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

4. 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 27, 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 misappropriation 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 fromBhaishanker A. Joshi,Accountant, Rajkot Central Prison(Under suspension)Charges framed against you under this office No. C/14 dated 27th March 1954 and in particular the charge 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.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 ofplaintiff filed a written statenment. 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 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.6. 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 the Constitution.The plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashtra, inasmuch as he declared the order dated February 2/4, 1955, illegal and void. The plaintiff appealed to the High Court claiming arrears of salary and the State of Bombay filedpraying 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 date of the suit only and there will be a decree for Rs. 2,690/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 an application for leave to appeal under the Letters Patent but this was dismissed. The appeal is now before us.

Reasoning:
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.