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Laxmiben Girdharlal Patel and ors. (Heirs of Deed. Dr. Girdharlal) Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR51
AppellantLaxmiben Girdharlal Patel and ors. (Heirs of Deed. Dr. Girdharlal)
RespondentState of Gujarat and anr.
Cases ReferredBhaishanker v. State
Excerpt:
- - state of mysore [1962]1scr886 ,it is well settled that article 102 of the act would be the relevant article applicable in such cases. as regar-ds 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's case (supra) where it was held that the arrears of salary would even be governed by 3 years' rule laid down in article 102 of the act. 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. therefore, even on the basis that article 102 applied the plaintiff's suit would be clearly within time. in case like the present, the right of the employee to get his wages, exists.....j.b. mehta, j.1. the plaintiffs-appellants, who are the heirs of the deeeased dr. girdharlal shankarlal patel, have filed this appeal as trial court had only decreed a part of their claim and had dismissed the suit for arrears of salary prior to 1st 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:dr. girdharlal shankarlal patel joined the medical department of the then baroda state on 14th 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 st 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:

J.B. Mehta, J.

1. The plaintiffs-appellants, who are the heirs of the deeeased Dr. Girdharlal Shankarlal Patel, have filed this appeal as trial Court had only decreed a part of their claim and had dismissed the suit for arrears of salary prior to 1st 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:

Dr. Girdharlal Shankarlal Patel joined the medical department of the then Baroda State on 14th 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 st 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 18th 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 his suit and granted him a declaration that the order terminating his service was illegal and ultra vires and in violation of Article 311(2) of the Constitution. This decree was confirmed in Second Appeal by Shah J. (as he then was) by the order dated 16th April 1958 this decision is reported in 60 Bom. L.R. 1137. Before Dr. Girdharlal was reinstated in service by the State 'of Bombay after this declaration by the Civil Court, he expired on 30th April 1958. The plaintiff's heirs, therefore, filed the present suit against the State of Bombay for arrears of salary from 19th September 1950 to the date of his death on 30th 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 D.A., in the grade of Rs. 200-25-400. The gratuity amount was also claimed and the total amount claimed in the suit was Rs. 33989/-. The State admitted part of the claim of arrears of pay and allowances with effect from 1st August 1955 along with the claim of gratuity while the claim of arrears of salary prior to 1st 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 had not been properly allowed. As regards the claim for arrears of salary prior to 1-8-55, the trial Court, however, dismissed the suit on the ground that Article 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, the claim was on that ground held to be time-barred and it was dismissed. The appellants, have, therefore, filed the present appeal on 24th August 1960 only against the State of Gujarat which came into existence on 1st May 1960 under the Bombay Reorganisation Act, 1960. When this appeal came for hearing, Mr. 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 C.A. No. 1287 of 1968 was granted and the State of Maharashtra has also appeared in the present matter.

3. The first question which arises in this appeal is as to whether the said claim of the plaintiffs for arrears of salary prior to 1-8-55 is time-barred by reason of Article 102 of the Act. Article 102 deals with suits for wages not otherwise expressly provided for by the Schedule. The limitation period is 3 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 : [1962]1SCR886 , it is well settled that Article 102 of the Act would be the relevant article applicable in such cases. In that case a question had arisen in connection 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 Article 102 of the Act, would apply as laid down by the Federal Court in the case of Punjab Province v. Tarachand 1947 F.C. 23. 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 regar-ds 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's case (Supra) where it was held that the arrears of salary would even be governed by 3 years' rule laid down in Article 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 the application of the three years' rule of limitation under Article 102. This decision has been relied upon by the State of Gujarat and by the State of Maharashtra. Mr. Vidyarthi and Mr. 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 B.C.S. Rules as the appellant had argued his case in person before the Supreme Court. We must, therefore, consider the contention of Mr. Oza whether the said Rule 150 of the B.C.S. Rules would make any difference while applying the relevant article of limitation viz. Article 102 to the facts of the present case.

4. At the outset we would dispose of the objection of Mr. Vidyarthi that there is nothing on the record to show that the deceased Dr. Girdharlal was governed by the B.C.S. Rules. There is no dispute that the deceased was absorbed by the Bombay State and it was after about one year that his services were terminated by the order, dated 18-9-50 by the State of Bombay. It is, therefore, obvious that the deceased had become servant of the Bombay State and to such a servant the provisions of the B.C.S. Rules would be obviously applicable. Mr. Vidyarthi argued that Rule 150 applies only to persons holding substantive posts. It is true that Shah J. in the aforesaid decision 60 Bom. L.R. 1137, 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 post. Therefore, there is no substance in the contention of Mr. Vidyarthi that the deceased was not governed by Rule 150.

