The State of Bihar Vs. Abdul Majid
[1954] INSC 12 (11 February 1954)
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM
CITATION: 1954 AIR 245 1954 SCR 786
CITATOR INFO :
D 1954 SC 493 (6) F 1955 SC 800 (6,9,12) RF
1958 SC 36 (5,9) RF 1958 SC 325 (4) RF 1961 SC 751 (14) RF 1962 SC 8 (4) RF
1962 SC 933 (15) R 1964 SC 72 (4) R 1964 SC 600 (22) R 1969 SC1302 (13) R 1977
SC1466 (24) F 1985 SC1416 (52) R 1991 SC2176 (1,32)
ACT:
Civil servant--Wrongful dismissal--Suit for
recovery of arrears of salary--Whether competent--Rule of English law--Civil
servant--Holding office at the pleasure of Crown--Whether applicable in India.
HEADNOTE:
Held, that the rule of English law that a
civil servant cannot' maintain a suit against the State or against the Crown
for the 787 recovery of arrears of salary does not prevail in India and it has
been negatived by the provisions of the statute law in India.
Section 240 of the Government of India Act, 1935,
places restrictions and limitations on the exercise of the pleasure of the
Crown and these restrictions must be given effect to. They are imperative and
mandatory.
Therefore whenever there is a breach of
restrictions imposed by the statute' by the Government or the Crown the matter
is justiciable and the aggrieved party is entitled to suitable relief at the
hands of the court.
Government servants are entitled to relief
like any other person under the ordinary law, and that relief must be regulated
by the Code of Civil Procedure.
Punjab Province v. Pandit Tara Chand ([1947]
F.C.R.
89) approved.
High Commissioner OF India and Pakistan v.
I.M. Lall ([1948] L.R. 75 I.A. 225) distinguished.
CIVIL APPELATE JURISDICTION: Civil Appeal No.
70 of 1952.
Appeal by special leave from the Judgment and
Decree dated the 5th May, 1949, of the High Court of Judicature at Patna
(Manohar Lall and Mahabir Prasad JJ.) in Appeal from Appellate Decree No. 2091
of 1946.
C.K. Daphtary, Solicitor-General far India
(G. N. Joshi and Porus A. Mehta, with him) for the appellant.
8. P. Sinha (Nuruddin Ahmed, with him) for
the respondent.
1954. February 11. The Judgment of the Court
was delivered by MAHAJAN G.I.--This is an appeal by the State of Bihar against
the judgment of the High Court of Judicature at Patna whereby the High Court
passed a decree for arrears of salary of the respondent against the State from
the 30th July, 1940, up to the date of the institution of the suit.
The undisputed facts of the case are: That
the respondent was appointed a Sub-Inspector of Police by the Inspector-General
of Police, Bihar and Orissa, in January, 1920. In the year 1937 departmental
proceedings were taken against him and he was found guilty of cowardice and of
not preparing search lists and was punished by demotion for ten years. On
appeal; the Deputy Inspector-General of Police held 788 that the respondent was
guilty of cowardice but acquitted him of the other charge. By an order dated
the 23rd July, 1940, which was communicated to the respondent on the 29th of
July, 1940, the Deputy Inspector-General of Police having found him guilty of
cowardice made an order dismissing him from service.
Further appeals by the respondent to the
Inspector- General of Police and to the Governor of Bihar were unsuccessful.
Aggrieved by the departmental action taken
against him, the respondent filed the suit out of which this appeal arises in
the court of additional subordinate judge against the State of Bihar for a
declaration that the order of the Deputy Inspector-General of Police dismissing
him from service was illegal and void and that he should be regarded as
continuing in office. He also claimed a sum of Rs. 4,241 from 30th July, 1940,
to the date of the suit on account of arrears of salary. The State contested
the claim and pleaded that the plaintiff held his service at the pleasure of
the Crown, and could not call in question the grounds or the reasons which led
to his dismissal, and that in any case he had been reinstated in service from
the 30th of July, 1940, and the order of dismissal therefore was no longer
operative, and the suit had thus become infructuous. The additional subordinate
judge by his judgment dated the 2nd February, 1945, dismissed the suit on the
finding that the Government having reinstated the respondent he had no cause of
action. As regards the arrears of salary, it was held that the claim to it
could only be made according to the procedure prescribed under rule 95 of
section 4-of Chapter IV of Bihar and Orissa Service Code. This decision was
confirmed in appeal by the additional district judge.
