Judgment

RAY, C.J.I.:- This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.

2. The appellant is the State of Madhya Pradesh. The first respondent is the State of Maharashtra. The second respondent is the plaintiff-decree-holder. They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintiff.

3. The trial Court passed a decree in favour of the plaintiff. It was declared that the order dated 9 January. 1954 of the suspension of the plaintiff as well as the order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative. The further declaration was that the plaintiff shall be deemed to be continuing in service from 16 September, 1943. A sum of Rs. 64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest. Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.

4. Maharashtra preferred an appeal against the decree. Madhya Pradesh preferred objections against the order of costs.

5. The High Court confirmed the decree and the declarations. The High Court however modified the decree and held Madhya Pradesh liable. The claim of the plaintiff against Maharashtra was dismissed.

6. The plaintiff was appointed Assistant Medical Officer in 1938. In 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur). In 1942 he was transferred to Hoshangabad. In 1943 he applied for medical leave for four months. The Civil Surgeon recommended leave for six weeks. The plaintiff again applied for leave in the month of August, 1943. The leave was sanctioned by the Civil Surgeon. The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keeping good health. The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave. The Government sanctioned leave for six weeks. On 28 September, 1943 the plaintiff was suspended by an order with effect from 16 September, 1943.

7. The plaintiff was served with a notice dated 30 September, 1943 to show cause why he should not be dismissed from service. Four charges were levelled against the plaintiff. First, that he refused to come to duty at the time of epidemic in August, 1943. Second, that he left his station without permission. Third, that he refused to attend the Departmental enquiry when ordered to do so. Fourth that he wilfully and deliberately acted in total disregaed of orders and absented himself from duty though he was declared to be fit to resume duty.

8. The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved: that the second charge was proved but mitigated and the third and the fourth charges were technically proved.

9. On 21 June, 1945 the plaintiff was asked to show cause why he should not be dismissed or reduced in rank. On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order. By order dated 7 November, 1945 the Provincial Government passed an order removing the plaintiff from service with effect from that date. On 10 May, 1946 the plaintiff filed an appeal to the Governor but it was dismissed.

10. On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur. By judgment dated 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to be deemed to continue in service. The plaintiff was thereafter reinstated in service as Assistant Surgeon on 12 December, 1953. He was posted at Mayo Hospital, Nagpur on 15 December, 1953.

11. On 13 January, 1954 the plaintif