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Bhalchandra Ramchandra Vaidya Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 292 of 1960
Judge
Reported in(1963)4GLR571; (1963)IILLJ726Guj
ActsConstitution of India - Articles 226, 311 and 311(2); Bombay Re-organisation Act, 1960 - Sections 3(1), 61, 64, 81, 81(1) and 82
AppellantBhalchandra Ramchandra Vaidya
RespondentState of Gujarat
Appellant Advocate I.M. Nanavaty,; D.N. Desai and; R.M. Vin, Advs.
Respondent Advocate J.M. Thakore, Adv. General and; B.R. Sompura, Asstt. Govt. Pleader
DispositionPetition dismissed
Cases ReferredState of Tripura v. Province of East Bengal. Article
Excerpt:
constitution - maintainability - articles 226, 311 and 311 (2) of constitution of india and sections 3 (1), 61, 64, 81 and 82 of bombay re-organisation act, 1960 - special civil application against state of gujarat (sog) - plea that petition not maintainable against sog - initial liability in connection with action complained of is on state of maharashtra (som) as per section 61 - cause of action arose in territories belonging to part of som - section 61 intended to cover liability which has accrued to state of bombay and provides for transfer of such liability to either som or sog on reorganisation of state of bombay - liability of state of bombay ceases to exist as state of bombay itself ceased to exist - petitioner cannot be deemed from appointed day to be duly appointed to his post by.....desai, c.j.1. bhalchandra ramchandra vaidya, the petitioner before us has filed this special civil application against the state of gujarat praying for the issue of a writ of certiorari or other orders and directions under articles 226 and 227 of the constitution of india calling for the record and proceedings of the case against the petitioner and quashing and setting aside an order of dismissal passed against the petitioner and for the issue of a writ of mandamus or other writs, orders and directions under articles 226 and 227 of the constitution of india, ordering the state of gujarat to cancel the said order of dismissal or to forbear from taking any steps or action under the said order and from doing any act prejudicial to the rights and interests of the petitioner. the petitioner.....
Judgment:

Desai, C.J.

1. Bhalchandra Ramchandra Vaidya, the petitioner before us has filed this special Civil Application against the State of Gujarat praying for the issue of a writ of certiorari or other orders and directions under Articles 226 and 227 of the Constitution of India calling for the record and proceedings of the case against the petitioner and quashing and setting aside an order of dismissal passed against the petitioner and for the issue of a writ of mandamus or other writs, orders and directions under Articles 226 and 227 of the Constitution of India, ordering the State of Gujarat to cancel the said order of dismissal or to forbear from taking any steps or action under the said order and from doing any act prejudicial to the rights and interests of the petitioner. The petitioner has further asked for a declaration that the petitioner is and be continued in service of the Police Department of the State of Gujarat and be given his proper seniority and other reliefs.

2. in the year 1949, the petitioner commenced service in the Police Department of the State of Saurashtra as a Deputy Superintendent of Police. In the year 1953, the petitioner was working as a Deputy Superintendent of' Police at Dhraneadhra. In the month of May 1953, the petitioner's attention was drawn to a report in a local newspaper that one Jashwantrai, whose wife Nirmala was then living, had contracted a second bigamous marriage with one Pushpa. The petitioner thereupon 'suo motu' ordered an enquiry to be held in the matter. The enquiry was held by Police Sub-Inspector A. T. Vachharajani of the Dhrangadhra Police Station, who submitted his report stating that no such marriage between Jashwantrai and Pushpa was proved to have been contracted. On 3rd June 1953, K. C. Trivedi, the brother of Bai Nirmala, lodged a complaint with the Dhrangadhra City Police Station about the alleged bigamous marriage of Jashwantrai with Pushpa. This complaint was investigated by Vachharajani who submitted his report to the Police Inspector, Dhrangadhra Sub-Division who, in his turn, submitted the papers to the petitioner. The petitioner concurred with the conclusion of the Pollca Sub-Inspector that no offence of bigamy was proved 10 have been committed and that the First Class Magistrate, Dhrangadhra, should be moved to grant 'C' summary, i.e., that no offence had been committed and he made a recommendation to that eifect. On 17th July 1953, Bai Pushpa and her mother Bhagirathi filed affidavits before the First Class Magistrate, Dhrangadhra, stating that a marriage had taken place between Jashwantrai and Pushpa and charging Jashwantrai with having committed the offence of bigamy. Thereupon, on 2nd August 1953, the Magistrate ordered an enquiry under Section 202 of the Criminal Procedure Code. The enquiry was made by the petitioner. He examined about 13 witnesses and ultimately came to the conclusion that no reliable evidence was forthcoming which would afford a reasonable chance of the case ending in a conviction. He made a report to that effect to the Magistrate and sent to him the entire record of the proceedings. The Magistrate did not accept the recommendation of the petitioner to grant 'C summary' and called for a charge-sheet and proceeded with the case and ultimately convicted Jashwantrai and sentenced him to ore year's rigorous imprisonment and fine of Rs. 300/- for having committed the offence of bigamy. An appeal was preferred from the said order of conviction and sentence to the Sessions Court at Jhalawad. In the course of the hearing of the appeal, Jashwantrai's advocate admitted tne fact of Jashwantrai's marriage with Pushpa and the Sessions Judge confirmed the conviction but altered the sentence to one of three months' rigorous imprisonment and a fine of Rs. 100/-. The Government of Saurashtra took the view that the petitioner was superficial and negligent in his enquiry and ordered a departmental enquiry to be held against the petitioner. That was in the year 1955. The enquiry was held by N. Ram Iyer, the then Inspector General of Police, Saurashtra, who came to the conclusion that the charges of superficiality and negligence had been proved and he made a recommendation to the Government of the State of Saurashtra for appropriate punishment. On 6th October 1955, an order of dismissal was passed against the petitioner by the Saurashtra Government. The peti-tioner preferred an appeal therefrom to the Rajpramukh of Saurashtra. The same was dismissed by the Rajpramukh of Saurashtra on 21st December 1955. The petitioner made an application for review of the said order of dismissal to the Rajpramukh of Saurashtra, but the same was rejected on 16th April 1956.

