JUDGMENT <NAME>, <NAME>

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 <ORG>d. In O.S. No. 1 of 1931 the appellant brought a suit against the Secretary of <ORG> for India in <ORG>, 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 The result of this was that his pension was withdrawn. His case was and is that under Rule 351 of the Civil Service Rules a pension can be withdrawn only if the pensioner bas been guilty of misconduct subsequent to his retirement.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. <ORG>, 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 <ORG> to delegate in their turn the disciplinary powers under Rule 13 to any subordinate authority and that in the exercise of the delegated power <ORG> 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 <ORG>, upheld.

2. In this case as well as in the other case the question whether a person in the civil service of the <ORG> in India can sue the Secretary of <ORG> for damages for wrongful dismissal was elaborately argued and in both oases <NAME>, 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 <ORG> District, Mr. <NAME>, 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 7th September. On 31st August Mr. <NAME> had taken charge as District Superintendent and on 7th September the plaintiff applied to Mr. <NAME> to be sent before the District Medical Officer with a view to his being invalidated out of the service. Mr. <NAME> sent this application on to Mr. <NAME> recommending that the request should be granted. Two days later, Mr. <NAME> and Mr. <NAME> at <ORG> discussed the plaintiff's case and went through all the evidence against him. Mr. <NAME>'s opinion however did not coincide with that of Mr. <NAME> 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 14th September the plaintiff renewed his request and on 16th 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. <NAME>. On 2nd October, Mr. <NAME> 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. <NAME> without any authority from him. Mr. <NAME> 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. <NAME>, J., has accepted Mr. <NAME>'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. <NAME> was succeeded by another District Superintendent of Police, Mr. <NAME>, which was after the plaintiff had been invalidated and granted a pension. When Mr. <NAME> saw Mr. <NAME>'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 <NAME>, J., was therefore whether Mr. <NAME> 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. <NAME>, J., was of the opinion that Mr. <NAME> 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. <NAME> and Mr. <NAME> 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. <NAME>'s minute. On this, <NAME>, J., as before stated, held that Mr. <NAME> had found the charges not to have been sufficiently established to justify the plaintiff's dismissal and that Mr. <NAME> was the proper and competent authority to coma to that finding. The plaintiff, as a result of <NAME>, J.'s finding, asked for a declaration that he had been wrongly dismissed. <NAME>, 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 <NAME>, 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.

4. As regards both the claim for a declaration and for damages for wrongful dismissal, he held that such a suit did not lie against the Secretary of <ORG>, he having come to a similar conclusion in the other suit in which the relief sought was merely damages for wrongful dismissal.

5. I propose, first of all, to deal with the question of whether the appellant's contention is right that he can only be dismissed by the authority by which he was appointed and not by any authority subordinate to that. This contention is founded upon a construction of Section 96-B(1) and the appellant contends that no power is given in that sub-section to delegate the power of dismissal to any authority subordinate to that which makes the appointment and invites us to say that the opening words of the section, namely, subject to the provisions of this Act and of rules made thereunder" only apply to the earlier half of that sub-section and not the latter. If that construction of the section is correct, then it was not competent to make any rules thus delegating the power of dismissal. I am unable to accept the appellant's contention with regard to this because, in my opinion, the words "subject to the provisions of this Act and of rules made thereunder," refer to the whole section and not only a part of it. If that is so, the Secretary of <ORG> under Sub-section (2) could make rules regulating the conditions of service and discipline and conduct of the civil servants to whom the Act applies. That sub-section expressly provides that rules may be made delegating the power of making rules to Local Governments. Such rules have been made and in the exercise of the delegated powers <ORG> has given the Deputy Inspector-General of Police the right to dismiss officers of the appellant's rank.

6. The next question to be considered is whether Waller, J., was right in bolding that the charges against the appellant had been disposed of by a competent authority previous to the grant of an invalid pension to the plaintiff. In the sense that no final order was passed by Mr. <NAME> on Mr. <NAME>'s minute the charges had not been disposed of; but, in my opinion, it is necessary to see what Mr. <NAME>'s decision would have been, had the minute been put before him instead of being laid on one side by the Manager or the camp clerk until after the appellant had retired on an invalid pension. I think that it is quite clear that Mr. <NAME> considered that such of the charges which, in his opinion, had been proved against the appellant would not justify dismissal and that he thought it would be better to invalid the plaintiff. But it is evident also that he regarded the latter as an alternative to awarding some punishment of a lesser nature than dismissal. Mr. <NAME>, therefore decided to await the result of the medical examination. If that resulted in the appellant being granted an invalid pension, then he intended to drop the disciplinary proceedings. Mr. <NAME> was admittedly competent to dispose of the disciplinary proceedings; and, after the grant of the invalid pension, had Mr. <NAME>'s minute been put before him, he would obviously have disposed of it by an order discontinuing those proceedings; but Mr. <NAME>'s minute unfortunately was not put before him.

