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Governor-General In Council Having Office At New Delhi v. T.M Krishnaswami Pillai .
Structured Summary of the Opinion
Factual and Procedural Background
The respondent, the chief signaller at the Head Post Office, Kumbakonam, was suspected in October 1939 of misappropriating monies and was suspended; the police prosecuted him for criminal breach of trust and he was acquitted by the Magistrate on 9 September 1940. The Post Office authorities proceeded departmentally and on 1 March 1941 the Superintendent framed five charges of dereliction of duty (including issuing bogus receipts). The respondent was asked to explain the charges and was told a suitable opportunity to be heard in person would be afforded if he wished.
The respondent sought one month's time to prepare his defence and to obtain documents from the criminal proceedings; this extension was granted and he was informed to submit his explanation by 1 April 1941. In a letter of 23 March 1941 he stated that the charges had been dealt with by the Sub‑Divisional Magistrate and that he had "nothing further to submit" in proof of his innocence. A reminder from the Superintendent on 24 March 1941 specified that no further extension would be granted; the respondent did not respond and the inquiry proceeded.
In a report dated 4 April 1941 the Superintendent found the charges proved and ordered dismissal from service effective 1 April 1941 and recovery of Rs. 600 (later reduced on appeal). The respondent appealed to the Postmaster‑General who confirmed the dismissal (reducing the recovery to Rs. 200). The respondent then served a notice under Section 80 of the Civil Procedure Code on 22 October 1942 addressed to multiple officials and stated that a suit would be instituted against the Secretary of State if relief was not granted. A suit was filed on 15 April 1943 against the Secretary of State (represented by the Collector of Tanjore).
The Government Pleader challenged maintainability after amendments to Sections 79 and 80 arising from the Government of India Act, 1935, asserting that the Governor‑General in Council (not the Secretary of State) was the proper defendant. The respondent applied to amend the plaint to substitute the Governor‑General in Council; the Subordinate Judge allowed the amendment on 30 September 1943 and held that the earlier Section 80 notice was sufficient without serving a fresh notice. The Subordinate Judge granted a declaration that the dismissal was illegal, void and inoperative but refused other reliefs except a possible return of the security deposit if acquitted in a fresh departmental inquiry.
The Governor‑General in Council appealed, contending that the Subordinate Judge erred in granting the declaration and that the suit was not maintainable because the Section 80 requirements had not been complied with.
Legal Issues Presented
- Whether the Subordinate Judge erred in granting a declaration that the respondent's dismissal was "illegal, void and inoperative" in circumstances where Sub‑section (3) of Section 240 of the Government of India Act, 1935 applies.
- Whether the respondent was given the reasonable opportunity of a personal hearing required by Sub‑section (3) of Section 240 of the Government of India Act, 1935.
- Whether the notice served under Section 80 of the Civil Procedure Code (dated 22 October 1942 and referring to the Secretary of State) complied with the statutory requirements after the amendment of Sections 79 and 80 (such that the Governor‑General in Council was the proper defendant), or whether a fresh notice naming the Governor‑General in Council was required.
Arguments of the Parties
Appellant's Arguments
- The Subordinate Judge erred in granting the respondent a declaration that the dismissal was illegal, void and inoperative.
- The suit was not maintainable because the respondent's notice under Section 80 did not comply with the requirements after the amendment of Sections 79 and 80; specifically, the proper defendant was the Governor‑General in Council, not the Secretary of State, and the notice did not name the Governor‑General in Council.
Respondent's Assertions
- The basis of the suit was that he was not given an opportunity of a personal hearing as required by Section 240(3) of the Government of India Act, 1935.
