JUDGMENT Panckridge, J. - The material portions of his Lordship's judgment, containing those findings of fact upon which his decisions as to the matters of law finally decided in the case are founded, were as follows:-- Panckridge, J.:-- (After stating the facts, continued:) The following issues were raised by the Advocate-General:-- 1. Was the employment of the Plaintiffs by the Defendant conditional on their continuing in the service of the Railway up to the 31st December, 1923? 2. (a) Were the Plaintiffs guilty of breach of duty and misconduct with reference to the live consignments in question? 2. (b) Did the Plaintiffs submit false explanations in connection therewith? If so, are their dismissals justified? 3. Is the Defendant liable for any of the heads of damages claimed in the plaints? 4. Are the Plaintiffs entitled to make any claim in respect of the provident fund having regard to the rules applicable to that fund? 5. To what sums, if any, are the Plaintiffs entitled? 2. On these issues the Advocate-General submitted that he had the right to begin since on the issue of fact, namely, the alleged misconduct of the Plaintiffs, the burden of proof was upon him. Mr. Pugh did not accept this contention, but having regard to the language of Or. 18 of the Code of Civil Procedure, it appeared to me that the Advocate-General's claim was well founded, and I ruled in his favour. 3. [After setting out the f acts and referring in some detail to the evidence his Lordship continued :--] I now turn to Mr. D'Cruz's account of is telephonic conversation with Mr. Veils. It appears that some time subsequent to the dismissal of the Plaintiffs Mr. Wells was himself summarily dismissed but not in connection with he consignments of cotton waste. (The witness) [The words inside the brackets, in this paragraph, are the reporter's own insertions.] Ghose has told the Court that in his opinion Mr. Wells was a party to the conspiracy of which he believes the Plaintiffs were guilty. It appears that Mr. Colvin (The Agent) informed Mr. Wells that D'Cruz had alleged that in sending the consignment (cotton waste) to Lillooah without weighment he was acting upon Mr. Wells' instructions. Mr. Colvin directed Mr. Wells to report on the matter. In reply it appears that Mr. Wells corroborated the account of the affair given by Mr. It appears that Mr. Colvin (The Agent) informed Mr. Wells that D'Cruz had alleged that in sending the consignment (cotton waste) to Lillooah without weighment he was acting upon Mr. Wells' instructions. Mr. Colvin directed Mr. Wells to report on the matter. In reply it appears that Mr. Wells corroborated the account of the affair given by Mr. D'Cruz and acknowledged his own responsibility for what Mr. D'Cruz had done. Mr. Wells' report was disclosed by the Defendant on the direction of the Court. 4. Mr. Pugh has submitted that the Plaintiffs are entitled to tender this report in evidence and to treat it as an admission made by an agent of the Defendant. He also suggests that the report is admissible under sec. 32 of the Indian Evidence Act. I do not agree with these contentions. As to sec. 32 I hold that it has not been established that Mr. Wells' evidence cannot be obtained without occasioning undue expense to the Plaintiffs. No application has been made for a commission to examine Mr. Wells, and I see no ground for assuming that had a commission issued it could only have been executed at great expense. Mr. Pugh also seeks to have the evidence admitted under sec. 20 of the Evidence Act. To my mind that section is not applicable to the case. Sec. 20 appears to me to contemplate the existence of three parties first, the party who refers, secondly, the party who is referred, and, thirdly, the party to whom reference is made, the principle being that when one party refers another second party to a third party for information the first party will be presumed to undertake to adopt as his own the information furnished by the third party. I do not think these conditions are fulfilled when a master calls for a report from a servant, where there is nothing to indicate that in doing so he is intending to regard the servant's report as conclusive [see Cooper v. Metropolitan Board of Works L.R. 25 Ch. Div. 472 (1883)]. On these grounds I hold that Mr. Wells' letter is inadmissible as substantive evidence of the facts alleged therein. Of course, this does not mean that the Plaintiffs may not comment on the failure of the Defendant to call Mr. Wells in support of his case. * * * * 5. Div. 472 (1883)]. On these grounds I hold that Mr. Wells' letter is inadmissible as substantive evidence of the facts alleged therein. Of course, this does not mean that the Plaintiffs may not comment on the failure of the Defendant to call Mr. Wells in support of his case. * * * * 5. [Referring to the case of the