# 195{ Th• Rqja/unundry EU.lri< SuHIJ Corpuration LJd v. Th• State •f A.ndhr•. DasJ

- **Citation:** [1954] 1 S.C.R. 786
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** Civil Appeal No. 70 of 1952
- **Bench:** Mehr Chand Mahajan C. J, MUKlIEllJEA, S. R. DAs, VMAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/195-th-rqja-unundry-eu-lri-suhij-corpuration-ljd-v-th-state-f-a-ndhr-dasj-343
- **Pages:** 18

## Headnote

Civil
servant-Wrongful
dismissal-Suit
for
recovery
of
arl'ears of salary-Whether competent-Rule of English law-Civil
servant-Holding office at the pleasure of Crotvn-Whether applic~
able in India.
Held, that the rule of English law that a civil servant cannot·
maintain a suit against the State or
against the
Crown for
the-
S.C.R.
SUPREME COURT REPORTS
787
recovery of arrears
of salary
does not prevail in India and it has
been negatived by the provisions of the statute law in India.
Section 240
of the Government of India Act,
1935, places
restrictions
and limitations on the exercise of the pleasure of. the
C1·own and these restrictions must be given
effect
to.
They
arc
imperative and mandatory. Therefore whenever there
is a breach
of restrictions imposed
by the
statute by
the Government or the
Crown the matter is justiciable and the aggrieved party is entitled
to suitable relief at the hands of the
court.
Government servants
are entitled to relief like any
other
person
under
the ordinary
law, and
that relief must be
regulated by
the
Code of Civil
Procedure.
Puniab Provina v. Pandit Tara Chand
([1947]
F.C.R.
89)
approved.
High Commissioner for India and Pakistan v. l.M. Lall ([1948]
L.R. 75 I.A. 225) distinguished.
CIVIL
APPELLATE
JuRisDicTION :
Civil
Appeal
No. 70 of 1952.
Appeal by special
leave from the Judgment and
Decree dated the 5th May, 1949, of the High Court of
Judicature
at Patna
(Manohar
Lall and Mahabir
Prasad JJ.) in
Appeal
from
Appellate
Decree No.
2091 of 1946.
C. K. Daphtary, Solicitor-General for India ( G. N.
Joshi and Porns A. Mehta, with him) for the appellant.
S. P. Sinha (Numddin Ahmed, with him) for the
respondent.
1954. February 11. The Judgment of the Court
was delivered by
MAHA JAN C.J.-This is an appeal by the State of
Rihar against the judgment of the High Court of
Judicature at Patna whereby the High Court passed
a decree for arrears of salary of the respondent against
the State from the 30th July, 1940, up to the <late of
the institution of the suit.
The undisputed facts of the case are : That the
respondent was appointed a Sub-Inspector of Police
by the Inspector-General of Police, Bihar and Orissa,
in
January,
1920.
In
the year
1937
departmental
proceedings were taken against him and he was found
guilty of .cowardice and of not preparing search lists
and was
punished
by
demotion for
ten years. On
appeal, the Deputy Inspector-General of Poli<:e held
1954
T 114 State of
Bihar
v.
Abdul Majid.
1954
The Stale Dj
Bihar
v.
Abdul Majid.
Mahajan C. J.
788
SUPREME COURT REPORTS
[1954]
that the
respondent
was
guilty
of cowardice
but
acquitted
him of the other charge. By an order
dated the 23rd July,
1940, which was communicated
to the respondent on the 29th of July, 1940, the
Deputy Inspector-General of
Police having found him
guilty of cowardice made an order dismissing him from
service.
Further appeals by the respondent
to the
Inspector-General of Police and to the Governor of
Bihar were unsuccessful.
Aggrieved by the departmental action taken against
him, the respondent filed the suit out of which this appeal
arises in the court of additional subordinate judge against
the State of Bihar for a declaration that the order of the
Deputy
Inspector-General of Police dismissing him
from service was illegal and void and that he should
be regarded as continuing in office. He also claimed
a sum of Rs. 4,241 from 30th July, 1940, to the date
of the suit on account of arrears of salary. The State
contested the claim and pleaded that the
plaintiff
held his service at the pleasure of the Crown, and
could not call in question the grounds or the reasons
which led to his dismissal, and that in any case he had
been reinstated in service from
the 30th of
July,
1940, and the order of dismissal therefore was no
longer operative, and the suit had thus become infructuous.
The
additional
subordinate
judge
bv
his judgment dated the 2nd February,
1945, dismissed
the suit on the finding that the Government having
reinstated the r

## Text

195{
Th• Rqja/unundry
EU.lri< SuHIJ
Corpuration LJd.
v.
Th• State •f
A.ndhr•.
DasJ.
[95{
F1brnary 11.
786
SUPREME COURT REPORTS
[1954]
Province for any purpose connected with a matter with
respect to which the Federal Legislature had pow~i;. to'
make laws, require the Province to acquire the land on
behalf and at the expense of the Federation. If power
inhered in the Federal Legislature to make a law for
the acquisition of any property for any purpose connected with a matter with respect to which it had
power to make laws then section 127 would not have·
been
necessary
at all.