On 1st November 1956, the State of Saurashrra merged with the State of Bombay. The petitioner filed a petition in the High Court of Judicature at Bombay, being petition No. 30 of 1957, for an appropriate writ and/or orders under Articles 226 and 227 of the Constitution of India for quashing the order of dismissal passed as aforesaid and praying that the petitioner may be declared to have continued in service. The said petition was summarily rejected on 11th February 1957. The petitioner thereupon served a notice on the State of Bombay under Section 80 of the Code of Civil Procedure giving notice of his intention to institute a suit against the State of Bombay praying for a declaration that the order of dismissal passed against the petitioner was illegal and void and also praying for a declaration that the petitioner continued in service in spite of the said order of dismissal and for claiming arrears of salary. The notice is dated 4th May 1957. After the receipt of the said notice, the State of Bombay, on 14th October 1957 passed an order setting aside the order of dismissal and reinstating the petitioner in service with effect from the date that he joined duty, the petitioner being posted at Rajkot. By the same order, the Government of Bombay directed that on reinstatement, the petitioner should be placed under suspension with effect from the date he joined duty and that a fresh departmental enquiry should be held by the Deputy inspector General of police, Rajkot Range, as regards his alleged conduct in making superficial and negligent investigation in connection with the aforesaid offence under Section 5 of the Prevention of Hindu Bigamous Marriages Act. It was further provided that during the period of suspension, the petitioner should be granted subsistence allowance in accordance with Rule 151 of the Bombay Civil Services Rules. After the petitioner joined duties the enquiry officer served on the petitioner a fresh charge-sheet on 21st February 1958 attaching therewith a statement of allegations and a statement of the evidence. The enquiry officer called for a written statement from the petitioner. On 21st March 1958, the petitioner filed his written statement. The petitioner was given a personal hearing. On 5th April 1958, the petitioner filed a further written statement. On 8th May 1958, the enquiry officer submitted his report to the Government to the effect that the charge mentioned in charge-sheet had been proved against the petitioner and recommending the removal of the petitioner from service. On 20th August 1958, a show cause notice was issued against the petitioner by the Joint Secretary to the Government of Bombay, Home Department, intimating to the petitioner that the Government considered that in view of the serious nature of the petitioner's default, the punishment of removal from service recommended by the enquiry officer was not adequate and that the Government proposed to dismiss him from service on the ground that he had been found guilty of the charge levelled against him. The petitioner was called upon to show cause why the proposed action should not be taken against him. The petitioner filed his written statement dated 24th September 1958 in reply to the said show cause notice. On 16th May 1958, the Government of the State of Bombay passed an order dismissing the petitioner from Government service with effect from 16th May 1959. The petitioner preferred an appeal against the said order to the Governor of Bombay on 22nd June 1959. On 19th April 1960, the Joint Secretary to the Government of Bombay, Home Department, addressed a letter to the petitioner stating that the Government saw no reason to revise its decision contained in Government order dated 16th May 1959 whereunder the petitioner had been dismiss-ed from service. With the said letter an extract from a letter dated 24th March 1960 from the Public Service Commission was enclosed, in which it was stated that in the opinion of the Public Service Commission, the petitioner had not advanced any fresh grounds which would justify reconsideration of the order of dismissal and that the Commission advised that his appeal may be rejected. On 1st May 1960, the State of Gujarat came into being. On 19th May 1960, the petitioner filed the above Special Civil Application in this High Court, against the State of Gujarat contending that the order of dismissal had been passed without complying with the provisions of Article 311(2) of the Constitution of India and claiming the reliefs set cut in the earlier part of this judgment.

