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254

M. KARUNANIDHI

v.

UNION OF INDIA

February 20, 1979

J.Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWALIA,

S. MURTAZA, FAZAL ALI AND R. S. PATHAK; JJ.J

Tamilnadu Public Men (Cmninal MlscO{lduct) Act, 1973-Whether in­

consistent with the provisions of Code of Criminal Procedure 1898, Prevention

of Corruption Act 1947 & Criminal Law (Atnendment) Act, 1952-Art. 254

of Co11sti111tion of India-Inconsistency between laws 1nade by Parliament and

lalvs 1nade by legislature of states-Effect of.

Constitution of India 1950-Arts. 164 & 161-Nature, constitu/jonal posi­

tion and status of Minister Dr Chief Minister.

Indian Penal Code 1869-S. 21(12)-Public servant & Criminal Proce­

dure Code 1898-S. 199(2)-'0ther public servant'-Scope of-Chief Minister

whether 'public servant'.

Words & Phrases-'in the service or pay of the Government'-S. 21(12)(a)

!PC-Meaning of.

In December 1973, the Madras Legislature passed an Act known as the

Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 after obtaining the

assent

of the

President. The State Act was amended by Act 16 of 1974 and

the President's assent

was received on April

10, 1974. The provisions of the

State Act were brought into force with effect from May 8, 1974. The State

Act was repctlled and the President's assent to the repealing Act was given on

September 6, 1977.

l'he Act provided for the investigation in respect of a complaint of crimi­

n::iJ misconduct against any public man by a Commissioner or the Additional

Commissioner

of Inquiries appointed for this purpose. The word 'public

man' had been given a specific connotation

in s. 2(c) of the Act and clearly

excluded a Government servant.

The appellant

was the former Chief Minister of the

State of Tamilnadu.

On June 15, 1976 the Chief Secretary to the State Government requested the

Central Bureau of Investigation to make a detailed investigation into certain

allegations tht:Jt the appellant and others were alleged to have abused their

official position in the matter

of purchase of wheat from

Punjab. With the

State Governor's sanction a charge sheet was filed after investigation for the

prosecution of the appellant under

ss. 161, 468 and 471

IPC and s. 5(2) read

with S. 5(1) (d) of the Prevention of Corruption Act for allegedly having

derived pecuniary advantage to the extent of

Rs. 4 to

~ lakhs for passing

favourable orders in respect of some firms.

The appellant applied for discharge under

s. 239 Cr.

P.C. on the ground

that the prosecution against him suffered from various legal and constitutional

infirmities. On the application being rejected, the appellant applied to the

High Court' for quashing the proceedings and for setting aside the order of the

Special Judge refusing to discharge him. The High Court rejected the

applications.

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M. KARUNANIDHI v. UNION 255

In the appeal! to this Court, it was contended on behalf of the appellant : A

( 1) Even though the State Act was repealed, the provisions of the Central

Acts having themselves been protanto repw!ed by the State Act when it was

passed could not be pressed into service for the purpose of prosecuting the

appellant unleM these provisions were re-enacted by the appropriate legisla·

ture.

(2) It was contended that even assuming that the State Act had ceased to

exist and the Central Acts applied, the appellant cannot be prosecuted under

any

of the sections of the

Penal Code or the Corruption Act, becallSe by virtue

of the position -that the appellant enjoyed as Chief Minister, there was no

relationship of master and servant between him and the Government and he

was acting as a constitutional functionary, and therefore could not be described

as a .'public servant' as contemplated by s. 21(12) 0£ the Penal Code.

(3) The provisions contained in the State Act run counter to those of the

Central Acts in respect of the following matters; (a) The procedure for

investigation of-the offences by a Central Agency as contemplated by the

Corruption Act b dispensed with and is instead invested in · a Commissioner

appointed under the State Act. (b) The provisions under the Prevention of Cor­

ruption Act, regarding the grant of sanction under s. 197 of the Code to the

accused is given a complete go by and instead a Commissioner is appointed

to hold a regular inquiry for himself and then to submit his report. An accused

who has to be tried under the State Act b thus · deprived of the protection

afforded

to every Government servant regarding grant of a sanction by the

appointing

authority. Therefore the protection if any, given by the State Act

is purely illusory, and

(4) By virtue of the fact that the State Act has obtained the assent of the

President,

it will be deemed to be a dominant legislation, and therefore it would over-rule the Central Acts.

Dismise:ing the appeal!,

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HELD : 1. The scheme of the Constitution is a scientific and equitable dis-F

tribution of legislative powers between Parliament and the State Legislatures.

First, regarding the matters contained in List I, i.e. the Union List to the

SevCnth Schedule, Parliament alone is empowered to legislate and the State

Legislatures hal'e no authority to make any law in respect of the Entries con­

tained in Li!t I. Secondly, so far as the Concurrent List is concerned, both

Parliament and the State Legislatures are entitled to legislate in regard to any

of the Entries appearing therein, but ·that is subject to the condition laid down G

by Art. 254(1). Thirdly, so far as the matters in List II, i.e. the State List are

·concerned, the State Legislatures alone are competent to legislate on "them and

only under certain conditions Parliament can do so. [263 D-E]

2.

In such matters repugnancy may result from the following

circums·

tances :-

(i) Where the provisions of a Central Act and a State Act in the Con­

current List arC fully inconsistent and are absolutely irreconciliable. the Central

c\ct will prevail and the State Act will become void in view of the repugnancy.

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256 SuPREME COURT REPORTS (1979] 3 s.c.R.

A (ii) Where however a law passed by the State comes into collision with a

law passed by Parliament on an Entry in the Concurrent List, the State Act

shall prevail to the extent of the repugnancy and the provisions of the Central

Act would become void provided the State Act has been passed in accordance

with cl. (2) of Art. 254.

(iii) \''here a law passed by the State legislature while· being substantially

B within the scope of the entries in the State List entrenches upon any of the

Entries in the C..e.ntral List the constitutionality of the lay may be upheld by

invoking the doctrine of pith and substance if on an analysis of the provisions

of the Act it appears that by and large the law falls within the four corners of

the State List an entrenchment, if any, being purely incidental or jnconse­

quential.

C (iv) Where, however, a law made by the State Legislature on a subject

covered by the Concurrent List

is inconsistent with or repugnant to a previous

law made by Parliament, then such a law can be protected by obtaining the

assent of the President under Art. 254(2)

of the Constitution. The result of

obtaining the assent of

the President would be that so far as the State Act is

concerned, it will prevail in the State and over-rule the provisions of the Cen­

tral Act in their applicability to the State only. Such a state of affairs will

D exist only until Parliament may at any time make a law adding to, or amending,

varying

or repealing the law made by the

State Legislature under the provisO'

to Art. 254. [263 F-264 DJ

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3. A careful analysis, therefore, of the various provisions of the State ... '\.ct

leads to the irresistible inference that the State Act was passed 'vith a view t()

afford sufficient protection to a public man by enjoining a summary inquiry

or

investigation by a high and independent Tribunal of the status of a High Court

Judge or a

Senior District Judge to instil confidence in the people and to pre­

vent public men from being prosecuted on false, frivolous and vexatious allega­

tions. Although the ingredients

of criminal misconduct as defined in s.

5(1)­

( d) of the Corruption Act are substantially the same in the State Act as in the

Central Acts but here also the, punishment is much severer in the case of the

State Act than the one contained

in the Central Acts. It is, therefore, manifest

that the State Act does not contain any provision which

is repugnant to the

Central Acts, but is a sort of complementary Act which runs pari passu the

Central Act. [270 . G-271 A]

4. Prima facie, there does not appear to be any inconsistency between the

State Act and the Central Acts. Before any repugnancy can arise, the follo\v­

ing conditions must

be satisfied

:

(i) That there is a clear and direct inconsistency between the Central Act

and the State Act; (ii) that such an inconsistency is absolutely irreconcilable;

(iii) that the inconsistency between the provisions of the two Acts is of such

a nature as to bring the hvo Acts into direct collision with each other ::ind a

situation

is reached where it is impossible to obey the one without disobeying

the other. [272D-E]

5. ( 1) In order to decide the questions of repugnancy it must be shown

tha.t the two enactments contain inconsistent and irreconcilable provisions~

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M. KARUNANIDHI V. UNION 257

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so that they cannot stand together or operate in the same field; (2) that there

can be no repeal

by implication unless the inconsistency appears on the face

of the

two statutes; (3) that where the two statutes occupy a particular field,

but there is room or possibility of both the statutes operating in the same field

without coming into collision with each other, no repugnancy results; ( 4) that

where there

is no inconsistency but a statute occupying the same field seeks

to create distinct and separate offences, no question of repugnancy arises and

both the statutes continue to operate in the same field. [278

F·H]

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Hu111e v. Palmer, 38 CLR 441; Union Steamship Co. of New Zealand v.

Comn1onwealth, 36 CLR 130; Clyde Engineering Co. v. Cowburn, 37 CLR

466;

Ex.

Porte McLean, 43 CLR 472; Zavarbhai Amaidas v. State of Botnbay,

,,l [1955] I SCR 799; Ch. Tika Ramji & Ors. etc. v. The State of U.P. & Ors.

~ [1956] SCR 393 Shyamakant Lal v. Rambhajan Singh, 1939 FCR 188; Om

'> Prakash Gupta v. State of U.P., [1957] SCR 423; Deep Chand v. State of UP &

Ors. [1959] 2 Supp. SCR 8, Megh Raj & Ors. v. Allah Rakhia & Ors. AIR

1942 FC 27; State of Orissa v. M. A. Tulloch & Co. [1964] 4 SCR 461;

T. S. Balliah v. T. S. Rangochari, [1969] 3 SCR 65; referred to.

Colin Heward's Australian Federal Constitution Law 2nd Edn. Nicholas

i\.ustralian Constitution

2n<l Edn. p.

303 referred to.

There can be no doubt that the State Act creates distinct and separate

offences

with different ingredients and different punishments and it does not

in any

way collide, with the Central Acts.

