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Shridhar Mahadeo Dhamorikar Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 208 of 1967
Judge
Reported in(1969)71BOMLR433; (1969)IILLJ499Bom; 1969MhLJ103
ActsIndian Penal Code (IPC), 1860 - Sections 161, 164 and 165; ;Prevention of Corruption Act, 1947 - Sections 6 and 6(1); Bombay Industrial Relations Act, 1946 - Sections 3(9) and 4
AppellantShridhar Mahadeo Dhamorikar
RespondentState of Maharashtra
Excerpt:
.....purposes of the removal or dismissal of a class iii government servant who was appointed by the labour commissioner of the former state of madhya pradesh for the purposes of article 311(1) of the constitution and he was consequently not the proper authority for the purposes of sanctioning the prosecution as required by section 6(1)(c) of the prevention of corruption act, 1947.;state of kerala v. madhavan [1962] a.i.r. kerala 50, n. somasundaram v. state of madras [1956] a.i.r. mad. 419, gurmukh singh v. union of india [1963] a.i.r. punj. 870 and rangachari v. secy. of state [1937] a.i.r. p.c. 27, referred to. - - 1947, was invalid, and according to the accused, therefore, the prosecution itself was bad. 6 of the prevention of corruption act, 1947, and on merits the contention was..........4. the learned counsel contended that the appointing authority of the appellant was the labour commissioner, central provinces and berar, and therefore, no person who was in rank below the rank of labour commissioner was competent to sanction the prosecution of the appellant. according to the learned counsel, the authority corresponding to the labour commissioner of the erstwhile state of madhya pradesh was the commissioner of labour, bombay. the basis for this agreement is a notification which was issued by the government of bombay under s. 122 of the states reorganization act, which specified the authorities corresponding to the several authorities acting under the several laws in the vidarbha region, which originally formed a part of the state of madhya pradesh. the.....
Judgment:

1. For the purposes of decision of this appeal it is not necessary to set out the entire evidence led by the prosecution, but suffice it to say that the prosecution evidence was accepted by the learned Special Judge so far as the appellant was concerned, but the learned Judge came to the conclusion that there was no case against the labour officer. He, therefore, acquitted the labour officer. One of the important question which was raised before the learned Special Judge was that the sanction which was given by the Deputy Commissioner of Labour, Nagpur, purporting to be under S. 6 of the Prevention of Corruption Act. 1947, was invalid, and according to the accused, therefore, the prosecution itself was bad.

2. The learned Judge accepted the evidence of P.W. 5 Ajab Chore, that Sri R. A. Sheikh, the Deputy Commissioner of Labour, had accorded sanction for the prosecution of the accused. The learned Judge then referred to a compilation which appears to have been produced before him during the course of argument styled as a 'Handbook of Statutory, Financial and Administrative Powers of the Commissioner of Labour and his Subordinates.' This handbook is a cyclostyled document and the learned Judge relied on an entry at p. 60 which states the statutory, financial and administrative powers of the Deputy Commissioner of Labour, Nagpur, and he also relied on an entry at p. 70 for holding that the Deputy Commissioner of Labour at Nagpur had power to remove from service a Government servant of Class III and Class IV services only. It may be stated that this document is not a part of the record, though it has been produced before me also by the learned counsel appearing for the State Government. On the basis of this handbook, the learned Judge held that the accused Dhamorikar was a Class III Government servant in the Labour Office, Nagpur, and as such, he could be removed from service by the Deputy Commissioner of Labour, Nagpur. The learned Judge, therefore, took the view that late Sri Sheikh, the Deputy Commissioner of Labour, Nagpur, was a competent authority to sanction prosecution of the accused. On merits also the learned Judge having found that the prosecution has succeeded in proving the case against the accused convicted him for both the offences and sentenced him to undergo rigorous imprisonment for a period of eighteen months and to pay a fine of Rs. 500, in default to undergo further imprisonment for three months for the offence under S. 5(2) read with S. (5)(1)(d) of the Prevention of Corruption Act, 1947. No separate sentence was awarded in respect of the offence under S. 161 of the Indian Penal Code. The accused is now challenging his conviction in this appeal.

