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Trilochana Girdharlal Patel and ors. (Heirs of Deceased Girdharlal Shankarlal Patel) Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 857 of 1960
Judge
Reported in(1969)ILLJ305Guj
ActsConstitution of India - Article 311(2); Bombay Reorganization Act, 1960 - Sections 91; Indian Independence Act, 1947; Indian Limitation Act, 1908 - Schedule - Article 102
AppellantTrilochana Girdharlal Patel and ors. (Heirs of Deceased Girdharlal Shankarlal Patel)
RespondentState of Gujarat and anr.
Cases ReferredBhalchandra Ramchandra Vaidya v. State of Gujarat
Excerpt:
labour and industrial - time barred suit - article 311 (2) of constitution of india, section 91 of bombay reorganization act, 1960, indian independence act, 1947 and article 103 of schedule to indian limitation act, 1908 - appeal against order passed by trial court dismissing suit for arrears of salary - order of dismissal no order until communicated to government servant - order communicated at baroda - entire cause of action arose of baroda within territory of state of gujarat - section 61 (a) applicable - liability of said arrears on state of gujarat - order passed by trial court liable to be set aside. - - 8 at 12], it is well-settled that art. as regards claim for arrears of salary, it was held that no good reasons had been adduced before their lordships for not following the.....mehta, j. 1. the plaintiff-appellants who are the heirs of the deceased dr. girdharlal shankarlal patel, have filed this appeal as the trial court had only decreed a part of their claim and had dismissed the suit for arrears of salary prior to 1 august, 1955 on the ground that the said claim was time barred. 2. the short facts which have given rise to this appeal are as under. 3. dr. girdharlal shankarlal patel joined the medical department of the then baroda state on 14 october, 1941. he was a permanent government servant of the baroda state at the time of its merger with the state of bombay on 1 august, 1949. he was absorbed by the state of bombay in the medical department after merger. after he was absorbed he served for about a year and he was discharged from service with effect from.....
Judgment:

Mehta, J.

1. The plaintiff-appellants who are the heirs of the deceased Dr. Girdharlal Shankarlal Patel, have filed this appeal as the trial Court had only decreed a part of their claim and had dismissed the suit for arrears of salary prior to 1 August, 1955 on the ground that the said claim was time barred.

2. The short facts which have given rise to this appeal are as under.

3. Dr. Girdharlal Shankarlal Patel joined the Medical department of the then Baroda state on 14 October, 1941. He was a permanent Government servant of the Baroda State at the time of its merger with the State of Bombay on 1 August, 1949. He was absorbed by the State of Bombay in the Medical department after merger. After he was absorbed he served for about a year and he was discharged from service with effect from 18 September, 1950 by an order of the State of Bombay which was served upon him at Baroda. Dr. Girdharlal challenged the said order in Civil Suit No. 497 of 1951. The trial Court decided the suit against Dr. Girdharlal but the appellate Court decreed hid suit and granted him a declaration that the order terminating his service was illegal and ultra vires and in volation of Art. 311(2) of the Constitution. This decree was confirmed in second appeal by Shah. J. (as he then was), by the order dated 16 April, 1958 which decision is in 1958 - II L.L.J. 700. Before Dr. Girdharlal was reinstated in service by the State of Bombay after this declaration by the civil Court, he expired on 30 April, 1958. The plaintiff's heirs, therefore, filed the present suit against the State of Bombay for arrears of salary from 19 September, 1950 to the date of his death on 30 April, 1958 along with the dearness allowance on the basis of his salary at the time of his discharge-being Rs. 285 including Rs. 60 as dearness allowance in the grade of Rs. 200-25-400. The gratuity amount claimed in the suit was Rs. 33,989. The State admitted part of the claim of arrears of pay and allowances with effect from 1 August, 1955 along with the claim of gratuity while the claim of arrears of salary prior to 1 August, 1955 was resisted on the ground that it was time-barred. The trial Court, therefore, passed a decree to the extent of the admitted claim. The said decree was even reviewed as through oversight interest and costs and not been properly allowed. As regards the claim for arrears of salary prior to 1 August, 1955, the trial Court, however. dismissed the suit on the ground that Art. 102 of the Indian Limitation. Act, 1908, hereinafter referred to as the Act, applied on the facts of the case to such a claim for arrears and wages. This claim was on that ground held to be timebarred and it was dismissed. The appellants. Have, therefor, filed the present appeal on 24 August, 1960 only against the State of Gujarat which came into existence on 1 May, 1960 under the Bombay Reorganization Act, 1960. When this appeal came for hearing, Sri Oza for the plaintiffs sought an amendment to join the State of Maharashtra as the question arose as to which State stood substituted in these proceedings and as to which State should discharge the present liability. Accordingly, Civil Appeal No. 1287 of 1968 was granted and the State of Maharashtra has also appeared in the present matter.

