FOUR ARTICLES ON SECTION 197, CRIMINAL PROCEDURE CODE,1973

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : THE ANALOGIES OF “GOVERNMENT SERVANT”, “PUBLIC SERVANT” AND “SANCTION TO PROSECUTE UNDER LABOUR LAWS” AND IMMUNITY AVAILABLE TO THEM UNDER SECTION 197 OF THE CODE OF CRIMINAL PROCEDURE, 1973 : AN ANALYTICAL APPROACH : PART - I

AJAYA KUMAR SAMANTARAY,CENTRAL LABOUR SERVICE, GOVT OF INDIA,MINISTRY OF LABOUR & EMPLOYMENT,e- mail : [email protected]

PRELUDE : The esteemed readers of this journal are aware of the fact that it has been my sincere endeavour to pen articles on contemporary issues. I have penned some articles which have been carved out from mutual discussion among colleagues and with professionals. In the year 2001 I had penned few articles on the subject “Prosecution under Labour Laws” with reference to Section 197 of Criminal Procedure Code. Those articles appeared in all leading journals. Recently, I received the off-set copy of the journal section of Labour and Industrial Cases, July, 2010 issue in September 2011. At Page 134 of Journal Section my article, “Government Servant”, “Public Servant” and “Sanction to Prosecute” has appeared. That article was penned by me in the year 2001. In the present sequel I intend to write 4 articles from Part I to IV out of which 2 would be on two different case-laws of the Hon’ble Supreme Court.

         At the very outset I would like to share my own experience in Naval Dockyard, Mumbai and also my experience as Assistant Labour Commissioner (Central), Bangalore from May 2001 to June 2005.

01.    NAVAL DOCKYARD, MUMBAI : Naval Dockyard , Mumbai has a Housing Colony at Kanjur Marg (W), Mumbai which is called Naval Civilian Housing Colony. The colony, for the purpose of security and watch and ward, deploys security guards from private security agencies. In the year 2006-07 an Inspector from the Private Security Guard Board, Thane inspected the establishment and launched prosecution against the then Admiral Superintendent and the Assistant Manager (Industrial Relations and Welfare) as it was alleged that the above officers violated certain provisions of Private Security Act enacted by Govt. of Maharashtra. Both the officers were issued with summons from the Court. At that point of time one, Captain (IN) Virendra Singh Marya the Dy. General Manager (Personnel and Administration) was heading the P&A Division, who happened to be the over all In-Charge of the colony. Captain VS Marya, in his wisdom, referred the case to me for legal opinion as I am the Legal Advisor of Naval Dockyard as well as Headquarters, Western Naval Command, Mumbai. When the case file came to me I opined that since the Admiral Superintendent and the Assistant Manager (IRW) were commissioned officer and government servant respectively, prior approval of the Central Government was necessary under Section 197 (2) of Criminal Procedure Code. Since both the officers were prosecuted without obtaining sanction, I advised to file a petition under Section 482 of Criminal Procedure Code in the High Court praying for quashing the proceedings pending before the learned Magistrate. However, as per the advice of the Central Government Counsel, an appeal was filed in the Court of Sessions Judge and the proceedings against the above officers were quashed by the learned Sessions Judge.

02.    DISCUSSION AMONG COLLEAGUES IN 2001 :

         In the year, 2001 (August 2001), I had been to V. V. Giri National Labour Institute, Noida to attend a training programme on trade union verification. During the course of interaction on prosecution under labour laws S/Shri Anjan Chakraborty, the then Assistant Labour Commissioner (Central), Guwahati, Gopal Majumdar, the then Assistant Labour Commissioner (Central), Silchar and Shri T. Ramesh, the then Assistant Labour Commissioner (Central), Vijayawada asked me about the concepts of “Public Servant”, “Government Servant” and “Sanction to Prosecute” under labour laws. They also wanted to know as to who are the officers, enjoying immunity under Section 197 of Criminal Procedure Code. Also prior to that when I joined as ALC (C), Bangalore in May 2001, the then Labour Enforcement Officer (Central), Chitradurga, Late Shri M.D. Srikantachary asked certain clarifications on the concept, “public servant”. His specific query being that whether General Manager Telecom, Bharat Sanchar Nigam Ltd is a public servant enjoying immunity under Section 197 of the Criminal Procedure Code? On return from training from VV Giri National Labour Institute, Noida, in September 2001 my colleague Shri Ramesh Thodati, the then Assistant Labour Commissioner (Central), Vijayawada rang me up one day at night 10 ‘0’ clock and enquired as to whether the General Manager, National Highway Authority of India is a public servant enjoying immunity under Section 197 of Code of Criminal Procedure? I replied to him that the General Manager, National Highway Authority of India is no doubt a public servant but he does not enjoy immunity under Section 197 of Code of Criminal Procedure. The esteemed readers of this journal may feel perturbed……...as to what this man is telling………..a public servant does not enjoy immunity under Section 197 of the Code of Criminal Procedure!!!             

         On the basis of what have been discussed hereinbefore, what I feel being that still there persist certain doubts in the minds of the Inspector/Prosecutors/Officers on the analogy of Public Servants and their immunity under Section 197 of Code of Criminal Procedure. In order to remove the doubts let us discuss the terminologies of “Government Servant” and “Public Servant” as explained under Sections 14 and 21 of Indian Penal Code, 1860 respectively:

GOVERNMENT SERVANT

         The words “Servant of Government” has been defined under Section 14 of the Indian Penal Code, 1860 which reads as follows :

“The words “Servant of Government” denote any officer or servant continued, appointed or employed by or under the authority of Government”. 

PUBLIC SERVANT

         The words “Public Servant” have not been defined anywhere in Indian Penal Code, 1860. Section 21 of Indian Penal Code gives a description of the terms “Public Servant” as follows : 

Section 21 : The words “Public Servant” denote a person falling under any of the descriptions hereinafter following, namely :

First – [ Repealed by the Adaptation of Laws Order, 1950]

Second – Every Commissioner Officer in the Military, Naval or Air Forces of India;

Third – Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

Forth – Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties; 

Fifth – Every juryman, assessor, or member of a panchayat assisting a Court of Justice or Public Servant;

Sixth – Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh – Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eight – Every officer of the Government whose duty it is, as such officer to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth – Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;

Tenth – Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh – Every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Twelfth – Every person –

(a)    in the services of pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b)    in the service or pay of local authority, a corporation established by or under a central, provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956.

ILLUSTRATION

A Municipal Commissioner is a Public Servant

Explanation 1 -  Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 2 -  Wherever the words “Public Servant” occur, they  shall be understood of every person who is in actual possession of the situation of a Public Servant, whatever legal defect there may be in his right to hold that situation.

Explanation 3 - The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

VIEWS OF THE HON’BLE SUPREME COURT ON “PUBLIC SERVANT” – The Hon’ble Supreme Court of India in the case of Ramesh Balakrishna Kulkarni vrs. State of Maharashtra (1985 SC 1655 : 1985 – SCR Suppl (2) 345 : 1985 SCC (3) 606 : 1985 SCALE (2) 254) held as follows :

“A public servant is an authority who must be appointed by the Government or Semi-Government body and should be in the pay and salary of the same. So a person like a Municipal Councillor who does not own his appointment to any Government authority is not a Public Servant. He is elected by the people and functions undeterred by the commands or edicts of a Government authority.” [31 July 1985]

SECTION 197 OF CRIMINAL PROCEDURE CODE, 1973

This section is very important which describes the procedures to prosecute “Servants of Government”. If Labour Laws are found to be violated by a Government Servant, the inspector/prosecutor cannot directly prosecute such Government Servants in the Court of Law. To prosecute government servants, sanction of the “appropriate government” is necessary. This Section read as follows :

Section 197

1)      When any person who is or was a Judge or Magistrate or a Public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been  committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction –

(a)    in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the  Union, of the Central Government; (italicized by the author for emphasis and guidance)

 (b)    in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection  with  the affairs of a State, of the State Government. (italicized by the author for emphasis & guidance) 

2)      No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

3)      The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

4)      The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which the prosecution of such Judge, Magistrate or Public Servant is to be conducted, and may specify the Court before which the trial is to be held.

INTERPRETATION

         Section 197 of Criminal Procedure Code, 1973 provides immunity to Public Servants as mentioned under Clause (a) and (b) of Sub-Section (1). It is a safeguard to the officers against irritating and vexatious proceedings against Judges, Magistrates, Public Servants; not removable from their offices without sanction of the Government. Members of Armed Forces are also covered under this Section. It may please be noted very carefully that “the privilege of immunity from prosecution without sanction only extends to acts which can be shown to be in discharge of public (official) duty” i.e., if a Public Servant does some wrongs not connected to his official duties, immunity under Section 197 is not available to him/her.

