R T RANGACHARI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) These two appeals can be dealt with together. Although the facts are different, the main point for decision is common to both. The facts in each appeal may be briefly Stated. In O.S. No. 1 of 1931 the appellant brought a suit against the Secretary of State for India in Council, the respondent in this appeal. In that suit he asked for a declaration that he was wrongly dismissed, after he has been discharged on an invalid pension and for damages amounting to Rs. 9,900. His case was that he was discharged in October 1927 on an invalid pension and whilst a pension it was dismissed on February 1928 on the ground that he had been found guilty of misconduct before his retirement. The result of this was that his pension was withdrawn. His case was and is that under Rule 351 of the Civil Service Rules a pension can be withdrawn only if the pensioner bas been guilty of misconduct subsequent to his retirement. He next contends that his dismissal was contrary to the provision in Sub-section (1), Section 96-B, Government of India Act, that no civil servant can be dismissed by any authority subordinate to that by which he was appointed. The defendant's case as regards the first plea is that the charges of misconduct against the plaintiff were still awaiting disposal at the time when his pension was sanctioned and that the sanctioning authority was not informed of this fact. Waller, J., negatives the defence, holding that the charges had already been found by competent authority, that is to say, the District Superintendent of Police, not to have been sufficiently established to justify the plaintiff's dismissal. As regards the plaintiff's second plea, the defendant contends that power of punishment under the rules framed under Sub-section (2), Section 96-B, Government of India Act, 1919, has been delegated to Local Governments under Rule 13; that Rule 15 authorises the Local Governments to delegate in their turn the disciplinary powers under Rule 13 to any subordinate authority and that in the exercise of the delegated power the Local Governments have conferred on Deputy Inspectors-General of Police the right to dismiss officers of the rank of Sub-Inspector. It is contended of course that at the material time the Sub- Inspectors were appointed by the Inspector-General of Police. This contention of the defendant Waller, J., upheld.

(2.) In this case as well as in the other case the question whether a person in the civil service of the Crown in India can sue the Secretary of State for damages for wrongful dismissal was elaborately argued and in both oases Waller, J., held that no such suit would lie, and with this question I will deal later. Before doing so, I will state as briefly as possible the facts in O.S. A. No. 1 of 1931. In July 1927 the Assist, ant Superintendent of Police of Salem District, Mr. Charsley, under whom the plaintiff was serving, started a disciplinary enquiry against him. He framed charges and had examined all the witnesses by 22nd August. The plaintiff did not examine any witnesses in his defence and the enquiry seems to have been closed on 7 September. On 31 August Mr. Kalimullah had taken charge as District Superintendent and on 7 September the plaintiff applied to Mr. Charsley to be sent before the District Medical Officer with a view to his being invalidated out of the service. Mr. Charsley sent this application on to Mr. Kalimullah recommending that the request should be granted. Two days later, Mr. Kalimullah and Mr. Charsley at Salem discussed the plaintiff's case and went through all the evidence against him. Mr. Charsley's opinion however did not coincide with that of Mr. Kalimullah who took the view that the evidence against the plaintiff did not justify his dismissal and that it would be better to get him invalidated if he was certified to be physically unfit for further service.

(3.) On 14 September the plaintiff renewed his request and on 16 September was given a certificate of unfitness by the District Medical Officer and on the 24th his pension papers were forwarded to the Accountant-General by Mr. Kalimullah. On 2nd October, Mr. Charsley sent to the District Superintendent of Police his minute on the charges against the plaintiff in which he found him guilty of grave misconduct. The cover in which the minute was enclosed reached Salem on 4th October and was endorsed to be kept pending till the pension was received. This endorsement was made by the District Superintendent's camp clerk according to Mr. Kalimullah without any authority from him. Mr. Kalimullah also says that he never saw the cover at all although both as regards the authority to make the endorsement and his seeing the cover he was contradicted by the manager of his office and by the camp clerk. Waller, J., has accepted Mr. Kalimullah's statement and rejected those of the latter two persons. The fact is that the cover remained unopened and was discovered in the manager's confidential almirah when Mr. Kalimullah was succeeded by another District Superintendent of Police, Mr. Loveluck, which was after the plaintiff had been invalidated and granted a pension. When Mr. Loveluck saw Mr. Charsley's minute he was of the opinion that the charges were of a serious nature and should have been disposed of and the plaintiff not allowed to retire, on an invalid pension. An inquiry followed and as a result of it the plaintiff was dismissed. The question before Waller, J., was therefore whether Mr. Kalimullah failed to dispose of the charges against the plaintiff and deliberately concealed the circumstances from the Deputy Inspector- General when he forwarded the pension papers. Waller, J., was of the opinion that Mr. Kalimullah did not deliberately conceal the fact that charges against the plaintiff had not been disposed of and came to the conclusion that at the interview between Mr. Kalimullah and Mr. Charsley the former had decided to drop the charges, that as a result he sent the plaintiff to the doctor and that he had never seen Mr. Charsley's minute. On this, Waller, J., as before stated, held that Mr. Kalimullah had found the charges not to have been sufficiently established to justify the plaintiff's dismissal and that Mr. Kalimullah was the proper and competent authority to coma to that finding. The plaintiff, as a result of Waller, J.'s finding, asked for a declaration that he had been wrongly dismissed. Waller, J. declined to grant him that relief for the following reason that, although undoubtedly the plaintiff's suit was for a declaration that he had been wrongly dismissed and for damages on that account, the latter were not his real remedy because if the order dismissing him was wrongful he was entitled to be restored to the position in which he was when dismissed; in other words, to become a pensioner once more. If his claim is really for the latter, then, in Waller, J.'s opinion, it is a claim for a pension and that being so such a suit is barred by Section 6. Pensions Act, which prohibits Courts of law from making any order or decree by which the liability of Government to pay any pension or grant as aforesaid is affected directly or indirectly.