception of causes of action arising out of tort or out of an employer's liability for the acts of his servants. By a parallel development in the equity of Exchequer, it has become possible to sue the Attorney General, as representing the Crown, for a declaration which may indirectly or, possibly, which may directly, affect the rights of the Crown. In this case the Crown is in effect forced into Court against its will.”
and again in volume 9 at p. 692 as follows:
“Military, Naval, and civil officers of the Crown are dismissible at will, and no petition of right can be brought by them to recover pay, pension or other sums to which they claim to be entitled for their services, or damages in respect of their dismissal, even if contrary to the terms of an express contract of service. Neither have they any right of action for breach of an implied warranty of authority against the officer who engaged them.”
This point was carefully considered by the Federal Court in the Punjab Province v. Tara Chand; where a Sub-Inspector of Police had been dismissed by a Superintendent of Police, Punjab, on the 19th of March, 1938. The suit by the Sub-Inspector was decreed to this extent that he was given a declaration that he was wrongly dismissed and was given a decree for arrears of pay for three years prior to the date of his suit on the ground that Article 102 of the Limitation Act applied and only three years' claim was within time. It was held that the principle that the Crown was not liable to pay its servants for the salary for the period he was in service was not intended to be applicable to British India.
Learned Standing. Counsel has urged that their Lordships of the Judicial Committee must be deemed to have disagreed in Lal's case, with the view of the Federal Court in Tara Chand's case. Mr. Lall was a member of the Indian Civil Service and he was an officer who held office at His Majesty's pleasure and though their Lordships gave him a declaration that he was still a member of the Indian Civil Service on the date of the institution of the suit they held that he had no statutory right under the Government of India Act, 1935 to recover arrears of pay by an action. It is urged that this decision would not apply to the case of a police officer of subordinate ranks to whom section 243 of the Government of India Act applies, his conditions of service, including his right to his pay being governed by the Police Act.
If we had come to the conclusion that the order dismissing the plaintiff was null and void it would have been necessary to seriously consider the question what amount, if any, was payable to the plaintiff. The plaintiff was suspended on the 3rd of October, 1938, by the Superintendent of Police at Jaunpur on account of certain serious charges against him. It has not been urged that the order of suspensation was either illegal or improper. The order of dismissal passed by the Deputy Inspector General of Police and subsequenently by the Inspector General of Police, if null and avoid, could not result in an automatic reinstatement of the plaintiff, nor has the court a power to reinstate hm. It is true that the rules about dismissal cannot be allowed to be evaded by an order of suspension being allowed to remain in force indefinitely, but it has not been suggested here that there was any malice or any attempt to go behind the law. If a person, who had been suspended, is ultimately, after the courts had set aside an improper order of dismissal, held to have been innocent, and to have, therefore, been wrongly suspended, he should no doubt get by way of compensation what he would, have earned as his salary. But from the fact that the order of dismissal was not validly passed, it does not necessarily follow that the public servant was innocent and his suspension order was also bad. In such a case if the public servant is ultimately held guilty and is dismissed, direct payment of his salary for the entire period does not appear to be justified. The court not having the power to reinstate a Sub-Inspector of Police but to merely declare that the order of dismissal passed against him is null and void, it may have to consider if it gives him a declaration to that effect whether monetary compensation can be given to him in such a case. If a public servant has earned his salary and it is actually-payable to him, the decision of the Federal Court has held that he can claim that salary by proceedings in a court of law. A salary which is actually payable to a public servant can be attached by his creditors to the extent mentioned in section 60 of the Code of Civil. Procedure, but from that it does not necessarily follow that the creditor can proceed against the Government for recovery of that salary if, for some reason, the Government considers that the salary is not payable to the public servant. I may further mention that under the United Provinces Fundamental Rules made by the Governor of the United Provinces under section 241(2)(b) of the Government of India Act, 1935, Fundamental Rule No. 53, “a government servant under suspension is entitled to a subsistence grant of such amount not less than one-fourth of his pay and not more than one-half of his pay as the suspending authority may direct, provided that in no case shall the amount of the subsistence grant exceed the maximum limits of leave salary on half average pay or half average substantive pay laid down in Fundamental Rules 87-A(2) and 89(2)”. So there is a maximum period during which a government servant under suspension can draw his subsistence allowance. I have already said that I do not see how the order of suspension passed in 1938 can be deemed to have come to an end specially when the orders of dismissal, if null and void, could not effect the dismissal of the officer. The question is not free from difficulty and in a proper case it may have to be considered. I do not want to express any final opinion in this case which would be merely obiter dictum.
