1. Spens, C.J.:—This is an appeal by the Secretary of State for India in a suit instituted by the respondent, Mr. I.M. Lall who was a senior member of the Indian Civil Service in the year 1940, when the Secretary of State for India purported to remove him from the service. Mr. Lall's suit was originally commenced in the Court of the Sub-Judge, First Class, Lahore. It was later transferred to the High Court for hearing and was finally heard by a Division Bench of the High Court (Abdul Eashid and Earn Lall JJ.). On the 27th March, 1944, the High Court made a decree in Mr. Lall's favour declaring that the order made in the year 1940 for the removal of Mr. Lall from the Indian Civil Service with effect from the 4th June, 1940, was wrongful, void, illegal and inoperative, and that Mr. Lall was still a member of the Indian Civil Service. At the time the learned Judges made this order they added a note to their judgment that several substantial questions of law as to the interpretation of the Government of India Act, 1935, were involved in the case, and they accordingly certified that it was a fit case for appeal to the Federal Court. Hence this appeal. It was suggested by Mr. Lall that the above certificate was not in proper form to comply with s. 205 of the Constitution Act, 1935. We were wholly unable to accept any such contention. The intention of the learned Judges is quite plain. No particular form of certificate is required.

2. The material facts can be summarised as follows:— Mr. Lall was appointed to the Indian Civil Service in the year 1922, and on the 1st September in that year entered into a covenant with the Secretary of State in Council. The covenant recited that the Secretary of State in Council had appointed Mr. Lall “to serve His Majesty as a member of the Civil Service of India such service to continue during the pleasure of His Majesty, His Heirs and Successors, to be signified under the hand of the Secretary of State for India”.

3. In the year 1935, Mr. Lall was stationed in Hoshiarpur. While there he enlisted one Sundar Das, a nephew of his wife, in the subordinate staff of one of the Courts under his control. Shortly thereafter Mr. Lall took over charge as District and Sessions Judge at Multan. In June 1935, two applications were received from Sundar Das for the transfer of Sundar Das to Multan. In August 1935, Mr. Lall appointed Sundar Das as Ahlmad to one of the Sub-Judges under him, in an officiating arrangement. In April 1936, Mr. Lall went on leave to England and whilst he was on leave Sundar Das was reverted to unemployment. On the 22nd October, 1936, Mr. Lall resumed charge as District and Sessions Judge, Multan, and on the 29th October, 1936, Mr. Lall signed a proposal for Sundar Das to be appointed Ahlmad at the Sub-Judge's Court, Leiah. On the 23rd December, 1936, Mr. Lall approved a further proposal put up by the Clerk of his Court for the confirmation of Sundar Das in place of an official who had retired. This order would have had the effect of promoting Sundar Das over the heads of a number of subordinate officials senior to him. Several of the persons affected took steps to petition against this order. Subsequently on or before the 20th March, 1937, the Clerk of Court put up to Mr. Lall a note explaining that a mistake had been made and that the vacancy in which Sundar Das had been appointed actually did not exist and suggested the cancellation of the order of the 23rd December, 1936. On the 22nd March, 1937, Mr. Lall cancelled his order of the 22rd December, 1936, but simultaneously confirmed a series of proposals including the confirmation of Sundar Das as a paid candidate. Early in April 1937, Mr. Lall was transferred to be employed in the North West Frontier Province. Before going however he passed a number of orders affecting some of the junior officials who had protested against the order of the 23rd December, 1936. By an order of the 4th March, 1937, he directed the posting of one of them to Alipore, alleged to be a particularly unpleasant station. By one of the orders made on the 22nd March, 1937, he confirmed a proposal by he Clerk of Court to transfer two other of such persons, from headquarters at Multan to Muzaffargarh and Khanewal as a disciplinary measure. By another order he reduced one of these one place in seniority, and before he left Multan he recorded adverse remarks in the service books of four of the persons who had protested.

4. In September, 1937, whilst Mr. Lall was serving in the North West Frontier Province, he received a letter from the Judicial Commissioner, enclosing a letter dated the 2nd September, 1937, from the Chief Secretary to N.W.F.P. Government, informing the Judicial Commissioner, that the Punjab Government had decided to hold a departmental enquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules into the conduct of Mr. Lall whilst stationed at Multan during 1935-36, and that eight charges had been framed against Mr. Lall of which copies were enclosed. The letter proceeded to ask that steps should be taken to serve the charges on Mr. Lall and that Mr. Lall should be asked to furnish within a reasonable time a written statement of his defence and to state whether he wished to be heard in person or not. The eight charges enclosed were divided into two categories. The first category alleged improper favouritism or nepotism in connection with Mr. J jail's dealings with Sundar Das; the second alleged improper victimization of certain of the junior officials who had protested against the attempted promotion of Sundar Das by the order of December, 1936. At the end of each charge were indicated the witnesses or documents whereby it was proposed to attempt to prove the charge. Interposed between the last charge (that dealing with the adverse entries in the service books) and the indication of the evidence by which that charge was proposed to be proved, there were two paragraphs to the following effect:—

5. “That the above facts and his failure to offer any sufficient explanation up to the present are sufficient to prove that he had abused his position as an officer entrusted with the power of appointment on behalf of the Crown to show favour to a relation of his to the detriment of other officials serving under him, in contravention both of the recognised principles governing the conduct of Government servants as well as of ‘the express orders of Government, and that he further abused his position as an officer entrusted with powers of discipline over other officers of the Crown to persecute various persons who sought to protect their own interests in a legitimate manner.

6. That he should show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach of Government rules and conduct unbecoming to a member of the Indian Civil Service.”

7. After obtaining copies of the documents referred to Mr. Lall in due course, namely, on the 9th January, 1938, put in his written statement in answer to the charges. At the same time he asked for certain other documents and stated “I wish to be heard in person. My position in this matter is that there is no necessity of an oral enquiry. All my orders are in writing. The materials sought to be used against me are also in writing. On these materials the Government can give their decision.”

8. Shortly thereafter, Mr. J.D. Anderson, Commissioner, Rawalpindi Division, was appointed to hold the departmental enquiry and on the 10th June, 1938, Mr. Anderson examined Mr. Lall on the eight charges, which examination Mr. Anderson reduced into writing on the 11th June, 1938. In that statement Mr. Lall dealt with each charge at considerable length. Having recorded Mr. Lall's statement, Mr. Anderson considered it necessary to record a statement by Lala Chaman Lal, the Clerk of Court in Mr. Lall's Sessions Court at Multan. Lala Chaman Lal was duly examined in the presence of Mr. Lall who was permitted to ask whatever questions he desired and his statement was recorded on the 30th July, 1938. Mr. Anderson did not examine any other witnesses, nor did Mr. Lall apply for leave to examine any other witnesses. On the 9th August, 1938, Mr. Anderson made his report.

9. Mr. Anderson pointed out that Mr. Lall pleaded guilty to the first two charges dealing with the enlistment and transfer to Multan of Sundar Das and to the signing of the order of the 23rd December, 1936. The remaining charges, Mr. Anderson found, on the evidence before him, were unproven. He went on however to indicate that he had not been able to make a full enquiry and that a longer investigation including a fortnight at Multan was desirable before coming to final conclusions. He indicated the desirability of numbers of other documents being examined in order to compare what Mr. Lall had done in other cases with what he had done in the cases which were the subject-matter of the charges. He finally suggested three courses to Government: (1) that orders should be passed on those charges only to which Mr. Lall had pleaded guilty, leaving the question of his guilt on the other charges undecided; (2) to hold that as the Clerk of Court was clearly not speaking the whole truth Mr. Lall's word should bo accepted and the last six charges should be taken as breaking down for lack of proof; and (3) that anything Mr. Anderson had done should be regarded as a preliminary enquiry only and that some other officer should be appointed to make a complete investigation. Mr. Anderson proceeded to express his view that the third was the proper course. He moreover indicated, in the concluding paragraphs of his report, the further documents and matters which he would wish to look into before coming to final conclusions.

10. The Government did not disclose Mr. Anderson's report to Mr. Lall but proceeded to adopt Mr. Anderson's third suggestion and appointed Mr. P.L. Brayne (Commissioner, Rural Reconstruction, Punjab) to complete Mr. Anderson's preliminary enquiry. On the 14th November, 1938, Mr. Lall was informed by a letter from the Chief Secretary to Government, Punjab, that Mr. Anderson had been unable to complete the enquiry against him and that its completion had been entrusted to Mr. Brayne. On the 17th November, 1938, Mr. Brayne wrote to Mr. Lall giving him the same information and informing him that the enquiry would have to be completed or at least part of it in Multan, and asking Mr. Lall to let him know the earliest date on which he could meet Mr. Brayne there. Mr. Brayne concluded by saying that he did not expect that it would take more than at most one or two days. Mr. Lall immediately took up the position that he did not understand what was happening, that he understood Mr. Anderson had completed the enquiry, and asked the Chief Secretary that he might be supplied with a copy of the report of Mr. Anderson or at least the portion of it in which it was said that bis enquiry was incomplete and that he might be given a copy of the order of the Punjab Government on the report. The Government refused to give Mr. Lall any further information on the position. Mr. Lall had meantime returned from duty in the North West Frontier Province and had been posted as Additional District and Sessions Judge, Lyallpur, and had to undertake a tour arranged before his return. He accordingly asked by a letter addressed to Mr. Brayne on the 24th November, 1938, that he might not be called to attend the enquiry until after Christmas. Mr. Brayne replied that his engagements prevented him dealing with the enquiry during the first half of January and suggested that Mr. Lall should meet him at Multan on the morning of Saturday, the 10th December, and expressed the view that he could finish everything before the mail train left on Sunday afternoon for Lahore. He subsequently by letter and telegram asked Mr. Lall to meet him on the 9th instead of on the 10th as he desired to catch the mail train to Lahore on Saturday, the 10th.