- He relied on the earlier Section 80 notice (served 22 October 1942) addressed to various officials and did not serve a fresh notice after amending the plaint to substitute the Governor‑General in Council; the Subordinate Judge accepted that reliance on the original notice was sufficient.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suraj Narain Anand v. The North‑West Frontier Province ((1942) 1 M.L.J. 77; (1941) F.C.R. 37; I. (1945) F.C.R. 103 (F.C.)) | Held that a suit for a declaration that a dismissal is void and inoperative lies when the dismissal is under Sub‑section (2) of Section 240 of the Government of India Act. | Cited to distinguish the present statutory context: declaration remedy is appropriate under s240(2) but not necessarily under s240(3). |
| Secretary of State for India v. I.M. Lall ((1945) 2 M.L.J. 270; (1945) F.L.J. 129; R. (1937) Mad. 532 (P.C.)) | Held that a declaration cannot be given when the action is brought under Sub‑section (3) of Section 240; the proper remedy is a suit for damages for wrongful dismissal. | The court regarded this Federal Court decision as binding and held that, if the plaintiff's case were made out under s240(3), the appropriate relief would be damages rather than a declaration. |
| Venkat Rao v. Secretary of State for India in Council (1937) 1 M.L.J. 529; L.R. 64 I.A. 55; I.L.L.R. (1942) Lah. 692; 4 F.L.J. 22 (F.C.) | Privy Council held that dismissal in utter disregard of prescribed procedure will not give a right of action for wrongful dismissal because civil servants hold office during His Majesty's pleasure (Sub‑section (1) of Section 240). | The court noted that the Federal Court in I.M. Lall held that Venkat Rao's principle no longer applies where grievance falls under s240(3), since that sub‑section imposes a statutory obligation to be complied with before dismissal. |
| Bhagchand Dagadusa v. Secretary of State for India in Council (1927) 53 M.L.J. 81; L.R. 54 I.A. 338; I.L.R. 51 Bom. 725 (P.C.) | Privy Council held that Section 80 of the Civil Procedure Code is express and explicit, admits of no implications or exceptions and imposes a statutory and unqualified obligation upon the Court; the intending plaintiff must state the relief claimed in the notice. | Applied to conclude that the notice which named the Secretary of State and made no reference to the Governor‑General in Council could not be read as claiming relief against the Governor‑General in Council; the earlier notice was therefore insufficient. |
Court's Reasoning and Analysis
The court proceeded in two principal strands of analysis: first, the appropriate remedy and the scope of relief under Section 240(3) of the Government of India Act, 1935; and second, the statutory requirements of Section 80 of the Civil Procedure Code for commencing an action against government authorities.
On remedies under Section 240:
- The court recognized that the Federal Court's decision in Secretary of State for India v. I.M. Lall is binding and establishes that where Sub‑section (3) of Section 240 applies the appropriate remedy is a suit for damages for wrongful dismissal rather than a declaratory decree that dismissal is void and inoperative. The court therefore held that, even if the respondent's factual case were established under s240(3), a declaration would not be the proper form of relief.
- Despite the Subordinate Judge's finding to the contrary, this Court reviewed the factual record on whether the respondent was given a reasonable opportunity to be personally heard. The memorandum of charges (served 3 March 1941) plainly informed the respondent that a suitable opportunity to be heard would be afforded. The respondent requested an extension, was granted time until 1 April, and in his 23 March letter stated that he had "nothing further to submit" and pointed to his acquittal by the Magistrate.
- The court scrutinized the respondent's later statements, including his appeal letter to the Postmaster‑General (21 May 1941) which contained the admission that he "did not choose to give a written explanation" or avail himself of an opportunity of personal hearing. Contradictory testimony in cross‑examination was noted but the court concluded the respondent deliberately refrained from seeking a personal hearing and was content to rely on the criminal acquittal.
- Because the department had informed the respondent of the opportunity to be heard, had granted an extension on his request, and the respondent declined to take part in the departmental hearing, the court concluded the statutory obligation in Section 240(3) had been fulfilled and therefore there was no cause of action based on a denial of a personal hearing.
On compliance with Section 80 of the Civil Procedure Code:
- The court applied the Privy Council authority in Bhagchand Dagadusa, stressing that Section 80 is explicit and requires the intending plaintiff to state the relief claimed and to name the proper government defendant in the notice. The notice served on 22 October 1942 referred to instituting suit against the Secretary of State for relief against him and contained no mention of the Governor‑General in Council.
- Following the statutory amendments, the proper defendant was the Governor‑General in Council; the subsequent amendment of the plaint substituting the Governor‑General in Council did not cure the original omission in the notice since Section 80 requires the content of the notice itself to identify the relief and defendant. The court held it could only have regard to what was stated in the notice.
