Judgement

Appeal (No. 105 of 1945), by special leave, from an order of the Federal Court of India (Spens C.J. and Zafrulla Khan J., Varadachariar J. dissenting) (May 4, 1945), which varied a decree of the High Court at Lahore (March 27, 1944).

The respondent, I. M. Lall, was a member of the Indian Civil Service. On August 10, 1940, the appellant (then the Secretary of State for India) made an order removing him from his office. On June 20, 1942 the respondent brought a suit against the appellant claiming a declaration that the appellants order was illegal and that the respondent was still a member of the Indian Civil Service. The High Court at Lahore granted the declaration. On appeal by the appellant to the Federal Court that court, by a majority, substituted for the declaration made by the High Court a declaration that the respondent had been wrongfully dismissed by the appellant, and remitted the suit to the High Court to take such action in regard to any application by the respondent for leave to amend to claim damages and to the assessment of such damages as to the High Court should seem right.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

1947. July 23, 24, 28, 29 and 30 Andrew Clark K.C. and B. MacKenna for the appellant. The question is whether in this case the requirements of sub-s. 3 of s. 240 of the Government of India Act, 1935, were complied with—whether on the facts the respondent was given a " reasonable opportunity of " showing cause" within the meaning of that sub-section. If he was afforded it that is an end of the case, if not, then the question is,, what is the effect of failure to comply with the sub-section in a case of dismissal by the Secretary of State, and, further, whether a member of the civil service in India, dismissed without being given a reasonable opportunity of showing cause, is entitled to recover damages for wrongful dismissal. The whole question turns on s. 240, sub-s. 3, and the only claim of the respondent was, in substance, for a declaration that he had never been dismissed and is still in the civil service. North-West Frontier Province v. Suraj Narain Anand (P. C. App. No. 38 of 1945.) was under sub-s. 2 of s. 240, not sub-s. 3, and is clearly distinguishable from this case. [Reference was also made to Fischer v. Secretary of State for India in Council (( 1898) L.R. 26 I.A. 16.).] There are six things which had to be done under r. 55 of the Civil Service (classification, Control and Appeal) Rules, under which the departmental inquiry into the conduct of the respondent was held (i.) The member has to be informed in writing of the grounds on which the appellant is taking action, (ii.) The grounds have to be reduced to the form oi a definite charge, with a statement of the allegations on which each charge is based, (iii.) He is required within a reasonable time to put in a written statement of defence and to state whether he desires to be heard in person, (iv.) If he so desires, an oral inquiry is held, and he shall be entitled to cross-examine witnesses, (v.) He is to be afforded an adequate opportunity of defending himself, (vi.) The proceedings are to contain a sufficient record of the evidence and a statement of the findings and the grounds. It is submitted, first, that the provisions of r. 55 were complied with. The second submission is that the respondent was given a reasonable opportunity of showing cause within sub-s. 3 of s. 240, and the order dismissing him was legal and effective this is first a question of construction and then of fact. The sub-section is permissive, not mandatory. The facts in Cross v. The Commonwealth (( 1921) 29 C.L.R. 219.) are not the same as those here, but it was there said that " the provisions of that section......are "directory only, and do not constitute conditions precedent M to the exercise by the Governor-General of the right to cancel " a commission." The Act there provided for redress throug