11. Meantime by a letter of the 29th November, 1938, Mr. Brayne informed him that at Mulbau he proposed to examine various other documents and purported to indicate the classes of documents which he proposed to examine at Multan and the reasons why he was proposing to examine them. To anyone who had read Mr. Anderson's report this letter of Mr. Brayne would clearly have indicated what Mr. Brayne was proposing to do and why. Mr. Lall had however been refused a sight of Mr. Anderson's report. Whilst before us it was submitted on behalf of the appellant that this letter adequately apprised Mr. Lall of what was in Mr. Brayne's mind, Mr. Lall at the time took up the position, and has since maintained, that it only added to his confused state of mind. On the 9th December, 1938, Mr. Lall met Mr. Brayne at Multan. Certain of those ‘further documents which had been collected were shown to Mr. Lall, but Mr. Lall insisted that he did not understand his position and that he considered that Mr. Anderson's enquiry had been completed, and he asked for adequate time to understand his position. In these circumstances the interview was a short one and it was arranged that Mr. Lall should put his representations in writing as regards the procedure by the 19th December and that there should be a further meeting on the 20th December at Lahore and meantime copies of the relevant parts of the new documents should be sent to him. Accordingly on the 11th December, 1938, Mr. Brayne sent to Mr. Lall a large number of copies of the relevant parts of the new papers and in addition a list of 42 character rolls in which entries had been made by Mr. Lall in 1936 or 1937. Mr. Lall was informed that if he wished to see the originals on the 20th, he could do so if he gave sufficient notice.

12. On the 15th December, Mr. Lall acknowledged receipt of the documents and asked for certain other documents to be produced at the meeting of the 20th. On the 18th December, Mr. Lall duly enclosed to Mr. Brayne his submissions in writing in regard to Mr. Brayne's enquiry. In his submission Mr. Lall again made it abundantly clear that he did not understand what was happening; that he did not understand what the further documents were for or how, or in respect of what charges, they were relevant, and that none of them were mentioned in the charge sheet. In these circumstances Mr. Lall again met Mr. Brayne at Lahore on the 20th. This interview admittedly lasted a considerable time, and according to Mr. Brayne's note, made at the time and subsequently explicitly confirmed in his evidence given later at the hearing of the case in the High Court, Mr. Brayne explained the relevancy of the new documents to Mr. Lall and the reasons for which he was looking at them. Mr. Lall persisted that unless he was given a copy of Mr. Anderson's report and the Government orders thereon, he was not being given adequate opportunity of defending himself as provided by Rule 55. He asked for certain other documents and according to Mr. Brayne he then addressed him about the case. He was further permitted to put in a further memorandum on the case by the 26th December. On the 26th December Mr. Lall forwarded to Mr. Brayne this further memorandum. Neither the original nor a copy of this document has been produced in the course of the proceedings. On the 30th December the parties again met but this written document, having been sent to Mr. Brayne in camp, had not reached him. Mr. Lall expressed the desire to address Mr. Brayne again personally after he had read Mr. Lall's written representations and the 2nd January was fixed for this purpose. Accordingly on the 2nd January, 1939, Mr. Brayne saw Mr. Lall again, and according to Mr. Brayne, Mr. Lall completed all that he desired to say to him on the case. On the 24th January, 1939, Mr. Brayne made his report.

13. In his report Mr. Brayne was not content with merely accepting Mr. Lall's plea of guilty to the charges of nepotism, but went into the details and surrounding circumstances at great length and found that the nepotism was “complete and deliberate.” As regards the charges of vindictiveness, Mr. Brayne again went into all the details and the surrounding circumstances and found that these charges were all fully proved.

14. This report was sent on the 21st June, 1939, to the Federal Public Service Commission, together with some finding and recommendations of the Punjab Government thereon, for their consideration, and by a letter dated the 31st August, 1939, from the Secretary of the Federal Public Service Commission to the Secretary to the Government of India, Home Department, the Commission expressed their concurrence in the views of the Punjab Government that Mr. Lall was unfit to be retained in the Indian Civil Service and recommended that he be removed from service under Article 353 of the Civil Service Regulations, but that in view of his seventeen years' service he should be granted the full compassionate allowance permissible under that Article.

15. From this it is clear that by the 31st August, 1939, there were definite proposals or recommendations of the Punjab Government, concurred in by the Federal Public Service Commission, that Mr. Lall should be removed from the service on the grounds and for the reasons set out in Mr. Brayne's report.

16. In the Gazette of the 10th August, 1940, there appeared a notification, over the signature of the Chief Secretary, Punjab Government, to the effect that “His Majesty's Secretary of State for India has directed the removal of Mr. I.M. Lall from the Indian Civil Service with effect from the 4th June, 1940.”

17. By letter dated the 10th August, 1940, Mr. Lall was informed by the Punjab Government of his removal and was given a copy of the letter of the 31st August, 1939, above referred to, from the Federal Public Service Commission.

18. Meantime after the date of Mr. Brayne's report Mr. Lall remained energetic in his attempts to secure copies of the reports of Mr. Anderson and Mr. Brayne and therewith to make personal representations to the authorities. In June 1939, in particular, he pressed for an interview with His Excellency the Governor of the Punjab and on the 16th June repeated his request for copies of the report. This interview was not granted on the ground mainly that his case had passed to higher authority. Whereupon on the 23rd June, 1939, Mr. Lall requested that if the authority to decide his case were the Secretary of State, he might be permitted to place his side of the case before the Secretary of State in person and that he might be granted facilities for that purpose. On the 26th June, 1939, he was told that if he had representations to make they could be addressed to the Governor-General in the form of a memorial under the rules relating to the submission of memorials.

19. In the spring of 1940, Mr. Lall proceeded to London where he appears to have tried to make representations in person at the India Office.

20. Whatever representations were made it is clear that at no time before his removal from the service was Mr. Lall allowed to see the reports of either Mr. Anderson or Mr. Brayne, nor was he informed that either the Punjab Government or the Federal Public Service Commission or the Government of India or the Secretary of State were definitely proposing on the basis of those reports to remove him from the service. He had received the general invitation to show cause against possible dismissal (amongst other possible punishments) included at the end of the charges originally served on him. But no opportunity to show cause against dismissal was given to him, after dismissal had passed from being a possible punishment to the punishment proposed and recommended. At no time was he given an opportunity, before dismissal, of making representations against the accuracy of facts found by Mr. Anderson or Mr. Brayne in their reports or against the adverse deductions drawn against him, particularly by Mr. Brayne.

21. After Mr. Lall had been notified of his removal, he proceeded to enquire as to the authority under which the Secretary of State had purported to order his removal. In a letter from the Department of the Chief Secretary to the Punjab Government, he was informed on the 19th March, 1941, that the Secretary of State had not disclosed the authority under which he was acting, but the attention of Mr. Lall was drawn to Rule 50 of the Civil Services (Classification, Control and Appeal) Rules read in conjunction with sub-s. (2) of s. 240 of the Government of India Act.

22. Mr. Lall was not satisfied with this reply and made enquiries of the Secretary of State himself. By letter dated the 6th October, 1941, Mr. Lall was informed through the Punjab Government that in removing him from the Indian Civil Service, “the Secretary of State acted on behalf of His Majesty in exercise of the rights of the Crown to dismiss its servants at pleasure.”

23. On the 20th July, 1942, Mr. Lall filed his suit asking for a declaration that the order of removal of the plaintiff from the Indian Civil Service was not passed in due course of law and was wrongful, illegal and ultra vires. of the defendant and that Mr. Lall was still a member of the Indian Civil Service and for other relief.

24. Before the case had been transferred to the High Court, the Sub-Judge had settled a preliminary issue as follows:—

25. “Whether the Secretary of State had authority to remove the plaintiff from the Indian Civil Service, even if the enquiries were illegal or ultra vires.”

