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 section P Nayar for the appellant
I N Shroff for respondent No 1
section 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 24 1955 passed by the Inspector General of Prisons Saurashtra was illegal and void on the ground that it contravened the provisions of article 311 2 of the Constitution
The plaintiff also prayed for a decree for Rs 2690 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 24 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 2690 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 article 3112 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
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 24 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 article 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 article 3112 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 vs H C Goel1 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 sections 60 and 61 of the Bombay Reorganisation 1960 which read thus  60
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 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  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 aany 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
3This 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
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 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 vs Abdul Majid1 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 CJ 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  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 section 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 section section Raphael v Brandy1 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 LJ 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 1 924 because he was keeping himself fit and doing the work which he stipulated to do
 It is true that Lord Goddard CJ in Inland Revenue Commissioners vs
Hambrook1 observed  If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly vs 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 vs 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 vs R2 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 CJ in Terrell vs Secretary of State for the Colonies3 observed that the case Reilly vs 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 case1 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 vs Secretary of State for the Colonies1 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 vs R 2 by R vs Doultre4 and by Bushe vs R5 referred to in Robertson s book at p 338 11956 1 All ER 807 811 12
2  179
3 1953 2QB482499
4 5 May 29 We are here concerned with a choice between section 60 and section 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 section 602a of the Act
It is true as held by this Court in the State of Tripura vs The Province of East Bengal1 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 section 60 of the Act rather than under section 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
RKPS Appeal dismissed


Summary:
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 article 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 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 article 3112 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 vs H C Goel   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 section 602 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 section 60 of the Act rather than under a 61
925 B State of Tripura vs The Province of East Bengal   44 State of Bihar vs Abdul Majid 1954 SCR 786 Owner of section section Raphael vs Brandy  Inland Revenue Commissioner vs Hambrook 1956 1 AR ER 807 811 12 Reilly vs R  179 Terrell vs Secretary of State for the Colonies  499 R vs Doultre and Bushe vs R May 29 1869 The Times considered