On the other hand, the State Act

itself permits the Central Act, namely, the Criminal Law (Amendment) Act

to come to

its aid after an investigation is completed and a report is

gubmitted

by the Commissioner or the Additional Commissioner. [279 A-B]

6. Doubtless, the State Act is the dominant legislation but there are no

provisions in the State Act which are irreconcilably or directly inconsistent

with the Central

Acts so

as to over·rule them. f279 Cl

The original

s. 29 of the

State Act underwent an amendment which was

brought about by Tamil Nadu Act l 6 of 1974 which substituted a new s. 29

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~ for the old one. This amendment received the assent of the President on 10th F

April, 1974 and was published in the Tamil Nadu Government Gazette Extra­

ordinary, dated 16 April, 1974. Although the State Act was passed as far

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back as 30 December, 1973 it feceived the' assent of the President on the 10

April, 1974 that is, on the same date as Act 16 of 1974. The Act was how-

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~ver brought into force on the 8 May, 1974 when. the new s. 29 which had

:tlready replaced the 'old section and had become a part of the statute. There~

fore, for all intents and purposes the State Act cannot be read in isolation, but

has to be interpreted

in conjunction with the express language contained in

s. 29 of the

State Act. The legislature has in unequivocal terms expressed the

intention that the State Act which was undoubtedly the dominant legislation

would only

be

"in addition to and not in derogation with any other law for the

time being in force" which manifestly includes the Central Acts, namely, the

Indian Penal Code, the Corruption Act and the Criminal Law (Amendment)

Act. Thus, the Legislature about a month before the main Act came into

force clearly declared

its intention that there,

~ou1d be no question of the

State Act colliding with the Central Acts referred to above. The second part

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258 SUPREME COURT REPORTS [1979] 3 s.c.R.

.A of s. 29 also provides that nothing contained in the State Act shall exempt any

public man from

b'eing proceeded with by way of investigation or otherwise

under a proceeding instituted against him under the Central Acts. It

is,

rhere·

fore, clear that in view of this clear intention of the legislature there can be no

room for any argument that the State Act was in any way repugnant to the

Central Acts. [279 D-280 DJ

B 7. The provisions of s. 29 would be presumptive proof of the fact that

there is no repugnancy between the State Act and the C1:ntral Ac.;ts nor did

either the legislature or the· President intend to create any repugnancy beh1i'een

these Acts as a result of which the criticism regarding the repugnancy is com~

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pletely obliterated in the instant case and we,, therefore, hold that the State ~ '

legislature never intended to occupy the same field as covered by the Central......_ "­

Acts. [281 BJ

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8. So far as the first part of cl. (12) (a) is concerned, namely 'in the

service of the Government undoubtedly signifies a relationship of master and

servant where the employer employs the employee on the basis of a salary or re­

muneration. However, the second limb of the clause, 'in the pay of the Govern­

ment' is concerned, that appears to be of a much wider amplitude so as to include

within

its ambit even a public servant who may not be a regular employee

receiving salary from his master. A Minister

or a Chief Minister will be

clearly covered by the said expression. [282 E-F]

A careful analysis

of the meanings assigned to the word 'pay' in the various

dictionaries

an<! the texts would clearly reveal that the expression 'in the pay

of' connotes that a person

is getting salary, compensation, wages or any amount

of tnoney. This by itself however does not lead to the inference that a

rela­

tionship of master and servant must necessarily exist in aII cases where a person

is paid salary. [283 G-HJ

Shorter Oxford English Dictionary; Websters Third New Inter­

national Dictionary : Websters New World Dictionary : Words a.nd

Phrases, Permanent Edition Vol. 31A p, 176. Venkataramaya's

Law Lexicon Vol.

11 p. 1122. Corpus Juris Secundum

"\lol. 70 p. 200;

referred to.

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9. By virtue of the prov1s1ons contained in Art. 167, the Chief lviinister

undoubtedly performs a public duty of the nature as enjoined by clauses (a)

lo (c) of Art. 167. It is also clearly provided in the Constitution that the

Chief Minister

or the Ministers are entitled to salaries or

allowances obviously

in lieu

of public duties that they perform. The salaries given to the

Chief

hfinister or the Ministers are given from the Government funds, and, therefore,

there

will be no

difficult}' in holding that the Ministers are in the pay of the

Government inasmuch

as they receive

their salaries, remunerations or wages

from the Government. [285 E-F]

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Once it is conceded that the Governor appoints the Chief Minister who is

paid a salary according to a statute made-by the legislature from the Govern~

ment funds, the Chief Minister becomes a person in the pay of the Govern­

ment so as to fall squarely within cl. (12) of s. 21 of the Penal Code. [286 BJ

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M. KARUNANIDHI v; UNION 259

10. The use of the words 'other public servants' following a Minister of

the Union or of a State clearly show that a Minister would also be a public

servant

as other public servants contemplated by s. 199(2) of the Code and

the Code being a statute complementary and allied to the

Penal Code can be

looked into for the purpose of determining the real meaning and import of

the words 'public servant' as used in the aforesaid section [286 F]

Dattatraya Narayan Patil v. State of Maharashtra, [1975], Supp. SCR 145; B

Emperor v. Sibnath Banerji & Ors., AIR 1945 PC 156; Rao Shiv Bakadur

Singh & Anr. v. The State of .TJ.indhya Pradesh, [1953] SCR 1188; referred

to.

_s-~ --S. Tara Singh v. Director Consolidation of Holdings, Punjab, Jullundur &

Ors. AIR 1958 Pub. 302, Bakshi Ghulam Mohd. v. G. M. Sadiq & Ors., AIR

1968 J & K 98; approved.

11. Three facts that have been proved beyond doubt :-

. (i) That a Minister is appointed or dismissed by the Governor and is,

therefore, subordinate to him whatever be the nature and status of his consti­

tutional function.

(ii) That a Chief Minister or a Minister gets salary for the public work

done or the public duty performed by him.

(iii) That the said salary is paid to the Chief Minister or the Minister

from the Government funds. [290A-B]

12. It is thus incontrovertible, that the holder of a public office such as the

Chief Minister

is a public servant in respect of which the Constitution provides

that

he will get his salary from the Government Treasury so long he holds

his

office on account of the public service that he

disch<irges. The tialary

given to the Chief Minister is coterminus with his office and is not paid like

other constitutional functionaries such

as the President and the Speaker.

These facts, therefore, point to one and only

one. conclusion and that is that

the Chief 1finister is in the pay of the Government ood is, therefore, a public

-iiervant within the meaning of s. 21(12) of the Penal Code. [290 C-D]

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-· CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 270-

271 of 1977.

From the Judgment and Order dated 10-5-1977 of the Madras

High Court in W.P. No. 429 and Cr!. R.P. No. 50/77. G

K. K. Venugopal, N. A. Subramaniam, C. S. Vaidyanathan, Mrs.

Shanta Venugopal,

K. R.

Chowdhary and Mrs. Veena Devi Khanna for

the Appellant.

S. N. Kackar, Sol. Genl. (In Cr!. A. No. 270) R. B. Datar and

R. N. Sachthey, for the Respondent.

V. P. Raman, Adv. Genl and A. V. Rangam for the State of Tamil

Nadu.

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260 SUPREME COURT REPORTS [1979] 3 s.c.s.

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FAZAL Au, J. These two appeals by certificate are directed

against a common order

of the Madras High Court dated 10th May,

1977 dismissiug the applications

filed before the High Court by the

appellant for quashmg

the order of the Special Judge, Madras dated

4th January, 1977 refusing

to discharge the appellant under section

239 of the Code of Criminal Procedure (hereinafter referred to

as

the

Code).

The facts of the case have been detailed in the judgment of the ~ . ._

High Court aad it is not necessary for us to repeat the same all over ->

again. However, in order to understand the points in issue, it may be

necessary to give a resume of the important stages through which the

case has passed and the constitutional points argued before us.

The appellant, M. Karunanidhi, was a former Chief Minister of

Tamil Nadu and

was the petitioner before the High Court in the

appli­

cations filed by him before the High Court. On 15-6-1976 a D.O. letter

was written by t11e Chief Secretary to the Government of Tamil Nadu

to the Deputy Inspector General

of Police, CBI requesting him

lo

make a detailed investigation into certain allegations against the appel­

lant and others who were alleged to have abused their official position

in the matter of purchase of wheat

from Punjab. A first information

report

was accordingly recorded on 16-6-1976 and four months later

sanction under section. 197 of the Code

was granted by the Governor

of Tamil Nadu for

the prosecution of the appellant under sections 161,

468 and 471

of the Indian

Penal Code and section 5(2) read with sec-

tion 5 (1) (d)

cf the Prevention of Corruption Act (hereinafter referred_

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to as the Corruption Act) . Thereafter, the police submitted a charge- ••

sheet against the appellant for the offences mentioned above and alleged

that the appellant had derived for himself pecuniary advantage to the

extent of Rs. 4

to Rs. 5 Iakhs from Madenlal Gupta for passing favour-

able orders in respect

of some firms. The case was registered before

the

Special Judge and the uecessary copies of the records were furnished

to the appellant. The appellant

on appearing before the Special Judge

filed an application for discharging him nnder section 239 of the

Code

on the grour.d that the prosecution against him suffered from various

legal and conslilutional infirmities. The Special Judge, however, after

hearing counsel for the parties rejected

the application of the appellant

as a result of

\hich the appellant filed two applications in the High

Court for quashing the proceedings and for setting aside the order of

the Special Judge refusing to discharge the appellant. As indicated

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M. KARUNANIDHI v. UNION (Fazal Ali, J.) 261

above, the High Court rejected the applications of the appellant but A

granted a certificate for leave to appeal to this Court and hence these

appeals before

us. • As far bacii. as 30th December, 1973 the Madras Legislature had

passed an Act known

as The Tamil Nadu

Public Men (Criminal Mis­

conduct) Act, 1973 hereinafter referred to

as the State Act. The ' State Act was pas~ed after obtaining the assent of the President of India.

