TMI Blog1955 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ce as a Member thereof. The suit was filed on the original side of the High Court of Madras and after having been partly tried by a Single Judge who recorded the evidence, was thereafter heard by a Bench of two Judges in view of the important constitutional question that arose for consideration in the case. The Bench found in favour of the plaintiff and decreed the suit and hence the appeal by the State to this Court. The case for the plaintiff is short and simple. He was recruited to the Indian Civil Service by open competitive examination in 1936 and joined duty in the then Province of Madras in October, 1937. Since then he was serving under the Government of Madras in various situations. The last office he held was as Sub-Collector and Joint Magistrate at Dindigal. On the 2nd June, 1947, he went on leave. While on leave, he received a letter from the Government of India dated the 19th June, 1947, wherein he was asked whether he was willing to continue in the service of the Government after the then contemplated transfer of power from the British Government to the Dominion of India on the 15th August, 1947. The plaintiff sent a reply expressing his willingness. On the 9th Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff's claim is based on the contention that the termination of his services by the order dated the 7th August, 1947, is in violation of the statutory guarantee relating to his service under section 240 of the Government of India Act 1935, which continued to be operative till the midnight of the 14th August, 1947, and he relies on Lall's case ([1948] F.C.R. 44). To this suit both the State of Madras and the Union of India were impleaded as defendants and their defence was substantially the same. It is to be found in paragraph 6 of the written statement filed by the State of Madras which is as follows: This defendant states that on the transfer of power to the newly constituted Dominion of India in pursuance of the Indian Independence Act as and from the appointed day, viz., 15th August, 1947, the tenure of the service of the plaintiff came to an end and he had no legal claim to continue in service thereafter. The plaintiff was holding office only during His Majesty's pleasure. When His Majesty's Government decided to transfer its power to the Dominion of India as and from the 15th day of August, 1947, the career of the plaintiff under covenant with the Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any case there is nothing to preclude the question which is purely one of law being reopened before us with our leave in view of its being one of considerable importance. The learned Attorney-General has based his contention as regards automatic termination of such services on three grounds: (1)The political change which came into operation on the 15th August, 1947, resulted in creating a new Sovereign State of India and on the creation of such Sovereign State, the pre-existing contracts of service under the previous Government became automatically terminated. (2)The contract between the Secretary of State for India and the plaintiff being one of service became terminated on the Secretary of State ceasing to have control in respect of the services contemplated under the contract. (3)The statutory changes which came into operation as from the 15th August, 1947, by themselves brought about a termination of such services and the protection of section 240 of the Government of India Act) 1935, was no longer available to a, person in the situation of the respondent. For the purpose of appreciating the above arguments, it is necessary to notice the various events that lead up to the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India undertake that those members of the Secretary of State's Services who continue to serve under the Government of India after the transfer of power shall do so on their present terms as to scales of pay, leave, pensionary rights, and safeguards in matters of discipline and that provisions to this effect should be made in the Treaty to deal with matters arising out of the transfer of power. The Government of India will now propose to Provincial Governments that they should give similar assurances to members of the Secretary of State's service who agree to join Provincial services. 4. The Government of India recognise that some Indian members of the Secretary of State's services may be genuinely anxious about their prospects under the Provincial administrations where they are at present employed, and every effort will be made to arrange suitable transfers in such cases. 5.The Government of India agree that compensation should be payable to such Indian Officers of these services as- (1)are not invited to continue to serve under the Government of India after transfer of power; or (2)can satisfy the Governor-General that their actions in the course of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatedly emphasized their desire that there should be the earliest possible transfer of power in India. With this desire His Majesty's Government are in full sympathy, and they are willing to anticipate the date of June, 1948, for the handing over of power by the setting up of an independent Indian Government or Governments at an even earlier date. Accordingly, as the most expeditious, and indeed the only practicable way of meeting this desire, His Majesty's Government propose to introduce legislation during the current session for the transfer of power this year on a Dominion Status basis to one or two successor authorities according to the decisions taken as a result of this announcement. This will be without prejudice to the right of the Indian Constituent Assemblies to decide in due course whether or not the part of India in respect of which they have authority will remain within the British Commonwealth . In pursuance of what was indicated herein, the Indian Independence Act was passed on the 18th July, 1947. In pursuance of the power vested in the GovernorGeneral thereunder a number of legislative orders were passed by him. The relevant provisions of the Indian Inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the individual letters to the officers concerned were presumably sent and replies were obtained, and the necessary orders were passed in respect, at any rate, of such of the officers whom the various Governments