BOMBAY HC VERDICT IN TNQ BANK CASE

Judgement By a British Judge

In 1938,the Travancore National & Quilon Bank was liquidated.It had been the fourth largest bank after a merger of two banks in 1937-Travancore National Bank (TNB) and Quilon Bank. TNB was established in 1912 by K.C. Mammen Mappillai in Thiruvalla.Quilon Bank was established by another Syrian Christian, C. P Mathen in 1919 .

The merger honeymoon lasted barely a year as the bank wound up under court order in August 1938. Charged with breach of trust and misappropriation, the directors were arrested. In a trial where the defence was impeded at every step, the Directors were found guilty and sent to prison.Both Mappillai, Mathen,Mappilai's brother K V Varghese and Mappilai's son K M Eapen were sent to prison in 1939.They werw arrested in Madras on 20 0ctober 1938,but were brought to Travancore only 5 April,1939.

Their journey to Travancore was delayed for long because of a case filed by Mathen in the Mumbai High Court,against their extradition to Travancore from Madras.It was an appeal against the Madras High Court order.Mumbai High Court dismissed the appeal.Here is the Mumbai High Court verdict on the case from records,for the inquisitive minds ( the Judge J Thankerton was British):

Bombay High Court

C.P. Matthen vs The District Magistrate Of Trivandrum and Another on 6 June, 1939

Equivalent citations: (1939) 41 BOMLR 1119

Author: Thankerton

Bench: G Lowndes, Porter, Thankerton

JUDGMENT Thankerton, J.

1. This is an appeal from (1) a judgment of the full bench of the High Court of Madras, dated November 4, 1938, in Criminal Miscellaneous Petition No. 1,003 of 1938, which, on a reference by a division bench of the same Court, held that the orders of Pandrang Row J., a single Judge of the Court, on an application for writ of habeas corpus and relative applications, and dated October 21, 24, and 26, 1938, made in Criminal Miscellaneous Petitions Nos. 986, 990 and 985 of 1938 respectively, were null and void, (2) a judgment and order of the said division bench, dated November 7, 1938, made in petition No. 1,003 in implement of the above judgment, and ( 3 ) a judgment and order of the said division bench, dated November 7, 1938, made in petition No. 985, dismissing the application for a writ of habeas corpus.

2. The appellants challenge the validity of certain warrants issued by the Resident for the Madras States under Section 7 of the Indian Extradition Act (XV of 1903 ) to the Chief Presidency Magistrate of Madras, under which they were arrested, and they ask to be discharged. The course of procedure which has been followed has raised important questions as to the jurisdiction of the High Court of Madras to issue a writ of habeas corpus in the present case, and as to the competency of a single Judge of the High Court to issue such a writ or the analogous writ under Section 491 of the Code of Criminal Procedure (Act V of 1898).

3. The warrant against the first appellant was in the following terms, To the Chief Presidency Magistrate, Madras.

Mammen Mappilai ( second row) in Kuppapuram with family,1924

Whereas Mr. C. P. Matthen, Director of the Travancore National and Quilon Bank Ltd. (which is now under liquidation), who is now reported to be residing at Marble Hall, Sterling Road, Nungumbakam, Madras, stands charged with offences punishable under sections 410, 419, 421, 480 and also sections 99 and 104 of the Travancore Penal Code corresponding to sections 409, 418, 420, 477A, 109 and 114 of the Indian Penal Code committed in the Travancore State, you are hereby directed to apprehend the said Mr. C. P. Matthen and surrender him to the frontier police station of the Travancore State for production before the District Magistrate, Trivandrum.

Herein fail not.

( Sgd.) C. P. Skrine, Resident for the Madras States.

The warrants against the other three appellants were in the same terms. The fourth appellant denies that he is a director of the bank, but that is not material at this stage. It will be noted that the warrants were not dated. The appellants were all arrested in Madras on the instructions of the Chief Presidency Magistrate, who is the second respondent in this appeal, on October 20, 1938. The Travancore National and Quilon Bank was formed by the amalgamation of two banks and was incorporated in Travancore in September, 1937, though the head office was in Madras and the larger part of its business would appear to be carried on in the Madras Presidency. The appellants, who are Travancore subjects, had taken up residence in Madras in 1937, in order to conduct the business there. The District Magistrate, Trivandrum, referred to in the warrants, is the first respondent in this appeal.

4. Learning that the appellants were to be taken to Travancore by a train leaving at 11 a.m. on October 21, 1938, and having in view that the High Court did not sit until 10-45 a.m., the sons of the first and second appellants presented a petition (No. 985 of 1938) under Section 491 of the Code of Criminal Procedure for a writ of habeas corpus in respect of all the appellants early on the morning of that day to Pandrang Row J., a Judge of the High Court, at his residence. This petition was supported by an affidavit by the son of the first appellant, and along with it a further petition (No. 986 of 1938) was presented to the Judge asking for a stay of execution of the warrants. On the latter petition (No. 986 of 1938), Pandrang Row J. made the following order, viz.:

As the matter is extremely urgent the Chief Presidency Magistrate, Egmore, should detain these prisoners in his custody and not send them away from Madras pending further orders of the High Court.

5. The appellants had meanwhile been produced before the Chief Presidency Magistrate, and made an application for a reference to the Local Government under Section 8(a) of the Indian Extradition Act. While this application was in course of being heard, the order passed by Pandrang Row J. was produced and the Magistrate thereupon remanded the appellants to custody.

6. Subsequently on the same day, the Crown Prosecutor presented al petition ( No. 990 of 1938 ), praying that the order of Pandrang Row J. on petition No. 986 be vacated, mainly on the ground that it was passed without jurisdiction, as, under Rule 2(a) of the Appellate Side Rules of the High Court, jurisdiction under Section 491 of the Criminal Procedure Code could only be exercised by a bench of the High Court, and not by a single Judge. This petition, No. 990, was heard by Pandrang Row J. on October 22, 1938, and on October 24, the learned Judge made an order in petition No. 990 refusing to vacate the order for stay in. petition No. 986, and dismissing petition No. 990. The learned Judge held himself to be bound by the decision of a full bench of the High Court of Madras in In re Govindan Nair (1922) I.L.R. 45 Mad. 922, F.B., to the effect that the High Court had jurisdiction at common law to issue a writ of habeas corpus, and he held that such jurisdiction was vested in each of the Judges of the High Court, and could not be taken away by Rules.

