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T.P. Viswanathan Nair Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1978)IILLJ258Ker
AppellantT.P. Viswanathan Nair
RespondentState of Kerala and ors.
Cases ReferredUnited Society v. Eagle Bank
Excerpt:
.....as follows :then it was argued that the appellant was not a public and 'ministerial officer'.a public officer is an officer who discharges any duty in the dishcarge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. 2158 of 1975, (not reported ?) a division bench of this court held that officers of the electricity board are 'public officials' within section 51 of the indian electricity act, 1910. reference was made to best c. the indian pencil code by section 21, has defued 'public servant'.by an amendment introduced in 1964, the concept of the term was expanded to cover employees of a corporation or municipality and also of autonomous bodies like the kerala state electricity board. 7. we think the same concept should apply in this..........of the kerala enquiries and summonses act, 1960. the argument was that this act applies only to ' public servants' and the employees under the board such as the appellant, are not ' public servants'. the term ' public servant', according to the counsel for the appellant is synonimous with the term ' government servant'. section 9(2) of the enquiries and summonses act is clear that it has application only in respect of enquiries into the conduct of any 'public servant'. the said section reads :9(2) the government may, by notification in the gazette, invest any officer deputed by them to make an enquiry into the conduct of any public servant with the powers of a civil court while trying a suit under the code of civil procedure, 1908 (central act 5 of 1908), in respect of the following.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. The appellant was a clerk under the Kerala State Electricity Board and the president of the trade union, representing the workers of the Idikki Project. In connection with a strike in February, 1969 and certain disturbances consequent on the same, a criminal case under Sections 129B, 147, 149, 307, 332, etc., of the I.P.C. was charged against him and others; but following the report of a District Judge as Commission of Enquiry, the case was withdrawn. Shortly thereafter proceedings were instituted against the appellant under the Kerala State Electricity Board (Classification, Control and Appeal) Regulations, 1969 and the Vigilence Officer of the Board was appointed Special Officer to hold the enquiry under Regulation 16 of the Regulations. The Officer informed the Board that the enquiry may be held by some authority empowered to summon witnesses. By Ext. P9 G.O., the Government (1st respondent) referred the case to the 3rd respondent, the Commissioner and Tribunal for Disciplinary Proceedings. This was followed by Ext. P10 notification under Section 9(2) of the Kerala Enquiries and Summonses Act, 1960, investing the Tribunal with the powers of the Civil Court to summon and enforce the attendance of witnesses, etc. These two notifications were sought to be quashed in the writ petition which was dismissed by a learned Judge. The learned Judge rejected the argument that once a Vigilance Officer had been appointed to hold the enquiry, and he found that there was no evidence to substantiate the charge, it was not permissible to appoint a Tribunal again to enquire Into the same charge. Exhibit P9 notification was, therefore, sustained. Regarding Ext. P.10, the learned Judge took the view that the challenge to the power to summon witnesses can be made in writ proceedings only by one who had locus standi to do so, viz., (1) who was being compelled to be a witness against himself thereby violating the constitutional guarantee under Article 20(3) of the Constitution. As the appellant was not shown to be in that category, it was held that he had no locus standi to challenge, Ext. P10 notification. Regarding this latter ground, it was freely admitted before us by counsel for the appellant that he is not putting his case on the basis of Article 20(3) of the Constitution, and the counsel for the respondents did not raise any objection on the ground of the locus standi of the appellant. The first of the objections turns upon the provisions of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations dated 31-1-1969 and the Kerala State Electricity Board (Employees Disciplinary Proceedings Tribunal) Regulations, 1969 also of the same date. Regulation 16(2)(b) of the former Regulation provides :

16. (2) The formal enquiry may be conducted by :

(i) The Government through its machinery set up for conducting such enquiries provided the Board requests Government in writing so to do.

(ii) The Board or the appointing authority.

(iii) The disciplinary authority under the Board if that authority is competent under these regulations

(iv) The Head of the Department or any Officer of the Department empowered by the appointing authority or the Head of the Department ; or

Note.-For this purpose the respective Chief Engineers, Secretary or Chief Accounts Officer under whom the incumbent is working shall be deemed the heads of the respective departments.

(v) A Special Officer or Tribunal appointed by the Government or the Board for the purpose or a Tribunal generally appointed by Government for making enquiries into the conduct of Government Servants.

