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PETITIONER: STATE  OF   MAHARASHTRA

       Vs.

RESPONDENT: BAISHANKAR AVALRAM JOSHI & ANOTHER

DATE OF JUDGMENT: 10/03/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR 1302            1969 SCR  (3) 917  1969 SCC  (1) 804  CITATOR INFO :  RF         1991 SC 471  (5)

ACT: Constitution  of India Art.  311(2)-reasonable  opportunity- whether requires supply of copy of Enquiry Officer’s report- Bombay  Reorganisation  Act, 1960, ss.  60  and  61--whether liability  to  pay  arrears  of salary  if  arising  out  of contract  under  s. 61 or in respect  of  ’actionable  wrong other than breach of contract’ under s. 61.

HEADNOTE: The  first  respondent while he was holding the  post  of  a Senior   Jailor  in  March,  1954,  was  suspended  on   the allegations   that   he  had  committed  certain   acts   of misappropriation  and  maltreatment  of  prisoners.    After January,  1955.  A show cause notice was then issued to  him to which he replied by a written statement.  The  respondent was dismissed by an order of Inspector General of Prisons in February,   1955.   The  respondent  filed  a  suit  for   a declaration  that enquiry report was never supplied  to  him and   consequently   he  had  not  been   given   reasonable opportunity   within  the  meaning  of  Art.  311   of   the Constitution.   He also prayed for a decree for  arrears  of pay  from April, 1954 to May, 1960.  His suit was  dismissed by  the  trial court but he succeeded in  the  first  appeal where the order of dismissal was declared illegal and  void. An  appeal  by  the respondent to the  High  Court  claiming arrears of salary was allowed.          As  the State of Bombay had, in the meantime,  been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the  State of Maharashtra and the liability arising  out  of the declaration that the appellant was in Government service would  be the liability of the State of Gujarat.  A  Letters Patent  appeal  filed  by  the  State  of  Maharashtra   was dismissed. In  appeal to this Court, it was contended, inter  alia,  on behalf of the appellant that the liability to pay arrears of pay was not a liability arising out of a contract within the meaning  of section 60 of the Bombay Reorganisation  Act  of

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1960  but  it was a liability in respect  of  an  actionable wrong other than a breach of contract within the meaning  of section 61 of the Act. HELD:     (1)  The  High Court had rightly  found  that  the failure  on the part of the competent authority  to  provide the  respondent  with a copy of the report  of  the  Enquiry Officer   amounted  to  denial  of  reasonable   opportunity contemplated  by  Art.  311(2)  of  the  Constitution.   The Inspector  General of Prisons had the report before him  and the tentative conclusions arrived at by the Enquiry  Officer were  bound to influence him and in depriving the  plaintiff of  a copy of the report he was handicapped in  not  knowing what  material  was  influencing the  Inspector  General  of Prisons. [920 F] Union  of  India v. H. C. Goel, [1964] 4  S.C.R.  718,  728, referred to. It is true that the question whether reasonable  opportunity has or has not been’ afforded to the Government servant must depend on the facts 918 of  each case, but it would be in very rare cases indeed  in which  it could be said that the Government servant  is  not prejudiced by the non-supply of the     report    of     the Enquiry officer. [921 B] (2)  The  decree  of  the High Court  decreeing  payment  of arrears of salary   is  truly  a  liability  in  proceedings relating  to  a  contract within s. 60(2) (a)  of  the  Act. Although  the words ’actionable wrong’ other than breach  of contract  in  this  context  are  wide  words  and   include something  more  than  torts, but even so where  a  suit  is brought  by a Government servant for arrears of  salary  the decree  more  properly falls under s. 60 of the  Act  rather than under a. 61. [925 B] State  of  Tripura v. The Province of  East  Bengal,  [1951] S.C.R.  1, 44, State of Bihar v. Abdul Majid, [1954]  S.C.R. 786,  Owner of S. S. Raphael v. Brandy, [1911] A.C.  413-14, Inland  Revenue Commissioner v. Hambrook, [1956] 1  AR  E.R. 807, 811-12, Reilly v. R., [1934] A.C. 176, 179; Terrell  v. Secretary of State for the Colonies, [1953] 2 Q.B. 482, 499; R.  v. Doultre, [1884] 9 A.C. 745 and Bushe v. R., (May  29, 1869, The Times), considered.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 647 of 1966. Appeal  by special leave from the judgment and decree  dated June  19, 24, 1963 of the Gujarat High Court in  Appeal  No. 704 of 1960 from Appellate Decree. P.   K. Chatterjee and S. P. Nayar, for the appellant. I.   N. Shroff, for respondent No. 1. S.   K. Dholakia and Vineet Kumar, for respondent No. 2. The Judgment of the Court was delivered by Sikri,  J.  This appeal by special leave arises out  of  the suit   filed  by  Bhaishankar  Avalram  Joshi,   hereinafter referred  to  as the plaintiff, for a declaration  that  the order of dismissal, dated February 2/4, 1955, passed by  the Inspector  General of Prisons, Saurashtra, was  illegal  and void  on  the ground that it contravened the  provisions  of Art. 311 (2) of the Constitution.  The plaintiff also prayed for  a  decree for Rs. 2,690 being arrears of his  pay  from April 1, 1954 to May 7, 1956. The plaintiff failed before the Civil Judge, Rajkot, but  on appeal   succeeded  before  the  District   Judge,   Central Saurashtra,  inasmuch  as he declared order  dated  February