This State Act was, however, amended by Act 16 of 197 4 and the

President's assent

was received on

10th April, 1974. According to the

provisions of

the

State Act the statute was brought into force by virtue

,_.,J. oj a notification with effect from 8-5-1974. According to the allegations

" made against the appellant, the acts said to have been committed by

him

fell within the period November 197 4 to March, 197 5.

On

31-1-1976 by virtue of the provisions of Article 356 President's rule

was imposed

in the

State of Tamil Nadu and the Ministry headed by

the appellant was dismissed and a Proclamation to his effect was issued

on the same date. The High Court decided

the petitions of the appel­lgnt on 10-5-1977 and granted a certificate for leave to appeal to this

Court on 27-7"1977. Subsequently, however, the State Act was re­

pealed and the President's assent to the repealing of the State Act was

given on 6-9-1977. Thus, it is manifest that by the time the appeal

bas reached this Court and

was taken up for hearing the

State Act no

longer exists. Consequently, some of the constitutional points raised

by the learned counsel for the appellant before the Court do not sur­

vive for consideration before

us.

Faced with this situation, Mr. Venn Gopal, learned counsel for the

appellant has raised

only two points before us. In the first place, be

submitted that even though the

State Act was repealed on 6-9-1977

>, .. ,during the time that it was in force, it was wholly repugnant to the

•/ provisions of the Code, the Corruption Act and the Criminal Law

Amendment Act and

by virtue of Article 254(2) of the Constitution

of India the provisions of the aforesaid Central Acts stood repealed

and could not revive after the

State Act was repealed. The constitu­

tional position, it

is submitted, was that even though the

State Act was

repealed the provisions of the Central Acts having themselves been

protanto repealed by the State Act when it was passed could not be

pressed into service for the purpose

of prosecuting the appellant unless

those provisions

were re-enacted by the appropriate legislature. A

number

of grounds were raised by counsel for the appellant in support

of

the first plank of his argument that the

State Act was repugnant to

the provisions of the Central Acts

as a result of which the former was

rendered

void.

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262 SUPREME COURT REPORTS [1979] 3 S.C.R.

Secondly, it was ar!'jlled that even assuming that the State Act has

ceased to exist and the Central Acts apply to the facts of the present

case, the appellant cannot be prosecuted under any of the sections of

the Penal Code or the Corruption Act, because being the Chief Minis­

ter

of

the State at the relevant time he was not a public servant as

defined in section 21 clause (12) of the Indian Penal Code. The

argument was that by virtue

of the position that the appellant enjoyed

as Chief

Minis~r there was no relationship of master and servant

between him and the Government and he

was acting as a constitutional

functionary and, therefore, could not be described

as a public servant

as contemplated by section

21 (12) of the

Penal Code.

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We propose to deal with the two arguments separately. We would ".

first deal with the question of repugnancy as raised by learned counsel ?

for the appellant. It is true that the State Act was passed by the

Legislature of Tamil Nadu and the assent of the President was obtained

on 30th December, 1973. By virtue of the provisions of Article 254

(2) of the Constitution since the assent of the

President had been

given the State Act was to prevail over the Central Acts so far as the

State of Tamil Nadu

was concerned, but the serious question to be

considered is as to whether or not there was a real repugnancy result;

ing from an irreconcilable inconsistency between the

State Act and the

Central Acts. Article 254 of the Constitution runs thus :~

"254. Inconsistency between laws made by Parliament

and laws made

by the Legislatures of States : ( 1) If any

pro­

vision of a law made by the Legislature of a State is repug­

nant to any provision of a law made by Parliament which

Parliament is competent to enact, or to any provision of an

existing law with respect to one of the matters enumerated

in the Concurrent List, then, subject to the provisions of

clause

(2), the law made by

Parliament, whether passed

before

or after the law made by the Legislature of such

State,

or, as the case may be, the existing law, shall prevail and the

law made

by the Legislature of the

State shall, to the extent

of the repugnancy, be void. •

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(2) Where a law made by the Legislature of a State with

respect to one of the matters enumerated in the Concurrent

List contains any provision repugnant to the provisions of

an earlier law made by Parliament or an existing law with

respect to that matter, then, the law so made

by the Legisla­

ture of such

State shall, if it has been reserved for the con­

sideration of the President and has received his assent, pre­

vail

in that

State :

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M. KARUNANIDHI v. UNION (Fazal Ali, J.) 263"

Provided that nothing in this clause shall prevent Parlia­

ment from enacting at any time any law with respect to the

same matter including a law adding to, amending, varying

or repealing the law

so made by the Legislature of

State" .

It would be seen that so far as clanse (l) of Article 254 is con­

cerned it clearly lays down that where there is a direct collision bet-

~ ween a provision of a law made by the State and that made by Parlia­

ment with respect to one of the matters enumerated iu the Concurrent

List, then, subject to the provisions of clause (2), the State law would

be void to the extent of the repugnancy. This naturally means that

~where both the State and Parliament occupy the field contemplated by

. ' the Concurrent List then the Act passed by Parliament being prior

'> in point of time will prevail and consequently the State Act will have

to yield to the Central Act. In fact, the scheme of the Constitution

is a scientific and equitable distribution of legislative powers between

Parliament and the State Legislautres. First, regarding the matters

contained in List l, i.e. the Union List to the Seventh Schedule, Parlia­

ment alone is empowered to legislate and the State Legislatures have

no authority to make

any law in respect of the Entries contained in

List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard

to any

of the Entries appearing' therein, but that is subject to the con­

dition

laid down by Article 254(1) discussed above. Thirdly, so far

as the matters in List II, i.e., the State List are concerned, the State

Legislatures alone are competent to legislate on them and only under

certain conditions Parliament can do so. It is, therefore, obvious that

in such matters repugnancy may result from the following circum·.

stances :-·

l. Where the provisions of a Central Act'· and a State

Act in the Concurrent List are fully inconsistent and are

absolutely irreconcilable, the Central Act will prevail and the

State Act

will become void in view of the repugnancy.

2. Where however a law passed by the

State comes into

collision with a law passed

by

Parliament on an Entry in the

Concurrent List, the State Act shall prevail to the extent

of

the repugnancy and the provisions of the Central Act would

become void provided the

State Act has been passed in

accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while

being substantially within the scope of the entries in the State

List entrenches upon any of the Entries in the Central List

A.

c

E

G

A

B

c

D

E

264 SUPREME COURT REPORTS [1979] 3 s.c.R.

the constitutionality of the law may be upheld by invoking

the doctrine of pith and substance if on an analysis of the

provisions of the Act it appears that

by and large the law

falls within the four corners of the

State List an entrench­

ment,

if any, is purely incidental or inconsequential.

' 4. Where, however, a law made by the State Legislature

on a subject covered

by the Concurrent List is inconsistent

with and repugnant to a previous law made

by

Parliament,

then such a law can be protected by obtaining the assent of

the President under Article 254(2) of the Constitution. The

result of obtaining the assent of the President would be that

so far

as the

State Act is concerned, it will prevail in the

State and overrule the provisions of the Central Act in their

applicability to the State only. Such a state of affairs will

exist only until Parliament may at any time make a law

adding to, or amending, varying or repealing the law made

by the

State Legislature under the proviso to Article 254.

So far as the present State Act is concerned we are called upon to

consider the various shades of the constitutional validity of the same

under Article 254(2) of the Constitution.

It

is neither alleged or argued that l'arliament has at any time after

the State Act was passed proceeded to pass any law as contemplated

by the Proviso to Article 254. As, however, the State law has already

been repealed

and the

President's assent to the said repeal has been

received as far back as 6-9-1977 we are concerned only with the limited

qtrestion as to whether if the State law had repealed or overruled the

provisions of the Central law what

will be the position after the

State

•

•

,

•

F law itself ceases to exist. It is true that the doctrine of eclipse would

~ot apply to the constit~tio~ality of the Central law and t~e only ~~s~ ~

hon we have to determme 1s whether there was such an meconcilabfe -....,.

G

H

inconsistency between the State Act and the Central Acts that the -

provisions of the Central Act stood repealed abd unless re-enacted the ~-

said provisions cannot be invoked even after the State Act was itself

repealed.

In order, however, to enter into the domain of repugnancy

of the

two Acts we have to consider the relevant provisions of the

Central Acts and of the

State Act. The High Court has on a very

• ....

careful abd cautious analysis of the various provisions of the two Acts -' •

come to a clear finding that there is no repugnancy between the State

Act and the Central Acts, but the State Act merely creates a new and

distinct offence

which in its nature and purport is

~sentially different

from the offences contemplated by the Ibdian Penal Code and the

Corruption Act.

It has been pointed out by the High Court as also

'

·•

•

'

-

"'

••

'>----··

'

M. KARUNANIDHI v. UNION (Fazal Ali, J.) 2 6 5

by the Solicitor General that not only the ingredients of the offences

created by the State Act are different from those of the Central Act,

but even the procedure

is different. It was further

argued by the Soli­

citor General that there is absolutely no repuguancy between the two

Acts and both can operate in their respective

fields.

A

Iu order to appreciate this question, we would briefly refer to the B

scheme of the

State Act. Section 2 defines o~rtain dignitaries like

Commissioner, Additional Commissioner, Government, Public man,

public servant.

