Satish Chandra Das Gupta v. State Of West Bengal

1. In this suit the plaintiff asks for a declaration that his alleged dismissal was ultra vires, invalid, void, inoperative and of no effect and that he is still the librarian of the West Bengal Secretariat Library of the defendant or an employee of the defendant; re-instatement in office and cancellation of the order of dismissal dated 2-6-1949, payment of salary amounting to Rupees 9,580/15/2; further payments of salary and costs. The plaintiff's case is briefly as follows: on 30-4-1921 the plaintiff was appointed a clerk in the Local Self Government and Education Department of the Bengal Government. The appointment was made by the Secretary to the Local Self Government and Education Department. On 4-5-1924, the plaintiff was appointed Assistant Librarian of the Bengal Secretariat Library. The appointment was made by the Secretary to the Education Department. On 1-4-1943, the plaintiff was appointed Librarian of the Bengal Secretariat Library. This appointment was also made by the Secretary to the Education Department. On 26-8-1948, a complaint was made against the plaintiff to the Anti-Corruption Department of the West Bengal Government whereupon the plaintiffs house was searched on 30-8-1948. On 8-11-1948, by an order of an under-Secretary to the Government the plaintiff was placed under suspension with effect from the forenoon of 9-11-1948. The Assistant Secretary to the Government in the Home (Political) Department gave to the plaintiff on 17-11-1948, a notice to show cause why he should not be dismissed from the service of the Government or otherwise punished setting out the charges against him. The plaintiff on 24-11-1948, furnished an explanation to the charges. On 9-12-1948 the plaintiff was directed to produce his evidence before M.M De, Assistant Secretary, Home (Political) Department. M.M De held a perfunctory enquiry on 15-12-1948 and on subsequent dates and submitted a report holding that charges of extreme dishonesty and reckless daring have been proved against the plaintiff. He suggested that the charges, explanation, evidence, exhibits and his report might be seen by an officer of required rank and necessary orders passed. On 11-2-1949, P.C Acharji, Deputy Secretary to the Government of West Bengal, wrote to the plaintiff that the Government had considered the report of the Enquiring Officer and agreed with his findings. The plaintiff was asked to show cause not later than 28-2-1949 why he should not be dismissed from service. On 23-2-1949 the plaintiff showed cause in writing against the proposed dismissal. On 2-6-1949, P.C Acharji, Deputy Secretary to the Government of West Bengal made an order dismissing the plaintiff from Government service with effect from the 24th May, 1949, on grounds of grave misconduct unbecoming of Government servant and other infringements of Government Servants Conduct Rules.

2. The plaintiff has alleged that the order dated 2-6-1949 and the report of the Enquiring Officer are mala fide. The order is also invalid on the following grounds:

1. The plaintiff was dismissed by an authority subordinate to that by which he was appointed.

2. The charges brought before the Assistant Secretary to the Home (Political) Department were not charges brought against the plaintiff in his official capacity and did not involve acts done or alleged to have, been done in his official capacity.

3. No particulars of grave misconduct unbecomine of a Government servant or of other infringements of Government Servants' Conduct Rules were given.

4. No opportunity was given to the plaintiff either to show cause against the alleged charges or the action proposed to be taken against him.

3. The plaintiff has claimed the reliefs mentioned above. The plaintiff on 14-6-1949 preferred an appeal to the Chief Minister which was rejected on the 21st-24th January, 1950. Notice under section 80 of the CPC was served by the plaintiff on 12-9-1951 and this suit was instituted on 20-11-1951.

4. In the Written Statement it is denied, inter alia, that the plaintiffs appointment as the Librarian of the Bengal Secretariat Library was made by the Secretary to the Education Department. The defendant also denies that the order of 2-6-1949 or the report of the Enquiring Officer was mala fide or that the plaintiff was dismissed by an authority subordinate to that by which he had been appointed or that the charges brought against the plaintiff were not brought against him in his official capacity or did not involve acts done by him in his official capacity or that no particulars of misconduct or infringement of Government Servants Conduct Rules were given to the plaintiff or that no opportunity was given to the plaintiff to show cause against the charges. The defendant's case is that the plaintiff got all possible opportunities to explain the charge against him and after due enquiry he was dismissed. The defendant has denied the plaintiffs claims in this suit.

