K. N. SHUKLA v. NAVNIT LAL MANILAL BHAT AND ANR.
Citation: [1967] 2 S.C.R. 290; 1966 INSC 267
Court: Supreme Court of India
Bench: K. SUBBA RAO , J.C. SHAH, S.M. SIKRI, V. RAMASWAMI, C.A. VAIDYIALINGAM
Judgment date:
Case summary
1966 INSC 267. Supreme Court of India judgment dated 1966-12-15. K. N. SHUKLA v. NAVNIT LAL MANILAL BHAT AND ANR. Read the judgment and case details on...
Judgment text
292 SUPREME COURT REPORTS (1967] 2 S. C. R. K. N. SHUKLA I'. NAVNIT LAL MANILAL BHAT AND A:\R. December 15. 1966 [K. SunBA RAO, c. J. , J. c. SHAH, S. M. SiKRI, v. RA,fASWA,11 n A~D C. A. VAIOIAI. l~GAM JJ. j Code of Criminal Procedure (Act 5 o/ 1898), . r. 191- rny ,Jflicer olfic;nting as Class I officer-Private conaplaint again. rt l1in1 under Y\'. 166 and 167 l. P. C. -Sanc1io11 uf Central Govenunent, if necessary. Rai/u·ay Board, if different fro111 Cerr1ral Gover111nent-Maxin1, qui facit per alium facit per se, scope of. The appellao1 was holding a subslanlive post as a Class II officer of the Western Railway. He \\'3S promoted to an officiating rosition as Class I officer by the General Manager, with the ap. Proval o the Railway lloard, as per r. 134 of the Indian Railway Eslabhshmenl Code. While he "-'3S officiating in that post. a private complaint was filed ag3inst him for offences under ss. 166 and 167, l. P. C. On the question whether ~anction of the President of India v.
·as ncce.. -sary under s. 197, Criminal Procedure Code, for prosecuting him, HEl ... D : The appellant \\·as not a public servant who was "not rcmov- ;1ble from his office s01vc by or ". -irh the sanction of the Central Govern· n1ent" v. •ithin the meaning of the section and, therefore, such sanction was n»l necessary. [292 C; ~96 G. H] ( 1) A Railway officer who merely officiates in Class I cannot be S3id lo belong to lhal Class within the meaning of llem I of Schedule IJ. referred lo in r. 1729 of the Discipline and Appeal Rules for Gazcl! ed Officers (Indian Railway Es1ahlishmen1 Code). He continues to he a Class 11 officer who could be remo\'cd from his office with the sanction of the Railway Board. [294 F-GJ (2) Section 2 of the Railway Board Acl. 1905, indicates 1ha1 1he Railway Board is an entity separate from the Central Government and thal the powers of the Board are derived by delegation, either absolutely or subject IC' conditions, by the Central Government. Therefore.
the Railway Board is not a pan ot' 1hc Ccntr;1l Govcrn1ncnt. (~96 E-1:] (3) The appellant could not he deemed lo be removable only by or with the s. i. nctton of the Central Government on the basi! of the maxim qui faclL per aliunr facit P('r . \·e. For, once the Central Government ha~ delegated ii. power to the Railway Board with regard to the appointment and removal of a public servanl. then, for the purpose of s. 197, Cr. P. C .. the public servant concerned ,~·ill not be treated as one .. not removable f:om his office except by or \\·i1h the sanction of the Central Govern~ 1. •nl. .. [297 A-CJ Af;. c/11r Rahman v. The King. [1943] F. C. R. 7. applied. ( 4) The Nole lo r. 1704. :on of a penalty shall be treated in accordance with the rules applicable to a railway servant holding the gazetted post in a substantive capacity. " But this note applies to the cases of non~gazetted officers and is of no assistance to the appellant.
If the authorities framing the rules intended that the same provision should apply in the case of gazetted officers ~\so there was no reason why a similar explanation was not provided to Rule 1729. Mr. Sen also referred to Rule 1705 of the New Rules which came into force on August I, 196 l and which provided as follows : "The competent authority in the case of a railway servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action. " It ls obvious that this Rule cannot apply to the appellant as it came into force much later than March 14, 1961 which is the material date in determining the question regarding the need for ,. sanc .. 1on.
We proceed to consider the next contention of the appellant that even if the Railway Board was the authority competent to remove the appellant from service, the Railway Board was part and parcel of the Ministry of Railways of the Central Government and therefore in the eye of law the Railway Board must be deemed to be the "Central Governmen. t'' for the purpo;;e of s. 197 of the· Criminal Procedure Code. In support of this argument Mr. Sen referred to the Allocation of Business Rules, 1961 made by the President under cl. (3) of Art. 77 of the Constitution. Item 15 of the First Schedule is 'Ministry of Railways (Railway Board). ' Mr. Sen also referred to para 201 of the Indian Railway General Code which states :. "The existing enactments regulating the construc-tion and operation of railways in India are the Indian Tram-ways Act of 1886 and the Indian Railways Act of 1890 as amended from time to time. Subject to the provisions of these enactments, the executive authority .
in connection with the administration of railways, vests in the Central Qovt. in virtue of the delegation made under section 2 of the Indian Railway Board Act of I905, all the functions and powers of the Central Government, under certain sec-tions of the Indian Railways Act of 1890, are exercised by the Railway Board. " Para 205 reads as follows : "The Railway Board is to function as a corporate body, and as a corporate body is responsible to advise the Minister on all major questions of Railway policy. SUPREME COCRT REPORTS [196 7] 2 S. C. R. Major and policy issues arc. therefore. to be submitted to the M'nister with the recommendations of the Board. Other questions may be submitted to the Minister for his information or orders by iPdividual members. " Reference was also made to s. 2 of the Indian Railway Board Act, 1905 (Act No. IV of 1905) which states: "2. Investment of Railway Board with powers under Indian Raihays Act, 1890.
-Thc Central Government may, by notification in the official Gazette, invest the Railway Board, either absolutely or subject to conditions,- (a) with all or any of the powers or function of the Ccntrai Government under the Indian Railways Act, 1890, with respect to all or any railways, and (b) with the power of the officer referred to in section 47 of the said Act to make general rules for railways administered by the Government. " ! It was argued by Mr. Sen that the Railway Board is vested with the powers of Central Government in respect of administration of Railways and therefore it must be taken that the Railway Board itself is a part of Central Government. We are unable to accept this argument as correct.
It is true that many important powers and functions of the Central Government in respect of administration of the Railways are exercised by the Railway Board, but it does not follow that the Railway Board is exercising those powers in their own right as part of the Central Government. On the other hand, s. 2 of the Railway Board Act, 1905 itself indicates that the Railway Board is an entity which is separate from the ·Central Government and the powers of the Railway Board arc -derived as a matter of delegation either absolutely or subject to -conditions by notifk. ition by the Central Government. In other words, the Railway Board is a separate body which derives its powers and authority however wide they may be only because of delegation of powers ~;om the Central Government in respect of the administration 01 the Railways.
The result therefore is that the appellant was appointed in an officiating position as Class I Officer by tile Railway Board and therefore he was removable by the Railway Board and not by the Central Government. It cannot be said in the circumstances that the appellant was one of those public officers who could be removed only by or with the sanction of the Central Government within the meaning of s. 197, Criminal Procedure Code. It was suggested on behalf of the appellant that even if the Rai! Y:ay Board had power to remove the appellant from his office K. N, SHUKLA v. NAVNIT LAL (Ramaswami, }. ) 297 and even if it was acting under the powers delegated to it, tt,. , principle of the maxim qui facit per alium facit per se applies to the case and the appellant must be deemed to be removable only by or with the sanction of the Central Government within the meaning of s. 197 of the Criminal Procedure Code. We do not think there is any substance in this argument.
If once th~ Central Govern-mert has delegated its power to another authority witit regard to appointment and removal of a public servant, then for the purpose of s. 197, Criminal Procedure Code the public servant concerned will not be treated to be a public servant "not removable from his office except by or with the sanction of the Central G0vernment". within the meaning of that section. A similar argument was ad-vanced in Afzalur Rahman v. The King Emperor etc. (') in which it was held that a police officer who could be dismissed by the D~puty Inspector-General of Police under the statutory rules and regu-lations was not a person in "not removable from office except by or with the sanction of the Provincial Government" within the meaning of s. 197 of the Criminal Procedure Code and that sanction under that section was not, therefore, necessary for prosecuting such an officer for an offence alleged to have been committed by him. Varadachariar, J.
speaking for the Federal Court in that case observed that the provisions of s. 24l(l)(b) and s. 240(2) of the Government of India Act must also be understood in the light of the practice prevailing in India under which the power to appoint and dismiss particular class:is of officers is vested in particular authorities. Otherwise there is the danger of our ignoring the policy of the Legislature in limiting the class of officers entitled to this protection and of making s. 197, Criminal Procedure Code available to all public officers. We accordingly reject the argument of the appellant on this aspect of the case. For the reasons already expressed we hold that the decision of the Gujarat High Court is correct and this appeal must C>e dismissed. V. P. S. Appeal dismiss<•d. (I) (1943) F. C. R. 7.
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.