- Accordingly, the court found that the Section 80 requirement had not been complied with insofar as the notice failed to claim relief against the Governor‑General in Council.
Taking the two strands together, the court concluded that (a) even if s240(3) were engaged, declaratory relief was not the proper remedy (per I.M. Lall), (b) the respondent had in fact been afforded the required opportunity to be heard so there was no cause of action on that ground, and (c) the Section 80 notice was deficient because it named the Secretary of State rather than the Governor‑General in Council.
Holding and Implications
Core Ruling: The appeal is allowed and the suit is dismissed with costs.
Direct consequences for the parties:
- The declaration granted by the Subordinate Judge was set aside and the dismissal stands as validated by the appellate disposition described in the opinion.
- The respondent must pay the costs of the appeal (there and below) and, because the suit had been filed in forma pauperis, he must pay to Government the court‑fee due on the plaint.
- The court will issue a certificate under Section 205 of the Government of India Act, 1935 (as requested by learned counsel).
Broader legal implications:
The opinion applies and follows existing higher‑court authority (notably the Federal Court in Secretary of State for India v. I.M. Lall and Privy Council decisions) to limit the availability of declaratory relief where s240(3) applies and to enforce the strict requirements of Section 80 notices. The judgment does not purport to create new precedent beyond applying and reconciling the authorities cited; the immediate effect is confined to the parties (i.e., dismissal of the suit and the costs and fee consequences noted).
Note: This summary is strictly confined to the information contained in the provided opinion and does not add or infer facts or holdings beyond that text.
1. The appellant is the Governor-General in Council. The appeal arises out of a suit filed by the respondent in the Court of the Subordinate Judge of Kumbakonam. He was the chief signaller in the Head Post Office at Kumbakonam. By an order dated the 4th April, 1941, which was confirmed on appeal by the Postmaster-General, Madras, the respondent was dismissed from Government service. He filed the suit for a declaration that the order of dismissal was " illegal, void and inoperative" and for other reliefs. The Subordinate Judge granted the declaration asked for, but refused further relief. The appellant says that the Subordinate Judge erred in granting the respondent a declaration and in rejecting a plea advanced by the plaintiff that the suit was not maintainable because the provisions of Section 80 of the Civil Procedure Code had not been complied with.
2. In or about the month of October, 1939, the respondent was suspected of having misappropriated monies which had come into his hands in the course of his employment and consequently was suspended by the Superintendent of Post Offices, Tanjore division, who reported the matter to the police. The result was that the police prosecuted the respondent for criminal breach of trust. After a lengthy hearing the respondent was acquitted by the Magistrate on the 9th September, 1940. The Post Office authorities were not satisfied with the Magistrate's findings and decided to proceed against the respondent departmentally.. By an order, dated the 1st March, 1941, the Superintendent framed five charges, against him. It is unnecessary to set them out in detail. It is sufficient to state that they were all charges of dereliction of duty, including a charge of having collected money by the issue of bogus receipts. The respondent was called upon to explain the charges within a week of the receipt of the memorandum served upon him and to show cause (1) why a loss to Government of Rs. 900 should not be recovered from him; and (2) why he should not be dismissed from service. He was informed that a suitable opportunity would be afforded to him if he wished to be heard in person.
3. On the 5th March, 1941, the respondent wrote to the Superintendent acknow-ledging receipt of the memorandum of charges and asking to be allowed one month's time to offer his defence. The request for further time was based on the assertion that he required the production of documents filed in the proceedings before the Magistrate. The request was granted. In the letter dated the 7th March, 1941, the Superintendent informed him that he should submit his explanation by the 1st April. On the 23rd March, 1941, the respondent wrote to the Superin-tendent as follows:
With reference to your memo of charge No. F-5/13 of 1st March, 1941, I humbly beg to submit that the charges thereon have been elaborately dealt with by the Sub-Divisional Magistrate, Kumba-konam, before whom I stood the trial by a Court of Law for the same charges. I was found not guilty of the offence charged, as you are aware of. I have at this stage nothing further to submit to you in further proof of my innocence.