3. An affidavit dated 3rd September 1960 has been filed on behalf of the State of Gujarat in answer to the above petition. The matter came up for hearing before a Bench of this Court consisting of Chief Justice Shri S. T. Desai and Shri Justice Bhagwatt. On 22nd September 1960 the learned advocate for the petitioner applied for permission to withdraw the petition. Such permission was granted and the petitioner was ordered to pay to the respondent the costs of the petition. On the petition being withdrawn, the learned Advocate General who appeared for the State of Gujarat stated to the Court that although the petitioner had exhausted all his remedies, the State Government was willing and agreeable to give to the petitioner a hearing through one of its Secretaries, Joint Secretaries or Deputy Secretaries and then finally decide the matter. It appears that thereafter some difficulties were felt in connection with the legal right of the Government of Gujarat to consider the case of the petitioner and if necessary to grant him relief. Thereupon an application was made to this Court by consent of both the parties for setting aside the order whereunder the petition was withdrawn. Thereupon, on 7th October 1961, by consent of the parties the requisite order was passed and the petition was restored and was directed to be placed on board for hearing. On 30th November 1961, the State of Gujarat has filed an affidavit contending that as the petitioner was dismissed from service of the former State of Bombay prior to 1st May 1960, the State of Gujarat would not be liable to reinstate the petitioner and that this Court cannot grant the reliefs prayed for by the petitioner and that the petition was misconceived and was liable to be dismissed, it has been further submitted that as the order of dismissal was passed by the former State of Bombay prior to the reorganisation of the State of Bombay, the liability to reinstate the petitioner would, having regard to the provisions of the Bombay Reorganisation Act, 1960, be the initial liability of the State of Maharashtra and that the State of Maharashtra would, in any event, be a necessary party to the petition. The State of Gujarat has further submitted that no effective writ could be issued by this Court against the State of Maharashtra and that this Court had no jurisdiction io entertain and try this petition. As important questions have come up for consideration in this petition ana BS there are several petitions pending in this Court in which similar questions arise for decision and as it was indicated at the hearing which took place when the mattar was first heard by a Division Bench of this Court that the correctness of a decision of a Division Bench of the Bombay High Court was sought to he disputed, it was considered proper to have the matter decided by a Full Bench of this Court. Thereupon a Full Bench of this Court has been constituted to deal with the matter and the same has now come up before us for decision.

4. The learned Advocate General who appears on behalf of the State of Gujarat, has raised a preliminary objection as regards the maintainability of the present petition against the State of Gujarat. It is urged that even if the order of dismissal could be regarded as being invalid and void, the liability in that connection is that of the State of Maharashtra and that the petition does not lie against the State of Gujarat. In the alternative, it is urged that the Maharashtra Government is, in any event, a necessary party to the petition and that in the absence of the Maharashtra Government, the petition is liable to be dismissed. The order complained of being an order passed by the Government of the State of Bombay normally a petition could have been filed against the Government of the Stale of Bombay and relief could have been claimed against the Government of the State of Bombay. Since 1st May 1960 the Government of the State of Bombay no longer exists. The question that then arises for consideration is whether a proceeding in that connection could be maintained against She Stale of Gujarat, having regard to the provisions contained in the Bombay Reorganisation Act, 1960. For the purpose of considering the question of the maintainability of the petition against the State of Gujarat we will have to proceed on the assumption that the order complained of has been passed in breach of the provisions contained in Article 311(2) of the Constitution of India. Before wa consider the various provisions contained in the Bombay Reorganisation Act, 1960, it would be necessary to consider what would be the effect in law of an order of dismissal passed in breach of the provisions contained in Article 311(2) of the Constitution. Article 311 of the Constitution provides as under:

311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority sub-ordinate to that by which he was appointed.

(2) No such person as aforesaid 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; XX XX XX XX.'

