Skip to content


V.C. Thimmarayapopa Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 858 of 1966
Judge
Reported inAIR1968Kant296; AIR1968Mys296
ActsMysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rule 11(2); Constitution of India - Articles 226 and 311(2)
AppellantV.C. Thimmarayapopa
RespondentState of Mysore and ors.
Excerpt:
- labour & services. dismissal from service: [subhash b. adi, j] dispensation of disciplinary enquiry - electricity (supply) act (54 of 1948) section 79 and karnataka electricity board employees (conduct, discipline, control & appeal) regulations, 1987, regulation 14 petitioner alleged to have been involved in theft - criminal complaint also lodged in this regard - however, based on same evidence criminal court held that charge of theft is not proved and also recovery is not proved by prosecution - disciplinary authority relying upon admission of criminal charge by petitioner before investigation officer and in charge sheet, passing order of dismissal held, not proper, particularly, when enquiry was dispensed with and petitioner had no opportunity before disciplinary authority. further,.....order(1) this writ petition is directed against a departmental enquiry that is being held against the petitioner, who at the relevant time was an assistant controller of civil supplies, bangalore. the petitioner has sought for the relief of a writ or direction in the nature of certiorari quashing the charges framed by the second respondent (the deputy director of vigilance, state vigilance commission, bangalore), in his memo no. enj 13/65-66 dated 26-5-1966 and the government order no. clause 138 gcs 64 dated 26-10-1965 and another government order dated 11-3-1966 bearing no. cl 23 ac 1 65. the copies of the said documents have been produced by the petitioner as annexures 'd', 'b' and 'a' respectively to the petition. he has further prayed for a writ or order in the nature of.....
Judgment:
ORDER

(1) This writ Petition is directed against a departmental enquiry that is being held against the petitioner, who at the relevant time was an Assistant Controller of Civil Supplies, Bangalore. The petitioner has sought for the relief of a Writ or direction in the nature of Certiorari quashing the charges framed by the second respondent (The Deputy Director of Vigilance, State Vigilance commission, Bangalore), in his Memo No. ENJ 13/65-66 dated 26-5-1966 and the Government Order No. Clause 138 GCS 64 dated 26-10-1965 and another Government Order dated 11-3-1966 bearing No. cl 23 AC 1 65. The copies of the said documents have been produced by the petitioner as Annexures 'D', 'B' and 'A' respectively to the petition. He has further prayed for a writ or order in the nature of 'prohibition', prohibiting the second respondent from holding any further Departmental proceedings pursuant to the Government Order dated 26-10-1965. He has also prayed for a declaration that Rule 11(2) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, is ultra vires of the powers of the Government as the same is inconsistent with Article 311(2) of the Constitution of India.

(2) The petitioner was at the relevant point of time an Assistant Controller of Civil Supplies under the Government of Mysore. When he was functioning as Asst. Controller of Civil Supplies, owing to certain alleged irregularities in the discharge of his duties, the Government of Mysore proposed take disciplinary action against him by holding a departmental enquiry. hence, on 26-10-1965 the Government directed the Vigilance Commissioner to hold the necessary enquiry by Memorandum bearing No. cl 138 GCS 64. The Vigilance Commissioner authorised one Sri. M. M. Shirkol, Deputy Director of Vigilance (Judicial), to hold an enquiry by his Order No. VCC 27-28/65-66, dated 3-11-1965. The Deputy Director of Vigilance framed charges on 26-5-1966 as per his Memorandum No. ENJ 13/65-66. Subsequently, it would appear that Sri M. M. Shirkol retired from service on superannuation. The Vigilance Commissioner by an Order dated 4-6-1966, under No. VCC 27-28/65-66 purported to amend the authorisation relating to the appointment of Sri M. M. Shirkol, by the substitution of the name of Sri. D. Norohna in place of Sri M. M. Shirkol, Sri. D. Norohna took up the enquiry from the stage at which it was left by Sri M. M.Shirkol, and issued notice to the petitioner on 22-6-1966, calling upon him to put in a statement of defence in respect of the charges framed against him. In the meanwhile on 11-3-1966, the petitioner was placed under suspension by an order of the Government. It is at this stage that the petitioner has approached this court by this petition under Article 226 of the Constitution for the reliefs enumerated earlier.