WHEN A JUDGE / MAGISTRATE CAN BE PROSECUTED?

         There was a case before the Supreme Court. An advocate complained against a Magistrate to the District Judge. The District Judge called for explanation of the Magistrate. The Magistrate in reply wrote to the District Judge that the advocate who has complained was “a rowdy”, “a big gambler” and “a mischievous element”. For such remarks the advocate prosecuted the Magistrate. The case went up to the Supreme Court. The Hon’ble Supreme Court held that “a criminal complaint against the Magistrate by the Advocate did not require sanction for prosecution under Section 197 of Cr. P.C.” [B.S. Sambhu vs. K.T. Krishnaswamy : AIR 1983 SC 64]. From this citation, we get an idea that personal accusations, calling names and using disparaging remarks even by a Magistrate is prosecutable without sanction under Section 197 of Cr. P.C. If a Magistrate shouts at an advocate or admonishes him in the Court in connection with Court proceedings, such act is only covered under Section 197 of Cr. P.C. But in any case, the language should be temporal; the language of admonition may be forceful but should not be obscene or disparaging against a person.

PUBLIC SERVANT & GOVERNMENT SERVANT : A COMPARISON

         We can have a look at Section 197 of Criminal Procedure Code, 1973 and Section 14 and 21 of Indian Penal Code, 1960. Section 197 of Criminal Procedure Code, 1973 describes the procedure to prosecute a public servant, Section 14 of Indian Penal Code, 1860 defines “a servant of the Government” and Section 21 describes the classes of public servant. This comparison establishes that “all public servants are not government servants” but “all government servants are public servant”. The term/analogy “public servant” is a ‘genus’ and the term, Government Servant is a ‘specie’. The immunity under Section 197 is available only to the ‘specie’, the Government Servant and not to the whole ‘genus’, “public Servant”.

WHO ARE THE SPECIES ENJOYING IMMUNITY UNDER SECTION 197 OF CRIMINAL PROCEDURE CODE, 1973?

         It would be quite pertinent to refer to Section 197 (1) (a) and (b) of Criminal Procedure Code, 1973. Immunity is available only to these “species”.

WHAT IS THE POSITION IN RESPECT OF THE OFFICERS / EMPLOYEES OF STATUTORY BODIES AND GOVERNMENT COMPANIES?

         Employees of statutory bodies like LIC of India, National Highways Authority of India, Universities, Railway Board and Government Companies are not covered under Section 197 of Criminal Procedure Code, 1973. Why?

         LIC of India : It has been created under LIC Act, 1956 which is a body subordinate to Government of India. It does not discharge any duty which comes under the clause “affairs of the Union or State Government”. LIC is engaged in its own affairs. Its officers are remunerated from the budget of LIC of India, not from the Consolidated Fund of India.

         Railways :  All the officers of “Indian Railways” work under the AUTHORITY of Railway Board, which is a body constituted under Section 2 of Indian Railways Board Act, 1905. It would be quite pertinent to reproduce Section 2 of Indian Railways Board Act, 1905 which reads as under :

Section 2 – Investment of Railway Board with powers under Indian Railways Act, 1890 – The Central Government may by notification in the Official Gazette invest the Railway Board either absolutely or subject to conditions :

a)      with all or any of the powers or functions of the Central Government under the         Indian Railways Act, 1890 with respect to all or any railways and 

b)     with the power of the officer referred to in Section 47 of the said Act to  make general rules for railway administration for railways administered by the Government.

The above section brings out the following elements :

1)      That the Railway Board has been constituted by the Government by virtue   of a Gazette Notification which is a “Law” under Article 13 (3) (a) of the Constitution of India.

2)      That, it is a body corporate (constituted under Section 2 of  Railways Board  Act, 1905), an artificial person having perpetual succession and a common seal which can sue and be sued in its own name.

3)      That, it is a body which is subordinate to Government of India and comes under “other Authorities” as contemplated under Article 12 of the Constitution of India.

4)      That, it is not engaged in the affairs of the Union of India or in the affairs of any State of India.

5)      That, it is a commercial undertaking, engaged in its own affairs.

6)      That, Railways employees get their salary from Railway budget which is placed before the Parliament prior to presentation of General Budget.

7)      That the salary, emoluments, pension etc., are not charged to Consolidated Fund of India. 

8)      That Railway Board has only been delegated with the power is a delegatee and Government of India is the Authority which has delegated the power. As such,Railway Board is an Authority which is subordinate to Government of India.  This being so, Officers of Railways are not considered as Servants of     Government of India and therefore, they do not enjoy immunity under Section  197 of Criminal procedure Code.

         There were two judgments from the Hon’ble High Court of Karnataka that for prosecuting General Manager of Wheel & Axle Plant, Bangalore, sanction of Railways Board is required. In another judgment, it was held that “for prosecuting a Senior Divisional Engineer, Southern Railway, Bangalore, sanction from Appointing Authority is required”. This is contrary to a three – Judge Bench judgment of the Hon’ble Supreme Court of India in the case of “S.S. Dhanoa vs. Municipal Corporation of Delhi” (1981 – II – LLJ 231). Before the High Court of Karnataka, the petitioner, Shri. Pradeep Kumar Gaur agitated that he is a member of IRSE and has been appointed by the President of India. For prosecuting him sanction from the Appointing Authority is required under Section 197 of Criminal Procedure Code, 1973. The Hon’ble High Court accepted the contention and allowed the writ petition. In Indian Railways Act, 1989 the term “Railways Servant” has been used everywhere. Of course, Shri. Pradeep Kumar Gaur was appointed by the President of India but his services were placed at the disposal of a Subordinate Authority i.e. the Railway Board which is an employing authority, not appointing authority and as such he became a Railway Servant and was engaged in the affairs of Indian Railways in Bangalore. According to Section 21 of Indian Penal Code, 1860, an officer / employee of a statutory body or a Government company are Public Servants. But according to Section 197 (1) (a) of Criminal Procedure Code, 1973, Shri. Pradeep Kumar Gaur was not engaged in the affairs of the Union of India.

         An IAS Officer’s prosecution was upheld by the Hon’ble Supreme Court of India (1981-II-LLJ-231 supra). The facts of the case is as follows :

         One Shri. S. S. Dhanoa, an IAS Officer was sent to Super Bazaar, Delhi, as General Manager, on deputation. The Super Bazaar was a cooperative society registered under Bombay Cooperative Societies Act, 1925. On 10.10.1973, a Food Inspector purchased a bottle of honey which was tested / analyzed by a Public analyst. The test / analysis revealed that the honey was adulterated. Following the complaint, Municipal Corporation of Delhi filed a complaint against Shri. S. S. Dhanoa, IAS, the General manager of Super Bazaar for an offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. He was summoned by the Hon’ble Metropolitan Magistrate, Delhi. He appeared before him and raised certain preliminary objections that his prosecution is barred by Section 197 of Criminal Procedure Code, 1973 for want of Sanction of the Central Government since the act complained of was nothing but an act done by him in the discharge of his duties as a Public Servant. The Magistrate rejected the contention saying that the case of Shri Dhanoa did not fall within the meaning of clause Twelfth of Section 21 of Indian penal Code. Then Shri Dhanoa went on an appeal to the Hon’ble High Court of Delhi which confirmed the view of the learned Metropolitan Magistrate. Then he went on appeal to the Hon’ble Supreme Court. The Supreme Court discussed Section 21, Clause Twelfth (a) (b) of I. P. C. 1860, and Section 197 (1) (a) of Criminal Procedure Code, 1973. The relevant portion of the judgment which is worth noting is reproduced as follows :

“The Super Bazaar at Connaught Place and at various places are run by the Cooperative Stores Limited under the control of the Ministry of Agriculture (Department of Cooperation). The incumbents of supervisory and other key posts including that of the General Manager cannot be appointed or removed without the prior approval of the Central Government. The whole purpose of Clause 6 of the Agreement (an agreement between Government of India and the Cooperative Society ; clause added by the author for clear understanding) in the matter of appointment of General Manager and other incumbents holding key posts is to safeguard the interests of the Central Government and, therefore, the appellant (Shri S. S. Dhanoa, IAS) was not appointed with the affairs of the Union within the meaning of Section 197 of the Code of Criminal Procedure, 1973.”

         Thus the Civil Appeal filed by Shri. Dhanoa, IAS, was dismissed and the prosecution was upheld.

