TMI Blog1979 (2) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... inister from the Government funds. It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is coterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefor, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, therefore, a public servant within the meaning of section 21 (12) of the Penal Code. For the reasons given above, we are satisfied that a Chief Minister or a Minister is undoubtedly a public servant as defined in section 21(12) (a) of the Penal Code and the view taken by the High Court on this point was absolutely correct in law. The result is that all the contentions raised by Mr. Venu Gopal, counsel for the appellant fail and the appeals are dismissed. - CRL. A. 270 OF 1977 - - - Dated:- 20-2-1979 - SYED MURTAZA FAZALALI, Y.V. CHANDRACHUD AND P.N. BH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnished to the appellant. The appellant on appearing before the Special Judge filed an application for discharging him under section 239 of the Code on the ground that the prosecution against him suffered from various legal and constitutional infirmities. The Special Judge, however, after hearing counsel for the parties rejected the application of the appellant as a result of which the appellant filed two applications in the High Court for quashing the proceedings and for setting aside the order of the Special Judge refusing to discharge the appellant. As indicated above, the High Court rejected the applications of the appellant but granted a certificate for leave to appeal to this Court and hence these appeals before us. As far back as 30th December, 1973 the Madras Legislature had passed an Act known as The Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 hereinafter referred to as the State Act. The State Act was passed after obtaining the assent of the President of India. This State Act was, however, amended by Act 16 of 1974 and the President s assent was received on 10th April, 1974. According to the provisions of the State Act the statute was brought into force by vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State at the relevant time he was not a public servant as defined in section 21 clause (12) of the Indian Penal Code. The argument was that by virtue of the position that the appellant enjoyed as Chief Minister there was no relationship of master and servant between him and the Government and he was acting as a constitutional functionary and, therefore, could not be described as a public servant as contemplated by section 21(12) of the Penal Code. We propose to deal with the two arguments separately. We would first deal with the question of repugnancy as raised by learned counsel for the appellant. It is true that the State Act was passed by the Legislature of Tamil Nadu and the assent of the President was obtained on 30 th December, 1973. By virtue of the provisions of Article 254 (2) of the Constitution since the assent of the President had been given the State Act was to prevail over the Central Acts so far as the State of Tamil Nadu was concerned, but the serious question to be considered is as to whether or not there was a real repugnancy resulting from an irreconcilable inconsistency between the State Act and the Central Acts. Article 254 of the Constitution runs thus:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e., the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances :- 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State Legislature while being substantially within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful and cautious analysis of the various provisions of the two Acts come to a clear finding that there is no repugnancy between the State Act and the Central Acts, but the State Act merely creates a new and distinct offence which in its nature and purport is essentially different from the offences contemplated by the Indian Penal Code and the Corruption Act. It has been pointed out by the High Court as also by the Solicitor General that not only the ingredients of the offences created by the State Act are different from those of the Central Act, but even the procedure is different. It was further argued by the Solicitor General that there is absolutely no repugnancy between the two Acts and both can operate in their respective fields. In order to appreciate this question, we would briefly refer to the scheme of the State Act. Section 2 defines certain dignitaries like Commissioner, Additional Commissioner, Government, Public man, public servant. Clause (a) of section 2 defines Commissioner thus: " Commissioner or "Additional Commissioner" means the Commissioner of Inquiries or an Additional Commissioner of Inquiries, as the case may be, appointed under section 4". Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment servant, unless he falls within the categories of (a), (b) and (c) of clause (vi) of section 2 of the State Act. This is a basic departure from the provisions of the Penal Code where the word public servant has been used in the widest possible sense so as to include not only Government servants who are receiving salary from the Government, but also other dignitaries who are in the pay of the Government. Section 3 clauses (1), (2) and (3) define criminal misconduct which is almost the same as defined by the provisions of the Corruption Act and the Penal Code (sections 5(2) and 5(1) (d) of the Corruption Act and section 161 of the Indian Penal Code). It may, however, be noted here that the State Act does not make sections 468 and 471 of the Indian Penal Code any offence under this Act. Section 4 prescribes the procedure for appointment of a high powered tribunal for the purpose of holding investigation into the allegations made against any public man. Sections 4 and 5 run thus:- "4. Appointment of Commissioner of Inquiries and Additional Commissioner of Inquiries: (1) For the purpose of conducting investigation in accordance with the provisions of this Act, the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is made after the expiry of 5 years from the date on which the criminal misconduct complained against was alleged to have been committed or after the expiry of one year from the date on which the public man ceased to be such public man. The provisions of section 8 may be extracted thus:- "6. Limitation for preferring complaints: (1) The Commissioner or an Additional Commissioner shall not investigate or cause to be investigated any complaint involving criminal misconduct if the complaint is made:- (i) after the expiry of five years from the date on which the criminal misconduct complained against was alleged to have been committed; or (ii) after the expiry of one year of