The petitioner was in the civil service of the State of Bombay. He was holding a civil post under the State of Bombay and he was not liable to be dismissed from service until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The non-compliance with the provisions of Article 311(2) has been placed en the same footing as the non-compliance with the provisions contained in Article 311(1) of the Constitution. An action taken in breach of the provisions of Article 311(1) would be an action taken by an authority not entitled to take the same. An action taken in violation of Article 311(2) would be an action taken without fulfilling the condition precedent to the taking of such action. If an action of dismissal by an authority not having the power to dismiss could be said to be void and without any operative effect and a nullity, an action taken in violation of the provisions of Article 311(2) is equally liable to be treated as void and inoperative and a nullity. As a person against whom an order is passed in violation of the provisions of Article 311(1) would continue in service as if no such order had ever been made, similarly a person against whom an order has been passed in breach of the provisions of Article 311(2) would equally continue in service as if no such order had ever been passed against him. In considering the effect of an order passed in violation of the provisions contained in Article 311(2), it would not be out of place to refer to the observations of the Privy Council in the case of the High Commissioner for India v. I. M. Lall . The Privy Council in that case had to consider the provisions contained in Section 240 of the Government of India Act, 1935. Section 240 of the Government of India Act, 1935, provided inter alia as follows:

'240. (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him; XX XX XX XX.'

At page 126, their Lordships pf the Privy Council observed that the provision as to a reasonable opportunity ofshowing cause against the action proposed to be taken hadbeen put on the same footing as the provision in Sub-section (2) of Section 240 and that the same was mandatory and necessarily qualified the right of the Crown recognised in Sub-section (1) of Section 240. At page 127 it is further observed that on a proper construction of Sub-section (3) of Section 240, as the respondent in that case had not been given the opportunity to which he was entitled and as the purported removal of the respondent in that case did not conform to the mandatory requirements of Sub-section (3) of Section 240, the order was 'void and inoperative'. In the opinion of their Lordships, the declaration to which the respondent in that case was entitled was that the purported dismissal of the respondent was void and inoperative and that the respondent remained a member of the Indian Civil Service at the date of the institution of the suit. The above observations may well apply to an action taken in violation of the provisions of Article 311(2) of the Constitution. An order passed in breach of the provisions contained in Article 311(2) is an order which is void and inoperative and a nullity and the person purported to be dismissed would remain in service as if no such order of dismissal had been passed. In the case of the State of U. P. v. Mohammad Noon AIR 1958 SC 86, the Supreme Court had occasion to consider orders which were nullities. At page 94 it has been observed as under :

'If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play the superior Court may, we think, quite properly exercise its power to Issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what 'ex facie' was a nullity for reasons aforementioned.'

The Supreme Court, in making these observations has taken the view that if there is an order which is passed wholly without jurisdiction or patently in excess of jurisdiction, Of if an authority manifestly conducts the proceedings in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends against the superior Court's sense of fair play, the action would ex facie be a nullity. When a provision is considered to be of such importance as to find a place in the Constitution itself, it must be held that the Constitution makers regarded the provision as vital to the matter, so that any action taken in violation of such a provision could be regarded as a nullity. The Constitution makers, by incorporating the provision in the Constitution, have placed the matter beyond the reach of the legislature when functioning in the ordinary course. The provision could not be altered without altering the Constitution itself. When such Importance has been attached by the Constitution makers to such a provision, then it cannot stand on a footing inferior to that where an authority has acted in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play. In Wharton's Law Lexicon, 14th Edition, at page 706, the meaning of 'nullity' has been given as 'want of force or efficacy, an error in litigation which is incurable and thus differs from an irregularity, which is amendable.'

5. A Full Bench of the Bombay High Court had, in the case of Abdullamiyan Abdulrehman v. Government of Bombay, 44 Bom LR 577 : (AIR 1942 Bom 257), to consider the effect of an order which was liable to he regarded as a nullity. After making a reference to several cases, Chief Justice Beaumont at page 590 (of Bom L R) :' (at p. 258 of AIR), has observed as under:

'Those cases have established the principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity, as Sir Lawrence Jenkins puts it, it is mere waste paper; and it is not necessary for anybody who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. XX XX XX XX.'

It is further stated that such an order can give rise to norights and can impose no obligations.

6. In this view of the matter, for the purpose of deciding the preliminary point the purported order of dismissal must be regarded as a nullity and as one which is not required to be set aside.

7. Our attention has been called to the case of W. W. Joshi v. State of Bombay : AIR1959Bom363 , where a Division Bench of the Bombay High Court has at page 836 (of Bom L R) : (at p. 368 of AIR) observed in connection with orders of dismissal passed in breach of the provisions of Article 311(2), as follows:

'It would be noticed that even assuming that each of the orders made was in contravention of the provisions of Article 311(2) of the Constitution it was not made by an authority having no jurisdiction to make an order. The order made, therefore, cannot be termed as non est or just a piece of paper. It cannot be said that the order made was by reason of its origin bad. A distinction has to be drawn between an order of dismissal made by an authority which was not competent to make an order and an erroneous order of dismissal made by a competent authority. The former may be non est and can Be completely ignored but such would not be the case with the latter.'