         Applying this analogy and the observation of the Hon’ble Supreme Court of India one can now come to the conclusion that “all Public Servants as enumerated under Section 21 of IPC are not immune from prosecution under Section 197 of Cr. P. C.” Likewise, the officers/employees of Central Public Sector Undertakings, Statutory Corporations (LIC, IAAI, NHAI, NDDB, NIMHANS, NIUM, etc.) and Central Autonomous Societies are no doubt Public Servants within the meaning of clause Twelfth (a) and (b) of Indian Penal Code, 1860 but they do not enjoy immunity under Section 197 of Criminal Procedure Code, 1973.

BHARAT SANCHAR NIGAM LIMITED : WHAT IS THE STATUS ?

         The Department of Telecom Services, Government of India, got converted into a “Nigam” (Corporation) w.e.f. 1.10.2000. By this conversion, the department became a Central Public Sector Undertaking under Section 617 of Companies Act, 1956 and the employees became the employees of the Corporation, engaged in the affairs of BSNL. They get their salary, emoluments from the budget of the Corporation. Now, we cannot say that they are engaged in the affairs of the Union of India. The employees of BSNL are now out of the purview of Section 197 and for prosecuting them, sanction under the Code of Cr. P. C. is not required. One colleague told me that there is an argument that the employees of BSNL negotiated with the government that their pension and retirement benefit shall be paid from Consolidated Fund of India. For this reason they could be termed to be enjoying immunity under Section 197 of Criminal Procedure Code, 1973. Here, there could be two arguments :

1)      Drawing pension or retirement dues has been agreed to by the Government for the limited purpose of social security at the time or after retirement. This arrangement has been made to safeguard the individual interest of the employees. Moreover, it has not been mentioned in the Criminal Procedure Code, 1973 that if a person draws his pension from Consolidated Fund of India, he/she is protected. There are lakhs of pensioners drawing pension from the Consolidated Fund of India. Can we say that all of them are covered under Section 197 of Criminal Procedure Code, 1973? The answer to this question would certainly be an emphatic “NO”.

2)      “Pay” does not include terminal dues like gratuity, pension and insurance amount. Pension and gratuity are paid on termination of services, not during services. The definition (meaning) of “Pay”, “Pension” and “Gratuity” are totally different. So, terminal dues cannot be equated to ‘Pay”.

“Public Servant” and Government Servant – Test to be applied

         For determining the fact that whether any person is immune from prosecution under Section 197 of Criminal procedure Code, 1973, the following test may be applied :

A.    Nature of his employment.

B.     Appointing Authority, Controlling Authority at the time of commissions of offence.

C.     Nature/ Status of the Organisation.

D.     Nature of work of the Officer at the time of commission of offence.

E.     Source from which “Pay” is drawn.

F.     Affairs of the Union of India or a State – Whether the Officer is engaged in any such affairs.

G.     Employing Authority which is different from Appointing Authority.

H.     If the organization is a statutory body, created by a statute, the concerned Act need be referred to.

DISCLAIMER

         The views expressed in this article are of the exclusively the personal views of the author and should not be substituted for professional opinion / advice. The author has simply made an attempt to highlight certain issues. The article is left for a debate among the esteemed readers of this journal. The author shall be highly grateful to receive comments, views and criticisms from the learned readers of this esteemed journal.

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SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : THE PROVINCE OF “PUBLIC SERVANT” REVISITED – DOES A “RAILWAY OFFICER” ENJOY IMMUNITY UNDER SECTION 197 OF CODE OF CRIMINAL PROCEDURE, 1973? : PART – II

  AJAYA KUMAR SAMANTARAY, CENTRAL LABOUR SERVICE 

PRELUDE : The esteemed readers of this journal may be aware that I have penned an article in the year 2001, which was published in some reputed journals, on the analogies of “Public Servant”, “Government Servant” and the “immunity” enjoyed by them under Section 197 of the Code of Criminal Procedure, 1973. I am extremely happy to say that the said article has been accepted very well by the readers of this journal. One, Dr. Pon. Lakshmanan, Director, Hindustan Institute of Human Resources Development, Chennai, has sent a letter dated 16.03.2002 on the article which is reproduced verbatim for the information of the esteemed readers:   

Dear Mr. Samantaray,

         Received your letter dated 12.03.02 with the enclosure, nay treasure. In a lucid manner, you have made even a man, bereft of legal background understand the difference between a public servant and a Government servant and also the difference between a Government servant discharging regal function and a Government servant posted to a Public Sector Undertaking, sorry Super Bazaar vis-à-vis their immunity or otherwise under Section 197 of the Criminal Procedure Code.

         I think the Government should circulate your articles to all H.O.Ds in the Government and in Public Sector Undertakings.

         I am sure, you are in store for much more laurels.

         May God bless you.

      Sd/-Pon.Lakshmanan, Retired Additional Labour Commissioner, Govt. of Tamilnadu

         Likewise, several readers of this Journal have sent letters of appreciation. It is not possible to reproduce all the letters due to the constraint of space. However, I express my deep gratitude to the numerous readers of this journal who have taken the pain of writing to me appreciating my articles. It is due to their goodness and greatness that I have been able to write more and more.

         In my previous article, I had given a reference to the case of S.S. Dhanoa vs. Municipal Corporation of Delhi and also about Pradeep Gaur vs. Labour Enforcement Officer (Central), Bangalore. In the article, I had opined that an IAS Officer deputed to Super Bazaar and a Railway Officer, though are Public Servants, within the meaning of Section 21 of the Indian Penal Code, 1860, do not enjoy immunity under Section 197 of the Criminal Procedure Code, 1973. In order to substantiate my view, I had cited the case of S.S. Dhanoa vs. Municipal Corporation of Delhi[1981 (43) FLR 272 (SC) : 1950-83 (4) SCLJ 14 : AIR 1981 SC 1395 : 1981 SCR (3) 864 : 1981 SCC (3) 431 : 1981 SCALE (1) 919]. In Part IV, I am going to discuss the case law in its entirety for the benefit of the esteemed readers. On 9th February 2001, a learned Single Judge of the High Court of Karnataka has delivered a judgment in Criminal Petition No. 590/99/c/w 591/99 to the effect that “for prosecuting a Railway Officer, sanction from Appointing Authority is required”. This has prompted me to write the present article. However, before giving my opinion I would like to reproduce the judgment of the Hon’ble High Court of Karnataka verbatim, which is as follows: 

“These petitions are filed under Section 482 Cr.P.C. by Accused No. 1 (Pradeep Gaur, Sr. Divisional Engineer, Southern Railway, Bangalore) in C. C. 6201/98 and 6202/98 on the file of III Addl. C. M. M., Bangalore, seeking for quashing the above proceedings pending against him for the offence under Section 24 of the Contract Labour (Regulation & Abolition) Act, 1970 (for short the ‘Act’).

2.      In both these petitions, the Petitioner contended that he is working as Senior Divisional Engineer at Southern Railway, Bangalore Division, Bangalore, since from 27.1.1998 and he belongs to Group ‘A’ category of Indian Railway Service of Engineers Cadre (IRSE – C) and he has been appointed by the President of India for rendering services in the Indian Railways. He, therefore, contended that the above complaints filed by the respondent herein against him under Section 24 of the Act are not maintainable in the absence of a sanction order obtained from the President of India to prosecute him for the above said offences. In support of his contention, he has relied upon a decision of the Supreme Court reported in 1956 SCR 182 in a case (RAM KISHEN vrs. STATE OF DELHI) wherein it was held that “as a result of the above amendment of Section 137 of the Indian Railways Act (1955) all the railway servants are public servants generally and for the limited purposes of Sections 161 to 172 and Section 409 IPC. It is therefore, clear from the above decision that the petitioner is a public servant within the meaning of Section 21 IPC and he is removable from the office only by the President of India. So without obtaining sanction under Sec. 197 of Cr. P. C. petitioner is not liable to be prosecuted and since no sanction has been obtained by the respondent from the appointing authority namely, from the President of India, to prosecute the petitioner for the above referred offences in the above case, I find that the above proceedings are liable to be quashed against the petitioner.

3.      For the above reasons, both these petitions are allowed and the above proceedings in CC 6201/98 and CC 6202/98 pending on the file of the Court of III Addl. CMM, Bangalore City, are hereby quashed. However, liberty is reserved to the respondent to prosecute the petitioner for the above contravention after obtaining the sanction from the appointing authority as required under the provisions of Section 197 Cr. P.C.”

         This is what is the whole text of the judgment. Going by the judgment, it is quite pertinent to reproduce Section 137 of the Indian Railways Act, 1890 (at present Section 188 of the Railways Act, 1989) which reads as follows :

Section 188 : Railway Servants to be Public Servant for the purposes of Chapter IX and Section 409 of the Indian Penal Code –

(1) Any railway servant, who is not a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860), shall be deemed to be a Public Servant for the purpose of Chapter IX and Section 409 of that Code.

