- (1.) THIS appeal filed by the State of Punjab against the judgment of Shri Asa Singh Gill. Special Judge. Gurdaspur. dated the 20th of July. 1970 holding the trial of respondent No. 1 for offences under Section 5 (2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and Section 161 of the Indian Penal Code, and of respondent No. 2 under Section 165-A of the Indian Penal Code, conducted by him. to be without jurisdiction and. therefore null and void has been entrusted for decision to a Full Bench in pursuance of the order of reference dated the 18th of May. 1971. made by a Division Bench consisting of ray learned brother Tewatia. J. and myself and the sole question requiring determination therein is whether the sanction for prosecution of respondent No. 1 purporting to have been given by the State Government under Section 6 of the Act was or was not validly accorded.
(2.) THE facts leading to this appeal may be briefly stated. Respondent No 1 is a member of the Punjab Civil Service (Judicial Branch) and was holding the post of Subordinate Judge-cum-Judicial Magistrate 1st Class Batala on the 27th of October. 1968. It is alleged by the appellant State that on that date he accepted through respondent No. 2 a sum of Rs. 200 in cash and a bottle of whisky as illegal gratification from one Jawand Singh who was a person accused of a criminal offence in a case pending in his (respondent No. l's) Court. On the 1st of August 1969. the State Government, purporting to act in pursuance of the provisions of Sub-section (1) of Section 6 of the Act passed an order sanctioning the prosecution of respondent No. 1. That order is expressly made in the name of the Governor of Punjab and is signed by Shri A. N. Kashyap. Chief Secretary to Government. Punjab, It is common ground between the parties that the order was issued by the Government in the exercise of its executive functions and not personally by the Governor to whom the file of the case was never submitted before sanction for prosecution was accorded. During the course of the trial of the respondents 14 witnesses were examined on behalf of the prosecution and 27 in defence. At the argument stage it was contended before the learned trial Judge on behalf of the respondents that it was the Governor of Punjab acting in his individual capacity who was competent to remove respondent No. 1 from service, he being the appointing authority in the case of respondent No. 1 under Article 234 of the Constitution of India and that he (the Governor) alone could sanction the prosecution of respondent No. 1 in view of the provisions of Section 6 of the Act. Reliance on behalf of the respondents was placed in this connection on Murari Lal Puri v. State of punjab. Criminal Appeal No. 1180 of 1968. decided by a Division Bench of this Court consisting of Harbans Singh and Mahaian. JJ. . on 18-5-1970. In that case the sanction for prosecution under Section 5 (2) of the Act of Shri Murari Lal Puri. a District and Sessions Judge, was accorded by the Harvana State Government when the State was under the President's rule. The order granting sanction was passed by the Chief Secretary to Government. Harvana. and was never placed before the Governor of Harvana or the President of India. It was argued on behalf of the State that under Article 233 of the Constitution the power of appointment of district Judges was vested in the "governor of the State" by which expression was meant the Governor of the State exercising the executive functions of the State Government, that the State Government was. therefore, the appointing authority in the case of district judges and was also consequently vested with the power of their removal so that it was the authority competent to accord sanction for the prosecution of Shri Murari Lal Puri. The argument was repelled by the Division Bench and it was held that by the expression "governor of the State" occurring in Article 233 of the Constitution is meant the Governor of the State acting in exercise of the powers vested in him personally by the Constitution, and not the Governor of the State acting in the exercise of the executive functions of the State Government. The sanction accorded by the State of Haryana was accordingly found to be invalid. Following Murari Lal Pur's case. Crl Appeal No. 1180 of 1968 D/- 18-51970 (Puni) (supra) the learned trial Judge held that the expression "governor of the State" occurring in Article 234 which relates to the appointment, of persons, other than district judges. to the judicial service of a State, had the same meaning as it had in Article 233. On behalf of the appellant State, reliance was placed before him on State of punjab v. Shamsher Singh. . a case decided by another Division Bench of this Court consisting of Mahajan and Dhillon. JJ. . which lays down that on a correct interpretation of Article 234 the removal by the State Government of a probationer Subordinate Judge from service is legal. That interpretation is solely based on Mohammad Ghouse v. State of Andhra. , wherein the facts were these. Certain serious charges were levelled against Mohammad Ghouse. who was a member of the Madras Provincial Judicial Service. One of the Judges of the High Court of Madras. Balakrishna Avvar. J. , was deputed to enquire into those charges and after holding the necessary enquiry expressed the opinion that Mohammad Ghouse; should be dismissed or removed from service. The High Court approved of this opinion and passed an order suspending Mohammad Ghouse until further orders, The report was then sent for action to the Andhra State Government who issued a notice to Mohammad Ghouse to show cause why he should not be dismissed or removed from