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HIGH COURT OF BOMBAY
TAMBE, TARKUNDE, JJ.
W.W. Joshi
Versus
State of Bombay
Misc. Petn. No. 523 of 1956 with Misc. Petn. No. 470 of 1956 and Special Civil Appln. No. 73 of 1957,
Decided On : 19-11-1958
STATES REORGANISATION ACT, 1956 - SECTIONS 87, 88 AND 116 - INTERPRETATION - MAINTAINABILITY OF PETITIONS AGAINST THE STATE OF BOMBAY - LIABILITY FOR WRONGFUL DISMISSAL OF PETITIONERS BY FORMER STATE OF MADHYA PRADESH - APPLICABILITY OF SECTION 88(B) - MEANING OF "ACTIONABLE WRONG" - CAUSE OF ACTION ARISING WITHIN TERRITORIES OF PRESENT STATE OF BOMBAY - MAINTAINABILITY OF PETITIONS AGAINST STATE OF BOMBAY - SECTION 116 - APPLICABILITY - REQUIREMENT OF HOLDING POST IMMEDIATELY BEFORE APPOINTED DAY - EFFECT OF WRONGFUL DISMISSAL.
Fact of the Case:
Petitioners, former employees of the State of Madhya Pradesh, challenged the orders of their dismissal by the said State prior to the States Reorganisation Act, 1956, on the ground of contravention of Article 311(2) of the Constitution. The petitions were filed against the State of Madhya Pradesh and transferred to the Bombay High Court on a certificate issued by the Chief Justice of the Nagpur High Court under Section 59(2) of the Act. The State of Bombay raised a preliminary objection regarding the maintainability of the petitions against it.
Finding of the Court:
The Court held that the petitions were maintainable against the State of Bombay. It interpreted Sections 87, 88, and 116 of the States Reorganisation Act, 1956, and concluded that: * Section 87, dealing with the apportionment of rights and liabilities accrued or which may accrue under a contract between existing States and any other person, was not applicable as the petitioners' claim did not arise out of a breach of contract but from the alleged contravention of Article 311 of the Constitution. * Section 88(b), which provides for the liability of a successor State in respect of an actionable wrong other than breach of contract, was attracted to the facts of the case. The Court construed the term "actionable wrong" broadly to include an illegal or unauthorized act infringing a legal right of another, affording a ground for action in law. The Court found that the petitioners' claim related to the liability of the former State of Madhya Pradesh in respect of an actionable wrong, namely, the wrongful dismissal of the petitioners. * Since the cause of action, i.e., the orders of dismissal and their consequences, arose in their entirety within the territories that became part of the State of Bombay, the liability of the former State of Madhya Pradesh was transferred to the State of Bombay under Section 88(b). * Section 116, which provides for the deemed appointment of certain employees by the successor State, was not applicable as the petitioners were not, in fact, holding any post on the date the Act came into force.
Issues: 1. Whether the petitions were maintainable against the State of Bombay. 2. Whether Section 87 of the States Reorganisation Act, 1956, was applicable to the petitioners' claims. 3. Whether Section 88(b) of the Act was attracted to the facts of the case. 4. Whether the cause of action arose within the territories of the State of Bombay. 5. Whether Section 116 of the Act was applicable to the petitioners.
Ratio Decidendi: 1. The Court held that the petitions were maintainable against the State of Bombay based on the following reasoning: * The liability of the former State of Madhya Pradesh to redress the petitioners' wrongful dismissal was an actionable wrong within the meaning of Section 88 of the Act. * Under Section 88(b), the liability of the former State of Madhya Pradesh was transferred to the State of Bombay since the cause of action arose in its entirety within the territories that became part of the State of Bombay. 2. The Court found that Section 87 of the Act was not applicable because the petitioners' claim did not arise out of a breach of contract but from the alleged contravention of Article 311 of the Constitution. 3. The Court held that Section 88(b) of the Act was attracted to the facts of the case because: * The term "actionable wrong" was construed broadly to include an illegal or unauthorized act infringing a legal right of another, affording a ground for action in law. * The petitioners' claim related to the liability of the former State of Madhya Pradesh in respect of an actionable wrong, namely, the wrongful dismissal of the petitioners. 4. The Court found that the cause of action arose in its entirety within the territories of the State of Bombay because: * The orders of dismissal were made in Nagpur, which became part of the State of Bombay. * The consequences of the orders fell on the petitioners in Arvi (for one petitioner) and Nagpur (for the other petitioner), both of which became part of the State of Bombay. 5. The Court held that Section 116 of the Act was not applicable because the petitioners were not, in fact, holding any post on the date the Act came into force.