Plaintiffs D'Cruz and Griffiths and alter considering the evidence in detail affecting them his Lordship said:] In these circumstances I hold that the Agent of the East Indian Railway Company was justified in summarily dismissing Mr. D'Cruz and Mr. Griffiths. ***** 6. [Referring to the case of the Plaintiff Biswas and after considering that part of the evidence which affects him his Lordship said: "He (meaning Biswas) has not committed himself to the story of the pressed bales, and that being so, in my opinion the Defendant has failed to discharge the burden of showing that the Agent of the East Indian Railway Co., was justified in summarily dismissing Biswas on the 16th October, 1924."] ***** 7. [In referring to the cases made on behalf of the Plaintiffs Conwell and Chatterjee his Lordship said: " I have now considered the relevant evidence with regard to what happened at Lillooah and the conclusion I have arrived at is that the Agent of the Company was justified in dismissing Mr. Conwell and Kunja Behary Chatterjee on October 16th, 1924" and continued.] 8. I must now deal with the various points of law which have been raised by the Defendant and I must consider them with all the more care by reason of the fact that I have found in favour of one of the Plaintiffs on the merits. 9. The first point raised by the Advocate-General is with regard to the claim made by the Plaintiffs for damages for wrongful dismissal' on the 16th October, 1924. It cannot be questioned that the dismissal was by the East Indian Railway Company, and normally the East Indian Railway Company would be the only person who could be called upon to pay damages on account of the breach of contract alleged. I may add that there was no practical difficulty in suing The East Indian Railway Company. It cannot be questioned that the dismissal was by the East Indian Railway Company, and normally the East Indian Railway Company would be the only person who could be called upon to pay damages on account of the breach of contract alleged. I may add that there was no practical difficulty in suing The East Indian Railway Company. Although it is no longer working the East Indian Railway, the Company still exists and has a registered office and will be, I am informed, in existence for many years to come while certain annuities are being paid off. It is therefore necessary to examine the grounds upon which the Plaintiffs seek to render the Secretary of State liable for the damages occasioned by their dismissal by the East Indian Railway Company. By sec. 111 of the East Indian Railway Company Purchase Act 1879, (42 and 43 Victoria, Chapter CCVI) the undertaking of the East Indian Railway Company and all their estate, right, title and interest therein was vested in the Secretary of State in pursuance of a contract previously entered into. By another contract between the Secretary of State and the Company dated the 22nd December, 1879, the Company undertook the working of the railway on behalf of the Secretary of State on certain terms. By cl. 60 of that contract the Secretary of State was empowered to give certain notice in writing upon the expiration of which the Company covenanted to give the Secretary of State possession of the undertaking. It is admitted that in pursuance of a notice validly given the Company made over possession of the railway to the Secretary of State on the 31st December, 1924. CL GO contains the following word--, And the Secretary of State shall be bound to indemnify the Company, their property and effects against all such debts and liabilities, if any, as they may have incurred with the sanction of the Secretary of State and which shall be then subsisting. 10. The Plaintiffs maintain that these words confer upon them a right to claim from the Secretary of State the damages occasioned by their wrongful dismissal by the East Indian Railway Company. The first difficulty that has to be surmounted is that the Plaintiffs are not parties to the contract between the Company and the Secretary of State. Mr. 10. The Plaintiffs maintain that these words confer upon them a right to claim from the Secretary of State the damages occasioned by their wrongful dismissal by the East Indian Railway Company. The first difficulty that has to be surmounted is that the Plaintiffs are not parties to the contract between the Company and the Secretary of State. Mr. Pughi has cited various authorities in support of the proposition that in India there are exceptions to the well-recognised principle of English Law that only parties to to a contract can sue upon it. [Tweddle v. Atkinson 1 B. & S. 393 (1861)]. The cases relied upon do not appear to me to be applicable because upon the facts the persons seeking relief under the contract, although they were strangers to it, were in the position of promisees whose promise was not