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2/4, 1955, illegal and void.  The plaintiff appealed to  the High  Court  claiming arrears of salary and  the  State  of Bombay  filed  cross-objections  praying that  the  suit  be dismissed.  The second appeal was heard by the High Court of Gujarat (Miabhoy, J.) who directed that the decree passed by the lower appellate court "be varied so as to show that  the appellant (plaintiff) continued to be in Government  service till the date of the suit only and there will be a  decree for Rs. 2,690 919 being  arrears of pay due to the appellant (plaintiff)  upto the date of the suit.  There will be a further provision  in the decree that the liability arising out of the declaration that the appellant is in Government service is the liability of  the  State  of Gujarat and that the  liability  for  the payment of the arrears of pay is the liability of the  State of   Maharashtra".   The  State  of  Maharashtra  filed   as application for leave to appeal under the Letters Patent but this’ was dismissed.  The appeal is now before us. The   learned  counsel  for  the  appellant  the  state   of Maharashtra , contends ,first, that the High Court erred  in holding  that there had been a breach of Art. 311(2) of  the Constitution,  as,  according to him, there was no  duty  to supply a copy of the report of the enquiry held against  the plaintiff.  Secondly, he contends that the High Court  erred in fastening the liability in respect of the arrears of  pay on the State of Maharashtra.        Before  we deal with the above points we may  give  a few  facts.   The plaintiff entered service  in  the  Gondal State in 1927 as a jailor.  The Gondal State merged with the United  States  of  Saurashtra.   On  March  6,  1953,   the plaintiff   was  appointed  senior   jailor,   Surendranagar District Jail.  On March 25, 1954, he was suspended, and  at that  time  he was acting as Accountant  at  Rajkot  Central Jail.  On March 7, 1954, he was served with a charge  sheet. In  substance the charges were that while he was serving  at Surendranagar   he  had  committed  certain  acts  of   mis- appropriation   of   food  stuffs   meant   for   prisoners, maltreatment   of  prisoners  and  acceptance   of   illegal gratification  from  them.  The plaintiff  filed  a  written statement  on September 4, 1954, and an enquiry was held  by Mr.  Gangopadhyay.   The  plaintiff  appeared  before   that officer  and  cross-examined witnesses.   He  also  examined himself  and some witnesses.  He was also allowed to  appear through an Advocate in the enquiry proceedings.  The Enquiry Officer  made a report and on or about January 7, 1955,  the following notice was issued to him calling upon him to  show cause why he should not be dismissed from service "To Shri Bhaishanker A. Joshi, Accountant, Rajkot Central Prison (Under suspension)               Charges  framed against you under this  office               No. C/ 14 dated 27-3-54 and in particular  the               charges    of    having    accepted    illegal               gratification from prisoner Ratilal Jivan have               been   established  to  the  satisfaction   of               Government.   You  are hereby  asked  to  show               cause  why  the punishment of  dismissal  from               service should not be inflicted upon You.               920               You  should please submit your reply  to  this               office,  through  the  Superintendent,  Rajkot               Central  Prison,, within a week from the  date               of receipt of this letter without fail.

