The
State of Madhya Pradesh & Ors Vs. Dr. Yashwant Trimbak
[1995] INSC 783 (4
December 1995)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Agrawal, S.C.
(J) Pattanaik, J.
CITATION:
1996 AIR 765 1996 SCC (2) 305 JT 1995 (9) 430 1995 SCALE (7)131
ACT:
HEAD NOTE:
Leave
granted.
This
appeal is directed against the order dated 30th April, 1993 of the Madhya Pradesh
Administrative Tribunal (Indore Bench) in the Transfer Application No. 3551 of
1988.
By the
impugned order the Tribunal has held that the departmental enquiry against the
respondent was instituted without a proper and valid sanction as contemplated
by Rule 9(2)(b)(i) & (ii) of the Madhya Pradesh Civil Services Pension
Rules, 1976 (hereinafter as 'Pension Rules') and as such it is not sustainable
and deserves to be quashed. Being aggrieved by the aforesaid order of the
Tribunal the State of Madhya
Pradesh has
approached this Court.
The
respondent had retired from the post of Director, Institute of Animal Health
& Veterinary Biological Products, Mhow on 31st July, 1983. His retiral benefits had been sanctioned by the
appropriate authority. At that point of time gross financial irregularities
having come to the notice of the Secretary to the Government of Madhya Pradesh,
Department of Animal and Cattle Wealth during the period while the respondent
was continuing in the post of Director, Institute of Animal Health &
Veterinary Biological Products from 1977 onwards, a letter was issued to the
said respondent proposing an enquiry against him on 6th April, 1985. Thereafter,
a charge sheet was served upon the respondent on 2nd April, 1986 and a departmental enquiry was ordered against him. The
appropriate authority further withheld 50 per cent of his pension and a part of
the gratuity amount of the respondent. The respondent being aggrieved by the
said order moved the High Court of Madhya Pradesh for quashing the aforesaid
enquiry as well as for quashing the order of withholding a part of the pension
and gratuity, inter alia on the ground that without the sanction of the
Governor as contemplated under Rule 9(2)(b)(i) of the Pension Rules, the
proceeding is vitiated and also the consequential order withholding a part of
the pension and gratuity. During the pendency of the application before the
Madhya Pradesh High Court, the State Tribunal having been constituted, the
proceeding was transferred to the Administrative Tribunal and the Tribunal
finally disposed of the matter.
In the
return filed by the State and its officers it was contended that the respondent
had committed grave financial irregularities during his tenure relating to
period of 1977 onwards. The said financial irregularities came to the notice of
appropriate authority after the pension case of the respondent was forwarded by
the Director of Veterinary Services. In fact the respondent before his
superannuation got the no demand and no enquiry certificate issued in his favour
on misrepresentation of facts. When the financial irregularities and embgzzlement
committed by the respondent came to the notice of the appropriate authority, as
a result of investigation started by the Economic Wing of the Police, the
appropriate authority took the decision to initiate the departmental
proceeding. Before initiation of the departmental proceedings against the
respondent under the provision of Pension Rules of 1976, dur sanction of the
Council of Ministers had been obtained and the order in question was
communicated to the respondent by a duly authenticated order purported to have
been passed by order of the Governor of Madhya Pradesh. The order in question
though had been signed by the Under Secretary to the Government of Madhya
Pradesh, Department of Animal Husbandry, but it has been clearly stated :
"IN
THE NAME AND BY ORDERS OF THE GOVERNOR OF MADHYA PRADESH" The Tribunal on examining
the provisions of Pension Rules more particularly Rule 9(2)(b)(i), came to the
conclusion that the sanction of the Governor himself is necessary and therefore
departmental proceedings could not be initiated under the orders of the Council
of Ministers.
Accordingly,
the Tribunal quashed the departmental proceedings initiated against the
respondent and also the order withholding a part of the pension and gratuity of
the respondent.
Mr. Chitale,
learned senior counsel appearing for the appellant raised two contensions
assailing the legality of the order of the Tribunal :
1)The
order initiating the departmental enquiry proceeding which was served on the
respondent having been passed in the name and by order of the Governor in terms
of Article 166(2) of the Constitution of India, the validity of the order
cannot be called in question on the ground that it is not an order executed by
the Governor and Tribunal, therefore, committed gross error of law in quashing
the departmental proceedings on a finding that there has been no sanction of
the Governor.
2)The
power to accord sanction under Rule 9(2)(b)(i) of the Pension Rules being an
executive power of the State Government and the Governor having allocated the
Business of the State Government to be transacted by the different Ministers
under the Rule of Business made under sub Article (3) of Article 166 of the
Constitution and admittedly the Council of Ministers having accorded sanction,
there is no infirmity with the same and further the sanction of the Governor
himself is not necessary.
Mr.