(3) Sri. H. B. Datar, the learned counsel for the petitioner, has formulated various propositions which briefly stated, are as follows:

1. The power under Article 311(2) of the Constitution, being a judicial power exercisable by the appointing authority cannot be delegated to the State Vigilance Commission for the purpose of holding a Departmental Enquiry against a Civil servant, particularly having regard to the language of the amendment effected to article 311(2) by the Constitution (Fifteenth Amendment) Act, 1963.

2. The State Vigilance Commission, being a delegate for the purpose of holding a Departmental enquiry, cannot further delegate its functions tot he Deputy Director of Vigilance, as in the present case.

3. The Deputy Director of Vigilance namely the second respondent is not competent to hold the enquiry as he is not one of the authorities named under Rule 3 of the Mysore State Vigilance Commission Rules, 1965.

4. Since the irregularities, which have formed the basis of the charges framed against the petitioner, appertain to the year 1963-64, the enquiry under the Mysore State Vigilance Commission Rules 1965, would not be competent.

5. The Order of suspension is illegal as the same has not been issued by the competent authority.

6. It was not competent for the Governor to frame Rules No. 1(2), 8 and 9 of the Mysore State Vigilance Commission Rules, 1965, giving them retroactive operation.

7. According to Rule 10 of the Mysore State Vigilance Commission Rules, 1965, which is an amendment made on 19-7-1966, the enquiry will have to be held under the unamended Rule 14-A of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957. Hence the present enquiry being held under Rule 8 of the Mysore State Vigilance Commission Rules. 1965 will not be competent.

(4) For the purpose of convenience, the Mysore Civil Service (Classification, Control and Appeal) Rules, 1957, and the Mysore State Vigilance Commission Rules, 1965, will hereinafter be referred to as the 'C. C. A. Rules' and 'Vigilance Rules' respectively.

(5) Before adverting to the arguments advance din support of the above propositions, it would be necessary briefly refer to the various Rules and Notifications for a proper understanding of the submission made at the Bar,

(6) By the Notification dated 11-2-65 bearing No. GAD 19 OAC 64, the Government of Mysore constituted a Vigilance Commission for the State. This Notification was, presumably, issued in exercise of the Executive power vested in the State Government under Article 162 of the Constitution. According to this Notification, the Vigilance Commission would be headed by a Vigilance Commissioner and would be composed of a Bureau of Investigation headed by a Deputy Inspector General of Police, and a Directorate of Vigilance headed by a Senior I. A. S. Officer. The Bureau of Investigation would work under a Deputy Inspector General of Police and would consist of one Superintendents of Police, to say nothing about the subordinate executive and ministerial staff necessary for the effective performance of its functions. The Directorate of vigilance would consist of a Director of Vigilance and two Deputy Directors of Vigilance, one of whom being an Officer of the senior scale of I.A.S., or M.A.S. and the other an officer with Judicial experience. The powers and functions of the Vigilance Commission have been enumerated in the said Notification. Generally speaking, they undertake enquiries or investigations regarding the conduct of public servants, who are suspected or alleged to have acted for improper purposes or in a corrupt manner. Before the constitution of the Vigilance Commission, similar powers and functions were being exercised and performed by the Directorate of Anti corruption and Technical Audit. In view of the then existing state of affairs, the Government by the aforesaid Notification directed that the post of the Director of Anti Corruption and Technical Audit should be redesignated as the Director of Vigilance. The Vigilance Rules framed by the Governor under the proviso to article 309 of the Constitution were published by a Notification dated 10-6-65. By Rule 8 of the Vigilance Rules, Rule 14-A of the C.C.A. Rules was amended by substitution. The Vigilance Rules was further amended by the addition of Rule 10 on 19-7-1966 by Notification No. GAD 45 PVC 66 published in the Mysore Gazette on 4-8-1966. The Government of Mysore by a Notification dated 15-9-1966, sanctioned the establishment in respect of the said Vigilance Commission. Later by another Notification dated 11th April 1967, an amendment was made in this regard. The Rules of recruitment for this Department were framed on 15th September 1966 by the Governor in exercise of the powers conferred on him under the proviso to Article 309 of the Constitution. Corresponding to the Notification regarding the sanction of establishment, there has been an amendment to the Recruitment Rules.

