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1948 Supreme(SC) 27
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD DU PARCQ, LORD OAKSEY, LORD MORTON OF HENRYTON AND MR. M. R. JAYAKAR.
HIGH COMMISSIONER FOR INDIA AND HIGH COMMISSIONER FOR PAKISTAN - Appellant
Versus
I. M. LALL - Respondents
On appeal from the Federal Court of India.
Decided On : Mar. 18. 1948.
Solicitors for appellant :Solicitors, High Commissioners for India and Pakistan. Solicitors for respondent: John Bartlett & Sons.
The statutory requirement to provide a civil servant a reasonable opportunity to show cause against a proposed dismissal is mandatory and qualifies the Crown's power of dismissal at pleasure. This opportunity must be granted after charges are proved and the punishment is provisionally determined.
Headnote:(A) Government of India Act, 1935 - Section 240 - Civil Services (Classification, Control and Appeal) Rules - Rule 55 - Dismissal of civil servant - Reasonable opportunity of showing cause - Mandatory nature of statutory provision - Interpretation of "action proposed to be taken" - The provision that a civil servant holds office during the pleasure of the Crown is qualified by the requirement to provide a reasonable opportunity of showing cause against the action proposed - Such a requirement is mandatory and constitutes a condition precedent to the exercise of the power of dismissal - A "reasonable opportunity" is not exhausted by a general inquiry into charges but must be provided after a definite conclusion on the charges has been reached and the actual punishment has been provisionally determined - Failure to comply with this mandatory requirement renders the dismissal void and inoperative.
(B) Recovery of arrears of pay - No action in tort lies against the Crown - Right to remuneration must be based on contract or statute - In the absence of a contractual obligation or statutory right, arrears of pay cannot be recovered by action in a civil court.
Facts of the case:
A member of the civil service was removed from office following a departmental inquiry into charges of nepotism and victimization. Although an inquiry was conducted and representations were made to a service commission, the individual was not provided with the inquiry reports nor informed that dismissal was the specific proposed punishment until the final order was issued. The individual challenged the validity of the removal and claimed arrears of pay.
Findings of Court:
The purported removal from service was void and inoperative because the mandatory requirement of providing a reasonable opportunity to show cause against the specific proposed action was not met. However, the claim for arrears of pay was rejected as there was no contractual or statutory right to recover such sums through a civil suit against the Crown.
Issues: Whether the requirement to provide a reasonable opportunity of showing cause under the statutory provision is mandatory or directory; whether it qualifies the Crown's power to dismiss at pleasure; and whether such opportunity must be given after the punishment has been provisionally determined.
Ratio Decidendi: The court held that the statutory requirement to provide a reasonable opportunity of showing cause is mandatory and qualifies the "pleasure" doctrine. This opportunity must be afforded after the authority has reached a definite conclusion on the charges and provisionally determined the punishment, as the charges are merely hypothetical before that stage. A general invitation to show cause at the start of an inquiry does not satisfy the requirement if the individual is not given a chance to represent against the specific punishment proposed after the findings are reached.
Result: The order of dismissal was declared void and inoperative, and the respondent was held to remain a member of the civil service at the date of the institution of the suit; the claim for arrears of pay was dismissed.
Legal Category Hierarchy
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administrative law
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public employment
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disciplinary proceedings
- reasonable opportunity to show cause
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disciplinary proceedings
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public employment
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constitutional law
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crown prerogative
- doctrine of pleasure
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crown prerogative
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tort
- crown liability
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contract law
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employment contracts
- remuneration
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employment contracts
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