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                                      Sd/- M. J. BHATT                            Inspector General of Prisons,                            Government of Saurashtra. "       The  plaintiff  filed  a written  statement.   He  was dismissed  by the Inspector General of Prisons by his  order dated  February  2/4,  1955.   This  order  was  amended  on February 9, 1955, in which it was stated that "the aforesaid order  should be read so as to show that the  plaintiff  was dismissed  from service on account of charge  of  accepting, illegal  gratification  from prisoner Ratilal  Jivan  having been  conclusively  proved against him in  the  departmental inquiries conducted against him by the Government". In the plaint the plaintiff alleged that copy of the enquiry report  was never supplied to him, and consequently  he  had not been given reasonable opportunity within the meaning  of Art. 311 of the Constitution.  The State of Bombay  admitted that  the  plaintiff  was not supplied with a  copy  of  the report  of  the  Enquiry  Officer,  but  pleaded  that   the plaintiff  had not asked for copy of the report and had  not been  prejudiced  by  the non-supply of  the  copy of  the report.      The High Court held that the failure on the part of the competent authority to provide the plaintiff with a copy  of the  report  of the Enquiry Officer amounted  to  denial  of reasonable  opportunity contemplated by Art. 311(2)  of  the Constitution. It seems to us that the High Court came to a correct conclu- sion.   The  plaintiff  was not aware  whether  the  Enquiry Officer  reported  in  his favour or against  him.   If  the report  was  in  his favour, in his  representation  to  the Government he would have utilised its reasoning to  dissuade the Inspector General from coming to a contrary  conclusion, and  if  the report was against him he would have  put  such arguments or material as he could to dissuade the  Inspector General  from accepting the report of the  Enquiry  Officer. Moreover,  as pointed out by the High Court,  the  Inspector General  of  Prisons  had  the report  before  him  and  the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy  of the report he was handicapped is not  knowing  what material was influencing the Inspector General of Prisons. 921               As observed by Gajendragadkar, J., as he  then was, in Union of lndia v. H. C. Goel(1), "the enquiry report along with the evidence recorded constitute the material  on which  the  Government has ultimately to act.  That  is  the only  purpose of the enquiry held by competent  officer  and the report he makes as a result of the said enquiry".      It  is  true  that  the  question  whether   reasonable opportunity  has or has not been afforded to the  Government servant must depend on the facts of each case, but it  would be in very rare cases indeed in which it could be said  that the  Government servant is not prejudiced by the  non-supply of the report of the Enquiry Officer. In  the result we must over-rule the first contention  urged on behalf of the appellant, the State of Maharashtra.    The plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat.  As is well-known, the State of Bombay was reorganised  into  the  above  two  States  and   the-Bombay Reorganisation  Act, 1960, contained various provisions  for the apportionment of assets and liabilities between the  two States.   We  are here concerned with ss. 60 and 61  of  the Bombay Reorganisation 1960, which read thus :               "60. (1) Where, before the appointed day,  the

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             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               accrued,   or  may  accrue,  under  any   such               contract  shall, to the extent to  which  they               would  have been rights or liabilities of  the               State  of Bombay, be rights or liabilities  of               the  State  of  Maharashtra or  the  State  of               Gujarat, as the case may be;                 Provided  that  in  any  such  case  as   is               referred   to  in  clause  (b),  the   initial               allocation of ’rights and liabilities made  by               this  sub-section  shall be  subject  to  such               financial  adjustment  as may be  agreed  upon               between the State               (1)   [1964] 4 S.C.R. 718,728.               922               of  Maharashtra and the State of Gujarat,  or,               in  default of such agreement, as the  Central               Government may by order direct.               (2)   For  the purposes of this section  there               shall   be  deemed  to  be  included  in   the               liabilities  which have accrued or may  accrue               under any contract-               (a)any liability to satisfy an order or  award               made  by  any  court  or  other  tribunal   in               proceedings relating to the contract; and               (b    any  liability  in respect  of  expenses               incurred  in  or in connection with  any  such               proceedings.               (3)This  section shall have effect subject  to               the other provisions of this Part relating  to               the apportionment of liabilities in respect of               loans,   guarantees   and   other    financial               obligations; and bank balances and  securities               shall,  notwithstanding that they  partake  of               the  nature  of contractual rights,  be  dealt               with under those provisions.               61.   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." The  learned counsel for the State of  Maharashtra  contends