(7) In elaboration of the first proposition relating to the delegation of the power to hold an enquiry, the argument put on behalf of the petitioner is as follows: The power under Art. 311(2) of the Constitution consists of two parts, namely the power to hold an enquiry after framing charges and the power to impose punishment after affording reasonable opportunity to the official concerned to show cause against the imposition of the punishment provisionally determined upon. Although it consists of two parts, they are so integrally connected that it cannot be predicted that the first part relating to the enquiry partakes of the character of a judicial proceeding and the second part assumes the character of an administrative proceeding. The submission is that the whole of that power is a judicial power. On this basis, the argument proceeds that there cannot be any delegation of the power to hold an enquiry to any other power or authority as the same would be destructive of the concept of judicial procedure, namely hearing and disposal by one and the same authority. Further in view of the Constitution Fifteenth Amendment Act, introducing the amendment in Article 311(2) o the Constitution, the position would be further clear that the reasonable opportunity contemplated under Article 311(2) of the Constitution, the position would be further clear that the reasonable opportunity contemplated under Article 311(2) will have to be afforded by the Appointing Authority alone, and no delegation of its power is permissible.

(8) In support of the above argument, reliance is placed on the decisions of the Supreme Court reported in : AIR1963SC395 , Bachhittar Singh v. State of Punjab, : AIR1959SC308 , Nageswara Rao v. A. P. S. R. T. Corporation. In Bachittar Singh's case, : AIR1963SC395 the Supreme Court, while dealing with the scope of article 311 with dealing with the scope of Article 311(2) of the Constitution before its amendment, has observed at page 397 as follows:

'..... We cannot accept the view taken by the High Court regarding the nature of what is it calls the second part of the proceedings. Departmental proceedings taken against a Government servant are not divisible in the sense in which the High Court understands them to be. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the government servant are established or not and the second is reached only if it is found that they are so established. That stage deals with the action to be taken against the Government servant concerned. The High Court accepts that the first stage is a judicial proceeding and indeed it must be so because charges have to be framed, notice has to be given an opportunity of being heard. Even so far as the second stage is concerned Art. 311(2) of the Constitution requires a notice to be given to the person concerned as also an opportunity of being heard. Therefore this stage of the proceedings is no less judicial than the earlier one. Consequently any action decided to be taken against a Government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment. Indeed, the very object with which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the charges established and upon the other attended circumstances of the case. It is thus wholly erroneous to characterise the taking of action against a person found guilty of any charge at a departmental enquiry as an administrative order.'

(9) In Nageswara Rao's case, : AIR1959SC308 the Supreme Court has observed as follows:-

'The second objection in that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing become an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.'

(10) Reading the aforesaid observations together, it is contended for the petitioner that such delegation of power to hold an enquiry is inconsistent with the provisions of article 311(2) of the Constitution, and any such delegation therefore suffers from the vice of unconstitutionality. This argument would be of some value if the provisions of Article 311(2) either expressly or by implication do not provide for such delegation of power. In a case reported in : [1955]2SCR1331 . Pradyat Kumar Bose v. C. J. of Calcutta H C the Supreme Court has held that such delegation is permissible in the context of the exercise of the power under Article 311(2) of the Constitution. It has further observed that the delegation to hold an enquiry did not amount tot he delegation of the power itself. It has observed as follows at page 291:

'The further subordinate objections that have been raised remain to be considered. The first objection that has been urged is that even if the Chief Justice had the power to dismiss he was not, in exercise of that power, competent to delegate to another Judge the enquiry into the charges but should have made the enquiry himself. This contention proceeds on a misapprehension of the nature of the power.

As pointed out in 'Barnard v. National Dock Labour Board' 1953-2 QB 18 at p. 40, it is true that 'no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication'. But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and enquiry simulating judicial standards have to proceed the exercise thereof.

It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides-is the ultimate responsibility for the exercise of such power.'

