L.N. Chhangani, J.
1. This is an appeal by the accused Parmeshwar Dayal against the order of the Special Judge, Jaipur City, dated 10th November, 1961, convicting him under Section 161, Indian Penal Code and Section 5(2), Prevention of Corruption Act, 1947 .and sentencing Slim to three months rigorous imprisonment and a fine of Rs. 100/- under both the counts, and, in default one month's further rigorous imprisonment.
2. The prosecution case was that in January, 1960, the accused-appellant Parmeshwar Dayal was in the service of the Northern Railway, discharging his duties as a Time Keeper in the Office of the Permanent Way Inspector, Suratgarh. One Bhagwan Singh, who was working in Gang No. 1, Srivijay Nagar, wanted transfer from that gang and he, therefore, applied to the Permanent Way Inspector, Suratgarh, for his transfer. In connection with that application, Parmeshwar Dayal wanted a bribe of Rs. 40/- from Bhagwan Singh. Bhagwan Singh (PW/2) contacted Mool Singh Gosani, (PW/13) Railway Sectional Officer in this connection. Deputy Superintendent Police Shri Upadhaya was approached by the Railway Authorities and a trap was arranged. The Deputy Superintendent after receiving an application Ex. P.3 along with four currency notes of Rs. 10/- each from Bhagwan Singh prepared a memo Ex. P.4 and noted the numbers of the currency notes and returned them to Bhagwan Singh for being given to the accused on demand of illegal gratification. The Deputy Superintendent sent Ram La). (PW/3) Motbir with Bhagwan Singh and asked him to watch the payment of bribe and give him a signal by putting his hand on his head. On 9-4-1960 at about 10.30 A.M. Bhagwan Singh found the accused alone in his office and on his demand gave Rs. 40/- to him. The accused after counting them put them in his bush-shirt pocket, Article 1. The accused took out the application Ex. P.2 from his drawer and on it wrote the endorsement Ex. P.2/A 'I have no objection' and affixed the seal of the Permanent Way Inspector. The Deputy Superintendent Police on receiving the signal went inside the office of the accused accompanied by two Motbirs Ram Lal (PW/3) and Jamal Singh (PW/4). The accused got confused and on demand by the Deputy Superintendent Police, gave the currency notes Articles 2 to 5 after taking them out of the pocket of his bush-shirt. They were seized by memo Ex. P.6. The application Ex. P.2 along with two other transfer applications were also seized under memo Ex. P.13. After investigation, the papers were placed before Shri Suresh Chandar (PW/11) Divisional Engineer Northern Railway, a, senior scale officer, who accorded sanction for the prosecution of the accused-appellant and, consequently, the accused was challaned in the court, of the Special Judge, Jaipur. City.
3. The prosecution examined 15 witnesses in support of its case and relied upon a number of documents.
4. The accused pleaded 'not guilty' and denied entirely the allegations of the prosecution. The accused also pleaded invalidity of the sanction for his prosecution.
5. The special Judge, Jaipur City, held that the sanction accorded for the prosecution of the appellant was valid and also found the accused guilty of the charges levelled against him. He, consequently recorded an order of conviction, as already stated at the outset. Aggrieved by this, the accused-appellant has filed the present appeal.
6. During the hearing of the arguments, a great emphasis was laid upon the invalidity of the sanction for the prosecution of the appellant, and as the question goes to the root of the matter. I heard Mr. Joshi for the accused and Mr. Zabar Raj for the State on the Question of the sanction in the first instance.
7. The Special Judge in dealing with the question of sanction, referred in the first instance to Ex. P-24 dated 29-7-1946, an order of the Chief . Auditor, Bikaner State Railway, provisionally appointing the appellant; (2) Ex. P-26 a letter dated 11-11-1946 from the Chief Auditor to the General Manager, Bikaner State Railway, recommending that the appellant should be started, on a salary of Rs. 38/- per month as agreed to in their conversation in July; (3) Ex. P.3 -- order of the General Manager, Bikaner State Railway, sanctioning the appointment of the appellant as a clerk in the Chief Auditor's office on Rs. 38/- per mensem, and (4) Ex. P-25 dated 24-1.1-1946 the final order of the Chief Auditor appointing the appellant and on the basis of these documents the learned Judge concluded that Parmeshwar Dayal was appointed by the Chief Auditor of the former Bikaner. State Railway.
