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Bhaishanker Avalram Joshi Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 704 of 1960
Judge
Reported in(1963)0GLR1001
ActsCode of Civil Procedure (CPC), 1908 - Sections 80 - Schedule - Order 41, Rule 22 ; Constitution of India - Article 311 and 311(2); Bombay Reorganization Act, 1960 - Sections 60, 61, 64, 81 and 82; Government of India Act, 1935 - Sections 240; Indian Independence (Rights, Properties and Liabilities) Order, 1947
AppellantBhaishanker Avalram Joshi
RespondentState of Bombay
Appellant Advocate M.G. Sinroja, Adv.; A.D. Desai, Assistant Government Pleader
Respondent Advocate A.D. Desai, Assistant Government Pleader
Cases ReferredState of Tripura v. Province of East Bengal
Excerpt:
(i) labour and industrial - dismissal - section 80 schedule and order 41 rule 22 of code of civil procedure, 1908, articles 311 and 311 (2) of constitution of india, sections 60, 61, 64, 81 and 82 of bombay reorganization act, 1960, section 240 of government of india act, 1935 and indian independence (rights, properties and liabilities) order, 1947 - whether order of dismissal invalid as plaintiff not been furnished copy of report of enquiry officer on basis of which show cause notice was issued - dismissing authority not able to show supply of copy of report not required to advance cause of reasonable opportunity - furnishing copy of report of enquiry officer important in direction of final action proposed to be taken against delinquent - held, dismissal offended provisions of article.....1. this is a plaintiff's second appeal. plaintiff joined service in the gondal state as a jailor in 1927. he was serving as a jailor at gondal in 1948 when the state of gondal merged with the united states of kathiawar. plaintiff was absorbed as a servant of that state. subsequently, he was transferred to surendranagar in 1951 and, on or about 1 august, 1952, he was promoted as a senior jailor. later on, he was transferred to rajkot and demoted as an accountant. in 1953, he was serving as an accountant in the central jail at rajkot. whilst he was so serving, charges ware levelled against the plaintiff on the ground that, in or about 1952, whilst he was serving at surendranagar, he had committed certain defaults by misappropriation of foodstuffs, maltreatment of prisoners and acceptance of.....
Judgment:

1. This is a plaintiff's second appeal. Plaintiff joined service in the Gondal State as a jailor in 1927. He was serving as a jailor at Gondal in 1948 when the State of Gondal merged with the United States of Kathiawar. Plaintiff was absorbed as a servant of that State. Subsequently, he was transferred to Surendranagar in 1951 and, on or about 1 August, 1952, he was promoted as a senior jailor. Later on, he was transferred to Rajkot and demoted as an accountant. In 1953, he was serving as an accountant in the Central Jail at Rajkot. Whilst he was so serving, charges ware levelled against the plaintiff on the ground that, in or about 1952, whilst he was serving at Surendranagar, he had committed certain defaults by misappropriation of foodstuffs, maltreatment of prisoners and acceptance of illegal gratifications from them. Plaintiff was suspended on 25 March 1954 and, on 27 March 1954, he was served with a chargesheet making the aforesaid allegations against him. Plaintiff filed a written statement on 4 September 1954 and an enquiry was held by Sri Gangopadhyaya, a superior officer. Plaintiff appeared before that officer and cross- examined the witnesses on whose statements the charges were levelled against him. He also examined himself and some witnesses. He was allowed to appear through an advocate who took part in the enquiry proceedings. Then the enquiry officer made a report and, thereafter, on or about 7 January 1955, a notice, Ex. 13, was issued against the plaintiff calling upon him to show cause why he should not be dismissed from Government service. That notice was in the following terms :

'To Sri Bhaishanker A. Joshi, Accountant, Rajkot Central Prison (under suspension).

Charges framed against you under this office No. C/14, dated 27 March 1954, and in particular the charge of having accepted illegal gratification from prisoner Ratilal Jivan have been established to the satisfaction of Government. You are hereby asked to show cause why the punishment of dismissal from service should not be inflicted upon you.

You should please submit your reply to this office, through the Superintendent, Rajkot Central Prison, within a week from the date of receipt of this letter without fail.

(Sd.) M. J. BHATT,

Inspector-General of Prisons,

Government of Saurashtra.'