(11) In view of the aforesaid clear statement of law, we cannot accede to the contention of Sri Datar that such delegation is destructive of one of the basic concepts of judicial procedure

(12) In Gullapalli Nageswara Rai's case, : AIR1959SC308 the question raised was regarding the validity of Rules providing for hearing by one and decision by another, in the absence of specific statutory provision regarding such a procedure being followed. It is well settled that when a quasi-judicial power has to be exercised by an Authority in the absence of any provision regarding the procedure to be followed in the statue concerned it can devise its own procedure for effectuating that power provided it is not inconsistent with the basic principles of judicial procedure. In that case, what had been done was to frame Rules, for which there was no specific sanction in the statute, offending this basic concept of judicial procedure. But in the instant case what has to be seen is whether there was constitutional sanction under Article 311(2). It is this question that is settled in Pradyat Kumar's case : [1955]2SCR1331 referred to above. Hence the argument on these lines is no longer open to the petitioner. We are also clearly of the opinion that the amendment made in Art. 311(2) of the Constitution would not make any difference as to the principle laid down in Pradyat Kumar Bose's case. : [1955]2SCR1331 referred to above whatever its other implications might be. We must also observe that no arguments have been addressed by Sri Datar in elaboration of this submission of his.

(13) The next contention of Sri Datar is that a further delegation of the Deputy Director of Vigilance was impermissible. The argument is that the State Vigilance Commission which is itself a delegate cannot further delegate. This would undoubtedly be the position if there is no statutory provision for such further delegation. Sri U. L. Narayana Rao, the learned counsel appearing on behalf of the respondents, submits that such further delegation is provided for under the Vigilance Rules, or C. C. A. Rules for that matter, and invited our attention of Rule 14A of the CCA Rules as amended by Rule 8 of the Vigilance Rules. Under Rule 14A (1) (b) (as amended) it is specifically provided that the vigilance Commissioner or any Officer of the Director of Vigilance authorised by the Vigilance Commissioner could conduct an enquiry as the one contemplated against the petitioner. This being the position, this contention advanced on behalf of the petitioner is liable to be rejected.

(14) The next contention urged on behalf of the petitioner is that the Deputy Director of Vigilance is not an authority named under Rule 3 of the Vigilance Rules and as such it would be incompetent for him to hold the enquiry. This argument, by implication means that the Deputy Director of Vigilance is not part of the Directorate of Vigilance as contemplated under Rule 3 of the Vigilance Rules, and as such a delegation under Rule 14A (a) (b) of the C.C.A. Rules to an Officer who is not a competent. This over-looks the Constitution of the Directorate of Vigilance in the Notification No. GAD 19 OAC 64, dated 11-2-1965. According to the said Notification, the Directorate of Vigilance consists of a Director of Vigilance and two Deputy Directors of Vigilance one of whom is an Officer with judicial experience. The argument of Sri Datar appears to us to be that the Cadres and Recruitment Rules were made only on 15-9-1966 long subsequent to the authorisation in question and as such it was not a valid authorisation as it was not in favour of a person who belonged to the Directorate of Vigilance having been appointed under the Rules of Recruitment. This argument seems to assume that no appointments could be made in the absence of Cadre and Recruitment Rules or orders relating to the sanction of establishment. In our view there is no warrant for this proposition advanced by Sri Datar. As stated by us earlier, the constitution of the Vigilance Commission is made in exercise of the Executive Power of the State Government. It cannot be denied that the posts were occupied by the concerned officers by virtue of the appointments made by the Competent Authority. hence the fact that the cadre strength and Recruitment Rules came to be fixed and framed later would not make any difference, if otherwise the recruitment and filling up of the posts had been done by virtue of the Executive Power and consistently with the provisions relating to equality of treatment enjoined by the Constitution. Hence this argument of the petitioner deserves to fall.

(15) The next contention is that the irregularities which have formed the basis of the charges framed against the petitioner relate to the year 1963-64 and as such it would not be competent to hold the enquiry under the Rules framed subsequently, to wit, the Vigilance Rules of 1965. In our view, there is no substance in this argument advanced on behalf of the petitioner. The procedure to hold a departmental enquiry is prescribed under Rule 14A of the C. C. A. Rules as amended by Rule 8 of the Vigilance Rules. This amendment is substantially similar to the provisions of the Rule 14 A as prevalent earlier before its amendment except for the fact that the amended Rule confines its operation to the Vigilance Commission whereas the earlier unamended Rule 14-A refers to enquiries by the Director of Anti-Corruption and the Revenue and other Disciplinary Authorities. Above all, these provisions relate to the procedure for holding the Departmental enquiry against him. The petitioner has also not made out that any serious or conspicuous abridgment of his right, if any, has been brought about by the concerned amendment. For all these reasons, we hold that the petitioner's contention in this behalf should fail.