supported by consideration. Under the section which I am now considering the Secretary of State does not purport to undertake directly any ability incurred by the Railway to third parties, but only to indemnify the Railway against certain debts and liabilities. This to my mind is a most important distinction. I may add that if the view which I, have just expressed is mistaken it appears to me that there is a further difficulty in the Plaintiffs' way, for I cannot see on what principle a claim for damages for breach of contract, such as the Plaintiffs are making. can be described as a debt or liability incurred with the sanction of the Secretary of State. My conclusion is, therefore, that the Secretary of State cannot be made answerable for damages occasioned by wrongful dismissal on the part of the East Indian Railway Company. 11. I now turn to the claim which is made against the Secretary of State for breach of contract in refusing to employ the Plaintiffs as from the 1st January, 1924. The Advocate-General's argument may be summarised as follows: The Secretary of State cannot be sued for damages for wrongful dismissal. It must follow logically from this that he cannot be sued for failure to carry out a contractual obligation to employ. With regard to the first point the authorities appear to be all one way. The Advocate-General's argument may be summarised as follows: The Secretary of State cannot be sued for damages for wrongful dismissal. It must follow logically from this that he cannot be sued for failure to carry out a contractual obligation to employ. With regard to the first point the authorities appear to be all one way. It is well recognised that generally speaking the Secretary of State can only be sued in circumstances in which prior to 1858 the East India Company could have been sued. It appears to me that it is beyond question that the East India Company had the power to dismiss at pleasure. A right so to dismiss is recognised by 33, George III, Chapter 52, [Being an Act for continuing in the East India Company for a further term the possession of British Territories in India, etc.--Rep.] secs. 35 and 36. It may be said that this section only recognises an existing right and that one must look elsewhere to discover its nature and extent. The matter, however, is in my opinion placed beyond doubt by sec. 75, 3 and 4 William IV, Chapter 85, [Being an Act for continuing in the East India Company, for a still further term the possession of British Territories in India, etc.--Rep.] which confers upon the Court of Directors full liberty to remove or dismiss their officers and servants at their will and pleasure. There is nothing in the section to lend colour to the view that the legislature intended in this respect to distinguish in any way between those servants who were employed to carry out the sovereign functions of the Company and those servants who were employed to carry out its trading functions. I need not consider in detail the various cases in which, the power of the Secretary of State to dismiss at pleasure has been recognised. I would only refer to a decision of Fletcher, J., in King v. Secretary of State for India in Council 15 C.W.N. 486 (Footnote) (1968). I refer to that case because the Plaintiff was employed by the Government of India as the Manager of a tea garden in the Andaman Islands and not in any capacity in which he could properly be said to be carrying out the sovereign functions of Government. I refer to that case because the Plaintiff was employed by the Government of India as the Manager of a tea garden in the Andaman Islands and not in any capacity in which he could properly be said to be carrying out the sovereign functions of Government. I may also refer to Denning v. Secretary of State for India in Council 37 T.L.R. 138 (1920), from which it appears that where there is power to dismiss at pleasure the fact that the agreement of service is for a fixed term does not affect the right. The same principle seems to have been recognised by the Court of Appeal in Hales v. The King 34 T.L.R. 589 (1918). I should add that it is not suggested that there are any statutory provisions that limit the general powers of the Secretary of State in the circumstances of this particular case, a fact which distinguishes it from Satish Chandra Das v. Secretary of State for India ILR 54 Cal. 44 (1926), where Buckland, J., held that the Plaintiff was entitled to claim damages for wrongful dismissal by reason of certain provisions of the Government of India Act, 1919, and rules made thereunder, following the principle laid down in the judgment of the Judicial Committee in Gould v. Stuart L.R. [1896] A C. 575. It may be to some disquieting that the Secretary of State should have the power thus arbitrarily to dismiss servants of Government who are not carrying out