26. After the case had been transferred to the High Court, the learned Judges in addition to the preliminary issue, framed a number of further issues including the following:—

1. Did the Secretary of State have authority to remove the plaintiff from the Indian Civil Service

2. Was it incumbent on the defendant to hold an enquiry before making an order removing the plaintiff from service

3. If so what should be the nature of such enquiry

4. Was not the plaintiff given adequate opportunity of defending himself as contemplated in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules If not, what is the effect

5. Was not the plaintiff given reasonable opportunity of showing cause as laid down in s. 240 (3) of the Government of India Act, 1935 If not, what is the effect

6. Is the Court entitled to determine the question whether the opportunity given was reasonable or not

8. Did not Mr. Brayne conduct the enquiry bona fide If not, what is the effect

27. On the preliminary issue the learned Judges came to the conclusion that the plaintiff could not be removed from office until he had been given a reasonable opportunity of showing cause. This determination also governed their decision on Issue No. 2. On Issue No. 1, the decision was that the Secretary of State had authority to remove the plaintiff from the Indian Civil Service. As regards Issue No. 3, the learned Judges decided that the legal obligation would be adequately complied with provided that the person concerned knew all the charges against him, and an enquiry was held in such a manner that he had reasonable opportunity to defend himself and was not prejudiced or misled in the matter of his defence. Issues Nos. 4 and 5 were thereupon dealt with together on the basis that Rule 55 and sub-s. (3) of s. 240 required a like compliance with the legal obligation as above set out and that what would be a breach of one would be a breach of the other, and after an exhaustive examination of exactly what happened in Mr. Lall's case, the learned Judges came to the conclusion that on the facts of the case the enquiry had not been conducted by Mr. Brayne in accordance with what appeared to them to be the legal requirements above set out. On Issue No. 8, the learned Judges accordingly found that as Mr. Brayne had not conducted the enquiry, in their view, in accordance with such legal requirements, the conduct of the enquiry could not be regarded as bona fide. On Issue No. 6, the learned Judges held that it was for the Court to determine whether the opportunity given was reasonable or not. In the result they decided in favour of Mr. Lall and made a declaration that the order of the removal of the plaintiff was wrongful, void, illegal and inoperative and that he still remained a member of the Indian Civil Service.

28. Before us, all the issues have been fully recanvassed by the Advocate-General of India and by Mr. Lall appearing in person.

29. The first matter to be discussed is the question whether under the Constitution Act of 1935 the Secretary of State for India has authority to remove a member of the Indian Civil Service from the service. If of course as Mr. Lall has strenuously urged, no member can under any circumstances be removed by an order of the Secretary of State, it would be unnecessary to discuss any of the other issues in the case. Mr. Lall endeavoured to put before us a detailed historical account indicating that from at least the year 1833 onwards there was always an express statutory provision prescribing the authority and manner in which an officer of the East India Company and subsequently an officer serving His Majesty in India could and should be dismissed. He submitted that throughout, whatever authority subordinate to His Majesty was given a statutory power of dismissal, there was always also an overriding power in His Majesty himself to dismiss. He argued that when on the coming into operation of Part III of the Constitution Act of 1935, the Secretary of State in Council together with all his powers came to an end, all powers formerly exercisable by him were by virtue of s. 2 of the Constitution Act, 1935, vested in His Majesty, and that as under the Constitution Act there was no express delegation of such power to the Secretary of State and no express directions by His Majesty under sub-s. (1) of s. 2 as to the manner in which those powers were to be exercised by anyone on behalf of His Majesty, it followed that it was only His Majesty himself who could dismiss a member of the Indian Civil Service under the present circumstances. Even if it be open to Mr. Lall, having regard to the terms of his covenant of 1st September, 1922, to question a signification of His Majesty's pleasure by the Secretary of State, which may well be doubted, we are unable to accept Mr. Lall's arguments.

30. In our judgment the power of the Secretary of State to dismiss, after the coming into operation of the Constitution Act of 1935, members of the Indian Civil Service who were appointed by the Secretary of State in Council prior to the commencement of Part III of the Act, is implied in the Constitution Act itself. Section 244 (1) provides that as from the commencement of Part III of the Act appointments to the Indian Civil Service shall be made by the Secretary of State. Section 321 (b) provides that the repeal of the 1919 Act shall not affect any appointment to any office made under it and that any such appointment shall have effect as if it were an appointment to the corresponding office under the 1935 Act. Mr. Lall must accordingly as from the 1st April 1937 be regarded as if he had been appointed to the Indian Civil Service by the Secretary of State. Sub-section (2) of s. 240 provides that no person who is a member of the Civil Service of the Crown in India shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. There would here seem to be a clear implication that the authority who has been given the statutory power of appointment has the power to dismiss. This result can also be obtained from the implication which would arise from the general common law rule, that a power to appoint carries with it, in the absence of any other provision, a power to dismiss. On these grounds in our opinion there can be no reasonable doubt that from the Constitution Act itself can be found the requisite power in the Secretary of State in the year 1940 to dismiss Mr. Lall from the Indian Civil Service.

32. Moreover, if contrary to our views there be any difficulty in construing the Constitution Act so as to find therein the requisite power for the Secretary of State to dismiss a member of the Indian Civil Service, there would still in our judgment be no difficulty in holding that an exercise of the power of dismissal from one of His Majesty's services by the principal Secretary of State concerned was the proper constitutional manner in which the power of the Crown should be exercised. It is surely hardly necessary in this 20th century to require authority for the practice that the executive powers of the Crown can (unless by statute or law otherwise provided) be exercised by or through the Minister responsible to Parliament for the exercise of those powers. Reference may however be made to Halsbury, Vol. VI, at paragraph 760:

“The exercise of the executive powers vested in the Sovereign is delegated in practice to the various political officers who compose the Ministry or Government, certain of whom are the heads of the principal government offices or departments of State and to government offices having no political heads, and whose staff is composed of permanent members of the Civil Service.”

33. Mr. Lall does not contest this constitutional doctrine as regards executive actions so far as English law is concerned. But he seeks to establish a difference in regard to the exercise of the executive functions of the Crown in British India. We are unable to accept any such distinction and are of opinion that if there was nothing in the Constitution Act indicating a power in the Secretary of State to dismiss members of the Indian Civil Service, the Secretary of State would none the less be a Minister with the constitutional right to exercise the power of dismissal on behalf of the Crown. In our judgment when the Secretary of State in June 1940 authorised the removal of Mr. Lall he was properly purporting to act on behalf of His Majesty in exercise of the right of the Crown to dismiss its servants.

34. The next and the really important and difficult question in this case is whether there was any legal limitation or restriction enforceable by action on the power of the Crown through the Secretary of State so to dismiss Mr. Lall, and if so, whether such limitation or restriction was or was not complied with in fact before the order for Mr. Lall's removal in June 1940. The answer to this question involves the determination of the true construction of s. 240 of the Constitution Act, which is as follows:—

“(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that this sub-section shall not apply—

(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.

(4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor-General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.”

35. First, however, the legal position before the coming into operation of the Constitution Act requires to be considered. Section 96B of the Government of India Act, 1919, provided (inter alia) (a) that subject to the provisions of that Act and all rules made thereunder, every person in the Indian Civil Service held office during His Majesty's pleasure, (b) that no such person might be dismissed by any authority subordinate to that by which he was appointed, and (c) that the Secretary of State in Council might (except so far as he might provide by rules to the contrary) reinstate any such person who had been dismissed.

36. Rules were made under this section. The relevant rules for this case are Rules 50 and 55 of the Civil Services (Classification, Control and Appeal) Rules:

“R. 50. NO member of an All-India Service, and no person holding the King's Commission on the active list of Regular Army, the Royal Air Force, the Royal Indian Navy or on the Supernumerary List of the Indian Army or appointed by the Secretary of State in Council shall be removed or dismissed except by order of the Secretary of State in Council.”

“R. 55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.

37. This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.”

38. These rules were in operation immediately prior to the coming into operation of Part III of the Government of India Act, 1935, and under s. 276 of that Act would continue in force notwithstanding the repeal of the 1919 Act, if and in so far as the provisions of the rules were consistent with the Constitution Act, in which case they were to be deemed to be rules made under the appropriate provisions of the 1935 Act. It has been suggested before us that these rules did not continue in force, because their provisions are in fact inconsistent with the relevant provisions of the Constitution Act, or alternatively, that they could not have continued in force as they contained provisions which the rule-making authorities under the Constitution Act of 1935 could not have prescribed. The first suggestion depends upon the true construction of s. 240 of the Constitution Act and whether or not the requirements prescribed by Rule 55 are or are not consistent with the provisions of sub-s. (3) of s. 240. The second question would appear to depend on whether or not a power to make rules in respect of conditions of service includes a power to make rules in respect of conditions in regard to dismissal or removal from the service. In the view however which we take of s. 240 it is wholly unnecessary to decide to what extent, if at all, Rules 50 and 55 remain in force after the 1st April 1937. In our view the question whether Rule 55 was in force or whether or not it was in fact in this case complied with, is not relevant, for even if it were in force and had not been complied with, it is in our judgment clear that failure to comply with such a rule could not give Mr. Lall any legal cause of action: See Venkata Rao v. Secretary of State for India in Council

39. The question as to the meaning and effect of s. 240 appears to us to require determination in the first instance quite irrespective of the possible continued existence of the previous rules. For it is only a breach of the statutory provisions of s. 240 which can possibly afford Mr. Lall a good cause of action.

40. The first and chief difficulty of construing s. 240 arises from the fact that in the same section it is expressly stated that except as provided by this Act every person who is a member of a Civil Service of the Crown in India “holds office during His Majesty's pleasure,” and that provision is immediately followed by sub-ss. (2) and (3), apparently limiting or qualifying the right of dismissal at will of such servants by the Crown.