7. On the same day, October 24, 1038, the first of these petitions, No. 985, came before a bench of the High Court (Burn and Stodart JJ.), who refused to proceed with the matter, as Pandrang Row J. was seized of it. In answer to the Court, counsel for the applicants stated categorically that the application was for a common law writ of habeas corpus and not a petition to the High Court to exercise its powers under Section 491 of the Criminal Procedure Code. On October 26, 1938, Pandrang Row J. heard petition No. 985, and made an order that a writ of habeas corpus should issue to the Chief Presidency Magistrate, returnable before himself on October 28, 1938, and a writ nisi was accordingly issued.

8. On the same day, October 26, 1938, the District Magistrate, Trivandrum, the first respondent in this appeal, presented a petition (No. 1,003 of 1938 ) to the High Court, under Section 561A of the Code of Criminal Procedure and Section 223 of the Government of India Act, 1935, praying that the orders of Pandrang Row J., dated October 21, 22, and 26, 1938, should be quashed as having been made without jurisdiction, and calling the present appellants as respondents. This petition was supported by an affidavit by the Superintendent of Police, C.I.D., Travancore.

9. This petition, No. 1,003, came on for hearing on October 27 before Burn and Stodart JJ., who, as the hearing could not be completed on that day, made an order suspending the operation of the writ nisi, issued under the order of Pandrang Row J. dated October 26 and staying further proceedings on petition No. 985 until the further orders of the Court should be known, with a direction to the second respondent to keep the prisoners in his custody till further orders.

C P Mathen

10. After the further hearing on petition No. 1,003, Burn and Stodart JJ., on November 2, 1938, referred the following questions of law to a full bench:-

(1) Can this High Court or any Judge of it issue the common law writ of habeas corpus in any of the cases covered by Section 491 of the Criminal Procedure Code?

(2) Can an application for a common law writ of habeas corpus or for directions under Section 491 of the Criminal Procedure Code be heard and disposed of by a single Judge of this Court? In other words : Are Rules 2 and 2a of the Appellate Side Rules intra or ultra vires?

(3) If a single Judge has power to issue the common law writ of habeas corpus, is the writ issued by our learned brother Pandrang Row J, on October 26 liable to be quashed by this Court for the reason that it has been issued in contravention of the rules in force in the High Court in England?

11. In stating their reasons for the order of reference the learned Judges dealt with the contentions submitted to them as follows:-The petitioner, the first respondent in this appeal, submitted three contentions : in the first place, that the High Court has no jurisdiction to issue the common law writ of habeas corpus in cases, which admittedly include the present case, covered by Section 491 of the Criminal Procedure Code; the learned Judges held themselves bound to reject this contention by reason of the decision of the full bench in Govindan Nair's case, already referred to, but gave reasons why they thought that it should be reconsidered. In the second place, the petitioner maintained that even if the High Court had still power to issue the common law writ of habeas corpus, nevertheless Rule 2 was intra vires and binding on all Judges of the Court, and that, accordingly, a single Judge had no power to deal with such proceedings; the learned Judges held this to be well founded. In the third place, the petitioner maintained that even if a single Judge has jurisdiction to issue the common law writ of habeas corpus, the procedure in this case had not been proper in that Pandrang Row J. had made the writ returnable to himself and not to the Court, during term time, which was in contravention of the rules in force in the High Court in England, which would apply in the case of a common law writ in the High Court of Madras ; the learned Judges agreed with this contention. The respondents-the present appellants-maintained two arguments : first, that in a criminal matter, such as this one, there was no right of appeal; but the learned Judges held that the Court was entitled to entertain the petition by virtue of Section 561A of the Criminal Procedure Code. In the second place, the respondents objected to the locus stand of the petitioner, who had not been a party to the application for a writ; the learned Judges rejected this objection. Having regard to the importance of three of the questions argued before them, the learned Judges made the reference already mentioned.

12. On November 4, 1938, the full bench (Sir Alfred Leach C.J., Madhavan Nair, Varadachariar, Wadsworth and Lakshmana Rao JJ.) having heard arguments, made an order in which the questions were answered as follows:-

(1) The common law writ of habeas corpus does not run in British India in a case like this. Assuming that the Court formerly had the power to issue a writ of habeas corpus in a case like this, that power has been taken away and the powers conferred by Section 491 of the Code of Criminal Procedure substituted.

(2) Rules 2 and 2a of the Appellate Side of this Court are intra vires the Court's powers.

(3) Mr. Justice Pandrang Row's order issuing a rule nisi was passed without jurisdiction and is consequently null and void.

(4) The position therefore is that the application filed by the respondents under Section 491 of the Code of Criminal Procedure must be dealt with in accordance with the rules of the Court which means that it must be dealt with by the Criminal Bench.

13. In the same order the learned Chief Justice directed that the application under Section 491 (No. 985) should be placed before the criminal bench on the following Monday, November 7. The reasons of the full bench for their judgment were subsequently given on November 8 in a judgment delivered by the Chief Justice.

14. The proceedings in petition No. 1,003 were resumed by Burn and Stodart JJ. on November 7, 1938, when they made an order in accordance with the answer of the full bench, setting aside the order of Pandrang Row J. in petition No. 985, dated October 26, 1938, which directed the issue of the writ nisi already referred to.

15. On the same day, November 7, 1938, Bum and Stodart JJ. dealt with petition No. 985, which came before them under the direction of the Chief Justice. After hearing arguments and considering the affidavits, the learned Judges delivered judgment and made an order dismissing the petition.

16. This appeal is taken against (1) the judgment of the full bench, dated November 4, 1938, on the questions referred to them in petition No. 1,003, (2) the judgment of the division bench, dated November 7, 1938, in petition No. 1,003, and (3) the judgment of the division bench, dated November 7, 1938, dismissing petition No. 985.

TNQ Bank HQ at Kollam,now hospital

17. Counsel for the appellants submitted four contentions, viz. :

1. That the first respondent had no locus standi in the matter raised in the appellants' petition No. 985, and that, for the same reason, his petition No. 1,003 was incompetent and should not have been entertained.

2. That Rules 2 and 2 A of the Appellate Side Rules were ultra vines, or, in any event, were not applicable to the present case.

3. That the warrants were illegal and invalid for the following reasons, (a) that there is definite jurisdiction in the High Court to examine, on evidence, whether the conditions laid down by the Extradition Act and the rules made thereunder for issue of the warrants have been complied with, (b) that, when thus examined, it would be found that such conditions had not been complied with, (c) that, in any event, the warrants were ex facie invalid, in respect that

(i) they did not show that the conditions had been complied with,

(ii) that they did not show sufficiently with what offences the appellants were charged, or when they were committed,

(iii) that they did not sufficiently show where and to whom the appellants were to be delivered up, and

(iv) that they were undated.

4. That jurisdiction to issue the common law writ of habeas corpus in a case such as the present still subsisted, and that Pandrang Row J. had jurisdiction to order the issue of the writ nisi.