Clause (a) of section 2 defines 'Commissioner' thus:

" 'Commissioner' or "Additional Commissioner'' m·~ans

the Commissioner of Inquiries or an Additional Commissioner

of Inquiries,

as the case may be, appointed under section 4"

Clause ( c) of section 2 defines 'public man' thus :

"Public man" means

(i) any person who is or has been the Chief Minister or

any other Minister of the State;

(ii) a person who is or has been a Member of the Legis-

lative Assembly or of the Legislative Council of the

State; or

(iii) a person who is or has been a Mayor or Deputy

Mayor of the Municipal Corporation of Madras or of

Madurai or Chairman of any Standing or Subject or

other Committee constituted or deemed to be consti-

tuted under the Madras City Municipal Corporation

Act, 1919 (Tamil Nadu Act IV of 1919) or the

Madurai City Municipal Corporation Act, 1971

(Tamil Nadu Act

15 of 1971) as the case may be;

(iv) a person who

is or has been the Chairman or Vice-

Chairman of a Municipal Council or Chairman of any

Standing or

Subject or other Committee constituted

or deemed to

be constituted under the Tamil Nadu

Disirict Municipalities Act, 1920 (Tamil Nadu Act V of 1920) or any other law for the time in force;

( v) a p~rson who is or has been the Chairman or Vice-

c

D

E

F

G

Chairman of a Panchayat Union Council or Chairman H

or President of any Standing or Subject or other Com·

mittee of such council constituted or deemed to be

18-196 SC!/79

A

B

c

E

F

G

266 SUPREME COURT REPORTS [1979] 3 s.c.R.

constituted under the

Tamil Nadu Panchayats Act,

1958 (Tamil Nadu Act

XXXV of 1958), or any

other law for the time being in force;

(vi) a person other than a Government servant who is or

has been the Chairman

of-

( a) any corporation (not being a local authority)

established

by or under a State or Provincial Act

and

owned or controlled by the

State Govern­

ment;

(b) any Government company within the meaning of

section 617 of the Companies Act, 1956 (Cen­

tral Act 1 of 1956),

in which not

less than fifty­

one per cent of the paid-up share capital is held

by the State Government, or any company which

is a subsidiary of a company in which not less

than fiftyone per cent of the paid-up share capital

is held by the State Government".

It may be noticed here that the concept of public-man as contemplated

by the State Act differs in certain respects from that of a public servant

as contemplated by section 21 (12) of the Penal Code.

To begin with, unde.r the State Act a public-man clearly includes

the Chief Minister or any other Minister of the State as also a member

of the State Legislative Assembly or Legislative Council. Secondly, the

word 'public man' appearing

in

Section 2(c) clearly excludes a

Government servant, unless he falls within the categories of (a), (b)

and (c) of clause (vi) of section 2 of the State Act. This is a basic

departure

from the provisions of

the Penal Code where the word

'public servant' has

been used in the widest possible sense so as to

include not only

Government servants who are receiving salary from

the Government, but also other dignitaries who are in the pay of the

Government.

Section 3 clauses (1), (2) and (3) define criminal misconduct

which is almost the same as defined by the provisions of the Corruption

Act and the Penal Code (sections 5(2) and 5(1) (d) of the Corruption

Act and section

161 of the Indian

Penal Code).

H It may, however, be noted here that the State Act does not make

ioections 468 and 4 71 of the Indian Penal Code any offence under this

Act. Section 4 prescribes the procedure for appointment of a high

•

;

1

..

•

'

•

M. KARUNANIDHI v. UNION (Fazal Ali, !.) 267

powered tribunal for the purpose of holding investigation into the allega-A

tions made against any public man. Sections 4

a'nd 5 run thus :-

"4. Appointment of Commissioner of Inquiries and Addi-

tional Commissioner

of Inquiries: (1) For the purpose of

conducting investigation in accordance with the provisions of

this Act, the Government shall, on the recommendation of

the

Chief Justice of the High Court appoint, by notification, a

person to be known as Commissioner of Inquiries and one

or

more persons to be known as Additional Commissioner of

Inquiries.

(2) The Commissioner shall be a person who is, or who

is qualified for appointment as, or who has been, a Judge of

a High Court and an Additional Commissioner shall be a

person who is,

or who is qualified for appointment as, or who

has been, a District Judge.

(3) Every person appointed as the Commissioner or

Additional Commissioner shall, before entering upon his office,

make and subscribe before the Chief Justice of the

High Court

or some person appointed in that

behalf by him a'n oath for

affirmation in the form set out for the purpose in the First

Schedule .

(

4) The Additional Commissioner shall be subject to the

administrative control of the Commissioner, and in

particular,

for the purpose of convenient disposal of investigations under

this Act, the Commissioner may issue such general or special

directions as he may consider necessary to the Additional

Commissioner;

Provided that nothing in this sub-section! shall be cons­

trued to authorise the Commissioner to question any finding

conclusion

or recommendation of an Additional

Commis­

sioner.

x x x x x

5. Term of office and other conditions of ,!ervice of Com-

~ missioner and Additional Commissioner :

x x x x

·.--.::-1

' "

B

c

D

E

F

G

(4) There shall

be paid to the Commissioner and the H

Additional Commissioner such salaries as are specified in

the

Second Schedule. T)

" ;.

A

B

D

E

F

G

H

268 SUPREME COURT REPORTS [1979] 3 S.C.R.

(5) The allowances and pension payable to, and other

conditions of service of, the Commissioner

or Additional

Commissioner shall

be the

same as admissible -

(a) to a Judge of a High Court in the case o! the Com­

missioner,

(b) to a District Judge in the case of an Additional

Commissioner :

Provided that the allowance" and pension payable to, and

other conditions o! service of, the Commissioner or an Addi­

tional Commissioner shall not be varied to hii cliiadvantage

after his appointment".

Another impcrtant provision which is contained in the State Act

but not in the Central Acts is a provision regarding limitation. Under

section 8 which was introduced by section 2 of the Tamil Nadu Amend­

ing Act

16 of 1974 it is provided that the Commissioner or the

Addi­

tional Commissioner shall not investigate any complaint invohing

criminal misconduct which is made after the expiry of 5 years from

the date

on which the criminal misconduct complained against was

alleged to have been committed

or after the expiry

o! one year from

the date on which the public man ceased to be such public man. The

provisions of section 8 may be extracted thns :-

"6. Limitation for preferring complaints : ( 1) The Com­

missioner or an Additional Commissioner shall not investigate

or cause to be investigated any complaint involving criminal

misconduct if the complaint is made :-

(i) after the expiry of five years from the date on which

the criminal misconduct complained against was alleged to

have been committed;

or

(ii) after the expiry of one year of the date on which the

public ceases

to be such public man,

Whichever

is later.

(2) Notwithstanding anything contained in sub-section

(1), the Commissioner or an Additional Commissioner shall

not investigate

or cause to be investigated any complaint in­

volving criminal misconduct, the complaint is made after the

expiry of one year from the date on which the action com­

plained

again5t becomes known to the complainant".

•

•

J.

•

,

(

'

'

•

M. KARUNANIDHI v. UNION (Fazal Ali, !.) 26 9

Similarly section 10 of the State Act confers plenary powers on A

the Commissioner or the Additional Commissioner

to prescribe a

procedure for conducting an investigation

in respect of a complaint

and runs thus

:-

"10. Procedure in respect of investigation of criminal

misconduct : (

1) The procedure for conducting any investi­

gation in respect of a complaint of criminal misconduct

against any public man shall be such

as the Commissioner

or

tl1e Additional Commissioner considers appropriate in the

circumstances of the case.

B

(2)

Subject to the provisions of sub-section (1), where C

any complaint of criminal misconduct against a public man

is received by the Commissioner or Additional Commissioner,

the Commissioner or Additional Commissioner shall make or

cause to be made a preliminary investigation to find out

whether there is any prima facie case against the public

man in respect of the allegation of criminal misconduct : D

x x x

( 3) Where

tht Commissioner 01: Additional Commissioner

gives a finding under sub-section

(2) that there is no

prima facie case against the public man in respect of the

allegation

of criminal misconduct, he shall dismiss the com­

plaint after briefly recording his reasons for doing so :

Provided that the Commissioner or Additional Commis­

sioner shall not dismiss any complaint under this sub-section,

unless the complainant has been given an opportunity of being

heard, if such complainant has not already been heard

under clause (a) of the proviso to sub-section

(2).

x x x

x"

E

F

Under clause (3) of section 10 the Commissioner or the Additional

Commissioner is empowered to dismiss the complaint if he is satisfied G

that no prima facie case against the public man ha$ been made out,

but such an order of dismissal can be made only after the complainant

has been given an opportunity of being heard.

Section

11

is also a new provision as compared to the Central

Acts which provides for grant of compensatory costs to the public H

man if the. allegation made against him are found to be false, frivolous

or vexatious to the knowledge of the complainant.

'

A

B

c

270 SUPREME COURT REPORTS

(1979] 3 S.C.R.

Section 12 gives a right of ap~al to a Division Bench of the

High Court against any order passed by the Commissioner

or

Addi­

tional Commissioner under sub-section (1) of • section 11 granting

compensatory costs to the public man and runs thus :-

"Appeal against an order under section 11 : (1) •

Against any order passed by the Commissioner or Additional

Commissioner under sub-section

(1) of section 11, the

complainant may, within such period as may

be prescribed,

• appeal to a Special Appellate Tribunal consisting of two

Judges of the High Court nominated from time to time by

the Chief Justice in that behalr'.

Section 14 provides the procedure for examination of witnesses,

receiving of affidavits, issuing of commissions etc.

Section 15 provides an enhanced punishment of seven years for

criminal misconduct as compared to the punishment provided by the

D Corruption Act.

E

F

G

H

Section 16 provides for prosecution of a complainant if his

com­

plaint is found to be false, frivolous and vexatious and such a com­

plainant is liable to be punished for a term which may extend to three

years and fine, but such a prosecution can be launched only witbi the

previous sanction of the Commisioner. Section 16 runs

thus:-

"16. Punishment for false, frivolous or vexatious com­

plaint : ( 1) Notwithstanding anything contained in this Act,

every person who makes a false, frivolous or vexatious com­

plaint against a public man under this Act, shall on conviction

bo punished with imprisonment for a term which may extend

to three years and shall also be liable to fine".