3. The learned counsel appearing for the accused wanted to challenge the conviction on three grounds. The first ground was that the entire investigation resulting in prosecution of the accused was illegal. The second ground was that the prosecution has not obtained a valid sanction as required by S. 6 of the Prevention of Corruption Act, 1947, and on merits the contention was that the prosecution had failed to show that the accused had demanded or received any illegal gratification so as to make him liable for the offences with which he was charged. Before going into the first and the last contention. I have heard the learned counsel on his contention that the sanction was not given by the appropriate authority, because if that contention was upheld, the entire proceeding before the learned Special Judge would be void and without jurisdiction.

4. The learned counsel contended that the appointing authority of the appellant was the Labour Commissioner, Central Provinces and Berar, and therefore, no person who was in rank below the rank of Labour Commissioner was competent to sanction the prosecution of the appellant. According to the learned counsel, the authority corresponding to the Labour Commissioner of the erstwhile State of Madhya Pradesh was the Commissioner of Labour, Bombay. The basis for this agreement is a notification which was issued by the Government of Bombay under S. 122 of the States Reorganization Act, which specified the authorities corresponding to the several authorities acting under the several laws in the Vidarbha region, which originally formed a part of the State of Madhya Pradesh. The argument is that the question as to which authority is competent to award a sanction for prosecution under S. 6 of the Prevention of Corruption Act, 1947, would, in the case of the present appellant, have to be decided by reference to the provision of S. 6(1)(C) of the Act and the authority referred to therein is the authority competent to remove the accused from his office. For deciding which is the authority which is competent to remove the accused from his office, the learned counsel says reference must be made to the provisions of Art. 311 of the Constitution of India and since the Deputy Commissioner of Labour would not be a person who would have the power to remove the accused from his office having regard to the fact that he was subordinate in rank to the authority, or the corresponding authority, in the State of Bombay and now in the State of Maharashtra, which appointed him, he was not the competent authority for sanctioning the prosecution of the appellant.

5. The learned Assistant Government Pleader appearing for the State contends that the sanction which is awarded by the Deputy Commissioner of Labour is legal and proper, and that the Deputy Commissioner of Labour, Nagpur, was the competent authority who could remove the appellant from his office and the sanction awarded by him, was, therefore, good. This argument is advanced on the basis of S. 4 of the Bombay Industrial Relations Act, 1946, and the definition of 'Commissioner of Labour' in Clause (9) of S. 3 of the Act.

6. It is not disputed that the authority which appointed the appellant was originally the Labour Commissioner of Central Provinces and Berar, who later on became Labour Commissioner of Madhya Pradesh. It is also not disputed that originally as a result of the Reorganization of States with effect from 1 November 1956, the authority corresponding to the Labour Commissioner for the State of Madhya Pradesh was notified as the Commissioner of Labour, Bombay. It is also not disputed that the designation of the Commissioner of Labour, Bombay, continues to be the same even in the State of Maharashtra. In order to appreciate the contention of the learned counsel for the appellant, it is necessary to reproduce the relevant part of S. 6 of the Prevention of Corruption Act, 1947 :

'6.(1) No Court shall take cognizance of an offence punishable under S. 161 or S. 164 or S. 165 of the Indian Penal Code, or under Sub-section (2) or (3A) of S. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction.

(c) in the case of any other person, of the authority competent to remove him from his office.'

7. It is also not disputed that the relevant provision applicable in the case of the appellant would be the above Clause (c) of S. 6(1) of the Prevention of Corruption Act, 1947. It is clear from this provision that the only authority which is competent to award sanction for prosecution of a public servant, like the appellant, is the authority competent to remove him from his office. The question who is the competent authority empowered to remove the accused in each case will have to be decided on the facts of each case. In other words, in order to find out who is the competent authority for the purposes of S. 6 of the Act, it will have to be ascertained which is the authority which is competent to remove that particular accused from his office and it is, therefore, that the provisions of Art. 311(1) of the Constitution of India become material. Article 311(1) of the Constitution is as follows :

'311. (1) No person who is a member of a civil service of the Union or an All-India service or a civil service of a State or holds a civil posts under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.'