7. In my view this cannot really alter the position as the result, so far as Mr. <NAME> was concerned, of the grant of the invalid pension was to render further disciplinary proceedings unnecessary. I do not altogether agree with <NAME>, <ORG>'s view that all the charges were dropped by Mr. <NAME> as a result of his decision before he sent the plaintiff to the doctor because I do not think that the evidence justified that view which, as I have already stated, shows that the invaliding of the appellant out of the service was an alternative proceeding with some of the charges against him. I do not think that it is right therefore to say that those charges were not kept pending by Mr. <NAME> in order to see what the result of the medical, examination would be. I am satisfied that he intended to deal with those charges and award the suitable punishment short of dismissal if the medical examination did not result in the retirement of the appellant on an invalid pension. But nevertheless I arrived at the same conclusion as that reached by <NAME>, <ORG>., namely that the charges were dropped as the. result of the medical certificate although no orders were passed with regard to them. It was further contended by the learned Advocate General that Mr. <NAME> had no authority to act in this manner, that is to say, to give the appellant the alternative of getting out of the service in this way in order to avoid a decision in the disciplinary proceedings; but he was unable to quote any rule showing the contrary; and whilst I fully agree that it is undesirable that such a method of disposal of pending charges of misconduct should be adopted, there is nothing, in my view, to prohibit it.

8. The result is that I argee with <ORG> finding that the appellant was dismissed and deprived of his pension on charges that had already been found by a competent authority not to have been sufficiently established to justify his dismissal; and the appellant therefore ought not to have been dismissed as Rule 351, Civil Service Rules, only enables a pension to be withdrawn if the pensioner had been guilty of misconduct subsequent to his retirement. The respondent's action therefore was irregular. That being so, the appellant asks for a declaration that he has been wrongfully dismissed and for damages. With regard to the former relief, I am satisfied that the appellant is not entitled to it. What is the real remedy for which the appellant sues? I agree with <NAME>, J, that the appellant's real object is to get himself restored to the position in which he was before he was dismissed, in other words, to become a pensioner once more; and this observation must also apply to the claim for damages which is for his pension in another shape.

9. It cannot be supposed for a moment that the declaration sought for, would ha used for any purpose by the appellant other than to influence Government to restore to him his pension. Before us Mr. <NAME> stated that the appellant did not intend to use the declaration in that way. He suggested that he would use it for the purpose of trying to influence the Government to make him an ex gratia payment; and at the same time he conceded that on such a basis the declaration could not be made effective by any process of law. This concession seems to me at once to dispose of the appellant's claim for that relief as Courts have always been adverse to granting declarations which may end in a futility.

10. Much reliance however was placed by the. appellant upon <NAME>'s case, viz., 22 Mini 270 <CITATION> (1899) 22 Mad. 270, a decision of <ORG>. There the Collector of Madura had made a separate registration of a certain village belonging to the appellant in that case which was formerly a part of a zamindari. <ORG> however directed the Collector to cancel that separate registration and the appellant sued for a declaration that the Government's order cancelling the Collector's order was invalid; and it was held that this declaration should be decreed, and that no further relief could have been required by the plaintiff, the effect of the declaration being sufficient to maintain the Collector's original order which was valid in law whilst the Government's order directing its cancellation was not legal and was void. In the coarse of the judgment of their Lordships of <ORG> which was delivered by Lord <NAME> it is said that it was at least open to doubt whether that suit was within the purview of Section 42 , Specific Relief Act , and that there could be no doubt as to the origin and purpose of that section which was intended to introduce the provisions of Section 50 , Chancery Procedure Act of 1852 as interpreted by Judicial decision and that before that Act it was not the practice of the <ORG> in ordinary suits to take a declaration of right except as introductory to relief which it proceeded to administer. And on p. 282 in the judgment it is stated, But the present suit is one to which DO objection could have been taken before the Act of 1852. It is, in substance, a suit to have the true construction of a statute declared and to have an act done in contravention of the statute, rightly understood, pronounced void and of no effect. That is not the sort of declaratory decree which the trainers of the Act had in their mind. But even assuming that the Specific Belief Act applies to such a suit as this, what in the result? What further relief can be required? If the so-called cancellation is pronounced void, the order of the Government falls to the ground and the decision of the Collector stands good and operative as from the date on which it was made;

and on p. 283 it is stated:

What remedy would the appellant have if he had omitted to ask for specific relief against the Collector? It is highly improbable that any officer of Government would set the <ORG> at defiance. It is impossible to suppose that the Government would countenance such conduct as that. But the remedy in such a ease, if it did occur, would be simple enough. Every order such as that which the appellant asks for carries with it liberty to apply. On a proper application and on proper notice being given, it would be found that the arm of the <ORG> would be long enough to reach the offender whatever his position might be.

11. That is certainly not the position here. As already stated, the appellant does not intend to enforce the declaration by any process of law and the declaration is not of any real value to him unless it can be enforced against Government. The declaration asked for is that the appellant was not liable to he removed from service subsequent to his retirement. The appellant says that he does not want any order from the <ORG> consequent upon that declaration. It is therefore a futility so far as the <ORG> is concerned; and <NAME> v. <ORG> <ORG> (1921) 1 K.B. 187 which was also relied upon is of no real assistance to the appellant. That was an exceptional case which had arisen during the war and in consequence of the exceptional conditions caused by the war; and in granting the declaration asked for, it was said by the Earl of Beading, C.J., that the High <ORG> ought to pronounce a decision "which will set at rest a controversy arising in consequence of the Government's occupation of the railways." The facts in that case were that certain land below low water mark was reclaimed from the sea by a, <ORG> under the powers of a Special Act for the purpose of making a railway station on it. By the terms of the Special Act the <ORG> was required to grant a lease of the reclaimed land to the defendants.