The absence
of any entry
empowering any Legislature to make laws with respect
to cmnpulsory acquisition of a commercial or industrial undertaking and the provisions of section 127 to·
which reference has just been made make it abundantly
clear that the contentions
urged
by
the
learned
Advocate-General cannot possibly be
sustained.
In·
our opinion, therefore, it must be held that the Madras
Legislature had no legislative competency to enact the·
impugned law. This is sufficient to dispose of this
appeal and it is not necessary to express any opinion
on the other points raised in the court below.
The result, therefore, is that this appeal must be
allowed with costs both in the High Court as well as in·
tJ1is court.
Appeal, allowed.
Agent for the appellant : M. S. K. Aiyangar.
Agent for the respondent : R. H. Dhebar.
Agent for the intervener : R.H. Dhebar.
THE STATE OF BIHAR
v.
ABDUL MAJID
[MEHR CHAND
MAHAJAN C. J., MUKlIEllJEA,
S. R. DAs, VMAN BosE and GHULAM HASAN JJ.]
Civil
servant-Wrongful
dismissal-Suit
for
recovery
of
arl'ears of salary-Whether competent-Rule of English law-Civil
servant-Holding office at the pleasure of Crotvn-Whether applic~
able in India.
Held, that the rule of English law that a civil servant cannot·
maintain a suit against the State or
against the
Crown for
the-
S.C.R.
SUPREME COURT REPORTS
787
recovery of arrears
of salary
does not prevail in India and it has
been negatived by the provisions of the statute law in India.
Section 240
of the Government of India Act,
1935, places
restrictions
and limitations on the exercise of the pleasure of. the
C1·own and these restrictions must be given
effect
to.
They
arc
imperative and mandatory. Therefore whenever there
is a breach
of restrictions imposed
by the
statute by
the Government or the
Crown the matter is justiciable and the aggrieved party is entitled
to suitable relief at the hands of the
court.
Government servants
are entitled to relief like any
other
person
under
the ordinary
law, and
that relief must be
regulated by
the
Code of Civil
Procedure.
Puniab Provina v. Pandit Tara Chand
([1947]
F.C.R.
89)
approved.
High Commissioner for India and Pakistan v. l.M. Lall ([1948]
L.R. 75 I.A. 225) distinguished.
CIVIL
APPELLATE
JuRisDicTION :
Civil
Appeal
No. 70 of 1952.
Appeal by special
leave from the Judgment and
Decree dated the 5th May, 1949, of the High Court of
Judicature
at Patna
(Manohar
Lall and Mahabir
Prasad JJ.) in
Appeal
from
Appellate
Decree No.
2091 of 1946.
C. K. Daphtary, Solicitor-General for India ( G. N.
Joshi and Porns A. Mehta, with him) for the appellant.
S. P. Sinha (Numddin Ahmed, with him) for the
respondent.
1954. February 11. The Judgment of the Court
was delivered by
MAHA JAN C.J.-This is an appeal by the State of
Rihar against the judgment of the High Court of
Judicature at Patna whereby the High Court passed
a decree for arrears of salary of the respondent against
the State from the 30th July, 1940, up to the <late of
the institution of the suit.
The undisputed facts of the case are : That the
respondent was appointed a Sub-Inspector of Police
by the Inspector-General of Police, Bihar and Orissa,
in
January,
1920.
In
the year
1937
departmental
proceedings were taken against him and he was found
guilty of .cowardice and of not preparing search lists
and was
punished
by
demotion for
ten years. On
appeal, the Deputy Inspector-General of Poli<:e held
1954
T 114 State of
Bihar
v.
Abdul Majid.
1954
The Stale Dj
Bihar
v.
Abdul Majid.
Mahajan C. J.
788
SUPREME COURT REPORTS
[1954]
that the
respondent
was
guilty
of cowardice
but
acquitted
him of the other charge. By an order
dated the 23rd July,
1940, which was communicated
to the respondent on the 29th of July, 1940, the
Deputy Inspector-General of
Police having found him
guilty of cowardice made an order dismissing him from
service.
Further appeals by the respondent
to the
Inspector-General of Police and to the Governor of
Bihar were unsuccessful.
Aggrieved by the departmental action taken against
him, the respondent filed the suit out of which this appeal
arises in the court of additional subordinate judge against
the State of Bihar for a declaration that the order of the
Deputy
Inspector-General of Police dismissing him
from service was illegal and void and that he should
be regarded as continuing in office. He also claimed
a sum of Rs. 4,241 from 30th July, 1940, to the date
of the suit on account of arrears of salary. The State
contested the claim and pleaded that the
plaintiff
held his service at the pleasure of the Crown, and
could not call in question the grounds or the reasons
which led to his dismissal, and that in any case he had
been reinstated in service from
the 30th of
July,
1940, and the order of dismissal therefore was no
longer operative, and the suit had thus become infructuous.
