TMI Blog1958 (11) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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 Articles 226 and 227 of the Constitution before the then High Court of Judicature at Nagpur on the ground of contravention of Article 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 there 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 State of Bombay. 3. There were also other cases pending before this Court arising o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions was advanced before us by Shri M.R. Bobde, learned counsel for the petitioner in Miscellaneous Petition NO. 523/56. We therefore propose to deal with his argument first. Shri Bobde contends that the illegal and wrongful action of the then State of Madhya Pradesh in dismissing the petitioner from service was an actionable wrong within the meaning of Section 88 of the Act. The liability, to redress the wrong, incurred by the then State of Madhya Pradesh has under the provisions of Clause (b) of that section become the liability of the present State of Bombay. In the alternative, Shri Bobde contends that the dismissal of the petitioner being illegal the petitioner in Misc. Petn. No. 523/56, in the eye of law still holds his post of Arvi within the meaning of Section 116(1) of the Act and therefore it must be taken that form the date the Act came into force the petitioner is a servant appointed by the present State of Bombay from 11-1-1956 and in this view of the matter also the petition is maintainable against the present State of Bombay. 7. Shri G.R. Mudholkar, learned counsel for the state of Bombay on the other hand, contends that neither Section 88 nor Section 116 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to be to provide for a solution of all problems arising out of the States Reorganisation. Effect can only be given to this intention of Parliament by liberally construing its provisions so far as the language used would permit. 9. It cannot be doubted, and it has not been disputed before us, that on establishing their cases on merits the petitioners would have been entitled to the reliefs claimed against the then State of M.P. if these cases had been disposed of by the Nagpur High Court prior to the date the Act came into force. Their cases however were not decided on that date. It is to be seen whether this liability of the State of Madhya Pradesh has been passed on to the present State of Bombay under any of the provisions of the Act. 10. Part VII of the Act, relates to Apportionment of assets and liabilities; Sections 87 and 88 fall under this part. The word 'liability' in its widest import means an obligation or duty to do something or to refrain form doing something. We see no reason why any restricted meaning should be given to the word 'liability' used in this Act. I our opinion Parliament intended to include in the word 'liability' not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly proved by this Constitution, reproduce the opening words of Section 240(1) of the 1935 Act, substituting the word Constitution for the word Act. The exceptions contemplated by the opening words of Article 310(1) quite clearly refer, inter alia, to Articles 124, 14, 218 and 324 which respectively provide expressly that the Supreme Court Judges the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by the requisite majority therein specified has been presented to him in the same in the same session for such removal on the ground of proved misbehaviour or incapacity. There are clearly exceptions to the rule embodied. There are clearly exceptions to the rule embodied in Article 310(1) that public servants hold their office during the pleasure of the President or the Governor as the case, may be. Subject to these exceptions our Constitutions, by Article 310(1) has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor as the case may be and has, by Article 311, imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for purposes of this decision we will have to assume that they would be able to establish their cases on merit then the former State of Madhya Pradesh would have been liable either to reinstate them or to hold a fresh inquiry against them, as the case may be. 14a. It has next to be seen whether that liability of the former State of Madhya Pradesh is in respect of an actionable wrong other than breach of contract. Now, the term actionable wrong has not been defined in the Act; there is therefore no reason to give it a restricted meaning. We find useful guidance to construe this term in the majority view of their Lordships of the Supreme Court in the State of Tripura v. Province of East Bengal, wherein their Lordships have construed in identical term liability in respect of an actionable wrong other than breach of contract appearing in Article 10 of the Indian Independence (Rights, Property and Liabilities) Order 1947. The problems with which the said Order dealt with are similar to the problems dealt with in the Act. It is a matter of history that in the year 1947 India was partitioned into two dominions, India and Pakistan. An Act to make provision for the setting up i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten statement it contended that the Court of Alipore which was situated in West Bengal had no jurisdiction to proceed with the suit. The High Court of Calcutta, reversing the order of the Subordinate Judge of Alipore held that the provisions of the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabilities) Order 1947, did not apply to the case. The State of Tripura therefore took an appeal against the decision of the High Court to the Supreme Court and one of the contentions raised on behalf of the State was that its suit was maintainable against the Province of East Bengal under Article 10 of the aforesaid Order of 1947. The High Court had not accepted this contention as in its view the phrase liability in respect of an actionable wrong was synonymous with liability for damages for a completed tortious act. . The majority of the Judge of the Supreme Court constituting the Bench that decided this case did not accept this view of the High Court. At page 11 of the Report (SCR): (at p.27 of AIR) Patanjali Sastri J. Who delivered the Judgment on behalf of Kania C.J. and Chandrasekhara Aiyar J. and himself observed: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The meaning of the term actionable wrong deducible from this decision in our opinion is an illegal or unauthorised act infringing a legal right of another affording him a ground for action in law. It cannot be doubted that a citizen of India is entitled to protections and guarantees enshrined in the Constitution and if these guarantees are infringed it amounts to illegal unauthorised act infringing a legal right of a citizen. He is on that ground entitled to protection at the hands of this Court under Article 226 of the Constitution. Here the petitioners who are citizens of India, are challenging the orders of their dismissal on the ground of infringement of Article 311(2) of the Constitution. For reasons stated above the wrong complained of by the petitioners in all the cases is in our opinion an actionable wrong within the meaning of Section 88 of the Act. As already stated, the liability to redress this wrong was initially the liability of the former State of Madhya Pradesh. 18. It is next to be seen whether it has now been transferred to the present State of Bombay, under Clause (b) of this section. The successor States of the former State of Madhya Pradesh are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the liability referred to in Section 88 of the Act of the former State of Madhya Pradesh would fall on the present State of Bombay, under clause (b) thereof. 19. In the light of these principles it will have to be seen to what cases clause (b) of Section 88 is attracted. It is not in dispute that in all the three cases the orders of dismissal were made at Nagpur and were issued from that place. Nagpur is now a part of the territories of the present State of Bombay. 20. In Miscellaneous Petition NO. 523 of 1956, the consequences of the order fell at Arvi and the petitioner in that case was relieved of his post at Arvi on 21-11-1955. Arvi is in the Wardha district and Wardha district is now one of the districts of the present State of Bombay. This petition therefore is maintainable against the State of Bombay. 21. In Miscellaneous Petition No. 470 of 1956, the consequences of the order for termination of the service of the petitioner fell at Drug. Drug does not form part of the present State of Bombay. This petition is therefore not maintainable against the State of Bombay. 22. It is necessary to notice one additional argument of Shri Gate, learned counsel for this pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arging the duties of any post immediately before 1-111956 but their dismissal being wrongful in the eye of law they continue to be in service and continue to hold the post which they formerly held. Such an order of dismissal must therefore be completely ignored. It is not possible for us to accept this contention. It would be noticed that even assuming that each of the orders made was in contravention of the provisions of Article 311(2) of the Constitution it was not made by an authority having no jurisdiction to make an order. The order made therefore cannot be termed as non est or just a piece of paper. It cannot be said that the order made was by reason of its origin bad. A distinction has to be drawn between an order of dismissal made by an authority which was not competent to make an order and an erroneous order of dismissal made by a competent authority. The former may be non est and can be completely ignored but such would not be the case with the latter. 25. Further even assuming for a moment that this contention of the petitioners is well-founded, it is of no further assistance to the petitioner in Miscellaneous Petition No. 470 of 1956 because he could only be deemed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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