12. Upon the outbreak of the war in 1914 and before any leave was granted to the defendants, the <ORG> took possession of the reclaimed land and were ready to make a payment in lieu of rates to the overseers of the poor of the adjoining pariah if certified that the land was of that parish. In 1917, while the <ORG> were still in possession of the land, the then overseers of the adjoining pariah brought an action in <ORG> against the defendants claiming a declaration that the reclaimed land was part of that parish for nil civil and parochial purposes within the meaning of Section 27 , Poor Law Amendment Act, 1868. <ORG> objected to make the contribution until the question of whether the reclaimed land was extra-parochial or not was decided and suggestion early decision. Such a decision, it is apparent, could have obtained in no other way than by the suit under appeal in that case and the remedy by way of a declaration sought for in that appeal because the rating machinery could not be used as <ORG> was not rateable and the railway company was not in beneficial occupation. In my view that was an extreme case. On the other hand, if the Court is to give a declaration to which lit can give effect it can only be that the order of dismissal of the appellant is void (and that is what the appellant says in para. 12 of his plaint). This means that he is entitled to have his pension restored to him. That remedy in my view would be clearly barred by Section 6 , Pensions Act , which prohibits Courts of law from making any order or decree" by which the liability of <ORG> to pay any such pension or grant as aforesaid is affected directly or indirectly." Clearly <ORG>'s liability would by such a declaration be directly affected; and even if the declaration is intended to be used to influence <ORG> to restore the pension to the appellant, it would, in my opinion, rightly be described as indirectly affecting the liability of <ORG> to do so. As regards the claim for damages it is conceded by the appellant that these could be exceedingly difficult to assess; and certainly, if these were to take the shape of so many years' pension, this again would be barred by Section 6 , Pensions Act , and I can see no other basis of assessment. The alternatives seem to me either the restoration of the pension or in lieu thereof so many years' pension capitalised.

13. I next address myself to the very important question which arises mainly in O.S.A. No. 18 of 1931. In that case the plaintiff appellant was employed in <ORG>, Madras, as a reader. He was alleged to have been implicated in the leakage of pleadership examination papers; and his immediate superior, the Superintendent of <ORG>, dismissed him from service. He appealed to the <ORG> against that order of dismissal but his appeal was rejected. <NAME>, J., held that the procedure proscribed by Rule 14 of the Rules under Section 96-B(2) , <ORG> of India Act, was not followed and that therefore there had been no proper enquiry. The appellant therefore claimed that he had been wrongfully dismissed from <ORG> service and asked for damages for that wrongful dismissal. The question as to whether there was a wrongful dismissal, and if so, whether a suit for damages for wrongful dismissal against the Secretary of <ORG> for India is maintainable was elaborately argued by Mr. <NAME> and also by Mr. <NAME>. In the course of the former's argument, in my opinion, the crucial question in the case, namely, what was the appellant's tenure of service under the <ORG>, became obscured by learned arguments upon issues really extraneous to it. It seems to me that the only question is whether the appellant held his appointment at the pleasure of the <ORG>. If yes, then it is clear that the Secretary of <ORG> cannot be sued for damages for breach of contract for dismissing a servant who holds his appointment or office under such a tenure because the contract of service being at the pleasure of the <ORG> has not been broken by such dismissal. But it is also contended that, if as in this case, there are rules made under the Act and therefore statutory rules, which have to be observed before a person in the Civil Service of the <ORG> is dismissed, then a breach of those rules will give the right to a suit and in this connexion a number of cases dealing with the question of a breach of statutory rules or powers were referred to such as amongst others : see <CITATION> 1919 Bom. 30 and <NAME> of Baroda v. Gandhi Kacharabhai (1913) 27 Bom. 344.

14. These cases, in my opinion, have no bearing on this suit which is a suit for damages for wrongful dismissal, that is to say, for a breach of contract. This is not a suit for breach of a statutory rule but purely one relating to a contract of employment in which the question is what the contract of service between the parties was and no other. There are certain sections of the Government of India Act of 1919 and rules made thereunder to be considered in this connexion and the effect of one of them, viz., Section 32(2) was considered by <ORG> That reads as follows:

Every person shall have the same remedies against the Secretary of <ORG> in <ORG> as he might have had against <ORG> if the Government of India Act of 1858 and this Act had not been passed.