2. Plaintiff appeared in response to this notice and filed his written statement, Ex. 14, on 9 January 1955. It is not disputed that the Inspector-General of Prisons, Government of Saurashtra, was the officer competent to appoint and dismiss the plaintiff : That officer by his order, Ex. 15, dated 4 February 1955, passed the impugned order. The officer ordered that plaintiff should be dismissed from service forthwith. This order was subsequently amended by an addendum, dated 9 February 1955, in which it was stated that the aforesaid order should be read so as to show that the plaintiff was dismissed from service

'on account of charge of accepting illegal gratification from prisoner Ratilal Jivan having been conclusively proved against him in the departmental inquiries conducted against him by Government.'

3. On 7 May 1956, plaintiff served the Government with a notice under S. 80, Civil Procedure Code. Thereafter, he filed the present suit on 13 November 1956 from out of which this second appeal arises. In this suit, plaintiff prayed for a declaration that the order, dated 4 February 1955, of the Inspector-General of Prisons, dismissing him was illegal and void on the ground that it contravened the provisions contained in Art. 311, Clause (2) of the Constitution of India. Plaintiff also prayed for a decree for Rs. 2,690 being arrears of his pay from 1 April 1954 to 7 May 1956. Plaintiff also prayed for a mandatory injunction calling upon the State of Bombay, which had in the meanwhile taken the place of the State of Saurashtra to reinstate him to his position as a Government servant.

4. The main ground on which plaintiff attacked the order of dismissal was that he had not been furnished a copy of the report of the enquiry officer on the basis of which, according to him, the Inspector-General of Prisons had issued the show-cause notice, dated 7 January 1955, and on the basis of which, apparently, that officer had reached the tentative conclusion that the charges levelled against him had been made out and on the basis of which he had proposed the sentence of plaintiff's dismissal from Government service. The trial Court held that the non-supply of a copy of the report of the enquiry officer did not constitute a breach of Art. 311, Clause (2). Accordingly, it dismissed the suit of the plaintiff. The plaintiff then went in appeal to the District Court at Rajkot. The learned District Judge held in Civil Appeal No. 68 of 1968 that the non-supply of a copy of the report of the enquiry officer constituted a breach of Art. 311, Clause (2), and gave a declaration to the plaintiff that the order of dismissal, dated 4 February 1955, was illegal and void. The learned Judge also granted a declaration that the plaintiff continued to be in the post of the accountant till the date of his order. The learned Judge, however, dismissed the claim of the plaintiff for arrears of pay. The learned Judge did this on the ground that in law an action cannot be maintained for recovery of pay against the State. For this, the learned Judge relied upon the decision in High Commissioner of India and another v. I. M. Lall . Aggrieved by the latter part of the decree of the learned District Judge, the plaintiff has filed an appeal to the High Court of Judicature of Bombay at Rajkot against that part of the decree. He prayed that he be granted arrears of pay up to the date of the suit and that he be granted arrears also up to the date of his reinstatement. The State of Bombay was the respondent in the appeal. The State filed cross-objections under order 41, rule 22, Civil Procedure Code. By those objections, the State of Bombay challenged that part of the decree by which the learned District Judge had granted a declaration that the order of dismissal was illegal and void and that the plaintiff continued to hold the post that he did at the date of the impugned order. After the reorganization, the appeal was transferred to this Court and numbered as Second Appeal No. 704 of 1960. The learned Government Pleader for the State of Gujarat appeared in this Court to contest the appeal and in support of the cross-objections. Later on, the learned Government Pleader presented Civil Application No. 470 of 1962 for adding the State of Maharashtra as a party to the present proceedings on the allegation that under the Bombay Reorganization Act, 1960, the liabilities which were the subject- matters of the appeal were the liabilities of the State of Maharashtra. A show-cause notice was issued to the State of Maharashtra and Sri A. D. Desai appeared in response to that notice on behalf of the State of Maharashtra. That application was granted and now both the States of Maharashtra and Gujarat are before this Court. Besides the questions raised in appeal, the further questions which were argued were as to the respective liabilities of the two States in relation to the claims made by the plaintiff in the event of those claims being granted to him.

