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1954 (4) TMI 60

d Mookerjee, 1. The plaintiff appellant brought the suit out of which the present appeal arises for the recovery of arrears of pay and for damages for illegally withholding payment and for illegal discharge from military service. The suit was dismissed by the trial Court. 2. The case as made in the plaint may be shortly stated. It is alleged that during the continuance of the last World War, the plaintiff was enrolled on 13-3-1942, by the Divisional Superintendent of the Asansol Division of the East Indian Railway to serve as a clerk in the Indian Engineers Section of that Railway. It is further alleged that the terms and conditions Of service agreed upon were that the plaintiff would receive pay on a civil rate, viz., ₹ 150/- per month with certain additional allowances and perquisites. The plaintiff was under the said agreement to serve during the operation of the last War and twelve months thereafter, if so required. He continued in service till the end of the War and was discharged on 5-11-1945. According to the plaintiff, he ought to have been retained in service for twelve months after the expiration of the War. It is further alleged that while he was continuing in serv .....

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alleged that owing to the stoppage of the pay and of all payments as from November, 1943, he had been put to great difficulties and loss. During that period famine was raging in Bengal where his family members resided. According to the arrangements made with the military authorities a portion of the pay was to be made available for the members of the family while a certain other portion was to be drawn by the plaintiff while in service. He further alleged that the arrest, trial and the orders of the Court Martial had been published in Bulletin Orders, but not the fact of his subsequent acquittal. He claims in the present suit damages and compensation for the monetary losses and physical and mental sufferings and for the loss of his reputation. It is not necessary at this stage to refer in detail to the different items of compensation claimed. They will be dealt with when we consider each one of those specific claims after the general questions raised in the appeal are decided. We may state at this stage, however, that the total compensation claimed by the plaintiff was to be at ₹ 40,000/-. The plaintiff was permitted to sue as a pauper. He has also been permitted to file the .....

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for leave to appear in person. Such permission having been given and the lawyers having already withdrawn, the plaintiff presented his case personally before this Court. He was accordingly heard in person and was given full and ample opportunity to do so. 8. Before we deal with the merits of the case it is necessary to consider the objections which had been raised on behalf of the defendant in the trial Court and which though overruled by that Court have been reiterated before us on behalf of the Union of India. These are about the maintainability of the suit. 9. It is urged on behalf of the defendant Union of India that the plaintiff was serving at the relevant time under the Crown and the claim for arrears of pay and/or damages is not maintainable in law. It is urged that the rule of English Law that a servant of the Crown cannot maintain a suit against the Crown is equally applicable in India. That rule of English Law was explained in the latest decision in - 'Terrell v. Secy. of State for the Colonies', 1953-2 All ER 490. In support of the contention that the English Rule has been applied to India reference was made to - 'High Commr. for India v. I. M. Lall' as .....

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bsidiary questions which arise the principal point which falls to be decided is, "when was the plaintiff enrolled in service?". If the date of enrolment be as on 13-3-1942, the defendant respondent concedes that the claim as made by the plaintiff cannot be resisted. If, on the other hand, it is found that he was enrolled not on 13-3-1942, but on the 19th March following, the defendant contends that the pay which the plaintiff is legally entitled to is ₹ 65/- per month. The plaintiff, on the other hand, contends, as an alternative case, that even if he had been actually enrolled on the 19th, he having been engaged on a pay of ₹ 150/- per month, and having been paid at that rate until he was given the option of discharge, he is entitled to receive from the Government pay at the rate of ₹ 150/- per month. The respective contentions will be clear when we deal with some of the details of fact on which these contentions are raised. 13. As regards the question as to on which date the plaintiff was really enrolled we do not think that there can be any serious doubt. At one stage a feeble attempt was made to make the date of recruitment to be the date of enrolmen .....

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sed oh terms and conditions of service when he was in Burma Railways whereas on the enrolment form subsequent to signature of the parties an expression had been introduced designating him as clerk of grade III (exhibit 11). 17. On the next day, viz., on 13-3-1942, he appeared at Asansol before one of the officers, viz., Mr. M. A. Uddin. The enrolment form was filled in and signed by the enrolling officer Pandey on 19-3-1942. It ought to be mentioned that the date as appearing on this enrolment form was subsequently altered on 13-3-1942, under circumstances which will be narrated immediately. 18. In the enrolment form (exhibit A) there was no mention of pay or allowances to which the plaintiff would be entitled on such enrolment. On the same day, we find from the Minute Sheet (exhibit ) a letter addressed by the Divisional Superintendent to the Officer Commanding Camp Adjutant, Lucknow. There it was mentioned that Jamini Kanta Das had been appointed as a clerk enrolled in Indian Corps of Engineers on the 19th (subsequently penned through and altered to 13th) March, 1942. The concluding paragraph of this Minute Sheet was in the following terms: "He is an ex-employee of Burma Rai .....