15. This means that, if the plaintiff could |have brought a similar suit against <ORG> before the year 1858, he would be entitled to bring this suit. I do not propose to go into the numerous authorities bearing upon this aspect of the case - I mention only one of them, namely <CITATION> 1915 Mad. 993, and it is sufficient to say that these clearly show that <ORG> could only have been sued in its capacity of a trading corporation and that it could not have been sued for acts of state or sovereignty and, although the dismissal of a servant of the <ORG> may not perhaps strictly speaking be described as an act of <ORG>, it can certainly be more properly put in the class of acts of sovereignty rather than in the class of cases embraced by transactions carried on by private individuals and trading corporations, as the control of the departments of state must be in the exercise of certain sovereign rights. That, in my view, is a section which is a complete bar to both the suits under appeal. But when the contract between the appellant and the <ORG> here is examined - and it is Section 96-B(1) of the same Act - I am satisfied that the appellant's suit is not maintainable. That section states that every person in the civil service of the <ORG> in India holds office during His Majesty's pleasure. It is however argued on behalf of the appellant that His Majesty's pleasure is qualified by the opening words of the sub section, namely, subject to the provisions of this Act and of the rules made thereunder, and that the rules made thereunder place a limitation upon the exercise of the otherwise unlimited pleasure in the <ORG> because when the dismissal, removal or reduction of any officer is ordered, the order must be preceded by a properly recorded departmental enquiry resulting in a finding upon all the charges preferred against the officer. The relevant rules are Rules 13, 14, 15 and 16. By Rule 13, <ORG> may, for good and sufficient reasons, amongst other things, remove or dismiss any officer holding a post in a provincial or subordinate service or a special appointment. Rule 14 sets out the procedure to be followed in cases of dismissal, removal or reduction and provides that there shall be a properly recorded departmental enquiry before the order of dismissal is made and also sets out the procedure to be followed at the enquiry. Rule 15 provides for the delegation of the powers conferred by Rule 13 to any subordinate authority and Rule 16 gives a right of appeal to every officer against whom an order may be passed under Rules 13 and 15. It is contended for the appellant that Rules 13 and 14 limit the power of the <ORG> to dismiss at pleasure and in support of this argument a decision of <ORG>, namely in <NAME> v. <NAME> (1896) A.C. 575, is relied on. In that case the plaintiff, who was the respondent in the appeal, was in the service of <ORG> under and in accordance with the provisions of the Civil Service Act of 1884 of that Colony.

16. In Part 3 of the Act there were certain disciplinary regulations governing the dismissal of the servant and laying down the procedure to be adopted prior to any order of dismissal. The plaint-tiff alleged and it was common ground that before his service had been determined in the manner prescribed by the Act, the Government dismissed him and he accordingly brought a suit for damages for wrongful dismissal against the appellant. It is clear that the procedure prescribed by the Act was not followed by the Government but it was argued on their behalf that the rule was that civil servants of the <ORG> held office only during pleasure, that the Act did not either expressly or by implication change the nature of the Civil Servants' tenure of office and that the disciplinary regulations in Part 3 of the Act to which reference has already been made were not inconsistent with the continuation of the general common law rule as to tenure. It was held that the <ORG> had by law whether in England or new South Wales power to dismiss at pleasure either a civil or military officer, a condition to that effect being an implied term of the contract of service except where it was otherwise expressly provided; but that as the provisions in Part 3 of the Act were manifestly intended for the protection and benefit of the officer they were inconsistent with such condition and that consequently the power of the <ORG> to dismiss at pleasure was restricted in that respect. There is, however, the all important distinction between that case and this, namely that in this case Section 96-B(1) , Government of India Act, does expressly state that the tenure is at the pleasure of the <ORG> whereas in the former case there was no such express enactment and that being so, in the face of the provisions in Part 3 which were inconsistent with any such tenure, there could not be imported by implication into the contract of service the term that the <ORG> may put an end to it at its pleasure; and with great respect to another decision relied upon by the appellant, namely <NAME> v. Secretary of State 1929 Rang. 207, I think that <NAME>, J., who decided that case and relied upon <NAME> v. <NAME> (1896) A.C. 575 misapprehended the grounds for that decision. <NAME>, J., in <CITATION> for the Indian Musuem 1930 Cal. 404, in my view, correctly interprets the decision in <NAME> v. <NAME> (1896) A.C. 575. It seems to me that the tenure of the officer is either at pleasure or some higher tenure; and if the contention of the appellant is correct, then Section 96-B(1) whilst expressly stating that the tenure is at the pleasure of the <ORG> in the same section makes a provision for rules which alter that tenure into one of good behaviour because Rule 13 and the procedure laid down in Rule 14 clearly relate only to the conduct of the officer. Mr. <NAME> does not concede this latter alternative but is unable to say what the tenure of the officer is except that it is at the pleasure of the <ORG>, the exercise of which is limited by rules laying down that he cannot be dismissed except for proved misconduct. With all respect to that argument, I am unable to distinguish the latter tenure from one of good behaviour; and the legislature cannot have intended in the same section to provide for such an obvious inconsistency as is contended for by the appellant. In my opinion, the tenure of a civil servant under the <ORG> in India is, as is stated, one at the pleasure of the <ORG> and that the rules referred to in no way abrogate that right. Rule 14 merely lays down the procedure to be followed and is in fact headed "Procedure in oases of Dismissal, Removal or Reduction." In <NAME> v. <NAME> (1895) A.C. 229, where it was held that a Colonial Government was on the same footing as <ORG> as to the employment and dismissal of servants of the <ORG> and that in the absence of special contract they held their offices during the pleasure of the <ORG> it was stated by Lord <NAME> on pp. 234 and 235:

They consider that unless in special oases where it is otherwise provided, servants of the <ORG> hold their offices during the pleasure of the <ORG>; not by virtue of any special prerogative of the <ORG>, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a law suit but by an appeal of an official or political kind.

and as regards the regulations:

As for the regulations, their Lordships again agree that they are merely directions given by the <ORG> to the Governments of <ORG> Colonies; for general guidance and that they do not constitute a contract between the <ORG> and ids servants. * * * They are alterable from time to time without any assent or: the part of Government servants, which could not be done if any were part of a contract with those servants;

and again:

The difficulty of dismissing servants whose continuance in office is detrimental to the <ORG>, would if it were necessary to prove some offence to the satisfaction of a jury, be such as seriously to impede the working of the public service. No authority, legit or constitutional, has been produced to countenance the doctrine that persons taking service with <ORG> to whom the regulations have been addressed, can insist upon holding office till removed according to the process thereby laid down. Any Government which departs from the regulations is amenable, not to the servant dismissed, but to its own official superiors, to whom it may be able to justify its action in any particular case.

17. Is it quite true that in that case their Lordships were dealing merely with regulations; hut this judgment is of importance because it defines what the contract between the civil servants and the <ORG> is; and applying the observations before referred to, I think that it cannot be said that <ORG> by its rules only has laid down the terms of service of the officer. As stated by Lord <NAME>, if the <ORG> at any time desires to alter the procedure provided in the rules, it can do so without the assent of the officer; and it cannot be argued therefore that the rules mace under Section 96-B(1) have any contractual force. If the rules are not followed or for any other reason a remedy is provided by Rule 16 by way of an appeal; and that is the only remedy provided and the appellant in O.S.A. 18 restored to this remedy. There is in addition to this, a further objection to the appellant's argument, namely, Section 25 , Public Servants (Enquiries) Act of 1850. The very rule relied upon by the appellant, namely, Rule 14 affords a complete answer to his contention. The opening! words of that rule are:

Without prejudice to the provisions of the Public Servants Inquiry Act of 1850.

18. Section 25 of that Act reads as follows:

Nothing in this Act shall be, construed to affect the authority of Government, for suspending or removing any public servant for any cause without any inquiry under this Act.

19. For the reasons stated in my view both the appeals must be dismissed with costs. We certify for two counsel. With regard to the memorandum of objections, with regard to the order as to costs passed by Waller, J., namely, in O.S. No. 650 of 1927 ordering that the costs should be borne by the defendant (respondent) and in C.S. No. 549 of 1929 ordering no costs, I see no reason whatever for interference. The memorandum of objections will therefore be dismissed without costs. The appellant in O.S.A. No. 18 of 1931 who appeals as a pauper will pay the court-fees to <ORG>.

Bardswell, J.

20. The appellant in O.S. Appeal No. 1 of 1931 was a Police Sub-Inspector. He was first discharged on an invalid pension, but was afterwards dismissed, with the consequence of his pension being withdrawn for misconduct prior to his discharge. There had bean an inquiry about his misconduct as to what happened of which there will be more to be said later. The appellant in O.S.A. No. 18 of 1931 was a Header in <ORG>, Madras, and was dismissed from service without any inquiry. The suit brought by the appellant in O.S. Appeal No. 18 of 1931 was for damages for wrongful dismissal. That filed by the other appellant was for a declaration that he was not liable to removal after his retirement and for damages. In both these appeals, which have been argued together, the question has to be decided whether the suits are maintainable as against the Secretary of <ORG>. By. Section 32(2) , Government of India Act of 1919:

21. <NAME>, J., has pointed out in the two suits under appeal that the company was not merely a trading corporation but also exercised sovereign powers. He has referred to <CITATION> (1903) 27 Bom. 189 and the cases referred to therein and has held that the effect of the authorities is that the company could only be sued for acts done by it in its capacity as a trading corporation but it could not be sued for acts of sovereignty. The dismissal of an officer in his view was an act of sovereignty and therefore he held that the suits under appeal could not lie. It has been pointed out in the course of arguments that this Bombay decision when it lays down that no action lies against the Secretary of <ORG> in respect of acts of <ORG> and acts of sovereignty goes too far. The same is the case with the decision in <CITATION> (1875) 1 Cal. 11 in which a decision of <ORG>, reported in Peninsular an <CITATION> (1868) 5 Bom. H.C.R. App. 1 has been conafcruedaa deciding more than it actually decided.

22. This has been shown by <NAME>, <NAME>, and <NAME> J., in Secy. of <ORG> for <CITATION> (1882) 5 Mad. 273, in which it was held that, where an act complained of is professedly done under the sanction of Municipal Law and in the exercise of power conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be done by a private individual does not oust the jurisdiction of the civil Court. <NAME>, J., as he then was, in <CITATION> 1915 Mad. 434 and <NAME>, <NAME>, in the leading judgment in Secy. of <ORG> v. Sree Govinda Chaudhari 1932 Cal. 834 have also in like manner shown what is the true effect of the decision of <ORG>. I do not think it necessary to go into any detailed examination of these cases as what has to be seen here is whether allowing that a suit can, in some circumstances, be brought against the Secretary of <ORG> in respect of acts done in exorcise of the powers of a sovereign, a suit can be brought against him in India by a public servant who has been dismissed, on the ground of the dismissal being wrongful.