5. The first question which arises for determination in the appeal is about the correctness of the decision of the learned District Judge that the order of dismissal, dated 4 February 1955, was a null and void order on the ground that it contravened the provisions of Art. 311, Clause (2), of the Constitution. It is necessary to decide this question first before taking up the other questions for decision, because, it is clear that if a finding adverse to the plaintiff is recorded on that subject, the other points will not arise for determination at all. As already stated, the only ground on which the plaintiff challenges the impugned order is that he was not supplied with a copy of the order of the enquiry officer. The contention is that the failure to supply him with such copy has resulted in the denial of a reasonable opportunity to him to show cause against the action proposed to be taken by his competent officer. Clause (2) of Art. 311 states that no Government servant referred to in Clause (1) shall be dismissed or removed 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. It is not the contention of the plaintiff that he had not been granted a reasonable opportunity to meet the case which had been set out against him by the enquiry officer. In fact, as already mentioned, a chargesheet detailing the allegations made against the plaintiff was served on him. The witnesses against him were examined and cross-examined in the presence of the plaintiff. The plaintiff and his witnesses were also examined before the same officer and full-dressed arguments were advanced by a learned advocate who appeared on behalf of the plaintiff. Therefore, the plaintiff had no grievance on the ground that the proceedings which were conducted before the enquiry officer offended the rules of natural justice and that they did not afford him a reasonable opportunity of showing cause against the allegations made against him. But the person who made the enquiry against the plaintiff was not the officer competent to dismiss him. It is not disputed that therefore the plaintiff was entitled under the Constitution to have a right to show cause to the competent authority that he had not committed any of the defaults alleged against him and/or that the punishment which was proposed to be inflicted upon him was not the proper punishment. The notice, Ex. 13, is couched in such a manner as to suggest that the competent authority intended at that stage to restrict the scope of the enquiry only to the quantum of punishment. The notice only stated that the plaintiff should show cause why the punishment of dismissal from service should not be inflicted upon him. Though that is so, it is not disputed that the plaintiff, when he appeared in response to that notice, gave a detailed reply, Ex. 14, and that; in that reply, plaintiff stated all that he had to say regarding the merits of the case. Therefore, the order of dismissal cannot be and is not being challenged on the ground that the plaintiff had no opportunity to meet the allegations which had been made against him. But the argument is that one of the most important materials which the competent authority had before him which induced him to come to the tentative conclusion that the charges levelled against the plaintiff had been made out was kept back from the plaintiff and that inasmuch as the plaintff had no opportunity of challenging the findings which had been recorded against him by the enquiry officer, it must be held that a reasonable opportunity had been denied to the plaintiff to show cause against the proposed action. There are two reported cases in which that question directly arose. Two opposite views have been taken in those two cases. In Ramesh Chandra v. State Government of Utter Pradesh and others : AIR1959All47 , it is held that where a copy of the report of the enquiry officer which will have indicated the grounds on which the Government servant's removal was recommended is not supplied to him, it cannot be hold that he has had a reasonable opportunity of showing cause against the action proposed. As against this, in Kartick Chandra Dutta v. District Traffic Superintendent, Pandu Region, Katihar, Northeastern Railway : AIR1957Pat676 , an opposite view is taken. It is held in that case that there is no rule making it obligatory upon the punishing authority to furnish the Government servant with a copy of the report of the enquiry officer along with the notice to show cause against the proposed penalty. It is also further held in that case that when an enquiry is conducted in the presence of a Government servant and he is fully conversant with what transpired in the course of the enquiry, there is nothing which is kept secret from him and that he cannot legitimately complain that there was any infraction of the principle of natural justice. Their lordships of the Federal Court in Secretary of State v. I. M. Lall have observed that the question as to whether a reasonable opportunity is or is not afforded to a Government servant must depend upon the facts of each case and the question in each case which has got to be decided is whether, on the facts obtaining therein, an opportunity is or is not afforded to the Government servant and whether that opportunity is or is not reasonable.