18. On the first contention, their Lordships are clearly of opinion that the first, respondent was entitled to intervene in the appellants' petition No. 985, and that the petition No. 1,003 was competently presented by him. Counsel for the appellants referred to the rules made by the Governor-General in Council, under Section 22 of the Indian Extradition Act, 1903, as to the Procedure of Political Agents for Surrender of Accused Persons to Native States (No. 1862 I.A., dated May 13, 1904), and in particular Rule 2, which provides as follows : 2. The Political Agent shall not issue a warrant under Section 7 of the said Act except on a request preferred to him in writing either by or by the authority of the person for the time being administering the Executive Government of the State for which he is a Political Agent, or by any Court within such State which has been specified in this behalf by the Governor General in Council, or by the Governor of Madras or Bombay in Council, as the case may be, by notification in the official Gazette.

19. He maintained that the only parties who were entitled to take part in the proceedings relative to the warrants in the present case were (a) the appellants, (b) the second respondent, the Chief Presidency Magistrate, (c) the British Resident for the Madras States, and (d) the Government of Travan-core. But their Lordships are of opinion that the terms of the warrants show that the authority to whom, in terms of Section 7 of the Act, the appellants are to be delivered, is truly the first respondent, who will control their custody, though the police of Travancore at the frontier station will receive the delivery on his behalf. Rule 7 of the rules above referred to makes this sufficiently clear ; it provides as follows:-

'7. In the case of an accused person made over for trial to the Court of the State, the Political Agent shall satisfy himself that the accused receives a fair trial, and that the punishment inflicted on conviction is not excessive or barbarous; and if he is not so satisfied he shall demand the restoration of the prisoner to his custody, pending the orders of the Governor General in Council.

20. It is dear that, if occasion arose for such an application in the present case, it would fall to be made to the Court of the first respondent. Their Lordships are of opinion that the first respondent is entitled to vindicate his right to obtain the custody of the appellants, and that this contention of the appellants fails.

21. It will be convenient to dispose next of the fourth contention of the appellants. On this point their Lordships agree with the conclusions of the full bench in the present case which are stated in the judgment delivered by the learned Chief Justice as follows :

The High Courts Act of 1861 authorised the Legislature if it thought fit to take away the powers which this Court obtained as the successor of the Supreme Court, and Acts of the Legislature lawfully passed in 1875 and subsequent years leave no doubt in my mind that the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by Section 491 of the Code of Criminal Procedure of 1898.

Young Sir CP 

22. Indeed counsel for the appellants stated that he found difficulty in pressing this contention, and the reasoning of the learned Chief Justice, on which he based the above conclusion, is so clear and convincing, including his narration of the legislative Acts referred to in his conclusion, that their Lordships are content to adopt it, as also to state that, like the learned Chief Justice, they are in entire agreement with the judgment of Rankin C.J. in Girindra Nath Banerjee v. Birendra Nath Pal (1927) I.L.R. 54 Cal 227. Accordingly the appellants' fourth contention also fails. It follows that the appellants' petition No. 985 must be treated as an application under Section 491 of the Code of Criminal Procedure. The second contention of the appellants related to the Appellate Side Rules of the Madras High Court. Section 491 of the Code of Criminal Procedure, so far as material, provides:

491. (1) Any High. Court may, whenever it thinks fit, direct

(b) that a person illegally or improperly detained in public or private custody within such limits" (i.e. the limits of its appellate criminal jurisdiction) "be set at liberty ;

(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this Section.

23. The material rules of the Appellate Side Rules are as follows :

2. The following matters may be heard and determined by a Bench of two Judges provided that if both Judges agree that the determination involves a question of law they may order that the matter, or question of law, be referred to a Full Bench :

(4)(c) for issue of a writ of habeas corpus, 2a. All applications for writ of habeas corpus shall go before a Bench of Judges dealing with criminal work.

24. In view of their Lordships' opinion, already expressed, as to the incompetence of the issue of a common law writ in the present case, the appellants' contention, that these rules are ultra vires so far as they affect the issue of such a writ, does not arise, but the appellants maintain that, on proper construction, these rules do not apply to an application for directions under Section 491, which they maintain is not covered by the words " all applications for writ of habeas corpus". Their Lordships are unable to accept this contention, and their view is confirmed by the terms of the statutory notifications in the Fort St. George Gazette as to Rule 2A, which first appeared in a somewhat different form in the Gazette, 1925, Part II, p. 307, under date January 3, 1925, in which it is expressly described as an amendment to the rules regulating proceedings under Section 491(1) of the Code of Criminal Procedure, and it was as follows, " All applications for writ of habeas corpus shall go before a Bench of three Judges, of which the Chief Justice, unless otherwise ordered, shall be one." The alteration of the rule to its present form appeared in the Gazette, 1929, Part II, p. 1309, under date August 17, 1929, and the description of the amendment is identical with that in the earlier notification. Accordingly, Pandrang Row J., as a single Judge, had no jurisdiction to deal with petition No. 985.

C P Skrine book

25. It only remains to deal with the appellants' contentions as to the warrants :In the first place, they maintained that the Court is entitled to examine, on evidence, whether the conditions laid down by the Extradition Act and the rules made under Section 22 of the Act have been complied with, and that the appellants were entitled to an opportunity to satisfy the Court (a) that the offences must have been committed in Madras, and (b) that, in reality, the Travancore authorities desired to get the appellants into their jurisdiction in order to charge them with political offences, which would not be extraditable offences. It must be remembered that the warrants are issued by the agent of the Government of India, and not by an agent of the Travan-core State, and this executive act is safeguarded in various ways by the Act and by the rules. For instance, Rule 4 provides that the Political Agent shall, in all cases before issuing a warrant under Section 7 of the Act, satisfy himself, by preliminary inquiry or otherwise, that there is, prima facie, a case against the accused person. The appellants do not suggest that the Resident did not so satisfy himself in the present case. But, if such a suggestion were to be made, their Lordships are of opinion that it would not be properly the subject of inquiry by the Court, but should be stated to the Magistrate on an application to him to report to the Local Government under Section 8A of the Extradition Act. Their Lordships see no reason why the offences charged cannot have been committed in Travancore, and what they have stated above directly applies to the suggestion that the true object of the extradition is to enable the appellants to be charged with political offences. It may be added that a bogus trial of the offences, in respect of which the extradition is made, would appear to fall within Rule 7, and to make it the duty of the Political Agent, in such an event, to demand the restoration of the prisoners to his custody.

C P Skrine

26. Lastly, the appellants contend that the warrants are illegal ex facie in respect (a) that they do not sufficiently show with what offences the appellants were charged or when they were committed, (b) that they do not sufficiently identify the place where, and the person to whom, the appellants were to be delivered up, and (c) that they are undated.