5. Rule 150 provides that by the pay and allowances of a Govern ment servant who is dismissed or removed from service shall cease from the date of such dismissal or removal. It is, therefore, clear that by reason of Rule 150 the pay and allowances of the deceased who was removed from service ceased with effect from 13-9-50. It is only when that order was avoided by the competent declaration of the civil Court in the aforesaid civil suit No. 497/51 by the final decree of this Court passed on 16th April 1958 that this bar created by Rule 150 ceased- to apply. The terminus-quo in Article 102 is the date when the wages accrue due. As long as Rule 150 operated, wages could not be deemed to have accrued due to the deceased, in the face of Rule 150. It is only when the order removing the deceased from service was avoided by the declaration of the competent civil Court that at the earliest moment, the claim of wages could be deemed to have accrued due The present suit was immediately filed on 29-10-58. If, therefore, the terminus-quo for the claim of these wages is when they had become due to the deceased and of which he was wrongfully deprived of 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 1-8-1955. Mr. Vidyarthi and Mr. Desai. however, contended that the wages being contractual wages, they accrue due every month. Both the State Governments ignore Rule 150 which created a bar by 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 Article 102 could not start running at all.

6. Mr. 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. Mr. Desai in this connection 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.

Mr. 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 Mr. 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 Article 311 of the Constitution. The departmental appeal and revision provided in the B.C.S. 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 Article 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 emphasise that the person who was prevented from holding his office by the order of dismissal or removal or suspension is again restored 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 for by Mr. Desai. In Devendra Pratap v. State of Uttar Pradesh : (1962)ILLJ266SC , the Supreme Court had interpreted Rule 54 of the Fundamental Rules which corresponds to our Rule 152. At page 1337 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 case 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 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 not 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 Mr. 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 constitutional guarantee in Article 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 R. 152 (of the B.C.S.R.) 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 effect of the declaration of the civil Court viz. to declare that the civil servant is wrongfully prevented from attending his duties so that he is deprived of the remuneration which he would have earned, if 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 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 servants which operated under Rule 150 ceased by reason of the declaration of the competent civil Court.

7. Mr. Desai vehemently argued that there is a fiction created by the declaration of the civil Court that the alleged order terminating the services of the servant had never terminated his service, and in fact, even the order of reinstatement was superfluous. 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 Mr. 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 due every month. As we have already considered the bar of Rule 150 operated only till the order of dismissal or removal was avoided and, therefore, the remuneration, which accrued due to the deceased on the basis of the services 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 Article 102 is that date 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. Mr. Oza in this connection relied upon the decision in State of Madras v. Ananthamman : (1963)IILLJ584Mad , by the Division Bench, consisting of Ramchandra Iyer C.J. and Venkatraman J. The learned Chief Justice considered in that case the provisions contained in Fundamental Rule 52, which correspond to our Rule 150. At page 426 the learned Chief Justice pointed out that the terminus quo for a suit under Article 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 1st of the succeding month) but when it accrued. By reason of F.R. 52 the right to salary ceased the moment an 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 by Lord Acquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 A.C. 109 which had been cited with approval in Venkatchala, v. Bombay Dyeing and Mfg. Co. Ltd. : [1958]34ITR143(SC) 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 consequences 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 corrollaries 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 F.R. 52 are clear and no 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 : [1962]1SCR886 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 we 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 Article 102 applied the plaintiff's suit would be clearly within time.

8. Mr. Vidyarthi, however, drew our attention to the decision of the Punjab High Court in Union of India v. Ram Nath A.I.R. 1966 Punjab 500, by the Division Bench consisting of Daulat and Kapur JJ. The Division Bench in terms considered the aforesaid decision of the Madras High Court in Anantharamari's case and held at page 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 Courts 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 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 holding 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.

