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, Section 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 Rule 95 of the Service Code, but in my opinion, that rule has no application because the plaintiff has never been dismissed within the meaning of this rule--the letter of the Chief Secretary says that the order of the plaintiffs dismissal was null and void; it does not state that the dismissal was wrong on facts, nor was the dismissal set aside by any revising or appellate authority. On the other hand, as I have stated above, the revising and the appellate authority refused to interfere and rejected the plaintiffs applications for setting aside the order of his dismissal.

(7) The learned Government Advocate, then drew attention to Rules 829 and 841 of the Police Manual. But I fail to understand what relevance these rules have to the matter under consideration.

(8) The learned Government Advocate referred to Section 243, Government of India Act. But that section merely states that 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. That is to say, the case of the plaintiff will be governed by the rules in the Bihar Service Code or Police Manual. No question of construction of any section of the Government of India Act is, therefore, involved.

(9) In my opinion, upon the facts established the plaintiff is entitled to maintain the suit for recovery of arrears of pay which became due to him. The learned Government Advocate contended that a servant of the Crown in India has no right to maintain such a suit because the payment to him depends upon the bounty of the Government and that it is in the sweet will of the Government to pay or refuse to pay the salary which is payable to him for having performed the service during a particular period. The novel contention has been authoritatively rejected by their Lordships of the Federal Court in the case of the Punjab Province v. Tara Chand, 1947-10 F. L. J. 56 : (A. I. R. (84) 1947 F. C. 28). A large number of English cases were examined by Zafrulla Khan J., and Kania J., (as he then was), and their Lordships came to the conclusion adverse to the Crown. The learned Government Advocate submitted that this decision of the Federal Court has been overruled by the observations made by their Lordships of the Judicial Committee in the cases of High Commr. for India and Pakistan v. I. M. Lall, 75 I. A. 225 : (A. I. R. (35) 1948 P. C. 121) and N. W. F. Province v. Suraj Narain Anand, 76 I. A. 343 : (A. I. R. (36) 1949 P. C. 112). In my opinion, this argument is not entitled to succeed, because in I. M. Lalls case, 75 I. a. 225: (A.I.R. (35) 1948 P. C. 121), the declaration given by their Lordships was that

"the purported dismissal of the respondent on 10th August 1940, was void and inoperative, and that the respondent remained a member of the Indian Civil Service at the date of the institution of the present suit on 20th July 194

2. Any further action by the Crown that may have occurred since the raising of the action is not covered by the present suit."

It is true that their Lordships made these observations at page 244 that "it has been settled ever since Gibson v. E. I. Co., (1839) 5 Bing. N. C. 262 : (8 L, J. (N. 8.) C. P. 193), that pay could not be recovered by action against the Company, but only by petition, memorial or remonstrance."

But those observations were considered by the Federal Court in the case, referred to above, as not being applicable to a case like the present plaintiff.

(10) With regard to Suraj Narain Anands case, (75 I. A. 343 : A. I. R. (36) 1949 P. C. 112), eliance is placed by the Government Advocate on these observations at page 558 :

"Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is necessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does not arise in this appeal, which is from the decision of the Federal Court."

This decision, in my opinion, does not overrule the Federal Court decision, and so long as that decision is not overruled this Court is bound to follow that decision.

(11) The learned Government Advocate has not contended that the Court should not take notice of the events that happened after the institution of the suit, because the whole defence of the Government is based upon what happened after the institution of the suit, namely, the communication to the plaintiff of the order of the Government that hig dismissal was null and void.

(12) For these reasons, I am of the opinion that the plaintiff is entitled to a decree for arrears of salary from 80th July 1940, up to the date of the institution of the suit. In the circumstances, I would allow the plaintiff costs in all the Courts, but would not grant him any interest on the decretal amount except from the expiry of two months from the date of the preparation of the decree of this Court till the date of realisation at six per cent, per annum, both on the principal sum and coats.

(13) The result is that the appeal is allowed, the decisions of the Courts below are set aside and the plaintiff will be granted a decree for the arrears of salary and costs, as, pointed out above.

(14) We were asked by the learned Government Advocate to grant a certificate under Section 205, Government of India Act on the ground that this case involves a substantial question of law as to the interpretation of Section 243, Government of India Act. But as already observed, I fail to see any question of the interpretation of that section is involved in the present appeal, and therefore, have no hesitation in refusing the certificate asked for.