Jain, learned counsel appearing for the respondent on the other hand contended
that the Pension Rules being a Rule framed under Article 309 of the
Constitution and the said Rule having conferred power of sanction on the Governor,
it is the Governor alone who is entitled to sanction and the Council of
Ministers could not have exercised that power. He further contended that when
the sanction has not been accorded by the Governor himself, the bar under
Article 166(2) of the Constitution cannot be attracted, and therefore, the
Tribunal was fully justified in quashing the order initiating the departmental
proceeding.
In
view of the rival submission at the Bar two questions really arise for consideration
:
1) On
the admitted position that the order initiating the departmental proceeding was
served upon the respondent by a duly authenticated order passed in the name of
the Governor, is it open to the Court to examine the validity of the same in
view of the provisions contained in Article 166(2) of the Constitution ? 2)
Whether the power to sanction conferred on the Governor under Rule 9(2)(b)(i)
of the Pension Rules can at all be conferred on the Council of Ministers by
making rules for convenient transaction of the Business of the Government of
State under Article 166(3) of the Constitution ? Before embarking upon an
enquiry to the aforesaid two questions, it will be appropriate to extract the
provisions of Rule 9(2)(b) of the Pension Rules :
"9(2)(b)
: The departmental proceeding, if not instituted while the Government servant
was in service whether before his retirement or during his re- employment :
(i) shall
not be instituted save with the sanction of the Governor ;
(ii) shall
not be in respect of any event which took place more than four years before
such institution; and
(iii) shall
be conducted by such authority and in such place as the Government may direct
and in accordance with the procedure applicable to departmental proceedings –
(a) in
which an order of dismissal from service could be made in relation to the
Government servant during his service in case it is proposed to withhold or
withdraw a pension or part thereof whether permanently or for a specified
period; or
(b) in
which an order of recovery from his pay or the whole or part of pay pecuniary
loss caused by him to the Government by negligence or breach of orders could be
made in relation to the Government servant during his service it is proposed to
order recovery from his pension of the whole or part of any pecuniary loss
caused to the Government."
Coming
to the first question, from a bare look at the order which was served on the
respondent, it is implicitly clear that the said order has been executed in the
name of the Governor and has been duly authenticated by the signature of the
Under Secretary to the Government and therefore the bar to judicial enquiry
with regard to the validity of such order engrafted in Article 166(2) of the
Constitution will be attracted. The order which is expressed in the name of the
Governor and is duly authenticated cannot be questioned in any court on the
ground that it is not made or executed by the Governor. The signature of the
concerned Secretary or Under Secretary who is authorised under the
authentication rules to sign the document signifies the consent of the Governor
as well as the acceptance of the advice rendered by the concerned Minister. It
is not the case of the respondent and Mr. Jain appearing for the respondent in
this Court did not urge that the order in question is not an order within the
meaning of Article 166(2) of the Constitution. But according to Mr. Jain under
the Rules the Governor being the authority to sanction and the Governor not
having sanctioned, the prohibition contained in sub Article (2) of Article 166
of the Constitution cannot be attracted and the courts power to examine is not
taken away. We are unable to accept this contension of Mr. Jain, appearing for
the respondent.
Sonabati
Kumari, 1961(1) S.C.R. 728 considered this question with reference to a
notification issued under Section 3(1) of the Bihar Land Reforms Act, 1950 and held
:
The
order of Government in the present case is expressed to be made "in the
name of the Governor" and is authenticated as prescribed by Art.166(2),
and consequently the validity of "the order or instrument cannot be called
in question on the ground that it is not an order or instrument made or
executed by the Governor".
Even
where an order is issued by Secretary of the Government without indicating that
it is by order of the Central Government by order of the President, this Court
came to the conclusion that the immunity in Article 166(2) would be available
if it appears from other material that in fact the decision had been taken by
the Government. In and Weaving Mills, Delhi and Another, 1960 (9) S.C.R. 251
this Court came to the conclusion that in fact sanction had been given by the
Central Government as required under the Act though the order did not indicate
to be so.
This
being the position and the order initiating the departmental proceeding having
been signed by the Under Secretary to the Government by Order of the Governor,
the same is immune from attack on the ground that it is not an order executed
by the Governor as provided under Article 166(2) of the Constitution. As such
the Tribunal was wholly incompetent to examine the legality of the same. In
fact Article 166(2) of the Constitution has not been looked into at all by the
Tribunal. In our opinion the Tribunal was wholly in error in quashing the order
on the ground that the Governor has not executed the same. In view of our
conclusion on the first question though the appeal is bound to succeed, but we
think it proper to examine the second question also.