4. The first question which arises in this appeals as to whether the said claim of the plaintiffs for arrears of salary prior to 1 August, 1955 is time-barred by reason of Art. 102 of Art. 102 of the Act. Article 102 deals with suits for wages not otherwise expressly provided for by the schedule. The limitation period is three years and time begins to run from the date 'when the wages accrued due.' After the decision of the Supreme Court in Madhav v. State of Mysore [A.I.R. 1962 S.C. 8 at 12], it is well-settled that Art. 102 of the Act would be the relevant article applicable in such cases. In that case a question had arisen in connexion with the order of reversion which was held to be illegal and in violation of the constitutional guarantee. As regards the claim for arrears of salary and dearness allowance, the trial Court disallowed the claim on the ground that the claim was based on a tort. The trial Court had, on the question of limitation, observed that Art. 102 of the Act as laid down by the Federal Court in the case of Punjab province v. Tarachand [1947 F.C. 23] (sic). In that case the High Court had reversed this decision on merits as it did not find any reversion in contravention of the constitutional guarantee. The Supreme Court, however, reversed the decision of the High Court as the reversion was in violation of the constitutional guarantee. As regards claim for arrears of salary, it was held that no good reasons had been adduced before their lordships for not following the aforesaid decision of the Federal Court in Tarachand case [1947 F.C. 23] (vide supra) where it was held that the arrears of salary would even be governed by three years' rule laid down in Art. 102 of the Act. The trial Court's decree was no doubt reversed as it had dismissed the claim on the ground that the claim was based on tort but the arrears were limited by that application of the three years' rule of limitation under Act. 102. This decision has been relied upon by the State of Gujarat and by the State of Maharashtra. Sri Vidyarthi and Sri Desai both have argued that the present question is concluded by this decision. It should be noted, however, that no. Question was raised in that case as regards rule 150 of the Bombay Civil services Rules as the appellant had argued his case in person before the Supreme Court. We must, therefore, consider the contention of Sri Oza whether the said rule 150 of the Bombay Civil Services Rules would make any difference while applying the relevant article of limitation, viz., Art. 102, to the facts of the present case.

5. At the outset we would dispose of the objection of Sri Vidyarthi that there is nothing on the record to show that the deceased Sri Girdharlal was governed by the Bombay Civil services Rules. There is no dispute that the deceased was absorbed by the Bombay State and after about one year that his services were terminated by the order, dated 18 September, 1950, by the State of Bombay. It is, therefore, obvious that the deceased had become a servant the provisions of the Bombay State and to such a servant the provision of the Bombay Civil Services Rules would be obviously applicable. Sri Vidyarthi argued that rule 150 applies only to persons holding substantive posts. It is true that shah, J., in the aforesaid decision, 1958 - II L.L.J. 700, in the earlier suit, proceeded on the footing that the deceased may be regarded as a temporary employee. Even on that footing, there is nothing in rule 150 to confine it only to the servants holding substantive posts. Therefore, there is no substance in the contention of Sri Vidyarthi that the deceased was not governed by rule 150.

6. Rule 150 provides that the pay and allowances of a Government servant which is dismissed or removed from service, shall cease from the date of such dismissal removal. It is, therefore, clear that reason of rule 150 the pay and allowances of the deceased who was removed from service ceased with effect from 18 September, 1950 It is only when that order was avoided the competent declaration of the civil Court in the aforesaid Civil Suit No. 497 of 1951 the final decree of this court passed 16 April, 1958 that this bar created by rule ceased to apply. The terminus quo Art 102 is the date when the wages a due. As long as rule 150 operated could not be deemed to have been due to the deceased in the face of rule 150. It is only when the order removing deceased from service was avoided by declaration of the competent civil Court that at the earliest moment the claim wages could be deemed to have accrued due. The present suit was immediately file 29 October, 1958. If, therefore, the terminus quo for the claim of these was when they had become due to the deceased and of which he was wrongfully deprived, they could be deemed to have become due to him only after his dismissal was avoided and the bar under rule 150 ceased to operate. The entire suit on that basis was obviously within the limitation even for the period prior to 1 August, 1955. Sri Vidyarthi and Sri Desai, however, contended that the wages being contractual wages they accrue due every month. Both the State Government ignore rule 150 which created a bar in terms providing that pay and allowances would cease from the date of the removal or dismissal of a Government servant and so long as the bar operated, the limitation under Art. 102 could not start running at all.