6. In my judgment, the failure on the part of the competent authority to provide the appellant with a copy of the report of the enquiry officer has denied the appellant the reasonable opportunity contemplated by Art. 311, Clause (2), of the Constitution. Having regard to the facts of the present case, it is quite obvious to me that the report of the enquiry officer constituted an important document which was bound to weigh with the competent authority in deciding upon the action to be taken against the appellant. Sri Sompura's contention was that there was nothing on the record to show that the competent authority had taken the final decision after consideration of the report of enquiry officer. He contended that the competent officer had reached the decision on the strength of the proceedings taken by the enquiry officer and without the aid of the report of the enquiry officer. I do not think that I can proceed on this basis. It is quite obvious to me that the enquiry was entrusted to the enquiry officer not merely to hear the evidence which might be adduced for or against the charges levelled against the appellant and to hear the arguments thereon, but, also, in order that he might apply his mind to the points in dispute and submit a report to the competent authority in order to enable that authority to discharge the duties entrusted to him under the Constitution. At one stage, Sri Sompura had contended that, in fact, there was nothing on the record to show that the enquiry officer had made a report. I do not think that this contention is justified. The written statement of the State of Bombay, at least, implies that a report was made by the enquiry officer. Now, naturally, when the competent officer considers the question as to whether the charges against the appellant have or have not been proved and in the event of proof of all or any of them, what punishment should be meted out to the appellant, it is quite obvious that the competent authority would not merely confine his attention to only the evidence which was collected by the enquiry officer, but he would also very naturally consider the views expressed by the enquiry officer for and against the charges levelled against the appellant. It follows from this that, in proposing to take action against the appellant, the materials which the competent authority had at his disposal included the report of the enquiry officer. Inasmuch as the tentative conclusion which the competent authority conveyed to the appellant was based not merely upon the materials collected by the enquiry officer, but also upon the views expressed by him, in my judgment, the appellant is bound to be prejudiced if he is not given an opportunity to express his views against the opinion expressed by the enquiry officer. In some cases, the enquiry officer may take a view favourable to the delinquent and the competent authority may take a different view. In some other cases, the inquiry officer may take a view unfavourable to the delinquent and the competent anthority may agree with that view. In either contingency, in my judgment, it is reasonable that the delinquent should have the opportunity of disabusing the mind of the competent authority of any views which he may have come to entertain as a result of the reading of the report of the enquiry officer. In any judgment, having regard to the fact that the tentative conclusion was arrived at by taking into consideration the report of the enquiry officer and an opportunity was not granted to the delinqent to offer his criticisms against the views expressed in the report, it must be held that a reasonable opportunity was denied to the delinquent. For the aforesaid reasons I agree with the decision of the Allahabad High Court in Ramesh Chandra v. State Government of Uttar Pradesh and others : AIR1959All47 (vide supra).

7. I have carefully considered the reasoning given by the learned Judge of the Patna High Court in Kartick Chandra Dutta v. District Traffic Superintendent, Pandu Region, Kartihar, North- eastern Railway : AIR1957Pat676 (vide supra). With respect, I am unable to agree with the reasons given by them for reaching the decision. In my judgment, there is an obvious error in the view taken by their lordships in that case that there was

'no rule making it obligatory upon the punishing authority to furnish the Government servant with a copy of the report of the enquiry officer along with the notice to show cause against the proposed penalty.'

8. In my judgment, the gravamen of the charge is not that a copy of the report of the enquiry officer is to be served by any rule framed by any competent authority and that it has not been served. The gravamen is not that the dismissal is bad on the ground that a breach of a rule is committed. The gravamen of the charge is that a reasonable opportunity was not given to show cause against the proposed action. It is from this angle that the whole question has got to be considered and for the reasons, which I have already given, in my judgment, the non-furnishing of the report of the enquiry officer is tantamount to the denial of a reasonable opportunity to show cause against the proposed action. I also cannot agree with the following observations made by their lord-ships in the above case :

'. . . when the enquiry is conducted in the presence of the Government servant himself and he is fully conversant with what transpired in course of the enquiry, there is nothing which is kept secret from him, and he cannot legitimately complain that there was infraction of the principle of natural justice.'

9. With great respect, there is fallacy in this reasoning. In my judgment, when an order of dismissal to attacked on the ground that the competent authority has failed to serve a copy of the report of the enquiry officer, it is not being attacked on the ground that any thing which happened before the enquiry officer is being kept secret from the delinquent. The attack is on the ground that a document which is prepared after the enquiry was over and which document to likely to influence the conclusion of the competent authority is not shown to the delinquent. Obviously, the report having been prepared after the whole enquiry was over, the delinquent will not have any chance of knowing the contents thereof at any stage thereafter unless and until a copy is furnished to him. Having regard to the fact that the report of the enquiry officer is a vital document which is bound to affect the tentative decision reached by the competent authority, I am unable to agree with the view that the furnishing of a copy of the report of the enquiry officer is not an important step in the direction of the final action proposed to be taken against the delinquent.

10. I am very much fortified in the above view by the observations made by their lordships of the Federal Court in Secretary of State v. I. M. Lall (vide supra). In that case their lordships were considering the validity of the proceedings taken against a Government servant under S. 240 of the Government of India Act of 1935 which corresponded to Art. 311 of the Constitution. Their lordships made the following observations which are pertinent to the present case :

'It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that, that punishment to proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarized form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank.'