It was, therefore, held that the construction of Article 102 was not only concluded by the decision of the Supreme Court in Madhu Laxman 's case A.I.R. 1962 S.C. 8 but also supported by the inherent reasonableness to 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 Rule 52 and Rule 54 of the Fundamental Rules or Rules 150 and 152 of the B.C.S.R. 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 Article 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 F.R. 50 or by Rule 150 of the B.C.S.R. would cease 10 operate. Therefore, on the construction which we have placed, we would not be rewriting the language of Article 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 the bar created by the aforesaid rule ceases to operate and that changes the date of the accrual of the salary under Article 102. 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 wo'uld be no logical implication of the second fiction that wages would accrue due every month. The restricted construction which is given to F.R. 52 by the Division Bench of the Punjab High Court is not 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 their purpose. The departmental appeals and revisions must have been 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 orders, without making any such technical distinction between the orders which violate constitutional guarantee under Article 311 and which are otherwise invalid. It is impossible to imagine that the rule making authority would intend that limitation would 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 F.R. 52 or the corresponding R. 150 of the B.C.S. 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 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 that this wider view would mean that a servant who has been illegally 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 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 a declaration removes the bar of Rule 150 with a retrospective effect. But even if the civil sarvant has to file a subsequent suit for that purpose for working out his rights, that construction would be more advantageous to him than the other view, which would make his claim time-barred. Therefore, it 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 not concluded by the aforesaid decision of the Supreme Court in Madhu Laxman's case A.I.R. 1962 S.C. 8. What is concluded, iherein is that in such cases Article 102 of the Limitation Act would apply, and not Article 115 or 120 of the Act. The question as to what is the terminus-quo for the accrual of wages in such cases, when a servant has been wrongfully dismissed and when there is a statutory rule like F.R. 52 or Rule 150 of the B.C.S.R. has never been considered by the Federal Court or by the aforesaid decision of the Supreme Court and that question is not concluded by any authority. Therefore, with great respect, we would differ from the view taken by the Division Bench of the Punjab High Court and we would prefer the other view which has been accepted by the Division Bench of the Madras High Court in Anantharatnan's case. In that view of the matter, even if Article 102 applies, the plaintiff's suit was obviously within time even for arrears prior to 1st August 1955. Therefore, it is not necessary for us to consider the wider question raised by Mr. Oza. Mr. Oza sought to argue that after Roshanlal's case A.I.R. 1967 S.C. 889 at 894, the position of law is now well-settled that a Government servant occupies the status and the matter is not merely one of contract but one governed by law or the relevant rule in that connection. The question of emoluments of a civil servant has to be governed by the statutory rules. Mr. Oza also pointed out that according the decision of the Supreme Court in 1962 S.C. 1334, 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 services as his contract is never deemed to have been terminated. The claim would be one for potential remuneration which would have been earned during the subsistence of his contract and such a claim would be clearly covered by Article 115 or in any event by Article 120. It is not necessary for us to express any opinion on these wider questions as even on the basis that Article 102 applies to the facts of the case, the plaintiff is entitled to succeed on the question of limitation.

9. The next question which arises is as to which State Government stands substituted under Section 91 of the Bombay Reorganisation Act, 1960, hereinafter referred to as 'the Reorganisation Act', or which State Government is liable for the plaintiff's claim. Mr. Desai had 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. Mr. 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 Section 91 of the Reorganisation Act. It would be a statutory substitution. As this was a very contested question between the two rival State Governments it was necessary that Maharashtra Government ought to be heard and so we adjourned the matter and after 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. Sections 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 from that day, exclusively purposes of either the State of Maharashtra or the State of Gujarat of that State; and

(b) in any other case of the State of Maharashtra;

and all rights and liabilities which have accured, 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.

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 of Gujarat, be a liability of that State; and