7. Sri Desai, the learned Government Pleader, therefore, argued that rule 150 does not apply to those cases of dismissal or removal where the order is a nullity and it must be restricted only to those cases where the order is only invalid or illegal. Shri Desai in this connexion strongly relied upon the wording of rule 152(1) which provides that where a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order -

(a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty; and

(b) whether or not the said period shall be treated as a period spent on duty.

8. Sri Desai argued that rule 152 contemplates reinstatement and so the order of dismissal or removal or suspension in which reinstatement could be ordered would be only those orders, which are not void orders but only invalid, irregular or illegal orders. We cannot accept this contention of Sri Desai for the simple reason that in the context of these rules 150 and 152, the expression dismissal or removal must be interpreted as used in Art. 311 of the Constitution. The departmental appeal and revision provided in in the Bombay Civil Services Rules before the competent authority could never be restricted only to invalid orders and must always include all orders of dismissal or removal, especially when they violate constitutional guarantee under Art. 311 of the constitution. There is nothing in the context of these rules which would justify a narrow construction especially when they would restrict this valuable right of appeal or revision and to get relief in departmental proceedings. The word, 'reinstatement' which is used in rule 152 is only to emphasize that the person who was prevented from holding his office by the order of dismissal or removal or suspension is again restored to his office or status by allowing him to perform the duties of his office. The expression is not used in any technical sense as contended by Sri Desai. In Devendra Pradesh Narain Rai Sharma v. State of Uttar Pradesh and others [1962 - I L.L.J. 266], the Supreme Court had interpreted rule 54 of the Fundamental Rules which corresponds to our rule 152. At p. 270 the Supreme Court pointed out that rule 54 has no application to cases in which the dismissal of a public servant is declared invalid by a civil Court and he is reinstated. This rule undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in the order of dismissal was declared invalid in a civil suit, the effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil Courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would nit in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work. In that view of the matter, the Supreme Court held that the said claim of the State to fix the salary of a public servant wrongfully prevented from performing his duties even after he was reinstated in consequence of a decision of the civil Court declaring his dismissal as wrongful, could not be accepted. In view of the decision of the Supreme Court it is not open to Sri Desai to contend that rules 150 and 152 which correspond to rules 52 and 54 of the Fundamental Rules, are applicable only to those cases where the order is an invalid order and that they would not apply to the cases where the order is a void order or nullity because of the violation of the constitution guarantee in Art. 311 of the Constitution. The Supreme Court has also pointed out a distinction between an order set aside in a departmental appeal and an order set aside by a civil Court. In the former case rule 54 or 152 (of the Bombay Civil Services Rules) would apply while in the other cases of a declaration of the civil Court the aforesaid rules would not apply. The Supreme Court has also pointed out the affect of the declaration of the civil Court viz., to declare that the civil servant is wrongfully prevented from attending to his duties so that he is deprived of the remuneeration which he would have earned if but he had been permitted to work. If that is the effect of the declaration, once the declaration is given by the civil Court, the civil servant whose services were wrongfully terminated in violation of the constitutional guarantee would have a cause of action accrued to him as soon as the dismissal order was avoided by the declaration of the competent civil Court, to file a suit for his remuneration on the ground that during the period he was wrongfully prevented from rendering his services to the State and consequently wrongfully deprived of his due remuneration which he would have earned if he was not so prevented. That would obviously be a claim of wages accruing due on the aforesaid date when the bar in the case of civil servant which operated under rule 150 ceased by reason of the declaration of the competent civil Court.