(16) The next contention urged, rather faintly, on behalf of the petitioner relates to the Order of suspension passed against the petitioner by the Government in their Order No. Cl 23 AC1 65 dated 11-3-1966. The argument of the petitioner is that the Order was illegal as it was not made by the Competent authority. The further argument on this question appears to be that as the Order of suspension has been made by a Superior Authority, the petitioner would be deprived of a right of appeal against any such Order which he would have otherwise had if it had been made by the Appointing Authority. In our opinion, this contention is without force. The mere fact that the Order made by a Superior Authority, who is also an Appellate Authority could not be tested by way of an appeal would not amount to infringement of any right that might have vested in the petitioner. In any event no specific relief has been prayed for on this ground. Rule 10 of the C.C.A. Rules specifically makes provision for the power to order suspension. It provides for the exercise of the power regarding suspension by the Appointing authority or any authority to which it is subordinate or any other Authority empowered by the Government in this behalf. So long as this Order of suspension is not shown to have infringed in any manner the provisions of Rule 10 of the C. C. A. Rules, it is not open to the petitioner to question this Order on the ground that it amounts to deprivation of a right of appeal, if any, he might have had under the very Rules. Hence this contention also fails.

(17) The next contention urged on behalf of the petitioner is in regard to the validity of provisions of Rules 1 (2) and 8 read with Rule 9 of the Vigilance Rules. The argument advanced is that these rules are expressly made retrospective and as such they could not be validly promulgated by the Governor in exercise of his power under proviso to Article 309 of the Constitution. He relies on the decision of this Court G. Govindarajuly v. State of Mysore, (1963) Mys LJ (Suppl) 525: (AIR 1963 Mys 265). He submits that though the case had been taken up in appeal to the Supreme Court in Nagarajan v. State of Mysore, : (1967)ILLJ698SC , the question decided as above had not been unsettled in any manner. Assuming this to be the position, we are still unable to accede to the contention of Sri Datar, the learned counsel for the petitioner, Rule 1 (2) of the Vigilance Rules reads thus:

'.........

(2) These rules except rules 8 and 9 shall be deemed to have come into force on the 11th February 1965, and rules 8 and 9 shall come into force on the date of publication of these rules in the Official Gazette.' Rule 8 does not on the face of it make it retrospective or retroactive as the case may be. But the argument is that it should be read with Rule 9 to ascertain its retrospective character. It is unnecessary to set out this Rule as it relates only to a substitutive amendment of Rule 14-A of the C. C. A. Rules. Rule 9 of the Vigilance Rules runs thus:

Provision in respect of certain matters:

(1) Anything done or any action taken (including investigations conducted, inquiries made, orders appointing the inquiring Officer or authority issued, or proceedings taken) under rule 14A of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, before the commencement of Rule 8 of these Rules, shall be deemed to have been done or taken under Rule 14A of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, as substituted by the said Rule 8, and accordingly all further investigations, in inquiries and proceedings may be continued by the Vigilance Commission, the Vigilance Commissioner, the Head of the Directorates of Vigilance and the Head of the Bureau of Investigation or other officers or authorities of the Vigilance Commission in accordance with the provisions of these rules and rule 14-A of the Mysore Civil Services (Classification, Control and Appeal) Rules 1957, as substituted by the said Rule 8.

(2) If there be any doubt as to which officer or authority of the Vigilance Commission should deal with any matter under Sub-rule (1), the matter shall be referred to the State Government, and the Officer or authority specified by the State Government, shall be deemed to be the Officer or authority competent to deal with such matters.'

(18) Placing reliance on the deeming provision, which saves the pending proceedings for future action under the procedure prescribed by the amendment, he submits that the Rule expressly validates the past actions taken under Rule 14-A of the C.C.A. Rules, thus making it retroactive in operation. In Govindarajulu's Case, this Court had to deal with the power of the Governor to make Rules with retroactive operation in exercise of his power under the proviso to Article 309 of the Constitution. Their Lordships laid down the test for determining whether such a Rule which is apparently retrospective in operation falls within or without the power conferred on the Governor under the said proviso to Article 309 of the Constitution.