The
additional
subordinate
judge
bv
his judgment dated the 2nd February,
1945, dismissed
the suit on the finding that the Government having
reinstated the respondent he had no cause of action.
As regards the arrears of salary, it was held that the
claim to it could only be made according to the pm-
<:edure prescribed under rule 95 of section 4 of Chapter
IV of Bihar and Orissa Service Code. This decision
was
confirmed in appeal by
the additional district
judge.
On further appeal
the
High
Court reversed
these decisions and decreed the claim for
arrears of
salary in the sum of Rs. 3,099-12-0. It was held that
rule 95 of the Bihar and Orissa Service Code had no
application
because
the
respondent had never been
dismissed within the meaning of that rule. It was
further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision
S.C.R.
SUPREME COURT REPORTS
789
of the Federal Court in Tara Chand Pandit's case(')
the correctness of which was not affected by decisions
of the Privy Council in cases of /. M. Lall(') and Suraj
Narain Anand(').
The principal questions involved in this appeal are :
(1) Whether the High Court correctly held that
rule 95
abovementioned had no application to the
case ?
(2) Whether a suit for arrears of salary by a civil
servant is competent in a civil court ?
Rule 95 of the Bihar and Orissa Service Code
provides :
· Rule 95
"When the suspension of
a Government servant as a penalty for misconduct is, upon
reconsideration or appeal, held to have been unjustifiable or not wholly justifiable ; or when a Government servant who has been dismissed or removed, or
suspended pending enquiry into alleged
misconduct
is reinstated ;
the revising or appellate authority may grant to
him for the period of his absence from duty
(a) if he is honourably acquitted, the full pay
to which he would have been entitled if he had not
been dismissed,
removed or suspended and, by an
order to be separately
recorded, any allowance of
which he was in receipt prior to his dismissal, removal
or suspension ; or
(b) if otherwise, such proportion of such . pay
and allowances as the revising or appellate authority
may direct."
The provisions of this rule enable an appellate or re~
vising authority, when making an order
of reinstatement to grant the reliefs mentioned in the rule.
Obviously these provisions have no application to the
situation that arose in the present case. The respondent
here was dismissed by the Deputy Inspector-General of
Police, though he was
appointed by the InspectorGeneral of Police. This was clearly contrary to the
(1) [1947] F· c. R. 89.
(2) 75 I.A. 225.
(3) 75 I.A. 343·
1954
The Stat1 of
Bihar
v.
Abdul lvfajid.
Mahajan C. J.
!95t
The Stat, of
Bihar
v.
Abdul Majid.
Mahq}art C. J.
790
SUPREME COURT REPORTS
r 1954 J
prov1s10ns of section 240 (3) of the Government of
India Act, 1935, which provides that no person shall
be dismissed from the service of His Majesty by an
authority
subordinate
to that by which he was
appointed. But nevertheless the appeal preferred by
him to the Inspector-General of Police was rejected
and his petition to the Government of the State met
with the same fate, so that he was never reinstated
by
the order of any revising or appellate authority.
It was only after the present suit was filed that the
Government reinstated him. This was no proceeding
in
revision or appeal.
In these circumstances the
enabling provisions of rule 95
had no application
whatsoever to the case of the plaintiff. What happened
subsequently
is a
matter wholly
outside the
contemplation of the rule. After the institution of
the suit, the Chief Secretary to the Government of
Bihar realising the untenability of the Government's
position
wrote to the
Inspector-General of Police
that the order of dismissal should be treated as null
and void and that the respondent should be reinstated.
Thus
the
reinstatement of
the
plaintiff
the telegram of the 30th December, 1943, was not
made at the instance
of
any
of the authorities
mentioned in the rule in exercise of their jurisdiction,
appellate or revisional, but was made at the instance
of the defendant in the suit who had realised that it
was not possible to defend the order of dismissal. For
the reasons given above we are of the opinion that the
High Court was right in holding that rule 95 had no
application to the facts and circumstances of this case
and that the enabling provisions of this rule did not
operate as a bar to the plaintiff's action.
The next contention of the learned Solicitor-General
that a suit by a public servant against the State for
recovery of arrears of salary cannot be maintained in
a civil court is again, in our opinion, without substance. Vie think that the matter is covered by the
decision of the Federal Court in Tara Chand Pandit's
case(')
with which we find ourselves in respectful
agreement. In that case the learned Attorney-General
had argued with great force all the points that were
It) ['9t7l F.C•R. 89.
S.c.R.