9. Sri Desai vehemently argued that there is a fiction created by the declaration of the civil Court that the alleged order terminating the service of the servant had never terminated his service, and in fact, even the order of reinstatement was superfiuous, as in terms held by the Supreme Court. Therefore, the claim would be clearly one for monthly wages under the contract which was never terminated. The fallacy in Sri Desai's argument is that he not only ignores the bar of rule 150 but he assumes that in spite of the order of dismissal, the wages accrued die every month. As we have already considered the bar of rule 150 operated only till the order of dismissal or removal was avoided and therefor, the remuneration which accrued due to the deceased on the basis of the service which he would have rendered but for being prevented by the wrongful order passed against him would accrue to him only when the bar of rule 150 ceased to operate. The fiction which is created by the declaration of the civil Court is to treat the contract as subsisting but there is no further fiction that wages also accrued due every month. The terminus quo for Art. 102 is that data when the wages accrued due which would be ordinarily month to month in case of a servant. The said date, however may be different in such cases where there is a statutory bar as contained in rule 150 Sri Oza in this connexion relied upon the decision in State of Madras v. A. V. Anantha raman [1963 - II L.L.J. 584] by the Division Bench, consisting of Ramachandra Ayyar, C.J. and Venkataraman, J. The learned Chief justice considered in that case the provisions contained in Fundamental Rule 52 which corresponds to our rule 150 At p. 586, the learned Chief justice pointed out that the terminus quo for a suit under Art. 102 was the accrual of the salary. In other words, the cause of action was not any fixed point of time (e.g. on the first of the succeeding month) but when it accrued. By reason of Fundamental rule 52 the right to salary ceased the moment as order for dismissal or removal was made. That is to say, the salary though payable prior to such dismissal at the beginning of next month, ceased to be so after the dismissal and it would not be open to the employee to recover the salary earned without having the order of dismissal set aside. Further proceeding, the learned Chief justice pointed out the principle laid down the Lord Acquith in East End Dwelling Company, Ltd. v. Finsbury Borough Council [1952 A.C. 109], which had been cited with approval in Venkatachala v. Bombay Dyeing and . [A.I.R. 1958 S.C. 875 at 878] to the effect that if you are bidden to treat an imaginary state of affairs as real, you must surely also imagine as real the consequence and incidents which, if putative state of affairs had in fact existed, must inevitably have flown from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The learned Chief Justice also observed that even if there was a fiction that a public servant after the declaration of the civil Court must be treated as if he had not been legally removed or dismissed, it would not necessarily justify the importation of another fiction, namely, that while he was in such fictitious service, his salary also accrued every month. No principle of law warrants the second fiction. The terms of Fundamental Rule 52 are clear and so public servant who had been dismissed albeit only by an invalid order can ask the Government to pay him his salary. His right to it will flow only when the order of dismissal has been set aside. The learned chief justice, therefore held that no distinction could exist between an irregular and improper order which had been set aside by the departmental authorities and one declared to be invalid by a civil Court. The learned Chief justice also distinguished the aforesaid decision of the Supreme Court in A.I.R. 1962 S.C. 8 on the ground that both before the Federal Court and the Supreme Court the case was not one in which rule 52 prevented the accrual of salary. We are in complete agreement with this decision and he also hold that the present rule 150 prevented accrual of salary till the order of removal from service was avoided by the declaration of the competent civil Court in this case. Therefore, even on the basis that Art. 102 applied, the plaintiff's suit would be clearly within time.

10. Sri Vidyarthi, however drew our attention of the decision on the Punjab High Court in Union of India v. Ram Nath [A.I.R. 1966 Punj. 500], by the Division Bench consisting at Daulat and Kapur, JJ. The Division Bench in terms considered the aforesaid decision of the Madras High Court in Anantharaman case [1963 - II L.L.J. 584] (vide supra) and held at p. 501 that the distinction based on the applicability of the Fundamental rule 52 did not affect the matter at all. It was observed as under :

'If the dismissal or removal is illegal, logically it must follow that rule 52 never, in the eyes of law, came into operation. In deciding the legality or illegality of such an order, the Court merely declares whether or not any order deserving the attention of law was passed. Such an order cannot, by its very nature, alter the date of accrual of cause of action. The function of court is to interpret law and decide disputes about existing legal rights, The conception of a judicial decision as being one declaratory of pre-existing legal rights finds expression in the law reports of many countries. In a case like the present, the right of the employee to get his wages, exists independently of the decision by Courts on the ground that law will take no notice of an illegal order. The Courts in holing such an order illegal merely declare that it was never passed. To subscribe to the other view would mean that a servant, who has been illegally dismissed cannot maintain an action, for a declaration that his removal is illegal, and for arrears of pay till the date of dismissal. That would be so because his cause of action for arrears would accrue after the declaration'

