BHAISHANKER AVALRAM JOSHI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is a plaintiffs second Appeal. Plaintiff joined service in the Gondal State as a jailor in 1927. He was serving as a jailor at Gondal in 1948 when the State of Gondal merged with the United States of Kathiawar. Plaintiff was absorbed as a servant of that state. Subsequently he was transferred to Surendranagar in 1951 and on or about 1 of August 1952 he was promoted as a senior jailor. Later on he was transferred to Rajkot and demoted as an accountant. In 1953 he was serving as an accountant in the Central Jail at Rajkot. Whilst he was so serving charges were leveled against the plaintiff on the ground that in or about 1952 whilst he was serving Surendranagar he had committed certain defaults by misappropriation of food-stuffs mal-treatment of prisoners and acceptance of illegal gratifications from them. Plaintiff was suspended on 25th of March 1954 and on 27th of March 1954 he was served with a charge sheet making the aforesaid allegations against him. Plaintiff filed a written statement on the 4th of September 1954 and an enquiry was held by Mr. Gangopadhyaya a superior officer. Plaintiff appeared before that officer and cross examined the witnesses on whose statements the charges were leveled against him also examined himself and some witnesses. He was allowed to appear through an advocate who took part in the enquiry proceedings. Then the enquiry officer made a report and thereafter on or about 7th of January 1955 a notice Ex. 13 was issued against the plaintiff calling upon him to show cause why he should not be dismissed from Government service. That notice was in the following terms:- -

(2.) Plaintiff appeared in response to this notice and filed his written-statement Ex. 14 on 9th of January 1955. It is not disputed that the Inspector General of Prisons Government of Saurashtra was the officer competent to appoint and dismiss the plaintiff. That officer by his order Ex. 15 dated 4th of February 1955 passed the impugned order. The officer ordered that plaintiff should be dismissed from service forthwith. This order was subsequently amended by an addendum dated 9th of February 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 Government. On 7th of May 1956 plaintiff served the Government with a notice under sec. 80 Civil Procedure Code. Thereafter he filed the present suit on 13th of November 1956 from out of which this Second Appeal arises. In this suit plaintiff prayed for a declaration that the order dated 4th February 1955 of the Inspector general of Prisons dismissing him was illegal and void on the ground that it contravened the provisions contained in Article 311 clause (2) of the Constitution of India. Plaintiff also prayed for a decree for Rs. 2 690 being arrears of his pay from 1st of April 1954 to 7th of May 1956. Plaintiff also prayed for a mandatory injunction calling upon the State of Bombay which had in the mean while taken the place of the State of Saurashtra to reinstate him to his position as a Government servant.

(3.) The main ground on which plaintiff attacked the order of dismissal was that he had not been furnished a copy of the report of the enquiry officer on the basis of which according to him the Inspector General of Prisons had issued the show cause notice dated 7th of January 1955 and on the basis of which apparently that officer had reached the tentative conclusion that the charges leveled against him had been made out and on the basis of which he had proposed the sentence of plaintiffs dismissal from Government service. The trial Court held that the non-supply of a copy of the report of the enquiry officer did not constitute a breach of Art. 311 clause (2). Accordingly it dismissed the suit of the plaintiff. The plaintiff then went in appeal to the District Court at Rajkot. The learned District Judge held in Civil Appeal No. 68 of 1958 that the non-supply of a copy of the report of the enquiry officer constituted a breach of Article 311 Clause (2) and gave a declaration to the plaintiff that the order of dismissal dated 4th February 1955 was illegal and void. The learned Judge also granted a declaration that the plaintiff continued to be in the post of the accountant till the date of his order. The learned Judge however dismissed the claim of the plaintiff for arrears of pay. The learned Judge did this on the ground that in law an action cannot be maintained for recovery of pay against the State. For this the learned Judge relied upon the decision in High Commissioner for India and another v. I. M. Lall reported in A.I.R. 1948 Privy Council 121. Aggrieved by the latter part of the decree of the learned District Judge the plaintiff has filed an appeal to the High Court of Judicature of Bombay at Rajkot against that part of the decree. He prayed that he be granted arrears of pay upto the date of the suit and that he be granted arrears also upto the date of his reinstatement. The State of Bombay was the respondent in the appeal. The State filed cross-objections under order 41 rule 22 Civil Procedure Code. By those objections the State of Bombay challenged that part of the decree by which the learned District Judge had granted a declaration that the order of dismissal was illegal and void and that the plaintiff continued to hold the post that he did at the date of the impugned order. After the reorganization the appeal was transferred to this Court and numbered as Second Appeal No. 704 of 1960. The learned Government Pleader for the state of Gujarat appeared in this Court to contest the appeal and in support of the cross-objections. Later on the learned Government Pleader presented Civil Application No. 470 of 1962 for adding the State of Maharashtra as a party to the present proceedings on the allegation that under the Bombay Reorganisation Act 1960 the liabilities which were the subject-matters of the appeal were the liabilities of the State of Maharashtra. A show cause notice was issued to the State of Maharashtra and Mr. A. D. Desai appeared in response to that notice on behalf of the State of Maharashtra. That application was granted and now both the States of Maharashtra and Gujarat are before this Court. Besides the questions raised in appeal the further questions which were argued were as to the respective liabilities of the two States in relation to the claims made by the plaintiff in the event of those claims being granted to him.