SUPREME COURT REPORTS
791
urged in this appeal before us by the learned SolicitorGeneral and were dealt with by the Federal Court in
great detail. It was there held that the prerogative
right of the Crown to dismiss its servants at will
having been given statutory form in sub-section (1) of
section 240 of the Government of India Act, 1935, it
could only be exercised subject to
the limitatiom
imposed by the remaining sub-sections of that section
and that it must follow as a necessary consequence
that if any of those limitations was contravened the
public servant concerned had a right to maintain an
action against the Crown for appropriate relief and
that there was no warrant for the proposition that
that relief must be limited to a declaration and should
not go beyond it. It was further held that even if
apart from the prerogative of the Crown to terminate
the service of any of its servant at will, the further
prerogative could be invoked that no servant of the
Crown could maintain an action against the Crown to
recover arrears
of pay even
after the pay had been
e:uned and had become due and that the prerogatives
of the Crown had been preserved in the case of India
by section 2 of the Constitution Act, it must be
presumed
that
this
further
prerogative had been
abandoned in the case of India by the provisions of
the Code of Civil Procedure and that it was not
possible to subscribe to the proposition that while a
creditor of a servant of the Crown was entitled as
of
right to compel the Crown to pay to him a substantial
portion of the salary of such servant in satisfaction of
a decree obtained against him the servant himself had
no such right. Mr. Justice Kania, as he then was, in a
separate
but
concurring
judgment,
negatived the
contention of the Attorney-General in these terms :
"The question whether the law in England and
India is the same on this point should be further
considered having
regard particularly
to
the provisions found
in the Civil Procedure Code. In this
connection, section 60(1) and clauses (i) and (j) of the
proviso, and explanation (2) should be noted. Under
section 60 all property belonging to the judgment
debtor
is liable to be
attached.
In stating
the
1954
T 11' State if
~ihttr
v.
Abdul Majid.
Mahajan C.J.
!95f
The State of
Bihm
v.
Abdul Maji4.
M1hajan C. J.
792
SUPREME COURT REPORTS
[1954J
particulars of what may not be attached and sold,
exemption to a limited extent is given in respect
of the salary of a public servant. These provisions
of the Code of Civil Procedure were not noticed in
Lucas v. Lucas and High Commissioner for India('),
as the application was made in England and the Civil
Procedure Code of 1908 did not apply there. The
provisions of section 60 of the Civil Procedure Code
give a right to the creditor to attach the salary of a
servant of the Crown. There can be no dispute about
that. If the contention of the appellant was accepted,
the result will be that while the civil sgvant cannot
recover the money in a suit against the Crown, his
creditor can recover the same in execution of a decree
against the civil servant.
This right of the creditor to
receive money in that manner has been recognised in
innumerable decisions of all High Courts. There were
similar provisions in the Civil Procedure Code of 1882
also.
By reason of section 292 of the Constitution Act,
the Code of Civil Procedure, 1908, continues in force,
in spite of the repeal of the Government of India Act
of 1915.
Could the Imperial
Parliament in enacting
section 240 and being deemed aware of the provisions
of section 60 of the Civil Procedure Code, have thought
it proper to give this privilege to a creditor, while
denying it to the officer himself ? To hold so, the words
of section 240 of the Constitution Act will have to be
unduly and unnaturally strained. Moreover in explanation (2) of section 60 the word 'salary' is defined. In
the proviso to section 60 clause (i) the word 'salary'
is used as applicable to private employees and to
Government servants also. The word 'salary' in respect of a private employee must mean an· enforceable
right to receive the periodical payments mentioned in
the explanation. In that connection it is not used in
the sense of a bounty.
It will therefore
be
improper
to give the same word, when used with regard to a
civil servant under the Crown a diffierent meaning in
the same clause. It seems to me therefore that the
Imperial Parliament has not accepted
the principle
that the Crown is not liable to pay its servant salary
(!) {1943) P. 68.
.,.
S.C.R.
SUPREME COURT REPORTS
793
for the period he was in service, as applicable to
British India or as forming part of the doctrine that
service
under the Crown is at His Majesty's pleasure."
The learned Solicitor-General contended that the
decision in Tara Chand Pandit's case('), was no longer
good law and should be deemed to have been dissented
from and overruled by the decision of their Lordships
of the Privy Council in I. M. Lall's case( 2), and that in
any event the view expressed in that decision should·
be preferred to the view expressed in Tara Chand
Pandit's case. We are unable to uphold this contention. It seems that during the arguments in Lall's case
attention of their Lordships was not drawn to the
decision of the Federal Court in Tara Chand Pandit's
case because the point was not directly involved therein. In that case no claim had been made by the
plaintiff for arrears of his pay. The plaintiff had sued
for a declaration simpliciter that the order of his
removal from the office ·was illegal and that he was
still a member of the Indian Civil Ser.vice. The High
Court granted that declaration. The Federal Court,
on appeal, substituted for the declaration made by the
High Court a declaration that the plaintiff had been
wrongfully dismissed. The case was remitted to the
High Court with a direction to take such action as it
thought necessary in regard to any application by
the
plaintiff for leave to amend the claim for recovery of
damages. On appeal to the Privy Council the decree
and the order made by the Federal Court was modified
and their Lordships held that in their opinion the
declaration should be varied so as to declare that the
purported dismissal
of the respondent _on the
10th
August, 1940, was void and inoperative and the respondent remained a member of the Indian Civil
Service at the date of the institution of the suit, 20th
of June, 1942. The High Commissioner for India had
also appealed against the order of the Federal Court
remitting the .case to the High Court for amendment
of the plaint. The plaintiff did not want to maintain
the order of the Federal Court to remit, before the
(1) [1947] F.C.R. 89.