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official records (exhibit 11). 23. On the same date, it now appears from the records, the Divisional Superintendent, Asansol wrote to the Camp Adjutant, Railway Construction Company, Lucknow, that Jamini Kanta Das had been enrolled on 19-3-1942 and had been sent to report to him for joining as from 31-3-1942, and that he had elected civil rates of pay plus percentage; as from the Allahabad Circular (exhibit C(8) ) it appeared that that was irregular, the Lucknow Officer was requested to deal with the case according to the instructions contained in the Circular Letter issued from Allahabad. This letter was sent, as it appears on the face of it, in reply to the letters of request which had been sent from Lucknow to Asansol for making necessary corrections in the papers of Jamini Kanta Das, the plaintiff, as contained in exhibits C(1) and C(3). These two letters were dealt with by the Asansol Office on 2-4-1942, when by exhibit C(5) the Divisional Superintendent, Asansol, refused to correct the date of 19-3-1942, to 13-3-1942, it being pointed out that no correction should be made in the enrolment form, as it had already been intimated by the Lucknow office in the letter, dated 27-3-1 .....

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of appointment from 19-3-1942, to 13-3-1942. This altered date appeared in papers which had been sent out from Asansol. The new documents which were issued from the Lucknow office under which the different disbursing authorities were to make payment and the officer concerned was entitled to draw were on the basis that the date of enrolment was 13-3-1942. The fact that the date was not 13th March, but the 19th was not intimated at any stage either to the officer concerned until more than a year later as stated above, or to the different disbursing officers by whom payments were being made either to the plaintiff himself or to the members of his family in Bengal. 26. One of the most important pieces of evidence which has been produced in Court is exhibit 2, the pay book which is maintained under the Indian Army Act and the Rules and Regulations of the military department. He was paid on that footing and continued to receive payments on the basis of civil pay at the basic rate of ₹ 150/-per month. The book as it appears from page 10 purports to have been opened with effect from 13-3-1942. The book contains attestations and signatures of superior officers. The last payment record .....

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words of that section referred to places a bar on the person concerned disentitling him to claim a discharge because of such irregularity or even illegality. But it is quite clear that the Legislature kept in view the consequences of a person actually remaining enrolled not being considered to be illegally enrolled after the lapse of a certain period. 31. From equitable considerations also if a person is actually engaged and is required to render services on terms of a certain pay and emoluments the only way in which the case, on a mistake being found out, is to be handled is as indicated in the Circular Letter issued by the Allahabad office (exhibit C(8) ) in the case. The direction was that if any one had been incorrectly enrolled in violation of the directions contained in the modified Rule, "he should be given the choice between accepting Military Rates of Pay and his discharge." There is no provision - far less any direction - that for the services already rendered by such a person he should be deemed to have been engaged as under the low scale of pay and be disentitled till the date of discharge to receive the original pay as fixed. There is no explanation why steps .....

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we can and need refer to the Regulations only to find out what should be the basic pay of the officer concerned. We do not think that this approach is a correct one. The case of the plaintiff is that he had been appointed - whether it be on the 13th or 19th March, 1942 - on a basic pay of ₹ 150/- per month. That he had been so appointed is conclusively proved by the papers forwarded by Asansol Officers and the pay book. The effect of the subsequent modification has only to be considered by us. To find out what pay was actually settled with reference to the regulations is not necessary. Reference to the Regulations becomes relevant only for consideration as to whether in view of such provisions in the Regulations the person concerned was disentitled to claim any other pay or that he had actually been enrolled on terms different from those which are contained in the Regulations. 34. On the conclusion reached by us that though not in terms of Section 10, Indian Army Act, yet on the principles underlying the same as also on equitable grounds which find an echo in the Circular Letter issued from Allahabad the plaintiff is entitled to a basic pay of ₹ 150/- per month for the .....

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n arise. 39. The next item is for damages for illegally withholding payment to the extent of ₹ 34000/-, under one sub-item for starvation and loss of health and another for medical treatment for such loss of health, loss of education and loss of property. These are on the face of it claims which are too remote and far fetched, even if withholding of the payment for the last few months of the service could in any view be regarded as leading, to such consequences. 40. If a person is not paid the due salary which is payable, he is certainly entitled to compensation for such withholding of payment by way of interest or reasonable compensation which flow directly from the fact of the withholding of such payment. There are further no sufficient materials before us on which different items of claim put forward under the four sub-heads can be substantiated. The amounts claimed also are such as cannot be entertained regard being had to the position and status of the appellant. One of the items is loss of properties. He attempted to state that because of difficulties in which he had been placed and of the scarcity prevailing at that time some of his properties were sold which would not .....

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ecoverable by the State. It is not incumbent on the Court to allocate in every case the costs as amongst the parties proportionate to the success. See - 'Rohini Kumar Pal v. Kusum Kamini' AIR1928Cal196 . 44. We have considered the circumstances of this case. The amount claimed for damages and compensation was high and has not been allowed by us. But in view of the defence denying every part of the relief which the plaintiff had claimed, raising a very important question as regards the jurisdiction of the civil Court to entertain such suits, we think that in the special circumstances of this case the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper and prosecute the appeal in this Court as a pauper would be recoverable by the State of West Bengal from the Union of India. Thus court-fees amounting to ₹ 1800/- for the suit in the trial Court and ₹ 3000/- for the appeal in this Court, aggregating to ₹ 4800/- (Rupees four thousand and eight hundred only) will be recovered by the State of West Bengal from the Union of India. 45. The question of principle about the jurisdiction of the Court was a deb .....

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