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TMI Blog1979 (2) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... stand the points in issue, it may be necessary to give a resume of the important stages through which the case has passed and the constitutional points argued before us. The appellant, M. Karunanidhi, was a former Chief Minister of Tamil Nadu and was the petitioner before the High Court in the applications filed by him before the High Court. On 15-6-1976 a D.O. letter was written by the Chief Secretary to the Government of Tamil Nadu to the Deputy Inspector General of Police, CBI requesting him to make a detailed investigation into certain allegations against the appellant and others who were alleged to have abused their official position in the matter of purchase of wheat from Punjab. A first information report was accordingly recorded on 16-6-1976 and four months later sanction under section 197 of the Code was granted by the Governor of Tamil Nadu for the prosecution of the appellant under sections 161, 468 and 471 of the Indian Penal Code and section 5(2) read with section 5 (1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Corruption Act). Thereafter, the police submitted a charge sheet against the appellant for the offences mentioned above and allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant before the Court do not survive for consideration before us. Faced with this situation, Mr. Venu Gopal, learned counsel for the appellant has raised only two points before us. In the first place, he submitted that even though the State Act was repealed on 6-9-1977 during the time that it was in force, it was wholly repugnant to the provisions of the Code, the Corruption Act and the Criminal Law Amendment Act and by virtue of Article 254(2) of the Constitution of India the provisions of the aforesaid Central Acts stood repealed and could not revive after the State Act was repealed. The constitutional position, it is submitted, was that even though the State Act was repealed the provisions of the Central Acts having themselves been protanto repealed by the State Act when it was passed could not be pressed into service for the purpose of prosecuting the appellant unless those provisions were re-enacted by the appropriate legislature. A number of grounds were raised by counsel for the appellant in support of the first plank of his argument that the State Act was repugnant to the provisions of the Central Acts as a result of which the former was rendered void. Secondly, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State". It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. So far as the present State Act is concerned we are called upon to consider the various shades of the constitutional validity of the same under Article 254(2) of the Constitution. It is neither alleged or argued that Parliament has at any time after the State Act was passed proceeded to pass any law as contemplated by the Proviso to Article 254. As, however, the State law has already been repealed and the President's assent to the said repeal has been received as far back as 6-9-1977 we are concerned only with the limited question as to whether if the State law had repealed or overruled the provisions of the Central law what will be the position after the State law itself ceases to exist. It is true that the doctrine of eclipse would not apply to the constitutionality of the Central law and the only question we have to determine is whether there was such an irreconcilable inconsistency between the State Act and the Central Acts that the provisions of the Central Act stood repealed and unless re-enacted the said provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w for the time in force; (v) a person who is or has been the Chairman or Vice-Chairman of a Panchayat Union Council or Chairman or President of any Standing or Subject or other Committee of such council constituted or deemed to be constituted under the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958), or any other law for the time being in force; (vi) a person other than a Government servant who is or has been the Chairman of- (a) any corporation (not being a local authority) established by or under a State or Provincial Act and owned or controlled by the State Government; (b) any Government company within the meaning of section 617 of the Companies Act, 1956 (Central Act 1 of 1956), in which not less than fifty-one per cent of the paid-up share capital is held by the State Government, or any company which is a subsidiary of a company in which not less than fifty one per cent of the paid-up share capital is held by the State Government". It may be noticed here that the concept of public-man as contemplated by the State Act differs in certain respects from that of a public servant as contemplated by section 21(12) of the Penal Code. To begin with, under the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigations under this Act, the Commissioner may issue such general or special directions as he may consider necessary to the Additional Commissioner; Provided that nothing in this sub-section shall be construed to authorise the Commissioner to question any finding conclusion or recommendation of an Additional Commissioner. x x x x x 5. Term of office and other conditions of service of Commissioner and Additional Commissioner: x x x x x (4) There shall be paid to the Commissioner and the Additional Commissioner such salaries as are specified in the Second Schedule. (5) The allowances and pension payable to, and other conditions of service of, the Commissioner or Additional Commissioner shall be the same as admissible- (a) to a Judge of a High Court in the case of the Commissioner, (b) to a District Judge in the case of an Additional Commissioner: Provided that the allowances and pension payable to, and other conditions of service of, the Commissioner or an Additional Commissioner shall not be varied to his disadvantage after his appointment". Another important provision which is contained in the State Act but not in the Central Acts is a provision regarding limitation. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the public man in respect of the allegation of criminal misconduct, he shall dismiss the complaint after briefly recording his reasons for doing so: Provided that the Commissioner or Additional Commissioner shall not dismiss any complaint under this sub-section, unless the complainant has been given an opportunity of being heard, if such complainant has not already been heard under clause (a) of the proviso to sub-section (2). x x x x" Under clause (3) of section 10 the Commissioner or the Additional Commissioner is empowered to dismiss the complaint if he is satisfied that no prima facie case against the public man has been made out, but such an order of dismissal can be made only after the complainant has been given an opportunity of being heard. Section 11 is also a new provision as compared to the Central Acts which provides for grant of compensatory costs to the public man if the allegation made against him are found to be false, frivolous or vexatious to the knowledge of the complainant. Section 12 gives a right of appeal to a Division Bench of the High Court against any order passed by the Commissioner or Additional Commissioner under sub-section (1) of section 11 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is complete and a report is submitted, section 18 of the State Act provides thus:- "18. Report of the Commissioner and Additional Commissioner: (1) Where as a result of any detailed investigation under sub-section (4) of section 10 in respect of a complaint of criminal misconduct against a public man, the Commissioner or an Additional Commissioner is of opinion,- (a) that it is expedient in the interest of justice that the public man against whom criminal misconduct has been alleged, should be prosecuted for an offence under section 15; or (b) that the allegation has not been substantiated, he shall record a finding to that effect stating his reasons therefor and report the same to the Government. (2) In cases falling under clause (a) of subsection (1), the public man shall be prosecuted and tried under section 6 of the Criminal Law (Amendment) Act, 1952 (Central Act 46 of 1952)". The State Act enjoins that the public man concerned will have to be prosecuted under the Criminal Law (Amendment) Act of 1952. Thus, far from there being any inconsistency, the provisions of the Criminal Law (Amendment) Act are directly applied to a public man by the State Act after the preliminar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Knox, C.J. observed as follows:- "The rules prescribed by the Commonwealth Law and the State law respectively are for present purposes substantially identical, but the penalties imposed for the contravention differ........................ In these circumstances, it is I think, clear that the reasons given by my brothers Issacs and Starke for the decisions of this Court in Union Steamship Co. of New Zealand v. Commonwealth(1) and Clyde Engineering Co. v. Cowburn establish that the provisions of the law of the State for the breach of which the appellant was convicted are inconsistent with the law of the Commonwealth within the meaning of sec. 109 of the Constitution and are therefore invalid". Issacs, J. observed as follows:- "There can be no question that the Commonwealth Navigation Act, by its own direct provisions and the Regulations made under its authority, applies upon construction to the circumstances of the case. It is inconsistent with the State Act in various ways, including (1) general supersession of the regulations of conduct, and so displacing the State regulations, whatever those may be; (2) the jurisdiction to convict, the State law empowering the Court to convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State". "It is true, as already pointed out, that on a question under Article 254 (1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law". In the case of Ch. Tika Ramji & Ors. etc. v. The State of Uttar Pradesh & Ors.(2) while dealing with the question of repugnancy between a Central and a State enactment, this Court relied on the observations of Nicholas in his Australian Constitution, 2nd Ed. p.303, where three tests of inconsistency or repugnancy have been laid down and which are as follows:- "(1) There may be inconsistency in the actual ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two statutes and observed as follows:- "Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:- (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field". In the case of Megh Raj and Ors. v. Allah Rakhia & Ors.(3) where Varadachariar, J. speaking for the Court pointed out that where as in Australia a provision similar to section 107 of the Government of India Act, 1935 existed in the shape of section 109 of the Australian Constitution, there was no corresponding provision in the American Constitution. Similarly, the Canadian cases have laid down a principle too narrow for application to Indian cases. According to the learned Judge, the safe rule to follow was that where the paramount legislation does not purport to be exhaustive or unqualified there is no inconsistency and in this connection observed as follows:- "The principle of that decision is that where the paramount le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the express prior enactment must flow from necessary implication of the language of the later enactment. It is therefore necessary in this connection to scrutinise the terms and consider the true meaning and effect of the two enactments". "The provisions enacted in s. 52 of the 1922 Act do not alter the nature or quality of the offence enacted in s. 177, Indian Penal Code but it merely provides a new course of procedure for what was already an offence. In a case of this description the new statute is regarded not as superseding, nor repealing by implication the previous law, but as cumulative". "A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence". On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:- 1. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section which was substituted may be extracted thus:- "Saving-The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public man from any proceeding by way of investigation or otherwise which might, apart from this Act, be instituted against him". This amendment received the assent of the President on 10th April, 1974 and was published in the Tamil Nadu Government Gazette Extraordinary dated 16th April, 1974. We have already shown that although the State Act was passed as far back as 30th December, 1973 it received the assent of the President on the 10th April, 1974 that is to say, on the same date as Act 16 of 1974. The Act was however brought into force on the 8th May, 1974 when the new section 29 which had already replaced the old section and had become a part of the statute. Therefore, for all intents and purposes the State Act cannot be read in isolation, but has to be interpreted in conjunction with the express language contained in section 29 of the State Act. This section has in unequivocable terms expressed the intention that the State Act which was undoubtedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of Mr. Venu Gopal. Having, therefore, given our anxious consideration to the import and ambit of section 29 it seems to us that the provisions of section 29 would be presumptive proof of the fact that there is no repugnancy between the State Act and the Central Acts nor did either