11. Sri Sompura contended that these observations no longer represented good law as the Supreme Court had not followed the above case in Khem Chand v. Union of India and others [1959 - I L.L.J. 167]. I am unable to agree with this contention. In my judgment, the above observations remain unaffected by the above decision of the Supreme Court. The Supreme Court did not follow the decision of the Federal Court in Lall case (vide supra) only in regard to its conclusion as to the stage at which an opportunity is to be given to the delinquent by a competent authority to show cause against the proposed action. On the contrary, the above passage was quoted in full by their lordships of the Privy Council in High Commissioner for India and another v. I. M. Lall (vide supra) and, after quoting the above passage, their lordships observed that they were fully in agreement with the views expressed therein, meaning thereby the views expressed not only as regards the stage at which the opportunity is to be given and the sufficiency of such opportunity. It is true that their lordships of the Federal Court observed in the aforesaid case that each case was to be determined on its own facts. In my judgment, the aforesaid observations may well be regarded as the proper guide in all normal cases and may well be followed unless the dismissing authority is able to show that, under the circumstances of a particular case, supply of the copy of the report or its adequate summary was not required to advance the cause of reasonable opportunity. Sri A. D. Desai contended that the true meaning of the aforesaid passage was that only the findings of the enquiry officer were to be communicated to the delinquent servant and that the reasons on which those findings were based were not required to be conveyed. His contention was that, in the present case, in the show-cause notice, Ex. 13, a reference was made to the findings of the enquiry officer. Apart from the fact that Sri A. D. Desal is not factually correct when he says that a reference was made in Ex. 13 to the findings of the enquiry officer, I cannot agree with his submission that the aforesaid observations are confined only to the actual findings and not to the reasons which support those findings of the enquiry officer. In my judgment, the aforesaid passage wherein it is stated that the grounds of the decision must also be communicated to the delinquent Government servant contemplates communication not only of the actual findings, but also of the grounds on which those findings were based.

12. Sri Sompura relied very strongly upon a judgment of Sri K. K. Desai of the Bombay High Conrt in D. A. Kelshikar v. State of Bombay [1960 - I L.L.J. 66]. In that case, the Government servant concerned was dismissed as a result of an enhancement notice issued by the Government. In that notice, the Government stated that, on the findings recorded by the competent officer, the proper punishment which deserved to be given to the delinquent was the punishment of dismissal and not the punishment of reduction for a period of one year only and called upon the Government servant to show cause why the punishment of dismissal or some other suitable punishment should not be awarded to him. The contentions which were raised in that case were that the Government should have specified in the notice the charge against the Government servant, should have referred to the evidence in support of the charge and should have given all the grounds with their particulars as to why the Government had tentatively decided upon inflicting the punishment of dismissal. Justice Sri K. K. Desai came to the conclusion that it was not necessary for the Government to do any of those things and that the notice was not vitiated on the ground that it did not afford the Government servant a reasonable opportunity to show cause against the proposed action. The facts of that case, in my judgment, are clearly distinguishable. In that case, there was no question on non-supply of the report of the enquiry officer by the competent authority. In fact, in that case, no challenge was given to the, show-cause notice issued by the competent authority. The attack was against the show-cause notice issued by the Government which was the revising authority and, in my judgment, the reasoning adopted by Justice Sri K. K. Desai in disposing of that case must be confined to a case where a notice is issued by a revising authority and not by an authority who is competent to dismiss the Government servant.

13. For the aforesaid reasons, I have come to the conclusion that the finding recorded by the learned District Judge that the dismissal of the appellant offended against the provisions of Art. 311, Clause (2), of the Constitution was justified and the cross-objections in so far as they seek to challenge the part of the decree which is based upon that finding deserve to be dismissed.

14. The next question for consideration is as to the form of the decree passed by the learned District Judge. The decree is really in two parts : The first part of the decree declares that the order, dated 4 February 1955, by which the appellant was dismissed, is illegal and void. Having regard to my aforesaid conclusion, no exception can be taken to this part of the decree of the learned District Judge. Both Sri Sompura and Sri A. D. Desai have nothing to urge against this part of the decree if their contention is negatived that a reasonable opportunity was given to the appellant to show cause against the proposed action. The second part of the decree declares that the appellant continues to be in the post he hold at the date of the impugned order. In effect, this declaration means that the appellant continued to be a Government servant till the date on which the appellate decree was passed by the learned District Judge. Sri A. D. Desai raises a strong objection to this part of the decree. He contends that the aforesald declaration should be confined only up to the date of the suit and not up to the date of the appellate decree. He contends that the only declaration which the Court can give as a result of its finding about the alleged denial of reasonable opportunity is that the appellant continued to be in Government service till the date of the suit. He contends that, if the Court were to extend its declaration to any date thereafter, then, the Court will be denying an opportunity to the Government to deal with its servant for anything which the servant may have done during the period after the date of the suit. In fact, on the facts of this case, there is a likelihood of the aforesaid declaration prejudicing the right of the Government. On the date of the institution of the suit, the appellant was sufficiently old. If the appellant attained the age of 55 during the pendency of the suit, then, even if he had not been dismissed, it is quite clear that he would have retired. If the Court grants him a declaration that he continued to be a Government servant, then, it would mean that the Court declares' him to be a Government servant even after his superannuation. Apart from these considerations, there is good authority for the proposition for which Sri A. D. Desai contends. Their lordships of the Privy Council had occasion to consider this matter in High Commissionor for India v. Lall (vide supra). At p. 127, their lordships have made the following observations :