Final Decision: The Court dismissed Miscellaneous Petition No. 470 of 1956 as it was not maintainable against the State of Bombay. The Court directed that Miscellaneous Petition No. 523 of 1956 and Special Civil Application No. 73 of 1957 be placed for hearing on merits.
TAMBE, J. :- An important question of law arises out of a preliminary objection raised on behalf of the State, of Bombay. The preliminary objection raised relates to the maintainability of the petition against the present State of Bombay. This decision will govern the preliminary objection raised in three! cases, viz., Misc. Petn. No. 523/56, Miscellaneous Petition No. 470/56 and Special Civil Application No. 73 of 1957. The consideration of this question turns on the interpretation of Sections 87, 88 and 116 of the States Reorganisation Act, 1956, Act 37 of 1956, hereinafter called the Act.
2. The case in general that falls for our consideration is that the petitioners before us were in the service of the former State of Madhya Pradesh. Their services were terminated by the orders of the Government of the then State of Madhya Pradesh prior to the date the Act came into force. Two of the petitioners were serving on the date of termination of their services in the territories which now form part of the State of Bombay. Two of the petitioners had challenged the orders of their dismissal by petitions under Arts. 226 and 227 of the Constitution before the then High Court of Judicatures at Nagpur, on the ground of contravention of Art. 311(2) of the Constitution. These petitions were filed against the State of Madhya Pradesh. Their cases have, come on transfer before this Court on a certificate issued by the Chief Justice of the High Court of Judicature at Nagpur under Section 59(2) of the Act. On the applications of these petitioners the State of Bombay is joined as a party to their petitions. The remaining petitioner has directly come to this Court after the States Reorganisation Act came into force. All of them claim that their petition is maintainable against the State of Bombay and that the State of Bombay is liable to reinstate them or give them such relief as is available to them under law, on the orders of dismissal being quashed by this Court. The question is whether they are entitled to the relief asked for by them against the present Stats of Bombay.
3. There were also other cases pending before this Court arising out of similar set of faces. In one of those cases viz. Miscellaneous Petition No. 335 of 1956, a preliminary objection was raised on behalf of the State of Madhya Pradesh that no writ could be issued by this Court against the State of Madhya Pradesh in respect of the order of dismissal made by the former State of Madhya Pradesh prior to the date the Act came into force. This question was referred to a Full Bench of this Court and awaiting the decision of the Full Bench these three cases and other cases were kept pending. The Full Bench took the view that this Court could not issue a writ against the present State of Madhya Pradesh or any of its officers and it therefore directed that the name of the State of Madhya Pradesh and its officers (the Accountant General of Madhya Pradesh in that case) should be struck off the record. The Full Bench further directed that the petition should continue against the State of Bombay and" should be disposed of in accordance with law.
4. In the course of the judgment of the Full Bench the learned Chief Justice who delivered the judgment of the Court observed :
"If the complaint of the petitioner is that he has been dismissed by the State of Madhya Pradesh and that the State of Madhya Pradesh should reinstate him, nothing is easier than for him to file a petition in the High Court of M.P. and to get a writ from that High Court. If, on the other hand the relief he seeks is that the Bombay Government should reinstate him, the Bombay Government being the successor of the Madhya Pradesh Government, then the petition is well founded and could be maintained in this Court and this Court can give him relief if he is entitled to that relief." It is the petitioners case in all the three petitions that they are entitled to claim relief against the State of Bombay. As already stated,
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