Province Of Bengal v. Bhupendra Kumar Roy Choudhury

The Judgment of the Court was as follows:—

This appeal is by the Province of Bengal. The Plaintiff Respondent was a clerk employed in the Police Department and at the time when his cause of action arose, he was serving in the office of the Superintendent of Police at Khulna. As a result of an inspection recorded by the Deputy Inspector-General, proceedings were drawn up against him and he was dismissed. His appeals to the Deputy Inspector-General and the Inspector-General were unsuccessful and he then instituted the present suit in order to obtain a declaration to the effect that he had been improperly dismissed and was fit to be re-instated and for damages.

The learned Munsif wrote a most excellent judgment on the facts of the case and in my opinion it would be very hard for any fair-minded person to say that the Respondent had not been badly treated. But although the Munsif accepted the Plaintiff's case on the facts, he dismissed the suit on points of law. The Plaintiff then appealed. The Subordinate Judge held, and in my opinion rightly, that it is not open to a Civil Court to enquire whether the actual decision of the departmental authorities was, in face, a good decision. He, however, found that the dismissal of the Plaintiff was made in contravention of the very terms of the Government of India Act. He gave the Plaintiff both a declaration and damages. The Province of Bengal has now appealed to this Court.

It is, of course, not surprising that the appeal has been pressed on the grounds that the decree cannot be supported because the Plaintiff was serving during His Majesty's pleasure and that no decree for damages can be made in his favour by a Civil Court.

The question is now settled by the decision of their Lordships of the Judicial Committee in the case of R. Venkata Rao v. The Secretary of State for India in Council. In that case, as in this case, the Plaintiff had been improperly dismissed, but their Lordships held that the suit must be dismissed. I may perhaps quote the following passage from the judgment:

“The reasons which have led their Lordships to this conclusion may be shortly stated. Section 96-B, in express terms states that office is held during pleasure. There is therefore no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far reaching to commend itself for acceptance……There is another consideration which seems to their Lordships to be of the utmost weight. Section 96-B and the rules make careful provision for redress of grievances by administrative process and it is to be observed that sub-section 6 in conclusion reaffirms the supreme authority of the Secretary of State in Council over the Civil service. These considerations have irresestibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists.”

In view of this decision it is quite idle to contend that the Plaintiff is entitled to damages.

I was however pressed by Mr. Basu to maintain the declaration. On the very same day their Lordships of the Judicial Committee delivered a judgment in another case dealing with similar matters. That is the case of R.T Rangachari v. The Secretary of State for India in Council. It was there laid, down that a Civil Court may give a declaration but in view of the facts their Lordships were not prepared to make one. I apprehend that it would be very difficult to find any case in which a declaration will serve any useful purpose. In this connection it is necessary to examine the findings of the learned Munsif and the findings of the learned Judge. The findings of the Munsif were largely based upon certain undisputed facts.

There is no dispute at all between the parties as to how the proceedings which resulted in the dismissal of the Plaintiff originated. They were based upon the following passage of an inspection note recorded by the Deputy Inspector-General.

“The other clerk is Babu Bhupendra Kumar Boy Choudhury who has run away on two months' leave without pay. He is reported to be utterly useleas and unfit for farther service. The Superintendent of Police should draw up proceedings against him and dismiss him.”

The Deputy Inspector-General in the course of the inspection discovered nothing himself which could be used against the Plaintiff.

In view of this note certain matters cannot be challenged. Although there was nothing definite before the Deputy Inspector-General, his subordinate, the Superintendent of Police, was directed not merely to find the Plaintiff guilty but also to inflict the extreme punishment. The learned Munsif was right when he realised the very awkward position in which the Superintendent of Police and the Deputy Superintendent of Police were placed. In fact, the Deputy Superintendent of Police showed considerable force of character when he made a recommendation in his report that the Plaintiff ought not to be dismissed. It is clear that until the matter came before the Inspector-General, the Plaintiff had nothing which could be called an enquiry within the meaning of the rules. Apart from that, there was the undoubted fact that the dismissal was made in contravention of the Act. The Plaintiff was appointed by the Deputy Inspector-General and under the very terms of the statute he could not be dismissed by the Superintendent of Police.

Another thing which is equally obvious from this inspection note is that somebody had been whispering against the Plaintiff in the ears of the Deputy Inspector-General. The very wording of the note itself shows that it had been suggested to that officer that the Plaintiff, who had taken leave without pay on account of certain family troubles, had run away because he was afraid of an inspection. It has been found that the head clerk was a personal enemy of the Plaintiff and there can be no doubt that he told a good many lies in his evidence. It appears that the Plaintiff had the confidence of his immediate superiors and it is only natural that this should result in his having enemies in the office. One such enemy was a clerk named Ahmed who had been superseded by the Plaintiff. The learned Munsif inferred from the circumstantial evidence that it was the head clerk who had poisoned the mind of the Deputy Inspector-General against the Plaintiff.

Now, it may well be that the head clerk and Ahmed conspired together to get the Plaintiff dismissed by poisoning the mind of the Deputy Inspector-General against him. But that cause of action was never pursued by the Plaintiff and it certainly gives no right to a declaration against the Province of Bengal.

The declaration is in these terms:

“The plaintiff's dismissal from the service of the Government is illegal and the plaintiff is fit to be reinstated to the post held by him prior to his dismissal.”

I find it very difficult to say that any such declaration is justified.

The declaration is based upon the fact that the Plaintiff was illegally dismissed. Because he was illegally dismissed, it does not necessarily follow that he was a good officer or that he might not have been legally dismissed and justifiably dismissed on proper proceedings and after a proper enquiry. If the intention of the declaration is to enable the Plaintiff to get employment elsewhere, the declaration might be grossly misleading.

It the intention of obtaining the declaration is to use it against the Appellant, it is quite useless. Assuming that the Plaintiff had a cause of action for wrongful dismissal, he could only claim damages. Certainly he could not claim specific performance of the contract of service. The declaration therefore will not enable him to get reinstatement.

Apart from that I cannot see that it would be of the slightest use. As their Lordships said in the case with which they were dealing, “the questions of fact and law are now decided and the declaration could have no greater effect than the decision itself.” It has been correctly decided by the learned Subordinate Judge that the dismissal of the Plaintiff was illegal. The learned Munsif has pointed out facts to show that the departmental proceedings were not real proceedings at all. I cannot see that a mere declaration to the effect that the Plaintiff's dismissal was illegal will serve any useful purpose.

In view, however, of the facts of the case I shall certainly allow the Appellant no costs.

The appeal is accordingly allowed. The decree of the lower Appellate Court is set aside and that of the Munsif restored. I further direct that each side bear their own costs both here and in the lower Appellate Court.

Leave to appeal under sec. 15 of the Letters Patent is refused.

P.C