With respect, we are unable to agree with the aforesaid observations. As stated by us earlier, the non-compliance with the provisions of Article 311(2) has been put on the same footing as an order passed by an authority having no jurisdiction to pass the same. An order passed in violation of the provisions of Article 311(2) would, from the point of view of legal efficacy, be no order at all. It is liable to be regarded as a nullity and as mere waste paper.

8. We shall now proceed to consider the various provisions of the Bombay Reorganisation Act, 1960, which have been relied upon by the learned Advocate General in support of his arguments. It is urged that the provisions conlained in Section 61 or, in the alternative, Section 64 of the Bombay Reorganisation Act, 1960 are applicable to the facts of the present case if one proceeds on the footing that the order of dismissal that has been passed is violative of the provisions of Article 311(2) of the Constitution. Section 61 of the Bombay Reorganisation Act, 1960, provides 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 of Gujarat, be a liability of that State; and

(b) in any other case, be initially a liability of the Stale 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.'

Section 64 of the said Act provides as under:

'The benefit or burden of any asset or liability of the State of Bombay not dealt with in the foregoing provisions of this Part shall pass to the State of Maharashtra in the first instance, subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat before the 1st day of April 1961 or, in default of such agreement, as the Central Government may by order direct.'

It has been submitted on behalf of the State of Gujarat that the liability of the State of Bombay in connection with the order of dismissal passed, in breach of the requirements of the provisions of Article 311(2), is a liability covered by the provisions of Section 61 and that on the State of Bombay ceasing to exist, it would become initially a liability of the State of Maharashtra as the cause of action in connection therewith did not arise wholly within the territories which from 1st May 1960 form part of the State of Maharashtra. In the alternative, it is submitted that the liability in any event would be covered by Section 64 and that under the provisions therein contained, the liability would pass to the State of Maharashtra in the first instance, tt is submitted that in any view or the matter, the State of Maharashtra is the proper authority against whom relief could be sought by the petitione,-cn the footing of the order of dismissal being violative of Article 311(2) of the Constitution.

9. The expression 'liability' as used in Section 61 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 respect of any tort. The words used do not limit the liability to a liability in damages.

10. The Supreme Court had occasion to consider the words of a similar nature to be found in the Indian Independence (Rights, Properties and Liabilities) Order, 194/, in the decision reported in : [1951]19ITR132(SC) , in the case of State of Tripura v. Province of East Bengal. Article 10 of the said Order ran as follows :

'10. (1} Where immediately before the appointed day the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall -

(a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Dominion of India, be a liability of that Dominion; (2) Where immediately before the appointed day the Province of Bengal is subject to any such liability as aforesaid, that liability shall -

(a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of East Bengal, be a liability of that Province;

(b) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of West Bengal, be a liability of that Province; and

(c) in any other case, be a joint liability of the Provinces of East and West Bengal.'

It was held in that case that the words 'liability in respect of an actionable wrong' as used in Article 10 (2) should not be understood in the restricted sense of a liability for damages for completed tortious acts. Mr. Justice Mukherjea, in the course of his judgment in that case has observed at page 45 (of SCR) : (at p. 39 of AIR) as under :

'It seems to me that the learned Judges have attached a narrow and somewhat restricted meaning to the words of the Article mentioned above and that the plain language of the provision read in the light of the context would demand and justify a wider and more liberal interpretation. In my opinion, there can be an actionable wrong which does not arise out of a breach of contract and at the same time does not answer to the description of a 'tort' as it is understood in English law; xxxxx The word 'wrong' in ordinary legal language means and signifies 'privation of right'. An act is wrongful if it infringes the legal right of another, and 'actionable' means nothing else than that it affords grounds for action in law.'

In the case of : AIR1959Bom363 , the Bombay High Court had to construe similar words appearing in Section 88 of the Slates Reorganisation Act, 1956. That Section runs as under:

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

(a) if there be only one successor State, be a liability of that State;

(b) if there be two or more successor States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State; and

(c) in any other case, be initially a liability of the-principal successor State, but subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the Central Government may by order direct.'

