Judgement

Appeal (No. 38 of 1945), by special leave, from a judgment and decree of the Federal Court of India (December 4, 1941) reversing a decree of the Court of the Judicial Commissioner, North-West Frontier Province, Peshawar (September 19, 1940) which in turn had affirmed a decree of the Senior Subordinate Judge, Peshawar (March 8, 1940).

The following facts and statutory provisions are taken from the judgment of the Judicial Committee. On March 1, 1928, the respondent was appointed as a Sub-Inspector of Police by the Inspector-General of Police, North-West Frontier Province. On April, 25, 1938, the respondent was dismissed by the Deputy Inspector-General of Police, on a charge of copying during a departmental examination. He was there fore dismissed by an authority subordinate in rank to the officer who had appointed him. After unsuccessful appeals to the Inspector-General of Police and the Provincial Government, the respondent instituted the present suit on June 17, . 1939, in which he claimed a declaration that the order of dismissal was illegal, null and void, invalid and inoperative and that he still retained his office as Sub-Inspector of Police. He further claimed arrears of pay from the date of the order of dismissal up to that date. There was an alternative claim for damages which no longer survived before this Board.

The Federal Court (Gwyer C.J., Varadachariar and Zafrulla Khan JJ.) made a declaration that the respondents dismissal was void and inoperative, and submitted the case to the Court of the Judicial Commissioner for consideration of the respondents claim for arrears of pay.

By s. 240 of the Government of India Act, 1935

" 240. (1) Except as expressly provided by this Act, " every person who is a member of a civil service of the Crown " in India, or holds any civil post under the Crown in " India, holds office during His Majestys pleasure.

" (2.) No such person as aforesaid shall be dismissed from " the service of His Majesty by any authority subordinate "to that by which he was appointed.

"(3.) No such person as aforesaid shall be dismissed or " reduced in rank until he has been given a reasonable " opportunity of showing cause against the action proposed " to be taken in regard to him."

By s. 243

" 243. Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the " subordinate ranks of the various police forces in India " shall be such as may be determined by or under the Acts " relating to those forces respectively."

1947. July 16, 17, 21, 22. Sir Andrew Clark K.C. and B. MacKenna for the appellant. Before the coming into effect of the Government of India Act, 1919, the only relevant Act was the Police Act, 1861, unqualified by any provision such as s. 96B of the Act of 1919, and under s. 7 of the Police Act there is an express power for a Deputy Inspector-General to dismiss, inter alios, a Sub-Inspector, subject to any rules which were made. That was the position before the passing of the Act of 1919. On that Act coming into force, which was the position at the date of the respondents appointment, s. 96b must be looked at to see whether the position was altered, and it is submitted that it was not, because s. 96b, sub-s. 4, preserves the existing position the Police Act of 1861 is, it is submitted, within the meaning of that sub-section, and its effect is to confirm s. 7 of the Police Act so as to continue the power to make rules under that section. Assuming that the Police Act is untouched, then the position after the Act of 1919 is that s. 7 of the Police Act is in force under which rules can be made authorizing an Inspector-General, Deputy Inspector-General, etc., to dismiss, but so that no person shall be dismissed by an authority subordinate to that by which he was appointed, because otherwise it would be repugnant to s. 96b of the Act of 1919. The position, therefore, at the date of the respondents appointment would be that he could be dismissed by the