(2) In the definition of “legal remuneration” in Section 161 of the Indian Penal Code (45 of 1860), the word “Government” shall for the purpose of Sub – Section (1), be deemed to include any employer of a railway servant as such.

         While analyzing the above Section it would be quite pertinent to have a bird’s eye view on Chapter IX of the Indian Penal Code, 1860 which is as follows :

Chapter IX of Indian Penal Code, 1860, describes “OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS”. This chapter has 11 Section which are as follows :

SECTIONS                   OFFENCES

161                                Public Servant taking gratification other than legal

remuneration in respect of an official act.

162      Taking gratification in order, by corrupt or illegal means,

to influence public servants.  

163                           Taking gratification for exercise of personal influence  with Public

Servant

164                     Punishment for abetment by Public servant of offences

                         defined in Section 162 and 163.

165                 Public Servant obtaining valuable thing, without consideration, from

person concerned in proceeding for business transacted by such public

servant.

165A           Punishment for abetment of offences defined in Section

161 of Section 165.      

166         Public servant disobeying law, with intent to cause

injury to any person.

167                                Public Servant framing incorrect document with

                                     intent to cause injury.

168                                Public Servant unlawfully engaging in trade.

169                                Public Servant unlawfully buying or bidding for

                                     property.

170                                Personating a Public Servant.

171                                Wearing garb or carrying token used by Public

Servant with fraudulent intent.

Section 409 of Indian Penal Code, 1860

         This Section comes under Chapter XVII, of OF OFFENCES AGAINST PROPERTY and sub – chapter of Criminal Breach of Trust. This Section is reproduced verbatim which reads as follows :

409 – Criminal breach of trust by Public servants, or by banker, merchant or agent : whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In my previous article I had reproduced Section 19 and 21 of the Indian Penal Code, 1860 which described “Servant of Government” and a “Public Servant”. Here, in this article, I intend to reproduce Section – 14 and description Eighth and Twelfth of Section 21 to give a clear insight to our esteemed and learned readers of this journal. The sections read as follows :

Section 14 of IPC, 1860

         “Servant of Government” : The words “Servant of Government” denote any officer or servant continued, appointed or employed in India by or under the authority of Government (Italics supplied for emphasis and clarity).

Section 21 of IPC, 1860

Eighth       Every officer of the Government whose duty it is, as such officer, to

prevent offences, to give information of offences, to bring offender to

justice, or by any other competent Public authority.

Twelfth      Every person –

                  (a)    In the service or pay of the Government or remunerated by fees or

commission for the performance of any public duty by the Government.

(b)    In the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).

         From the above analysis, we can see that a “Railway Servant” does not fall under description Eighth nor under description Twelfth (a) since he/she not in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government.

INTERPRETATION :   A Railway Servant is no doubt a Public Servant and the duties discharged by the Railway Servants are certainly public duties but for the discharge of such public duties the railway servants are not remunerated by Central Government. They are remunerated by Railway Board from the Railway Budget, not from the Consolidated Fund of India or Union Budget.

RAILWAY ADMINISTRATION

         In Railway Act, 1989, for administration, operation, maintenance and management of Railways the term “Railway Administration” has been used and the “term” has been defined under Section 2 (32) as follows :

Section 2 (32)

“Railway Administration” in relation to –

(a)    a Government railway means the General Manager of a Zonal Railway; and

(b)    a non – Government railway means the person who is the owner or lessee of the railway or the person working the railway under an agreement.

RAILWAY SERVANT

         The term “railway servant” has been defined under Section 2(34) of the Railways Act, 1989, as follows :

“railway servant” means any person employed by the Central Government or by a railway administration in connection with the services of railways.

INTERPRETATION

         If the above definition is examined we will find the word “employed” not “appointed”. If the above two terms are used in a cognate sense of “authority” we will find two terms viz., “Appointing Authority” and “Employing Authority”. The Posts of Secretary, Additional Secretary, Joint Secretary, Director, Deputy Secretary and Under Secretary and such other Officers and subordinate officers/staff working in Ministry of Railways are “Government Servants” as defined under Section 14 of Indian Penal Code, 1860 because they are appointed and employed by Government of India. The Central Government is both Appointing Authority and Employing Authority. Such Officers are engaged in the affairs of the Union of India.

         But the railway servants working under Railway Board are employed by Railway Board/Railway Administration. They are employed under the authority of Railway Administration. Some Class I Officers in Railways are appointed by Government of India but employed by Railway Board and work under the Authority of Railway Board. So as long as a Class I Officer works in Railways (Railways Administration/ Railway Board), he / she is not engaged in the affairs of the Union of India. In view of the same, he/she cannot enjoy immunity under Section 197 of the Code of Criminal Procedure, 1973

         A Five Judge strong Constitution bench of the Hon’ble Supreme Court of India in Criminal Appeal No. 44 of 1965 dealt with the case of Shukla (K. N.) vrs. Navnit Lal Manilal Bhatt and Others (1967 – II – LLJ – 261) and delivered a judgment on 15th December 1966 wherein it has been held as follows :

“the appellant [Shri Shukla (K.N.)] was appointed in an officiating capacity as Class I Officer by the Railway Board and not by the Central Government. It cannot be said, in the circumstances, that the appellant was one of those public officers who could be removed only by or with the sanction of the Central Government within the meaning of S. 197, Criminal Procedure Code. Sanction under S. 197 was not therefore, necessary for prosecuting such an officer for an offence alleged to have been committed.”

         In the above judgment, it was argued that “Railway Board” is part and parcel of Central Government and must be deemed to be “Central Government” for the purpose of Section 197 of the Criminal Procedure Code, 1973. In this regard the Appellant relied upon paras 201 & 205 of the Indian Railway General Code which read as under :

“The existing enactments regulating the construction and operation of railways in India are the Indian Tramways Act, 1886 and the Indian Railways Act of 1890 as amended from time to time. Subject to the provisions of these enactments, the executive authority in connection with the administration of railways, vests in the Central Government. In virtue of the delegation made under Section 2 of the Indian railways Board Act of 1905, all the functions and powers of the Central Government, under certain Sections of the Indian Railways Act, 1890 are exercised by the Railway Board.”

Paragraph 205 read as follows :

“The Railway Board is to function as Corporate body and as a Corporate body is responsible to advise the Ministry on all major question of railway policy. Major and policy issues are, therefore, to be submitted to the Ministry with the recommendation of the Board. Other may be submitted to the Ministry for his information or orders by individual members.”

         The Appellant had also relied on Section 2 of the Indian Railways Board Act, 1905 which describes Investment of Railway Board with powers under Indian Railways act, 1890 by the Central Government. It was also argued that the Railway Board is vested with the powers of Central Government in respect of administration of Railways and therefore it must be taken that the Railway Board itself is a part of Central Government. On this argument, the Hon’ble Supreme Court stated as follows:

“We are unable to accept this argument as correct. It is true that many important powers and functions of Central Government in respect of administration of the railways are exercised by the Railway Board, but it does not follow that the Railway Board is exercising those powers in their own right as part of the Central Government. On the other hand, S.2 of the Railway Board Act, 1905. itself indicates that the powers of the Railway Board are derived as a matter of delegation and the Railway Board is an entity which is separate from Central Government either absolutely or subject to conditions by notification by the Central Government. In other words, the Railway Board is a separate body which derives its power and authority, however, wide they may be, only because of delegation of powers from the Central Government in respect of administration of railways.”

         The judgment delivered by the Hon’ble High Court of Karnataka says that for prosecuting a Railway Servant, sanction from the Appointing Authority i.e. His Highness The President of India is required which is contrary to the provisions of Section 197 of the Criminal Procedure Code, 1973. The President of India is the Executive Head of the Union of India under whom Central Government works. The President is a separate entity (Article 52 of the Constitution) from the “Council of Ministers” to aid and advise the President (Article 74 of the Constitution). The President of India never accord sanction under Section 197 of Criminal Procedure Code, 1973. Section197(1) of Criminal Procedure Code, 1973 is reproduced below :

Section 197

         (1)    When any person who is or was a Judge or Magistrate or a Public servant not removable from his office save by or with the sanction of the Government (italicized by the author) is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -

         (a)    in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, of the Central government; (italicized by the author)

         The Criminal Law/Penal Statutes must receive strict construction. So, on analyzing the above provisions we get the following elements.

(a)    A Public Servant, Judge or Magistrate liable for prosecution must be removable from his office with the Sanction of the Government (not President or Governor as the case may be).

(b)    He must be employed (not appointed) in connection with the affairs of the Union.