The Bombay High Court in that case has observed at page 831 (of Bom L R) : (at p. 365 of AIR) that the word 'liability' in its widest import meant an obligation or duty to do something or to refrain from doing something. The Court saw no reason why any restricted meaning should be given to the word 'liability' used in that Act. In the opinion of the Court, Parliament intended to include in the word 'liability' 'not only a financial obligation, but also obligations of every other kind, including one of reinstating a Government servant wrongfully dismissed'. After referring to the case of : [1951]19ITR132(SC) , the Court has observed that the meaning of the term 'actionable wrong' deducible from the aforesaid decision, was an illegal or unauthorised act infringing a legal right of another affording him a ground for action in law. The words used in Section 61 of the Bombay Reorganisation 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 Article 311(2) of the Constitution. Under the provisions of Section 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. 1st May 1960, became the territories of the State of Maharashtra or the State of Gujarat. The peti-tioner 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 territories of the State of Maharashtra or the territories of the State of Gujarat, and the initial liability in connection therewith would be that of the State of Maharashtra. In view of what we have stated above, it is not necessary to consider whether if the case did not fall within Section 61, it would fall within the residuary provisions contained in Section 64. The learned Advocate-General contended that as the case of the petitioner is covered by Section 61 and as the initial liability in connection with the action complained of is that of the State of Maharashtra, the petition is not maintainable against the Slate of Gujarat. Section 61 is intended to cover a liability which has accrued to the State of Bombay and it provides for the transfer of such liability to either the State of Maharashtra or the State of Gujarat on the reorganisation of the State of Bombay. On the footing of the order of dismissal being regarded as a nullity the liability of the State of Bombay to pay salary to the petitioner and to continue to employ the petitioner existed upto such time as the state of Bombay continued to subsist, namely until the 1st of May, 1960. The liability of the State of Bombay would cease to exist on the State of Bombay itself ceasing to exist. This section is not intended to cover a liability which is imposed by some of the other provisions of the Act itself to employ a person in service and continue him in employment from and after the 1st of May 1960. The liability covered by Section 61 is the liability which had crystallised and which had accrued prior to the 1st of May 1960. It does not relate to a liability which arose for the first time on or after the 1st of May 1960 on the new I States coming into existence. A provision relating to transfer of liability is not intended to cover, and cannot cover, a liability which has been imposed for the first time by the Act itself upon the State of Maharashtra or the State of Gujarat.

11. Mr. Nanavaty strongly relied upon the provisions contained in Sections 81 and 82 of the Bombay Reorganisation Act, 1960, in this connection. Those provisions are contained in Part VIII. They relate to services, Section 80 of the Act contains provisions relating to all-India services with Which we are not concerned. Section 81 contains provisions relating to other services. That section runs as under:

'81. Provisions relating to other services-

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

(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the State to which every person provisionally allotted to the State of Maharashtra or Gujarat, shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.

(3) Every person who is finally allotted under the provisions of Sub-section (2) to the State of Manarashtra or Gujarat shall, if he is not already serving therein, bo made available for serving in that State from such date as may be agreed upon between the two State Governments or in default of such agreement, as may be determined by the Central Government. XX XX XX XX.'

The expression 'appointed day', having regard to thedefinition thereof contained in Section 2 (a), means the 1stof May 1960. By Section 81 it is provided that everyperson who, immediately before the appointed day, wasserving in connection with the affairs of the State ofBombay shall, as from that day, provisionally continue toserve in connection with the affairs of the State of Maharashtra unless he was required by a general or specialorder of the Central Government to serve provisionally in connection with the affairs of the Stale of Gujarat. TheCentral Government has, in exercise of the powers conferredupon it by this section, on 28th April 1960, passed anorder as follows:

'In exercise of the powers conferred by Sub-section (1) of Section 81 of the Bombay Reorganisation Act, 1960 (XI of 1960), the Central Government hereby requires that all persons who immediately before the appointed day are serving in connection with the affairs of the State of Bombay in the territories specified in Clauses (a) and (b) of Sub-section (1) of Section 3 of the said Act to serve provisionally as from the appointed day in connection with the affairs of the State of Gujarat.'