27. As regards (a), no form of warrant is prescribed by the Extradition Act or the rules, and the warrants clearly describe the offences with which the appellants are charged, which is all that is required by the ordinary form of warrant of arrest prescribed by Section 75 and form II of Schedule V of the Code of Criminal Procedure. Their Lordships may also refer to the explanation to Section 477A of the Indian Penal Code. This objection fails. As regards (b), Section 7(1)of the Extradition Act uses the words, "for his arrest and delivery at a place and to a person or authority indicated in the warrant," and their Lordships are of opinion that all that is required is that the place and person shall be sufficiently indicated to enable the Chief Presidency Magistrate, to whom the warrants are addressed, to act in pursuance of such warrants and to give directions accordingly. It is clear that the second respondent has no difficulty in this regard, and, if there were any doubt on the warrants taken by themselves, which their Lordships are not prepared to assume, the matter is placed beyond doubt by the Government of Madras (Home Department) Order No. 1,293, March 10, 1938, under which the Government direct that in future all persons extradited should be handed over at " the nearest frontier police station in the Travancore State". That order was addressed, among others, to the second respondent. There can be no difficulty in identifying the nearest frontier police station of the Travancore State for production before the District Magistrate, Trivandrum, and, in their Lordships' opinion, a police station is a perfectly lucid description of the authority to whom the surrender is to be made. Contention (c) as to the absence of date also fails, in their Lordships' opinion. While it undoubtedly would be the usual and better practice to date the warrants, no provision in the Act or the rules appears to require directly or implicitly that the warrants must be dated ; no period is expressed as running from the date of the warrants. This disposes of all the appellants' objections to the validity of the warrants.

28. Their Lordships have now stated the reasons which led them on April 3, 1939, humbly to advise His Majesty that the appeal should be dismissed.

The Court verdict ends here.

C P Skrine ( 1888-1974 ),Clarmont Percival Skrine, the Resident for the Madras states then, British consul-general in Kashgar from 1922 to 1924, Under-Secretary of State for India and agent for the Madras States from 1936 to 1939.Born in Kensington, London,he was the son of Francis Henry Bennett Skrine (1847−1933) of the Indian civil service and Helen Lucy née Stewart (1867–1954). He was educated at Winchester and New College Oxford in England and qualified for the Indian civil service in 1912. Joined the Indian political service in 1915. From 1916 to 1919 he was British vice-consul in Kerman, Iran. From 1922 to 1924, Skrine was posted in Kashgar, in Chinese Turkestan, as the British consul-general.From 1926 to 1929 he was British consul in Seistan. On 20 November 1936, Skrine was appointed agent for the Madras States. Skrine served till 1 April 1937, when the agency was abolished and replaced with a residency. Clarmont also served as the first resident for the Madras States from 1 April 1937 to 15 January 1939. In January 1942 he traveled overland to Mashhad, Persia (near the Turkmenistan border) to become Consul General and remarkably took some cine footage of his journey. British public records indicate he remained in post till the end of World War Two.From 1946 to 1948, Skrine served as Counsellor for Indian Affairs in Teheran, Persia.

Skrine was a friend of Louisa Carolina Mariya Ouwerkerk ( 1904-1989 ),Economics/History professor and later Principal in Trivandrum women's College,who had a turbulent relationship with Sir C P Ramaswamy Iyer,whom she had considered once the perfect dinner partner.Her 10 years in Travancore from 1929 are detailed in her book,No Elephants for the Maharaja,which was published posthumously in 1994.Louisa got more involved with the Congress,other agitators and the Christian lobby and was hobnobbing with the Resident Skrine too much.Sir C O wrote to the Raja on 17 September 1938 to get rid of her,terming her a communist.Sir C P told Skrine that her ( O's house ) was the rendezvous of an 'unhealthy pseudo religios spiritualistic circle."

She got the trmination order while she was on vacatuon in Denmark in 1939.She was born to Dutch parents in England.She was drawing a salary two times higher than that of her native colleagues.She rushed back to India in December,met Tagore and Gandhi,bacame Acting Principal in the Maharani's College for Women,Bangalore in May,1940.The British intercepted her letters and found What Sir C P had conveyed about her was right.In November 1940 she was arrested and sent her to the parole camp in Satara.Sir Maurice Gwyer,Chief Justice of India supported her But her association with RevR R Keithan,who held communist views,stood in the way.She wrote Untouchables in India.She was released in April 1941,on condition that she will not teach again.She later taught in Nigeria.A book has been written on her-The Story of a Self-Willed Lady:Louise Ouwerkerk in India by D Koolman.A book on Skrine too exists-Envoy of the Raj: Career  of Clarmont Percival Skrine.

© Ramachandran 

THE ONLY ICS OFFICER WHO WAS DISMISSED

He Appointed Wife's Relative as Subordinate

Only one Indian Civil Service ( I C S ) officer was dismissed from service,that too for corruption-I M Lall of 1922 batch,Punjab cadre.He was removed as a disrict judge,by India Secretar Leo Amery,on 4 June 1940.A legal battle followedand was sent on compulsory retirement,after Independence.ICS had a judicial branch and India had quite a number of judges from ICS.K P S Menon,first foreign secretary belonged to K P S Menon's ICS batch.

In Punjab, the first four Chief Justices, post-Independence, were from the ICS, namely Eric Weston, a European ICS, AN Bhandari, GD Khosla and Donald Falshaw, another European ICS, who left in 1966.

I have collated here the details of the Lall dismissal from the verdict in the case by the Bombay High Court bench consisting of D U Parcq,Morton,M R Jayakar and J Thnkerrton.It was written by Thankerton.I M Lall had appealed against the decision by the Secretar of State for India and after Independence,the High Commissioner for India.The verdict was delivered on 18 March 1948, in the case The High Commissioner for India Vs I M Lall.

It was an appeal by special leave from an order of the Federal Court of India dated May 4, 1945, which varied a decree of the High Court at Lahore dated March 27, 1944.Lall,who had been a member of the Indian Civil Service since 1922, instituted the suit on July 20, 1942, against the Secretary of State for India, challenging the validity of an order by the latter dated August 10, 1940, which purported to remove Lall from the ICS.

The Federal Court of India was a judicial body, established in India in 1937 under the provisions of the Government of India Act 1935, with original, appellate and advisory jurisdiction. It functioned until the Supreme Court of India was established in 1950. Although the seat of the Federal Court was at Delhi, however, a separate Federal Court of Pakistan was established in Pakistan in Karachi after the Partition of India. There was a right of appeal to the Judicial Committee of the Privy Council in London from the Federal Court of India.