         It may please be noted here that Code of Criminal Procedure 1973, is a procedural law dealing with crimes and penal laws. Penal law/statutes should receive strict construction. We cannot read Section 197 in isolation i.e. 197 (1) and (a). All the provisions must be read together which is called harmonious reading of the statute. S. 197 (1) (a) are complimentary like Tea and Sugar, Fountain Pen and Ink. For Sanction under 197 of Criminal Procedure Code, 1973 a person should be removable by Central Government from the post and at the same time, at the time of commission of offence, he must have been employed in connection with the affairs of the Union. Simultaneously, he/she must satisfy the description under Section 14 of Indian penal Code, 1860, read with Section 21, description Eighth and Twelfth (a). If any of the provisions is lacking, then for such a person sanction under Section 197 of Criminal Procedure Code, 1973 should not be required.

APPOINTMENT vrs. EMPLOYMENT

As far as my very little knowledge is concerned “Appointment” to a post is made once, not continuously i.e., appointment is a one time measure which is distinct from employment. Employment is a continuous measure. An appointee becomes an employee only when he joins the employment / service and continues in the employment. If an appointee (to whom an offer of appointment has been made for a particular employment) does not join the offered post, he does not become an employee in a particular employment. So from this angle the term “appointment” and “employment” must be distinguished.

DISCLAIMER

The views expressed in this article are the personal views of the author and must not be substituted for professional advice. The author leaves this article for debate, criticism and suggestions among the readers of this esteemed journal.

* * * * *                                                           e-mail: [email protected]

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : PROSECUTION OF PUBLIC SERVANTS AND IMMUNITY AVAILABLE TO THEM UNDER SECTION 197 CODE OF CRIMINAL PROCEDURE : WHETHER A RAILWAY OFFICER CAN GET SUCH IMMUNITY? : AN APEX JUDICIAL DICTUM : PART – III

AJAYA KUMAR SAMANTARAY, CENTRAL LABOUR SERVICE

PRELUDE : In Part I of this sequel I have discussed my own experience and given opinion on the basis of certain case – laws in response to the quarries made by my colleagues. In Part – II, I have discussed a High Court judgment pertaining to one Railway Officer who was a Divisional Works Engineer. In this write – up I intent to discuss the case of a Railway Officer who faced prosecution, approached the High Court unsuccessfully to quash the prosecution and also approached the Hon’ble Supreme Court and finally lost the case there.

THE CASE – LAW

K. N. SHUKLA vrs. NAVNEET LAL MANILAL BHATT & ANOTHER [1967 – II – LLJ – 261 : AIR 1967 SC 1331 : 1967 SCR (2) 290 : [1966] RD – SC 265] Date of Judgment : 15 Dec 1966

FACTS OF THE CASE

         On 14 March 1961 Shri. Navneet Lal Manilal Bhatt filed a complaint against Shri. K. N. Shukla, who, at that point of time was officiating in the post of Divisional Operating Superintendent, Western Railway, Rajkot. In the complaint it was alleged that Shri. KN Shukla had committed offences under Section 166, 167 and 182 Indian Penal Code. I think it would be in fairness and fitness of this write – up to mention the particulars of offences as laid down in Indian Penal Code. The offences under which Shri. Shukla was charged, fall under Chapters IX and X [OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS]. Let us outline the concerned sections which read as follows :

Section 166 : Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both. 

Section 167 : Whoever being a public servant, and being, as such public servant, charged with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 182 : Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant –

(a)        to do or omit anything which such public servant ought not to do or omit if the true state of facts representing which such information is given were known by him, or

(b)        to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Shri. K. N. Shukla objected before the trying Magistrate that the complaint under Section 182, Indian Penal Code by a private person was barred under Section 195 (1) (a) of the Code of Criminal Procedure and that as the alleged acts of the appellants (Shri KN Shukla) were said to be done in his official capacity and in discharge of his official duty and as he was a public servant not removable from his office save with the sanction of the Central Government, the complaint was not maintainable in the absence of sanction of Central Government under Section 197 Code of Criminal Procedure and the Magistrate was not competent to take cognizance of the offence under Sections 166 and 167, Indian Penal Code.

AUTHOR’S NOTE : Shri. K. N. Shukla argued that the complaint filed against him is barred under Section 195 (1) (a) of the Code of Criminal Procedure. I think it would be quite pertinent to outline the proviso of Section 195 (1) (a) which reads as follows:

Section 195 : Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence –

(1)    No Court shall lake cognizance -

(a)    (i) of any offence punishable under sections 172 to 188 (both

inclusive) of the Indian Penal Code, (45 of 1860) or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) any criminal conspiracy to commit such offence, except on the

complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

Objections overruled by the Magistrate and the consequential results

         The objections raised by Shri. K. N. Shukla were overruled by the learned Judicial Magistrate, First Class, Mehsana by his order dated 14th October 1961. Shri. Shukla took the matter in revision to the Sessions Judge of Mehsana who referred the matter to the High Court on 31st January, 1962. In Criminal Reference No. 14 of 1962 the High Court ordered that the complaint under Section 182, Indian Penal Code was bad being in contravention of the provision of Section 195, Criminal Procedure Code, but the High Court directed the trial court to decide in the first instance whether the appellant was not removable from his office save with the sanction of the Central Government. Thereafter the Judicial Magistrate, First Class, Mehsana, by his order dated February 28, 1963, held that the appellant was not removable from his office save with the sanction of the Central Government and the complaint should be rejected because there was no sanction granted under Section 197 of the Code of Criminal Procedure. The first respondent preferred a revision petition (No. 291) before the Sessions Judge of Mehsana who dismissed it and confirmed the order of the Judicial Magistrate, First Class, Mehsana. The first respondent took the matter in revision to the High Court in Criminal Revision Petition (No. 385 of 1963). By its order dated 29th July 1964 the Hon’ble High Court held that the appellant (K. N. Shukla) being an officiating Class I officer was removable by the Railway Board and no sanction of Central Government was necessary to prosecute the appellant as contemplated by Section 197 of the Criminal Procedure Code. The High Court accordingly directed that the case under Sections 166 and 167, Indian penal Code should proceed against the appellant.

CRIMINAL APPEAL TO THE SUPREME COURT

         Having felt aggrieved by the order of the High Court Shri. K. N. Shukla filed Criminal Appeal No. 44 of 1965. The question for determination before the Hon’ble Supreme Court was as follows :

“Whether the Appellant, Shri. KN Shukla, as on the date of complaint i.e. March 14, 1961, was a public servant who was not removable from his office save by or with the sanction of the Central Government within the meaning of Section 197 of the Criminal Procedure Code and, therefore, whether sanction of Central Government was necessary for prosecuting the appellant of the offence under Sections 166 and 167 of the Indian Penal Code?”

THE ADJUDICATION

         The learned Constitution Bench, while taking up the Criminal Appeal for adjudication stated that it is not in dispute that on the material date Shri. KN Shukla was officiating in the senior scale as Class I officer in the Transportation (Traffic and Commercial) Department of the Western Railway. It is also not in dispute that the appellant was holding a substantive post as Class II officer, though he was officiating as Class I officer on 14th March 1961. The question which was to be considered by the Hon’ble Supreme Court being that whether, on the material date, the appellant was not removable from his office save by the sanction of Central Government within the meaning of Section 197 of the Criminal Procedure Code under Section 3 (8) (b) of the General Clauses Act “Central Government” shall in relation to anything done or to be done after the commencement of the constitution, mean the President. Rule 1728 of discipline and Appeal Rules for Gazetted Officers (Indian Railway Establishment Code Vol I) reads as follows :

         The following penalties may, for good and sufficient reasons and as hereafter provided, be imposed upon members of the Railway Services, Class I and II, namely

(i)     Censure

(ii)    Withholding of increments or promotion, including stoppage at any efficiency bar.

(iii)   Reduction to a lower post or time scale or to a lower stage in a time – scale.

(iv)   Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

 (v)   Suspension

(vi)   Removal from the civil service of the Government which does not disqualify from future employment.

(vii)  Dismissal from the civil service of the Government which ordinarily disqualifies from future employment.

Reference to Rule 179

         The Hon’ble Supreme Court, after referring to Rule 1728 of Indian Railways Establishment Code, Vol, I, referred to Rule 1728 which was as follows :   

“Subject to the provisions of the rules in this section the President may impose any of the penalties specified in Rule 1728 on any person belonging to a Railway Service, Class I or II, and the authorities specified in Column 3 of schedule II appended to the rules in this chapter may impose the penalties specified in column 4 on the classes of railway servants shown in the column 2 of that schedule”

The relevant Part of Schedule II provides as follows :

Item No.    Name of Service            Punishing Authority     Penalties

    (1)                   (2)                                    (3)                        (4)

1.    Railway Services,Class I The Railway Board       In the case of persons  appointed to a Railway service Class I before 1st April 1937,    the penaltyspecified in Cl (i),

and in the case of

others the penalties

specified in clause (i) to

(v) of Rule 1728.