'The Federal Court altered the finding of the High Court, and made a declaration

'that the plaintiff Mr. I. M. Lall was wrongly dismissed from the Indian Civil Service on 4 June 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 Mr. 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 10 August 1940 was void and inoperative, and that the respondent remained a member of the Indian Civil Service at the date of the institution of the present suit on 20 July 1942. Any further action by the Crown that may have occurred since the raising of the action is not covered by the present suit.'

15. In view of these observations of their lordships, there is no doubt whatsoever that the aforesaid part of the learned appellate Judge's decree will have to be varied so as to declare that the appellant continued to be, at the date of the suit, in the post he held on the date of the purported dismissal on 4 January 1955. For the same reasons, the contention of Sri Sinroja that the learned District Judge should have granted a mandatory injunction against the Government calling upon them to reinstate him in Government service must be rejected.

16. That brings me to the question about the arrears of pay claimed by the appellant. That claim has been rejected by the learned District Judge on the view that the claim is in tort and that an action for tort cannot lie against the Government. The learned Judge has followed the Lall case (vide supra) in another connexion in a previous part of the judgment. Both Sri Sompura and Sri A. D. Desai concede that the law as expressed by their lordships of the Privy Council in Lall case (vide supra) on the aforesaid subject is no longer good law. In the case of State of Bihar v. Abdul Majid [1954 - II L.L.J. 678], their lordships of the Supreme Court have definitely held that an action for recovery of arrears of salary does lie against the Government by a dismissed Government servant. In view of this authority, there is no doubt whatsoever that the appellant is entitled to a decree for Rs. 2,690, the arrears of his salary claimed by him for the period 1 April 1954 to 7 May 1956, the date on which he gave notice under S. 80 of the Civil Procedure Code. To this extent, the appeal of the appellant will have to be allowed. I propose to consider the liability of the two States of Maharashtra and Gujarat about this particular claim just in a moment.

17. The appellant, however, claims not only the aforesaid arrears of pay, but he also claims arrears of pay after the institution of the suit and up to the date of the decree to be passed by this Court. This claim of the appellant is based upon the authority in Pandurang Kashinath More v. Union of India [1958 - II L.L.J. 38]. In that case, a Division Bench consisting of Justice Sri Tendolkar and Justice Sri S. T. Desai (as he then was) granted a decree for arrears of pay up to the date of the judgment delivered by the High Court. In that case, their lordships granted a declaration to the effect that the Government servant concerned continued to be in Government service till the date of their judgment. Their lordships justified the decree for arrears of salary up to the date of the judgment on the ground that such a decree was only a consequential and incidental decree. The contentions in regard to this topic are discussed by Justice Sri S. T. Desai (as he then was), who delivered the judgment, on p. 49. I am bound by what the Division Bench has decided in that case. But obviously, it appears that, that part of the judgment which grants a decree of declaration about the continuance of Government servant in Government service up to the date of the judgment is in conflict with the judgment in Lall case already referred to and that being so, it is quite obvious that I cannot follow the judgment delivered by the Division Bench. In my Judgment, if the declaration is to be confined only up to the date of the suit, then, it must follow that the arrears of salary can also be granted only up to that date. It would be taking a leap in the dark if the Court were to grant arrears of salary for any subsequent period because the Court obviously does not know what the correct position is after the date of the institution of the suit. Therefore, in my judgment, the claim made by the appellant for arrears of salary after the institution of the suit cannot be granted.