Leo Amery

In 1935 Lall was stationed in Hoshiarpur, where he enlisted one Sundar Das, a nephew of his wife, in the subordinate staff of one of the Courts under his control. Soon thereafter Lall took over charge as District and Sessions Judge at Multan. Early in April, 1937, Lall was transferred to be employed in the North-West Frontier Province. In September, 1937,Lall received a letter from the Judicial Commissioner, enclosing a letter from the Chief Secretary to the North-West Frontier 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 Lall,while stationed at Multan during 1935-86, and that eight charges had been framed against him . The letter proceeded to ask that steps should be taken to serve the charges on Lall and that he 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 were divided into two categories, the first of which alleged improper favouritism or nepotism in connection with Sundar Das ; the second category alleged improper victimization of certain of the junior officials who had protested against the attempted promotion of Sundar Das by an order of the respondent in December, 1936. At the end of each charge were indicated the witnesses or documents whereby it was proposed to attempt to prove the charge. Near the end there were two paragraphs interposed, which clearly related to all the charges and were as follows:

• 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 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.
• 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.

After Lall's reply to the charges,J.D. Anderson, Commissioner, Rawalpindi Division, was appointed to hold the departmental enquiry. Anderson examined Lall on June 10, 1938, in course of which Lall pleaded guilty to the first two charges, and, without any further examination of witnesses, he made his report on August 9,1938.As regards the remaining six charges, he found them unproven, but he indicated that he had not been able to make a full enquiry, and that a longer investigation, including a fortnight at Multan, and a further examination of documents were desirable before coming to final conclusions. Anderson's report was not disclosed to the respondent, and the Government appointed F.L. Brayne, Commissioner, Rural Reconstruction, Punjab, to complete Anderson's preliminary enquiry.

Frank Lugard Brayne (1882 – 1952) was an administrator in the Indian Civil Service (ICS) during the British Raj . A nephew of Lord Lugard, who was zealous in his attempts to improve what he considered to be a "backward" Africa (to fight against slavery and human sacrifice), Brayne had a similar evangelical outlook and was considered to be a maverick in the ICS. He attracted the opprobrium of both his colleagues and Indian people themselves in his attempts to improve the life of villagers in Punjab.Son of a priest,Brayne passed the competitive examination for appointment to the ICS in 1905. He was sent to the Punjab, where he worked for some time as secretary to Delhi Municipality during the period when the planning of New Delhi was underway.

After the war, Brayne returned to the Punjab and in 1920 he married Iris Goodeve, a daughter of Edgar Goble. He became district officer of Gurgaon, some 40 miles (64 km) from Delhi, at a time when the area, comprising a population of around 700,000, was suffering greatly from a recent influenza epidemic, a failed monsoon and the return of soldiers from the war. To counter the deprivation, Brayne initiated what became known as the Gurgaon Scheme, in which he hoped to alleviate the plight of peasants in all its aspects by encouraging and facilitating the idea of self-help. He wrote several books about this, including Village Uplift in India, Socrates in an Indian Village, Socrates Persists in India, and Socrates at School, as well as one comparing rural life in India with that of England. The scheme was not a success. Brayne's interventionism had a "missionary zeal".By 1937, Brayne was Commissioner for Rural Reconstruction in the Punjab and in 1940 he was Financial Commissioner (Development) there.

Brayne took the Lall matter up and wrote to the respondent on November 17, 1938, relative thereto. After various procedures, in which Lall took part, and in the course of which the Government refused to disclose Anderson's report to him, Brayne made his report on January 24,1939,in course of which he examined in detail all the eight charges, and found that the nepotism was " complete and deliberate," and that the charges of victimization were all fully proved.

The question was wheter these actions were in accirdance with Section 240 of the Act of 1935, whether the enquiries held by Anderson and Brayne were valid, and whether the Lall was afforded a reasonable opportunity of answering the charges.

On June 21, 1939, the Government of the Punjab sent the records of the enquiry, including Anderson's and Brayne's reports, to the Federal Public Service Commission, and expressed their opinion that Lall should be removed from the Indian Civil Service but should be granted a compassionate allowance. This Commission, in terms of Section 266(3)(c) of the Government of India Act of 1935, was consulted on all disciplinary matters affecting a person serving His Majesty in a civil capacity in India. Lall made representations to the Commission, protesting against the procedure of the enquiry and submitting arguments on the merits. The Commission, in a letter dated August 31, 1939, agreed with Brayne and the Government of the Punjab that no other conclusion was possible than that Lall had acted deliberately both in the matter of nepotism and the matter of victimization, and agreed that he should be removed from the service but should be granted a compassionate allowance, which should be equal to a two-thirds pension.

By Gazette Notification of August 10, 1940, Secretary of State for India directed the removal of Lall from the Indian Civil Service, and Lall was so informed by a letter of the same date.

The Chief Justice in Lall's case observed that at no time before his removal from the service was Lall allowed to see the reports of either Anderson or 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 these 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 Anderson or Brayne in their reports or against the adverse deductions drawn against him, particularly by Brayne.

Bombay High Court Verdict

From the Mumbai High Court oder:

Section 240 of the Government of India Act, 1935, provides as follows :

240. (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 service 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.

The terms " dismissal " and " removal from the service " were accepted as synonymous, and Lall did not maintain before the Board, as he had unsuccessfully maintained in the High Court and the Federal Court, that the appellant had not authority under the Constitution to remove a member of the Indian Civil Service from the service. The removal of the respondent was intended to operate by virtue of Sub-section (1) of Section 240.

Three important questions of construction arouse for decision, viz. 1st, Is Sub-section (1) of Section 240 qualified by Sub-section (3)? 2ndly, Is Sub-section (3) mandatory, or permissive? and 3rdly, What is the proper construction of the words in sub-section (3) "the action proposed to be taken in regard to him"?

Neither of these sections states its provisions to be an exception, but makes an express provision which is necessarily inconsistent with Sub-section (1) of Section 240. On the other hand, Sub-section (4) of Section 240 begins, "Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure...," which is clearly expressed as an exception, but the statutory provision which follows does not affect the terminability of the office. It provides for a payment of compensation in certain events, but does not curtail His Majesty's power to terminate at His pleasure. The appellant maintains that Sub-section (3) does not in terras make express provision such as is contemplated by Sub-section (1); but the opening words of Sub-sections (2) and (3)"No such person as-aforesaid " clearly indicate a qualification of, or exception to, an antecedent provision, which is plainly Sub-section (1). The court finds it difficult to deal with this contention irrespective of the decision of the next question. If Sub-section (3) is merely permissive, and not mandatory, there will be no substance in the first question; but, if Sub-section (3) is mandatory, the court is of the opinion that it would constitute an express provision of the Act, which would qualify the provisions of Sub-section (1) and provide a condition precedent to His Majesty's exercise of His power of dismissal provided by Sub-section (1).