(19) In Govindarajulu's Case reported in 1963 Mys LJ Supl. 525 : (AIR 1963 Mys 265), Narayana Pai, J. Speaking for the Bench, observed as follows at page 541 (of Mys LJ Suppl.) : (at p. 274 of AIR)

'Before proceeding further, it is quite essential to ascertain what exactly is meant by 'retrospective legislation'. The mere fact that a law or rule looks back and takes into account certain events that have already taken place does not necessarily mean that the said law or rule operates or acts from a date anterior to its promulgation. A law or rule may take into account the previous events or facts but may, nevertheless, operate only prospectively as from the date of its promulgation. Perhaps a more accurate expression to be used to describe a law which acts or operates as from a date anterior to its promulgation would be 'retroactive legislation' or 'ex-post facto legislation'. Such ex post facto legislation may either take away the rights created by previous transaction or validate what was in its inception invalid. Even when the rights acquired under previous transactions are taken away by a law, such law, may leave intact all the consequences of the rights previously acquired upto the date of its promulgation, and render those rights ineffective only from the date of its promulgation. In such a case, it will be noticed that the law is not in the real sense of the term retroactive. Commonest form of expert facto legislation that we come across is legislation which invalidates what was in its inception invalid. It is with this type of legislation by the Governor acting under the proviso to Article 309 that we are concerned in this case.'

Against at page 545 of the same report (Mys LJ Suppl): (at p. 277 of AIR), His Lordship observed as follows:

'As we have already pointed out at an earlier stage of this order, retrospective of more accurately retroactive or ex post facto legislation in the real sense of the term is one in which rights already acquired under previous transactions, or previous rules are taken away as from a date anterior to the promulgation of legislation or by which something that was invalid, when actually done, is sought to be validated. We have further pointed out that if rights are taken away not as from a date anterior to the promulgation of a new but only as from the date of its actual promulgation, such legislation cannot be described as retroactive legislation; it acts only prospectively.' If the provisions of the impugned Rules are examined in the light of the above principles, it will be clear that these Rules merely look back and are not retroactive in character. They do not seek to validate any invalid action taken earlier. It is no doubt true Rule 1 (2) of the Vigilance Rules makes it effective from an earlier date. But in doing so, t is not attempting to make any invalid action valid. As already observed, the Vigilance Commission had come into being by virtue of a Notification dated 11th February 1965 issued in the name of the Governor. The validity of this Notification has not been doubted. The Vigilance Rules, except for the Rules 8 and 9, deal substantially with the same subject matter as the one concerned in the Notification Dt. 11-2-1965. Hence even without any such retrospectively being conferred on these Rules, the powers and functions will have been validly exercised and performed by the Commission by virtue of that Notification. In any event, the position in law is that the Rule would operate prospectively, assuming that the Governor had not any power to make such a Rule. No past action has been questioned in this proceeding on the ground that it stood validated by the retrospective operation of this rule. In our opinion the legal fiction created in Rule 9 is only intended for the specific purpose of continuing pending proceedings and does not in any sense seek to validate anything done or proceedings taken which were otherwise invalid. It is not also made operative from an anterior date. Any doubt in this regard is cleared up by the express provision in R. 1 (2) to the fact that it shall be operative from the above discussion, we are of the opinion that there is no substance in this contention advanced on behalf of the petitioner.

(20) The next submission of Sri Datar is that the promulgation of Rule 10 on 19-7-1966, by way of an amendment to the Vigilance Rules, has led to inconsistency or conflict between the provisions of Rules 9 and 10. The argument is that the petitioner would therefore be entitled to be tried under the unamended Rule 14A of the C. C. A. Rules as its operation is saved for the purposes of continuance of pending matters. This latter argument is based on the assumption that Rule 10 has an overriding effect over Rule 9 in so far as pending matters are concerned. To appreciate the argument it is necessary to set out the Rule in question:

Rule 10 reads

'Saving in respect of amendment made by Rule 8:

Notwithstanding anything contained in Rule 8, but subject to the provisions of rule 9, the substitution of rule 14A by rule 8 shall not:

(a) revive anything not in force or existing at the time at which the substitution takes effect: or

(b) affect the previous operation of rule 14A of the Mysore Civil Service (Classification, Control and Appeal), Rules, 1957 as in force before the commencement of Rule 8 of these rules, or anything duly done or suffered under the said rule 14A; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Rule 14A; or

(3) affect any investigation, inquiry, order or proceeding; and 'any such investigation, inquiry, order or proceeding may be continued or enforced as if the said rule 14-A had not been substituted by the new rule 14A specified in Rule 8'.'