41. The general rule of law is that except as otherwise provided by statute, servants of the Crown hold their appointments at the pleasure of the Crown. Where in the case of any particular servants of the Crown, statutory limitations or qualifications on the right of dismissal are found in statutes in which the general rule is not expressly enacted but left to have operation, if at all, only by implication, it has been possible for Courts to hold that those limitations and qualifications are mandatory and effective and breach of them gives rise to a cause of action: cf. Gould v. Stuart. On the other hand where such limitations or qualifications are found only in rules made under a statute, which whilst expressly enacting that servants of the Grown hold office during His Majesty's pleasure also provides that such tenure is subject to the provisions of rules made thereunder, none the less breach of the provisions of such rules may afford no cause of action at all: cf. s. 96B of the Government of India Act, 1919, and the Civil Services (Classification, Control and Appeal) Rules made thereunder and the decision in Venkata Rao v. Secretary of State for India in Counci. If in this case we had merely been dealing with a breach of Rule 55, the decision in Venkata Rao's case would, as indicated earlier, have been decisive against any claim by Mr. Lall. Again it may also well be that any limitation or qualification on the power of the Crown to dismiss its servants at will, attempted to be imposed by contract or agreement between some authority purporting to contract on behalf of the Crown and that servant is not legally enforceable and will give to the servant no cause of action if in fact he be dismissed in breach of any such agreement: Denning v. Secretary of State for India in Council. But the material provisions in this case are not left to be dealt with in rules, or in any agreement or contract. They are embodied in the very section itself.

42. Prior to the Constitution Act of 1935, it is true that Parliament had enacted in s. 96B of the Government of India Act, 1919, a statutory provision combining in the first sub-clause thereof (a) the provision that persons in the civil service of the Crown in India held office during His Majesty's pleasure subject to the provisions of the Act and of rules made thereunder with (b) the provision that no person in that service might be dismissed by any authority subordinate to that by which he was appointed. This last provision is reproduced in sub-s. (2) of s. 240 of the 1935 Act. But prior to the coming into force of the 1935 Act, no case had been based on these provisions in question in the 1919 Act. The only other previous enactment, to which our attention was drawn, in which there was combined an express statement that officers hold their appointment during pleasure with apparent limitations or qualifications on the right of dismissal at will was s. 16 of the Commonwealth of Australia Defence Act, 1903-1918, which provided that “Officers shall hold their appointments during the pleasure of the Governor-General but the commission of an officer shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made and of any action proposed to be taken against him nor without his being called upon to show cause in relation thereto.” This was the material section in Cross v. The Commonwealth. There, on the claim of an officer for a declaration that his commission had not been validly cancelled and for arrears of pay or alternatively for damages for breach of the statutory duties imposed by s. 16, Knox C.J. having decided upon the facts that any such statutory duties had been duly performed and that the plaintiff's claim was in any event ill-founded in fact, went on to express the opinion that the provisions in s. 16 which were introduced by the word “but” were directory only and did not constitute conditions precedent to the exercise by the Governor-General of the right of cancellation of a commission. This decision was referred to in the judgment of Latham C.J. in Fletcher v. Not as an example of the complete maintenance of the old rule in the case of the Commonwealth Military Forces. He appears to have accepted the dictum of Knox C.J. as right, but the remark of Latham C.J. himself was made in the course of a judgment in a case wholly distinguishable on the facts both from Cross' cas and this case.

43. It is not surprising therefore that the Advocate-General of India argued that the express provision of sub-s. (1) of s. 240 clearly over-rode any limitation or qualification imposed by sub-s. (3), whilst as regards sub-s. (2) he submitted that it was not really a limitation on the power to dismiss but merely a statutory direction as to the channel by which the Royal pleasure was to be executed. On that ground he accepted, as he was bound to, the decision of this Court in Suraj Narain Anand's cas. But as regards sub-s. (3), the learned Advocate-General argued that its provisions were very different in effect from those of sub-s. (2) and that it should be construed as directory only in accordance with the obiter dictum of Knox C.J. in 29 Com. L.R. page 219. He supported this argument by submitting that the opening words of sub-s. (1) “Except as expressly provided by this Act” clearly did not apply to anything in s. 240 itself but only to provisions, such as the tenure of office of Judges, to be found elsewhere in the Act outside s. 240, and that the words “during His Majesty's pleasure” should therefore be construed as wholly unqualified in law by anything in the section itself. Alternatively, the learned Advocate-General argued that if any limitation or qualification enforceable by action were imposed by the provisions of sub-s. (3) such limitation had on the facts of this case been fully complied with and that Mr. Lall had had all reasonable opportunity of showing cause. The learned Advocate-General finally submitted that it was in any event not for the Court but for some executive authority to decide whether or not Mr. Lall had had reasonable opportunity.

44. This last submission is the point raised by Issue No. 6 in the action and on that point we agree with the decision of the learned Judges of the High Court and for the reasons stated by them hold that it is not possible to construe sub-s. (3) so as to exclude the jurisdiction of the Court to determine whether or not the opportunity to show cause has or has not been reasonable. In particular, we would call attention to the contrast in the wording of sub-clause (b) of the same sub-section where proper words appear to us to have been used to exclude the jurisdiction of the Court in the determination of the reasonable practicability of giving an opportunity to show cause. There the decision is clearly a matter for the authority empowered to dismiss. In the main portion of sub-s. (3) there is no similar indication that the decision is only a matter for some executive authority.

45. Turning to the earlier submissions of the learned Advocate-General, we do not see any reason to confine the construction of the opening words of s. 240 “Except as expressly provided by this Act” to provisions of the Act outside s. 240 itself. It is true that there are not also words in sub-s. (1) such as “subject to the provisions of this section” as are found in sub-s. (2) of s. 241 and elsewhere in the Act, but the opening words used in sub-s. (1) of s. 240 appear to us as apt to include a limitation or qualification on what follows in sub-s. (1) by provisions found later on in the same section as by provisions found elsewhere in the Act.

46. Next it must be remembered that an important reason in Venkata Rao's case for the decision that the material provisions in the rules were directory only was the number and diversity of the rules and their liability to be changed from time to time. In sub-s. (3) of s. 240 there have been enacted provisions of very limited scope in permanent statutory form as compared with the provisions in the rules considered in Venkata Rao's case. The difficulty which presented itself of allowing a cause of action to spring from one of many provisions contained in variable rules does not exist in this case. This case is in this respect perhaps nearer the case of Cross v. The Commonwealth. But the opinion of Knox C.J. quoted above is obiter and expressed in respect of a section of which we do not know the history in the same way as we know the history of sub-s. (3) of s. 240. We know that prior to 1935 the sort of protection for the servant of the Crown provided by sub-s. (3) was merely to be found in rules, many and various and liable to change. From these rules have been picked out and enacted in the section itself certain limited specific provisions only. That course must have been adopted to strengthen the protection to be afforded to the civil servant. The Advocate-General agrees and submits that that factor is satisfied by this protection no longer being liable to alteration or diminution by merely changing a rule. Now the protection, he urges, is guaranteed against change, except by an amending Act of Parliament. That is true so far as it goes. But are we to take it that that is all that Parliament intended That though it has now embodied in the Act itself protection of very limited effect compared to the provisions of former rules, the provision is still to be a mere empty statutory and solemn assurance and that it cannot give rise to any cause of action to the unfortunate officer dismissed or reduced in rank in flagrant breach of it. This Court has already held in Suraj Narain Anand's case that breach of sub-s. (2) does give rise to a cause of action for a declaration that the dismissal is a nullity as having been given by one without authority to dismiss. It has been argued on behalf of Mr. Lall that equally under sub-s. (3) the authority prima facie empowered to dismiss is not in a position to dismiss until the conditions of sub-s. (3) have been complied with, and that any prior dismissal must be a nullity. It is this reasoning we gather that led the learned Judges in the High Court to make the declaration which they in fact made. In our judgment the distinction which the learned Advocate-General took between sub-s. (2) and sub-s. (3) is a good one. Under sub-s. (2) no authority lower than the authority by which a civil servant was appointed has any power to execute the Crown's right of dismissal of that servant. Any purported dismissal by any such inferior authority is a mere nullity. On that view of sub-s. (2) there is no real limitation on the power of the Crown to dismiss its servants at will, provided the order of dismissal is given by the prescribed authority. An order given by any other authority is ineffective. It is difficult to apply the same reasoning to sub-s. (3). In the first place, if no one is to have the power of dismissal until the conditions of sub-s. (3) have been complied with, it would seem that there must be a clear contradiction between the provisions of sub-s. (1) and sub-s. (3). There would be periods, during which the conditions of sub-s. (3) were being complied with, when some servants though holding office at the pleasure of the Crown and meriting instant dismissal could not in fact be dismissed at all by anyone. Until the conditions of sub-s. (3) were complied with, there would be no one authorised to exercise the power of dismissal. On the other hand the preferable construction may well be that the proper authority (in the case of civil servants such as Mr. Lall, namely, the Secretary of State) has at all times the legal power of dismissal at will. An order of dismissal by him is not an order from a person who has no legal power to dismiss. He can dismiss at any time, but it may be that if he in fact dismisses without the provision of sub-s. (3) being complied with, he has acted wrongfully and the person affected may have a cause of action for wrongful dismissal. Whether this is so must depend upon the exact meaning and effect to be given to the words of sub-s. (3). In support however of this view as to the nature of the cause of action arising from breach of such a provision, we would refer to the passage in Venkata Rao's case where their Lordships of the Privy Council discuss the proper remedy.