8. The accused holds a civil post under the State of Maharashtra and he was, therefore, in the matter of his dismissal or removal, entitled to the protection under Art. 311(1) of the Constitution and that protection is that he could not be removed or dismissed by an authority subordinate to that by which he was appointed. If the accused was not liable to be removed or dismissed by an authority subordinate to his appointing authority, namely, the Labour commissioner in the former State of Madhya Pradesh, whose equivalent in rank in the present State of Maharashtra is the Commissioner of Labour, then for the purposes of S. 6 of the Prevention of Corruption Act also no authority below the rank of Commissioner of Labour, Bombay, would be empowered to award a sanction for his prosecution. What the learned Assistant Government Pleader, however, contends is that for the purposes of Vidarbha region of the State of Maharashtra the Deputy Commissioner of Labour is the Commissioner of Labour as defined in S. 3(9) of the Bombay Industrial Relations Act, 1946. That definition is as follows :

'3. (9) 'Commissioner of Labour' means an officer appointed by the State Government for the time being to be the Commissioner of Labour; and in respect of any of the powers and duties of the Commissioner of Labour that may be conferred and imposed on any person includes such person.'

9. This definition musts be read with the provisions of S. 4 of the Bombay Industrial Relations Act which provides for the appointments of a Commissioner of Labour. Section 4 reads as follows :

'4. (1) The State Government shall by notification in the official gazette appoint a person to be Commissioner of Labour.

(2) The State Government may by general or special order notified in the official gazette confer and impose all or any of the powers and duties of the Commissioner of Labour on any person whether generally or for any local area.'

10. It will thus appear that S. 4(1) contemplates an appointment of a person to be a Commissioner of Labour, while Sub-sec.(2) of S. 4 merely contemplates the conferral or an imposition of all or any of the powers and duties of the Commissioner of Labour on any person whether generally or for any local area. The provisions of S. 4 themselves indicate that it is not the intention to equate in rank a person who is appointed to be the Commissioner of Labour, as such and a person who is not appointed as a Commissioner of Labour, but on whom any or all of the powers of the Commissioner of Labour are imposed or conferred. This is also made clear from the definition in S. 3(9), which is clearly in two parts, the first part refers to Sub-section (1) of S. 4 and the latter part refers to Sub-section (2) of S. 4.

11. The argument which is advanced by the counsel for the State is that where a person is authorized to exercise certain powers or he performs certain functions of another authority such a person must be equated with that authority. Now this equation can be only to a limited extent and that extent is limited to the purposes for which the powers are so conferred. But merely because powers of an authority in one person are imposed on another, though he may be equated with the former authority so far as the function and powers are concerned, it is not permissible to hold that that person becomes an authority of the same rank as the former authority for the purposes of Art. 311 of the Constitution of India. I have no difficulty in accepting the argument advanced by the learned counsel for the State to a limited extent that for the purposes of the Act a person who is not a Commissioner of Labour can perform the same functions as those of a Commissioner of Labour by virtue of the provisions of S. 4(2) of the Bombay Industrial Relations Act. But merely because by an inclusive clause in the definition of Commissioner of Labour such person is included in that definition he cannot become a Commissioner of Labour for all purposes, much less so far as the rank is concerned. In a given case a person subordinate in rank may no doubt perform the same functions and exercise the same powers as a person higher in rank, but that cannot have an automatic effect of investing that subordinate authority with the rank of the authority whose powers or duties the subordinate authority is exercising or performing. The Deputy Commissioner of Labour, Nagpur, who is subordinate in rank to the Commissioner of Labour, cannot be said to have been equated in rank with him by virtue of the provisions of S. 4(2) of the Bombay Industrial Relations Act.

12. Without going into the question as to whether the Handbook of Statutory Financial and Administrative Powers of the Commissioner of Labour and his Subordinates, which is a cyclostyled compilation and which was not originally produced as a part of the record, should be looked into or not, it does appear that one of the administrative powers which seemed to have been invested in the Deputy Commissioner of Labour, who is subordinate in rank to the Commissioner of Labour, is 'to appoint and promote persons to hold all non-gazetted posts.' A further power also appears to have been invested in him which is styled as 'power to remove Government servants from service or to require them to retire on grounds of misconduct, insolvency or inefficiency,' and the scope of this power is stated as

'in respect of Government servants of Class III and IV services only and full power subject to the condition that before any such order is issued the procedure prescribed in Bombay Civil Services (Conduct, Discipline and Appeal) Rules is followed.'