2.               Railway Service,                     - Do -                   penalties specified in

Class II                                                                Clause (i) to (vii) of

                                                                            Rule 1728

Rules 124 to 130 of the Indian Railway Establishment Code Vol 1 deal with recruitment and promotion to Gazetted posts. Rule 124 provides that all first appointments to a Railway Service, Class I shall be made by the President.

Rule 132 Provides that all first appointments to the Railway Services Class II shall be made by the Railway Board. The relevant Part of Rule 134 which deals with promotions is to the following effect:

“Promotions to gazetted posts –

(1)    All substantive promotions to Railway Services, Class I, shall be made by the President.

(2)    Substantive promotions to the lower gazetted service and to the Assistant Accounts Officer’s grade shall be made by the Railway Board.

(3)    The General Manager may appoint

         (a)       *  *  *  *  *

(b)    an officer of the Class II service to officiate in the District Grade or as Senior Accounts Officer for a continuous period not exceeding one year in each occasion, when circumstances warrant such a course;

(c)     except for the first time, an officer of a Railway Service, Class I to officiate as a Divisional Superintendent cor Divisional Transportation Superintendent on the Great Indian Peninsula Railway), if the vacancy is not likely to exceed eight months;

         After referring to the above proviso, the Hon’ble Supreme Court stated that it is apparent from these Rules that if a substantive promotion is made from Class II to Class I it is done by the President, but officiating appointments are to be made by the General manager, and in some cases with the approval of the Railway General Manager, and in some cases with the approval of the Railway Board. Exhibits 22,23 and 24 which are the appointment orders of the appellant also show that he was promoted to Class I by the General manager with the approval of the Railway Board. It is also apparent that a Railway Officer who merely officiates in Class I cannot be said to belong to Class I within the meaning of item I of Schedule II. It follows therefore that the appellant was removable from his office with the sanction of the Railway Board and the sanction of the President is not necessary for taking such action against the appellant.

Reliance on Rule 1704 by the Appellant

         The Counsel for the Appellant placed reliance on Rule 1704 which dealt with ‘Authorities competent to impose penalties’ on non – gazetted staff. The said rule states as follows :

“The authority empowered to impose penalties on a railway servant officiating in a higher capacity shall be determined by the post held by the railway servant at the time when the penalty is imposed and non – gazetted railway servant officiating in a gazetted post at the time of imposition of a penalty shall be treated in accordance with the rules applicable to a railway servant holding the gazetted post in a substantive capacity.”

         But the proviso applies to the cases of non – gazetted officers and is of no assistance to the appellant. If the authorities framing up the rules intended that the same provision should apply in the case of gazatted officers also there was no reason why a similar explanation was not provided to Rule 1729. The Counsel, then referred to Rule 1705 of the New Rules which came into force on 1st August 1961 which provided as follows :

“The competent authority in the case of a railway servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action.”

         It is obvious that this Rule cannot apply to the appellant as it came into force much later than March 14, 1961 which is the material date in determining the question regarding the need for sanction.

Contention that Railway Board is part and parcel of Ministry of Railways

         Another contention was raised on behalf of the appellant that since Railways Board was part and parcel of Ministry of Railways of the Central Government, in the eye of law Railway Board must be deemed to be the “Central Government” for the purpose of Section 197 of the Code of Criminal Procedure. In support of this argument the counsel for the Appellant placed reliance on the Allocation of Business Rules, 1961 made by the President under Cl. 3 of Article 77 of the Constitution of India. Item No. 15 of the First Schedule is “Ministry of Railways (Railway Board)”. Reliance was also placed on behalf of the Appellant on para 201 of the Indian Railway General Code which states as follows :

“The existing enactments regulating the construction and operation of railways in India are the Indian Tramways Act, 1886 and the Indian Railways Act, 1890 as amended from time to time. Subject to the provisions of these enactments, the executive authority in connection with the administration of railways, vests in the Central Govt. In virtue of the delegation made under Section 2 of the Indian Railways Board Act of 1905, all the functions and powers of the Central Government under certain section of the Indian Railways Act of 1890 are exercised by the Railway Board.”

Para 205 reads as follows :

“The Railway Board is to function as a Corporate body, and as a Corporate body is responsible to advise the Ministry on all major questions of railway policy. Major and policy issues are, therefore, to be submitted to the Minister with the recommendations of the Board. Other questions may be submitted to the Minister for his information or orders by individual members.”

Reference to Section 2 of Indian Railway Board Act, 1905 (Act No. IV of 1905) :

“2 : Investment of Railway Board with powers under Indian Railways Act, 1890. The Central Government may, by notification in the official Gazette, invest the Railway Board, either absolutely or subject to conditions,-

(a)    with all or any of the powers or function of the Central Government under the Indian Railways Act, 1890, with respect to all or any railways, and

(b)    with the power of the officer referred to in Section 47 of the said Act to make general rules for railways administered by the Government.”

Contention that Railway Board is vested with the powers of Central Govt.

         It was argued by the counsel for the Appellant that the Railway Board is vested with the powers of Central Government in respect of administration of railways and therefore it must be taken that Railway Board itself is a part of Central Government. On this contention raised on behalf of the Appellant the Hon’ble Supreme Court stated as follows :

“We are unable to accept this argument as correct. It is true that many important powers and functions of the Central Government in respect of administration of the Railways are exercised by the Railway Board, but it does not follow that the Railway Board is exercising those powers in their own right as part of the Central Government. On the other hand, Section 2 of the Railway Board Act, 1905 itself indicates that the Railway Board is an entity which is separate from the Central Government and the powers of the Railway Board are derived as a matter of delegation either absolutely or subject to conditions by notification by the Central Government. In other words, the Railway Board is a separate body which derives its powers and authority however wide they may be only because of delegation of powers from the Central Government in respect of the administration of the railways. The result therefore is that the appellant was appointed in an officiating position in Class I officer by the Railway Board and therefore he was removable by the Railway Board and not by the Central Government. It cannot be said in the circumstances that the appellant was one of those public officers who could be removed only by or with the sanction of the Central Government within the meaning of Section 197, Criminal Procedure Code.”

Contention of the maxim qui facit per alium facit per se

         Finally, on behalf of the Appellant the maxim qui facit per alium facit per se was raised before the Hon’ble Supreme Court. I think it would be quite appropriate to bring out the meaning of this maxim. According to The Pocket Law Lexicon by AW Motion (Eighth Edition, Sweet & Maxwell reprinted in India in 1996 by Universal book Traders, Delhi), the maxim has been explained at page 310 as follows:

Qui facit per alium, facit (or est perinde ac si faciat) per se – [He who does a thing through another (is in the same position as if he) does it himself] : i.e. a principal is liable for the acts of his agent acting within the scope of his authority.

         It was suggested that even if the Railway Board had power to remove the appellant from his office and even if it was acting under the powers delegated to it, the principle of the maxim qui facit per alium facit per se applies to the case and the appellant must be deemed to be removable only by or with the sanction of the Central Government, within the meaning of Section 197 of the Criminal Procedure Code. On this contention advanced on behalf of Shri Shukla, the Hon’ble Supreme Court stated as follows :

“We do not think there is any substance in this argument. If once the Central Government has delegated its power to another authority with regard to appointment and removal of a public servant, then for the purpose of Section 197, Criminal Procedure Code the public servant concerned will not be treated to be a public servant “not removable from his office except by or with the sanction of the Central Government,” within the meaning of that section. A similar argument was advanced in Afzalur Rahman vrs. The King Emperor etc. ([1943] FCR 7) in which it was held a police officer who could be dismissed by the Deputy Inspector General of Police under the statutory rules and regulations was not a person is “not removable from officer except by or with the sanction of the Provincial Government” within the meaning of section 197 of the Criminal Procedure Code and that sanction under that section was not, therefore, necessary for prosecuting such an officer for an offence alleged to have been committed by him. Varada Chariar, J. speaking for the Federal Court in that case observed that the provisions of Section 241 (1) (b) and section 240 (2) of the Government of India Act must also be understood in the light of the practice prevailing in India under which the power to appoint and dismiss particular classes of officers is vested in particular authorities. Otherwise there is the danger of our ignoring the policy of the legislature in limiting the class of officers entitled to this protection and of making section 197 Criminal Procedure Code available to all public officers. We accordingly reject the argument of the appellant on this aspect of the case.”