47. We accordingly turn to the words of the main part of sub-s. (3) of s. 240 with a view to determining more exactly their meaning. In our judgment the words “against the action proposed to be taken in regard to him” require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. It should be noted that the sub-section does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges. All that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the authority by whom the action is to be proposed. It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.

48.If that be the true meaning of the section, it seems to us one to which statutory effect in the sense that breach of it will give rise to a cause of action can without any of the difficulties or inconveniences indicated in Venkata Rao's case be given. It can in our judgment be regarded as a provision in the Constitution Act which, while it does not alter the tenure of office during His Majesty's pleasure prescribed by sub-s. (1) of s. 240, or the power of dismissal at will, does impose in certain cases certain statutory obligations to be carried out before dismissal is effected, breach of which will give to the person adversely affected a cause of action. It is clear that no such opportunity as indicated above was given to Mr. Lall in this case. In spite of his repeated efforts to be informed of the results of Mr. Anderson's and Mr. Brayne's enquiries and to make representations on their reports no such opportunity was given to him. No information was given to him of the proposals of the Punjab Government or of the Federal Public Service Commission or of the Government of India that he should be dismissed. He could make no representation against such proposed action. In the circumstances of this case the early notice contained in the charge sheet that possibly dismissal might be decided upon is not in out judgment adequate compliance with the sub-section. It follows that much of the discussion as to the respective requirements of sub-s. (3) of s. 240 and Rule 55 and as to whether the words “adequate opportunity of defending himself” are or are not the equivalent of the words “reasonable opportunity of showing cause against the action proposed” and as to whether Mr. Brayne duly complied with the provisions of Rule 55 becomes irrelevant. In our judgment the wording of sub-s. (3) requires something which was not done in this case. It is not necessary to determine whether Rule 55 also required it generally or on the facts of this case. We have only to determine in the light of the facts of this case the true meaning and effect of sub-s. (3). In our judgment Mr. Lall was dismissed without having been afforded the reasonable opportunity of showing cause as required by this sub-section.

49. That leaves only the actual remedy to be considered. As indicated earlier, Mr. Lall is not in our judgment entitled to a declaration that he has never been dismissed or that he still remains a member of the Service. His proper remedy was in our judgment damages for wrongful dismissal in breach of the statutory obligations imposed by sub-s. (3) of s. 240. Mr. Lall has not asked for damages. In the High Court every one appears to have taken the view, with which we respectfully cannot agree, that his remedy, if any, would be a declaration that his dismissal was a nullity. No question of a right to damages appears to have been discussed. This no doubt followed because of the judgment of this Court and the form of the relief allowed under sub-s. (2) in Suraj Narain Anand's case. We doubt not however that if the learned Judges or either of them had considered that in a claim for breach of the provisions of sub-s. (3) of s. 240 damages might be the proper remedy, Mr. Lall would in the circumstances of this case have been given leave to amend and claim damages notwithstanding the length of time that had expired after his wrongful dismissal. Mr. Lall and every one in our view, mistook the proper remedy for the reasons indicated. In these circumstances this may well be regarded as an exceptional case, where to secure justice, leave to amend should be given at this late stage. We are the first appellate court in this case and we would ourselves give leave to amend and attempt to assess the damages, had there been proper materials for assessing damages before us. In the circumstances we propose to make a declaration that for the order of the High Court there shall be substituted an order declaring that Mr. Lall was wrongfully dismissed on the 4th June 1940 in breach of the statutory obligations imposed by sub-s. (3) of s. 240, and remit the case to the High Court to take such action in regard to any application by Mr. Lall for leave to amend to claim damages, and the assessment of such damages as to the High Court shall seem right in view of this judgment and our remarks herein. In our judgment in the circumstances Mr. Lall is entitled to his taxed costs of this appeal and we order accordingly.

50.We might add however that we have had the opportunity of reading the judgment about to be delivered by our brother Varadachariar and we would state that if, as he holds, the requirements of sub-s. (3) of s. 240 demand nothing beyond what is required for compliance with the provisions of Rule 55, we would agree with him in the conclusions which appear to him to be the right ones to draw upon a full examination of the facts in this case.

51. Vabadaghaeiab, J.:—I agree that the Secretary of State had authority to remove the plaintiff from the Indian Civil Service (issue 1). I shall assume that, if the plaintiff had been dismissed without giving him a reasonable opportunity of showing cause against it, he would be entitled to seek redress in a Court of law (preliminary issue, issue 2 and the latter part of issue 5). It would follow that the Court would be entitled to determine whether the opportunity given was reasonable or not (issue 6). Two questions then remain for decision; the first relates to the nature of the opportunity required by law to be given (issue 3); this turns on the interpretation of s. 240 (3) of the Constitution Act; the second relates to the nature of the opportunity actually given to the plaintiff (issues 4 and 5); this turns not so much on the appreciation of the evidence—which is in the main documentary and undisputed—as on the proper inference to be drawn from the evidence. It is not necessary to deal with issues 7 and 8 separately, because the findings of the High Court on these issues do not take the plaintiff further than the finding on issues 4 and 5.

52. I regret I am not able to concur in the interpretation which my Lord and my learned brother place upon cl. (3) of s. 240 of the Constitution Act. Though that provision was first enacted in the Statute itself only in 1935, a similar safeguard was previously contained in Statutory Rules framed under s. 96B of the Government of India Act of 1919. There had been for sometime a conflict of decisions in this country as to whether a public servant dismissed from his office without an enquiry held in accordance with these rules had a remedy by civil action or not. In 1936, the Judicial Committee decided that he had none [Venkat Rao's case. The Constitution Act of 1935 was passed before this decision. Rule 55 of the Rules in force at the time comprised three parts, one which enunciated the general principle that no order of dismissal, removal or reduction should be passed on a member of a service, unless he had been informed in writing of the grounds on which it was proposed to take action and had been afforded an adequate opportunity of defending himself; a second which dispensed with this requirement in certain cases; and a third which prescribed in some detail the procedure by which the general principle first enunciated was to be given effect to. This rule formed part of a group headed ‘Conduct and Discipline’ beginning with rule 47 and these rules provided for ‘disciplinary action’ in respect of members of the six classes of services specified in rule 14. Rule 49 enunciated seven kinds of penalty or punishment and rule 55 was applicable only to three of these penalties, viz., dismissal, removal or reduction. The Constitution Act of 1935 provided (by s. 276) for the pre-existing rules continuing in operation (so far as they were consistent with the new Act) but it thought fit to make provision in the Statute itself in respect of some of the matters dealt with in rule 55. A comparison of cl. (3) of s. 240 with the rule will show that (subject to certain differences of wording to which I shall presently refer) the general principle of notice and opportunity for defence as well as the exceptions to its application have been incorporated in the Statute itself while the details of the procedure by which the principle is to be given effect to are allowed to remain matters for rules.

53. The new method of providing the safeguard for the services will certainly have one important consequence, namely, that it will place it beyond the power of the rulermaking authority to deprive the services, by any change in the rules, of the benefit of the general principle of notice and opportunity for defence. It may also have another result—and, as stated at the outset, I assume it to be so for the purposes of this case—namely that the dismissal of an officer without giving him such opportunity may entitle him to seek redress in a Court of law. The decision to the contrary in Yenkat Rao's case, rested in some measure on the ground that it could hardly have been intended to allow the statutory declaration of tenure “at the pleasure of the Crown” to be qualified or restricted by rules which were expected to provide for a variety of matters of different degrees of importance. A provision like cl. (3) made in the statute itself may with greater force be claimed to be a qualification of or even a part of the declaration contained in cl. (1) of the same section as to the nature of the tenure. Assuming this to be so, the further questions for determination in this case are: (i) what is the nature of the opportunity which on the true construction of cl. (3) should be given to the officer concerned—is it the same as that required by rule 55 or is it substantially different: and (ii) whether such opportunity has in fact been given to the plaintiff in this case. The first question would not arise for discussion in this appeal if I were able to accept the finding of the High Court on issue 4, to the effect that the plaintiff was not given an adequate opportunity even in accordance with rule 55. Adequacy of opportunity within the meaning of s. 240 (3) was made the subject of a separate issue (No. 5); but the learned Judges of the High Court have not proceeded on the footing that there was a difference between the nature of the opportunity required by rule 55 and the nature of the opportunity contemplated by s. 240 (3); indeed they definitely reject the plaintiff's contention that he should have had two opportunities, one at the stage of enquiry and the other at the stage of the determination of the appropriate punishment. The two issues seem to have been raised separately, only in view of the possible difference in legal result between the two cases, viz., that a violation of rule 55 may not entitle the aggrieved officer to seek redress in a Court of law but a violation of the statutory condition prescribed by cl. (3) of s. 240 may furnish a cause of action for a suit. So far as the question of fact is concerned the learned Judges have dealt with the two issues together. For reasons to be stated presently I find myself unable to concur in the finding of fact recorded by the High Court on issues 4 and 5.