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that the liability to pay arrears of pay was not a liability arising out of a contract but was a liability in respect  of an actionable wrong other than a. breach of contract. This  Court in State of Bihar v. Abdul Majid(1)  held  "that the rule of English Law that a civil servant cannot maintain a  suit  against the Crown for the recovery  of  arrears  of salary  does not prevail in India and it has been  negatived by  the provisions of the statute law in  India".   Mahajan, C.J., speaking for the Court, observed at p. 802:               "As  regard torts of its servants in  exercise               of sovereign powers, the company was not,  and               the Crown in               (1)   [1954] S.C.R. 786.               923               India was not, liable unless the act has  been               ordered or ratified by it.  Be that as it may,               that  rule has no application to the  case  of               arrears  of salary earned by a public  servant               for the period that he was actually in office.               The present claim is not based on tort but  is               based  on quantum meruit or contract  and  the               court is entitled to give relief to him." It may be that these observations are not conclusive on  the point  under consideration.  It seems to us,  however,  that some  elements of relationship between a public servant  and Government are based on contract within the meaning of s. 60 of the Bombay Reorganisation Act, 1960.  In particular,  the liability to pay salary, when it has been fixed, arises out of a contract to pay salary.  Authority is not lacking  even in  England where a special relationship exists between  the Crown and its public servants.  In Owner or S. S. Raphael v, Brandy(1) the head-note reads               A stoker on board a merchant ship, who was en-               titled to wages from the shipowners, and  also               as  a stoker in the Royal Naval Reserve  to  6               pound a year as a retainer, was injured by  an               accident  on the ship which disabled him  from               continuing to serve in the Royal Naval Reserve               Held,  that the stoker was entitled under  the               Workmen’s    Compensation   Act,   1906,    to               compensation  from the shipowners not only  in               respect of his wages but also of the retainer,               which  must be taken into account as  earnings               under a concurrent contract of service." The Lord Chancellor in the course of the speech observed               "A point was made before your Lordships  which               does not appear to have been made in the Court               below,  that  there was no contract  with  the               Crown  at all here.  The authorities  cited_go               no  further than to say that when there is  an               engagement between the Crown and a military or               naval officer the Crown is always entitled  to               determine   it  at  pleasure,  and   that   no               obligation   contrary   to   that   would   be               recognized or valid in law.               It  was  then said that there  were  not  here               concurrent  contracts.  I agree with  Fletcher               Moulton  L.J.  that this is almost  a  typical               case  of  concurrent  contracts,  because  the               workman was being paid wages for his  services               on board a merchant ship, and at the same time               he was earning his 6 pound a year by virtue of               his  engagement  with the Crown;  and  he  was               giving an equivalent for that,               (1)   [1911] A.C. 413-14.

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             924               because  he was keeping himself fit and  doing               the work which he stipulated to do."               It is true that Lord Goddard, C.J., in  Inland               Revenue Commissioners v.Hambrook(1) observed :               "If  I  may  be  bold  enough  to  express   a               conclusion  on a matter on which the  Judicial               Committee hesitated in Reilly v. R (2) , it is               that an established civil servant is appointed               to an office and is a public officer,  remune-               rated  by  moneys provided by  Parliament,  so               that his employment depends not on a  contract               with  the  Crown  but on  appointment  by  the               Crown,  though  there may be as  indicated  in               Reilly  v. R. (2)  exceptional  cases,  as for               instance  an engagement for a definite  period               where  there  is a contractual element  in  or               collateral to his employment." But  in  the Court of Appeal nothing was  said  about  these observations. It  will  be remembered that the Privy Council had  said  in Reilly  v.  R(2) that "their Lordships are not  prepared  to accede  to this view of the contract, if contract there  be. If the terms of the appointment definitely prescribe a  term and  expressly provide for a power to determine "for  cause" it  appears necessarily to follow that any implication of  a power to dismiss at pleasure is excluded." Even  Lord Goddard, C.J., in Terrell v. Secretary  of  State for  the Colonies(3) observed that "the case (Reilly v.  R.) (2)  shows  that there may be  contractual  rights  existing before  determination  of a contract at will which  are  not inconsistent  with  a power to determine," and he  stuck  to this in Hambrook’s case(1) by stating :               "Although  it  is  clear that  no  action  for               wrongful  dismissal  can  ’be  brought  by   a               discharged civil servant, I may be allowed  to               say  that  I  adhere to the  opinion  which  I               expressed in Terrell v. Secretary of State for               the  Colonies(1)  that he  could  recover  his               salary  for  the  time  during  which  he  has               served.   He would claim on a quantum  mersuit               and  I am fortified in this view by Reilly  v.               R.  (2), by R. v. Doultre(4) and by  Bushe  v.               R(5)  referred  to in Robertson’s book  at  p,               338." (1)[1956] 1 All E.R. 807, 811-12.  (2) [1934] A.C. 176; 179. (3) [1953] 2Q.B.482,499.           (4) (1884) 9 A.C. 745. (5)  (May 29, 1869, The Times) 925 We are here concerned with a choice between s. 60 and s. 61, which  lay down two broad categories.  It seems to  us  that the decree of the High Court decreeing payment of arrears of salary  is  truly a liability in proceedings relating  to  a contract within s. 60(2)(a) of the Act.  It is true, as held by  this  Court in the State of Tripura v. The  Province  of East Bengal(1), that the words ,actionable wrong other  than breach  of  contract’  in this context are  wide  words  and include something more than torts, but even so where a  suit is  brought by a Government servant for arrears  of  salary, the decree more properly falls under s. 60 of the Act rather than under s. 61. In  the result the appeal fails and is dismissed with  costs to the respondent, Baishankar Avalram Joshi.  The State’  of Gujarat will bear its own costs in this appeal. R.K.P.S.                             Appeal dismissed.

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(1)  1951] S.C.R. 144. 926