SECRETARY OF STATE Vs. SURENDRA NATH GOSWAMI

JUDGEMENT

(1.) This appeal by the defendant, the Secretary of State for India in Council, is directed against the judgment and decree of the learned Subordinate Judge of Howrah dated 29th February 1936. By that judgment and decree the plaintiff's claim was allowed in part. The plaintiff has also filed a memorandum of cross-objections. The plaintiff entered the service of the East Indian Railway Company in 1901 as a clerk and continued to be so till the end of 1924. In 1925 the Railway became a State Railway, and the plaintiff's service was continued by the Railway Board acting on behalf of the Government of India, the plaintiff entering into a contract with the latter. The material terms of the contract which is printed at p. 4 of part 2 of the paper book are : (i) the service was to be that of a monthly servant, terminable at any time on a month's notice on either side or by payment by Government of a month's salary in lieu of notice, (ii) he was liable to immediate dismissal or suspensions without pay for refusal of duty, disobedience of orders, absence without leave, negligence or misconduct or neglect of Government rules and orders applicable to his service, (iii) that he would be bound by all general rules and regulations of Government service with certain specified exceptions which are not material to the present controversy. The Fundamental Rules made by the Secretary of State for India in Council under Section 96-B of the last Government of India Act, and supplementary rules made by the Governor-General in Council under the Fundamental Rules were made applicable to his service.

(2.) In 1928 and part of 1929 the plaintiff was the head clerk in the office of the Permanent Way Inspector at Howrah, Edwards being the Permanent Inspector, and Pan-chanan Dutt the pay clerk. The practice prevalent in the Permanent Way Inspector's office was that thumb- impressions of the coolies had to be obtained on their pay bills at the time of payment. On some of the pay bills appeared some thumb-impressions which were not of coolies named therein but of three office peons. The plain-tiff certified that those thumb-impressions were of the coolies concerned, his case being that he did it at the request of Edwards. When this was discovered later on, two of the said peons, the plaintiff and Panchanan Dutt were placed on 3 July 1930 on trial before a Magistrate on many charges. The peons pleaded guilty and were convicted. Panchanan was acquitted but the plaintiff was convicted and sentenced to one year's rigorous imprisonment by the Magistrate on 28 February 1931. His conviction and sentence were upheld on appeal by the Sessions Judge but on revision this Court acquitted him on 18 September 1931. At the time of his arrest the plaintiff was a clerk in the office of the Divisional Superintendent at Howrah at a pay of Rs. 93. On 4 July 1930 he was placed under suspension by the Divisional Superintendent, Howrah. The order ran thus: You are hereby advised that you are placed under suspension with immediate effect (4 July 1930) till the alleged case against you is finally decided.

(3.) On his conviction by the Magistrate two notes were recorded in his service record at the instance of the Divisional Superintendent. One was that he was "placed under suspension from 4 July 1930 to 27 February 1931 and that one-fourth pay was allowed." The other was that he was "dismissed from 28 February 1931 for having been convicted by Court in a case of fraud regarding payment of wages of staff." On his acquittal the last note was cancelled and he was called upon to explain why he should not be dismissed for neglect of duty which had resulted in loss to the railway. He submitted an explanation. He was not ultimately dismissed but discharged from service on 19 January 1932, a month's pay being given in lieu of notice. He was given by the defendant one-fourth of his pay, his pay being taken at Rs. 93 per month from 4 July 1930 to 18 January 1932 and a month's pay at Rs. 93 in lieu of notice. In the plaint after reciting the facts he averred that he was "unjustly, improperly and illegally dealt with." He claimed, (a) Rs. 950-0-0 as damages for wrongful dismissal, (b) Rs. 1515-0.0 as gratuity, (e) Rs. 548-12.0 being three-fourth of his pay from 4 July 1930 to 27th February 1931, at Rs. 93, (d) Rs. 1029-13-0 being balance of pay including grade increment from 28 February 1931 to 18 January 1932 at Rs. 97 a month, (e) Rs. 3-10-0 being balance of pay on account of grade increment from 19 January to 18 February 1932, (f) Rs. 600-12.0 being the allowance during period of leave said to be-due to him for six months from 19 February to 18 August 1932, (g) Rs. 207-8-0, Provident fund bonus from 4 July 1930 to 18 August 1932 with interest thereon. There were also few other items which he- claimed but it is not necessary for us to consider them. The learned Subordinate Judge held that the plaintiff had been discharged irregularly, that is, by disregarding the rules prescribed. In answer to the defendant's contention that no damages for wrongful discharge could be claimed or awarded in the suit, as the plaintiff, being in service of the Crown, held his post during His Majesty's pleasure, the learned Subordinate Judge said that the plaintiff no doubt held his post at the pleasure of His Majesty but that His Majesty is a constitutional Monarch and even his pleasure is not wanton and irresponsible but must be constitutional and expressed through constitutional channels. It is therefore the case that in every case of Grown servants rules are prescribed for dismissal or discharge and even the humblest of His Majesty's servants is not dismissed or discharged except strictly according to these rules. The very fact that rules are framed shows that it is not to be a case of wanton pleasure but constitutional as expressed in these rules. Indeed the rules made are the formal expressions of His Majesty's pleasure. If therefore you do not follow the rules not only do you do wrong to a Grown servant but are at the same time guilty of not carrying out His Majesty's pleasure and the servant wronged would be entitled to invoke the aid of His Majesty's Court for such redress as are available to him in law.