54. It is in this view that it becomes material to consider whether the question of compliance with cl. (3) of s. 240 has to be judged by a different test from that applicable to rule 55. If as a matter of law it should be held that the plaintiff should have been given an opportunity, after Mr. Brayne had submitted his report, to show cause against that report, it was not the defendant's case and the evidence does not therefore establish that such opportunity was given. It has been contended by the plaintiff that the difference in language between rule 55 and s. 240 (3) involves a difference in the test applicable under the two provisions. I am of the opinion that the verbal difference has only arisen from a difference in the method of drafting and does not involve or imply a difference in substance. In rule 55 one of the exceptions was expressed parenthetically, by the words ‘other than an order based on facts which have led to his conviction in a criminal Court’ and the other exception was stated separately, in the second paragraph of the rule. This was apparently considered capable of improvement; accordingly when embodying the provision in the statute, the two exceptions were brought together and with some verbal changes (not now material) they were enacted as Provisos (a) and (b) to cl. (3). The rule refers to three kinds of punishment, viz., dismissal, removal or reduction; cl. (3) refers only to dismissal or reduction, because by an interpretation clause (s. 277) applicable to the whole of Part X of the Constitution Act, ‘dismissal’ has been made to include ‘removal’. The change oh which particular stress has been laid in support of the plaintiff's case is the substitution in the statute of the words “reasonable opportunity of showing cause against the action proposed to be taken” for the words “unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself”. It seems to me that the Statute has adopted that language only with a view to express the principle with greater brevity, as the details were expected to be provided for by the rules. The subsequent part of rule 55, which prescribes how the information of the grounds is to be given and shows what is meant by adequate opportunity of defence fits in as much with the phraseology of cl. (3) of s. 240 as with the language of rule 55 and I see no reason to think that rule 55 is inconsistent with s. 240 (3) and must be held to be no longer in operation.

55. It has been contended that the language of cl. (3) of s. 240 would be satisfied only if an opportunity to show cause were given after the authority concerned had received the report of the enquiring officer and was in a position to make up its mind as to the action to be taken thereon, viz., whether the punishment was to be one of dismissal or only reduction. It has been further contended that such opportunity cannot be regarded as ‘reasonable’ unless the officer against whom proceedings are being taken is given an opportunity of perusing the report of the enquiring officer or is at least informed of his findings and is then given an opportunity to argue against those findings. I am unable to read all this into the substituted words.

56. The plaintiff's contention was also stated in another form. It was said that s. 240 (3) must have contemplated cause being shown to the authority competent to dismiss the officer and as, in the present case, that authority was the Secretary of State, it followed that opportunity should have been afforded to the plaintiff to show cause before the Secretary of State after Mr. Brayne had made his report and the Punjab Government had made its recommendation. Section 240 (3) is of general application to all officers and is not limited to members of the All-India services. If, in any case, cause is shown before the enquiring officer, any representation which the officer charged may make will form part of the record and will presumably be considered in due course by the authority finally dealing with the matter. Further, the time factor is not the material point in this case; it appears from the report of the Federal Public Service Commission to which the matter was referred under s. 266 (3) (c) of the Constitution Act, that a representation was made by the plaintiff to that Commission. This was after Mr. Brayne had made his report and the Punjab Government had made its recommendation.’ The real question is whether the plaintiff had a right to be informed of Mr. Brayne's findings and of the grounds therefor, before making his representations.

57. It is clear that the framers of sub-section (3) of s. 240 had the language of rule 55 before them. According to the elaborate procedure prescribed by the latter part of the rule, what was required was that the charges should be communicated to the person charged, with a statement of the allegations on which each charge was based and of any other circumstances which it was proposed to take into consideration in passing orders on the case. The officer charged can put in a written statement of his defence, ask for an oral enquiry if he so desires and also ask to be heard in person. The enquiring officer was expected to make a record of the evidence and to state his findings and the grounds thereof. It is obvious that the rule did not contemplate the officer charged being given a copy of the finding of the enquiry officer and permitted to canvass its correctness. It cannot be denied that the steps provided for in rule 55 will be equally necessary under s. 240 (3); for the officer concerned cannot be held to have had a reasonable opportunity unless he had been informed of the charges against him and had been allowed to put forward his defence and to take part in the enquiry. Is there anything in the language of cl. (3) to indicate that anything more or anything different was contemplated or to suggest that a further opportunity was to be given after the enquiry had been completed in the presence of the officer charged and the enquiring officer had made his report I find none; and I venture to think that if such an additional step had been intended, such intention would have been more clearly indicated. The words “against the action proposed to be taken” found in the clause only expressed in another form the effect of the words “on which it is proposed to take action” found in two places in the rule. I am unable to accept the suggestion that the words of the statute are appropriate only to the stage when the authorities are in a position to indicate definitely what action they intend to take, viz., whether it is to be one of dismissal or one of reduction and this can be predicated only after the enquiring officer has made his report. The word “proposed” seems to me to militate against this contention. Even in the view that opportunity is to be given after the report, the decision as to the particular action to be taken can be reached only later, that is, after hearing what the officer charged has to say against the findings of the enquiring officer. It will be equally appropriate to speak of “action proposed to be taken” even at the stage of communication of the charges, the implication being that action appropriate to the charges will be taken unless the charges are rebutted. That this is practicable is shown by the form of the charges communicated to the plaintiff in this case. Under each charge, the evidence relating to it was briefly indicated and the notice concluded, “the above facts. . are sufficient to prove that he has abused his position. . . He should show cause why he should not be dismissed, removed, reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce … “The concluding words as to the nature of the punishment had to be in that alternative form because there was always the possibility that the officer charged might rebut the charges or reduce their seriousness and the ultimate decision rested with the Secretary of State (as the plaintiff belonged to an All-India service) while the notice was given by and the enquiry conducted under the orders of the Provincial Government. The notice however certainly contains an indication of the action proposed to be taken and an invitation to show cause against it.

58. It has been elicited from Mr. Bourne (P. W. 1) that in one case a fresh notice was served on the officer charged, after the enquiring officer had submitted his report. The practice seems to have varied from time to time. A note slip added to rule 55 (in the P. & T. Edition of the Fundamental and Supplementary Rules) records a decision of the Secretary of State (No. 677) dated 28th May 1943, to the effect that “the technical requirements of s. 240 (3) of the Government of India Act will be complied with if, when an officer is called upon to offer the defence in respect of the charges against him he is also asked at the same time to show cause against the imposition of the penalty considered prima facie to be appropriate should the charges against him be held to have been proved …. it should in such cases be made clear to the officer concerned that any representation that he might make in regard to the action to be taken against him in the event of all the charges or any of them being held to be proved will be considered by the final authority concerned before any order punishing him is passed.” As the statutory provision itself is very recent, this is not a case in which practice, even if uniform, can be called in aid in the interpretation of the Statute.

59. The plaintiff contended that the Provincial Government had no authority to initiate an enquiry into the conduct of a member of an All-India service. This contention is untenable. Even members of an All-India Service are, when they serve in a Province, subject to the authority and the rule-making power of the Governor, except in so far as rules made by the Secretary of State provide otherwise (s. 247 of the Constitution Act and rule 52 of the Secretary of State's rules); and rule 50 only provides that no member of an All-India Service …. shall be removed or dismissed except by order of the Secretary of State (I omit the words “in Council” as no longer relevant).

60. The plaintiff also urged that the Punjab Government hadno power to direct a further inquiry by Mr. Brayne when Mr. Anderson had already held an inquiry into the charges against the plaintiff and submitted his report. This contention is also untenable. The matter of the inquiry is primarily one for the decision of the executive authority. In the present case, Mr. Anderson himself felt that for want of time he could not complete the inquiry and though he expressed his views on the materials then before him, he recommended to the Government to treat his inquiry as only a preliminary inquiry and to depute some officer to make a complete investigation. This is what Mr. Brayne was directed to do.

61. I now proceed to deal with the findings of the High Court on the question of fact raised by issues 4 and 5. The Advocate-General of India applied for and was granted leave to argue this question and we have heard full arguments thereon from both sides. It has to be emphasised at the outset that the Court has no right to examine the correctness of the inferences drawn or conclusions reached by the inquiring officer or by the responsible authorities. It follows that any opinion that the Court may form on these points or on the appropriateness of the punishment meted out to the officer cannot be allowed to influence the consideration of the only point open to examination by the Court, namely, the adequacy of the opportunity afforded to the plaintiff. The learned Judges of the High Court recognised this limitation on the Court's power; but some of their observations read very much like stating that on certain points the materials before Mr. Brayne did not warrant the adverse inference which, he drew. The course of the inquiry and the relevant portions of the correspondence have been referred to in detail in the judgment of my Lord and it is unnecessary for me to re-state them here. The finding of the High Court on issues 4 and 5 is based on the following four grounds:—

(A) that as the plaintiff was denied copies of Mr. Anderson's report and of the directions given by the Government to Mr. Brayne, he was not fully able to grasp the method and the scope of Mr. Brayne's inquiry and to fully appreciate the implications of the material which was used against him;

(B) that as Mr. Brayne did not communicate to the plaintiff the impressions which the new documents produced on his mind and did not put questions to him with reference thereto, Mr. Brayne has caused great prejudice to the plaintiff and deprived him of the opportunity of explaining away whatever appeared against him;

(C) that by declining to adjourn the inquiry to January 1939 and by hustling the inquiry, the inquiring officer has greatly embarrassed the plaintiff and made it difficult for him to present his defence properly;

(D) that Mr. Brayne was receiving evidence behind the back of the plaintiff (this is suggested rather than stated).