On further appeal the High Court reversed
these decisions and decreed the claim for arrears of salary in the sum of Rs.
3,099-12-0. It was held that rule 95 of the Bihar and Orissa Service Code had
no application because the respondent had never been dismissed within the
meaning of that rule. It was further held that the plaintiff was entitled to
maintain the suit for arrears of pay in view of the decision 789 of the Federal
Court in Tara Chand Pandit's case(1) the correctness o15 which was not affected
by decisions of the Privy Council in cases of 1. M. Lall(2) and Suraj Narain
Anand(3).
The principal questions involved in this
appeal are:
(1) Whether the High Court correctly held that
rule 95 above mentioned had no application to the case ? (2) Whether a suit
15or arrears of salary by a civil servant is competent in a civil court ? Rule
95 of the Bihar and Orissa Service Code provides:
Rule 95 "When the suspension of a
Government servant as a penalty for misconduct is, upon reconsideration or
appeal, held to have been unjustiliable or not wholly justifiable; or when a
Government servant who has been dismissed or removed, or suspended pending
enquiry into alleged misconduct is reinstated;
the revising or appellate authority may grant
to him for the period of his absence from duty (a) if he is honourably
acquitted, the full pay to which he would have been entitled if he had not been
dismissed, removed or suspended and, by an order to be separately recorded, any
allowance of which he was in receipt prior to his dismissal, removal or
suspension; or (b) if otherwise, such proportion of such pay and allowances as
the revising or appellate authority may direct." The provisions of this rule
enable an appellate or revising authority, when making an order of
reinstatement to grant the reliefs mentioned in the rule. Obviously these
provisions have no application to the situation that arose in the present case.
The respondent here was dismissed by the Deputy Inspector-General of Police,
though he was appointed by the Inspector-General of Police. This was clearly
contrary to the (1) [1947] F.C.R. 89.
(2) 75 I.A. 225.
(3) 75 I.A. 343.
790 provisions of section 240 (3) of the
Government of India Act, 1935, which provides that no person shall be dismissed
from the service of His Majesty by an authority subordinate to that by which he
was appointed. But nevertheless the appeal-preferred by him to the
Inspector-General of Police was rejected and his petition to the Government of
the State met with the same fate, so that he was never reinstated by the order
of any revising or appellate authority. It was only after the present suit was
filed that the Government reinstated him.
This was no proceeding in revision or appeal.
In these circumstances the enabling provisions of rule 95 had no application
whatsoever to the case of the plaintiff.
What happened subsequently is a matter wholly
outside the contemplation of the rule. After the institution of the suit, the
Chief Secretary to the Government of Bihar realising the untenability of the
Government's position wrote to the Inspector-General of Police that the order
of dismissal should be treated as null and void and that the respondent should
be reinstated. Thus the reinstatement of the plaintiff the telegram of the 30th
December, 1943, was not made at the instance of any of the authorities
mentioned in the rule in exercise of their jurisdiction, appellate, or
revisional, but was made at the instance of the defendant in the suit who had
realised that it was not possible to defend the order of dismissal. For the
reasons given above we are of the opinion that the High Court was right in
holding that rule 95 had no application to the facts and circumstances of this
case and that the enabling provisions of this rule did not operate as a bar to
the plaintiff's action.
The next contention of the learned
Solicitor-General that a suit by a public servant against the State for
recovery of arrears of salary cannot be maintained in a civil court is again,
in our opinion, without substance. We think that the matter is covered by the
decision of the Federal Court in Tara Chand Pandit's case(1) with which we find
ourselves in respectful agreement. In that case the learned Attorney General
had argued with great force all the points that were (1) [1947] F.C.R. 89.