the date on which the public ceases to be such public man, Whichever is later. (2) Notwithstanding anything contained in subsection (1), the Commissioner or an Additional Commissioner shall not investigate or cause to be investigated any complaint involving criminal misconduct, the complaint is made after the expiry of one year from the date on which the action complained against becomes known to the complainant". Similarly section 10 of the State Act confers plenary powers on the Commissioner or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11, the complainant may, within such period as may be prescribed, appeal to a Special Appellate Tribunal consisting of two Judges of the High Court nominated from time to time by the Chief Justice in that behalf". Section 14 provides the procedure for examination of witnesses, receiving of affidavits, issuing of commissions etc. Section 15 provides an enhanced punishment of seven years for criminal misconduct as compared to the punishment provided by the Corruption Act. Section 16 provides for prosecution of a complainant if his complaint is found to be false, frivolous and vexatious and such a complainant is liable to be punished for a term which may extend to three years and fine, but such a prosecution can be launched only with the previous sanction of the Commissioner. Section 16 runs thus:- "16. Punishment for false, frivolous or vexatious complaint: (1) Notwithstanding anything contained in this Act, every person who makes a false, frivolous or vexatious complaint against a public man under this Act, shall on conviction be punished with imprisonment for a term which may extend to three years and shall also be liable to fine". A careful analysis, therefore, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was, however, strongly contended by Mr. Venu Gopal that the provisions contained in the State Act run counter to those of the Central Acts in respect of the following matters: 1. The procedure for investigation of the offences by a Central agency as contemplated by the Corruption Act is dispensed with and is instead invested in a Commissioner appointed under the State Act. 2. The provision under the Prevention of Corruption Act regarding the grant of sanction under section 197 of the Code to the accused is given a complete go by and instead a Commissioner is appointed to hold a regular inquiry for himself and then to submit his report. Thus, an accused who has been tried under the State Act is deprived of protection afforded to every Government servant regarding grant of a sanction by the appointing authority. It is thus suggested that the protection, if any, given by the State Act is purely illusory. In order, however, to understand the argument of the learned counsel for the appellant, it may be necessary to consider the question of repugnancy in a little broader perspective. It is well settled that the presumption is always in favour of the constitutionality of a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State providing a maximum of $ 50 the Commonwealth Act prescribing a maximum of $ 100, or imprisonment, or both; (4) the tribunal itself". Starke, J. observed as follows:- "It is not difficult to see that the Federal Code would be disturbed or deranged if the State Code applied a different sanction in respect of the same act. Consequently the State regulations are, in my opinion, inconsistent with the law of the Commonwealth and rendered invalid by force of sec. 109 of the Constitution". In a later case of the Australian High Court in Ex. Parte Mclean(3) Issacs and Starke, JJ. while dwelling on the question of repugnancy made the following observation:- "In Cowburn s case (supra) is stated the reasoning for that conclusion and we will now refer to those statements without repeating them. In short, the very same conduct by the same persons is dealt with in conflicting terms by the Commonwealth and State Acts. A Court, seeing that, has no authority to inquire further, or to seek to ascertain the scope or bearing of the State Act. It must simply apply sec. 109 of the Constitution, which declares the invalidity protanto of the State Act". Similarly Dixon, J. observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award of the Commonwealth Court, is intended to be a complete exhaustive code Clyde Engineering Co. Ltd. v. Cowburn (supra). (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter Victoria v. Commonwealth(2) Wenn v. Attorney General(3) This Court also relied on the decisions in the case of Hume v. Palmer as also the case of Ex Parte Mclean (supra) referred to above. This Court also endorsed the observations of Sulaiman, J. in the case of Shyamakant Lal v. Rambhajan Singh (4) where Sulaiman, J. observed as follows: "When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other, and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it can-not be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law". "The position will be even more obvious, if another test of repugnancy which has been suggested in some cases is applied, namely, whether there is such an inconsistency between the two provisions that one must be taken to repeal the other by necessary implication" In the case of State of Orissa v. M. A. Tulloch Co. (1) Ayyangar J. speaking for the Court observed as follows:- "Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. 4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. In the light of the propositions enunciated above, there can be no doubt that the State Act creates distinct and separate offences with different ingredients and different punishments and it does not in any way collide with the Central Acts. On the other hand, the State Act itself permits the Central Act, namely, the Criminal Law (Amendment) Act to come into its aid after an investigation is completed and a report is submitted by the Commissioner or the Additional Commissioner. It was contended however by Mr. Venu Gopal that by virtue of the fact that the State Act has obtained the assent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... includes the Central Acts, namely, the Indian Penal Code, the Corruption Act and the Criminal Law (Amendment) Act. Thus, the Legislature about a month before the main Act came into force clearly declared its intention that there would be no question of the State Act colliding with the Central Acts referred to above. The second part of section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is, therefore, clear that in view of this clear intention of the legislature there can be no room for any argument that the State Act was in any way repugnant to the Central Acts. We have already pointed out from the decisions of the Federal Court