(2) 75 I.A. "5·
14-95 S. C.I./59
1954
Till State of
Bihar.
v
Abdul Majid.
Mahajan C. J.
•
1954
The State of
Bihar
v.
Abdul Majid.
Mahajan C.J.
•
794
SUPREME COURT REPORTS
[1954]
Privy Council. He however urged that he was entitled
to recover in the suit his arrears of pay from the date
of the purported order of dismissal up to the date of
action, though this was not one of the reliefs claimed
bv him in the suit at all. This relief that was claimed
by him before the Board was negatived by their Lordships on the ground that no action in tort could lie
against the Crown and that such an action must either
be based on contract or conferred by statute. Their
Lordships approved of the judgment of Lord Blackburn in
the
Scottish case
of Mulvenna v. The
Admiralty( 1 ), in which that learned
Judge laid down
the rule in the following terms after reviewing various
authorities :
"These authorities
deal only with
the power of
the Crown to dismiss a public servant, b;it th.ey appear
to me
to
establish.
conclusively .certam
important
points. The first is that the terms of service of a public
servant are
subject to
certain
qualifications
dictated
by public policy, no matter to what service the servant
may belong, whether it be naval, military or civil, and
no matter what position he holds in the service,
whether exalted or humble. It is
enough that the
serl>'ant is a public servant, and that public policy, no
matter on what ground it is based,
demands the
qualification. The next is that these qualifications are
to be implied in the engagement of a public servant,
no matter whether they have been referred to when
the engagement was made or not. If these conclusions
·are justified by the authorities to which I have referred,
then it would seem to follow that the rule based on
public policy which has been enforced against military
servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption
that their only claim is on the bounty of the Crown
and not for a contractual debt, must equally apply . to
every public servant.
It
also follows that this qualification must be read, as an implied condition,
into
every contract between the Crown and a public servant,
with the effect that, in terms of their
contract, they
have no right. to their remuneration which can be
(•) [1926] s. c. 842 .
S.C.R.
SUPREME COURT REPORTS
795
enforced in a civil court of justice, and that their only
remedy under their contract lies 'in an appeal of an
official or political kind'."
The
observations
made
in
M ulvenna v. The
Admiralty('), which is a Scottish case, could not have
been made if in the law of that country there were
provisions similar to the
provisions
made in various
sections of the Code of Civil Procedure referred to by
the Federal Court in Tara Chand Pandit's case('). It
was further urged that the same view was taken by
Pilcher J. in Lucas v. Lucas and the High Commissioner
for India (8). There the question for consideration was
whether the sterling overseas pay of an Indian civil
servant was a debt owing and accruing within the
meaning of rule 1 of Order XL V of the Rules of the
Supreme Court and which could be attached in satisfaction of an order for the payment of alimony. The
real point for decision in that case was whether the
whole or any portion of the salary of a member of the
Indian Civil Service
was
liable
to attachment in
England in satisfaction of
the judgment debt.
It
appears that the attention of the learned Judge was
not invited to the provisions of section 60 and other
relevant provisions of the Code of Civil Procedure and
the learned Judge applied the dictum of Lord Blackburn in Mulvenna v. The Admiralty( 1 ), to the case of a
civil servant from India. As the application was made
in England and the Civil Procedure Code did not apply
there, the provisions of the Code were not noticed in
that case. We are therefore of the opinion that the
rule laid down by their Lordships of the Privy Council
in I. M. Lall's case('), without a consideration of the
provisions of the Code of Civil Procedure relevant to
the inquiry and without a consideration of the reasoning of the Federal Court in Tara Chand Pandit's case('),
cannot be treated, particularly because the matter was
not directly involved in the suit, as the final word on
the subject.
We are in no way bound by the decision
given either in Tara Chand Pandif'.s case(' ), or by the
(!) [r926] S. C. 842.
(3) [r943] P. 68.
<>) [r947] F.C.R. 89.
(4) 75 I.A. 205.
1954
Thi Stat1 ef
Bihar
v.
Abdul Mqjid.
Mahajan G'. ].
1954
T1" State of
Bihar
v.
Abdul Majid.
Mahajan C. J.
796
SUPREME COURT REPORTS
[1954}
decision given by the Privy Council in I. M. Lairs
case( 1 ). But on a consideration of the reasons given in
the two judgments we think that the rule of English
law that a civil servant cannot maintain a suit against
the State or against the Crown for the recovery of
arrears of salary does not prevail in this country and
that it has been negatived by the provisions of the
statute law in India.