In the second question, it will be necessary to refer to the position prior to the Act of 1935, when the relevant statutory provision was made by Section 96B of the Government of India Act, 1919, and, in particular, by Section (1), which provided as follows:

96B. (1) Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed, and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed....

The later part of the sub-section gives a limited right of appeal, which is not relevant to the present purpose. Under Sub-section (2) of Section 96B, the Secretary of State in Council is empowered to make rules for regulating the classification of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct.The enquiry in this case was conducted under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, which were authorised by this subsection. Rule 55 provides:

Without prejudice to the provisions of the Public Service 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 so direct, an oral enquiry shall be held. At that enquiry 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 called, as he may wish, provided that the officer conducting the enquiry 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. 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.

Bombay High Court

It is to be observed that the provisions of Sub-section (1) of Section 96B of the Act of 1919 are made "subject to the provisions of this Act and of rules made thereunder," that it makes express provision corresponding to Sub-sections (2) and (2) of Section 240 of 1935, but no express provision corresponding to Sub-section (3) of 1935 ; that matter was left to Rule 55. It is interesting to contrast two decisions of this Board, delivered on the same day in 1936. In Rangachari v. Secretary of State for India (1936) L.R. 64 I.A. 40 : S.C. 39 Bom. L.R. 688 it was held that a dismissal of a civil servant by an authority subordinate to that by which he -was appointed was contrary to the provisions of Section 96B, Sub-section (1), of the Act of 1919, and was bad and inoperative. Lord Roche, in delivering the judgment of the Board, said (at p. 53), " It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time."

In the other case, Rule Venkata Rao v. Secretary of State for India (1936) L.R. 64 I.A. 55 : S.C. 39 Bom. L.R. 690, it was held by the same Board that failure to comply with the rules made under Sub-section (2) of Section 96B of 1919 did not give any right of action. Lord Roche, in delivering the judgment of the Board, said (p. 64):

"Section 96B and the rules make careful provision for redress of grievances by administrative process, and it is to be observed that Sub-section (5) in conclusion reaffirms the supreme authority of the Secretary of State in Council over the civil service."

These considerations have irresistibly led their Lordships to the conclusion that no such right of action as is contended for by the appellant exists. They regard the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, but will be regulated by rule.

Contrasting the provisions of Section 96B of 1919 with the provisions of Section 240 of 1935 their Lordships have no difficulty in holdingin agreement with both the High Court and the Federal Court that the provision as to a reasonable opportunity of showing cause against the action proposed is now put on the same footing as the provision now in Sub-section (2) of Section 240, which was the subject of decision in Rangachari's case, and that it is no longer resting on rules alterable from time to time, but is mandatory, and necessarily qualifies the right of the Crown recognised in Sub-section (1) of Section 240 of 1935. The provisions of Section 96B (1), now reproduced as Sub-section (2) of Section 240 of 1935, and of Sub-sections. (2) and (3) of Section 240 are prohibitory in form, which is inconsistent with their being merely permissive.

The third question seeks the proper construction of the phrase "A reasonable opportunity of showing cause against the action proposed to be taken in regard to him." It might be stated more narrowly as the meaning of "the action proposed to be taken." In their judgment, the High Court said, The plaintiff's contention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been considered and the punishment decided upon. With this contention we are unable to agree.

Eight charges were served on the plaintiff and at the end he was asked to 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 the Indian Civil Service. He was aware from the very start of the enquiry against him that removal from service was one of the various actions that could have been taken against him in the event of some or all the charges being established, and in this sense he was showing cause during the course of the enquiry against the action proposed. The plaintiff's contention that there should be two enquiries the first to establish that he had been guilty and the second to determine what should be the appropriate punishment, and that in each stage he should have reasonable and independent opprotunities to defend and show cause does not appear to be correct or intended by the Legislature.

In the Federal Court, Varadachariar J. agreed with the conclusion of the High Court on this question, but the majority of the Court held a contrary view, which is expressed by the learned Chief Justice as follows:

"It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or 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 a 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 subsection 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."

Their Lordships agree with the view taken by the majority of the Federal Court, In their opinion, Sub-section (3) of Section 240 was not intended to be, and was not, a reproduction of Rule 55, which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed " of the grounds on which it is proposed to take action," and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing ; this is in marked contrast to the statutory provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry.

On this view of the proper construction of Sub-section (3) of Section 240, it is not disputed that the respondent has not been given the opportunity to which he is entitled thereunder, and the purported removal of the respondent on August 10, 1940, did not conform to the mandatory requirements of Sub-section (3) of Section 240, and was void and inoperative. It therefore becomes unnecessary to consider the respondent's challenge of the proceedings under Rule 55, and the questions of fact relative thereto.

The Federal Court altered the finding of the High Court, and made a declaration " that the plaintiff I.M. Lall was wrongly dismissed from the Indian Civil Service on June 4, 1940, and has further ordered that the High Court aforesaid do take such action in regard to any application duly made by or on behalf of I.M. Lall for leave to amend to claim damages as to the High Court shall seem right " ; and they remitted the case to the High Court.

In the opinion of their Lordships, the declaration should be varied so as to declare that the purported dismissal of the respondent on August 10, 1940, was void and inoperative, and that the respondent remained a member of the Indian Civil Service at the date of the institution of the present suit on July 20, 1942, Any further action by the Crown that may have occurred since the raising of the action is not covered by the present suit.

The appellant appealed against the order of remit to the High Court for the assessment of damages, and the order of remit by the Federal Court was not maintained by the respondent before this Board, but, on the other hand, he maintained that he was entitled to recover by this action his arrears of pay from the date of the purported order of dismissal up to the date of action. It is unnecessary to cite authority to establish that no action in tort can lie against the Crown, and therefore any right of action must either be based on contract or conferred by statute. It is sufficient to refer to the judgment of Lord Blackburn in the Scottish case of Mulvenna v. The Admiralty [1926] S.C. 842, in which the learned Judge, after reviewing the various authorities, states:

"These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no-matter to what service the servant may belong, whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands the-qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to in the engagement or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servantsee Leaman v. King [1920] 3 K.B. 663, Smith v. Lord Advocate (1897) 25 R. 112, and other cases there referred to. It also follows that this qualification must be read, as an implied condition, into every contract between the Crown and a public servant, with the effect that, in terms of their contract, they have no right to their remuneration which can be enforced in a civil court of justice, and that their only remedy under their contract lies in an appeal of an official or political kind."