62. With all respect to the learned Judges, I am of the opinion that the evidence does not establish any of the above grounds. I shall take the grounds seriatim:—

A. It is not for me to say whether it would not have been proper for the Punjab Government to furnish the plaintiff with a copy of Mr. Anderson's report and of the direction issued by the Government to Mr. Brayne in connection with the further inquiry to be held by him. Now that both these documents are on the record, I am satisfied that so far as the scope and method of the further inquiry were concerned Ex. H. P.-21, the letter which Mr. Brayne wrote to the plaintiff on the 29th November 1938, gave the plaintiff all the information which he could have obtained from Mr. Anderson's report and the Government's order to Mr. Brayne. This letter was written in reply to Ex. H. P.-19 from the plaintiff to Mr. Brayne, dated the 24th November 1938. Plaintiff asked “I wish, however, to know on what points have you to complete the inquiry.” To this Mr. Brayne replied: “At Multan I propose to study the seniority list and candidates register and the service-books of those employees and candidates mentioned in the chains of changes in which Sundar Das figures. I also propose to look at other establishment cases dealt with by you between October 1936 and March 1937, both to see how many there were and how they were reported on and dealt with in comparison with those concerned with my inquiry. For similar purposes of comparison, I shall also look at entries made by you in character rolls. There are other papers I shall try to see, such as the reversion by Mr. Bedi of Sundar Das in the summer and his reappointment by you at the end of October, the other Sundar Das' transfer to Alipore, and the inspection notes of the Courts in which the five clerks who appealed were employed as referred by you in your statement to Mr. Anderson.” This letter, read in the light of the charges which had already been ommunicated to the plaintiff, gave him a clear idea of the nature of the inquiry which Mr. Brayne proposed to hold, of the kind of documents which he proposed to examine and the purpose for which he intended to do so. The learned Judges of the High Court themselves referred to this document as one of importance and reproduced it in full in their judgment; but they have not compared it with the concluding portion of Mr. Anderson's report and the concluding portion of the Government's order to Mr. Brayne to see that this letter contained all the information which could have been gathered from the report and the Government's order, as to the nature and purpose of the further inquiry. At the end of the report Mr. Anderson said: “To take one small point. I am asked to conclude that because Mr. Lall made four adverse comments in four character rolls, he was animated by improper motives. Before coming to any such conclusion, it would obviously be necessary to have some standard to know what sort of remarks Mr. Lall is in the habit of recording in character rolls, and to inquire on the spot into the circumstances in which he recorded remarks.” It is with reference to this remark and one or two other similar remarks that the Government told Mr. Brayne: “You will gather from Mr. Anderson's report on what points further inquiry is necessary. “Mr. Brayne in his letter to the plaintiff did not refer to the other points of inquiry suggested in Mr. Anderson's report, apparently because he did not consider it necessary to go into them. For instance, Mr. Anderson suggested that it might be necessary to examine two of the Judges of the High Court; Mr. Brayne thought it unnecessary. Even before us, the plaintiff could not explain what light those Judges could have thrown on any part of the case against him. Again, Mr. Anderson suggested that evidence should be taken as to whether Alipore to which two of the offending clerks had been transferred was a Penal Station; but it was clear even from the plaintiff's answer to Charge No. 7 that the two clerks, Ishwar Das and Khem Chand, were sent to Alipore only as a “disciplinary measure” because they were “mischievous” men and be added: “If he were a very good man, he would not be posted at Alipore.” On this statement, it was obviously unnecessary to take any further evidence as to the result or purpose of posting the clerks to Alipore. In their letter to Mr. Brayne the Punjab Government had further said: “It will be as well if you go into the chain of promotions which resulted in Mr. Lall's order of 22nd March 1937 appointing Sundar Das a paid candidate and see if it is in order.” This direction also was communicated to the plaintiff by Mr. Brayne in H.P-21. I am accordingly unable to agree that any prejudice was caused to the plaintiff by the order of the Government declining to furnish him with copies of Mr. Anderson's report and its direction to Mr. Brayne.

63. It is true that the plaintiff took strong exception to there being any further inquiry at all. As stated by him in his letter to Mr. Brayne dated the 18th December 1938 and further elaborated by him in his deposition in the suit, his position was that Mr. Anderson had completed his inquiry and practically exonerated the plaintiff of all the serious charges. Referring to Ex. D-2 (which is the same as Ex. H.P-21) he deposes: “my reaction to this was that what Mr. Brayne proposed doing at Multan was wholly outside the scope of an inquiry prescribed by rule 55 and I also had a doubt whether he had been ordered by the Government to hold an inquiry of this type or that the Government or the Governor had any executive authority to order such an inquiry. This letter (Ex. D-2) did not appear to me to be an adequate answer to my letter of the 24th December 1938.” One may sympathise with the plaintiff's annoyance but he was not right in his view of the law and as to the powers of the Punjab Government. In any event, such objections are very different from the contention that he had not been informed of the method or scope of the proposed inquiry by Mr. Brayne.

B. Ex. H.P-21 itself gave the plaintiff a fair idea of the nature of the evidence that Mr. Brayne proposed to examine and of the purposes for which he intended to do so. Even if it could be said that the letter did not by itself give sufficient information to the plaintiff, the matter is placed beyond doubt by what happened on the 20th December. In his letter of the 18th December 1938 (paragraph 6) the plaintiff complained: “When I appeared before you at Multan (on the 9th December) I did not know what documents you had studied, and how you had been influenced by them. These documents are not mentioned in any of the charge-sheets with which I have been supplied. I do not know to which particular charge they appertain. I also do not know how they are relevant to the inquiry I do not know whether the study of seniority list, etc., is for the purposes of investigation, or there are any definite allegations which bear on the charges and which are sought to be proved by these documents. If so, I have not been informed of them and hence I am unable to rebut them.” This paragraph is important in appreciating what happened when the plaintiff and Mr. Brayne met on the 20th December. The proceedings of that day are recorded in Ex. D-7. The first paragraph states: “I have explained to Mr. Lall the relevancy of the new documents of which copies have been sent to him.” In his evidence in the suit, Mr. Brayne explained that by these words he meant that he had explained the bearing that those documents had on the charges framed against him. He adds: “As an instance, I explained to him why I had collected the character rolls of 42 people and told him that I wanted to see whether the entries made against the four persons in this case were ordinary entries usually made by him or they were exceptional entries.” Nothing has been suggested in the course of the evidence to throw any doubt on the truth of the statement of Mr. Brayne. Assuming that the plaintiff, who had called Mr. Brayne as his own witness, was in some embarrassment about cross-examining him, the plaintiff, who gave his evidence after Mr. Brayne had been examined, has not said that the story is not true. All that he says is that Ex. D-7 was not recorded in his presence but he admits that he received a copy of D-7 on the 22nd December and he never disputed the correctness of the statement with which it opens.

64.For a full appreciation of the significance of what happened on the 20th December, it is also necessary to refer to what happened between the 9th December and the 18th December. On the 9th Mr. Brayne has recorded (H.P-29): “Further documents collected were shown to Mr. Lall,” and he adds a note of plaintiff's request “that he may be given adequate time to understand his position. Meanwhile he requests that he may not be asked any questions with regard to these new documents or the case in general.” I am unable to accept the plaintiff's statement that on the 9th December the documents were not there and that they were not shown to him. As usual, a copy of the order of 9th December was given to him shortly thereafter; he admits in his deposition that he had a copy of the order with him when he wrote his letter of the 18th December 1938 and he did not contest the truth of this statement. The concluding portion of Ex. H.P-29 said “copies of the relevant parts of the new document will be sent to him immediately by post.” On the 11th December 1938, Mr. Brayne wrote Ex. H.P-65 to the plaintiff; it says: “Herewith copies of relevant parts of the new papers collected (vide list attached); if you wish to see original on 20th, please let me know in ample time, as some of them have been returned Two papers will follow tomorrow.” This letter was accompanied by copies of a large number of documents. In his letter of the 18th December (paragraph 5) the plaintiff admits having received these copies on the 12th and 16th and he refers to them as “copies of documents that you had studied at Multan.” That the plaintiff must have carefully gone through these copies is shown by Ex. H.P-31 and H.P-31A dated the 18th December. This sets out a letter from the plaintiff dated 15th December 1938 and gives by way of marginal notes Mr. Brayne's answers to a number of queries made by the plaintiff with reference to some of the documents of which copies had been sent to him. H.P-34, a letter from the plaintiff to Mr. Brayne dated the 23rd December 1938, is also significant. It acknowledges receipt of a copy of Mr. Brayne's order, apparently Ex. D-7 and proceeds to say: “I want to see whether representations or petitions of some of the clerks were received by Chaman Lal by post as stated by him, or were presented to him in person. I want to see the endorsement on each petition. I also consider it necessary to verify the dates. It may also be necessary to see the note of Chaman Lal dated 2nd or 3rd of March regarding copies.” This letter shows that various details of the case were receiving the closest attention of the plaintiff all the time. The learned Judges make a point of the fact that no reply in writing was sent to plaintiff's letter of the 18th December. That was obviously due to the fact that the whole situation was cleared up when Mr. Brayne met the plaintiff on the 20th and that is what D-7 records. The plaintiff's query (in his letter of the 18th December) as to whether the new documents relate to the old charges or whether there are any definite allegations which bear on the charges, etc., is to say the least disingenuous, because the purpose and use of these new documents have been explained to him in Ex. H.P-21. Anyhow the matter was made clearer by the explanation given by Mr. Brayne on the 20th December.