There is nothing in the above provision to hold that the option once exercised by the Government for any one of the modes of enquiry would for ever foreclose it from shifting to any of the other authorised modes. This is particularly emphasised by the opening words of the Clause that we have quoted, nuking it possible that any of the authorities may conduct the formal enquiry. It was then said that in any event, the reference of the case to the Disciplinary Tribunal was not proper, as the decision for the same had to be done by the Board and not by the Government. Rule 6 of the Disciplinary Processings Tribunal's Rules referred to earlier was relied upon. Clauses (b) and (c) of the aforesaid Regulations read as follows :

6(b) The Board may after examining the records and after making such consultations as may be deemed necessary decide whether the case shall be proceeded with and if so whether it shall be tried by the Tribunal.

(b) If the Board decide that the case shall be tried by a Tribunal the Board through its Secretary shall forward all the records to, Government with a specific request to refer the case to the Tribunal for trial and Government in turn shall refer the case to the Tribunal and call upon the Board to render such assistance as is required unless for specific reasons to be advised to the Board. the Government find that it is a case not fit for reference to the Tribunal.

Exhibit P9 recites the letter from the Secretary of the Kerala Slate Electricity Board and recalls the resolution of the Board at its meeting to move the Government to refer the case to the Tribunal, under Clause (e) of Regulation 6 of the Disciplinary Proceedings Tribunal's Regulations, 1969. It is clear, therefore, that the action was initiated by the Board and the Government only implemented the Board's desire. No infirmity attaches to the action on this score.

2. We then turn to the attack against Ext. P10. The same was issued under Section (2) of the Kerala Enquiries and Summonses Act, 1960. The argument was that this Act applies only to ' public servants' and the employees under the Board such as the appellant, are not ' public servants'. The term ' public servant', according to the counsel for the appellant is synonimous with the term ' Government servant'. Section 9(2) of the Enquiries and Summonses Act is clear that it has application only in respect of enquiries into the conduct of any 'public servant'. The said Section reads :

9(2) The Government may, by notification in the Gazette, invest any officer deputed by them to make an enquiry into the conduct of any public servant with the powers of a civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely :

(a) summoning and enforcing the attendance of any person and examining him on oath ;

(b) requiring the discovery and production of any document ;

(c) receiving evidence on affidavits ;

(d) requisitioning any public record or copy thereof from any Court or office ;

(e) issuing commissions for the examination of witnesses or or documents ;

(f) any other matter which may be specified in the notification.

Who then is a ' public servant'? Counsel was at pains with reference to Section 10 of the Enquiries and Summonses Act to examine the four Acts shown as having been repealed by it and to trace the history and background of the Public Servants Enquiries Act, 1850 as sketched in Kapur's case, A.I.R. 1964 S.C. 295 - paras. 32 and following. We do not think this line of enquiry, in any manner, helps to pin-point the concept of the term ' public servant '.

3. Dictionaries were indented. The Concise Oxford Dictionary at page 1158, dealing with the expression ' servant' refers to ' public servants' as State Officials ; Random's Dictionary was also cited to show that ' Public Servant' means one holding a Government Office. One of the shades of meaning given in Webster's III Edition of New International Dictionary at page 1836 for 'public servant' is a private individual, corporation or company, rendering public service. One of the meanings given for ' public service' is 'Government employment'. From these, counsel argued that both the dictionary meaning and the historical background of the Regulations would show that ' public servants' should be restricted to the category of Government servants. We cannot accede to this argument of counsel. While Government servants may pass off as ' public servants', they would not exhaust the category of public servants. Webster's Dictionary, itself sufficiently indicates the concept of the term ' public servant ' when it refers to him as a private individual or a Corporation discharging a public function. The Kerala State Electricity Board discharges such public functions. We think, even in the dictionary sense, there is enough to regard it as engaged in ' public service' and its servants as 'public servants'.

4. Our attention was called to Section 81 of the Electricity Supply Act, 1958 which reads :

81. All members, officers and servants of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act. to be public servants within the meaning of Section 21 of the Indian Penal Code.

It was said that the fiction was limited in its scope and purpose, and that the statutory provision would be unnecessary if the employees of the Boald were ' public servants', even de hors the provisions of the Section. It is possible to understand the Section on the underlying assumption of the Board's employees being ' public servants ', in the generic sense, and extending, by means of the fiction, that they would be so, even for the purpose of Section 21 of the I.P.C.

5. The learned Government Pleader cited to us the decision in The King v. Charles Hildyard Thornton Whiteker 1914, 3 K.B. 1283. At page 1296 it was observed as follows :

Then it was argued that the appellant was not a public and 'Ministerial Officer'. A public officer is an officer who discharges any duty in the dishcarge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer.