and this Court that one of the important tests to find out as to whether or not there is repugnancy is to ascertain the intention of the legislature regarding the fact that the dominant legislature allowed the subordinate legislature to operate in the same field pari passu the State Act. Craies in his Interpretation on Statute Law 6th Ed. p. 369 observes as follows:- "Many earlier st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to any provisions of the Central Acts and consequently overruled the first limb of the argument of counsel for the appellant. Similarly the contention of Mr. Venu Gopal as to whether or not the prosecution of the appellant would be violative of Article 14 of the Constitution is not available to the appellant, and consequently the learned counsel gave up this point and in our opinion very rightly because since the State Act has now been repealed the question of the prosecution of the appellant hereafter under the State Act does not arise at all, and, therefore, the question of two remedies being open to the prosecution which they may elect at their own option does not arise in this case. The appellant can be prosecuted only under the Corruption Act and the Penal Code and under no other Act at the moment. Moreover, it was obviously wrong to say that the earlier Central Law became violative of Article 14 as soon as the State law was enacted. This brings us to the second limb of the argument of the learned counsel for the appellant which relates to the import and connotation of the term public servant appearing in section 21(12) of the Indian Penal Code. Clause 12 of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connotation but sometimes bluntly stressing the purchase of service, pay a machinist high wages". "Wages, salary remuneration". In Webster s New World Dictionary the expression in the pay of is thus defined:- "Stresses the idea of payment for a service rendered, but it often also carries an implication of reward (a bumper crop remunerated the farmer for his labors)". In Words and Phrases, Permanent Edition Vol. 31A p. 176 the meaning of the word pay is given thus:- "Pay" is remuneration, wages or salary. To remunerate; to recompense, to give any pay". In Venkataramaya s Law Lexicon Vol. II p.1122 the expression to pay money has the following connotation:- "To pay money is to pay it in respect of a right which some person has to receive it". In Corpus Juris Secundum Vol. 70 at page 200 the word pay if used as a noun is defined as remuneration, wages, compensation, salary and the following observations are also made:- "To noun pay has been held equivalent to, or synonymous with, compensation , salary and wages and has been compared with, or distinguished from, allowance and consideration ". A careful analysis of the meanings assigned to the word pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision the Ministers on being appointed by the Governor are entitled to such salaries and allowances as the Legislature of the State may determine from time to time and until this is done, the emoluments will be such as are specified in the Second Schedule. As however all the Legislatures of the States as also Parliament have already passed Acts providing for the salaries and emoluments of the Chief Minister and the Ministers the specification of their emoluments in the Second Schedule to the Constitution have been deleted. Article 167 lays down the duties of the Chief Minister and runs thus:- "167. Duties of Chief Minister as respects the furnishing of information to Governor etc. It shall be the duty of the Chief Minister of each State (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of affairs of the State and proposals for legislation as the Governor may call for; (c) if the Governor so requires, to submit forthe consideration of the Council of Ministers any matter on which a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministrator of a Union Territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor". The use of words other public servants following a Minister of the Union or of a State clearly show that a Minister would also be a public servant as other public servants contemplated by section 199 (2) of the Code are the Code being a statute complimentary and allied to the Penal Code can be looked into for the purpose of determining the real meaning and import of the words public servant as used in the aforesaid section. The Solicitor General placed reliance on the decision of this Court in the case of Dattatraya Narayan Patil v. State of Maharashtra(1) where this Court had held in a slightly different context that a Minister was a public servant. Mr. Venu Gopal has, however, distinguished this decision on the ground that this Court proceeded on the assumption t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer in the service or pay of the Crown for the performance of any public duty is a public servant . The decision of the Privy Council in King Emperor v. Sibnath Banerji(2) is decisive to show that a Minister under the Government of India is an officer subordinate to the Governor. On the same reasoning there can be no doubt that the Minister of Vindhya Pradesh would be an Officer of the State of Vindhya Pradesh. Therefore, prior to the passing of ordinance No. XLVIII of 1949 and on the view that the Indian Penal Code with necessary adaptation mutatis mutandis was in force at least in the Rewa portion of Vindhya Pradesh (if not in the entirety of Vindhya Pradesh) the first appellant was a public servant as defined in section 21, Indian Penal Code, as adapted. The amendment of the said section brought about therefore no substantial change in the position of the first appellant". In the case of Namdeo Kashinath Aher v. H. G. Vartak Anr(3) Deshpande, J. Observed as follows:- "Whatever be the practical and actual position, the fact remains that it is the Governor who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, in my opinion, a Minister is a public officer within the meaning of Sec. 80 as defined in Sec. 2 (17) (h) of the Civil Procedure Code". The opinion expressed by the learned Judge is clearly in consonance with the view that we have taken in this case. Three facts, therefore, have been proved beyond doubt:- 1. That a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions. 2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him. 3. That the said salary is paid to the Chief Minister or the Minister from the Government funds. It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is coterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefor, point to one and on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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