ANCHAL SINGH (MAJOR) Vs. HIS HIGHNESS GOVT

JUDGEMENT

(1.) This reference to a Full Bench arises out of a suit which is pending in the original jurisdiction of this Court. The plaintiff, Major Anchal Singh, has brought the suit against His Highness' Government through the Chief Secretary claiming declaration that the plaintiff's dismissal from service is illegal and ineffectual and other consequential reliefs, and in the alternative a decree for Rs. 60,000 as damages. It is stated in the plaint that under orders passed by His Highness the plaintiff was appointed to various posts in the service of His Highness, the last post held by him being that of Game-Warden of the State. On 11th May, 1939 the plaintiff was suspended from service by an order passed by the then Chief Conservator of Forests. On 24th May 1939 the plaintiff was served with a charge sheet accusing him of falsification of T. A. bills of 1935 to 1938. Thereafter certain proceedings followed. By an order of Council No. 832-C of 1939 dated 14th August 1939 the plaintiff was dismissed from service. The plaintiff alleges that the Chief Conservator of Forests was actuated by malice, that the statutory provisions of the Public Servants (Inquir ies) Act No. XXVIII of 1977 were ignored, that the enquiry was in contravention of the said Act, that the authorities failed to comply with rule 32 of the Kashmir Civil Services Rules (General) of 1939 and, further that the enquiry was perfunctory and based on insufficient materials and the order of dismissal was against the dictates of natural justice and fairness. It is further stated that the plaintiff, up to January 1945, was pursuing his remedies under the Kashmir Civil Services Rules (General) and he took the matter to the higher authorities. The last order in the matter was received by the plaintiff on the 15th January 1945. It is also stated that the plaintiff exhausted all the remedies by way of appeal, review and petitions. The plaintiff's case is that the cause of action arose from 14th August 1939 and continued till the last order was passed in January 1945. On these grounds the plaintiff prayed for a decree as stated above. The Chief Secretary, defendant in this case, filed a written statement contesting the suit. He denied the charges of malice etc., and stated that in the proceedings against the plaintiff, "throughout the enquiring officers followed the procedure laid down to the letter and even stretched it in favour of the plaintiff. It is said that" the order of dismissal was in consonance with the Rules and the facts of the case. The Government has the unfettered and absolute discretion to dismiss or otherwise punish its servants for such misconduct as was proved in this case. The officers of the State hold their offices during the pleasure of the Government and not as matter of right." The following clauses of para 11 and also para' 13 of the written statement are relevant :-

(2.) It was contended before Masud Hasan J. on behalf of the defendant that the Kashmir Civil Services Rules (General) and other rules upon which reliance was placed by the plaintiff are not binding upon the Government, that they had unfettered right to retain or dismiss any officer, and that the dismissed party can seek no remedy in any Court of law.

(3.) Considering that the question of law raised should be decided authorita tively the learned Judge has formulated the following questions for decision by the Full Bench:-