(underlining (here into ' ') is ours).

(21) It is apparent that Rule 10 in reality consists of two parts. The first part saves the previous operation of Rule 14A of the C.C.A. Rules. The second part, particularly Clause (d) refers to the saving of pending proceedings and the future operation of the unamended Rule 14A for the purpose of such proceedings, whereas in Rule 9 only pending proceedings are saved and a legal fiction is created for the purpose of continuing such proceedings in accordance with the new Rule 14A, without specifically saving the future operation of the unamended Rule 14A. It will thus be seen that there is an apparent conflict, between these two Rules as two procedures, one under amended and another under unamended Rule 14A, have been provided for continuing the pending proceedings. There is also another conspicuous difference in these provisions. While Rule 9 specifically refers to continuance of proceedings by the Vigilance Commission, there is no reference to any particular authority in Rule 10. In our view the implication is that pending matters before authorities other than the Director of Anti-Corruption and Technical Audit should remain with them and be continued under the previous Rule 14A. It is also of materiality to note that there is no provision for transfer of proceedings from such other authorities to the Vigilance Commission. Such a provision for transfer would become necessary if Rule 9 had been intended to operate even in respect of enquiries before such 'other authorities' and the Vigilance Commission had been required to take charge of and continue them. But, in the absence of a provision transferring such proceedings, and in view of the amendment without a specific saving clause in regard to Rule 14A, the proceedings before such 'other authorities' cannot be proceeded with, if at all they do not come to an end. Viewed in this context, the necessity for the promulgation of Rs. 10 becomes apparent. Rule 10, among other matters, specifically saves the future operation of the Rule 14A (unamended) for the purposes of pending proceedings. But here again it seems to take within its ambit all the pending proceedings before all the concerned authorities, named in the previous Rule 14-A of the C. C. C. Rules. Thus it will be seen that we are confronted with two provisions dealing with one and the same matter but apparently providing for conflicting procedures. But it will also be seen that the provisions of Rule 10 are expressly made subject to Rule 9. This would mean that Rule 10 would not have an overriding effect. In other words, it would not take effect in regard to matters which are covered by Rule 9 of the Vigilance Rules.

(22) It is argued that the provision, call for the application of the rule of harmonious construction, a well-established rule of Interpretation of Statutes. The Supreme Court in the Case of Venkataramana Devaru v. State of Mysore, : [1958]1SCR895 has made a reference to this rule. Venkatarama Iyer, J at p. 268 of the said reports has observed thus;

'The result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction.'

(23) It will be clear from the above observation that such conflict should be real and not merely apparent and one of them should not have been made subject to the other. It is also clear that a construction which is likely to render one of the provisions nugatory should be rejected in favour of the one which would render both the provisions effective. In the light of the above principles, we shall now proceed to examine the question posed before us.

(24) In our view, there is no occasion to invoke the aid of the rule of harmonious construction as the provisions of Rule 10 are expressly made subject to the provisions of Rule 9. As observed earlier the clause 'subject to the provisions of Rule 9' will not invest Rule 10 with an overriding effect in relation to Rule 9. On a fair and reasonable construction of these two provisions together, the position that envisages is that matters which fall under R. 9 are excluded from the operation of Rule 10. It is mentioned earlier that the Vigilance Commission came to be constituted on 11-2-1965 by means of a Notification of the same date issued in the name of the Governor. Subsequently, in exercise of the powers conferred under the proviso to Article 309 of the Constitution, the Governor framed Rules known as 'the Mysore State Vigilance Commission Rules, 1965', and caused the promulgation thereof on 10-6-196. Published in the Official Gazette on 24-6-6. Later, on 26-10-1965, the Vigilance Commissioner was authorised to hold an enquiry against the petitioner n accordance with these Rules. It is only on the basis of this authorisation that the Commission proceeded to hold the enquiry against the petitioner. On these facts it is clear that the Commission is competent to proceed with the enquiry under the present Rules. But, the argument pressed on behalf of the petitioner is that inasmuch as the earlier investigation had not been conducted by the Vigilance Commission, it was not competent for that authority to conduct an enquiry under Rule 14A of the C. C. A Rules as amended by Rule 8 of the Vigilance Rules. The relevant portion of Rule 14A runs thus:

'14-A Special procedure in certain cases;