In the result, therefore, this appeal is dismissed with costs.
Desai, J.:— The appellant was appointed as a Sub-Inspector of Police on 23rd October, 1931 by the Instor General of Police, U.P On account of some complaint an inquiry was made against him by the Superintendent of Police. He suspended him on 3rd October, 1938. Then a Board consisting of the Deputy Inspector General of Police as President and two Superintendents of Police as members was constituted to hold a departmental trial of the appellant. The Board framed charges against him on 20th July, 1939. As the result of this trial by the Board, the Deputy Inspector-General passed an order on 18th August, 1939 dismissing him from service. He preferred an appeal to the Inspector General of Police who on 20th July, 1940, refused to interfere. He was drawing Rs. 70 per month on the date of his suspension. For the period between 3rd October 1938, the date of suspension, to 18th August 1939, the date of his dismissal, the Government paid him a subsistence allowance of one-fourth of his salary, i.e, of Rs. 17-8 per month. He approached the Governor in Council for redress against the dismissal but in vain. Then he served a notice under section 80 of the Civil Procedure Code upon “the Provincial Government and getting no response sued in forma pauperis on 17th February, 1942. He pleaded that the Board, having no magisterial powers, was not competent to try him because the allegation against him amounted to one of a criminal offence punishable under Indian Penal Code that he having been appointed by the Inspector-General could not be dismissed by the Deputy Inspector-General who is subordinate to him, that his suspension and dismissal were null and void and that he was in the eye of law still in service, of the Crown. He claimed the reliefs of:
(1) declaration that his dismissal was illegal and ultra vires and that he was to be deemed to be in service of the Crown,
(2) a decree for Rs. 551, being the amount “wrongfully” deducted from his salary from 30th October, 1938 to 18th August, 1939,
(3) a decree for Rs. 2,400 on account of his salary from 18th August, 1939 to the date of the institution of the suit, at Rs. 70 per month which was the salary at the time of his suspension, and
(4) a decree for his salary at the same rate for the period from the date of the suit to the date of his reinstatement.
While an inquiry was being made into his claim of being a pauper, the Inspector-General was advised that his dismissal by the Deputy Inspector-General was illegal according to a decision of the Federal Court. He called for the proceedings of the Board and on 8th July, 1942, passed another order of dismissal on the basis of the evidence recorded by the Board and after considering its findings. He made the order retrospective with effect from 18th August, 1939. A copy of the order was served upon the appellant on 25th July, 1942. The application to sue in forma pauperis was allowed by the Court on 15th August, 1942.
The suit was contested by the Provincial Government. They admitted all the facts but contended that the suspension was not illegal. They pleaded that the order of dismissal passed by the Deputy Inspector-General on 18th August, 1939 was null and void on account of the decision of the Federal Court in Suraj Narain Anand v. The North-West Frontier Province, that the proper procedure was observed by the Board in holding the inquiry, that the appellant, was dismissed by an order of the Inspector-General of 8th July, 1942 that the appellant, in the face of that order, was not entitled to the declaration sought by him, that there was nothing wrongfully deducted from his salary for the period of suspension, that he was not entitled to any salary after 18th August, 1939, and that in any Case he could not get more than Rs. 17-8 per month for the period from 18th August, 1939 to 8th July, 1912.
As the dispute between the parties was about interpretation of Statutes and Rules, no oral evidence was produced by them. The learned Civil Judge who tried the suit decreed it only for Rs. 606-10-8, being the amount of subsistence allowance at Rs. 17-8 per month for the period 18th August, 1939 to 8th July, 1942. He did not grant the declaration. The decree was based on these findings.
The order of the Deputy Inspector-General was null and void, the order of the Inspector-General was valid but could take effect not from 18th August, 1939 as it purported to be but from 8th July 1942, the date on which it was actually passed, the appellant was given an opportunity of showing cause against the action proposed to be taken against him by the Board, it was not at all necessary that the Board should have had magisterial powers, when there existed a valid order of dismissal it was no use declaring that the Deputy Inspector-General's order was invalid, and the appellant was not entitled to anything more than the subsistence allowance for the remaining period ending on the 8th July, 1942.