11. It was therefore, held that the constriction of Art. 102 was not only concluded by the decision of the Supreme Court in Madhav Laxman case [A.I.R. 1962 S.C. 8] (vide supra) but also supported by the inherent reasonableness of the rule laid down therein. This construction of rule 52 which corresponds to our rule 150 gives a narrow construction to the expression 'dismissal or removal' which as we have already held, could hardly have been intended. Both in rules 52 and 54 of the Fundamental Rules or rules 10 and 152 of the Bombay Civil Services Rules that would curtail the scope of the whole forum of departmental appeals and revision which are obviously intended to meet such cases where the order of dismissal or removal is passed in violation of the constitutional guarantee under art. 311. There is no question of the declaration of the Civil court conferring a new right. The effect of the declaration is to avoid the order of dismissal or removal. Once an order of dismissal or removal is avoided, The bar created by the Fundamental Rule 50 or by rule 150 of the Bombay Civil Services Rules would cease to operate. Therefore, on the construction which we have placed we could not be rewriting the language of Art. 102 by substituting the words 'accrual of the wages' by the words 'the date of the declaration of the civil Court.' It is only the effect of the declaration that bar created by the aforesaid rule ceases to operate and that changes the date of the accrual of the salary under Art. 102.

12. Therefore, even if there was a fiction that there was no valid order terminating the services, because of the declaration by the competent civil Court, there would be no logical implication of the second fiction and wages would accrue due every month. The restricted construction which is given to Fundamental Rule 52 by the Division bench of the Punjab High Court is net justified on any principle of construction. Even when two constructions are possible, it is well settled that that construction should be preferred which would carry out the purpose of these rules and would not defeat this purpose. The departmental appeals and revisions must however be intended to be availed of by all civil servants who have been dismissed or removed from service and the competent authority would entertain the appeal or revision in all cases of such order without making any such technical distinction between the orders, which violate constitution guarantee under Art. 311 or which are otherwise invalid. It is impossible to imagine that the rule-making authority would intend that limitation should start running against civil servants while the departmental appeal or revision was pending. The departmental remedy might take years and during which period the right to get wages would get time-barred. In such cases the relief granted in the departmental appeal or revision would not be effective, and that is why, even on a reasonable construction, the bar in Fundamental Rule 52 or corresponding rule 150 of the Bombay Civil Services Rules must be deemed to apply in all such cases so that the terminus quo for accrual of wages would only be from the date when the said bar ceases to operate after the declaration by the competent civil Court. The Division Bench of the Punjab High Court has no doubt taken into consideration the fact the this wider view would mean that servant who has been illegal dismissed could not maintain an action for a declaration that his removal is illegal and for arrears of pay till his dismissal as, that cause of action for arrears of pay would accrue only after the declaration. This difficulty is, however, not an unsurmountable difficulty, which would compel any narrow construction. That question does not arise for our consideration. Prima facie, the answer might be that when the Court grants a declaration, as consequential relief it might grant relief of arrears of wages in the same suit, because such declaration removes the bar of rule 150 with a retrospective effect. But even if the civil servant has to file a subsequent suit for that purpose for working out his rights, that construction would be more advantages to him then the other view, which would make his claim time-barred. Therefore, their is difficult to agree with the Division Bench of the Punjab High Court that there is some inherent reasonableness in any such restricted construction. This question is also be concluded by the aforesaid decision of the Supreme Court in Madhav Laxman as [A.I.R. 1962 S.C. 8] (vide supra). What concluded, therein is that in such can Art. 102 of the Limitation Act would apple, and not Art. 115 or 120 of the Act. The question as to what is the terminus quo the accrual of wages in such cases, what servant has been wrongfully dismissed when there is a statutory rule like Fundamental Rules 52 or rule 150 of the Bombay Civil Services Rules has never been considered by the Federal Court or by aforesaid decision of the Supreme Court that question is not concluded by authority. Therefore, with great respect, we would differ from the view taken by Division Bench of the Punjab High Court we would prefer the other view which been accepted by the Division Bench the Madras High Court in Ananthanram case [1963 - II L.L.J. 584] (vide supra). In that view of the matter, even if Art applies, the plaintiff's suit was obviously within time even for arrears prior to 1 August, 1955. Thereafter it is not necessary in to consider the wider question raised by Sri Oza. Sri Oza sought to argue that after Roshanlal case [1968 - I L.L.J. 577], the position of law is now well-settled that a Government servant occupies the status and the matter is not merely one of the contract but one governed by law or the relevant rule in that connexion. The question of emoluments of a civil servant has to be governed by the statutory rules. Sri Oza also pointed out that according to the decision of the Supreme Court in 1962 - I L.L.J. 226, in such cases the effect of the declaration of the civil Court is that a civil Servant is wrongfully prevented from rendering his services and he is thereby deprived of his remuneration which he would have earned if he was not prevented from rendering his service as his contract is never deemed to have been terminated. The claim would be one for a potential remuneration which would have been earned during the subsistence of his contract and such a claim would be clearly covered by art, 115 or in any event by Art. 120. It is not necessary for us to express any opinion on these wider question as even on the basis that Art. 102 applies to the facts of the case the plaintiff is entitled to succeed on the question of limitation.