23. There can be no doubt as to the dismissal of a public official being an act of sovereignty and normally, as held by <NAME>, C.J., in the case above cited, no remedy in tort lies against the Secretary of <ORG> for any act done by an officer of Government in exercise of powers which cannot be exercised save by the sovereign power. The suits under appeal however are not actions in tort but actions for damages for breach of contract, and there is no doubt but that proceedings may be taken against the <ORG> for breach of contract in some cases. Instances of such cases are to be found in <NAME> v. <NAME> (1875) 10 Q.B. 31, and <ORG> v. <NAME> and the Western Counties Rly Co. (1887) 11 A.C. 607. But neither of these cases had to do with the dismissal of a public servant. In England the power of the <ORG> to dismiss a public servant who holds an appointment at its pleasure is absolute. The position is thus stated in Vol. 6 of Halsbury's Laws of England (1932 Edition) at para. 782:

Except where it is otherwise provided by Statute, all public officers oil the <ORG> hold their appointments at the pleasure of the <ORG> and all, in general, are subject to dismissal at any time without cause assigned; nor will an action for wrongful dismissal be entertained, even though a special contract be proved.

24. It is however argued that, though normally in all parts of the British Dominions the <ORG> has the power to dismiss any of its officers at its pleasure, yet that power may be limited by statute in which case an action can be brought by any officer who has been dismissed contrary to the statutory provisions by which the power of dismissal has been restricted. The section of the Government of India, Act which has to be considered in this connexion is Section 96-B , the essential part of which for the purpose of these appeals runs as follows:

Subject to the provisions of this Act and of rules made thereunder, every person in <ORG> in India holds office during his Majesty's pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed.

25. The rules framed under this section which have to be looked into in connection with dismissals of public servants are Rules 13, 14, 15 and 16. Rule 13 lays down that, without prejudice to the provisions of any law for the time being in force, the local Government may for good and sufficient reasons...dismiss any Officer holding a post in a provincial or subordinate service....

Rule 15 allows Government to delegate to any subordinate authority, subject to such conditions as it may prescribe, any of the powers conferred by Rule 13 in regard to officers of the subordinate service. Rule 16 provides that every officer against whom an order may be passed under Rules 13 and 15 and who thinks himself wronged thereby shall be entitled to at least one appeal against such order. Rules 14 is as to the procedure in cases of dismissal, removal or reduction and runs thus:

Without prejudice to the provisions of the Public Servants (Enquiries) Act 1850 in all such cases in which the dismissal of any officer is ordered...the order shall except when it is based on facts or conclusions established at a judicial trial or when the officer concerned has absconded with the accusation hanging over him, be proceeded by a properly recorded departmental inquiry. At such an inquiry a definite charge in writing shall be framed in respect of each offence and explained to the accused, the evidence in support of it and any evidence which he may adduce in his defence shall be recorded in his presence and his defence shall be taken down in writing. Each of the charges framed shall be discussed and a finding shall be recorded on each charge.

26. In the case of the appellant in O.S.A. No. 18 of 1931 the procedure prescribed by this rule was not followed at all. In the case of the other appellant charges, were framed and an inquiry was made, but no order had been passed disposing of the casa by the time when he was granted his pension, which was an invalid pension. The circumstances, which led to his dismissal after he had been granted the pension, have been fully set out in my Lord's judgment and it is not necessary for me to state them again. I shall only deal on this part of the case with the point that has been taken on this appellant's behalf with reference to Section 96-B that though he had been appointed by an Inspector-General his dismissal was by a Deputy Inspector-General, an officer of a lower rank. This appellant, I would observe, has not chosen to appeal against the order of dismissal to the constituted authority, that is to the Inspector-General. The appellant in O.S. A. No. 18 of 1931 preferred an appeal which was dismissed.

27. The authority on which the appellants rely for their contention that the right of the <ORG> to dismiss its officers at its-pleasure can be restricted is <NAME> v. <NAME> (1896) A.C. 575. They rely further on some Indian decisions as showing that there-is such a restriction in British India under Section 96-B . In <NAME> v. <NAME> (1896) A.C. 575 there was an Act of New South Wales which prescribed the procedure to be followed in matters of discipline. It was held that the provisions as to this were-manifestly intended for the protection and benefit of the officer and were inconsistent with importing into the contract of service the term that the <ORG> might put an end to it at its pleasure. In the opinion of their Lordships of <ORG> this was an exceptional case, and it was held that an action would lie. This decision has been referred to in each case by a Single Judge, in two cases, the judgments in which are reported in <CITATION> 1927 Cal. 311 and <NAME> v. Secretary of <ORG> 1929 Rang. 207, respectively. In both these cases it was held that a dismissed Civil Servant had a cause of action if the procedure laid down by the rules was not followed. An important point that has not been noted in the Calcutta case is that the New South Wales Act contained no words to the effect that the tenure of an office was during His Majesty's pleasure. In <NAME> v. Secretary of <ORG> 1929 Rang. 207, however, the omission was noticed but still it was held that despite the fact that such words occurred in Section 96-B , it was clear that "subject to the provisions of this Act and the rules framed thereunder" indicated that certain formalities must be observed before a Civil Servant could be dismissed; and that in so far as those formalities were alleged not to have bean followed the plaintiff was not precluded from bringing an action. Another Single Judge, however, of <ORG> has in <CITATION> for the Indian Musuem 1930 Cal. 404 in which <NAME> v. <NAME> (1896) A.C. 575 is again referred to and discussed has distinguished <CITATION> 1927 Cal. 311 and taken the view that Section 96-B did not take away from the <ORG> the right to dismiss its Civil Servants at its pleasure which existed before its enactment : <CITATION> 1914 Cal. 746. With respect, I am of opinion that this is the correct view.