In this connection he also referred to the statement of Powers, -- Appendix 'D', Department Powers 13 -- Rly. Deptt Note 2 under which the General Manager as head of the Department was authorised to delegate such of his powers as was considered necessary or expedient to other Railway Officers with certain exceptions and although no order of the General Manager delegating such powers to the Chief Auditor was brought to the notice of the Special Judge, yet he drew a presumption under Section 114 of the Evidence Act that the powers were delegated to the Chief Auditor. The Special Judge then referred to the Government of India, Ministry of Railways (Railway Board) express letter No. ES 51 A. P. 1/3 SBJR and C (Pt), New Delhi, dated 24th April, 1952, providing for equation of posts of the former Bikaner Railway and concluded that the Chief Auditor of the former Bikaner Railway was equated with the post of a Senior Scale Officer of the Northern Railway. Then relying upon Circular No. 3 letter No. 280 E 8/PIII dated 16-11-1959 and Discipline and Appeal Rules for Non-Gazetted Railway Servants, he came to the conclusion that the Divisional Engineer Shri Suresh Chander (PW/11), who was a Senior Scale Officer, was competent to remove the appellant and, therefore, the sanction accorded by him for the prosecution of the appellant was a valid one.
8. Mr. Joshi has Very seriously questioned the mode adopted by the Special Judge for determining the appointing authority in the present case, and contended that in the appellant's case the General Manager alone is the appointing and consequently the removing authority.
9. Examining this point, it will be proper to refer to Rule 19 of the Discipline and Appeal Rules for Non-Gazetted Railway Servants which prescribes the authority competent to impose the penalty of dismissal. Note (c), which is relevant for our purposes, reads as follows:
'The appointing authority in the case of staff of Bikaner and Jodhpur, ex. State Railways should be deemed to be the same as in the case of staff of the same category on Indian Government Railways as no formal orders of appointment were issued to the staff at the time of integration of those Ex. State Railways with the Indian Government Railways.'
The note appears to have been inserted on the authority of the Railway Board's letter No. ES51TR4/1 dated 14-12-52. It will be useful to point out at this stage that with the integration of the Bikaner State Railway with the Indian Northern Railway the Union of India acquired ownership and control over the former Bikaner Railway and became the new employer. The then existing employees of the Bikaner Railway could not automatically become employees of the new employer and their services could be continued only by proper orders absorbing them on the Northern Railway. In view of the large number of the employees the Railway Administration did not think it necessary to issue separate orders for their absorption and appointment on the Northern Railway and provided generally for their absorption. For various purposes provision had to be made for the declaration of the appointing authority with regard to this class of employees and this was done by means of the above note. The note makes it abundantly clear that the appointing authority with regard to the employees of the former Bikaner State Railway will be the authority of the Northern Railway who was then competent to make similar appointments. The Administration did not appear to have approved of the idea of making references to the initial appointing authority of the former Railway in connection with the future proceedings, disciplinary or otherwise, in respect of these employees. Thus, there can be no doubt that in determining the appointing authority for disciplinary purposes, one must refer only to the above note and the question as to who initially appointed the employee concerned at the time of the Bikaner Railway Management, is wholly irrelevant and immaterial.
10. The crucial question which then emerges for determination is as to which authority of the Northern Railway was competent to appoint the employees of the type of the appellant on 14-4-52? The answer is furnished by Rule 134 of the Indian Railway Establishment Code, ''Volume I.' This rule, in so far as relevant for our purposes, may be quoted as follows:
'Theauthorities competent to make first appointments to non-gazetted posts in theoffices detailed below shall be as shown against each--
(c) IndianRailways and other Railway Administrators e.g. Chittranjan Locomotive Works,Integral Coach Factory, etc.
TheGeneral Manager, Chief Administrative Officer or lower authority to whom hemay delegate the power '
The primary appointing authorities are thus, the General Manager and the Chief Administrative officer although they are competent to delegate powers to the lower authorities.
11. Mr. Joshi's contention in this connection which has to be accepted in the absence of any contradiction or rebuttal by the State in spite of abundant opportunity, is that upto 14th April, 1952, there was no delegation of authority by the General Manager to any lower authority and that it was only on 16th April, 1952 that the General Manager delegated authority to the Divisional Superintendents of the various divisions, including the Bikaner division, but the Divisional Engineer in the Bikaner Division was not at any stage delegated any such power. Consequently, the appointing authority in the present case was the General Manager of the Northern Railway and, therefore the General Manager alone was competent to sanction his prosecution. His further argument is that even assuming that the delegation of powers to the Divisional Superintendent under letter dated 16-4-1952 of the Railway Board could operate retrospectively, still the Divisional Engineer was not at all competent to sanction his prosecution as he was neither the authority which appointed the appellant nor could he be treated as the appointing authority.