Their Lordships are of opinion that this is a correct statement of the law. In the present case there is no obligation as to pay in the respondent's covenant, as already mentioned. The respondent sought to establish a statutory right to recover arrears of pay by action in the civil Court; he made reference to certain sections of the Government of India Act, 1985, viz. Sections 179(9), 247 (4), 249 and 250, but it is enough to state that their Lordships are unable to derive from them any statutory right to recover arrears of pay by action. He also referred to Section 32 of the Government of India Act of 1919, which, by Sub-section (2), provides the same remedies against the Secretary of State in Council as might have been had against the East India Company if the Government of India Act, 1858, and the Act of 1919 had not been passed, but it has been settled ever since Gibson v. East India Company (1897) 5 Bing. N.C. 262, that pay could not be recovered by action against the Company, but only by petition, memorial or remonstrance. It follows that the respondent fails in his claim to arrears of pay.

Their Lordships will humbly advise His Majesty that the judgment and order appealed from should be varied by substituting, in place of the declaration made therein, a declaration that the order of August 10, 1940, purporting to dismiss the respondent from the Indian Civil Service was void and inoperative, and that the respondent remained a member of the Indian Civil Service at the date of the institution of the present action on July 20, 1942 ; that the order for a remit to the High Court should be set aside, and that otherwise the judgment and order should be affirmed. As prescribed by the Order in Council granting special leave, the costs of the respondent will be paid by the appellant as between solicitor and client. Their Lordships are not disposed to accede to, the application made by the respondent during the hearing, at which he was represented by counsel, to be allowed the costs of his coming over to this country from India.

Lall,later worked as an advocate in Punjab.

A case pertaining to his dismissal was still alive in 1974.It pertained to a case fo recovery of Rs 19,173.57.The subordinate judge class I had dismissed the suit on 27 November 1963.Delhi High Court Judge B C Misra set aside the lower court verdict in the appeal on 31 October 1974.

From this case,we get to know that when removed,Lall was given Rs I lakh as ex gratia payment and a compassionate allowance of at the rate of Rs 4693.50 per annum subject to a minimum of £ 440 per annum,during the period he had been out of service.Part of the compassionate allowance was commuted and the other part was paid in instalments.The commuted amount came to Rs 34026.06 thaough what paid to him was Rs 49,822.60 ( besides one lakh).The amount was paid against an undertaking given by him to refund if found he was not entitled to it.Later on the government discovered that it had over paid Rs 19753.57 and it claimed refund of the same.The government of Punjab and Government of India instituted a suit against Lall,on 31 May,1960.

Lall argued that the plaint was not properly signed,and the Government of Punjab had no locus standi to file it.He claimed that he had declared to be in service finally judgement of the Privy Council in March,1948 and that he was entitled to payment of his salary for the period and that the payment paid by the government disn't come to half his salary.He had never accepted the payment in full and final settlement of the claim,but only accepted it as part payment and has reserved his reserved his right to obtain the balance.He admitted to having received Rs 1,49,822 .60.

The Judge has recorded that the government had claimed that Lall was reinstated on 30 September 1948,which is incorrect.The High Court reversed the order of the lower court favouring Lall.Lall was removed on 4 June 1940.He filed a suit which resulted in the decision of his appeal by the High Court of Lahore.An appeal against this was taken before the Federal Court,wgich decided it.An appeal against this was taken to the Privy Council.The final decision by the Privy Council in the matter is reported in The High Commissioner vs IM Lall AIR 1948 PC 121.The Judicial Committee held that "removal of IM Lall from service was void and a declaration was granted that on the date of the suit,June 1942 he remained in service".In the eye of the law,thus Lall never had any break in service and his removal having been set aside,and eclared void,and declaratiion having been granted that he continued to remain in service,the legal effect was to treat Lall as in service during the whole period from the suit till the decision of the Privy Council.and until after legally terminated.During this period,he was entitled to receive salary.But e had not filed any suit for recovery of the salary,the Court observed.

M R Jayakar

M R Jayakar (1873- 1959 ) who sat in the bench in Lall case was the first Vice-Chancellor of the University of Poona,.Jayakar studied LL.B. in Bombay in 1902 and became a barrister in 1905 at London. In 1905 he was enrolled as advocate of the Bombay High Court. He was Director of The Bombay Chronicle along with Jinnah.

He was a member of the Bombay Legislative Council during 1923-1925, and a leader of the Swaraj Party. He also became member of Central Legislative Assembly. In 1937-1939 he was Judge of Federal Court of India at Delhi. In December 1946, he joined Constituent Assembly of India.He was also the chairman of Indian Road Development Committee, formed in 1927 to report some recommendations in the highway development. He was a member of Akhil Bharatiya Hindu Mahasabha..He was elected to the Constituent Assembly on a Congress ticket from Bombay. However after a brief stint in the Assembly, he gave up his seat which Babasaheb Dr. B. R. Ambedkar then occupied.

In 1930, Jayakar and Tej Bahadur Sapru were involved in negotiations between Congress and the Government when Motilal Nehru and other Congress members were imprisoned. These negotiations are said to have led to the Gandhi-Irwin Pact of March 1931 whereby Congress members were released from prison in return for the discontinuation of non-cooperation; the salt tax was removed and Congress members would be represented at the next Round Table Conference. Jayakar was a member of the Judicial Privy Council in London and attended the Round Table Conference in London in 1931.

In the Secretary of State of India vs IM Lall case in Federal Court in Delhi,the Bench consisted of Justices Petrick Spens C.J, Srinivasa Varadachariar and Muhammad Zafrulla Khan JJ.

The Indian Civil Service (ICS), for part of the 19th century officially known as the Imperial Civil Service, is the elite higher civil service of the British Empire in British India during British rule in the period between 1858 and 1947.

Its members ruled over more than 200 million people in the British Raj. They were ultimately responsible for overseeing all government activity in the 250 districts that comprised British India..The ICS was headed by the Secretary of State for India, a member of the British cabinet.

Leo Amery ( 1873-1955) was the Secretary of State for India who removed Lall.was a British Conservative politician and journalist, noted for his interest in military preparedness, British India and the British Empire and for his opposition to appeasement.During the Second Boer War Amery was a correspondent for The Times.Amery was Colonial Secretary in Stanley Baldwin's government from 1924 to 1929.During the Churchill war ministry Amery was Secretary of State for India despite the fact that Churchill and Amery had long disagreed on the fate of India. Amery was disappointed not to be made a member of the small War Cabinet, but he was determined to do all he could in the position he was offered. He was continually frustrated by Churchill's intransigence, and in his memoirs, he recorded that Churchill knew "as much of the Indian problem as George III did of the American colonies".

Amery opposed holding an inquiry for the 1943 Bengal famine, fearing that the political consequences could be "disastrous". In 1944, the Famine Inquiry Commission was held against his advice.