28. In <NAME> v. <NAME> (1895) A.C. 229 it was held by <ORG> that a Civil Servant in Western Australia held his office at the <ORG>'s pleasure and that there was no contract to the contrary because of certain regulations which constituted directions given by the <ORG> for the guidance of its officers. It was pointed out that the regulations were alterable from time to time without any assent on the part of Government servants, which could not be done if they were part of the contract with those servants. Those regulations, indeed, were not statutory, whereas the rules framed under Section 96-B are framed under a statute, but none the less they can be altered from time to time without reference to or consent from the officers concerned. But apart from that Rule 14 is specifically without prejudice to the provisions of the Public Servants (Enquiries) Act, 1850. I take this to mean that the Rule is governed by that Act. Section 25 of which says that:

Nothing in this Act shall be construed to affect the authority of the Government for suspending or removing any public servant without an enquiry under this Act.

29. When that is the case I find it impossible to say that the Government or the authority to whom it delegates its power in the matter, cannot with reference to Rule 14 dismiss its Civil Servants even without an enquiry. That the appellant in O.S.A. No. 18 of 1931 was doing work, as a reader in a press, which could have been done by a private person does not make him any the less a public servant or limit the right of Government to dismiss him at its pleasure. As to his remedy, one is provided for in the rules by way of appeal. The statutory rules give him no right of Suit, and the general rule is that DO remedy can be taken but the particular remedy prescribed by the statute. I agree with <ORG>, that this appellant had no right of action.

30. In the case of the appellant in O.S.A. No. 1 of 1931 it is part of the statute itself, that is, of Section 96-B , that an officer is not to be dismissed by an authority lower in rank than the authority which appointed him. The appellant was certainly dismissed by an officer lower in rank than the Inspector-General by whom he was appointed. There is now a rule giving a Deputy Inspector-General of Police the power to dismiss a Sub-Inspector as well as to appoint him, but it is argued that this rule, in so far as it allows an officer who has been appointed by an Inspector-General to be dismissed by a Deputy Inspector-General, overrides the provisions of the statute. The whole however of Section 96-B appears to me to be governed by its opening words "subject to the provisions of this Act and the rules made thereunder." This is the view that has been taken by <ORG>, as I think, correctly. Throughout the section no stop occurs bigger than a comma, and I do not see how these opening words can be applied to only one part of it and not to another. In my view, then the dismissal of the Sub-Inspector cannot on this ground be taken as contrary to the statute.

31. But it has been argued by Mr. <NAME> that the rules framed-under Section 96-B are as to disciplinary action to be taken against <ORG> servants who are still in service and that a man not in service cannot be dealt with under them. Equally it may be said that Section 96-B cannot apply in such circumstances. Accepting this as the position then the dismissal of the appellant cannot be considered from the point of view of its being a breach of contract with reference to that section. The dismissal has rather to be viewed as part of the order by which he has been deprived of his pension and it is from this point of view that it has to be considered. The damages prayed for, for the breach of contract set up can only be for the loss of pension. The prayer for declaration to the effect that the dismissal order was ultra vires and was-not valid under the rules has to be considered in the same connexion. This brings us to the provisions of Section 4 , Pensions Act 23 of 1871, by which, except in certain cases that do not apply here, no civil Court shall entertain any suit relating to any pension. It is now argued that this provision is ultra vires of the Legislative Authority of the <ORG> of India in that it extends the scope of Regn. 4 of 1831, and therefore is not in compliance with Section 32(2) , <ORG>, of India Act , whieh has already been quoted. Under Regn. 4 of 1831 <ORG> were prohibited from taking cognizance of any claim to personal grants of money conferred try the authority of the Governor-General in Council as a pension as also of any claim for the renewing or continuation of such a grant without a special authorization from a Secretary to <ORG>. There is, of course, no such authorisation here. It is argued that in respect of the prayer for a declaration which may affect a claim to a pension a suit was not barred by the 'Regulation' and therefore could not be bam d by the Act. The declaration, if granted, could not have the result of the pension being restored but it is asked for with the idea that it might, induce the <ORG> to reconsider their position and restore the pension or at least grant a gratuity.