13. The next question which arises is as to which state Government stands substituted under S. 91 of the Bombay Reorganization Act 1960, hereinafter referred to as the Reorganization Act, or which State Government is liable for the plaintiff's claim. Sri Desai has no doubt argued that the State of Maharashtra was joined after the limitation had expired and, therefore, the appeal against the State of Maharashtra would be incompetent. Sri Desai ignores the fact that this is not a case where parties are voluntarily allowed to be joined but the case is one of legal substitution of parties by reason of S. 91 of the Reorganization Act. It would be a statutory substitution, as this was a very contested question between the two rival State Government it was necessary that Maharashtra Government was joined this appeal was heard by us. The relevant question can be answered in the present case by reference to three relevant sections, viz., Ss. 60 61 and 64. Section 60 deals with contracts and runs as under :

'(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 form 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;

and all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be.'

14. Section 61 deals with the liability in respect of actionable wrong and runs as under :

'Where, immediately before the appointed day, the State of Bombay is 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, are the territories of the State of Maharashtra or the State or 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.'

15. Section 64 is a residuary provision which provides that the benefit or burden of any asset or liability of the State of Bombay not dealt with in the forgoing provisions of this part shall pass to the State of Maharashtra in the first instance. It is, therefore, clear that S. 60 would apply to cases of contract, S. 61 to liabilities in respect of actionable wrong and S. 64 would be residuary provision. It is settled principle of construction of statute that when a specific provision is made, it would prevail over the general provision and to that extent an exception would be deemed to have been carved out from the general provision. Therefore, S. 60 which deals with contractual liability cannot prevail as against specific provision of S. 61 if such a liability is in respect of an actionable wrong which is other than breach of contract. Sri Vidyarthi had vehemently argued that the question in the present case is one of wages or salary earned by a civil servant and that would always be the matter of contract and such contractual claims must fall under S. 60. As we have already pointed out ordinarily S. 60 would apply to all claims arising under any contract. However S. 61 makes a specific provision for liability in respect of any actionable wrong other than the breach of contract. Therefore, if the liability specifically falls under S. 61 it could never fall under the general provision in S. 60. similarly, residuary provision of S. 64 also would be out of question if the liability in question is one falling under specific S. 61. Therefore, what is material for our purpose is the proper construction of S. 61 which deals with 'any liability in respect of any actionable wrong other than breach of contract.' An identical question had arisen before the Supreme Court in State of Tripura v. province of east Bengal [A.I.R. 1951 S.C. 23] where Art. 10(2)(a) of the (Rights, properties and Liabilities) order 1947, issued under the Indian Independence Act, 1947, dealt the Indian Independence Act, 1947, dealt with a similar question of distribution of liabilities between the two newlycreated dominions and the identical expression in liability in respect of actionable wrong other than breach of contract was construed. Pityingly Sastri, J., observed at p. 27 that there is no reason why the words 'liability in respect of actionable wrong' should be understood in the restricted sense of liability for damages for completed tortious acts. Further proceeding, his lordship observed that indeed the words 'other than breach of contract' used in Art. 10(1) make it plain that the expression 'actionable wrong' is used in a wider sense which would have included breach of contract but for those limiting words. Mukherjee J.. also concurred in the same view and observed at p. 40 that the expression 'actionable wrong' could not be equated only with a tort which is civil injury other than breach of contract, which is capable of sustaining an action for unliquidated damages in a Court of law. If the appropriate remedy was not a claim for unliquidated damages, but for injunction or come other relief, it would not rank as a tort able wrong. His lordship Mukherjee J. gave various illustration at p. 40 and pointed out that a refusal to perform a statutory duty was not a tort if the remedy was by way of mandamus. Nor would any wrong be regarded as a tort if the remedy was not an action for unliquidated damages but for a liquidated sum of money, breach of trust was certainly an actionable wrong independent of contract and the beneficiaries could claim compensation if the trustee had misappropriated trust property, but as the claim could not be for unliquidated damages, it was not regarded as a tort. Further proceeding at p. 40 Mukherjee J., observed that even if wrong complained of in the case before their lordships is not a tort according to the technical rules of English law, but it would certainly be an actionable wrong as it could be sued upon is a Court of law and remedied it in a effective manner. The