A careful analysis, therefore, of the various provisions of the State

Act leads to the irresistible inference that the State Act

was passed

with a view to

afford sufficient protection to a public man by enjoining

a summary inquiry or investigation by a high and indepmdent Tribunal

of the status of a High Court Judge or a Senior District Judge to

instill confidence in the people and to prevent public man from being

prosecuted on false, frivolous and vexatious allegations. Although the

ingredients of crimiqal misconduct as defined in section 5 (1 )( d) of

the Corruption Act are substantially the same in the State Act as ll,:i

the Central Acts but here also the punishment is much severer in the

case of the State Act than the one contained in the Central Acts. It

is, therefore, manifest that the State. Act does not contain any provi­

sion which is repugnant to the Central Acts, but is a sort of comple-

'

•

·~

•

'

-,

•

M. KARUNANIDHI v. UNION (Fazal AU, !.) :&71

mentary Act which runs pari passu the Central Acts mentioned above. A

After the investigation by the Commissioner under the State Act

is complete and a report is submitted, section 18 of the State Act

provides thus :-

"18. Report of the Commissioner and Additiona'

Commissioner : (1) Where as a result of any detailed inves­

tigation under

sul>-section ( 4) of section

10 in respect of a

complaint of criminal misconduct against a public man, the

Commissioner or an Additional Commissioner

is of

opinion,-

(a) that it is expedient in the interest of justice that the

public

man against whom criminal

misccliduct has been

alleged, should be prosecuted fo~ an offence under section

15; or

(b) that the allegation has not been substantiated, he

shall record a finding to that effect stating his reasons there-

B

c

for and report the same to the Government. D

(

2) In cases falling under clause (a) of

sul>-section (1) ,

the public man shall be prosecuted and tried under section 6

of the Criminal Law (Amendment) Act, 1952 (Central

Act 46 of 1952)".

The State Act enjoins that the public man concerned will have to be

prosecuted under the Criminal Law (Amendment). Act of 1952. Thus,

far from there being any inconsistency, the provisions of the Criminal

Law (Amendment) Act are directly applied to a public man by thq

State Act after the preliminary investigation by the Commissioner is

over. It seems to us that what the State Act does is merely to create

,different and distinct offences and not

to over-rule any provisions of

the Central Act.

It was, however, strongly contended by Mr. Venu Gopal that the

provisions contained in the

State Act run counter to tho5e qf the

Central Acts in respect of the following matters :

1. The procedure for investigation of the offences by a

Central agency

as contemplated by the

Corruption Act

is dispensed with and

is instead invested in

a: Com-·

missioner appointed under the State Act.

2. The provision under the Prevention

of Corruption: Act

E

F

G

regarding the grant of sanction under section 197 of H

the Code to the accused

is given a complete go by and

instead a Commissioner

is appointed to hold a regular

A

B

c

E

F

G

272 SUPREME COURT REPORTS [1979] 3 s.c.R.

inquiry for himself and then to submit his report.

Thus, an accused who has been tried under the State

Act

is deprived of protection afforded to every Gov­

ernment servant regarding grant

of a sanction by the

appointing authority.

It is thus suggested that the

protection, if any, given by the State Act

is

pwely

illusory.

In order, however, to understand the argument of the learned counsel

for the appellant, it may be necessary to consider the question of

repngna\Jcy in a little broader perspective.

It is well settled that the presumption is always in favour of the

constitutionality of a statute and the onus lies on the person assailing

the Act to prove that it

is nnconstitutional.

Prima facie, there does

not appear to

us to be any inconsistency between the State Act and

the Central Acts. Before any repugnancy can arise, the

following

conditions must be satisfied:-

!. That there is a clear and direct inconsistency between

the Central Act and the State Act.

2. That such an inconsistency

is absolutely irreconcil­

able.

3. That the inconsistency between the provisions of the

two Acts

is of such a nature as to bring the two Acts into

direct collision with each other and

a situation is reached

where it

is impossible to obey the one without disobeying

the other.

In Colin Howard's Australian Federal Constitutional Law, 2nd

Edition the author while describing the nature

of inconsistency bet­

ween the two enactments observed as follows:-

"An obvious inconsistency arises when the two enact­

ments produce different legal results when applied to the

same facts".

In the case of Hume v. Palmer(

1

) Knox, C.J. observed as.

follows:-

"The rules prescribed by the Commonwealth Law and

the State law respectively are for present purposes substan­

tially identical, but the penalties imposed for the contra-

vention

differ ................................. .

In these circumstances, it is I think, clear that the

reasons

given by my brothers Issacs and Starke for the deci­

(1) 38 C. L. R. 441.

•

..

•

• .....

f

•

•

M. KARUNANIDHI v. UNION (Fazal Ali, !.) 273

sions of this Court in Union Steamship Co. of New Zealand

v. Commonwealth(') and Clyde Engineering Co. v. Cow­

burn(') establish that the provisions of the law of the State

for the breach of which the appellant was convicted are

inconsistent with the law of the Commonwealth within the

meaning

of sec.

109 of the Constitution and are therefore

invalid".

Issacs, J. observed as follows:-

,.~··

..

"There can be no question that the Commonwealth

Navigation Act, by its

own direct provisions and the Regu­

lations made under its authority, applies upon construction

to the circumstances

of the case. It is inconsistent with the

State Act in various ways, including (1) general supersession

of the regulations of conduct, and so displacing the State

regulations, whatever those may be; (2) the jurisdiction to

convict, the State law empowering the Court to convict

summarily, the Commonwealth Law making the contraven­

tion an indictable offence, and therefore bringing into opera­

tion

sec.

80 of the Constitution, requiring a jury; (3) the

penalty, the State providing a maximum of £ 50 the Com­

monwealth Act . prescribing a maximum of £ 100, or

imprisonment,

or both; ( 4) the tribunal

itself".

•

Starke, J. observed as follows:-

"It i' not difficult to see that the Federal Code would be

'disturbed or deranged' if the State Code applied a different

sanction in respect of the same act. Consequently the State

regulatjon' are, in my opinion, inconsistent with the law of

the Commonwealth and rendered invalid by force of

sec. 109 of the Constitution''.

In a later case of the Australian High Court in Ex. Parte

Mclean(')

Issacs and

Starke, JJ. while dw~lling on the question of

repugnancy made the following

observation:-

"In Cowburn's case (supra) is stated the reasoning for

that conclusion and

we will now refer to those statements

without repeating them.

In short, the very same

~onduct

by the same persons is dealt with in conflicting terms by the

Commonwealth and State Acts. A Court, seeing that, has

(!) 36 C. L. R. 130.

(2) 37 C.L.R. 466.

(3) 43 C.L.R. 47i.

A

B

c

D

E

F

G

H

B

c

D

E

F

G

274

SUPREME COURT REPORTS [1979] 3 s.c.R.

no authority to inquire further, or to seek to ascertain the

scope or bearing of tbe State Act. It must simply apply

sec. 109 of tbe Constitution, which declares the invalidity

pro tanto of. tbe State Act".

Similarly Dixon, J. observed thus:-

"When the Parliament of the Commonwealth and the

Parliament of a State each legislate upon the same subject

and prescribe what the rule

of conduct shall be, they make

laws

which are inconsistent, notwithstanding that the rule of

conduct is identical

which each prescribes, and sec.

109

applies. That this is so is settled, at least when the sanc­

tions they impose are diverse Hume v. Palmer (supra)".

In tbe case of Zaverbhai Amaidas v. The State of Bombay(')

this Court laid down the various tests to determine the inconsistency

between

two enactments and observed as follows-

"The important thing to consider with reference to this

provision

is whether the legislation is 'in respect of the same

matter'.

If the

lat~r legislation deals not with the matters

which formed the subject of the earlier legislation but with

other and distinct matters though of a cognate and allied

character, then Article 254 (2)

will have no application.

The principle embodied

in section

107 (2) and Article 254

(2)

is that when there is legislation covering the same

ground both

by the Centre and by tbe Province, both of

them being competent to enact

the· same, the law of the

Centre ehould prevail over that of the State".

"It is true, as already pointed out, that on a question

under Article 254 (

1) whether an Act of Parliament

pre­

vails against a law of the State, no question of repeal arises;

but the principle

on which the rule of implied repeal rests,

namely, that

if subject-matter of tbe later legislation is

identical with tbat of the earlier, so that they cannot both

stand together, then

the earlier is repealed by the later

en­

actment, will be equally applicable to a question under Arti-

cle 254(2) whether tbe further legislation by Parliament is

in respect of the same matter as that of the State law".

In the case of Ch. Tika Ramji & Ors. etc. v. The State of Uttar

ft Pradesh & Ors.(') while dealing with the question of repugnancy

(I) [1955] I S.C.R. 799.

(2) (1956] S.C.R. 393

•

•

'

•

•

M. KARUNANIDHI v. UNION (Fazal Ali, l.) 2 7 5

between a Central and a State enactment, this Court relied on the

observations of Nicholas in his Australian Constitution, 2nd Ed. p.303,

where three tests of inconsistency

or repugnancy have been laid down

and which are as follows:-

" (1) There may be inconsistency in the actual terms of

the competing statutes

R. Brisbane Licensing

Court(').

(2) Though there may be no direct conflict, a State law

may

be inoperative because the Co=onwealth law, or the

award

of the Commonwealth Court, is intended to be a

complete exhaustive code

Clyde Engineering Co. Ltd. v.

Cow burn (supra).

(3) Even in the absence of intention, a conflict may

arise when both State and Co=onwealth seek to exercise

their powers over the same subject matter Victoria

v.

Com­

monwealth(2) Wenn v. Attorney General(')

This Court also relied on the decisions in the case of Hume v.

A

B

c

Palmer as also the case of Ex Parte Mclean (supra) referred to above. D

This Court also endorsed the observations of Sulaiman, J. in the

caoe of Shyamakant Lal v. Rambhajan Singh (') where Sulairnan, J.

obl!erved as follows:

"When the question is whether a Provincial legislation is

repugnant to an existing Indian law, the onus of showing its

repugnancy and the extent

to which it is repugnant should

be on the party attacking its validity. There ought to be

!l

presumption in favour of its validity, and every effort should

be made to reconcile them and construe both so as to avoid

their being repugnant to each other, and care should

be

taken to see whether the two do not really operate in

different fields without encroachment. Further, repugnancy

must exist in fact, and not depend merely on a possibility".

In the case of Om Prakash Gupta v. State of U.P.(

5

) where this

Court was considering the question

of the inconsistency between the

two Central enactments, namely, the Indian

Penal Code and the Pre­

vention of Corruption Act held that there was no inconsistency and

observed as

follows:-"It seems to us, therefore, that the two offences are

distinct and separate. This

is the view taken in A11U1rendra

(I) 28 C.L.R. 23

(2) 58 C.L.R. 618.