were not prepared to retain service after the transfer of power. Pausing here, it will be seen that the announcement of the Viceroy dated the 30th April, 1947, and the circular letter issued by the Govern- ment of India to the Chief Secretaries on the 18th June, 1947, as well as the individual letters issued by and under the authority of the Government of India to those officers on the same date asking for information from them as to their desire to continue in service or not, were all based on the assumptions clearly stated or indicated therein, (1) that transfer of power brings about an automatic premature termination of the services, (2) on such termination, it would be open to the servant concerned either to decline to continue in the service of the new Government or to offer to continue his services, and (3) that in case the individual servant intimated his desire to continue in service, it was open to the Government either to, accept the offer or not. Thus the conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave (extension of leave) for which you are eligible direct to Government. The Accountant-General is being asked to certify the amount of leave for which you are eligible. A formal communication will issue to you shortly from the Government of India terminating your services as from 14th August, 1947 A.N. I am to express regret that the decisions in your case has been delayed so long . This is clearly an advance intimation that the termination of the services of the plaintiff would become operative at the very moment when the transfer of power comes into force, i.e., on the midnight of 14th/ 15th August, 1947. The mention of the termination on the afternoon of the 14th August, 1947, was clearly because of the official practice that a person who hands over charge of his office in the afternoon of a particular day, continues in service and draws the salary for that day. (Vide Audit Instruction (1) at page 163 of the Fundamental Rules, 3rd Edition). A letter was immediately addressed by the Chief Secretary to the Government of Madras under date 8th August, 1947, to the Under Secretary of State for India, India Office, London, and a copy thereof was sent to the plaintiff. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India as from the 15th day of August, 1947, with territories assigned to each 'of them as indicated in sections 2,3 and 4 thereof. Under section 5, there was to be a Governor-General for each of the Dominions to be appointed by His Majesty who was to represent His Majesty for the purposes of the government of the Dominion. By section 6 it was provided that Legislature of each of the new Dominions was to have full power to make laws for that Dominion including laws having extra-territorial operation and laws which would be valid notwithstanding any repugnancy to the law of England or to the provisions of any existing or future Act of the Parliament. It was also provided that the assent to the laws as made by the Legislatures, was to be given by the Governor-General in the name of His Majesty without any power of disallowance by His Majesty and without any power of reservation of laws for the significance of His Majesty's pleasure. By section 7, it was speciflcally provided that as from the 15th August, 1947, His Majesty's Government in the United Kingdom was to have no responsibility as respects the government of any of the territories which, immediately before that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple of international law, the learned Attorney-General cited a number of authorities as also the case in West Rand Central Gold Mining Co. Ltd. v. The King([1905] 2 K. B. 391), which was quoted by this. Court in Virendra Singh v. The State of Uttar Pradesh([1955] 1 S.C.R. 415, 427). On the otherhand, Shri Nambiar for the respondent stressed the fact that however independent the new Dominion Government may be as regards the functioning of its Legislature and of its executive Government, the new Government was still to function in the name of His Majesty the King of Great Britain and that, therefore, the Dominion is not on the same footing as an independent sovereign State, which obtains sovereignty over a new country by virtue of conquest or cession. He urged that the principle of international law relied upon would not apply to such a case. In support of his contention he drew our attention to various other provisions in the Indian Independence Act and to the various legislative orders passed by the Governor-General by virtue of powers vested in him under section 9 of the Indian Independence Act as also to adaptations made in respect of various existing laws. The question as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed payments towards pension, etc. Apart from these covenants, his tenure was regulated by a number -of statutory provisions under the Government of India Act. Section 240, while affirming that the service was at the pleasure of His Majesty provided that dismissal or reduction in rank should be preceded by a reasonable opportunity for showing cause against the action proposed and that dismissal (or removal) from service could only be by an authority not subordinate to the appointing authority-which in the present case meant that the appellant could be dismissed or removed only by the Secretary of State. The Government of India Act contained also a number of provisions specially applicable to a person recruited by the Secretary of State. The conditions of his service as regards pay, leave, pension and other matters were to be such as may be, prescribed by the rules to be made by the Secretary of State and (in the absence of any specific rules by the Secretary of State) by the rules to be made by the Governor-General or the Governor of a Province in accordance as he was in service under the Government of India or the Provincial Government [section, 247(1)]. In the matter of promotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought about in this behalf by the' Indian Independence Act. In the first instance the Secretary of State who, as a Member of British Cabinet, acting in the name of the Crown and responsible to the British Parliament, was exercising such control as was vested in him in respect of the affairs of India and in particular as regards these services, completely disappeared. It was specifically provided by section 7 (1)(a) of the Indian Independence