SECRETARY OF STATE Vs. JAMUNA DAS

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Patna in an insolvency case. The insolvent, John Herbertson, was a guard in the service of the E. I. Ry. The relationship between the guard and his employers the Railway were such that he was paid a salary and it was the custom of the Railway at the conclusion of the service of any of their servants to make a gift depending upon the quality of the service rendered by the retiring servant and his rank and the length of the service. It is expressly pointed out in the rules published by the Railway for the use of their servants that such gratuity is not payable until the end of the service and it is entirely at the discretion of the Railway and there is no contract of any kind on the part of the Railway with any of their servants that they will pay any gratuity to the servant on his retirement.

(2.) The insolvent borrowed a sum of money from a firm, called Jamuna Das and brothers and then filed his application to be declared an insolvent on the ground that he was unable to pay his debts. He was about to retire from the service of the E.I, Ry. and the creditor Jamuna Das made an application to the Judge in the insolvency proceedings for leave to attach the gratuity which they anticipated would be paid to the insolvent upon his retirement. The District Judge who was at that time the incumbent of the office decided that the insolvent had not in fact relinquished service and that the amount of the gratuity which he would or might obtain from the Railway in future could not be attached because it had not been ascertained nor had it been paid over to him. The insolvent then left the country and it became known to the creditor that it was the intention of the company to pay him a sum of money which they had decided was to be his proper gratuity under their practice and he once again applied to the District Judge saying that the amount of the gratuity had now been ascertained and furthermore shewing that a letter had been written by the Railway to the insolvent in Europe asking him to nominate a bank or other agent to receive the gratuity which it was their intention to pay him and that the insolvent had replied nominating a certain bank to receive the money. He asked the District Judge in these new circumstances to attach the amount of gratuity which was at the time of the application, and is still, in the hands of the railway administration.

(3.) The railway however declined to pay over the amount of the gratuity for the benefit of the creditor and the District Judge called upon them to appear and offer any observations by their legal representative which they might think fit on the situation. They did so appear and at the conclusion of the argument the learned District Judge delivered a judgment in which he directed that a letter should be written to the railway directing the payment of the gratuity into Court and also ordered that the costs of the hearing should be paid by the Railway administration to the creditor.