The territories specified in Clauses (a) and (b) of Sub-section (1) of Section 3 include Rajkot. On the same day, I another order was passed specifying by name various persons who were serving immediately before the appointed day in connection with the affairs of the State of Bombay who were required by the Central Government to serve provisionally as from the appointed day in connection with the affairs of the States of Maharashlra and Gujarat, as indicated in the Schedule to the order. The name of the petitioner is not included in this order. It is contended by Mr. Nanavaty, the learned Advocate for the petitioner, that the words 'every person who immediately before the appointed day is serving in connection with the affairs of the State of Bombay' appearing in Section 81 were wide enough to cover all persons in the service of the State of Bombay immediately before the appointed day and that the words would cover not merely the persons who are actually serving i.e., who are actually discharging the duties of their offices, but would include persons who might be on leave or who might be on deputation and whose service might have been lent by the State of Bombay to other States or to the Central Government or other authorities. The learned Advocate-General does not dispute the contentions advanced so far. Mr. Nanavaty, however, further contends that the words are wide enough to cover persons who have been dismissed from service. The persons who may be dismissed from service may fall in two categories -- those in whose case the order of dismissal is voidable and those in whose case the order of dismissal is, from its very inception, void and inoperative and a nullity like an order passed in violation of the provisions contained in Article 311 of the Constitution of India. As regards orders of the second kind which are from their inception nullities, it is not requisite that the same should be set aside. In the case of persons of the first kind against whom the orders passed are effective till they are set aside, there may be considerable force in the contention urged by the learned Advocate-General that such persons cannot be regarded as being persons serving in connection with the affairs of the State of Bombay immediately before the appointed day if the orders of dismissal passed in their case had not been set aside prior to that date. ' As regards the, second class of persons where the order of dismissal itself is void and inoperative and a nullity, one would have to proceed on the footing as if such an order had never in fact been passed and the order would have to be Ignored. A person against whom such an order has been passed must be regarded as serving in connection with the affairs of the State of Bombay immediately before the appointed day. The learned Advocate-General, however, has argued that Section 81 is not intended to apply at all to persons against whom orders of dismissal had been passed before the appointed day. In his submission, cases of all those persons were intended by the legislature to be covered by the provisions of Section 61 or, in any event. Section 64, and that one cannot look to the provisions contained in Chapter VIII in which Sections 31 and 82 appear for the purpose of considering whether the liability in connection with those persons was sought to be imposed by the legislature on any successor State. There is -nothing in the language of Section 81 which makes the section inapplicable in cases of persons who are covered by the words used in that section. Chapter VIM is intended to deal with services, and to the extent that the words used in the sections appearing in that part in terms apply, effect must be given to the same. There is nothing in the language of any other provision of the Act which would make the provisions of Chapter VIII inapplicable in cases covered by the terms of the sections therein contained.

12. The learned Advocate-General has, however another argument in his armoury to meet the case of the petitioner based on Section 31. He urges that even if it is held that the case of the petitioner is covered by the provisions of Section 81, the petitioner would provisionally continue to serve in connection with the affairs of the State of Maharashtra as he is not covered by the orders issued by the Central Government under Section 81(1) of the said Act, The second order which mentions in the Schedule -persons by name does not include the name of the petitioner. The only order that is relied upon in this connection by the petitioner is the first order of the Central Government dated 28th April 1960. That order requires only persons who were serving immediately before the appointed day in connection with the affairs of the State of Bombay 'in the territories specified in Clauses (a) and (b) of Sub-section (1) of Section 3' to servo provisionally as from the appointed day in connection with the affairs of the State of Gujarat. The question that we have to consider is whether it could be said that immediately before the appointed day, the petitioner was serving in connection with the affairs of the State of Bombay in the territory of Rajkot. No doubt, at the date when the order against the petitioner was passed purporting to dismiss Mm from service, he was posted at Rajkol. From that circumstance, merely because at the time when the order was passed against him he held a post at Rajkot, ft cannot be said that long time thereafter i.e., immediately prior to the appointed day, ho could be regarded as serving in any territory forming part of Gujarat. The order against the petitioner being, from its inception, bad, the petitioner would continue in service, tut in view of the fact that he had been in fact prevented from discharging the functions of his office fit Rajkot and was in fact not discharging the functions of his office immediately before the ppointed day. It could not be said that he was in fact serving in connection with the affairs of the State of Bombay in the territory of Rajkot. In view of the interpretation which we place upon the aforesaid order dated 23th April 1960, the petitioner cannot be regarded as a person, who by any general or special order of the Central Government, was1 required to serve provisionally in connection with the affairs of the State of Gujarat, with the result that under the terms of Section 81(1) he would provisionally continue to serve in connection with the affairs of the State of Maharashtra, and a proceeding by him for continuing in service would lie against the State of Maharashtra. Sub-section (2) of Section 81 no doubt provides that as soon as may be after the appointed day the Central Government shall, by general or special order, determine the state to which every person provisionally allotted to the State of Maharashtra or the State of Gujarat, shall be finally allotted for service and the date from which such allotment shall take effect or be deemed to have taken effect. It is admitted that even though we are in the year 1963, no such order has been passed in connection with any person by the Central Government in exercise of the powers conferred upon it under Section 81(2) of the aforesaid Act.

13. Mr, Nanavaty strongly relied upon the provisions contained in Section 82. That section provides as under:

'Provisions as to continuance of officers in same post. Every person who immediately before the appointed day, is holding or discharging the duties of any post or office in connection 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:

Provided that nothing in this section shall be deemed to prevent a competent authority after the appointed day, from passing, in relation to such person, any order affecting his continuance in such post or office.'