791 urged in this appeal before us by the
learned Solicitor General and were dealt with by the Federal Court in great
detail. It was there held that the prerogative right of the Crown to dismiss
its servants at will having been given statutory form in sub-section (1)of
section 240 of the Government of India Act, 1935, it could only be exercised
subject to the limitations imposed by the remaining sub-sections of that section
and that it must follow as a necessary consequence that if any of those
limitations was 'contravened the public servant concerned had a right to
maintain an action against the Crown for appropriate relief and that there was
no warrant for the proposition that that relief must be limited to a
declaration and should not go beyond it. It was further held that even if apart
from the prerogative of the Crown to terminate the service of any of its
servant at will, the further prerogative could be invoked that no servant of
the Crown could maintain an action against the Crown to recover arrears of pay
even after the pay had been earned and had become due and that the prerogatives
of the Crown had been preserved in the case of India by section 2 of the
Constitution Act, it must be presumed that this further prerogative had been
abandoned in the case of India by the provisions of' the Code of Civil
Procedure and that it was not possible to subscribe to the proposition that
while a creditor of a servant of the Crown was entitled as of right to compel
the Crown to pay to him a substantial portion of the salary of such servant in
satisfaction of a decree obtained against him the servant himself had no such
right. Mr. Justice Kania, as he then was, in a separate but concurring
judgment, negatived the contention of the Attorney-General in these terms:
"The question whether the law in England
and India is the same on this point should be further considered having regard
particularly to the provisions found in the Civil Procedure Code. In this
connection, section 60(1) and clauses (i) and (j) of the proviso, and
explanation (2) should be noted. Under section 60 all property belonging to the
judgment debtor is liable to be attached. In stating the 792 particulars of
what may not be attached and sold, exemption to a limited extent is given in
respect of the salary of a public servant. These provisions of the Code of
Civil Procedure were not noticed in Lucas v. Lucas and High Commissioner for
India(1 ), as the application was made in England and the Civil Procedure Code
of 1908 did not apply there. The provisions of section 60 of the Civil
Procedure Code give a right to the creditor to attach the salary of a servant
of the Crown. There can be no dispute about that. If the contention of the
appellant was accepted, the result will be that while the civil servant cannot
recover the money in a suit against the Crown, his ,creditor can recover the
same in execution of a decree against the civil servant. This right of the
creditor to receive money in that manner has been recognised in innumerable
decisions of all High Courts. There were similar provisions in the Civil
Procedure Code of 1882 also. By reason of section 292 of the Constitution Act,
the Code of Civil Procedure, 1908, continues in force, in spite of the repeal
of the Government of India Act of 1915. Could the Imperial Parliament' in
enacting section 240 and being deemed aware of the provisions of section 60 of
the Civil Procedure Code, have thought it proper to give this privilege to a
creditor, while denying it to the officer himself ? To hold' so, the words of
section 240 of the Constitution Act will have to be unduly and unnaturally
strained. Moreover in explanation (2) of section 60 the word 'salary' is
defined.
In the proviso to section 60 clause (i) the
word 'salary' is used as applicable to private employees and to Government
servants also. The word 'salary' in respect of a private employee must mean an
enforceable right to receive the periodical payments mentioned in the
explanation. In that connection it is not used in the sense of a bounty.
It will therefore be improper to give the
same word, when used with regard to a civil servant under the Crown a different
meaning in the same clause. It seems to me therefore that the Imperial
Parliament has not accepted the principle that the Crown is not liable to pay
its servant salary (1) (1943) P. 68.
793 for the period he was in service, as
applicable to British India or as forming part of the doctrine that service
under the Crown is at His Majesty's pleasure." The learned
Solicitor-General contended that the decision in Tara Chand Pandit's case(1),
was no longer good law and should be deemed to have been dissented from and
overruled by the decision of their Lordships of the Privy Council in I. M.
Lall's case(2), and that in any event the view expressed in that decision
should be preferred to the view expressed in Tara Chand Pandits case. We are
unable to uphold this contention. It seems that during the arguments in Lall's case
attention of their Lordships was not drawn to the decision of the Federal Court
in Tara Chand Pandit's case because the point was not directly involved
therein. In that case no claim had been made by the plaintiff for arrears of
his pay. The plaintiff had sued for a declaration simpliciter that the order of
his removal from the office was illegal and that he was still a member of the
Indian Civil Service. The High Court granted that declaration. The Federal
Court, on appeal, substituted for the declaration made by the High Court a
declaration that the plaintiff had been wrongfully dismissed. The case was
remitted to the High Court with a direction to take such action as it thought
necessary in regard to any application by the plaintiff for leave to amend the
claim for recovery of damages. On appeal to the Privy Council the decree and
the order made by the Federal Court was modified and their Lordships held that
in their opinion the declaration should be varied so as to declare that the
purported dismissal of the respondent on the 10th August, 1940, was void and
inoperative and the respondent remained a member of the Indian Civil Service at
the date of the institution of the suit, 20th of June, 1942. The High
Commissioner for India had also appealed against the order of the Federal Court
remitting the case to the High Court for amendment of the plaint. The plaintiff
did not want to maintain the order of the Federal Court to remit, before the
(1) [1947] F.C.R. 89 (2) 75 I.A. 225.