65. There is little substance in the argument that the plaintiff has been prejudiced because no questions were put to him with reference to the new documents nor any information given to him as to the inferences which Mr. Brayne was inclined to draw from these documents. The evidence already referred to in some measure furnishes the answer. On the 9th December, the plaintiff requested that he might not be asked any questions with regard to the new documents (as recorded in Ex. H.P-29). Between the 12th and the 20th December he had been furnished with copies of relevant portions of these documents and had studied them. On the 20th December the interview lasted about 3 hours and Ex. D-7 records “Mr. Lall has addressed me about the case.” This must relate to the “merits” because the earlier paragraphs of the order deal with the objections to “procedure”. Plaintiff in his evidence admits that “on the 2nd January Mr. Brayne discussed one document with me.” His only apprehension was that Mr. Brayne “might have several more documents of which I had no knowledge.” The report is not based on any documents not disclosed to the plaintiff. Even assuming that no questions had been put to the plaintiff by Mr. Brayne with reference to the disclosed documents, it has to be remembered that the charges served on the plaintiff had themselves indicated the prima facie inference which the documents there referred to, interpreted in the light of the surrounding circumstances, suggested. The further inquiry was undertaken on the suggestion of Mr. Anderson, only to see whether the prima facie adverse inference to be drawn from plaintiff's conduct was rebutted either by any evidence in justification of the plaintiff's conduct or by any evidence showing that the plaintiff was usually severe and rough in dealing with all his subordinates. The later evidence is thus not in any sense incriminating evidence or evidence intended to prove the charges; it was rather in the nature of evidence calculated, if possible, to exculpate the plaintiff. That the plaintiff was himself aware of the value of that kind of evidence is shown even by his answers to the charges. Thus, in answering charge No. 7, he refers to the remarks made by his predecessor regarding Khem Chand (one of the clerks punished by him) as proof that that clerk was really deserving of punishment; in respect of one or two other clerks he mentions having heard that they were making money by supplying copies of records privately to the applicants. In his statement before Mr. Anderson, he said (dealing with charge No. 6) that he had heard complaints against some of them and made inquiries about them from Ch. Badha Kishan, a leading lawyer of Multan. Such items of evidence are in the nature of justification or exculpation; but the plaintiff stated at the outset that he did not want any oral inquiry and he never afterwards asked for any of his alleged informants being examined. This certainly does not show that he did not understand the bearing or value of such evidence. I am unable to appreciate the force of the argument (based apparently on s. 342 of the Criminal Procedure Code) that it was Mr. Brayne's duty to question.

66. the plaintiff with reference to what appeared against him in the evidence. The new documents were in no sense evidence adverse to the plaintiff. They only failed to remove the prima facie adverse inference which the plaintiff's conduct interpreted in the light of the surrounding circumstances suggested.

C. It is true that when the plaintiff received a letter from Mr. Brayne suggesting that the inquiry might start early in December, the plaintiff expressed a desire to have it started after the Christmas. But we hear nothing further about this thereafter and whatever personal inconvenience this might have involved to the plaintiff (specially because of his touring duties about this time), there is no trace in the evidence of anything like embarrassment to the plaintiff on this account. He no doubt felt annoyed or (as he said) even humiliated by the thought that there was to be a further inquiry at all and this might have naturally upset him but that is a different matter. If his touring duties interfered with the conduct of his defence, we find no such complaint and he made no attempt to take leave to enable him to conduct his defence properly. Indeed, when one bears in mind the nature of Mr. Brayne's inquiry, there was really not much for the plaintiff to do beyond what the evidence shows that he has done. There is no force in the argument that Mr. Brayne did in 2 or 3 days what Mr. Anderson expected might take 15 days to do. We have no means of knowing what Mr. Anderson intended to do; but the plaintiff has not shown and we have not been able to see what there was in the case that required more time than Mr. Brayne actually spent on it. An observation of the learned Judges suggests a possible misreading of one of the paragraphs of Ex. D-7. They seem to accept the plaintiff's contention that “even on the 20th December ….documents were still in course of collection.”

67. The reference in Ex. D-7 to “the documents sent for” is, I think, to the two documents referred to earlier as asked for by the plaintiff. The last paragraph itself shows that if they had contained anything material, plaintiff would have been allowed to say what he wished, to say about them. Presumably they contained nothing and we therefore hear nothing more about them. The correspondence shows that Mr. Brayne gave to the plaintiff every facility that it was in his power to give and never refused any request made by the plaintiff except when higher authority prevented his complying with such a request.

D. I have not been able to understand what the learned Judges had in mind, when they spoke of a possible view that “Mr. Brayne was receiving evidence behind the back of the plaintiff.” The observation is made when they refer to a confidential note-book kept by the plaintiff and referred to in Mr. Brayne's report. Even assuming (as hinted by plaintiff) that this book could not have remained in the Court house but must have been given to Mr. Brayne by Chaman Lal, nothing turns on it, so long as no question has been raised as to its genuineness nor as to the plaintiff's knowledge of its existence or its contents. The book itself contains only a few entries and copies of all the entries were sent to plaintiff along with Ex. H.P.-65. (It is item 23 of the list attached to that letter). There is nothing in the document to tell against the plaintiff and it is not correct to speak of Mr. Brayne using it against the plaintiff. It contains no more relevant information than is found in plaintiff's statement before Mr. Anderson in respect of charge No. 6. If anything, it is more favourable to him in that it includes Akbar Ali, the Examiner, among his informants. Mr. Brayne's characterisation of the information therein contained as “hearsay” is confirmed by one of Mr. Lall's own entries (which formed the basis of the charge), where speaking of disciplinary action against the clerks he adds: “I also have heard complaints against them.” I do not see that it was Mr. Brayne's duty to ascertain what inquiries Mr. Lall had made about the character of these clerks, when Mr. Lall himself did not ask his informants to be examined. Whether or not Mr. Brayne drew the right inference from these entries is not a matter for the Court. Even if it should be held that Mr. Brayne should have examined certain witnesses before coming to certain conclusions that would not amount to a denial of opportunity to the plaintiff to show cause, unless the plaintiff had desired those witnesses to be examined but they were nevertheless not examined.

68. I have discussed the main grounds set forth in support of the High Court's finding and I do not ignore the possibility that though each circumstance may not be serious by itself, their cumulative effect may be considerable. I think the circumstances of the case do not individually or collectively warrant the conclusion that the plaintiff has not had a reasonable opportunity of showing cause against the charges during the time of Mr. Brayne's inquiry. It must be remembered that after all there is little complexity about the case; the plaintiff pleaded guilty to charges 1 and 2 and even as to charge No. 3, he admitted the relevant facts though he pleaded that he acted under a mistake; on charge 4 he has been exculpated. As to charges 5 to 8, there is no dispute about the facts themselves; the only question was whether, as the circumstances suggested, the plaintiff acted vindictively against the clerks concerned, because they had questioned the plaintiff's partiality to his wife's relation or whether he had other reasons or justification for dealing with them in that manner. It is difficult to appreciate the force of the argument that the plaintiff who had been a District and Sessions Judge himself did not understand the bearing of various facts and circumstances on one aspect or the other of the case.

69. As I am of the opinion that the finding on issues 4 and 5 should be against the plaintiff, it would follow that he is not entitled to any relief in this suit.

70. By The Court.— In accordance with the opinion of the majority of the Court it is ordered that, in place of the order of the High Court, there shall be substituted an order declaring that the plaintiff, Mr. Lall, was wrongfully dismissed from the Indian Civil Service on the 4th June 1940, but such substituted order shall not affect the order as to costs made by the High Court and it is further ordered that the case be remitted to the High Court with a direction that the High Court do take such action in regard to any application by Mr. Lall for leave to amend to claim damages as to the High Court shall seem right in view of the judgment of, and the remarks contained in the judgment of, the majority of this Court.

71. Except as aforesaid, the appeal of the Secretary of State for India is dismissed with costs, such costs to be taxed by the Taxing Officer of this Court.

72. The cross-objections are dismissed. No order is made as to the costs of the cross-objections.

73. Leave to appeal to His Majesty in Council refused.