Mr. Nanavaty argued that as the order passed against the petitioner was a nullity and could be regarded as mere waste paper, the petitioner continued in service as if the order of dismissal had never been passed, and that immediately before the appointed day he was so continuing in service. Before, however, the petitioner could fall within the ambit of the provisions of Section 82, it is necessary that the petitioner should, Immediately before the appoint-ed day, be holding or discharging the duties of any post or office in connection with the affairs of the State of Bombay in any area which on that day fell within the State of Gujarat. It is only in that event that it could be said that he would continue to hold the same post or office in the .State of Gujarat and be deemed as from the appointed day to have been duly appointed to the post or office By the Government of the State of Gujarat. What-ever may be the position occupied by the petitioner in connection with his service, it cannot be said that the petitioner was, immediately before the appointed day, hold-ing or discharging the duties of any post or office in any area falling within the State of Gujarat. If the order of dismissal is void and of no effect he would no doubt continue in service and would be holding the post of a Deputy Superintendent of Police, but he could not be said to beholding the post or discharging the duties of the post in Rajkot Immediately before the appointed day, with the result that the provisions of Section 82 would not apply to him. It was urged by Mr. Nanavaty that the words used in Section 82 should be construed broadly. In his submission, Section 82 was intended to cover all persons who, immediately before the appointed day, were serving in connection with the affairs of the State of Bombay. He urged that Section 81 provided for allocation of all such persons and that Section 82 provided for all such persons continuing to hold their posts or offices and provided for the State which should be deemed to employ them. We are unable to put such a 'construction upon the provisions contained in Section 82. The provisions of Section 81 are wide enough to cover all persons who were serving in connection with the affairs of the State of Bombay. The persons who were serving in connection with the affairs of the State of Bombay may be holding or discharging the duties of posts without reference to a particular limited area. There were persons employed in the Secretariat at Bombay who were serving in connection with the affairs of the whole State of Bombay about whom it could not be said that they were serving in connection with the affairs of the State of Bombay in any limited local area. If the provisions of Section 82 were, by any stretch of language, extended to them, the result would be that even though some of those persons may be allocated to the State of Gujarat by the Central Government in the exercise of the powers conferred by Section 81(1), they would, under the provisions of Section 82, continue to hold their respective posts in the State of Maharashtra and would be deemed to have been duly appointed to their posts or offices by the Government of the State of Maharashtra. Such would be the state of affairs if the words 'in any area' were interpreted to mean the place where they held their posts and did not represent the area in connection wherewith they exercised their functions. That could not possibly be the intention of the legislature. Under the provisions of Section 81, persons could be allocated to provisionally continue to serve in connection with the affairs of the State of Gujarat by the Central Government. The posts or offices which they may be required to occupy in the State of Gujarat may be the posts or offices which may have, for the first time, to be created for the State of Gujarat, and they may be required to occupy such posts or offices after the creation of such posts or offices on the constitution of the State of Gujarat. Such persons could, by no stretch of language, be said to be covered by the provisions of Section 83.

14. In view of what we have stated above Section 82 cannot be interpreted to cover all persons who fall within the ambit of the provisions contained in Section 81 and it is not possible for us to put such an interpretation upon the language used in Section 82 as to embrace within its ambit persons like the petitioner who may be regarded as continuing in the employment of the State of Bombay without holding any post or discharging the duties of any post in any limited area immediately before the appointed day. The drift of the section is indicated by the marginal note. It relates to the continuance of officers in the same posts. The language of the section however shows that it is limited in its application.

15. In the result, it is not possible to say that the petitioner can be deemed, as from the appointed day, to have been duly appointed to his post or office by the Government of the State of Gujarat, or that he continues to hold his post or office in the State of Gujarat or that he has been allocated to the State of Gujarat or that he is required provisionally to continue to serve in connection with the affairs of the State of Gujarat. The petitioner has claimed relief against the State of Gujarat. The petitioner wants the State of Gujarat to continue to employ him and desires a writ to be issued against the State of Gujarat for that purpose. In our view, the petitioner is not entitled to any relief at present against the State of Gujarat and the petition, therefore, must be dismissed. Having regard to the fact that the matter has been referred to a Full Bench and that the matter prior thereto had been heard for some time before a Division Bench and having regard to the importance of the matter, we consider that the normal rule about the advocates' fees would be totally inadequate to compensate the advocates for the work and labour that they had to put in in this special civil application. We hold that it would be proper to allow a sum of seven hundred and fifty rupees by way of advocates' fees in this case. Taking however all circumstances into account including the fact that the plea on which this petition fails has been taken at a subsequent stage of the proceeding, the fair order to make as regards costs would be that each party should bear its own costs and we order accordingly.


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