Act, 1947, that as a consequence of the setting up of the new Dominions as from the appointed day (15th August, 1947) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India . There was a further specific provision by way of section 10 in the Indian Independence Act as regards the Secretary of State services which was as follows: 10. Secretary of State's services etc. (1) The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was still to be carried on in the name of His Majesty. This was no more than a symbol of the continued allegiance to the Crown. The substance of the matter, however, was that while previously the Secretary of State's services were under the Crown in the sense that the ultimate authority and responsibility for these services was in the British Parliament and the British Government, this responsibility and authority completely vanished from and after the 15th Au 'gust, 1947, as envisaged in the Viceroy's announcement of the 30th April, 1947, and as specifically affirmed by section 7 (1) (a) of the Indian Independence Act. Thus the essential structure of the Secretary of State services was altered and the basic foundation of the contractual-cum- statutory tenure of the service disappeared. It follows that the contracts as well as the statutory protection attached thereto came to an automatic and legal termination as held by the Privy Council and the House of Lords in somewhat analogous situations in Reilly v. The King(1) and Nokes v. Doncaster Amalgamated Collieries Ltd.(2). To repel the above view of the change brought about by the Indian Independence Act, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil post under the Crown in connection with the affairs of the Governor-General or Governor-General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or as the case may be, of the Province . The Schedule to this Order also shows the adaptations made in respect of sections 240 and 247 of the Government of India Act to give effect to section 10(2) of the Indian Independence Act above quoted. Now section 247 of the Government of India Act as adapted is as follows: The conditions of service of all persons who, having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India, continue on and after the date of the establishment of the Dominion to serve under the Government of the Dominion or of any Province, shall- (a) as respects persons serving in connection with the affairs of the Dominion, be such as may be prescribed by rules made by the Governor-General; (b) as respects persons serving in connection with the affairs of a Province- (i)in rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he India (Provisional Constitution) Order. But it has to be noted that this provision is specifically preceded by the qualifying phrase subject to any general or special orders or arrangements affecting his case . Thus all persons who were previously holding civil posts are deemed to have been appointed and hence to continue in service, excepting those whose case is governed by general or special orders or arrangements affecting his case . Now, omitting general orders which has no application in this case, there can be no reasonable doubt that the special orders or arrangements contemplated herein, in so far as the members of the Secretary of State's services are concerned, are the special orders or arrangements which followed on the Viceroy's announcement dated the 30th April, 1947, in pursuance of which the individual civil servants had been circularised and their wishes ascertained, and the Governments concerned had finally intimated their option not to invite the continuance of the service of particular individuals as has happened in the case of the present plaintiff. To repel this conclusion, the learned counsel for the respondent urges (1) that the special orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nouncement that the services would come to an automatic termination and intimating the decision of the appropriate Government not to retain the services of the plaintiff as and from the 15th August, 1947, is not within the competence of the very Government under whose service, the plaintiff wanted to serve. The very nature of the situation demanded the taking of such anticipatory decisions and the communication of the same to the person concerned, in order to become operative at the crucial moment of the transition of power. As regards the second objection, it appears to us that the contention as regards the in admissibility of reference to the announcement of the Viceroy and the action taken thereupon by the Central and the Provincial Governments, both in its general aspect as also with reference to individual cases like that of the plaintiff, is without, any substance,. The phrase special orders or arrangements affecting his case in article 7(1) of the India (Provisional Constitution) Order, 1947, can only refer to this and similar other material culminating in the orders and arrangements relating to the concerned individuals. That there were any other kind of special orders or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and article 7(1) of the India (Provisional Constitution) Order proceeded on a clear and unequivocal recognition of the validity of the various special orders and the individual arrangements made and amount to an implicit statutory recognition of the principle of automatic termination of the services brought about by the political change. In our opinion, therefore, the services of the plaintiff came to an automatic termi- nation on the emergence of Indian Dominion. The special order and arrangement affecting his case that ,%,as made in pursuance of the Viceroy's announcement resulted in his service not being continued from and after the 15th August, 1947, and the plaintiff is not entitled to the declaration prayed for. The learned Judges of the High Court in coming to the conclusion they did, have, with respect, missed the significance of the phrase special orders or arrangements affecting his case used in article 7(1) of the India (Provisional Constitution) Order, 1947, and failed to appreciate that this was to be construed in the light of all the relevant events that proceeded, commencing from and following upon the announcement of the Viceroy dated the 30th April, 1947. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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