18. The next question for consideration is as to which of the two Governments-Government of Maharashtra or Government of Gujarat - is responsible for the claims awarded to the appellant. The two States are at cross purposes on this subject. Sri Sompura, the learned Assistant Government Pleader appearing for the State of Gujarat, contends that, under the Bombay Reorganization Act, 1960 (hereafter called 'the Act'), the appellant would come to be allocated to the State of Maharashtra. He relies upon the provisions contained in Ss. 81 and 82 of the Act. Section 81 enacts that

'Every person who immediately before the appointed day, is serving in connexion with the affairs of the State of Bombay shall, as from that day, provisionally continue to serve in connexion with the affairs of the State of Maharashtra, unless he is required, by general or special order of the Central Government, to serve provisionally in connexion with the affairs of the State of Gujarat.'

19. The expression 'appointed day' means 1 May 1960. Section 82 enacts that

'Every person, who immediately before the appointed day is holding or discharging the duties of any post or office in connexion with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra or Gujarat, shall continue to hold the same post or office in that State and shall be deemed, as from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that State.'

20. Sri Sompura's contention is that, having regard to S. 81 aforesaid, the appellant must be deemed to continue to serve in connexion with the affairs of the State of Maharashtra. He submits that, having regard to the fact that the appellant has not been, after the date of the purported dismissal, appointed to any place within the area of the State of Gujarat, the appellant cannot be stated to have been assigned to the State of Gujarat in spite of the fact that, on the date on which he was dismissed, he was serving within an area now allocated to the State of Gujarat. In my judgment, having regard to the facts of the present case, it is impossible to express an opinion, one way or the other, on this subject. Having regard to my conclusion that the declaration in favour of the appellant must be confined only up to the date of the suit, it is impossible to say what exactly is the situation obtaining regarding the appellant immediately before the appointed day and it is important to notice that, for the application of both Ss. 81 and 82, the important date is the date 'immediately before the appointed day,' that is, 30 April 1960. The next set of sections which require consideration are Ss. 60, 61 and 64 of the Act.

21. Sri A. D. Desai relies upon S. 61, whereas Sri Sompura relies upon Ss. 60 and 64. These three sections occur in a chapter entitled 'Apportionment of assets and liabilities.' Section 60 deals with liabilities arising out of contracts; S. 61 deals with liabilities arising out of actionable wrongs other than breaches of contracts; and S. 64 is the residuary provision. Section 60 enacts as follows :

'(1) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power -

(a) if such purposes are, as from that day, exclusively purposes of either the State of Maharashtra or the State of Gujarat, of that State; and

(b) in any other case, of the State of Maharashtra.'

22. Section 61 enacts as follows :

'Where, immediately before the appointed day, the State of Bombay to subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall -

(a) if the cause of action arose wholly within the territories which, as from that day, or the territories of the State of Maharashtra or the State of Gujarat, be a liability of that State; and

(b) in any other case, be initially a liability of the State of Maharashtra, but subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat or, in default of such agreement, as the Central Government may by order direct.'

23. The arguments of the learned advocates on both the sides proceed on the basis as to whether the action in the present case is based on a breach of contract or the commission of an actionable wrong. Now it is clear that if the action is based upon the commission of an actionable wrong, then, the liability of one or the other State will depend upon whether the cause of action in respect thereof wholly arose within the State of Gujarat or the State of Maharashtra and if an action is based on a breach of contract, then the State of Gujarat will be liable only if the purpose of the contract from the appointed day is exclusively the purpose of the State of Gujarat, otherwise the liability will be that of the State of Maharashtra. The submission of Sri Sompura is that the present action is based on the breach of a contract, whereas that of Sri A. D. Desai is that it is based upon the commission of an actionable wrong. In my judgment, none of the learned advocates is wholly right. In my judgment, so far as the claim for the declaration that the impugned order, dated 4 February 1955, is illegal and void is concerned, it is based upon an actionable wrong, and, in so far as the claim for arrears of pay is concerned, it is based upon the breach of a contract. In my judgment, when the State of Bombay purported to dismiss the appellant from its service, violating the provisions of Art. 311, Clause (2), of the Constitution, that State committed an actionable wrong, and, therefore, the section which would be applicable would be S. 61 of the Act, and if the cause of action in respect of this liability arose wholly within the territories of the State of Gujarat, it is quite obvious that the liabilities arising out of the commission of the actionable wrong would be the liability of the State of Gujarat. Now, having regard to the facts of the present case, there cannot be any dispute that the cause of action in respect of that declaration arose within the territory now assigned to Gujarat and the liability in respect of that declaration would be that of the State of Gujarat. But, as regards the claim for arrears of pay, there is no doubt that, that claim arises out of the breach of a contract. There was a contract between the appellant and the Government by which the latter, in consideration of the former rendering services to him, agreed to pay a certain amount of pay to the appellant, and there is no doubt whatsoever that the State of Bombay committed a breach of this contract when it refused to make payment of salary to the appellant on account of his aforesaid wrongful dismissal. Therefore, the section which comes into play is S. 60 of the Act and, under that section, the liability will be that of the State of Gujarat only if the purpose for which the contract of service was entered into was exclusively the purpose of the State of Gujarat. Having regard to the fact that the appellant was expected to render services not only in the territory now assigned to the State of Gujarat, but to the whole of the State of Bombay, it cannot be stated that the contract was exclusively for the purpose of the State of Gujarat. In view of this, so far as the arrears of salary is concerned Clause (b) of S. 60 of the Act will apply and the liability will be that of the State of Maharashtra.