At first almost all the top thousand members of the ICS, known as "Civilians", were British, and had been educated in the "best" British schools. By 1905, five per cent were from Bengal. In 1947 there were 322 Indians and 688 British members; most of the latter left at the time of partition and independence.

Though the first exam for ICS was held in 1855 in London, not a single Indian, pejoratively called natives then, was there to take the exam because either Indians did not possess the required education and grooming or did not have the means to travel to London, which also included the expenses for boarding and lodging.

Besides, Indian society was superstitious and crossing oceans was considered a bad omen, especially among Hindus. Initially, the ICS was an all-white affair, but the elder brother of Rabindranath Tagore, Satyendranath Tagore, became the first Indian to qualify for the ICS in 1863.Most Indian ICS aspirants took loans to go abroad. In the late 1890s, the philanthropist JN Tata set up a scholarship/loan fund for Indians to study abroad, which included as a condition that they give the ICS exam (by 1924, over a third of all Indian ICS officers were Tata scholars).The first Indian to stand first in one of the two parts of ICS exam held in 1904 was Gurusaday Dutt of Bengal.

A O Hume

Sir William Wedderburn, ICS, of the 1859 batch, who remained judge of the Bombay high court and retired as chief secretary, Bombay Presidency (present day Maharashtra, Gujarat and Sindh province of Pakistan), along with retired director general of agriculture of Government of India, AO Hume, ICS, founded the Congress party in 1885.

Hume became its first president in 1885 whereas Wedderburn served as Congress president in 1889 and 1910.

The first person to qualify for the ICS exam from north India was Sir Shadi Lal Aggarwal of Rewari (Haryana), who was selected in 1902. It’s not well known that Sir Shadi Lal after his training in Haileybury resigned and started practicing as a barrister in Lahore. He later became a judge and chief justice of the chief’s court (later upgraded as Lahore high court on 21 March 1919).

In the 1920 batch of ICS, interestingly, Netaji Subhas Chandra Bose stood fourth. Bose reported for training and resigned in April 1921, joined the freedom movement and became Congress president in 1938 and 1939 and also a legendary freedom fighter.

The competitive examination for entry to the civil service was combined for the Diplomatic, the Home, the Indian, and the Colonial Services. Candidates had to be aged between 21 and 24, which gave everyone three chances for entry. The total marks possible in the examination were 1,900. Successful candidates underwent one or two years probation in England, according to whether they had taken the London or the Indian examination. This period was spent at the University of Oxford (Indian Institute), the University of Cambridge, colleges in the University of London (including School of Oriental Studies) or Trinity College, Dublin, where a candidate studied the law and institutions of India, including criminal law and the Law of Evidence, which together gave knowledge of the revenue system, as well as reading Indian history and learning the language of the province to which they had been assigned.

Prior to the First World War, 95% of ICS officers were Europeans; after the war, the British government faced growing difficulties in recruiting British candidates to the service. Fewer and fewer young men in Britain were interested in joining, mainly due to the decreased levels of compensation to be had compared to other careers.Confronted with numerous vacancies, the government resorted to direct appointments; between 1915 and 1924, 80% of new British ICS candidates entered the service in this way. During the same period, 44% of new appointments to the ICS were filled by Indians.

Service Commission under the Government of India Act 1935) made several recommendations: ICS officers should receive increased and more comprehensive levels of compensation, future batches of ICS officers should be composed of 40% Europeans and 40% Indians, with the remaining 20% of appointments to be filled by direct promotion of Indians from the Provincial Civil Services (PCS) and the examinations in Delhi and London were to produce an equal number of ICS probationers. In addition, under-representation of candidates from Indian minority groups (Muslims, Burmese and so on) would be corrected by direct appointments of qualified candidates from those groups, while British candidates would continue to have priority over Indians for ICS appointments.

Broome with Swarup Kumari

At the time of the partition of India and departure of the British, in 1947, the Indian Civil Service was divided between the new Dominions of India and Pakistan. The part which went to India was named the Indian Administrative Service (IAS), while the part that went to Pakistan was named the "Civil Service of Pakistan" (CSP). In 1947, there were 980 ICS officers. 468 were Europeans, 352 Hindus, 101 Muslims, two depressed classes/Scheduled Castes, five domiciled Europeans and Anglo-Indians, 25 Indian Christians, 13 Parsis, 10 Sikhs and four other communities. Most European officers left India at Partition, while many Hindus and Muslims went to India and Pakistan respectively.

Despite offers from the new Indian and Pakistani governments, virtually all of the European former ICS officers left following partition, with the majority of those who did not opt for retirement continuing their careers either in the British Home Civil Service or in another British colonial civil service.]A few British ex-ICS officers stayed on over the ensuing quarter-century, notably those who had selected the "judicial side" of the ICS. The last British former ICS officer from the "judicial side" still serving in the subcontinent, Justice Donald Falshaw (ICS 1928), retired as Chief Justice of the Punjab High Court (now the Punjab and Haryana High Court) in May 1966, receiving a knighthood in the British 1967 New Year Honours upon his return to England. J P L Gwynn (ICS 1939), the last former ICS officer holding British nationality and the last to serve in an executive capacity under the Indian government, ended his Indian service in 1968 as Second Member of the Board of Revenue, but continued to serve in the British Home Civil Service until his final retirement in 1976.

Justice William Broome (ICS 1932), a district and sessions judge at the time of Independence in 1947, remained in Indian government service as a judge. Having married an Indian, Swarup Kumari Gaur, in 1937, with whom he raised a family, he eventually renounced his British citizenship in 1958 and became an Indian citizen with the personal intervention of Prime Minister Jawaharlal Nehru, himself a former barrister who regarded Broome as a distinguished jurist and as "much as Indian as anybody can be who is not born in India." Upon his retirement on 18 March 1972 from the Allahabad High Court as its seniormost puisne judge, Broome was the last former ICS officer of European origin serving in India.

Nirmal Kumar Mukarji (ICS 1943), a member of the final batch recruited to the ICS and who retired as Cabinet Secretary in April 1980, was the last Indian administrative officer who had originally joined as an ICS. The last former ICS officer to retire, Aftab Ghulam Nabi Kazi (also a member of the final ICS batch of 1943), retired as Chairman of the Pakistan Board of Investment in 1994. V. K. Rao (born 1914; ICS 1937), the last living ICS officer to have joined the service in a regular pre-war intake, died in 2018. He was a retired Chief Secretary of Andhra Pradesh and was the oldest former ICS officer on record at the time of his death. As of 2020, only one ICS officer remains alive- V.M.M. Nair (ICS 1942), who transferred to the Indian Political Service in 1946 and then to the Indian Foreign Service after Independence.


© Ramachandran