(1) The following provisions shall, not withstanding anything contained in Rules 9, 10, 11 and 13, be applicable for purposes of proceedings against Government servants 'whose alleged misconduct has been investigated into by the Vigilance Commission' either suo motu or on a reference from Government or from any other authority viz.,

(a) where an investigation into any allegation against-

(i) a member of the State Civil Services Class I or II; or

(ii) a member of the State Civil Services Class I or II and a member of the State Civil Services Class III or IV; or

(iii) a member of the State Civil Services Class III or IV in respect of an allegation of a serious nature;

The Vigilance Commission is of the opinion that disciplinary proceedings shall be taken, it shall forward the record of investigation along with its recommendations to the Government and the Government, after examining such records, may either direct an enquiry into the case by the Vigilance Commission or direct the appropriate disciplinary authority to take action in accordance with Rule 12;.......'.

(Underlining (here in ' ') is ours).

The further submission is that Rule 9 by which a legal fiction is created that proceedings taken earlier to the promulgation of the Vigilance Rules should be deemed to have been taken under the said Rules, is retroactive in character. Therefore, such a Rule could not properly be framed in exercise of the powers vested in Governor under Article 309 of the Constitution. Under Rule 14A (1) of the C. C. A. Rules the Commission can proceed to enquire only into cases which have been investigated by it. Since the case against the petitioner was investigated by some other authority earlier to the constitution of the Commission, it could not properly fall to be dealt with under Rule 14A (1) of the C. C. A. Rules, as amended. In other words, his case has not been investigated by the Vigilance Commission for it to acquire jurisdiction to proceed with the enquiry under the said rule. Since Rule 9, according to the petitioner, is bad for retrospectivity, it could not be availed of to hold the enquiry in question. The further argument is that in such a situation his case can only fall to be dealt with under Rule 10 of the Rules. Putting it differently, the case of the petitioner would not fall to be dealt with under R. 9 of the Rules. In our opinion, this contention is unavailable to the petitioner. We have earlier held that Rule 9 was not retroactive so as to make it ultra vires of Article 309 of the Constitution. It follows, therefore, that the proceedings against the petitioner are liable to be continued by virtue of the amended Rule 14A of the C. C. A. Rules read with Rule 9 of the Vigilance Rules, which saves the operation of the said Rule for the purpose of pending proceedings. We are, therefore, clearly of the view that this contention of the petitioner should also fail. However, we wish to guard ourselves against being understood as having pronounced on the question of the scope and purpose of Rule 10, except as regards the construction put upon the clause 'subject to the provisions of Rule 9'

(25) A further submission is made in regard to the manner in which the authorisation in favour of Sri D. Noronha had been effected. The said authorisation, which was made on 4th June 1966, merely amended the earlier authorisation in favour of Sri M. M. Shirkol made on 3rd November 1965. the amendment merely states that in the place of the words 'Sri M. M. Shirkol', the words 'Sri D. Noronha' might be read. The argument of the petitioner is that this would make the authorisation retroactive in character thus making it appear that all proceedings taken by Sri. M. M. Shirkol should be deemed to have been taken by Sri. D. Norohna. The Vigilance Commission cannot purport to issue the authorisation having such retrospective characterisation. But, it is obvious on a fair and reasonable construction of this document, that that was not the intention of the Vigilance Commission in issuing the authorisation in favour of Sri D. Noronha. It would, in our opinion, amount tot he reissue of the Notification with this amendment taking effect from the date of such issue, namely 4th June 1966. Read in this way, the authorisation takes effect prospectively. In any event, there was no action or proceeding taken by Sri. M. M. Shirkol which may be said to be invalid, thus requiring validation of some sort. If this circumstance is kept in view it would merely mean that the order authorising Sri D. Noronha may in a sense, look back at the previous state of affairs. It does not in any way seek to validate something which was invalid, assuming that the Vigilance Commission was possessed of power to validate invalid actions or proceedings. In this sense, the character of retroactivity cannot be attributed to the Order in question. Further, it is to be seen that an authorisation of this kind is purely an administrative act, and the power to authorise is an administrative power. Hence, in any event, it takes effect only prospectively. In the light of the above discussion this contention also should fail.

(26) For the foregoing reasons, the petition deserves to fail and is dismissed. No costs.

(27) Petition dismissed


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //