A Minister of a State is paid from its public exchequer, and he is paid for doing public duty and a Minister is a ’public officer’ within the meaning of Sec. 80 as defined in Sec. 2 (17) (h) of the Civil Procedure Code
|Case name:||M. Karunanidhi V/S Union of India|
|Citation:||1979 AIR 898|
|Court:||The supreme court of India|
|Bench:||JUSTICE Syed Murtaza Fazalali JUSTICE Y.V. Chandrachud JUSTICE P.N. Bhagwati JUSTICE N.L. Untwalia JUSTICE R.S Pathak|
|Decided on:||FEBRUARY 20, 1979|
|Relevant Act/Sections:||Tamil Nadu Public Men Act, 1973, Code of Criminal Procedure 1898, Prevention of Corruption Act 1947 & Criminal Law (Amendment) Act, 1952, Article 254 of Constitution of India, Public servant & Criminal Procedure Code 1898|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The Appellant, M Karunanidhi, was a former Chief Minister of Tamil Nadu & was petitioner before the High Court in the applications filed by him before the high court. On 15-6-1976 a D.O. Letter was written by chief secretary to government of Tamil Nadu to Deputy Inspector General of Police, CBI requesting him to make a detailed investigation into certain allegations against the appellant and others who were alleged to have abused their official position in the matter of purchase of wheat from Punjab.
- A FIR was accordingly recorded on 16-6-1976 & 4 months later sanction under Sec 197 of Code was granted by Governor of Tamil Nadu for prosecution of appellant under Sections 161, 468 & 471 of IPC and section 5(2) read with section 5(1)(d) of prevention of corruption act. Appellant was alleged to have derived for himself pecuniary advantage to the extent of Rs. 4 to 5 lakhs from Madenlal Gupta for passing favourable orders in respect ot some firms & the case was registered before the special judge.
- PROCEDURAL HISTORY:
- The Special judge, after hearing both sides , rejected application of appellant as a result of which the appellant filed two applications in High Court for quashing the proceedings & for setting aside order of special judge refusing to discharge appellant. Later , the High court rejected the applications of appellant but granted a certificate for leave to appeal.
- As far back as December 30, 1973 the Madras Legislature had passed an Act known as the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 hereinafter referred to as the State Act. The State Act was passed after obtaining the assent of the President of India [ Ed. : Assent received on Dec. 30, 1973] .
- This State Act was, however, amended by Act 16 of 1974 and the President’s assent was received on April 10, 1974. According to the provisions of the State Act the statute was brought into force by virtue of a notification with effect from May 8, 1974. According to the allegations made against the appellant, the acts said to have been committed by him fell within the period November 1974 to March 1975.
- On January 31, 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 this effect was issued on the same date. The High Court decided the petitions of the appellant on May 10, 1977 and granted a certificate for leave to appeal to this Court on July 27, 1977.
- Subsequently, however, the State Act was repealed and the President’s assent to the repealing of the State Act was given on September 6, 1977. Thus, it is manifest that by the time the appeal has reached this Court and was taken up for hearing the State Act no longer exists.
- ISSUE BEFORE THE COURT:
- Whether or not there was a real repugnancy resulting from an irreconcilable inconsistency between the State Act and the Central Acts?
- RATIO OF THE COURT:
- The court stated that in order, however, to understand the argument of the learned counsel for the appellant, it may be necessary to consider the question of repugnancy in a little broader perspective. It is well settled that the presumption is always in favor of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional.
- 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.
- That such an inconsistency is absolutely irreconcilable.
- 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.
- The relied on Tika Ramji v. State of U.P. [AIR 1956 SC 676 : 1956 SCR 393] while dealing with the question of repugnancy between a Central and a State enactment, this Court relied on the observations of Nicholas in his Australian Constitution, 2nd Edn. 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.V. Brisbane Licensing Court [(1920) 28 CLR 23 (Aus)] ).
(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code [Clyde Engineering Co. Ltd. v. Cowburn.]
(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter. (Victoria v. Commonwealth [(1937) 58 CLR 618 (Aus)] ; Wenn v. Attorney-General [(1948) 77 CLR 84] ). This court also relied on the decisions in the case of Hume v. Palmer as also the case of Ex Parte McLean referred to above. This Court also endorsed the observations of Sulaiman, J. in the case of Shyamakant Lal v. Rambhajan Singh [1939 FCR 188] where Sulaiman, J. observed 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 a 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.”
- The court also relied In the case of State of Orissa v. M.A. Tulloch & Co. [AIR 1964 SC 1284 : (1964) 4 SCR 461, 477] Ayyangar, 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 supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations 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 enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance.
- 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 (Amendment) Act to come into its aid after an investigation is completed and a report is submitted by the Commissioner or the Additional Commissioner.
- It was contended however by Mr. Venu Gopal that 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 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.
- When the new section 29 which had already replaced the old section and had become a part of the statute. Therefore, 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 section 29 of the State Act. This section has in unequivocable 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 would be no question of the State Act colliding with the Central Acts referred to above. The second part of section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is, therefore, 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.
- The court observed that by virtue of the provisions contained in Article 167, the Chief Minister undoubtedly performs a public duty 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 lieu 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 the Ministers are in the pay of the Government inasmuch as they receive their salaries, remunerations or wages from the Government.
- Mr. Venu Gopal, however, submitted that no analogy can be drawn between the constitutional 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 appointing authority he is also the dismissing authority. The court were 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 the Governor appoints the Chief Minister who is paid a salary according to a statute made by the legislature from the Government 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.
- The court held that 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 salary 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 incontrovertible, 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 functionaries such as the President and the Speaker. These facts, therefore, 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.
- DECISION HELD BY COURT:
- In this case the judgment was given by JUSTICE SYED MURTAZA FAZALALI that the court 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.
- The court dismissed the appeal.