14--95 S.C.I./59 794 Privy Council. He
however urged that he was entitled to recover in the suit his arrears of pay
from the date of the purported order of dismissal up to the date of action,
though this was not one of the reliefs claimed by him in the suit at all. This
relief that was claimed by him before the Board was negatived by their
Lordships on the ground that no action in tort could lie against the Crown and
that such an action must either be based on contract or conferred by statute.
Their Lordships approved of the judgment of Lord Blackburn in the Scottish case
of Mulvenna v. The Admiralty(1), in which that learned Judge laid down the rule
in the following terms after reviewing various authorities:
"These authorities deal only with the
power of the Crown to dismiss a public servant, but they appear to me to
establish conclusively certain important points. The first is that the terms of
service of a public servant are subject to certain qualifications dictated by
public policy, no matter to what service the servant may belong, whether it be
naval, military or civil, and no matter what position he holds in the service,
whether exalted or humble. It is enough that the servant is a public servant,
and that public policy, no matter on what ground it is based, demands the
qualification. The next is that these qualifications are to be implied in the
engagement of a public servant, no matter whether they have been referred to
when the engagement was made or not.
If these conclusions are justified by the
authorities to which I have referred, then it would seem to follow that the
rule based on public policy which has been enforced against military servants
of the Crown, and which prevents such servants suing the Crown for their pay on
the assumption that their only claim is on the bounty of the Crown and not for
a contractual debt, must equally apply to every public servant. It also follows
that this qualification must be read, as an implied condition, into every
contract between the Crown and a public servant, with the effect that, in terms
of their contract, they have no right to their remuneration which can be (1)
[1926] S. C. 842.
795 enforced in a civil court of justice, and
that their only remedy under their contract lies in an appeal of an official or
political kind'." The observations made in Mulvenna v. The Admiralty(1),
which is a Scottish case, could not have been made if in the law of that
country there were provisions similar to the provisions made in various
sections of the Code of Civil Procedure referred to by the Federal Court in
Tara Chand Pandit's case(2). It was further urged that the same view was taken
by Pilcher J. inLucas v. Lucas and the High Commissioner for India(a).There the
question for consideration was whether the sterling overseas pay of an Indian
civil servant was a debt owing and accruing within the meaning of rule 1 of
Order XLV of the Rules of the Supreme Court and which could be attached in
satisfaction of an order for the payment of alimony. The real point for
decision in that case was whether the whole or any portion of the salary of a
member of the Indian Civil Service was liable to attachment in England in
satisfaction of the judgment debt. It appears that the attention of the learned
Judge was not invited to the provisions of section 60 and other relevant
provisions of the Code of Civil Procedure and the learned Judge applied the
dictum of Lord Blackburn in Mulvenna v. The Admiralty( 1 ), to the case of a
civil servant from India. As the application was made in England and the Civil
Procedure Code did not apply there, the provisions of the Code were not noticed
in that case. We are therefore of the opinion that the rule laid down by their
Lordships of the Privy Council in 1. M. Lall's case(4), without a consideration
of the provisions of the Code of Civil Procedure relevant to the inquiry and
without a consideration of the reasoning of the Federal Court in Tara Chand
Pandit's case(2), cannot be treated, particularly because the matter was not
directly involved in the suit, as the final word on the subject. We are in no
way bound by the decision given either in Tara Chand Pandits case(2 ), or by
the (1) [1926] S.C. 843. (3) [1943] P. 68.
(2) [1947] F. C.R. 89. (4) 75 I.A. 225.
796 decision given by the Privy Council in I.