appropriate remedy for the wrong is not unliquidated damages which is essential in a tort but an injunction restraining the defendant from proceeding with illegal assessment or from realizing the amount assessed if assessment had already taken place. This ratio was in terms followed by the Full Bench of this Court in Bhalachandra Ramchandra Vaidya v. State of Gujarat [1963 - II L.L.J. 726] consisting of K. T. Desai C.J. Bhagwati, J (as he then was) and Mody J, at pp. 734 and 735 the Full Bench pointed on that the expression 'liability' is an expression of wide import. The words 'any liability in respect of any actionable wrong other than breach of contract' are not intended to cover only a liability in respond of any tort. The words used do not limit the liability in the damages. Further proceeding the Full bench observed at p. 735 that the Parliament intended to include in the word 'liability' not only of a financial obligation, but also obligations of every other kind, including one of reinstating a Government servant wrongfully dismissed, After referring to the aforesaid decision in State of Tripura v. Province of East Bengal [A.I.R. 1951 S.C. 23], the Full Beach observed that the meaning of the term 'actionable wrong' deducible form the aforesaid decision was an illegal or unauthorized act infringing a legal right of another affording him a ground for action in law. 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 noncompliance with the provisions contained in Art 311(2) of the Constitution. In view of the settled interpretation of law, it is clear when that the plaintiff hold the State liable in respect of any of his actionable wrongs which is other that breach of contract and claims his legal right of remuneration which he would have earned if he was not prevented from performing his duty as a civil servant, the case would clearly fall under S. 61. As per the aforesaid decision of the Supreme Court in 1962 - I.L.L.J. 266 the effect of the declaration of the civil Court is that the deceased Government servant was wrongfully prevented from performing his services and he was thereby deprived of his legal remuneration, which he would have earned if he was not so prevented. The supreme Court in terms clarified in that decision that the reinstatement order in such a case would be superfious as there was never any breach of contract. Therefore, the case is clearly on of actionable wrong, other than breach of contract which gives right to a liability to pay remuneration during the period that the civil servant was wrongfully prevented from rendering services. Such remuneration may be one to pay wages but it arises because the civil servant holds as statutory status governed by statutory rules which entitles him to earn this remuneration. In any event the claim in respect of such a liability for remuneration which a civil servant would have earned but for the wrongful action of the State is not a tortious liability as contended by Sri Vidyarthi, but one arising from the fact that the person concerned was a civil servant who was wrongfully prevented from earning this remuneration due to him therefore, S. 61 would be clearly applicable to the facts of the case in view of the aforesaid settled position of law.

16. Sri Vidyarthi however, vehemently relied upon the decision of Miabhoy, J. (as he was), in Bhaishankar Avalram Joshi v. State of Bombay [1964 - II L.L.J. 208] At p. 220, Miabhoy, J. has propounded a correct test as regards the application of Ss. 60 and 61 by holding that if the genesis is in breach of contract, then the provisions of S. 60 would 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, Sri Vidyarthi however, pointed out that on the aforesaid principle Miabhoy J., had come to the conclusion that in such cases where a civil servant claims the salary, the claim was one of contractual wages and it would fall under S. 60 Sri Vidyarthi is right in this contention that this is the view expressed by Miabhoy J., at p. 219 with profound respect for Miabhoy, J., We would, however, consider that that view proceeds on an erroneous assumption that there was a breach of contract committed by the State of Bombay. At p. 219, Miabhoy, J., in terms observed :

'... 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 ...'

17. As we have already pointed out the effect of the declaration of the civil court is that there was no breach of contract whatsoever and even the reinstatement order would be superfluous as held in the aforesaid decision, [1962 - I L.L.J. 266 at 270]. Similarly, in 1964 - II L.L.J. 208 at 220 Miabhoy, J., observed :

'The observations made by 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.'

18. We cannot agree with that view of Miabhoy, J. Miabhoy, J,, had not the benefit of the aforesaid decision of the Supreme Court which now clearly settles the question as to what is the effect of the declaration by the civil Court in such cases. Even though the contract continues, the liability to pay remuneration arises because the civil servant was wrongfully prevented from earning his due remuneration by rendering services in the post held by him. Such a liability would be clearly one in relating to an actionable wrong other than breach of an contract and the Full Bench was right in its view that S. 61 covered even cases where the Government incurred such liability to pay remuneration to the Government servant because of its wrongful action, it being not the case of a tort but of actionable wrong not falling in the category of breach of contract.

