STATE OF MAHARASHTRA versus BAISHANKAR AVALRAM JOSHI & ANOTHER

Citation: [1969] 3 S.C.R. 917 · Decided: 10-03-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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STATE OF MAHARASHTRA 
11. 
BAISHANKAR AVALRAM JOSm & ANOTIIER 
March 10, 1969 
[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
Comtitution of India Art. 311 (2)-reasonable opportunity-whether 
r<quires supply of copy of Enquiry Officer's report-Bombay Reorganisa-
tion Act, 1960, ss. 60 and 61-whether liability to PG'Y arrears of salary 
iJ arising out of contract under s. 61 or in respect of 'actionable wrong 
other than breach of contrac( under s. 61. 
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 a$ of misappropriation and maltreatment of prisoner>. 
After 
an enqui'ry into the allegations, the Enquiry Officer made a report in 
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 with-
in the meaning of Art. 311 of the Constitution. 
He also prayed for a 
decree for arreal$ of pay from April, 1954 to May, 1960. His suit was 
dismissed by the !rial court but he succeeded in the fint appeal where the 
order of dismissal was declared illegal and void. 
An appeal by the res-
ponde:nt 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 apl)ellant 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 meanin& of section 60 of the Bombay Re-
organisation 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 : (I) The High Court had ri~tly found that the failure on the 
part of the competent authdrity to proVJde the respondent with a copy of 
the. repon of the Enquiry Officer amounted to denial of reasonable oppor-
tumty contem~lated by Art. 311(2) of the Constitution. The Inspector 
~eneral ~f Prisons had the report before him and the tentative conclu-
s~ons amyed at . 1?v the Enquiry Officer were bound to influence 
him and. m depnvm~ the plaintiff of a copy of the report he was handi-
capped m not. knowm~ what material 
was 
influencing the 
Inspector 
General of Prisons. [920 F] 
Union of India v. ff. 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 
SUPREME COURT REPORTS 
[ 1969] 3 S.C.R. 
of each case, but it would be in very rare cases indeed in which it could 
be .rua that the Government servant is not prejudiced by the non-supply 
of the report of the Enquiry Officer. [921 BJ 
( 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 s. 61. [925 Bl 
State of Tripura v. The Province of East Bengal, [1951] S.C.R. I, 44, 
State of Bihar v. Abdul Maiid, [1954] S.C.R. 786, Owner of S. S. Raphael 
v. Brandy, [1911] A.C. 413-14, Inland Revenue Commissioner v. Ham-
brook, [1956] 1 All 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 
llIDes), considered. 
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. Chatterj

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