From the above decree this appeal is filed by the plaintiff. There is no cross-objection by the Provincial-Government.
section 240 of the Government of India Act reads as follows:
(1) Except as expressly provided by this Act every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
(2) No such person as aforesaid shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him.”
Another relevant provision of the same Act is section 243 which is in these words:
“Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Act, relating to those forces respectively.”
Under the common law of England a civil servant of the Crown holds office durante bene placito, though in practice he is a permanent official and is never removed except for misconduct or inefficiency. It is an implied term of the service of every Crown servant that he can be dismissed by the Crown at pleasure. Even if there is a special contract with him that he would be in office for a certain term that contract is deemed to be contrary to public policy and not binding on the Crown. See Leaman v. Rex, in which Acton, J. quoted the following from Mitchell v. R.:
“All engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown, and give no occasion for an action in respect of an alleged contract.”
Though the engagements referred to are with men in military service, the same rule applies to engagements with all other servants of the Crown. If, however,—
“the terms of the appointment definitely prescribe a term and expressly provide for a power to determine ‘for cause’ it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded. This appears to follow from the reasoning of the Board in Gould v. Stuart.” Reilly v. King.
What is a common law rule in England is a statutory rule in India. In the Government of India Act of 1919 and also in the Government of India Act of 1935 it is expressly laid down that every member of a civil service of the Crown in India holds office during His Majesty's pleasure; vide sections 96(b) and 240 respectively of the two Acts. Though the Crown has liberty to dismiss a servant at pleasure, it is possible for the liberty to be restricted or qualified. It is here both restricted and qualified. No question of public policy would arise when the Legislature itself restricts the Crown's liberty. There are restrictions placed on the liberty under section 243 of the Government of India Act. There are other limitations contained in sub-sections (2) and (3) of section 240, though they are not on the power to dismiss at will but on the manner in which the dismissal at will can be brought about. Under sub-section (2) the dismissal must be by the appointing authority or a higher authority; and under sub-section (3) it must be preceded by reasonable opportunity to the servant of showing cause against the action proposed to be taken against him. Neither of these restrictions has anything to do with the question of dismissal at pleasure. Even when the Crown dismisses at pleasure, it must to do so with due regard to the provisions of these two sub-sections. The question, when can a civil servant be dismissed, is distinct from the question by whom he can be dismissed, and what is the procedure to be observed in dismissing him. The only meaning of an office being held durante bene placito is that—
“no claim can possibly arise to salary or remuneration in respect of a period subsequent to such termination;” [Punjab Province v. Tara Chand per Zafrullah Khan, J.]
Thus the provisions of sub-sections (2) and (3) are really qualifications, rather than restrictions on the liberty of the Crown to dismiss at pleasure. Section 243 is a real restriction on the Crown's liberty to dismiss at will Notwithstanding anything contained in section 240 the conditions of service of the subordinate ranks of the police force shall be such as may be determined by or under the Police Act, if it is laid down in the Police Act that no policeman can be dismissed at will. A Sub-Inspector of Police belongs to a subordinate rank. It is stated in section 1 of the Police Act of 1861 that—
“references to the subordinate ranks of the police force shall be construed as references to members of that force below the rank of Superintendent.”
In Suraj Narain Anand, who was a Sub-Inspector of Police, he was treated as one of a subordinate rank by all courts. Section 2 of the Police Act lays down that—
“the pay of all other conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the Provincial Government.”
Under section 7 the Inspector General, Deputy Inspector-General and some other police officers may dismiss any police officer of a subordinate rank, but subject to such rules as may be made by the Provincial Government. The Police Regulations, 1928, contain the rules made by the Provincial Government. In this case I am concerned with the rules which were in force in 1939 when the appellant was dismissed. The relevant rules were then contained in Chapter 31 of the Police Regluations. Under rule 448 of Chapter 31 dismissal is one of the punishments which can be inflicted on any police officer appointed under section 7 of the Police Act. It was not contested that the appellant was appointed under section 7. Rule 451 explains when the punishment of dismissal can be passed; it is for the benefit of the authority passing the order of dismissal and the Court is not concerned with it. Rule 453 contains the provision for the procedure to be followed before inflicting a punishment against a member of the police force. Three different kinds of proceedings can be taken against him and one of them is a departmental trial. When a Superintendent of Police receives a complaint against a police officer subordinate to him he is required to make or cause to be made a departmental inquiry sufficient to prove the truth of the complaint. On the conclusion of the inquiry he is to decide whether further action is necessary, and, if so, whether the officer should be departs mentally tried or criminally prosecuted. This is the gist of rule 456. Rule 460 contains the procedure for a departmental trial. It provides for the constitution of a Board consisting of the, Deputy Inspector General as President and two Superintendents of Police as members. After the departmental trial, the Deputy Inspector General is required to pass orders under section 7 of the Police Act and the rules made thereunder in accordance with the unanimous or majority finding of the Board. The rule also provides for an appeal from the decision of the Board to the inspector-General.