12. In my opinion, there can be no doubt that Rule 19 of the Discipline and Appeal Rules for Non-gazetted Railway Servants, note (c) read with Rule 134 of the Indian Railway Establishment Code Volume I lead to only one conclusion that the appointing authority in the case of the appellant and similar employees of the former Bikaner Railway is the General Manager, Northern Railway, and the Special Judge was not at all justified in making references to the initial appointing authority in the former Bikaner Railway and determining the authority by referring to the formula of the equation of posts.
13. The Special Judge has in this connection relied upon circular No. 3, letter No. 280 E 8/PIII dated 16-11-59 providing for the delegation of the powers in regard to imposition of penalties on Railway servants and Rules 2, 3 and 4 of the Discipline and Appeal Rules for Non-Gazetted Railway Servants, in coming to the conclusion that a Senior Scale Officer was competent to impose penalty of removal.
14. It is true that the said circular and the rules have provided for the delegation of the powers to order removal on the District Officers, including the Divisional Engineers, but in my judgment this delegation cannot be availed of to justify the sanction by the Divisional Engineer in the present case. Earlier, I have already recorded conclusion that the appointing authority in the case of the appellant is the General Manager. Now in determining as to who can be considered competent to remove a Government servant, the requirements of Article 311 of the Constitution must be given due consideration Section 6 of the Prevention of Corruption Act must be interpreted in the light of the requirements of Article 311 of the Constitution. One important requirement of the Constitution is that the authority to dismiss or remove should not be one subordinate in rank to that by which the Government servant was appointed and the principle appears to be that it is the factum of the appointment of the civil servant who claims the guarantee that must be taken into consideration. It is well settled law that where an authority higher than the one entitled under the statutory rules to order an appointment, in fact orders a valid appointment it is the factum of that appointment that controls the scope of the guarantee conferred by Article 311(i) 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 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 Article 311(i) of the Constitution. Reference may be made in this connection to Somasundaram v. State of Madras, AIR 1956 Mad 419. In the present case the authority entitled to appoint was General Manager and the appointment was also made by him. Consequently, on a consideration of the combined effect of Section 6 of the Prevention of Corruption Act and Article 311 of the Constitution, the General Manager alone could validly sanction the appellant's prosecution. It may also be pointed out that Clause (c) of Rule 1705 (Page 1706 of the Establishment Code, Vol. 1 of 1951), which reads as follows, embodies the same principle:--
'No railway servant shall be removed ordismissed by an authority lower than that by whichno was appointed to the post held by him substantively.'
15. The specific question whether the power to impose penalty can be delegated to an authority lower than that which is entitled to make appointment or which in fact made appointment, came up for consideration in Mahadev Prasad v. S.N. Chatterjee, AIR 1954 Pat 285 in which Ramaswami, J. who decided it in the negative, made the following observations:--
'If the argument of the Government Advocate is correct, either the Legislature or the Governor or Rajpramukh may enact a rule under Article 309 vesting power of dismissal in a subordinate authority, an authority subordinate in rank to the authority which had appointed the civil servant, and the constitutional protection contained in Article 311 could be wiped out and destroyed by the exercise of the power conferred under Article 309. That is surely not a correct method of interpretation of Article 311.'
The principle adopted in this case as also one adopted in AIR 1956 Mad 419 were followed in State of Kerala v. Madhavan, AIR 1962 Ker 50. I entirely agree with the law laid down in these cases and hold that the circular and the rules relied upon cannot be interpreted to justify District Officers, who are not entitled to make appointments, to remove Railway servants subordinate to them or to sanction their prosecution. It will be fair to interpret these rules as laying down that the powers imposing penalty of dismissal or removal delegated in general terms are exercisable only on an existence of delegation of the power to appoint the Government servant sought to be dismissed or removed.
16. In these circumstances, the sanction for the prosecution of the appellant is not valid in law and the prosecution of the appellant is unauthorised. That being so, the entire proceedings are bad in law and have to be quashed.
17. I, accordingly, accept the appeal, set aside the conviction and sentence of the appellant and quash all proceedings. The accused is on bail and need not surrender.