Judgement

SIKRI, J.: This appeal by special leave arises out of the suit filed by Bhaishankar Avalram Joshi, hereinafter rerented to as the plaintiff for a declaration that the order of dismissal, dated February 2/4, 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. 2,690/- being arrears of his pay from April 1, 1954, to May 7, 1956.

2. 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 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 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.

3. 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 311 (2) 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.

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 from service:

"To

Shri Bhaishanker 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 of Saurashtra."

The plaintiff filed a written statenment. He was di