M. Lall's case (1). But on a consideration of the reasons given in the two
judgments we think that the rule of English law that a,civil servant cannot
maintain a suit against the State or against the Crown for the recovery of
arrears of salary does not prevail in this country and that it has been
negatived by the provisions of the statute law in India.
Reliance was also placed by the learned
Solicitor- General on the decision of the Federal Court in Suraj Norgin Anand
v. North West Frontier Province(2). In that case Suraj Narain having been
appointed a Sub-Inspector of Police posted in the North West Frontier Province
by the Inspector-General of Police of the Province was subsequently dismissed
by the Deputy Inspector-General of Police. Failing to get relief-by
departmental proceedings he instituted a suit in the Court of the Senior
Subordinate Judge, Peshawar. The subordinate judge dismissed the suit as being
unsustainable. This decision was upheld by the Court of the Judicial
Commissioner. The Federal Court held that the Courts below were not justified
in dismissing the suit, that the plaintiff was at least entitled to a
declaration that the order of dismissal passed against him was void. That court
accordingly set aside the decree of the Judicial Commissioner and remitted the
case with a declaration that there shall be substituted for the decree appealed
against a declaration in the terms above stated, with such further directions
as the circumstances of the case may require in the light of the observations
of their judgment. The Province appealed to the Privy Council against the
decision of the Federal Court. It was held by the Board in the first instance
allowing the appeal of the North West Frontier 'Province and reversing the
decision of the Federal Court of India, that the North West Frontier Province
Police Rules, 1937, had become operative in 1938 at some date before April 25,
1938, when the respondent was dismissed, and that rule 16 (1)was a valid rule
made under the authority conferred on the (1) 75 I.A. 225.
(2) [1941] F.C.R. 37.
797 appellant by section 243 of the
Government of India Act, 1935, and that the respondent's suit was rightly
dismissed, but subsequently on the petition of the respondent asking the Board
to reconsider' their decision on the ground that it had been ascertained that
the Police Rules of 1937 were in fact printed and published on April 29, 1938,
that was, four days after the date of his dismissal, the Board heard the appeal
further, when the respondent's allegation was admitted and, :applying the
reasoning in their previously delivered judgment, the Board reversed their
former decision and affirmed the judgment of the Federal Court which had held
that' the respondent's dismissal was void and :inoperative. During the
arguments before the Privy ,Council reference was made to section 60 of the
Code of-Civil Procedure and to the decision of the Federal 'Court in Tara Chand
Pandit's case(1), and it was also noticed that following on the remit of the
case to the Judicial. Commissioner by the order of the Federal Court, dated
December 4, 1941, the respondent had ,obtained a decree for payment of Rs.
2,283 against the appellant in respect of arrears of pay from the date of
dismissal to the institution of the suit. When the appeal came before the Board
for further hearing their Lordships on the 6th August, 1948, caused a letter to
'be addressed to the solicitor representing the appellant, informing him that
their Lordships now proposed 'humbly to advise His Majesty that the appeal
should 'be dismissed, and stating that the order as to costs would not be
varied. The letter pointed out that if this :advice were tendered, and if His
Majesty were pleased to accept it, the effect would be that the declaratory
'judgment of the Federal Court would stand. Finally, 'the letter referred to
the award of Rs. 2,283 to the respondent by the Court of the Judicial
Commissioner 'which, according to a submission made by the appellant's counsel,
was open to challenge, and inquired whether the appellant wished to have an
opportunity ,of satisfying their Lordships that the point was open, and of
being heard on it. By their Lordships' direction a copy of this letter was sent
to the respondent.
(1)[1947] F.C.R. 89.
