A servant of the Crown in India has the right to maintain a suit for recovery of arrears of pay.

Manohar Lall, J.

1. This is an appeal by the plaintiff whose suit for realisation of the salary due to him for the period during which he was in service of the defendant, the Province of Bihar has been dismissed concurrently by the Courts below on the ground that the plaintiffs only remedy was to approach the defendant by a petition for payment of such amount as they may deem fit and proper.

2. The admitted and proved facts are that the plaintiff was appointed a Sub. Inspector of Police by the Inspector-General of Bihar and Orissa in January 1920, and owing to disapproval of his conduct while he was in charge of the Bukhtearpur police station in 1937, departmental proceedings were drawn up against him and he was found guilty of cowardice and for not preparing a searchlist and was punished by being degraded to the lowest grade for 10 years; on appeal, the Deputy Inspector General of Police found the plaintiff guilty of cowardice only and dismissed him from service by the order dated 23rd July 1940 which was communicated to the plaintiff on 29th July. Further appeals by the plaintiff to the Inspector-General of Police and to His Excellency the Governor of Bihar were rejected.

3. On these facts the plaintiff instituted the suit giving rise to this appeal on 21st July 1943, for a declaration that the order of dismissal on 23rd July 1940 by the Deputy Inspector-General of Police was ultra vires, and he should be still regarded as continuing in office, and further that the defendant should be directed to pay to the plaintiff his arrears of pay from 30th July 1940 till the date of the institution of the suit, as in the alternative, the compensation for wrongful dismissal from service.

4. The suit was instituted after giving a notice under Section 80, Civil P. C. to the defendant which contained inter alia the allegation that as the plaintiff was appointed by the Inspector-General of Police, his dismissal by the Deputy Inspector-General of Police was ultra vires. This contention appealed to the defendants advisor, because on 9th December 1943, the Chief Secretary to the Government of Bihar wrote to the Inspector General of Police that the order of dismissal of the plaintiff should be treated as null and void and he should be reinstated, but fresh proceedings should be drawn up forthwith on the old materials giving him another opportunity to show cause--this was really a device to get round the illegal order of dismissal which was passed by the Deputy Inspector-General of Police. In pursuance of this order, the Superintendent of Police sent a telegram to the plaintiff, dated 30th December 1943, in these words : "Reinstated, Join Patna at once." A copy of this telegram was also sent to the plaintiff in confirmation of the telegram despatched. The plaintiff was thus reinstated during the pendency of the suit. We were informed that immediately after his reinstatement he was again suspended.

In his evidence dated 29th January 1945, the plaintiff states that he is still in service of the Government but under order of suspension. On these facts the trial Court gave his decision on 2nd February 1945, that the plaintiff has no cause of action because he is still in service of the Government though under suspension. The Court also thought that the remedy of the plaintiff was, as stated already, to move the defendant, his employer, for the past salary, and attention was drawn to chap. IV, Sec. 4, Rule 95 of the Bihar and Orissa Service Code. The same view was adopted by the Additional District Judge in appeal. Hence, the second appeal to this Court.

5. In my opinion, the plaintiff had a cause of action for the salary which was due to him up to the date of the suit, and on the admitted facts, up to 31st December 1943, which may conveniently be taken as the date when the plaintiff was put under suspension, after the defendant had treated the first dismissal of the plaintiff as null and void.

6. The learned Government Advocate relied upon R