(3) 77

C.L.R. 84. (4) [1939] F. C. R. 188.

(5) [1957] S.C.R. 423.

E

F

G

II

A

B

c

D

E

F

G

H

276 SUPREME COURT REPORTS [1979] 3 s.c.R.

Nath Roy v. The State(') and we endorse the opinion of

the learned Judges, expressed therein. Our conclu­

sion, therefore,

is that the offence created under section

5 (1) (c) of

the Corruption Act is distinct and

separate from the one under section 405 of the Indian Penal

Code and, therefore, there can be no question of section

5

(l) ( c) repealing section

405 of the Indian Penal Code.

If that is so, then, Article 14 of the Constitution can be no

bar".

l'

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Similarly in the case of Deep Chand v. The State of Uttar Pradesh f

& Ors. (

2

) this Court indicated the various tests to ascertain the ques-

tion of repugnancy between the

two statutes and observed

as.

follows:-

"Repugnancy between two statutes may thus be ascer­

tained on the basis

of the following three principles:-

( 1) Whether there is direct conflict between the two

provisions;

(2) Whether Parliament intended to lay down an

exhaustive code in respect

of the subject matter replacing the

Act

of the State Legislature; and

(3) Whether the law made by Parliament and

the law

made by the State Legislat\Jre occupy the same field".

In the case of Megh Raj and Ors. v. Allah Rakhia & Ors.('}

where Varadachariar, J. speaking for the Court pointed out that where

a~ in Australia a provision similar to section l 07 of the Government _ ·"""­

of India Act, 1935 existed in the shape of section 109 of the Australian -._.

Constitution, there was no corresponding provision in the American ~

Constitution. Similarly, the Canadian cases have laid down a prin- ' -

ciple too narrow for application to Indian cases. According to the

learned Judge, the safe rule to follow

was that where the paramount

legislation does not purport to be exhaustive or unqualified there

is

no inconsistency and in this connection observed as follows :-

"The principle of that decision is that where the para­

mount legislation does not purport to be exhaustive or

unqualified, but itself permits or recognises other

laws restrict­

ing or qualifying the general provision made in it, it can-

(!) A. I. R. 1955 Cal. 236.

(2)

[1959] 2

Supp. S.C.R. 8

(3) A.LR. 1942 F.C.

27.

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M. KARUNANIDHI v. UNION (Fazal Ali, !.) 277

not be said that any qualification or restriction introduced

by another law

is repugnant to the provision in the main or

paramount

law".

"The position will be even more obvious, if another test

of repugnancy which has been suggested in some cases

is

applied, namely, whether there is such an inconsistency bet­

ween the two provisions that one must be taken to repeal

the other by necessary

implication"

In the case of Stai. of Orissa v. M.A. Tulloch & Co. (') Ayyan­

gar J. speaking for the Court observed as follows:

"Repugnancy arises when two enactments both within

the competence of the

two Legislatures collide and when the

Constitution expressly or by necessary implication provides

that the enactment of one Legislature has superiority over

the other then to the extent of

the repugnancy the one super­

sedes the other. But two enactments may be repugnant to

each other even though obedience to each of them

is pos­

·sible without disobeying the other. The test of two legisla­

tions containing contradictory provisions

is not, however. the

only criterion of repugnancy, for if a competent legislature

with a superior

efficacy expressly or impliedly evinces by its

legislation an intention to cover the whole

field, the enact­

ments of the other legislature whether passed before or after

would be overborne on the ground of repugnance. Where

such

is the position, the inconsistency is demonstrated not by

a detailed comparison of provisions of the two statutes but

by the mere existence of the two pieces of

legislation".

Jn the case of T. S. Balliah v. T. S. Rangacha~i(2) it was pointed

out by this Coun that before corning to the conclusion that there is a

repeal by implication, the

Coun must be satisfied that the two enact­

ments are

so inconsistent that it becomes impossible for them to stand

together.

In other words, this Court held that when there is a direct

collision between the two enactments which

is irreconcilable then only

repugnancy results.

In this connection, the Court made the following

observations

:-

"Before coming to the conclusion that there is a repeal

by implication, the Court must

be satisfied that the two en­

actments are

so inconsistent or repugnant that they cannot

(I) [1964] 4

S .C.R. 461

.(1) [1969] 3 S·C.R. 65.

A

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278 SUPREME COURT REPORTS (1979] 3 S.C.R.

stand together and the repeal of the expr~s prior enact­

ment must

flow from necessary implication of the

language

of the later enactment. It is therefore necessary in this

connection to scrutinise the terms ana consider the true mean­

ing and effect of the two enactments".

"The provisions enacted in s. 52 of the 1922 Act do not

alter the nature or quality of the offence enacted in

s. 177, Indian Penal Code but it merely provides a new course of

procedure for what was already

an offence. In a case of

this description the new statute is regarded not as super­

seding, nor repealing by implication the previous law, but

as

cumulative".

"A plain reading of the section shows that there is no

bar to the trial or conviction of the offender under both

enactments

but there is only a bar to the punishment of the

offender twice for the same offence.

In other words, the

section provides that where an act or omission constitutes

an offence under two enactments, the offender may be prose­

cuted and punished under either or both the enactments

but shall not

be liable to be punished twice for the same

offence".

On a careful consideration,· therefore, of the authorities referred to

above, the following propositions emerge

:-

1. That in order to

d~cide the question of repugnancy it

must be shown that the two enactments contain in­

consistent and irreconcilable provisions, so that they

cannot stand together

or operate in the same field.

2. That there can be no

! ~peal by implication unless the

inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular

field.

there is room or possibility of both the statutes operat­

ing in the same

field without coming into collision with

each other, no repugnancy results.

4. That where there is no inconsistency but

a statute OC·

copying the same field seeks to create distinct and

separate offences, no question of repugnancy arises and

both the statutes continue to operate in the same field.

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M. KARUNANIDffi v. UNION (Fazal Ali,!.) 279

In the light of the propositions enunciated above, there can be no

doubt that the State Act creates distinct and separate offences with

different ingredients and different punishments and it does not in any

way collide with the Central Acts. On the other hand, the State Act

itself permits the Central Act, namely, the Criminal Law (Amend-

ment) Act to come into its aid after an investigation is completed and

' a report is submitted by the Commissioner or the Additional Commis­

sioner. It was contended however by Mr. Venu Gopal that by virtue ..

of the fact that the State Act has obtained the assent or the President,

.it will be deemed to be a dominant legislation, and, therefore, it would

,,+.overrule the Central Acts. Doubtless, the State Act is the dominant

"">< legislation but we are unable to agree with Mr. Venu Gopal that there

are any provisions in the State Act

which are irreconcilably

or. directly

inconsistent with the Central Acts so as to overrule them.

Last but not the least there

is a very important circumstance which

completely and conclusively clinches the issue and takes the force out

of the argument of Mr.

Venu Gopal on the question of repugnancy.

It would be seen that in the original State Act, section 29 ran thus

"Act to overrule other laws, etc.-The provisions of this

Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in

force or any custom, usage or contract or decree or order

of a court or other authority".

This section underwent an amendment which was brought about by

Tamil Nadu Act

16 of 1974 which substituted a new section 29 for

the old one. The new section which

was substituted may be extrac­

ted

thus:-

"Saving-The provisions of this Act shall be in addition

to, and not

in derogation of, any other law for the time be­

ing in force, and nothing contained herein shall exempt any

public man from any proceeding by way of investigation or

otherwise which might, apart from this Act.

be instituted

against

him".

" This amendment received the assent of the President on 10th April,

1974 and was published in the Tamil Nadu Government Gazette

Extraordinary dated 16th April, 1974. We have already shown that

although the State Act

was passed as far back as 30th December, i973

B

c

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G

it

P~ceived the assent of the President on the 10th April, 1974 that is H

..._ to say, on the same date as Act 16 of 197 4. The Act was however

brought into force on the 8th May, 197 4 when the new section 29

A

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280 SUPREME COURT REPORTS [1979] 3 s.c.R.

which had already replaced the old section and had become a part of

the statnte. Therefore, for all intents and purposes the State Act can­

not be read in isolation, but has to be interpreted in coojunction with

the express language contained in section 29 of the State Act. This

section has in unequivocable terms expressed the intention that the

State Act which was undoubtedly the dominant legislatioo would only

be "in addition to and '.not in derogation with any other law for the ,

time being in force" which manifestly includes the Central Acts,

namely, the Indian Penal Code, the Corruption Act and the Criminal

Law (Amendment) Act. Thus, the Legislature about a month b~fore

the main Act came i'.nto force clearly declared its intention that there l

would be no question of the State Act colliding with the Central Act!'T'--,.

referred to above. The second part of section 29 also provides that ('

nothing contained in the State Act shall exempt any public man from

b~ing proceeded with by way of investigation or otherwise under a

proceeding

i'.nstituted against him under the Central Acts. It is, there-

fore, clear that in view of

this clear intention of the legislature there

can be no room for any argument that the State Act

was in any way repu2nant to the Central Acts. We have already pointed out from

the decisions of the Federal Court and this Court that one of the im­

portant tests to find out as to whether or not there is repugnancy is

to ascertain the inteution of the legislatnre regarding the fact that the

dominant legislature allowed the subordinate legislature to operate

in

the same field pari passu the State Act.

Craies in his Interpretation on Statute Law 6th Ed. p. 369 obse­

rves

as follows:-

,.._.

-

"Many earlier statutes contain clauses similar in effect

to the general rule, but without the confusing words as to

contrary intention. These statutes, of some of which a list

is given below, seem not

to be affected by the above rule,

Gave so far as it enables the revisers of the 'tatute-book to

excise the particular clauses. In accordance with this rule,

penalties imposed by statute for offences already punishable

under a prior statute are regarded as cumulative or alter­

native and not as replacing the penalty to which the offender

was previously

liable."