The provisions of section 243 of the Government of India Act prevail over those of section 240. The provisions of sub-sections (2) and (3) of section 240 are mandatory and if a civil servant, who is not a member of a police force of a subordinate rank is dismissed in contravention of them, the dismissal would be null and void. In Rangachari v. Secretary of State for India, the Privy Council ruled that the dismissal by a Deputy Inspector General of Sub-Inspector appointed by the Inspector-General is bad and inoperative. The same view was taken by the Federal Court in the case of Suraj Narain Anand (supra). In the case of Tara Chand, who was appointed as a Sub-Inspector by a Deputy Inspector General but was dismissed by a Superintendent of Police, his Lordship Zafrullah Khan observed that the order—
“was in the eye of the law no more than a piece of waste paper.”,
Another Sub-Inspector Shamsul Husain appointed by the Inspector General was dismissed by a Deputy Inspector General and the High Court of Nagpur [in Provincial Government, G.P v. Shamsul Husain] held the dismissal to be illegal. I must mention here that in all these three cases the dismissal was held to be invalid or inoperative, notwithstanding the provisions of section 243, because of the view entertained by the Federal Court in the case of Suraj Narain, which was the earliest case, that the provision that, a civil servant cannot be dismissed by an authority subordinate to the appointing authority was not a condition of service and that the provisions of sub-section (2) were not affected by the provisions of section 243. The above view of the Federal Court was reversed by the Judicial Committee on appeal in Suraj Narain Anand v. N.W.F Province. Lord Thankerton observed in that case that—
“the right of dismissal was a condition of service within the meaning of section 243.”
My conclusion, therefore, is that the dismissal of a sub-inspector is governed not by the provisions of section 240, but by such of the rules of the Police Regulations 1928, as were valid and in force at the time of the dismissal. It was not claimed before us that the provisions of section 240, particularly sub-sections (2) and (3), would govern the case if there were no rules validly made by the Provincial Government, or if there was nothing repugnant in them.
I am not going into details of the procedure adopted by the Board in departmentally trying the appellant. That is because the appellant did not allege that the Board did not follow the procedure laid down in the rules. He did not at all plead that any of the rules contained in the Police Regulations, were not followed. That would be a plea of fact, if he failed to raise it, the Court could not raise it on his behalf. A plea of law stands on a different footing. It can be raised by a party at any stage of the litigation. It is the function of the Court to take notice of the law applicable to the admitted or proved facts and to apply it to them. The parties have simply to place the facts before it. If the Court finds suo motu that the rules under which the Deputy Inspector-General proceeded to dismiss the appellant were ultra vires and so inoperative, it is its duty to declare that the order of dismissal was illegal.
The Police Regulations, 1928, contain rules made by the Provincial Government under section Police Act. They were made when the old Government of India Act of 1919 was in force. That Act did not contain any provision similar to the provisions of section 243 of the current Government of India Act, with the results that it was open to any rule-making authority to make a rule permitting the dismissal of a Crown servant by an authority subordinate to that which appointed him. If any authority made such a rule, it would be repugnant to the statutory provisions in section 96(b) that no Crown servant could be dismissed by an authority subordinate to the appointing authority. See Rangachari v. Secretary of State for India, and Suraj Narain Anand v. North-West Frontier Province. In 1936 the Provincial Government made a rule authorising Deputy Inspectors-General to dismiss subj inspectors. That rule also was made when the old Government of India Act of 1919 was in force. The current Government of India Act of 1935 did not come into force until on 1st April 1937. The rule would be valid under the current Act because section 243 of it would take away the repugnancy between the rule and the provisions of section 240. The subsequent coming into force of the Government of India Act of 1935, which could not and did not have retrospective effect, could not validate the rule which was invalid ab initio. This is clearly laid down by the Federal Court and the Judicial Committee in the case of Suraj Narain Anand. In 1940 the rule was amended in parts and in certain circumstances the Deputy Inspector-General was empowered to pass an order of dismissal without a departmental trial by a Board. It could be urged that this amended part of the rule, having been enacted in 1940, was valid, but the appellant was not dismissed under the amended part. He was dismissed under another part of the rule which was enacted in 1936 and was consequently inoperative.
