Case: State Of Maharashtra Vs. Baishankar Avalram Joshi &amp; Another

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 (of SCR) = (at p. 251 of AIR):"As regards torts of its servants in exercise of sovereign powers, the company was not, and the Crown in 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."14.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 of S. S. Raphael v. Brandy, 1911 AC 413 (414) the head-note reads :"A stoker on board a merchant ship, who was entitled to wages from the shipowners, and also as a stoker in the Royal Naval Reserve to 6? 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 Workmens 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 its 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 be was earning his 6? a year by virtue of his engagement with the Crown; and he was giving an equivalent for that, 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, 1956-1 All ER 807, at pp. 811-12 observed:"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v.R., 1934 AC 176 (179) it is that an established civil servant is appointed to an office and is a public officer, remunerated 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., 1934 AC 176 (179) 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.15. It will be remembered that the Privy Council had said in Reilly v. R., 1934 AC 176 (179), 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."16. Even Lord Goddard C. J., in Terrell v. Secretary of State for the Colonies, 1953-2 QB 482, (499) observed that "the case (1934) AC 176, shows that there may be contractual rights existing before determination of a contract at will which are not inconsistant with a power to determine," and he stuck to this in Hambrooks case, 1956-1 All ER 807 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 1953-2 QB 482, 499 that he could recover his salary for the time during which he has served. He would claim on a quantum merit and I am fortified in this view by 1934 AC 176, by R. v. Doutre, (1884) 9 AC 745, and by Bushe v. R., 29th May, 1869, The Times, referred to in Robertsons book p. 338."17. 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 Section 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, 1951 SCR 1 at p. 44 = (AIR 1951 SC 23 at p. 39) 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It seems to us that the High Court came to a correct conclusion. 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 in not knowing what material was influencing the Inspector General ofmay 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.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 311 (2) of theis 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 theof the report of the Enquiry Officer.10. In the result we must overrule the first contention urged on behalf of the appellant, the State of Maharashtra.11. 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 Act,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 Section 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, 1951 SCR 1   at p. 44 = (AIR 1951 SC 23   at p. 39) 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.