4. On the 24th March, the Superintendent wrote to the respondent reminding him that the time for submitting his explanation expired on the 31st March and that he should submit it so as to reach the Superintendent's office not later than the 1st April, 1941. He was also informed that no further extension of time would be granted to him " on any account.
5. The respondent ignored this letter and consequently the Superintendent embarked upon the inquiry. In a report dated the 4th April, 1941, he held that all the charges had been proved. He passed an order directing that the respondent be dismissed from the service with effect from the 1st April, 1941 and that he should pay Rs. 600, part of the loss which the Government had suffered. The respondent had the right of appeal to the Postmaster-General and he exercised it: in a letter addressed to the Postmaster-General on the 21st May, 1941. In para-graph 8 of the letter he said:
The mere fact that I did not choose to give a written explanation for the charges and that I did not avail myself of the opportunity given for a personal hearing cannot be taken as grounds for regarding the charges as proved.
6. This statement is of importance as the basis of the respondent's suit is that he was not given an opportunity of a personal hearing.
7. The Postmaster-General held that the first charge, which was a comparatively minor one, had not been substantiated, but he held that the other charges had been proved and consequently he confirmed the order of dismissal. He reduced, however, the amount which the respondent was ordered to pay to Government from Rs. 600 to Rs. 200. The respondent addressed the Director-General of Posts and Telegraphs with a view to his re-instatement, but no action was taken as the decision of the Postmaster-General was final.
8. On the 22nd October, 1942, the respondent gave notice of suit under Section 80 of the Civil Procedure Code. It was addressed to (1) The Chief Secretary to the Central Government; (2) The Political Secretary to the Central Government; (3) The Chief Secretary to the Provincial Government; (4) The Political Secretary to the Provincial Government; (5) The Collector of Tanjore; (6) The Postmaster-General, Madras; and (7) The Director-General of Posts and Telegraphs. It called upon them to take notice that a suit would be instituted against the Secretary of State in the Subordinate Judge's Court, Kumbakonam, if the reliefs claimed by him were not granted within two months. For the institution of a suit against the Secretary of State the notice complied with the requirements of Section 80 and on the 15th April, 1943, a suit against the Secretary of State for India represented by the Collector of Tanjore was filed. On the 30th August, 1943, the Government Pleader disputed the maintainability of the suit as framed, because, as the result of the amendment of Sections 79 and 80 of the Code of Civil Procedure, following the passing of the Government of India Act, 1935, the Governor-General in Council and not the Secretary of State was the proper defendant. Thereupon the respondent, filed an application asking to be allowed to amend the plaint by substituting the Governor-General in Council for the Secretary of State. The application was granted by an order dated the 30th September, 1943. The respondent did not serve a fresh notice under Section 80 and relied on the notice which he had given on the 22nd October, 1942. The Subordinate Judge held that this was sufficient.
9. Sub-section (3) of Section 240 of the Government of India Act, 1935, states that no person who is in the service of or holds a civil post under the Crown in India shall be dismissed or reduced in rank until he has been given a reasonable oppor-tunity of showing cause against the action proposed to be taken with regard to him. In his plaint the respondent averred that no reasonable opportunity had been given to him of being personally heard. This plea was accepted by the Subordinate Judge and on this basis he granted the declaration asked for in the plaint. The other reliefs claimed by the respondent were a decree for the amount of his salary from the date of his dismissal or for damages for wrongful dismissal and for the recovery of the amount of his security deposit which was Rs. 200. The Subordinate Judge held that the respondent was not entitled to a decree in respect of his salary nor was he entitled to damages for wrongful dismissal but he was of the opinion that he was entitled to the return of the security deposit if he happened to be acquitted of charges framed in a fresh departmental inquiry.
10. In Suraj Narain Anand v. The North-West Frontier Province (1942) 1 M.L.J.77 : (1941) F.C.R.37 : I. (1945) F.C.R. 103 (F.C.) the Federal Court, held that a suit for a declaration that a dismissal is void and inoperative lies when the dismissal is under Sub-section (2) of Section 240 of the Government of India Act. That sub-section states that no civil servant shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. In the Secretary of State for India v. I.M. Lall(1945) 2 M.L.J. 270 : (1945) F.L.J. 129 : R. (1937) Mad. 532 (P.C.) the Federal Court held that such a declaration cannot be given when the action is brought under Sub-section (3). In that case the proper remedy is by way of a suit for damages for wrongful dismissal.