5. The following issues were raised:

1. Was the plaintiff dismissed by an authority subordinate to that by which he was appointed?

2. Was the plaintiff given a reasonable opportunity to show cause against the charges made against him?

3. Was the procedure adopted by the Enquiring Officer illegal?

4. Was the enquiry report made mala fide?

5. Was the order of dismissal passed mala fide?

6. To what relief, if any, is the plaintiff entitled?

6. With regard to issues Nos. 2 to 5 there is sufficient evidence on record to hold that the plaintiff was given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him as contemplated by Article 311(2) of the Constitution of India. There is nothing to show that the procedure adopted by the Enquiring Officer was illegal or that the report or order of dismissal was mala fide. Learned counsel for the plaintiff did not advance before me any arguments in support of the plaintiffs allegations relating to issues Nos. 2 to 5. I, therefore, answer Issue No. 2 in the affirmative and issues Nos. 3, 4 and 5 in the negative.

7. The only point which calls for my decision in this suit, is whether the plaintiff was dismissed by an authority subordinate to that by which he was appointed.

8. In paragraph 1 of the plaint it is stated that on 30-4-1921, the plaintiff was appointed a clerk by the Secretary to the Local Self Government and Education Department. On 4-5-1924 he was appointed Assistant Librarian by the Secretary, Education Department. On the 1st April, 1943 the plaintiff was appointed Librarian of the Bengal Secretariat Library by the Secretary, Education Department.

9. Learned counsel for the defendant contends that for the purposes of Article 311(1) of the Constitution of India it is the first appointment which is relevant when a person is in continuous Government service. In my opinion, this cannot be a correct proposition. A person who is first appointed as a clerk may work up to the position of even an Assistant Secretary or Deputy Secretary. His appointing authority as a clerk may be an Assistant Secretary. If he be dismissed from service while working as a Deputy Secretary, it is inconceivable that his dismissing authority may be an Assistant Secretary. I am of the view that the last appointment has to be taken into consideration for purposes of ascertaining whether a person was given the constitutional protection afforded by Article 311(1). I have, therefore, to see who appointed the plaintiff as a Librarian and by whom he was dismissed.

10. Assuming that the first appointment is relevant apart from the plaintiffs oral statement no evidence has been produced to show that the first appointment was by the Secretary. The plaintiff has stated before me that he did not receive any letter of appointment either as a clerk or as an Assistant Librarian or as a Librarian. Orders for these appointments were made in the files which were shown to him. It is impossible for me to believe, that no letter of appointment was issued to the plaintiff at least when he was first appointed. It is equally impossible to believe that an outsider would be shown Government files for informing him that he had been appointed as a clerk. As regards the appointment as a Librarian the plaintiff has produced a copy of a note sheet of the Government of West Bengal in its Education, Department. This document has been marked as Exhibit ‘A.’ It appears that on 18-1-1943 M.U Sarkar one of the subordinate officers of the Education Department recommended to the Secretary of the Department, inter alia, that the plaintiff might be permanently appointed to the post of the Librarian Bengal Secretariat Library in the place of Nirode Charan Mitra who had been granted leave preparatory to retirement. H. Graham, the Secretary put his signature on 18-1-1943 approving of the lecommendations of M.U Sarkar. The file was then sent to the Accountant, Bengal Secretariat and ultimately came back to the Education Department. There is also another note dated 1-4-1943, inter alia, to the effect that Nirode Charan Mitra had been permitted to retire with effect from the 1st April, 1943 and the date of appointment of the plaintiff to the post of the Librarian with effect from that date had accordingly been rioted in the respective Service Books which might be attested by the Secretary. The Secretary has again put his signature under this note on 1-4-1943.

11. The plaintiff's case is that this note sheet marked Exhibit ‘A’ provides documentary evidence of his appointment as a Librarian by the Secretary;, Education Department.

12. Mr. K.C Mukherjee, learned counsel for the defendant has submitted that this note sheet does not show that the Secretary appointed the plaintiff. It contains a mere approval by the Secretary of the recommendations made by one of his subordinate officers. The note sheet by itself does not constitute an order of appointment. In question 28 the plaintiff says “in this document there is an order passed by the Secretary. Apart from that there are writings in the Service Book.” Later on he has stated that from the Service Book it would not appear who was the officer who appointed him. On the following day in answer to question 108 the plaintiff has said “when the file was handed over to me by the Secretary; he commented that he was satisfied with my work. So? he appointed me in the post of Librarian permanently.” The plaintiff was referring to the file which contained the note sheet mentioned above.

13. Mr. Mukherjee has argued that under Article 311(1) there must be an appointment by a authority. In the absence of an appointment by a particular authority this sub-article is not attracted. A verbal statement of appointment cannot be an appointment. Moreover, in the note sheet nothing is stated about salary or grade or other conditions of service. The plaintiff has categorically stated in questions 12 and 13 that no order was issued as to his appointment as Librarian. There was only that order in the file and at the time of bombing when the Education Department was shifted to Rajsahi with the permission of the then Assistant Secretary he kept a copy of the file with him regarding his personal appointment. In question 34 the plaintiff says that he only knows that he was appointed by the Secretary; he does not know the reason therefor.

14. Mr. Mukherjee has drawn my attention to the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936. Under Rule 4 all first appointments to the services or posts included in the schedule to the Rules were to be made by the authority mentioned in column 2 of that schedule. At page 23 of the schedule under the heading “Finance Department” it is provided in Item No. 5 that the Deputy Secretary or the Assistant Secretary as the case may be in the department concerned, is the authority empowered to appoint Ministerial Officers in the Secretariat including typists. According to learned counsel Rule 4 and the item in the schedule referred to apply to the plaintiffs appointment whether as a clerk or as a Librarian. In view of section 114 illustrations (e) and (f) of the Indian Evidence Act it should be presumed by the Court that judicial and official acts have been regularly performed and that the common course of business has been followed in particular cases. The presumption, therefore, is that the plaintiff was appointed either by the Assistant Secretary or by the Deputy Secretary of his Department whether as a clerk or as a Librarian. The plaintiff was dismissed by an order of the Deputy Secretary. In the premises there was no violation of Article 311(1) of the Constitution.

15. Mr. S.C Deb, learned junior counsel for the defendant who argued on the next day in the absence of Mr. Mukherjee drew my attention to section 241(1)(b) of the Government of India Act, 1935 which provided that in the case of civil services of a Province and civil posts in connection with the affairs of a Province appointments were to be made by the Governor or such person as he might direct the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 were framed by the order of the Governor in Council These rules prescribed, inter alia, the appointing authority and the dismissing authority of specified posts. The plaintiffs appointing authority both as a clerk and as a Librarian as well as his dismissing authority was the Deputy Secretary or Assistant Secretary as the case might be in his department. If the Secretary had appointed the plaintiff, the appointment does not bind the Government as the Secretary had no authority to appoint him. The Acts of a Government Officer bind the Government only when he is acting in the discharge of a certain duty within the limits of his authority, or, if he exceed that authority, when the Government in fact, or in law, directly, or by implication, ratifies the access: Collector of Masulipatam v. Narainapah, 8 Moo Ind App. 500 at p. 554 (PC). There is no pleading of ratification, however, in this case. For obvious reasons the Government like an ordinary person cannot be estopped by the acts of its numerous agents and officers each performing in a limited sphere and with his specially limited authority imposed by his very nature of work: Avari v. State of West Bengal, 62 Cal WN 278 at pp. 282 to 283 : (AIR 1958 Cal 203 at pp. 205-206).

16. There is no evidence that the Secretary was directed by the Governor to appoint the Librarian of the Bengal Secretariat Library. If the plaintiff has not been validly appointed, he does not get the protection of Article 311(1): Vishweshwar v. State Transport Authority, M.P, AIR 1955 Nag. 163. In that case the petitioner's appointment could not be regarded as valid in the absence of the concurrence of the Public Services Commission. The petitioner was denied the protection of Article 311 as it was held that the safeguard provided therein applied where the appointment was validly made.

17. Every court trying civil cases, has inherent jurisdiction to take cognisance of questions which, cut at the root of the subject matter of controversy between the parties: Shamu Pattar v. Abdul Kadir, 39 Ind App. 218 at p. 223 (PC). This suit ought to be dismissed because the plaintiff has admitted that his appointing authority under the service Rules as a clerk, as an assistant librarian and as a librarian, was the Assistant Secretary (questions 164 to 167), but he was appointed by the Secretary. He has not proved the authority of the Secretary and has not, therefore, proved his case.

18. Mr. Deb has submitted further that the plaintiff has not also proved the quantum of salary was drawing at the date of his dismissal. His date of retirement in the usual course was the 5th February, 1954. The events subsequent to the institution of this suit on the 20th November, 1951 have altered his position. He cannot get the declaration he has asked for. If he has not proved the arrears of salary due to him, the court will not make an ineffective declaration that his dismissal was void or ultra vires, because the consequential reliefs cannot be given in the absence of evidence.