·-

G

Such an intention is clearly discernible from, the provisions of section

29 of the State Act. Mr. Venn Gopal tried to rebut this argument on

. H !he ground that section 29 would have no application where the in­

consistency between the dominant statute and the subordinate statute

. is direct and complete. We have already found on a discussion of

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M. KARUNANIDHI v. UNION (Fazal Ali, J.) 281

the various provisions of t'he State Act that there is no direct incon­

sistency

at all between the

State Act and the Central Acts, ;md this

affords a sufficient answer to the argument of

Mr.

Venu Gopal. Hav­

ing, therefore, given our anxious consideration to the import and ambit

of

section. 29

· it seems to us that the provisions of section 29 would

be presumptive proof of the fact that there is no repugnancy between

the State Act and the Central Acts nor did either the legislature or the

President intend

to create any repugnancy between these Acts as

ii

result of which the criticism regarding the repugnancy is completely

obliterated in the instant case and we, therefore, hold that the State

,~ legislature never intended to occupy the same field covered by the

' Central Acts.

It wns also contended by Mr. Venu Gopal that if the Central Acts

being repugnant

to the

State Act are pressed into service even after

the repeal

of the

State Act, the Central Acts would stand repealed

hence the prosecution of the appellant would be hit by Article 20(3)

of the Constitution, i.e. the appellant cannot be prosecuted for an ex

post facto offence. On our findings in this case that there is no in­

consistency between the State Act and the Central Acts the applica­

tion of Article 20(3) of the Constitution to the facts of this case does

not arise at all.

We, therefore, find ourselves in complete agreement

with the view taken by

the High Court that the State Act creates new

and distihct offences and

is not in

m1y way repugnant to any provisions

-0f the Central Acts and consequently overruled the first limb of the

argument

of counsel for the appellant.

Similarly the contention of Mr.

Venu Gopal as to whether or not

t11e prosecution of the appellant would be violative of Article 14 of

!he Constitution is not available to the appellant, and consequently

the lean1ed counsel gave up this point and in our opinion very rightly

because since the State Act has now been repealed the question of the

prosecution of the appellant hereafter under the State Act does not

arise at all, and, therefore, the question of

two remedies being open to

the prosecution which they may elect at their

own option does not arise

in this case. The appellant can be prosecuted only under the Cor­

ruption Act and the Penal Code and under no other Act at the moment.

Moreover, it

was obviously wrong to

say that the earlier Central Law

became violative of Article 14 as soon as the State law was enacted.

This brings us

to the second limb of the argument of the learned

counsel for the appellant which relates to the import and connotation

of the term 'public servant' appearing in section

21 (12) of the Indian

19-196 SCI/79

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%82 SUPREME COURT REPORTS [1979] 3 s.c.R,

A Penal Code. Clause 12 of section 21 which is the relevant provision

so far

as the present case is concerned runs thus :-

"21. The words 'public servant' denote a person falling

under

any of the descriptions hereinafter following namely :-

x x x

B Twelfth-Every person-

c

D

E

(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:

x x x

It was vehemently contended by Mr. Venu Gopal that having

regard to the constitutional and public duties

of a Chief Minister or

a Minister he cannot be deemed

to be a public servant in any sense

of the term. He further contended that the entire clause (12)

(a)

should be read as a whole and cannot be severed into two limbs in-

as much as the words 'in the service or pay of the Government' are

used

.as synonyms. It was further contended that the words 'in the

service or pay of the Government' clearly connote the relationship of

master and

servant-a relationship which is completely beyond the

concept

of the position of a Minister or a Chief Minister. We, how-

ever, agree that so far as the first part of clause (12) (a) is concern­

ed, namely 'in the service of the Government' undoubtedly signifies a

relationship of master and servant

where the employer employs the

employee on the basis

of a salary or remuneration. But we are of

I

the opinion that so far as the second limb 'in the pay of the Govern­

ment'

is concerned, that appears to be of a much wider amplitude so

as to include within its ambit even public servant who may not be

F a regular employee receiving salary

from his master. In other words;

we think that even a Minister or a Chief Minister will be clearly

covered

by the expression 'person in the pay of the Government'. Mr.

G

H

Venu Gopal, however, relied on the meaning of the words

"in the

pay of'

as appearing in the various dictionaries.

In Shorter

Oxford English Dictionary the expression 'in the pay

of'

is defined thus-

"To give money, etc., in return for something or in dis­

charge of an obligation. Of a thing or action. To yield an

adequate return. To give money or other equivalent value

for".

Similarly 'Payer' is defined thus:

"One who pays a sum of money".

t

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M. KARUNANIDHI v. UNION (Faza/ Ali, /.) 283

· In Webster's Third New International Dictionary the expression A

'in the pay of' is mdicated to mean:-

"Compensate, remunerate, satisfy, reimburse, indemnify,

recompense, repay.

Pay is a general term,

lacking parti-

cular connotation but sometimes bluntly stressing the pur­

chase of service, pay a machinist high wages".

"Wages, salary remuneration".

In Webster's New World Dictionary the expression 'in the pay of

is thus defined:-

"Stresses the idea of payment for a service rendered,

but it often also carries an implication of reward

(a bumper

crop remunerated the farmer for his

labors)". ·

In Words and Phrases, Permanent Edition Vol. 31A p. 176 the

meaning,of the word 'pay'

is given thus:-

/ . . '~Pay" is remuneration, wages or salary. To remune­

rate; to recompense, to give any pay''.

In Venkataramaya's Law Lexicon Vol. II p.1122 the expression

'to pay money' has the following connotation:-

"To piiy money is to pay it in respect of a right which

some person has to receive it".

In Corpus Juris Secnndum Vol. 70 at. page 200 the word 'pay'

if used as a noun

is defined as remuneration, wages, compensation,

salary and the following observations are also

made:-

"To noun 'pay' has been held equivalent to, or synony­

-, mous ·with, 'compensation', salary and wages and has been

compared with, or distinguished from, 'aliowance' and 'con-

sideration'

". ~

/ .

A careful analysis of the meanings assigned to the word 'pay' in

the various dictionaries and the texts referred to above would clearly

reveal that the expression 'iii the pay of' connotes that a person is

getting salary, compensation, wages or any amount of money. This

by itself however does not lead to the inference that a relationship of

master and servant must necessarily exist in all cases where a perso!l

is paid salary. This aspect of the matter would become crystal

Clear

if we examine the nature and. the 'constitutional position and status of

a Minister or a Chief Minister: ·

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SUPREME COURT REPORTS [1979] 3 s.c.R.

Article 164 of the Constitution runs thus:-

"Other provisions as to Ministers: ( 1) The Chief

Minister shall be appointed by the Governor and the other

Ministers shall be appointed by the Governor on the advice

of the Chief Minister, and the Ministers shall hold

office

during the pleasure of the Governor:

Provided that in the States

of Bihar. Madhya Pradesh

and Orissa, there shall be a Minister

in Charge of tribal

welfare who may in addition be in charge of the welfare

of

the Scheduled Castes and backward classes or any other

work".

This Article clearly shows that a Chief Minister is appointed by

the Governor and having been appointed by the Governor it is mani­

fest that he is subordinate to the Governor. Even in section 52 ( 1)

of the Government

of India Act, 1935 which preceded our Constitu­

tion the provision

was worded thus:-

"52(1) The Governor of a Governor's province may,

by notification, appoint ministers, not being members of his

executive council or other officials to administer transferred

·subjects, and any ministers so appointed shall hold office

during his pleasure:

There may be paid to

any minister so appointed in any

province the same salary as is payable to a member of the

executive council in that province, unless a smaller salary

is provided by vote

of the legislative council of the

pro­

vince".

F In this section also it was the Governor who alone had the power

G

to choose the ministers. In fact, in Article 164 the word 'appoint­

ment'

is much higher than the concept of a person being chosen.

Article 164(5) provides

for the salary and allowances of Ministers

and runs

thus:-

"164 (5) The salaries and allowances of Ministers shall

be such as the Legislature of the State may from time to

time by law determine and, until the Legislature

of the State

so determines, shall be

as specified in the Second

Schedule".

Under this provision the Ministers on being appointed by the

H Governor are entitled to such salaries and allowances as the Legis­

lature

of the

State may determine from time to time and until this is

done, the emoluments will be such as are specified in the Second

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M. KARUNANIDHI v. UNION (Fazal AU, !.) 285

Schedule. As however all the Legislatures of the States as also Par­

liament have already passed Acts providing for the salaries and

emoluments of the Chief Minister and the Ministers the specification

of iheir emoluments in the Second Schedule to the Constitution have

bee.a deleted.

A

Article 1 67 lays down the duties of the Chief Minister and runs B

thus:-

"167. Duties of Chief Minister as respects the furnish­

ing of information to Governor etc. It shall be the duty of

the Chief Minister of each State-

( a) to communicate to the Governor of the State all deci- C

sions of the Council of Ministers relating to the adminis­

tration

of the affairs of the

State and proposals for

legislation;

(b) to furnish such information relating to the administration

of the affairs of the State and proposals for legislation as D

the Governor may call for;

(c) if the Governor

so requires, to submit for the consider­

ation

of the Council of Ministers any matter on which a

decision has been taken by a Minister but which has not

been considered

by the

Council" .

It is, therefore, clear that by virtue of the provisions contained in

Article 167, the Chief Minister undoubtedly performs a public duty

J

of the nature as enjoined by clauses (a) to (c) of Article 167. It

is also clearly provided in the Constitution that the Chief Minister or

the Ministers are entitled to salaries or allowances obviously in

l~u of

public duties that they perform. The salaries

given to the Chief

Minister or the Ministers are

given from the Government funds, and

therefore, there

will be no difficulty in holding that

th<> Ministers are

in the pay of the Government inasmuch as they receive their salaries,

remunerations or

wages from the

Government. Mr. Venu Gopal, how-

0ver, submitted that no analogy can be drawn between the constitu·

tional provisions and the provisions contained in the Government of

India Act because the constitutional position of a Chief Minister

under the Constitution

was not the same as under the Government of

India Act where the Governor enjoyed vast and plenary powers and

was not bound by the advice of the Council of Ministers as the

Governor

is

under our Constitution. It is not necessary to probe into

this aspect of the matter, because the Constitution clearly lays down

that the Governor appoints the Chief Minister and being the appoint-

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286 SUPREME COURT REPORTS [1979] 3 s.c.R.

ing authority he is also the dismissing authority. We are not at all

concerned ·in the instant case as to the circumstances under which the

Governor can appoint or

dismiss the Chief Minister. Once it is

conceded that

th~ Governor appoints the Chief Minister who is paid

a salary according to a statute made by the legislature from the Gov­

ernment funds, the Chief Minister becomes a person in the pay of the

Government

so as to fall squarely within clause (12) of section 21 of

the

Penal Code.