In the judgment in O.P.No.2158 of 1975, (not reported ?) a Division Bench of this Court held that Officers of the Electricity Board are ' Public Officials' within Section 51 of the Indian Electricity Act, 1910. Reference was made to Best C.J.'s exposition of the term ' Public Officer' as ' everyone who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Government or otherwise'; and to the decision of the Madras High Court in G.A. Natesan, In re: A.I.R. 1918 Mad. 763, and other cases. There is a fairly detailed and useful discussion of what is a ' public office ' in the decision of the Madras High Court in A. Ramachandran v. A. Alagiriswami, Govt. Pleader, High Court, Madras and Anr. : AIR1961Mad450 , where the above aspect of the term ' public office' and ' public officer' has been emphasised.

6. There is another aspect of the matter. The Indian Pencil Code by Section 21, has defued ' public servant'. By an amendment introduced in 1964, the concept of the term was expanded to cover employees of a Corporation or Municipality and also of autonomous bodies like the Kerala State Electricity Board. That definition, it was said, was inapplicable.

7. We think the same concept should apply in this sphere as well. Chapter IX of the I.P.C. was meant to preserve the probity and integrity of public servants and to prevent their bribery and corruption. That object was carried further by the Prevention of Corruption Act 1947, (Anti-corruption Act) which incorporated the definition of the term ' public servant' as it stood in the Indian Penal Code at the time of its enactments in 1947. Later came an enlargement and extension of the concept of ' Public Servant' by the amendments effected to Section 21 of the I.P.C. by the Amendment Act of 1964. It was ruled these amendments to the Penal Code should be read into the provisions of the Anti-corruption Act as well, In the judgment of a Division Bench of this Court in O.P. No. 5533 of 1975, etc., of which one of us (myself) was a member, this Court surveyed the authorities on the question as to when Statutes may be regarded as in pari materia. We referred to Sutherland on ' The Interpretation of Statutes', to Craies on ' Statute Law', to Maxwell on the ' Interpretation of Statutes ' and to the decision of the Supreme Court in M/s. Shah & Co. Bombay v. State of Maharashtra and Anr. A.I.R. 1967 S.C. 1877 from which we made the following quotation :

21. We have been referred to certain passages in certain text books, as well as in certain decisions, to show, under what circumstances, statutes can be considered to be in pari materia, and the nature of the construction to be placed on such statutes. Sutherland, in ' Statutory Construction ', 3rd Edition, Vol. 2, at p. 535, states :

Statutes are considered to be in pari materia - to pertain to the same subject-matter - when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object.The learned Author, further states, at p. 537 :

To be in pari materia statutes need not have been enacted * simultaneously or refer to one another.Again, at p. 544, it is stated :

When the Legislature enacts a provision, it has before it all the other provisions relating to the same subject-matter which it enacts at that time, whether in the same statute or in a separate act. It is evident that it has in mind the provisions of the prior act to which it refers, whether it phrases the later act as an amendment or an independent act. Experience indicates that a Legislature does not deliberately enact inconsistent provisions when it cognizant of them both, without expressly recognizing the inconsistency.The canon of construction, under these circumstances, is stated by the author, at p. 531 :

Prior statutes relating to the same subject matter are to be compared with the new provision ; and if possible by reasonable construction, both are to be so construed that effect is given to every provision of each. Statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other.In Craies, on ' Statute Law', 6th Edition, at P. 133, it is stated :

Where Acts of Parliament are in pari materia, that is to say are so far related as to form a system or codex of legislation, the rule as laid down by the twelve Judges in Palmer's, case 1785 I Leach C.C. 4th edn. 355, is that such Acts 'are to be taken together as forming one system and as interpreting and enforcing each other'. In the American cases of United Society v. Eagle Bank [1829] 7 Cons 457, 470, Hosmer. J said : ' Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things...In Maxwell on 'The interpretation of Statutes' 11th Edition, at p 153, the principle is stated thus :

An author must be supposed to be consistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal ....

It cannot be assumed that Parliament has given with one hand what it has taken away with the other.

8. We are inclined to think that it is possible to regard the Penal Code, the Classification, Control and Appleal Rules and other statutory provisions dealing with the disciplinary jurisdiction relating to public servants as parts of a pattern of comprehensive legislation aimed at preserving the purity and integrity of public servants and to stamp out corruption and misconduct among them. In that sense, we are inclined to think that the concept of the term ' public servant' in the Indian Penal Code should pervade and animate the provisions of these statutory rules and regulations dealing with disciplinary matters relating to ' public servants'. We are not expressing our final and concluded opinion on the point, as, even apart from this line of reasoning, there is enough to hold that the Board's employees are 'public servants'.

9. We dismiss the appeal with no order as to costs.


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