19. Mr. Aran Sen appearing for the plaintiff has urged that for purposes of Article 311(1) it is the last appointment which is relevant.

20. The plaintiff has stated that before his appointment as a permanent librarian he was officiating in the post as Nirode Charan Mitra had gone on leave preparatory to retirement. When her was made permanent according to departmental practice some notes were made in the file and an order was passed which was shown to him. The file was handed over to him. He was known to the Secretary who was satisfied with his work in the capacity of the librarian. The Secretary sent for him and handed over the file to him. Mr. Sen has submitted that Rule 4 referred to above applies; to first appointments only. It has no application, when a person who is already officiating is made permanent. I am unable to agree with this contention of Mr. Sen. When a person is first made permanent in a post, it is his first appointment and Rule 4 or any other rule providing for first appointments would no doubt apply.

21. The next contention of Mr. Sen is that the plaintiff is not governed by Rule 4 but by Rule 5 which provides that all first appointments to the subordinate services not included in the schedule to these rules, shall be made by the head of the office in administrative charge of the service or post. Learned counsel for the defendant relied on Item No. 1 at page 23 of the schedule. This item appears under the heading ‘Finance Department’. The plaintiff was not attached to the Finance Department but to the Education Department. The plaintiffs department has been dealt with at rages 36 to 65 of the schedule. The post of the librarian, Bengal Secretariat Library is not mentioned in the schedule at all. The plaintiff under Rule 5, therefore, had to be appointed by the head of the office in administrative charge of his service or post. The Secretary was the head’ of the office.

22. rule 4(1) of Ch. 1 of the Secretariat Manual, 1941 provided that the Secretary as the head of the department was responsible for its smooth working. Rule 4 of the Rules of Business of the Government of Bengal, Home Department as corrected up to the 1st luly 1938 provided inter alia, that each department would consist of a Secretary to the Government who would be the official head of the department, and such other officials and servants subordinate to him as the Provincial Government might determine.

23. Under Chapter 21, Rule 1 of the Secretariat Manual 1941, the Bengal Secretariat Library was under the executive control of the Education Department. From Mc Alpin's Report, 1920–1921 Chapter 2 page 28, it appears Secretariat Librarian's post was outside the cadre.

24. On the documents on record according to Mr. Sen there cannot be any doubt that the plaintiff was appointed a librarian: he was appointed by the Secretary and the order of dismissal was by the Deputy Secretary. Therefore, under Article 311(1) the order must be set aside. The consequences of setting aside the order of dismissal were (a) the plaintiff could have been reinstated on the date of this suit and (b) he could have asked for a rears of salary. In State of Bihar v. Abdul Majid, AIR 1954 SC 245 at p. 249 Mahajan, C.J has observed as follows:

“….We think that the rules 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 had been negatived by the provisions of the Statute Law in India.”

25. Mr. K.C Mukherjee concedes that the plaintiff is entitled if the order of dismissal is cad to arrears of salary up to the date of the suit. But he is doubtful as to whether there can fee decree in this suit for plaintiffs claim for arrears after the date of institution of the suit. In Abdul Majid's case, AIR 1954 SC 245 a decree for arrears of salary was passed from the 30th July, 1940 till the date of institution of the suit. There was no question of a decree for arrears after the date of institution because the plaintiff had already been reinstated in service.

26. Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the, Section of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a court to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. Leave to amend may be granted under order 6 rule 17 of the CPC for this purpose: vide Mulla's Code of Civil Procedure, 12th Edition, page 612.

27. Having regard to the Supreme Court's views expressed in Abdul Maiid's case, AIR 1954 SC 245 it seems to me that if I come to the conclusion that the order of dismissal should be declared void or ultra vires, there is no difficulty in pacing a decree for arrears of salary not only up to the date of institution of the suit but also for periods subsequent thereto. No leave to amend is necessary because in the plaint further payments of salary have already been claimed.

28. The only outstanding question, therefore, is whether the plaintiff was, in fact appointed as Librarian by the Secretary to the Department of Education. Mr. K.C Mukherjee submits that rule 4 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 is the only rule which applies to the plaintiffs appointment. Although item No. 1 at page 23 of the Schedule to the rules appears under the heading ‘Finance Department’ it relates to Ministerial Officers in the Secretariat including typists and the authority empowered to appoint is the Deputy Secretary or Assistant Secretary as the case may be in the Department concerned. The librarian of the Bengal Secretariat Library was a Ministerial Officer. His job was purely Ministerial whether the post was within or outside the cadre. That the librarian was under the Education Department does not make any difference because he was a Ministerial Officer in the Secretariat.