There is another circumstance to show that a Chief Minister or a

Minister

is undoubtedly a public servant which was relied upon by the

High Court in repelling the argument

of Mr.

Venu Gopal. Section

199 of the Code runs thus:-

"199 (2) Notwithstanding anything contained in this

Code, when any

offence falling under Chapter XXI of the

Indian

Penal Code is alleged to have been committed against

a person who, at the time of

such commission is the

Presi­

dent of India, the Vice President of India, the Governor of

a State, the Administrator of a Union Territory or a Minister

of the Union or of a State or of a Union territory, or any

other public servant employed in connection with the affairs

of the Union or of a State in respect of his conduct in the

discharge

of his public functions a Court of

Session may

take cognizance of such offence, without the case being com·

mitted to it, upon a complaint iu writing made by the Pub­

lic Prosecutor".

The use of words 'other public servants' following a Minister of

the· Union or of a State clearly show that a Minister would ·also be a

,

public servant as other public servants contemplated by section 199 ·-. ..L.

(2) of the Code are the Code being a statute complimentary and allied ~~

to !he Penal. Code can be looked into for the purpose of determining

the real meaning and import

of the words 'public servant' as used in

the aforesaid section.

'

The Solicitor General placed reliance on the decision of this Court

in the case of

Dattatraya Narayan Patil v. State of

Maharashtra(')

where this Court had held in a slightly different context that a Mimster

was a public servant. Mr. Venu Gopal has, however, distinguished

this decision on the ground tliat this Court proceeded on the ass11mp­

tion that it was not disputed before the Court that the Minister was

a Public Servant and the case having been decided on the concession

(I) [1975] Supp. S.C.R. 145.

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M. KARUNANIDHI v. UNION (Fazal Ali, !.) 28 7

<Of the parties cannot be relied upon by the Solicitor General. In that A

case to which two

of us (Untwalia and Fazal Ali, JJ.) were parties to the judgment, the following observations were made:-

"The duty assigned to a public servant by his master, be

it be under a statute or by an executive order, will assume the

character

of public duty, provided the duty assigned is not

illegal or against public policy. Will it make any difference

in the case

of a Minister? In our judgment, not. The

Minister is a public

servant-not

disputed".

. These observations no doubt fortify our opinion that the Chief

Minister

is a public servant which is

baaed on the reasons that we

have already given and which are different from those given in the

<:ase cited before us.

B

c

In the case of Emperor v. Sibnath Banerji & Ors.(') the Privy

Council clearly held that it was not in a position to accept the sugges-D

tion

of the counsel that the Minister was not subordinate to the

Gov­

ernor. This was the precise argument which had been put forward

by Mr. Venu Gopal when he contended that the Chief Minister

is not ~ubordinate to the Governor. The Privy Council observed as follow!

in this connection:-

"So far as it is relevant in the present case, their Lord­

ships are unable to accept a suggestion by counsel for the

respondents that the Home Minister

is not an officer

subordi­

nate to the Governor within the meaning of s.49 (1), and

so far as the decision in

Emperor v. Hemendra

Prasad

<Jhoshe (19) I.L.R. (1939) 2 Cal. 411 decides that a

Minister is not such an officer their Lordships are unable to

agree with it. While a Minister may have duties to the

Legislature, the provisions of s.51 as to the appointment,

payment and dismissal of Ministers, and s.59

(3) and ( 4)

of the Act of 1935, and the Business Rules made by virtue

of s.59, place beyond doubt that the Home Minister is an

officer subordinate to the

Governor" .

We

find ourselves in complete agreement with the view

taken by

the Privy Council. In fact the case of the Privy Council referred to

above

was noticed and relied upon by this Court in the case of Rao

(1) A.T.R. 1945 P. C. 156.

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288 SUPREME COURT REPORTS (1979] 3 S.C.R.

A Shiv Bahadur Singh & Anr. v. The State of Vindhya Pradesh(') •

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where this Court observed as follows:-

"Clause 9 of section 21 Indian Penal Code shows that

every

officer in the service or pay of

the Crown for the per­

formance

of any public duty is a 'public servant'. The deci­

sion of the Privy

·Council in King Emperor v. Sibnatfr

Banerji(') is decisive to show that a Minister under the

Government

of India is 'an officer' subordinate to the Gover­

nor.

On the same reasoning there can be no doubt that

the Minister

of Vindhya Pradesh would be an 'Officer of

the

State of Vindhya Pradesh. Therefore, prior to the pass­

ing of Ordinance No. XLVIII of 1949 and on the view that

the Indian Penal Code with necessary adaptation mutatis

mutandis

was in force at least in the Rewa portion of

Vindhya Pradesh

(if not in the entirety of Vindhya Pradesh)

the

first appellant was a public servant as defined in section

21, Indian Penal

Code, as adapted. The amendment of the

said section brought about therefore no substantial change

in the position of the

first

appellant".

In the case of Namdeo Kashinath A her v. H. G. Vartak & Anr. (

3

)

Deshpande, J. observed as follows:-

"Whatever be the practical and actual position, the fact

remains that

it is the Governor who can accept the resigna­

tion

of the Ministry or Minister and it is the Governor

again

who can dismiss or remove the Minister from office.

Under section

3(60) of the General Clauses Act, 1897,

the word 'State Government' has been defined. Clause (cl

of section 3 ( 60) is applicable to the present case and

therefore the State Government is to mean the Governor for

the purpose

of the present case. The result therefore is that

accused

No.1 is a public servant who can be said to be

removable

only by the

State Government, meaning thereby

the Governor, and I

do not find any difficulty in coming to

the conclusion that the second requirement

of Section 197,

Cr. P.C. also is fully satisfied as far as accused No. l is con­

cerned".

(I) [1953]

S.C.R. 1188 ..

(2) (1945] F.C.R. 195.

(3) A.LR. 1970 Born. 385.

"

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.. M. KARUNANIDIII v. UNION (Fazal Ali, J.) 289

Jn the case of S .. Tara Singh v. Director'Consolidation of Holdings, A

Punjab, Ju/l1111d11r & Ors.(') the Punjab High Court took the same

view

and observed as follows:-

"lt follows from the above conclusion that under Article

154

(1) of the Constitution the Governor may act· directly

or through his subordinate officers. In the present case he

has acted through the Development Minister.

The question

arises whether

he could so act. Obviously the executive

. authority carries on the business of the Government and part

of this business is the power given to the State Government

under section

42 of the Consolidation Act.

Under Article

166 (3) of the Constitution the Governor can allocate this

business

to any Minister he likes ............ Moreover

there can be

no doubt that a Minister is subordinate to the

Governor.

. The Governor is the executive head of the State

and this position he does not share with the Chief Minister

or any other Minister. He allocates his executive duties to

various Ministers under Article 166

(3)

of the Constitution.

He appoints a Minister albeit on the advice of the Ch!ef

Minister and the Minister holds office during his pleasure.

Therefore it is open to a Governor under the Constitution

to

dismiss an individual Minister

at· his plesure. Jn these

circumstances there

can be no doubt that a Minister is to be

considered as

an officer subordinate to the

Governor".

We find ourselves in complete agreement with the view taken and

the reasons given by the Punjab High Court in the aforesaid case.

To the same effect is a decision of the 1 & K High Court in the

case of

Bakshi Ghulam

Mol1d. v. G. M. Sadiq & Ors(

2

) where Anant

Singh, J, observed .as follows:-

"A Minister of a State is 'paid from its public exchequer,

and he is ·paid for doing public duty and, in my opinion, a

Minister is a 'public officer' within the meaning of Sec. 80

as defined in Sec. 2 (17) (h) of the Civil Procedure Code".

The opinion expressed by the learned Judge is clearly in conso­

nance with the view that we have taken in this case.

(1) A.I.R. 1958 Punjab. 302.

(!) A. I. R. 1963 J & K. 98.

B

c

D

E

G

A

8

c

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:290 SUPREME COURT REPORTS (1979] 3 s.c.R.

Three facts, therefore, have been proved beyond doubt:-

1. That a Minister is appointed or dismissed by the

Governor and is, therefore, subordinate to him whatever be

· the nature and status of his constitutional functions.

2. That a Chief Minister

or a Minister' gets

s3tary for

the public work done or the public duty performed by him.

' . .

3. That the said salary is paid to the Chief Minister or

the Minister from the Government funds.

It is thus incontrovertable, that the holder of a public office such

as the· Chief Minister is a public servant in respect of whom the

Constitution provides that he will get his salary from the Government

Treasury so long he holds his

office on account of the public service

that he discharges. The salary given to the Chief Minister

is co­

terminus with his

office and is not paid like other constitutional func­

tionaries such

as. the President and the Speaker. These facts, there­

fore, point to one and only one conclusion and that is that the Chief

Minister' is in the pay of the Government and is, therefore, a public

servant' within the meaning of section 21 ( 12) of the Penal Code.

For the reasons given above, we are satisfied that a Chief Minister

or a Minister is undoubtedly a public servant as defined in section

·

21(12){a) of the Penal Code and the view taken by the High-Court

on this point was absolutely correct in law. The result

is that all the

.contentions raised by Mr. Venu Gopal, counsel for the appellant fail

and the appeals are dismissed. The case before the

Special Judge

will now proceed to its ultimate end according to law.

N.V.K. Appeals dismissed.

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