Reliance was also placed by the learned SolicitorGeneral on the decision of the Federal Court in Suraj
Narain Anand v. North West Frontier Province(2).
In
that case Suraj Narain having been appointed a
Sul>-
Inspector of Police posted in the North West Frontier
Province by the Inspector-General of Police of the
Province was
subsequently dismissed by the Deputy
Inspector-General of Police. Failing to get relief by
departmental proceedings he instituted a suit in the
Court of the Senior Subordinate Judge, Peshawar. The
subordinate
judge
dismissed
the
suit
as
being
unsustainable. This decision was upheld by the Court
of the Judicial Commissioner. The Federal Court held
that the Courts below were not justified in dismissing
the suit, that the plaintiff was at least entitled
to a
dedaration that the order of dismissal passed against
him was void. That court accordingly set aside the
decree of the Judicial Commissioner and remitted the
case with a declaration that there shall be substituted
for the decree appealed against a declaration in the
terms above stated, with such further directions as
the circumstances of the case may require in the light
of the observations of their judgment. The Province
appealed to the Privy Council against the decision of
the Federal Court.
It was held by the Board in the
first instance allowing the appeal of the North West
Frontier Province
and reversing the decision of the
Federal Court of India, that the North West Frontier
Province Police Rules, 1937, had become operative in
1938 at some date before April 25, 1938, when the
respondent was dismissed, and that rule 16 ( 1) was a
valid rule made under the authority conferred on the
(I) 75 I.A. 225.
(2) [1941] F.C.R. 37.
S.C.R.
SUPREME COURT REPORTS
797
appellant by section 243 of the Government of India
Act, 1935, and that the respondent's suit was rightly
dismissed, but subsequently on the petition of the respondent asking the Board to reconsider their decision
-0n the ground that it had been ascertained that the
Police Rules of 1937 were in fact printed and published
Qn April 29, 1938, that was, four days after the date
Qf his dismissal, the Board heard the appeal further,
when the respondent's
allegation was
admitted and,
applying the reasoning in their previously
delivered
judgment, the Board reversed their former decision
.and affirmed the judgment of the Federal Court which
had held that the respondent's dismissal was void and
inoperative.
During the arguments before the Privy
<Council reference was made to section . 60 of the Code
Qf Civil Procedure and to the decision of the Federal
'Court in Tara Chand Pandit's case('), and it was also
noticed that following on the remit of the case to the
Judicial Commissioner by the order of the Federal
·Court, dated December 4, 1941, the respondent had
·Obtained a decree for payment of Rs. 2,283 against the
.appellant in respect of arrears of pay from the date of
dismissal
to the institution of the suit. When the
appeal came before the Board for further hearing their
Lordships on the 6th August, 1948, caused a letter to
be addressed to the solicitor representing the appellant,
informing him that their
Lordships now proposed
humbly to advise His Majesty that the appeal should
be dismissed, and stating that the order as to costs
would not be varied. The letter pointed out that if this
:advice were tendered, and if His Majesty were pleased
to accept it, the effect ·would be that the declaratory
judgment of the Federal Court would stand. Finally,
the letter referred to the award of Rs. 2,283 to the
respondent by the Court of the Judicial Commissioner
which, according to a submission made by the appel1ant's counsel, was open to challenge, and inquired
whether the appellant wished to have an opportunity
•of satisfying their Lordships that the point was open,
and of being heard on it. By their Lordships' direcition a copy of this letter was sent to the respondent. ·
.(1) [1947] F.C.R. 89.
1954
Tiu Slat< of
Bika,
v.
Abdul Maiid.
Mahajan C. J.
1954
Tht Stat1 of
Bihar
v.
Abdul Majid.
Mahajan C. ].
798
SUPREME COURT REPORTS
[1954}
An intimation was received by the Privy Council that
the appellant did not wish to offer any further arguments on the case. The respondent also did not desire
an opportunity of arguing that he should now be
awarded arrears of pay from the date of the institution
of the suit onwards. In these circumstances the Board·
refused to deal further with the matter and advised
His Majesty
that
the
declaratory
judgment of the
Federal Court be restored and proceeded to observe
that it would be open to the respondent to pursue any
remedy which flows from that declaratory judgment in
an appropriate court. Their Lordships concluded the
judgment with the following observations :-
"Their Lordships must not be understood, however, as expressing an opinion that the respondent was
entitled as
of right to recover the sum of
Rs. 2,283
which was awarded to him, or that he has any claim to·
a further sum in respect of arrears of pay. It is
unnecessary, owing to the very proper attitude of theappellant, to express any view as to the former question, and the latter question does not arise in this
appeal which is from the decision of the Federal Court.
If that decision is affirmed the respondent who did not
himself enter an appeal, cannot now ask for anything
more."
It is thus clear that in express terms in this decision
their Lordships declined to give any opinion on the
question whether the respondent was entitled as of
right to recover· arrears of pay awarded to him by the
Judicial
Commissioner, in spite of the
circumstance
that their attention had been drawn to the decision
of the Federal Court in Tara Chand Pandit's case( 1 ) •.
