HAFIZUDDIN Vs. GOVERNOR-GENERAL OF INDIA IN COUNCIL

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out a suit which was instituted in December 1942 for a declaration that the order of the Commissioner of Income tax, dated 19 August 1932, discharging the plaintiff from service was illegal and void and that the plaintiff still continued to be in service. The plaintiff also claimed a decree for arrears of salary for all the period that had elapsed since his discharge from service till the institution of the suit. The plaintiff's case briefly stated was as follows. The plaintiff was appointed an assistant incometax officer by the United provinces Government under their notification No. 343, dated 7 May 1921, and was confirmed as incometax officer in January 1924. In August 1932 when the plaintiff was drawing a salary of rs. 590 per month, the incometax department conceived of a scheme to effect reduction in expenses in that department by discharging some incometax officers and in their places appointing inspectors of incometax on leaser salary. The scheme was proposed by the Incometax commissioner, United Provinces and Central Provinces, and was approved by the Government of India. As a part of the scheme directions were given by the Government of India for selecting persons for discharge. Quite contrary to these directions the Commissioner of Incometax included the name of the plaintiff as one of the persons to be discharged. A notice of discharge was thereupon issued by the Commissioner of incometax to the plaintiff-appellant on 19 August 1932 stating that the plaintiff's services would be dispensed with effect from 31 October 1932, but that he would be allowed leave with fall pay up to the first week of January 1935. The plaintiff was in fact discharged from the office of incometax officer on 31 October 1932, and compelled to go on leave. While he was on leave he was re-employed as as assistant incometax officer with effect from 21 December 1934 upon a lower salary. This re-employment rendered ineffective the order of discharge and the plaintiff became entitled to draw the emoluments equivalent to the pay he was drawing before the illegal order of discharge was passed. Since, however, the plaintiff was technically discharged he made representations to the Commissioner of incometax and to the Government of India against his retrenchment. His representations were finally rejected by an order, dated 14 December 1936, which was communicated to him on 23 december 1936. The plaintiff continued to work as re-employed assistant incometax officer up to March 1935 when he was employed as inspector of incometax which office he held up to april 1938, when his services were completely dispensed with. The plaintiff then served a notice upon the Governor-General of India in Council on 23 July 1942 as required by Section 80 of the civil Procedure Code and instituted the suit which has given rise to this appeal for the reliefs already stated.

(2.) THE plaintiff's case was that he, having been appointed by the Government of United provinces, could not have been discharged or dismissed by the Commissioner of incometax as the latter was subordinate to the appointing authority. For this contention he relied on Section 96b of the Government of India Act, 1919. He also pleaded that his discharge was contrary to the Civil Service Regulations and the directions of the Government of India. He sought to save the bar of limitation for the suit on the ground, firstly that he was continuously in employment up to April 1938, and secondly that the final rejection of his representation was communicated to him on 23 December 1936 and he had filed the suit within six years of that date. Alternatively he pleaded that the order of discharge being void and inoperative he was still in service and the cause of action accrued to him on the first of every month when his salary was not paid to him.

(3.) THE defence to the suit was that the order of discharge was valid as he was discharged by the government of India, an authority superior to the Provincial Government which appointed him, that his re-employment as assistant commissioner and subsequently as inspector of incometax was a fresh appointment and not in continuation of the old appointment, that the suit was barred by limitation, that the plaintiff could be discharged at His Majesty's pleasure at any time, that he had no cause of action for the suit and that the suit was barred by estoppel because the plaintiff had accepted the benefits under the retrenchment scheme.