798 An intimation was received by the Privy
Council that the appellant did not wish to offer any further arguments on the
case. The respondent also did not desire an opportunity of arguing that
he-should now be awarded arrears of pay from the date of the institution of the
suit onwards. In these circumstances the Board refused to deal further with the
matter and advised His Majesty that the declaratory judgment of the Federal
Court be restored and proceeded to observe that it would be open to the
respondent to pursue any remedy which flows from that declaratory judgment in
an appropriate court. Their Lordships concluded the judgment with the following
observations :- "Their Lordships must not be understood, however, as
expressing an opinion that the respondent was entitled as of right to recover
the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a
further sum in respect of arrears of pay. It is unnecessary, owing to the very
proper attitude of the appellant, to express any view as to the former
question, and the latter question does not arise in this appeal which is from
the decision of the Federal Court. If that decision is affirmed the respondent
who did not himself enter an appeal, cannot now ask for anything more." It
is thus clear that in express terms in this decision their Lordships declined
to give any opinion on the question whether the respondent was entitled as of
right to recover arrears of pay awarded to him by the" Judicial
Commissioner, in spite of the circumstance that their attention had been drawn
to the decision of the Federal Court in Tara Chand Pandit's case(1). This
decision therefore cannot be said to support the view contended for by the
learned Solicitor-General. On the other hand, it must be assumed that in spite
of their decision in 1. M. Lall's case(1), their Lordships in this case, the judgment
in which was delivered subsequent to the decision in 1. M. Lalls case(2), on
November 4, 1948, did not reaffirm the propositions (1) [1947] F.C.R. 89.
(2) 75 I.A. 225.
799 laid down in that case but preferred to
express no opinion on the point.
It was suggested that the true view to take
is that when the statute says that the office is to be held at pleasure, it
means "at pleasure", and no-rules or regulations can alter or modify
that; nor can section 60 of the Code of Civil Procedure, enacted by a
subordinate legislature be used to construe an Act of a superior legislature.
It was further suggested that some meaning must be given to the words
"holds office during His Majesty's pleasure" as these words cannot be
ignored and that they bear the meaning given to them by the Privy Council in 1.
M. Lall's case (1).
In our judgment, these suggestions are based
on a misconception of the scope of this expression. The expression concerns
itself with the tenure of office of the civil servant and it is not implicit in
it that a civil servant serves the Crown ex grati or that his salary is in the
nature of a bounty. It has again no relation or connection with the question
whether an action can be filed to recover arrears of salary against the Crown.
The origin of the two rules is different and they operate on two different
fields.
The rule that a civil servant holds office at
the pleasure of the Crown has its origin in the latin phrase" durante bene
placito" ("during pleasure") meaning that the tenure of office
of a civil servant, except where it is otherwise provided by statute, can be
terminated at any time without cause assigned. The true scope and effect of
this expression is that even if a special contract has been made with the civil
servant the Crown is not bound thereby. In other words, civil servants are
liable to dismissal without notice and there is no right of action for wrongful
dismissal, that is, that they cannot claim damages for premature termination of
their services.
[See Fraser's Constitutional Law, page 126;
Chalmer's Constitutional Law, page 186; Shenton v. Smith (2); Dunn v.
The Queen(3) ].
This rule of English law has not been fully
adopted in section 240. Section 240 itself places restrictions (1) 75 I.A. 225.
(2) [1895] A.C. 229, 234. (3) [1896] Q.B. 116.
800 and limitations on the exercise of that
pleasure and those restrictions must be given effect to. They are imperative
and mandatory. It follows therefore that whenever there is a breach of
restrictions imposed by the statute by the Government or the Crown the matter
is justiciable and the party aggrieved is entitled to suitable relief at the
hands of the court. As pointed out earlier in this judgment, there is no
warrant for the proposition that the relief must be limited to the declaration
and cannot go beyond it. To the extent that the rule that Government servants
hold office during pleasure has been departed from by the statute, the
Government servants are entitled to relief like any other person under the
ordinary law, and that relief therefore must be regulated by the Code of Civil
Procedure.
Section 292 of the Government of India Act,
1935, provides that the law in force in British India immediately before the
commencement of the Act shall continue in force until altered, repealed or
amended by a competent legislature. Sections 100 to 104 of the Government of
India Act. 1935, confer legislative powers on the different legislatures in the
country. Item 4 of the concurrent list in the Seventh Schedule reads thus:
"Civil Procedure and all matters included in the Code of Civil Procedure,
at the date of the passing of this Act." It is clear therefore that the
Indian Legislatures were conferred by the Government of India Act, 1935, power
to regulate the procedure in regard to actions against the Grown and to make
provision for reliefs that could be granted in such actions. These provisions
of the Government of India Act, 1935, stand by themselves independently of what
is contained in section 240,and therefore no question arises that section 60 of
the Code of Civil Procedure which has the sanction of the Government of India
Act, 1935, itself is in status lower than the rule laid down in section 240.