THE VERDICT

         While delivering the verdict, the Hon’ble Supreme Court stated as follows :

“For the reasons already expressed we hold that the decision of the Gujarat High Court is correct and this appeal must be dismissed. Appeal dismissed.” [AKS : 29 Oct 2011 : NCHC] e-mail: [email protected]

SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE : PROSECUTION OF PUBLIC SERVANTS AND IMMUNITY AVAILABLE TO THEM UNDER SECTION 197 CODE OF CRIMINAL PROCEDURE : WHETHER AN ALL INDIA SERVICE OFFICER DEPUTED TO A COOPERATIVE SOCIETY CAN GET SUCH IMMUNITY: AN APEX JUDICIAL DICTUM : PART – IV

AJAYA KUMAR SAMANTARAY, CENTRAL LABOUR SERVICE 

PRELUDE : In Part III of this sequel the esteemed readers might have read the discussion of the case – law pertaining to KN Shukla vrs. Navneet Lal Manilal Bhatt and Another [AIR 1967 SC 1331 : 1967 SCR (2) 290 : [1966] RD – SC 265] wherein the case – law has been discussed in full. Of course in Part II of this sequel a glimpse of the said case – law was given with reference to Pradeep Gaur’s case in Karnataka High Court. In KN Shukla’s case it was held that since Shri. KN Shukla was officiating as a Class I Officer he was not entitled to immunity under Section 197, Criminal Procedure Code. Now the esteemed readers may ask a question viz. if a Railway Officer is holding a Class I post in substantive capacity would he be entitled to the immunity under Section 197, Code of Criminal procedure? The answer to this question would be a loud and emphatic “NO”. This is due to the fact that the Railway Board is a separate legal entity having a perpetual succession and a common seal; it can sue and be sued in its own name. Being a creature of law it is quite distinct from Central Government and cannot be treated as a Government Department like Department of Atomic Energy, Department of Revenue, Department of Economic Affairs and such other departments of the Government. In order to be more vivid on this point I intend to discuss another case – law pertaining to an IAS officer who was deputed to a Cooperative Society as a General Manager and faced prosecution during his tenure at Super Bazaar, the Cooperative Society.

THE CASE – LAW :

S.S.DHANOA vrs. MUNICIPAL CORPORATION OF DELHI [AIR 1981 SC 1395 : 1981 (43) FLR 272 : 1950-83 SCLJ (4) 414 : 1981 SCR (3) 864 : 1981 SCC (3) 431 : 1981 SCALE (1) 919 : 1982 SCC (L&S) 6 : 1981 – II – LLJ – 231]

FACTS OF THE CASE

         Shri S. S. Dhanoa was a member of Indian Administrative Service by notification No. 27.924 Estt. 1 dated 23rd April, 1972, issued by the Government of India in the Ministry of Agriculture (Department of Agriculture), the services of Shri Dhanoa, who at that point of time was a Joint Commissioner (State Liason) in that Ministry, were placed at the disposal of the Department of Cooperation for his appointment as the General Manager, Super Bazaar, Connaught place, New Delhi with effect from 7th April 1972. On the said date he took over the charge as General Manager. At the request of the Managing Committee of the Society the Government of India extended the period of his deputation for a further period of one year with effect from 7th April, 1973. On completion of his period of deputation, he was reverted as Joint Secretary in the Ministry of Agriculture.

         On 10th October 1973 a Food Inspector of Municipal Corporation of Delhi purchased a sealed bottle of honey from the super bazaar at the I. N. A. Market. The Public Analyst’s report showed the honey to be adulterated. On 5th April 1974, the Municipal Corporation of Delhi filed a complaint against Shri Dhanoa, the General Manager of Super Bazaar and other officers as also against the manufacturer of honey for having committed an offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. On being summoned by the Metropolitan Magistrate, Delhi to appear before him as an accused, Shri Dhanoa raised a preliminary objection that the taking of cognizance of the alleged offence by the Magistrate was barred under Section 197 of the Code of Criminal Procedure, 1973, for want of sanction of the Central Government since the act complained of was nothing but an act done by him in the discharge of his duties as a public servant.

         The Metropolitan Magistrate, Delhi by his order dated 9th October, 1974 rejected the objection, holding that the appellant (Shri. Dhanoa), at the time of commission of the alleged offence was not a public servant within the meaning clause Twelfth of Section 21 of the Indian Penal Code and, therefore he was competent to take cognizance of the alleged offence. In coming to that conclusion, the learned Magistrate held that the services of Shri Dhanoa (the Accused) having been placed at the disposal of the society, he was in foreign service under F. R. 9 (7) and therefore, could not be regarded as a public servant, within the meaning of clause Twelfth of Section 21 of the Indian Penal Code for two reasons, namely, (a) as the General Manager he was not an officer in the service or pay of the Government, and (b) while functioning as General Manager, he was not employed in connection with the affairs of the union. On appeal, the High Court of Delhi confirmed the view of the learned Magistrate.

SPECIAL LEAVE PETITION TO THE SUPREME COURT

         Having felt aggrieved by the order of the High Court of Delhi, Shri. Dhanoa moved the Hon’ble Supreme Court by a Special Leave Petition which on grant of special leave became Criminal Appeal No. 520 of 1976. The question for determination before the Hon’ble Supreme Court in the Criminal Appeal was as follows :  

WHETHER A MEMBER OF THE INDIAN ADMINISTRATIVE SERVICE, WHOSE SERVICES ARE PLACED AT THE DISPOSAL OF AN ORGANISATION WHICH IS NEITHER A LOCAL AUTHORITY NOR A CORPORATION ESTABLISHED BY OR UNDER A CENTRAL, PROVINCIAL OR STATE ACT, NOR A GOVERNMENT COMPANY, BY THE CENTRAL GOVERNMENT OR THE GOVERNMENT OF A STATE, CAN BE TREATED TO BE A “PUBLIC SERVANT” WITHIN THE MEANING OF CLAUSE TWELFTH OF SECTION 21 OF THE INDIAN PENAL CODE FOR THE PURPOSE OF SECTION 197 OF THE CODE OF CRIMINAL PROCEDURE, 1973?

         After framing the above question the Hon’ble Supreme Court turned on the construction of clause Twelfth of Section 21 of the Indian Penal Code, 1860 and Section 197 of the Code of Criminal Procedure, 1973.

         Section 21 IPC : The words ‘public servant’ denote a person falling under any of the descriptions hereinafter following namely ;

                                  ***  ***  ***

 Twelfth : Every Person –

(a) In the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by Government.

(b) In the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956. 

Section 197 Code of Criminal Procedure, 1973 : Prosecution of Judges and public servants. – (1) When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction –

(a) In the case of a person who is employed or, as the case may be was at the time of commission of the alleged offence employed, in connection, with the affairs of the Union, of the Central Government.

CONTENTIONS ADVANCED ON BEHALF OF THE APPELLANT

         In support of the Appeal, the Counsel for the Appellant, Shri S S Dhanoa raised the following contentions :

(i)     That the chain of Departmental Store known as Super Bazaar at Connaught place New Delhi together with 12 other Super Bazaars in the metropolitan city of Delhi, including the one at the I. N. A market, is nothing but a commercial activity of the Central Government and, therefore, the appellant was, at the time of commission of the alleged offence, employed in connection with the affairs of the Union. That being so, the prosecution could not be launched without sanction from the Central government under Section 197 of the Code of Criminal procedure, 1973

(ii)    That the Co-operative Store Limited which run the Super Bazaars having been registered under Section 10 of the Bombay Cooperative Societies Act, 1925, was a body corporate by virtue of Section 23 of that Act and, therefore, the appellant was a public servant within the meaning of clause twelfth of Section 21 of the Indian Penal Code. It is said that although the appellant may not be covered by sub – clause (a), he falls within the ambit of sub – clause (b) of clause Twelfth.

THE ADJUDICATION

         The Hon’ble Supreme Court, on the above contentions raised, stated that it finds it difficult to accept the submissions as clause Twelfth of Section 21 of the Indian Penal Code protects two classes of public servants as follows :

(a)    every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government, and

(b)    every person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956.

The Hon’ble Supreme Court further stated that the appellant did not answer any of these (above) descriptions. During his period of deputation, he was not an officer in the service or pay of the Government, nor was he in the service of a local authority, a corporation established by or under an act or a Government company. It is, however, urged that the expression “corporation” appearing in sub – clause (b) of clause Twelfth of Section 21 of the Indian Penal Code is wide enough to include not only a corporation established by or under a Central, Provincial or State Act, but also a body Corporate. The submission proceeds on the basis of Section 23 of the Bombay Co-operative Societies Act, 1925 which reads thus ;

23. The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purpose of its constitution.

Interpretation of the terms

         The Hon’ble Supreme Court, after extracting Section 23 of Cooperative Societies Act, 1925, proceeded to interpret terms like “body Corporate”, “Corporation”, “established” and its relation to clause Twelfth of Section 21 Indian Penal Code, 1860.

