HC Deb 06 April 1921 vol 140 cc282-6W

asked the Secretary of State for India whether the main difference in the new and old forms of contract for service in India is to make it clear that the officer serves at the will and pleasure of the Crown, but that the new form of contract contains no provision safeguarding a civil servant against injustice through departmental blunders; and whether he will consider the advisability of arranging for future cases of dispute to be referred to an independent tribunal, and so avoid departmental mistakes inadvertently ruining the careers of able men and losing their services to the Indian Empire?


The relevant point of difference between the present form of contract and that which was in use in 1909 is that the present form states explicitly a condition, which in the earlier form was contained by reference to the Civil Service Regulations, namely, that service may be determined by reason of medical unfitness on the report of a duly constituted advisory medical board. I do not understand the hon. Member's references to departmental blunders and mistakes, and do not consider it necessary to insert any provision purporting to safeguard a civil servant against their occurrence, nor to take the action suggested in the second part of the question.


asked the Secretary of State for India whether he is aware that the new form of India Office contract of service is open to the strictures passed by a judge on the form of contract relied upon by the plaintiff in Denning v. Secretary of State for India; whether he contemplates amending Clause 6 with its provision for dismissal without notice in the event of misconduct, seeing that the learned judge considered it unnecessary, as the contract was liable to be determined at the pleasure of the Crown; what is the object of the provision as to the taking of evidence in the event of an action of legal proceedings between the parties, seeing that the learned judge considered such Clause misleading since its implication was that proceedings would lie against the Secre- tary of State; whether Clause 10 in the new form of contract is open to the same objection as Clause 9 in the old form, namely, of indicating that service can only be determined by three calendar months' notice before the expiration of the agreement period; whether his attention has been drawn to the Attorney-General's assurance that the learned judge's remarks should receive every attention and respect; whether, in view of the learned judge's observations that the general form of these contracts was most unfortunate and misleading and contradictory to the Crown's common law right to determine the contract at any time without notice, he will consider the advisability of having the new form of contract revised and a draft submitted to one of His Majesty's judges for criticism before its final adoption; whether, in view of the Crown's power of dismissal at pleasure, such contracts will henceforth be known as memoranda of engagement and not agreements; whether he will consider the insertion of a fresh Clause, calling attention to the Crown's present power of dismissal at pleasure and at the same time safeguarding the interests of the civilian signatory against injustice through departmental blunders; and whether he will consider the advisability of arranging for civil servants with expired contracts having the right of reference to an independent tribunal?


As regards the first, fifth, sixth, and eighth parts of the question the learned judge in the case referred to criticised the form of the contract made with Dr. Denning as misleading, and the Attorney-General gave an assurance that the judge's remarks would receive every attention; the present form of contract differs from the old in stating more explicitly that service may be terminated on account of medical unfitness, but I am aware that the present form does not wholly meet the judge's criticism in so far as it makes no reference to the Crown's common law right to determine an officer's service at pleasure. I am advised that it is so well established by previous cases as to be sufficiently well known that persons in the Civil Service of the Crown hold office during His Majesty's pleasure, and a declaration to this effect is now included in the Government of India Act; it should consequently be well known that the Crown has the legal right, however infrequently exercised, to dispense with its officers' services, but I am considering whether a reference to this right of the Crown should be inserted in the form of contract; it would not, I think, be desirable to refer the question to one of His Majesty's judges who cannot properly be asked to share in the responsibility for an executive decision; I do not understand the reference to departmental blunders and do not consider it necessary to insert a provision purporting to safeguard officers from injustice arising from such a source. As regards the second and fourth parts of the question, it is, I think, agreed that any amendment of the form of contract should be in the direction of making it more explicit rather than the reverse; I do not therefore contemplate amending Clause 6, which already contains specific provision for dismissal in certain circumstances; the learned judge's criticisms of certain clauses were based on the absence of any accompanying clause referring explicitly to the Crown's common law right of dismissal, and (whether or not it is found practicable to insert such a clause) it is clearly desirable to retain the existing specific conditions as to notice and dismissal, otherwise the Crown would have to rely generally on its common law right, which is exactly the opposite of what both the hon. Member and I myself desire. As regards the third part of the question I am advised that it is desirable to retain the concluding clause of the form of contract which contains provisions as to the giving of evidence; other actions besides actions for wrongful dismissal might be brought in respect of the agreements. As regards the seventh part of the question I do not see the need of the change of nomenclature suggested. The answer to the last part is in the negative.


asked the Secretary of State for India whether he is aware that in Denning v. the Secretary of State for India the plaintiff, formerly Superintendent of Industries; Bengal, contended that the medical evidence upon which his contract of service had been prematurely terminated was wrong in fact and false in deduction; that Dr. Denning has been consistently refused any opportunity, of rebutting the India Office Medical Board's verdict that he was incapacitated for further service in India; that, when com- municating the Board's verdict, the Deputy-Accountant-General suggested that Dr. Denning should apply for permission to retire from the service of the Government; that Dr. Denning acknowledged, expressing his readiness to resume his duties, and inquiring whether the Medical Board ascribed his alleged incapacity for further service to cardiac defect; that to this inquiry the Under-Secretary replied that it was not in accordance with the practice of the India Office to give the information asked for; that thereupon Dr. Denning declined to send in his resignation; that the Under-Secretary subsequently notified him that his service under the Government had terminated; that Dr. Denning then challenged the propriety of this summary dismissal, in view of his special contract, and at the same time stated that he had taken the opinion of eminent medical men, and held a written certificate that he was in as good health then as previous to his departure for India; that, despite frequent applications for details of the India Office Medical Board's verdict, it was not until he had started proceedings for breach of contract and of wrongful dismissal, and the defence was delivered, that the India Office medical particulars were disclosed; that the particulars then disclosed stated that after an attack of malaria Dr. Denning developed a mitral systolic murmur audible round his axilla, whereas this condition was consequent on rheumatic fever at the age of 14, was present when he was passed for service in India, and that an eminent Harley Street heart specialist considered the valve leakage so slight that the heart is not embarrassed in its work and the functional efficiency not impaired; that for practical purposes the heart is sound, not liable to failure, and Dr. Denning is fit for any occupation; and, in view of the unsatisfactory medical position, will he consider the advisability of Dr. Denning's case even now being gone into further, with the object of his receiving adequate compensation for the loss of income sustained through the India Office handling of his case and the consequent damage to his future prospects?

Mr. MONTAGU: The facts recited in the first nine parts of the question are substantially correct, except that I cannot accept the description of the termination of Dr. Denning's services as a "Sum- mary dismissal." As regards the tenth and eleventh parts, it was stated in the defence that Dr. Denning suffered from malarial fever in India and developed a mitral systolic murmur; Dr. Denning alleged in his reply that this condition was present in 1909 when he was passed for service in India by the India Office Medical Board and that it was, or could have been, known by the medical board; if Dr. Denning's present allegation is correct, it is difficult to reconcile it with the fact that in 1909 he signed a specific declaration that to the best of his knowledge and belief he was not affected with any form of disease such as disease of the heart and that he would fully reveal to the medical board all circumstances within his knowledge that concerned his health. I cannot enter now into questions which are matter for expert medical opinion; the medical board which examined Dr. Denning were the responsible medical advisers of the Secretary of State in Council and being possessed of Indian experience were best qualified to judge of the degree of medical unfitness that would prevent an officer performing efficiently trying duties in the peculiar conditions of service in India. The answer to the last part of the question is in the negative.