32. I do not think that the contention that Section 4 is ultra vires has any force. Though the declaration may not be prayed or as one that will have the immediate or necessary consequence of the pension being restored or a gratuity being given, yet it is sought for in the hope of such a result ensuing indirectly and so, in my opinion, a suit for it would be covered by the prohibition against taking cognizance of a claim foe a pension or its recovery or continuation. The Act in my opinion only makes matters more explicit but does not add anything to the Regulation. Another objection to the granting of declaration is that such a relief will not be gratified unless it is intended and expected to be effective. The <ORG> decision in <CITATION> (1899) 22 Mad. 270, and that of this Court in <CITATION> 1933 Mad. 618 have been referred to as showing that a declaration can be given outside the scope of Section 42 , Specific Relief Act , but those cases do not help this appellant who wants the declaration on the mere chance that it may help him to get his pension back or at any rate, to get something. This appellant may have a grievance in that his pension has been taken away after it had been granted, for misconduct that had occurred before the grant had been made, which is contrary to Article 351 of the Civil Service Regulations. The charges, too, on which he was dismissed, though no orders were passed on them, were regarded by the District Superintendent of Police as no longer pending and it is argued that they should be regarded as having been disposed of by implication. I do not however think it necessary to go in detail, into these matters which have been fully dealt with by my Lord. It is to my mind clear that this appellant is, debarred by the Pensions Act , from bringing any suit that may affect his right to the pension. I agree that both these appeals should be dismissed with costs.

33. <NAME>, J. in C.S. No. 349 of 1929 which is appealed against in O.S.A. No. 1 of 1931 has ordered that each party was to bear its own costs as each had succeeded in part. It is clear from what has been stated above that the appellant in that appeal has been deprived of his pension in circumstances that were not regular. In the other suit it was ordered that the coats should be borne by the defendant, Secretary of <ORG>. Had there been a regular inquiry - and it is not now contended that; there was one though it was so contended at first - there would have been no suit. Admittedly there could have been no cause of action had the proceedings been regular. Both orders as to costs are therefore proper and I agree that the memoranda of objections must be both dismissed without costs. I agree that two counsel should be certified for in the two appeals taken together; and also that the appellant in O.S. Appeal No. 18 of 1931 who has appealed as a pauper should pay the <ORG>-fee to <ORG>.


JUDGMENT <NAME>, C.J.

1. <ORG>, Delhi, Bench "B", has referred the following question for the opinion of this court:

"Whether there was material on record in support of the <ORG>'s finding that the Commissioner had not given his reasons for his satisfaction that the order passed by the Income-tax Officer was prejudicial to the interests of the <ORG>? "

2. The assessee, M/s. Kashi Nath & Co., is a partnership firm. The firm was doing sarafa and pawning business. For the assessment year 1975-76, the Income-tax Officer determined its income at Rs. 77,599, There was no appeal to the Appellate Assistant Commissioner but the Commissioner of Income-tax in exercise of his power under Section 263 of the Income-tax Act set aside the assessment order and directed the . Income-tax Officer to redo the assessment. But the appeal against the said order of the Commissioner has been allowed by the <ORG>. The <ORG> has observed that the Commissioner has not given his reasons for his conclusion that the order of assessment was prejudicial to the interests of the <ORG>. In our opinion, the conclusion of the <ORG> is unassailable.

3. We may first refer to the order of the Commissioner. The preamble of the order states that the assessment order passed was erroneous and prejudicial to the interests of the <ORG> inasmuch as the Income-tax Officer while completing the assessment for 1975-76 did not make detailed enquiries in respect of various cash credits appearing in the names of different ladies. He further did not obtain necessary details about the interest income from pawning.

4. Para. 2 of the order refers to the notice issued by the Commissioner to the assessee and also the reply filed thereto. Para. 3 refers to the conclusion of the Commissioner's order and it reads :

"After considering the reply of the assessee, I am satisfied that <ORG> had framed the assessment without examining the details of the deposits appearing in various names. The assessee's argument that the provisions of Section 263(1) of the Income-tax Act, 1961, are not applicable is not correct. The order passed by <ORG> on July 22, 1975, for the assessment year 1975-76 is, therefore, set aside for being framed afresh according to law and after careful consideration of abovenoted matters.

Dated : 25-3-1977 Sd./- S. K. Lall, Commissioner of Income-tax, Lucknow. "

5. It will be seen from the above order that the Commissioner did not examine the various cash credits said to be appearing in the names of different ladies which were said to have escaped the attention of the Income-tax Officer. He only complained of the order of the Income-tax Officer for not examining the details of the credits appearing in various names. What those details required to be examined were have not been set out. There is thus absolutely no reason in support of the conclusion of the Commissioner that the assessment order was erroneous and prejudicial to the interests of the <ORG>.

6. The power of the Commissioner under Section 263 is quasi-judicial in character. He must give reasons in support of his conclusion that the assessment order is erroneous in so far as it is prejudicial to the interests of the <ORG>. If he does not give reasons, the order would be vitiated. This was the view taken by this court in the case of <CITATION>  111 ITR 326 (All) and CIT v.

Sunder Lal [1974] 96 ITR 310 (All).

7. In the instant case, since the Commissioner has not applied his mind to the relevant material on record and has not given reasons for his conclusions that the assessment order was prejudicial to the interest of the <ORG>, the <ORG> was justified in reversing that order.

8. In the result, we answer the question in the affirmative and against the <ORG>. In the circumstances, we make no order as to costs.