         While interpreting the terms, the Hon’ble Supreme court stated that clause Twelfth of Section 21 Indian Penal Code, 1860 does not use the words “body corporate” and the question is whether the expression “Corporation” contained therein taken in collocation of the words, (“established by or under a Central, Provincial or State Act”) would bring within its sweep cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word (“under”) occurring is clause Twelfth of Section 21 of the Indian Penal Code, 1860 makes a difference. Does the mere act of incorporation of a body or society under a Central or State Act make it a corporation within the meaning of clause Twelfth of Section 21? The Hon’ble Supreme Court stated that in its opinion, the expression (“corporation”) must in the context; mean a corporation created by the legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.

A CORPORATION : WHAT IT IS ?

         The Hon’ble Supreme Court then proceeded to explain the meaning of a “Corporation”. It stated that a corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, not withstanding changes in its membership. In addition, it possesses the capacity as such legal entity of taking, holding and conveying property entering into contract, suing and being sued and exercising such other powers privileges as may be conferred on it by the law of its creation just as a natural person may, corpus Juris Secundum Vol. 18, P. 136, para 1; Words and Phrases, Permanent Edition, Vol. 9-A/420, Halsbury’s Law of England, 4th Edition Vol. 19, P. 716 (Para 1201) and P. 749 (Ppara 1245); Jowitt’s Dictionary of English Law, 2nd Edition, Vol 1, P. 474 and Black’s Law Dictionary, 5th Edition, P. 307. The following definition of Corporation was given by Chief Justice Marshal in the celebrated Dartmouth College vrs. Woodward [1816 – 1819 – H. 4. Wheat 518, 636, 4 L. E. D. 629]

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object, for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality, : properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyance for the purpose of transmitting it from hand to hand. It is chiefly, for the purpose of clothing bodies of men, in succession, with those qualities and capacities and corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being.

The term ‘corporation’ is, therefore, wide enough to include private corporations. But, in the context of clause Twelfth of Section 21 of the Indian Penal Code, the expression ‘corporation’ must be given a narrow legal connotation.

Expanding the meaning of “Corporation” 

         The Hon’ble Supreme Court stated that corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons continuing themselves into a company under the Companies Act or a society under the Society Registration Act own its existence not to the Act of Legislature but to acts of parties though it may owe is status as a body corporate to an Act of legislature.

Corporation established by an Act and a body incorporated under an Act : The Distinction

         The Hon’ble Supreme Court, during the course of adjudication of the appeal, showed the distinction between a corporation established by an Act and a body incorporated under an Act. While doing so, the Hon’ble Supreme Court made reference to a case – law of its own pertaining to Sukhdev Singh vrs. Bhagatram Sardar Singh Raghuvanshi [(1975) 3 SCR 619 : (1975) 1 SCC 421 : 1975 (30) FLR 283 : (1950-77) SCLJ (12) 48 : 1975 – I – LLJ – 399 : 1975 SCC (L&S) 101 : AIR 1975 SC 1331 : 1975 Lab IC 881 : A Five Judges Constitution Bench] wherein it was observed as follows :

A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provision of the Act

There is thus a well – marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute. In Subhajit Twery vrs. Union of India [1975 (30) FLR 212 : [1975] RD – SC 44 : 1975 – I – LLJ – 374 : (1950-77) 12 SCLJ 45 : 1975 (1) SCC 485 : (1975) 3 SCR 616 : 1975 SCC (L&S) 99 : AIR 1975 SC 1331 : A Five Judges Constitution bench] the question arose whether the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act, was a statutory body. It was urged that because the Council of Scientific and Industrial Research had Government nominees as the President of the body and derived guidance and financial aid from the government, it was a statutory body – this contention was repelled by the Hon’ble Supreme Court, which, observed as follows :

The society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a Society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the governing body or that the government may terminate the membership will not establish anything more than the fact that the government takes special care that the promotion, guidance and cooperation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilization of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner.

Author’s Note : In the year 1975 Oil and Natural Gas Commission (ONGC) and Industrial Financial Corporation of India (IFCI) were statutory bodies. Now they are companies within the meaning of Section 617 of Companies Act, 1956.

The observation on CSIR applies to a Cooperative Society

         The observation of the Hon’ble Supreme Court as to the character of CSIR applies to the cooperative Society, which is a society registered under the Bombay Cooperative Societies Act, 1925. It is not a statutory body because it is not created by a statute. It is a body created by an act of a group of individual in accordance with the provisions of s statute.

The Status of Super Bazaar

         The Super Bazaar at Connaught place, New Delhi together with its 12 branches in Delhi, is not an instrumentality of State. In a Welfare State like India, there is a greater participation by government in various commercial activities. Sometimes the government directly engages itself in such commercial activities by acquiring a monopoly in trade in the public interest. Or, it may, by an Act of Legislature, establish statutory corporations like the State Trading Corporation, Life Insurance Corporation of India, the Industrial Finance Corporation, the Oil and Natural Gas Commission etc., or it may set up Government companies under Section 617 of the Companies Act, 1956, like the Hindustan Steel Limited etc. By no stretch of imagination, could it be said that the appellant was employed in connection with the affairs of the union within the meaning of Section 197 of the, Code of Criminal Procedure, 1973. The Super Bazaars are not owned by the Central Government. They are owned and managed by the Cooperative Store Limited. Pursuant to an agreement executed between the Cooperative Store Limited and the Union of India, the Central Government has advanced a loan of Rs. 40,00,000/- to the Society for establishment and management of the Super Bazaars, and the Central Government also holds more than 97 per cent shares in the total shareholding of the Society. Clause 6 of the agreement provides :

That the incumbents of supervisory and other key posts including those of General Manager, Deputy General manager, Finance Manager, Assistant General manager, Purchase Manager, Sales Manager and Accounts Manager, by whatever other designation they may be known shall not be appointed or removed from their posts by the debtor except with the prior approval of the creditor in writing.

The Super Bazaar at Connaught place and at various other places are run by the Cooperative Store Limited under the control of the Ministry of Agriculture (Department of Cooperation). The incumbents of Supervisory and other key posts including that of the General Manager cannot be appointed or removed without the prior approval of the Central Government. The whole purpose of Clause 6 of the Agreement in the matter of appointment of General Manager and other incumbents holding key posts is to safeguard the interests of the Central Government. Legally speaking, the Super Bazaars are owned and managed by the Society and not by the Central Government and therefore, the appellant was not employed in connection with the affairs of the union within the meaning of Section 197 of the Code of Criminal Procedure, 1973.

Reference to relevant All India Service (Conduct) Rules, 1968

Since the Appellant was a member of an All India Service (IAS) reliance was placed on explanation to Rule 2 (a) of the All India Service (Conduct) Rules, 1968 and Rule 2 (c) of the All India Services (Discipline and Appeal) Rules, 1969. The Hon’ble Supreme Court said that this can be of no avail.. Explanation to Rule 2 (a) enlarges the meaning of the expression “Serving in connection with the affairs of the Union or in connection with the affairs of the State”. It provides that a member of the Service whose services are placed at the disposal of a Company, Corporation or other organisation or a local authority by the Central Government or the Government of a State, shall, for the purpose of those rules, be deemed to be a member of the Service serving in connection with the affairs of the Union or in connection with the affairs of the State, as the case may be, notwithstanding that his salary is drawn from the sources other than the Consolidated Fund of India or the Consolidated Fund of that State. The legal fiction contained in Explanation to Rule 2 (a), is for a limited purpose. This is evident by the use of the words “for purpose of these rules.” Rule 2 (c) of the All India Services (Discipline and Appeal) Rules, 1969, defines Government to mean (i) in the case of a member of the service serving in connection with the affairs of a State, or who is deputed for service in any company, association or body of individual whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State; and (ii) in any other case, the Central Government. That again is for purposes of these rules. These provisions cannot be pressed into service for improving upon the language of clause Twelfth of Section 21 of the Indian Penal Code, 1860.                                                                         

         However, before parting with the case, the Hon’ble Supreme Court adverted to one aspect. It is common ground that the honey in question was sold in a sealed container bearing the manufacturer’s warranty as to quality as required under Rule 12 – A of the Prevention of Food Adulteration Rules, 1955. That being so, the learned Magistrate was impressed upon to determine whether or not the appellant was protected under Section 19 (2) of the Prevention of Food Adulteration Act, 1954.

THE VERDICT

         Subject to the observation, as hereinbefore contained, the appeal was dismissed.

[AKS 30 October 2011 ; NCHC, Mumbai]    

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