duties in any way connected with Government's sovereign functions. But it appears to me clear that this power does exist. If so, I think that the Advocate-General rightly argues that the same principles must apply to the breach of a contract to employ, because I think that in law no damages can be said to be occasioned by a refusal to employ when it is part of the conditions of employment that employees can be dismissed the moment that he present himself for duty. 12. Another point has been urged by the Advocate-General, namely, that the language of the offer made by Government in the notification issued in the middle of 1924 shows that it was one of the conditions of employment under Government that the person to be employed should be still in the employment of the East Indian Railway Company on the 31st December, 1924. He bases his argument on the use of the word " retain " in paragraph 4 of the Circular. I notice however, that in paragraph 2 the Government of India are described as anxious to " obtain " the services of the existing staff of the Railway. It must also be borne in mind that the word "retain" has in English two distinct meanings: firstly to keep what a person has already got and secondly to reserve or to bespeak. It seems to me that if the Government were disposed to insist that a person in the employ of the Railway when the offer was made should still be in its employ on the 31st December, 1924, it would have been easy to say so in unmistakable terms. I think that the wording of the notification is ambiguous and should be construed contra proferentem. I am, therefore, opinion that it was not a condition of employment under the Secretary of State that the person to whom the offer was made should be in the employment of the Company when the undertaking was handed over. 13. The claim as regards the Provident Pand stands on a footing peculiar to itself. The Advocate-General has argued that as the pleadings stand the Plaintiffs cannot recover, if I am right in the view I take as to the liability of the Secretary of State for damages occasioned by wrongful dismissal on the part of the Company, because loss of provident fund is claimed as a special damage arising from such dismissal, I should be 10th to concede to this argument, and if necessary, I would be disposed to listen favourably to any application for leave to amend the plaint in such a way as avoid this technical difficulty, because I am of opinion that in the matter of the provident fund the liability, if any, of the Secretary of State is direct. That appears to me to follow from the language of sec. 4 of the East Indian Railway Company Purchase Act, the effect of which I consider to be to give members of the Provident Fund a direct claim against the Secretary of State. But what in my judgment is a fatal obstacle in the Plaintiffs' way is sec. That appears to me to follow from the language of sec. 4 of the East Indian Railway Company Purchase Act, the effect of which I consider to be to give members of the Provident Fund a direct claim against the Secretary of State. But what in my judgment is a fatal obstacle in the Plaintiffs' way is sec. 26 of the Provident Fund Rules which provides that: In cases of dispute the matter in dispute shall be referred in writing to the Advocate-General or Standing Counsel in Calcutta and an award, order or decision of the said referee shall be a condition precedent to any right of action of any party in difference in respect of any of the matters by the rules provided or in any way arising thereout or connected therewith and whatever award, order or decision shall be made by the said referee shall be binding and conclusive on all parties and shall be final to all intents and purposes without any appeal. 14. It is admitted that no such reference, as is contemplated by the Rule, has in fact been made. The legality of a clause in a contract to the effect that no cause of action can accrue until a third person has decided on any difference that may arise between the contracting parties was recognised long ago in Scott v. Avery 5 H. L. C. 811 (1856). In Aghore Nath Banerjee v. Calcutta Tramway Co., Ltd. ILR 11 Cal. 232 (1885), this Court held that there is nothing in the Contract Act which prevents the principle from being applicable in India. It would also appear from Trainor v. Phoenix Fire Assurance Co. 65 L. T. Q. B. 825 (1891), that the principle holds good when the Referee has power to determine liability and his decision is not limited to quantum. It follows, therefore, that the Plaintiffs have no cause of action in respect of the Provident Fund. This concludes my consideration of the questions of law. The result is that, for the reasons I have given, none of the Plaintiffs, including Biswas, is entitled to succeed, and the suits must be dismissed with costs on scale No. 2.