The rules of English law that the Grown
cannot be sued by a civil servant for money or salary or for compensation has
its origin in the feudal theory that the Crown cannot be sued by its vassals or
subjects in its 801 own courts. From this theory the common law lawyers in
England deduced two rules, namely, (1) that the King can do no wrong, and (2)
that as a matter of procedure no action can lie in the King's courts against
the Crown. (See Ridge's Constitutional Law, eighth edition, page 295, and
Fraser's Constitutional Law, page 164). The subject, in this situation, could
only proceed by way of a petition of right which required the previous
permission of the Crown.
Permission was given by a fiat justitia
issued by the Crown. It was not in practice refused to a petitioner who had any
shadow of a claim, so that probably the disadvantages of this form of procedure
were more theoretical that substantial. Petitions of right and various other
special forms of English procedure applicable exclusively to actions by and
against the Crown were abolished by the Crown Proceedings Act, 1947, which provides
that in future claims against the Crown might be enforced as of right and
without the fiat of His Majesty, and that they should be enforceable by
ordinary procedure in accordance with the rules of the High Court or the County
Court as the case might be. Arrears of salary were being actually recovered by
the procedure of petition of right in England. '[See Bush v. R. (1)]- There the
judgment resulted in favour of the suppliant.
The claim was in respect of the amount of
salary due to him as Master of the Court of Queen's Bench in Ireland.
(Robertson's Civil Proceedings by or against
the Crown, page 338).
In India, from the earliest times, the mode
of procedure to proceed against the Crown has been laid down in the Code of
Civil Procedure and the procedure of petition of right was never adopted in
this country, and the same seems to have been the rule in Australia and other
Colonies.
Section 56 of the Judiciary Act, 1903,
relating to the Commonwealth of Australia provides:
"Any person making any claim against the
Commonwealth, whether in contract or in tort, may respect of the claim bring a
suit against the (1) [1869] Times News, May 29.
802 Commonwealth in the High Court or in the
Supreme Court of the State in which the claim arose." Under the New South
Wales Act, 39 Vict. No. 38, the Government of the Colony is liable to be sued
in an action of tort as well as in contract. Section 65 of the Government of
India Act, 1858, conferred the right of suit against the Government. It
provided that "all persons and bodies politic shall and may have and take
the same suits, remedies and proceedings legal and equitable, against the
Secretary of State in Council of India as they could have done against the said
company" (the East India Company).
This was replaced by section 32 of the
Government of India Act, 1915. Sub-section (2) of that section ran as follows
:-- "Every person shall have the same remedies against the Secretary of
State in Council as he might have had against the East India Company if the
Government of India Act, 1858, and this Act had not been passed." This was
replaced by section 176(1)of the Government of India Act, 1935, which
substantially reproduced these provisions. From these provisions it is clear
that the Crown in India was liable to be sued in respect of acts, which in
England could be enforced only by a petition of right. As regards torts of its
servants in exercise of sovereign powers, the company was not, and the Crown in
India was not, liable unless the act had been ordered or ratified by it. Be
that as it may, that rule has no application to the case of arrears of salary
earned by a public servant for the period that he was actually in office. The
present claim is not based on tort but is based on quantum meruit or contract
and the court is entitled to give relief to him. The Code of Civil Procedure
from 1859 right up to 1908 has prescribed 'the procedure for all kinds of suits
and section 60 and the provision of Order XXI substantially stand the same as
they were in 1859 and those provisions have received recognition in all the
Government of India Acts that have been passed since the year 1858. The salary
of its civil servants in the 803 hands of the Crown has been made subject to
the writ of civil court. It can be seized in execution of a decree attached. It
is thus difficult to see on what grounds the claim that the Crown cannot be
sued for arrears of salary directly by the civil servant, though his creditor
can take it, can be based or sub stained. What could be claimed in England by a
petition of right can be claimed in this country by ordinary process.
For the reasons given above we are of the
opinion that this appeal is without force and we accordingly dismiss it with,
costs.
Appeal dismissed.
Agent for the appellant: R.H. Dhebar.
Agent for the respondent: S.P. Varma.
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