This decision therefore cannot be said to support the
view
contended for
by the learned Solicitor-General.
On the other hand, it must be assumed that in spite of
their decision in I. M. Lall's case('), their Lordships in
this case,
the judgment in which was
delivered
subsequent to the decision in /. M. La/l's case('), on
November 4,
1948, did not reaffirm the propositioru
(I) [1947] F.C.R. 89.
(2) 75 I.A. 225.
S.C.R.
SUPREME COURT REPORTS
799
laid down in that case but
pr~ferred to express no
opi~1ion on the point.
It was suggested that the true view to take is that
when the statute says that the office is to be held at
pleasure, it means "at pleasure'', and no rules or regulations can alter or modify that ; nor can section 60 of
the Code of Civil Procedure, enacted by a subordinate
legislature be used to construe an Act of a superior
legislature.
It
was
further
suggested
that
some
meaning must be given to the
words "holds office
during His Majesty's pleasure" as these words cannot
be ignored and that they bear the meaning given to
them by the Privy Council in I. M. Lall's case (1 ).
In our judgment, these suggestions are based on a
misconception of the scope of this expression. The
expression concerns itself with the tenure of office of
the civil servant and it is not implicit in it that a civil
servant serves the Crown ex grati or that his salary is
in the nature of a bounty. It has again no relation
or connection with the question whether an action can
be filed to recover arrears of salary against the Crown.
The origin of the two rules is different and they
operate on two different fields.
The rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase
"durante bene
placito"
("during pleasure") meaning
that the
tenure of office of a civil servant, except
where it is
otherwise provided by statute, can be
terminated at any time without cause assigned. The
true scope and effect of this expression is that even if
a special contract has been made with the civil servant
the Crown is not bound thereby. In other words, civil
servants are
liable
to
dismissal without notice and
there is no right of action for wrongful dismissal, that
is,
that they cannot claim damages for premature
termination of their services.
fSee Fraser's Constitutional Law, page 126; Chalmer's Constitntional Law:
page 186; Shenton v. Smit!i (2 ) ; Dunn v. T!ie Queen( 3 ) }.
This rule of English law has not been fully adopted
in section 240.
Section
240 itself places restrictions
(r) 75 l.A. 225.
(2) [r895] A.G. 229, 234.
(3) [r896] I Q.B. rr6.
1954
The State of
Bihar
v.
Abdul Majid.
Mahajan C. ].
•
1954
The State of
Bihar
v.
Abdul Majid.
Mahajan C. J.
•
800
SUPREME COURT REPORTS
[1954]
and limitations on the exercise of that pleasure and
those restrictions must be given effect to. They are
imperative
and mandatory.
It follows
therefore
that
whenever there is a breach of restrictions imposed by the
statute by the Government or the Crown the matter is
justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out
earlier in this judgment, there is no warrant for the
proposition that the relief must be limited to the
declaration and cannot go beyond it. To the extent
that the rule that Government servants hold office
during pleasure has been departed from by the statute,
the Government servants are entitled to relief like any
other person under the ordinary law, and that relief
therefore must be regulated by the Code of Civil
Procedure.
Section 292 of the Government of India Act, 1935,
provides that the law in force in British India immediately before the commencement of the Act shall
continue in force until altered, repealed or amended
by a competent legislature. Sections 100 to 104 of the
Government of
India Act,
1935, confer legislative
powers on the different legislatures in the country.
Item 4 of the concurrent list in the Seventh Schedule
reads thus :
"Civil Procedure,
and all matters included in the Code of Civil Procedure, at the date of the
passing of this Act." It is clear therefore that the
Indian Legislatures were conferred by the Government
of India Act, 1935, power to regulate the procedure in
regard to actions against the Crown and to make provision for reliefs that could be granted in such actions.
'These
provisions of
the
Government
of India
Act,
1935, stand by themselves independently of
what is
contained in section 240, and therefore no question
arises that section 60 of the Code of Civil Procedure
which has the sanction of the Government of India
Act, 1935, itself is in status lower than the rule laid
<lown in section 240.
The rules of English law that the Crown cannot be
sued by a civil servant for money or salary or for compensation has its origin in the feudal theory that the
Crown cannot be sued by its vassals or subjects in its
S.C.R.
SUPREME COURT REPORTS
801
own courts .. From this theory the common law lawyers in England deduced two rules, namely,
(1) that
the King can do no wrong, and (2) that as a matter of
procedure no action can lie in the King's courts against
the Crown. (See Ridge's Constitutional Law, eighth
edition, page 295, and Fraser's Constitutional Law, page
164). The subject, in this situation, could only proceed by way of a petition of right which required the
previous permission of the Crown. Permission
w.as
given by a fiat justitia issued by the Crown. It was not
in practice refused to a petitioner who had any shadow
of a claim, so that probably the disadvantages of this
form of procedure were more theoretical that substantial. Petitions of right and various other special forms·
of English procedure applicable exclusively to actions
by and against the Crown were abolished by the Crown
Proceedings Act, 1947, which provides that in future
claims against the Crown might be enforced as of
right and without the fiat of His Majesty, and that they
should be enforceable by ordinary procedure in accordance with the rules of the High Court or the County
Court as the case might be. Arrears of salary were
being actually recovered by the procedure of petition
of right in England. [See Bush v. R. (')]. There the
judgment resulted in favour of the suppliant. The
claim was in respect of the amount of salary due to him
as Master of the Court of Queen's Bench in Ireland.