11. In Venkat Rao v. Secretary of State for India in Council (1937) 1 M.L.J. 529 : L.R. 64 I.A. 55 : I.L.L.R. (1942) Lah. 692 :4 F.L.J. 22 (F.C.) the Privy Council held that the dismissal of a civil servant in utter disregard of the procedure prescribed by the rules will not give a right of action for wrongful dismissal because a civil servant holds office during His Majesty's pleasure. Sub-section (1) of Section 240 of the Government of India Act, 1935, declares that civil servants hold office during His Majesty's pleasure; but in Secretary of State for India v. I.M. Lall (1945) 2 M.L.J. 270 : (1945) F.L.J. 129 : R. (1937) Mad. 532 (P.C.) the Federal Court held that the decision in Venkat Rao v. Secretary of State for India in Council3, no longer applies when the grievance falls under Sub-section (3) of Section 240 of the Constitution Act because the sub-section imposes a statutory obligation to. be carried out before dismissal is effected. The judgment of the Federal Court in the Secretary of State for India v. I.M. Lall (1945) 2 M.L.J. 270 : (1945) F.L.J. 129 : R. (1937) Mad. 532 (P.C.) had not been delivered when the Subordinate Judge gave his judgment in the present action, but the Federal Court's judgment is binding on us and consequently we must hold that the only relief which the Court can grant, if satisfied with the plaintiff's case, is a decree for damages for wrongful dismissal.
12. We do not, however, accept the finding of the Subordinate Judge that a reasonable opportunity was not given to the respondent of being heard. The memorandum of charges which was served on the respondent on the 3rd March, 1941, informed him in the plainest possible language that he would be given a suitable opportunity of being heard if he wished to be heard. At no stage did he indicate even an intention of being present at the inquiry. His letter of the 23rd March, 1941, in which he referred to his acquittal by the Magistrate indicates that he was content to rely on the proceedings in the Magistrate's Court. The statement which we have quoted from paragraph 8 of the respondent's letter to the Postmaster-General appealing from the Superintendent's order is in reality an admission that he deliberately refrained from availing himself of the opportunity of being heard. In the course of his evidence the respondent said that if this statement implied that he had been given an opportunity of making a written explanation and of a personal hearing, it did not correctly represent what he had mentioned to the person who prepared the appeal for him, because it had always been his contention that no such opportunity had been given to him. This statement was made in cross-examination on the 26th June, 1944, but in further cross-examination on the 19th July he stated that his appeal to the Postmaster-General was prepared on his instructions and that he signed it after perusing the contents. These statements are contradictory.
13. We have no doubt that the respondent did not want a personal hearing and was content to rest his case on the Magistrate's decision in the criminal case. He was given full opportunity of showing cause against the action proposed to be taken with regard to him and of having a personal hearing. The statutory obligation which Section 240(3) imposed upon the department had been fulfilled and consequently there was no cause of action.
14. We consider that the appellant's objection to the notice under Section 80 of the Code of Civil Procedure must also prevail. In Bhagchand Dagadusa v. Secretary of State for India in Council (1927) 53 M.L.J. 81 : L.R. 54 I.A. 338 : I.L.R. 51 Bom. 725 (P.C.) the Privy Council held that Section 80 is express and explicit, it admits of no implications or exceptions and it imposes a statutory and unqualified obligation upon the Court. The section requires the intending plaintiff to state inter alia the relief which he claims. As we have indicated, the notice which the respondent served stated that the suit would be instituted against the Secretary of State for relief against him. There is no reference to the Governor-General in Council in the letter and therefore it cannot be read as claiming relief against the Governor-General in Council. The fact that the officials on whom the notice is actually to be served are the same makes no difference. Here the Court can only have regard to what is stated in the notice.
15. For these reasons the appeal is allowed and the suit is dismissed with costs There and below. As it was filed in forma pauperis the respondent must pay to Government the court-fee due on the plaint.
16. The learned Counsel has asked for a certificate under Section 205 of the Government of India Act, 1935 and one will issue.
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