service. Mohammad Ghouse filed a petition under Article 226 of the Constitution for a writ quashing the order of his suspension on two grounds one of which was that the said order was void as it was in contravention of Article 311 of the Constitution inasmuch as the authority which appointed him was the Governor of the State who alone could remove him from service so that the order of suspension made by the High Court was bad. This ground was repelled by the High Court and again in appeal by their Lordships of the Supreme Court who observed: The report was then sent to the Government for action, and. in fact, the Andhra Government has issued a notice to the appellant on August 12, 1954. to show cause why he should not be dismissed or removed from service. Thus, it is the appropriate authority under Article 311 that proposes to take action against the appellant. and it is for that authority to pass the ultimate order in the matter. The order passed by the High Court on 28-1-1954, is merely one of suspension, pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within Article 311 of the Constitution. That part of the above observations which we have underlined was considered by the Division Bench deciding Shamsher Singh's case. to mean that the removal from office of a member of the State's judicial service was a matter within the competence of the State Government as opposed to the Governor in his individual capacity. The learned trial Judge gave preference to the dictum in Murari, Lal Puri's case. Cri. Appeal No. 1180 of 1968 D/-18-5-1970 (Puni) on the ground 'that the former was "a direct authority on the point. " Consequently he held in the impugned judgment that the sanction to prosecute respondent No. 1 having been given by the State Government, which was not the authority competent to give it was invalid so that the entire trial was without jurisdiction and. therefore, null and void. When this case came up for hearing in the first instance before the Division Bench consisting of my learned brother Tewatia. J, and myself, reliance was again placed on behalf of the appellant State on the dictum in Shamsher Singh's case which we thought was an authority directly in point but the correctness of which we doubted. It was in view of the conflict between the decision in that case and the one in Murari Lal Puri's case, Cri Appeal No. 1180 of 1968. D/- 18-5-1970 (Puni) that we referred the instant case for decision to a larger Bench.
(3.) IN order to appreciate the points raised before us it is necessary to set down here the provisions contained in Clause (1) of Article 154, Article 162. Article 166, Clause (1) of Article 233. Article 234. Article 235. Article 310. Clause (1) of Article 311 and entry 3 of List II in the Seventh Schedule to the Constitution of India, Sub-section (1) of Section 6 of the Act and Clause (c) of Sub-section (60) of Section 3 and Section. 16 of the General Clauses Act (Central Act No. 10 of 1897): Articles of the Constitution of India. 154. (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. 162. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to. and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. 166. (1) All executive action of the Government of a State shall be express-ed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. 233 (1) Appointments of persons to be and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation 'to such State. 234. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. 235. The control over district courts and courts subordinate thereto including the posting and promotion of. and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. 310. (1) Except as expressly provided by this constitution every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. (2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or. as the case may be. of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may. if the President or the Governor, as the case may be. deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is. for reasons not connected with any misconduct on his part, required to vacate that post. 311 (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed Entry 3 above-mentioned. 3. Administration of justice: constitution and organisation of all courts, except the Supreme Court and the High Court; officers and servants of the High Court; procedure in rent and revenue courts: fees taken in all courts except the Supreme Court. The Act. 6 (1 ). No court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code, or under Subsection (2) of Section 5 of this Act. alleged to have been committed by a public servant, except with the previous sanction. (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office gave by or with the sanction of the Central Government, of the Central Government. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office gave by or with the sanction of the State Government, of the State Government: (c) in the case of any other person, of the authority competent to remove him from his office. The General Clauses Act. 3. In ibis Act. and in all Central Acts and Regulations made after the commencement of this Act. unless there is anything repugnant in the subject or context,: * * * * * * * * (60) 'state Government,: * * * * * * * * (c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956. shall mean, in a State, the Governor, and in a Union territory, the Central Government. : and shall in relation to functions entrusted under Article 258-A of the Constitution to the Government of India include the Central Government acting within the scope of the authority given to it under that Article. 16. Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. ;