(Robertson's Civil Proceedings by
or
against
the
Crown, page 338).
In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down
in the Code of Civil Procedure and the procedure of
,
petition of right was never adopted in this country,
and the same seems to have been the rule in Australia
and other Colonies. Section 56 of the Judiciary Act,
1903,
relating to the
Commonwealth of Australia
provides :
"Any
person
making
any
claim against the
Commonwealth, whether in contract or in tort, may
in respect of the claim bring a suit against the
(1) [1869] Times News, May 29,
1954
Thi State of
Bihar
v.
Abdul Majid.
Mahajan C. J.
1954
The State of
Bihar
v.
.Abdul Majid.
Mahajan C. J.
802
SUPREME COURT REPORTS
[1954J
Commonwealth in the High Court or in the Supreme
Court of the State in which the claim arose."
Under the New
South
Wales
Act, 39 Viet.
No. 38, the Government of the Colony is liable to be
sued in an action of tort as well as in contract. Section 65 of the Government of India Act, 1858, conferred the right of suit against the Government. It provided that "all persons and bodies politic shall and
may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of
State in Council of India as they could have done
against the said company" (the East India Company).
This was replaced by section 32 of the Government of
India Act, 1915. Sub-section (2) of that section ran
as follows :-
shall
have
the
same
remedies
"Every
person
against the Secretary
have had against the
Government of India
been passed."
of State in Council as he might
East
India
Company if the
Act, 1858, and this Act had not
This was replaced by section 176(1) of the Government of India Act,
1935,
which substantially reproduced these provisions. From these provisions it is clear
that the Crown in India was liable to be sued in respect of acts, which in England could be enforced only
by a petition of right. As regards torts of its servants
in exercise of sovereign powers, the compan;y was not,
and the Crown in India was not, liable unless the act
had been ordered or ratified by it. Be that as it may,
that rule has no application to the case of arrears of
salary earned by a public servant for the period that
he was actually in office. The present claim is not
based on tort but is based on quantum merttit or contract and the court is entitled to give _relief to him.
The Code of Civil Procedure from 1859 right up to
1908 has prescribed
the procedure for all kinds of
suits and section 60 and the provision of Order XXI
substantially stand the same as they were in 1859 and
those provisions have received recognition in all the
Government of India Acts that have been passed since
the year 1858.
The salary of its civil servants in the
S.C.R.
SUPREME COURT REPORTS
803
hands of the Crown has been made subject to the writ
of civil court. It can be seized in execution of a decree
attached. It is
thus difficult to see on what grounds
the claim that the Crown cannot be sued for arrears of
salary directly by the civil servant, though his creditor
can take it, can
be based
or
substained.
What
could be claimed in England by a petition of right
can be claimed in this country by ordinary process.
For the reasons given above we are of the opinion
that this appeal is without force
and we accordingly
dismiss it with costs.
Appeal dismissed.
Agent for the appellant : & H. D/zebar.
Agent for the respondent : S. P. Varma.
MESSRS. DW ARKA PRASAD LAXMI NARAIN
ti.
THE STATE OF UTTAR PRADESH AND
TWO OTHERS.
[MEHR CHAND MAHAJAN c. J., MUKHERJEA, VIVIAN
BosE, GHULAM HAsAN and JAGANNADHADAS JJ.]
Constitution of India, Arts. 19(1) (g), 19 (6)-Clause 4(3) of the
Uttar Pradesh Coal Control Order, 1953, tuhether ultra vires the
Constitution.
A law or order which confers arbitrary and
uncontrolled
power upon the executive in the matter of regulating trade or
business in normally available commodities
must be held to be un~
reasonable.
Under
cl. 4(3)
of the Uttar Pradesh
Coal Control
Order, 1953,
the licensing authority has been given absolute power ,
1
to grant or refuse to grant,
rene~r or refuse to
~enew, suspend,
revoke,
cancel
or modify any licence under this Order and the
only thing he has to do is to record reasons for the action he takes.
Not only so, the power could be exercised by any person to whom
the State Coal Controller may choose
to delegate
the same,
and
the choice can be made in favour of any and every person. Such
provisions cannot be held to be reasonable :
Held, therefore that
the
provision of cl. 4(3)
of the Uttar
Pradesh
Coal Control
Order, 1953,
must be held to be void as
104
1954
The State of
Bihar
v.
Abdul Majid.
Mahajan C. ].
1954
January 11.