The
Rule in question no doubt provides that departmental proceedings if not
instituted while the Government servant was in service whether before his
retirement or during his re-employment shall not be instituted save with the
sanction of the Governor. The question that arises for consideration is whether
it requires the sanction of the Governor himself or the Council of Ministers in
whose favour the Governor under the Rules of Business has allocated the matter,
can also sanction. It is undisputed that under Article 166(3) of the
Constitution the Governor has made rule for convenient transaction of the
business of the Government and the question of sanction to prosecute in the
case in hand was dealt with by the Council of Ministers in accordance with the
Rule of Business. Under Article 154 of the Constitution the executive power of
the State vests in the Governor and is exercised by him either directly or
through officers subordinate to him in accordance with the Constitution. The
expression 'executive power' is wide enough to connote the residue of the
governmental function that remain after the legislative and judicial functions
are taken away.
Under
Article 163(1) of the Constitution, excepting functions required by the
Constitution to be exercised by the Governor in his discretion, the Governor
acts on the aid and advice of the Council of Ministers. This Court in the
indicated that any function vested in the Governor, whether executive,
legislative or quasi judicial in nature and whether vested by the Constitution
or by a statue be delegated by Rules of Business unless the contray is clearly
provided for by such constitutional or statutory provision.
The
Court further held :
"The
President as well as the Governor is the Constitutional or formal head.
The
President as well as the Governor exercises his powers and functions conferred
on him by or under the Constitution on the aid and advice of his Council of
Ministers, save in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion.
Whenever
the Constitution requires the satisfaction of the President or the Governor but
the satisfaction of the President or Governor in the Constitutional sense in
the Cabinet system of Government, that is, satisfaction of his Council of
Ministers on whose aid and advice the President or the Governor generally
exercises all his powers and functions. The decision of any Minister or officer
under rules of business made under any of these two Articles 77(3) and 166(3)
is the decision of the President or the Governor respectively. These articles
did not provide for any delegation.
Therefore,
the decision of Minister or officer under the rules of business is the decision
of the President or the Governor." After referring to the several previous
authorities this Court further held :
"For
the foregoing reasons we hold that the President or the Governor acts on the
aid and advice of the Council of Ministers with the Prime Minister at the head
in the case of Union and the Chief Minister at the head in the case of State in
all matters which vest in the executive whether those functions are executive
or legislative in character.
Neither
the President nor the Governor is to exercise the executive functions
personally." The order of sanction for prosecution of a retired Government
servant is undoubtedly an executive action of the Government. A Governor in
exercise of his powers under Article 166(3) of the Constitution may allocate
all his functions to different Ministers by framing rules of business execpt
those which the Governor is required by the Constitution to exercise his own
discretion. The expression "business of the Government of the State"
in Article 166(3) of the Constitution, comprises of functions which the
Governor is to exercise with the aid and advice of the Council of Ministers
including those which he is empowered to exercise on his subjective
satisfaction and including statutory functions of the State Government. The
Court has 446 that even the functions and duties which are vested in a State
Government by a statute may be allocated to Ministers by the Rule of Business
framed under Article 166(3) of the 1961(1) S.C.R. 788, where power of issuing
notification under Section 3(1) of the Bihar Land Reforms Act, 1950 have been
conferred on the Governor of Bihar, this Court held :
"Section
3(1) of the Act confers the power of issuing notifications under it, not on any
officer but on the State Government as such though the exercise of that power
would be governed by the rule of business framed by the Governor under Art. 166(3)
of the Constitution".
Therefore,
excepting the matters with respect to which the Governor is required by or
under the Constitution to act in his discretion, the personal satisfaction of
the Governor is not required and any function may be allocated to Ministers.
Mr.
Jain's contention is solely based on the ground that in the Rule itself both
the expressions 'Governor' and 'Government' have been used and therefore the
expression 'sanction of the Governor' in Rule 9(2)(b)(i) would mean the
personal sanction of the Governor. We are unable to accept this contention. The
power to sanction is nothing but an executive action of the Government provided
under the Rules.
This
is not a matter with respect to which the Governor is required under the
Constitution to act in his discretion. In this view of the matter when the
Governor has framed rules of business under Article 166(3) of the Constitution
allocating his functions and it is the Council of Ministers which has taken the
decision to sanction prosecution of the respondent, we see no legal infirmity
in the same. The Tribunal erred in law in coming to the conclusion that the
sanction required under the rule is a sanction of the Governor.
In our
considered opinion, in the facts and circumstances of the present case the
power of Governor under Rule 9(2)(b)(i) has been duly allocated in favour of
the Council of Ministers under Article 166(3) of the Constitution and the said
Council of Ministers has taken the decision to grant sanction for prosecution
of the respondent.
In
view of our aforesaid conclusion, the impugned order of the Tribunal is wholly
unsustainable in law and we accordingly quash the same. The Transfer
Application No.3551 of 1988 filed by the Respondent before Madhya Pradesh
Administrative Tribunal stands dismissed. The appropriate authority may now
proceed with the departmental proceeding which has been initiated against the
respondent.
This
appeal is allowed, there will be no order as to costs.
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