I must therefore hold that the Deputy Inspector-General's order of dismissal was invalid and inoperative.
Had the matter stood as it stood on the date of the institution of the suit, the appellant would have been entitled to a declaration that he was still in service. But during the pendency of the suit another order of dismissal has been passed, this time by the Inspector-General of Police. Though this order was specifically referred to by the Provincial Government in their written statement, the plaintiff did not choose to challenge it. His counsel, however, argued that the Inspector-General did not give an opportunity to him to show cause against the dismissal. He simply called for the Board's proceedings and without any notice to the appellant passed the order of dismisal. If section 240(3), Government of India Act applied, the procedure was certainly invalid. But as I have explained above, nothing in section 240 applies in the case of a sub-inspector, and the argument fails. Since the appellant sought a declaration not only that he was wrongfully dismissed on 18th August, 1939 but also that he was continuing in service, it was incumbent upon the Court to take into consideration all the facts that happened even during the pendency of the suit. A Court does not exercise its jurisdiction in the matter of declaratory relief in vain; it would not grant the relief if it is, or would be rendered, futile. It would have been futile to grant a declaratory relief to the appellant if the subsequent order of the Inspector-General was binding upon him. Though he did not attack this order on any ground, I have considered whether it could be attacked. Under the rules in the Police Regulations the Inspector-General of Police had no power to dismiss a sub-inspector except on reference by a Board on a conflict between the Deputy Inspector General on one side and the two Superintendents on the other. In rule 449 it is stated that the Inspector General may punish all sub-inspectors but the question of punishment of a sub-inspector would not go to him unless differences broke out in the Board. In the present case the Board was unanimous and the Inspector General could not have passed the order of dismissal. But the rules themselves are invalid for the reasons stated already and whether the Inspector-General could validly pass an order of dismissal or not cannot be decided on the basis of the rules which are invalid. The onus lay upon the appellant to prove that the Inspector General's order of dismissal was not a valid and binding order and he has failed to discharge it. The position at present is that there are no valid rules in force governing the dismissal of sub-inspectors except perhaps rule 460(8) with which we are not concerned. If any principle applies, it is the common law principle of durante bene placito, which the appellant would be the last man to invoke.
In the face of the Inspector-General's order of dismissal with effect from 18th August 1939, the appellant is not entitled to the declaration that he is continuing in service. He can be given a declaration that his dismissal by the Deputy Inspector-General was illegal, but it would be a useless declaration because he is not entitled to any damages on account of wrongful dismissal. Whether he is entitled to ay relief for the period subsequent to 18th August, 1939, would depend upon the validity of the Inspector-General's order. I have already explained that the appellant has failed to show that it was an order illegal or without authority. The Inspector-General professed to dismiss him with effect from 18th August, 1939, but the learned Civil Judge has held that he could not give retrospective effect to his order of dismissal and accordingly treating the appellant as under suspension for the entire period ending on 8th July, 1942, given him a decree for the subsistence allowance for the remaining period from 18th August, 1939 to 8th July 1942. This decree will have to stand because it was not assailed through a cross-objection by the Provincial Government. No argument was advanced before us on the question whether the Inspector-General could give retrospective effect to his order of dismissal. If he could, the appellant would be deemed to have been dismissed by a valid order on 18th August, 1939 and he would not be entitled to any relief. If he would not, then the question-would arise whether the appellant should be treated as under suspensions up to 8th July, 1942, as he was treated by the learned Civil Judge, or he should be deemed to be in active service or entitled to his full salary. In the absence of any arguments, I am not prepared to hold that he could not. The appellant would therefore not be entitled to anything for the period between 18th August, 1939 and 8th July, 1942 and of course he cannot get any salary for the period after 8th July, 1942.
I am, therefore, admissing the appeal with costs.
Appeal dismissed.
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