29. Then Mr. Mukherjee contended that assuming that rule 5 applied, one had to look into rule 8 of Chapter 1 of the Secretariat Manual, 1941 first. Under this rule each Department is assigned to the charge of a Minister and “with the modifications set forth below” consists of a Secretary who is the official head of the department.

30. The modifications referred to in rule 3 have been set out inter alia, in rules 4 and 5. Under rule 4(1) the Secretary, as the head of the department, is responsible for its smooth working. Under rule 5(1)(i) the duties of a Registrar are, inter aha, to submit to the under Secretary or Assistant Secretary files dealing with office appointments and the suspension, dismissal, leave and promotion of assistants and typists. Under sub-rule 5 of rule 5 which is most important for the point under discussion the Assistant Secretary in the Department of Education was in charge of and responsible for the Library, which he had to inspect quarterly in the) course of the usual office inspections. It is clear, therefore, that the Assistant Secretary, Education Department, was in charge of the Library and ‘charge’ means ‘administrative charge’ within the meaning of that expression in rule 5 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936. The Secretary was the official head of the department but the Assistant Secretary was the head of the office in administrative charge of the service or post of the Librarian, Bengal Secretariat Library. The Assistant Secretary was the authority empowered to appoint the Librarian. That is why the plaintiff in question 33 has unequivocally stated that the Assistant Secretary of the Department was the competent authority for appointing him but he was appointed by the Secretary. The position of the Assistant Secretary in regard to the Library is also dear from Rule 1 of Chapter 21 of the Secretariat Manual, 1941.

31. This rule laid down, inter alia, that the Bengal Secretariat Library was under the executive control of the Education Department but the services of the Librarian and the Assistant Librarian were available to all departments of the Secretariat. The keys would be kept in charge of the Librarian or, in his absence, of the Assistant Librarian. A duplicate set of keys would be kept by the Assistant Secretary of the Education Department for use in emergencies.

32. Mr. Sen has contended that sub-rule 5 of rule 5 of Chapter 1 of the Secretariat Manual, 1941 does not confer any powers on the Assistant Secretary. The whole chapter deals with matters of routine and has nothing to do with the powers or authority of different officers. Chapter 21 rule 1 merely provides that duplicate keys would be kept with the Assistant Secretary. He is, therefore, like the lady of a house in charge of matters of routine. Schedule 1 to Chapter 1 of the Manual at page 22 also shows that Libraries were under the Education Department.

33. Upon consideration of the relevant rules to which learned counsel for both the parties have drawn my attention, I agree with Mr. Mukherjee that the post of a Librarian is that of a Ministerial Officer in the Secretariat and Rule 4 of the Services Rules, 1936 is applicable to this post. The authority empowered to appoint was the Assistant Secretary as admitted by the plaintiff in his deposition before me. Mc Alpin's Repoit to which Mr. Sen has referred has no relevance after the 1936 Rules. Assuming that Rule 5 applies to the case of the plaintiff as contended by Mr. Sen even then the appointing authority was the Assistant Secretary. I may presume having regard to illustrations (e) and (f) to Section 114 of the Indian Evidence Act that the plaintiff was appointed by the Assistant Secretary. He was dismissed by an order of the Deputy Secretary and it cannot be contended that the dismissal was by an authority subordinate to that by which he was appointed. My conclusion is also supported by the plaintiffs admission before me that the Assistant Secretary was competent to appoint him.

34. The copy of the Note Sheet produced by the plaintiff and marked Exhibit ‘A’, does not, in my opinion, prove that the plaintiffs appointment was by the Secretary. All that it shows, is that the Secretary's approval to the plaintiffs appointment as Librarian was obtained. Even if the plaintiff's case be true, I accept the argument of Mr. S.C Deb that the Secretary was not directed by Governor to appoint the Librarian of the Bengal Secretariat Library, and in the absence of requisite authority an order of appointment by the Secretary was not a valid appointment. The plaintiff is not therefore, entitled to the safeguard provided in Article 311(1) of the Constitution of India. In the result, therefore, the suit is dismissed with costs. Certified for two counsel.

AD/D.H.Z

35. Suit dismissed.