19. The further question which will however arise is as to whether S. 61(a) applies or section 61(b) applies to the facts of the present case. Sri Vidyarthi vehemently argued that the cause of action in this case could never be deemed to arise wholly within the territories of the State of Gujarat and, therefore, the initial liability would be of the State of Maharashtra in the present case. Sri Vidyarthi pointed out that the order terminating the services of the deceased Government servant had been passed at Bombay and, therefore, part of the cause of action accrued in any event at Bombay. Sri Oza in this connexion rightly relied upon the decision of the Supreme Court in state of Assam and others v. Kripanath Sharma and others [1967 - II L.L.J. 576 at 582] their lordships in terms pointed out that if the resolution really amounted to an order of discharge of particular persons, it should have been communicated to them for without such communication it would be of no use for the purpose of terminating the services of anybody [see Bachittar Singh v. State of Punjab, A.I.R. 1963 S.C. 396]. It is, therefore, well-settled after the two decisions of the Supreme Court that the order of discharge is not an order at all until it is communicated to the Government servant concerned. The plaintiff had in terms alleged in the plaint in Para. 9 regarding the cause of action that the original order terminating his service was served on Dr. Girdharlal at Baroda, within the jurisdiction of the Baroda Court. This averment has not been denied. Therefore, it is obvious that in the present case, services were sought to be terminated by the order communicated to the deceased Government servant at Baroda. The deceased was, therefore, removed from service at Baroda and thereafter he was prevented from rendering services at Baroda and the liability which was incurred by the State because this wrongful section by depriving of his remuneration which he would have earned if he was not so prevented would obviously arise at Baroda. The entire cause of action the State of Gujarat and the present case would clearly fall under S. 61(a) and not under S. 61(b) of the Reorganization Act. Sri Vidyarthi, however, strongly relied upon the passage from the decision of the full Bench in Bhalchandra Ramchandra Vaidya v. State of Gujarat [1963 - II L.L.J. 726] to the following effect at p. 735 :

'... Under the provisions of S. 61, a liability of this nature of the State of Bombay would be the initial liability of the State of Maharashtra where the cause of action did not arise wholly within the territories which, from the appointed day, i.e. 1 May, 1960, became the territoried of the State of Maharashtra or the State of Gujarat. The petitioner before us was employed to serve at Rajkot and was dismissed by an order passed at Bombay and it could not be said that the cause of action arose wholly within the territories of the State of Maharashtra or the territories of the State of Gujarat, and the initial liability in connexion therewith would be that of the State of Maharashtra ...'

20. These observations of the Full Bench proceeded on the assumption that really the effective order of dismissal was passed at Bombay or that the wrongful action which deprived the Government servant of his due remuneration by preventing him from rendering service took place at Bombay as a result of the aforesaid order. The aforesaid decisions of the Supreme Court which we have already considered which clearly lay down that the order of dismissal is no order as all until it is communicated to the service concerned and which now clarify the effect of the declaration by the civil Court, were not referred to in the aforesaid decision. The law is now well-settled after these decisions of the Supreme Court and there can be no doubt that as the order was communicated only at Baroda, the effective removal from the service of the concerned Government servant took place at Baroda. Besides, the cause of action in the present suit is wrongful depravation of the remuneration which the said Government servant would have earned, if he was not prevented from rendering services at Baroda. It is, therefore, obvious that the entire cause of action in the present case arose of Baroda within the territory of the State of Gujarat and, therefore, S. 61(a) applies to the facts of the present case and the liability for these arrears would be clearly of the State of Gujarat and not of the State of Maharashtra.

21. In the result, we must allow this appeal and set aside the decree of the trial Court in so far as it has disallowed the claim for arrears for the period prior to 1 August, 1955. We, therefore, allow this appeal and pass an additional decree in favour of the plaintiff and against the state of Gujarat for a sum of Rs. 16,716,50 with 6 per cent. running interest from the date of the suit till realization. The state of Gujarat shall pay proportionate costs of the plaintiff all throughout. In this connexion, we further direct that the amount decreed shall be paid by the state on or before 7 November, 1968. We make no order as to the costs of the state of Maharashtra.


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