24. Both the learned advocates relied upon a Full Bench decision of this Court recorded on 15/18 February 1963 in Special Civil Application No. 292 of 1960 in Bhalchandra Ramchandra Vaidya v. State of Gujarat [1963 - II L.L.J. 726]. In this case, a Government servent was dismissed before 1 May 1960. He filed a writ petition in the High Court of Gujarat for challenging the dismissal order and the question which the Full Bench had to consider was whether the High Court of Gujarat had jurisdiction to deal with an order of dismissal which was passed before the 'appointed day,' i.e., 1 May 1960. It was in this connexion that the aforesaid Ss. 60, 61 and 64 of the Act and certain other relevant sections were considered by their lordships of the Fall Bench. Whilst considering the scope and effect of the language used in S. 61 of the Act, their lordships made the following observations :

'The words used in S. 61 of the Bombay Reorganization Act, 1960, are wide enough to cover a liability to continue to employ a person and to pay him his due remuneration in a case where an order of dismissal has been passed against such person and the order is found to be void and inoperative by reason of non- compliance with the provisions contained in Art. 311(2) of the Constitution.'

25. Before these observations were made, their lordships, after referring to the construction of the expression 'in respect of an actionable wrong other than breach of contract' made by their lordships of the Supreme Court in State of Tripura v. Province of East Bengal [A.I.R. 1961 S.C. I], used in the Indian Independence (Rights, Properties and Liabilities) Order, 1947, had observed that the aforesaid expression was not a narrow and restricted expression, but was of wide import and there could to an actionable wrong which did not arise out of breach of contract and at the same time did not answer the description of tort as understood in English law. Their lordships observed that

'the word 'wrong' in ordinary legal language means and signifies 'privation of right'.'

26. Sri Desai strongly relied upon the aforesaid observations and contended that, even an action of recovery of arrears of pay would come within the meaning of the expression 'an actionable wrong other than the breach of contract.' I am unable to agree with this submission of Sri Desai. In my judgment, the observations made by their lordships of the Full Bench are obiter in so far as they say that the aforesaid expression is wide enough to include a liability to pay to the Government servant his due remuneration. I have verified from the original petition that there was no question before their lordships about the recovery of the arrears of pay in the aforesaid petition. The aforesaid observations appear to have been based on the view that a claim for arrears of pay is an incidental or a consequential relief arising out of the main relief for a declaration that the person concerned continued to be a Government servant. Having regard to the pleadings in the present case, I am unable to entertain the view that the claim for arrears of pay is merely a consequential and an incidental relief. In my judgment, it is a relief co-ordinate with the relief for declaration. The question has got to be considered with a view to fix the liabilities of the two States and not from the point of view whether a relief is main or incidental and, in my judgment, having regard to the provisions contained in Ss. 60 and 61, the question in each case has first to be determined as to the genesis of the claim made against the State of Bombay. If the genesis is in breach of contract, then, the provisions of S. 60 of the Act apply, and if the genesis is an actionable wrong, other than the breach of a contract, then, the provisions of S. 61 of the Act apply.

27. For the aforesaid reasons, both the appeal and the cross- objections will be partially allowed. The decree passed by the appellate Court will be varied so as to show that the appellant continued to be in Government service till the date of the suit only and there will be a decree for Rs. 2,690 being arrears of pay due to the appellant up to the date of the suit. There will be further provision in the decree that the liability arising out of the declaration that the appellant is in Government service is the liability of the State of Gujarat and that the liability for the payment of the arrears of pay is the liability of the State of Maharashtra. The rest of the appeal and cross-objections will stand dismissed. Each party to bear its own cost.


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