JUDGMENT

Baguley, J - The respondent was the head clerk of the Port Office at Bassein. In consequence of the discovery of defalcations and various other malpractices in the Port Office he was placed under suspension. Charges were framed against him and an inquiry was held, and he was then dismissed from Government Service by the Port Officer. He appealed to the Commissioner, Irrawaddy Division, who altered the orders of the Port Officer, and directed that he should be removed from Government Service. He then filed a memorial to the Local Government which resulted in a further investigation, but in the end the Local Government refused to interfere with the Commissioner's orders. After this he filed a suit before the District Court of Bassein claiming Rs. 32,000, as damages for his wrongful removal from office, and the District Judge gave a decree for the amount claimed with costs. The Secretary of State has filed the present appeal.

2. The points argued on behalf of the appellant may be shortly summarised as follows: First of all, it is contended that the Secretary of State is not liable as the plaintiff was not appointed by him or by anyone on his behalf secondly, it is argued that even if it were held that the plaintiff was appointed by or on behalf of ft he Secretary of State he has not been wrongfully removed from his office, be-cause he is not entitled to the benefit of the form of inquiry prescribed by the rules drafted under Section 96-B, Government of India Act, thirdly, it is argued that if the two pleas set out above both fail the damages allowed are excessive. The plaintiff was appointed to his present position by the Port Officer, Bassein. "Port Officer" is defined in the Indian Ports Act (15 of 1908, Section 5), as synonymous with master--attendant, but in respect of the working of the Port Office his powers are (undoubtedly derived from Section 36 of the same Act. Section 36 states:

the Local Government shall appoint some officer or body of persons at every port at which any dues, fees or other charges are authorized to be taken by or under this Act, to receive the same and, subject to the control of the Local Government, to expend the receipts on any of the objects authorized by this Act.

3. The section after prescribing that the officer or body shall keep for the port a distinct account, and after prescribing what money is to go into this port fund, proceeds:

All expenses incurred for the sake of any such port, excluding expenses on account of pilotage, but including (a) the pay and allowances of all persons upon the establishment of the port, (b) the cost of buoys, beacons, lights and all other works maintained chiefly for the benefit of vessels * * * * (c) pensions, allowances and gratuities of persons who have been employed in the port * * * shall be charged to the port fund account of the port.

4. Under Marine and Commerce Department Notification No. 33, dated 27th April 1910, the Port Officer, Bassein is appointed under Section 36, Sub-section (1). Indian Ports Act, to exercise these powers with certain limitations which, no doubt, represent the control of the Local Government referred to in Section 36(1). This section is rather peculiarly worded in that, it directs the appointment of "some officer or body of persons". Looking into the history of the present Act and previous Port Acta, we find that in the Act of 1875 there was apparently no Port Officer. There were certain marine officers referred to as master attendant, conservator, harbour-master and so on, but they seem to have been concerned purely with what may be called outside duties. Under Section 47 all port dues, etc., were collected by the Collector of Customs, and the port dues together with certain other receipts were directed to be entered in the profound account which was to be kept by such officer as the Local. Government might appoint; certain expenses were to be charged to the port fund account, and the balance seems to have lapsed to Government