the legislature or the President intend to create any repugnancy between these Acts as a result of which the criticism regarding the repugnancy is completely obliterated in the instant case and we, therefore, hold that the State legislature never intended to occupy the same field covered by the Central Acts. It was also contended by Mr. Venu Gopal that if the Central Acts being repugnant to the State Act are pressed into service even after the repeal of the State Act, the Central Acts would stand repealed hence the prosecution of the appellant would be hit by Article 20(3) of the Constitution, i.e. the appellant cannot be prosecuted for an ex post facto offence. On our findings in this case that there is no inconsistency between the State Act and the Central Acts the application of Article 20(3) of the Constitution to the facts of this case does not arise at all. We, therefore, find ourselves in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the first part of clause (12) (a) is concerned, namely "in the service of the Government' undoubtedly signifies a relationship of master and servant where the employer employs the employee on the basis of a salary or remuneration. But we are of the opinion that so far as the second limb 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude-so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master. In other words, we think that even a Minister or a Chief Minister will be clearly covered by the expression 'person in the pay of the Government'. Mr. Venu Gopal, however, relied on the meaning of the words "in the pay of' as appearing in the various dictionaries. In Shorter Oxford English Dictionary the expression 'in the pay of' is defined thus- "To give money, etc., in return for something or in discharge of an obligation. Of a thing or action. To yield an adequate return. To give money or other equivalent value for". Similarly 'Payer' is defined thus: "One who pays a sum of money". In Webster's Third New International Dictionary the expression 'in the pay of' is indicated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y shows that a Chief Minister is appointed by the Governor and having been appointed by the Governor it is manifest that he is subordinate to the Governor. Even in section 52 (1) of the Government of India Act, 1935 which preceded our Constitution the provision was worded thus:- "52 (1) The Governor of a Governor's province may, by notification, appoint ministers, not being members of his executive council or other officials to administer transferred subjects, and any ministers so appointed shall hold office during his pleasure: There may be paid to any minister so appointed in any province the same salary as is payable to a member of the executive council in that province, unless a smaller salary is provided by vote of the legislative council of the province". In this section also it was the Governor who alone had the power to choose the ministers. In fact, in Article 164 the word 'appointment' is much higher than the concept of a person being chosen. Article 164(5) provides for the salary and allowances of Ministers and runs thus:- "164 (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and was not bound by the advice of the Council of Ministers as the Governor is under our Constitution. It is not necessary to probe into this aspect of the matter, because the Constitution clearly lays down that the Governor appoints the Chief Minister and being the appointing authority he is also the dismissing authority. We are not at all concerned in the instant case as to the circumstances under which the Governor can appoint or dismiss the Chief Minister. Once it is conceded that the Governor appoints the Chief Minister who is paid a salary according to a statute made by the legislature from the Government funds, the Chief Minister becomes a person in the pay of the Government so as to fall squarely within clause (12) of section 21 of the Penal Code. There is another circumstance to show that a Chief Minister or a Minister is undoubtedly a public servant which was relied upon by the High Court in repelling the argument of Mr. Venu Gopal. Section 199 of the Code runs thus:- "199 (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code is alleged to have been committed against a person who, at the time of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the precise argument which had been put forward by Mr. Venu Gopal when he contended that the Chief Minister is not subordinate to the Governor. The Privy Council observed as follows in this connection:- "So far as it is relevant in the present case, their Lord ships are unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of s.49 (1), and so far as the decision in Emperor v. Hemendra Prosad Ghoshe (19) I.L.R. (1939) 2 Cal. 411 decides that a Minister is not such an officer their Lordships are unable to agree with it. While a Minister may have duties to the Legislature, the provisions of s.51 as to the appointment, payment and dismissal of Ministers, and s.59 (3) and (4) of the Act of 1935, and the Business Rules made by virtue of s.59, place beyond doubt that the Home Minister is an officer subordinate to the Governor". We find ourselves in complete agreement with the view taken by the Privy Council. In fact the case of the Privy Council referred to above was noticed and relied upon by this Court in the case of Rao Shiv Bahadur Singh & Anr. v. The State of Vindhya Pradesh(1) where thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment and part of this business is the power given to the State Government under section 42 of the Consolidation Act. Under Article 166 (3) of the Constitution the Governor can allocate this business to any Minister he likes....... Moreover there can be no doubt that a Minister is subordinate to the Governor. The Governor is the executive head of the State and this position he does not share with the Chief Minister or any other Minister. He allocates his executive duties to various Ministers under Article 166 (3) of the Constitution. He appoints a Minister albeit on the advice of the Chief Minister and the Minister holds office during his pleasure. Therefore it is open to a Governor under the Constitution to dismiss an individual Minister at his pleasure. In these circumstances there can be no doubt that a Minister is to be considered as an officer subordinate to the Governor". We find ourselves in complete agreement with the view taken and the reasons given by the Punjab High Court in the aforesaid case. To the same effect is a decision of the J & K High Court in the case of Bakshi Ghulam Mohd. v. G. M. Sadiq & Ors(2) where Anant Singh, J. observe as follows:- "A Minister o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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