13. It is on the basis of this that the counsel for the State contends that the power to remove the appellant was vested in the Deputy Commissioner of Labour, and therefore, the sanction awarded by him was valid and legal. If removal or dismissal of a public servant by a person lower in rank than the authority which appointed him is not permissible, the this kind of delegation, if it has the effect of taking away the constitutional protection given by Art. 311(1), will not be legal. This however will have to be decided on the facts of each case. In this context a reference may be made to the decision relied upon by the counsel for the appellant reported in the case of State of Kerala v. Madhavan : (1961)IILLJ484Ker . This was a case in which the accused was appointed by the Government of Cochin of which the successor Government was the Kerala Government. The sanction to prosecute the accused under S. 6 of the Prevention of Corruption Act was given by an authority styled as the Director of Health Services and the question was whether the sanction awarded by the Director of Health Services was valid and legal. The learned Judge in that case observed as follows at p. 486 :

'Therefore, the competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Art. 311(1) of the Constitution and one of the requirements is that the authority that orders dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed and the principle would appear to be that it is the factum of the appointment of the civil servant who claims the guarantee that determines the scope of the guarantee conferred by Art. 311

* * * It is agreed that it is by virtue of Ex. D. 1 that he was first appointed and that he continues to hold the office even after the integration and at the time of the prosecution. If that be so, it is only the Kerala Government who has got the right to dismiss the accused from service and under S. 6(1)(c) it is only that authority which is competent to remove him from his office who can validly accord sanction ...'

14. That in the case of a civil servant who has been appointed by a particular authority the delegation of power to dismiss or to remove that person to a subordinate authority is not permissible so as to undo the protection of Art. 311 of the Constitution appears to be well-setteled. In N. Somasundaram v. State of Madras 1956 I L.L.J. 537, it has been observed at p. 540 :

'... where an authority, higher than the one entitled under the statutory rules to order an appointment, in act, orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which, however, is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Art. 311(1) of the Constitution.'

15. It is true that normally where a subordinate authority is empowered to appoint a civil servant, an authority higher in rank to that subordinate authority does not make an order of appointment, but if such an order in fact is made, then in that case the power to order dismissal or removal could not be exercised by an authority lower in rank to the appointing authority. In a recent decision of the Punjab High Court in Gurmukh Singh v. Union of India following the decision in R. T. Rangachari v. Secretary of State [ ] the Division Bench observed :

'The word 'subordinate' in Art. 311(1) of the Constitution means subordinate in rank and not with reference to the functions exercised. Consequently when no officer of equal rank to the appointing officer is available, then the order of dismissal or removal will have to be passed by an officer of superior rank. In no circumstances can such an order be passed by an officer of lesser rank. Any rule or statute which permits such an action, must be held to be ultra vires as infringing the provisions of Art. 311(8) of the Constitution.'

16. In my view, the learned Assistant Government Pleader is not justified in contending that because the Deputy Commissioner of Labour exercised the powers and performed the functions of the Commissioner of Labour in so far as Vidarbha region is concerned, he must be deemed to be an authority equal in rank to the Commissioner of Labour within the meaning of Art. 311(1) of the Constitution. I must, therefore, hold that the Deputy Commissioner of Labour, in spite of the fact that he was entitled to appoint and dismiss Class III Government servants so far as the Vidarbha region is concerned, cannot be said to be a competent authority for the purposes of the removal or dismissal of the appellant, who was appointed by the Labour Commissioner of the former State of Madhya Pradesh for the purposes of Art. 311(1) of the Constitution of India and he was consequently not the proper authority for the purpose of sanctioning the prosecution as required by S. 6(1)(c) of the Prevention of Corruption Act, 1947. I, therefore, hold that the sanction order Ex. 32 has not been passed by an authority competent in law to pass it. If the sanction is held to be bad, then the consequence is that the entire proceedings before the learned Special Judge would be void and without jurisdiction.

17. The result of the finding which I have given is that the conviction of the accused will have to be set aside. The entire proceedings taken against him are quashed and the accused is discharged. The bail bond of the accused shall stand cancelled. The fine, if paid, will be refunded to him.


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