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

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 foregoing provisions of this part shall pass to the State of Maharashtra in the first instance.... It is, therefore, clear that Section 60 would apply to cases of contract, Section 61 to liabilities in respect of actionable wrong and Section 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, Section 60 which deals with contractual liability cannot prevail as against specific provision of Section 61 if such a liability is in respect of an actionable wrong which is other than breach of contract. Mr. Vidyarthi 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 Section 60. As we have already pointed out ordinarily Section 60 would apply to all claims arising under any contract. However, Section 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 Section 61, it could never fall under the general provision in Section 60. Similarly, residuary provision of Section 64 would be out of question if the liability in question is one falling under specific Section 61. Therefore, what is material for our purpose is a proper construction of Section 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 : [1951]19ITR132(SC) , where Article 10(2)(a) of Indian Independence, the (Rights, Properties and Liabilities) Order, 1947, issued finder the Indian Independence Act, 1947, dealt with a similar question of distribution of liabilities between the two newly created dominions and the identical expression in liability in respect of actionable wrong other than breach of contract was construed. Patanjali Sastri J. observed at page 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 Article 10(1) make it plain that the expression 'actionable wrong' is used in wider sense which would have included breach of contract but for those limiting words. Mukherjea J. also concurred with the same view and observed at page 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 some other relief, it would not rank as a tort though all the same it would be an actionable wrong. His Lordship Mukherjea J. gave various illustrations at page 40 and pointed out that 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. A 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 page 40 Mukherjea 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, it would certainly be an actionable wrong, as it could be sued upon in a Court of law and remedied in an effective manner. The appropriate remedy for the wrong is not unliquidated damages which is essential in a tort, but injunction restraining the defendant from proceeding with illegal assessment from realising the amount assessed if assessment had already taken place. This ratio was in terms followed by the Full Bench of this Court in Bhalchnadra v. State IV G.L.R. 571, consisting of K.T. Desai, C.J. (as he then was) and Mody J. At page 580 and 581 the Full Bench pointed out 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 respect of any tort. The words used do not limit the liability in damages. Further proceeding, the the Full Bench observed at page 581 that the 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 aforesaid decision in The State of Tripura v. The Province of East Bengal 1951 S.C. 23, the Full Bench 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. In view of the settled interpretation of law it is clear that when the plaintiff holds the State liable in respect of any actionable wrong which is other than 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 Section 61. As per the aforesaid decision of the Supreme Court (Deveendra Pratap v. State of U.P.) : (1962)ILLJ266SC , 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 superfluous as there was never any breach of contract. Therefore, the case is clearly one of actionable wrong other than the 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 and it arises because the civil servant holds a 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 Mr. 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, Section 61 would be clearly applicable to the facts of the case in view of the aforesaid settled position of law.

10. Mr. Vidyarthi, however, vehemently relied upon the decision of Miabhoy J. (as he then was) in Bhaishanker v. State IV G.L.R. 1001. At page Miabhoy J. has propounded the correct test as regards the application of Sections 60 and 61 by holding that if the genesis is in breach of of contract, then, the provisions of Section 60 would apply, and if the genesis is an actionable wrong, other than the breach of a contract, then, the provision of Section 61 of the Act apply. Mr. 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 Section 60. Mr. Vidyarthi is right in this contention that this is the view expressed by Miabhoy J., at page 1016. With profound respect for Miabhoy J. we would, however, consider that the view proceeds on an erroneous assumption that there was a breach of contract committed by the State of Bombay. At page 1016 Miabhoy J. in terms observed: 'There is no doubt whatever 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 Section 60 of the Act..'

As we have aleady 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 A.I.R. 1962 S.C. 1334 at p. 1337. Similarly, at page 1017 Miabhoy J. observed 'the observations made by the Full Bench are obiter so far as they say that the aforesaid expression is wide enough to include a liability to pay the Government servant his due remuneration'. 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 contract and the Full Bench was right in its view that Section 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.

11. The further question which will however arise is as to whether Section 61(a) applies or Section 61(b) applies to the facts of the present case. Mr. 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 to the State of Maharashtra in the present case. Mr. 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. Mr. Oza in this connection rightly relied upon the decision of the Supreme Court in Stale of Assam v. Kripa Natha : (1967)IILLJ576SC , page 463. 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) : (1962)IILLJ752SC ). 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. Girdhralal 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 ought 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 of this wrongful action 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 arose at Baroda within the territories of the State of Gujarat and the present case would clearly fall under Section 61 (a) and not under Section 61 (b) of the Reorganisation Act. Mr. Vidyarthi, however, strongly relied upon the passage from the decision of the Full Bench in Bhaishanker v. State IV G.L.R. 571 at page 581 to the following effect:

Under the provisions of Section 61, a liability of this nature of the State of Bombay' would jbe the initial liability of the State of Maharasht. a where the cause of action did not arise wholly within the territories which, from the appointed day i.e. lst may 1960. became the territories 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 connection therewith would be that of the State of Maharastra.

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 at the place at Bombay as a result of the aforesaid order. The decisions of the Supreme Court, which we have already considered, which clearly lay down that the-order of dismissal is no order at all until it is communicated to the servant 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 deprivation 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 at Baroda within the territory of the State of Gujarat and, therefore, Section 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.

12. In the result we must allow this appeal and set aside the decree of the trial Court in so far as it has disallowed that claim for arrears for the period Prior to 1st August 1955.

13. 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. 16716. 50. P., with 6% running interest from the date of the suit till realisation. The State of Gujarat shall pay proportionate costs of the plaintiff all throughout. In this connection, we further direct that the amount decreed shall be paid by the State on or before 7th November 1968. We make no order as to the costs of the State of Maharashtra.


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