Union of India v. Samrendra Mohan Maitra — 1979 DIGILAW 333 (CAL)

JUDGMENT M.M. Dutt, J : This Rule is at the instance of the Union of India and the Customs authorities and it is directed against the judgment of A.K. Mokkerji J. whereby his Lordship made the Rule Nisi, which was obtained by the respondent S.M. Moitra on his application under Article 226 of the Constitution, absolute. 2. The respondent was an Upper Division Clerk in the office of the collector of Customs, Calcutta. By a Memorandum dated June 3, 1966 of the Collector of Customs two charges were leveled against the respondent of these two charges, It is not necessary to state what the charge no. 1 was, for that charge was not proved. Charge no. 11 was as follows : "That Shri S.M. Moitra while functioning in the different capacities as Lower Division Clerk, Steno-typist and Upper Division Clerk from 18.4.49 to 31.3.65 in the office of the Collector of Customs, Customs House, Calcutta, between 4.6.63 and 30.11.64 contravened Rule 18(2) of the Central Civil Services (Conduct) Rules, 1964 inasmuch as he acquired by purchase on 4.6.63 3 cottahs I Chattak of land at plot no. 136, Khatian no. 463, Mouza Paschim Putiari, P.S. Behala. District 24- Parganas from Shri A.B. Ganguly of Jady Nath Ukil Road Paschim Putiari in the name of his wife Sm. Tandra Moitra at a total cost of Rs. 9,245/- and subsequently constructed one one-storied building thereon in 1963-64 at a cost of Rs. 13,266/- without obtaining any prior permission from his competent departmental authority. 3. The respondent submitted an explanation to the said charge. It was contended by him inter alia in his written defence that there could not be any contravention of Rule 18(2) of the Central Civil Services (Conduct) Rules inasmuch as the said Rules framed under the Notification No. 4177 dated November 13, 1964 was published in the Gazette of India on December 12, 1964 that is, after the period during which the respondent was alleged to have contravened Rule 18(2). It was further contended by him that if at all there was any contravention, it was the contravention of the Central Civil Services (Conduct) Rules, 1955, which were repealed by Rule 25 of 1964 Conduct Rules without any saving clause. It was further contended by him that if at all there was any contravention, it was the contravention of the Central Civil Services (Conduct) Rules, 1955, which were repealed by Rule 25 of 1964 Conduct Rules without any saving clause. It may be stated here that by the Notification dated March 3, 1969 of the Ministry of Home Affairs a second proviso was added to Rule 25 providing that the repeal of the 1955 Conduct Rules shall not affect the previous operation of the rules so repealed and contravention of any of the said rules shall be punishable as if it were a contravention of the 1964 Conduct Rules. 4. The Collector of Customs by his order dated October 15, 1971 came to the finding that charge no.1 was not proved. He, however, held that the respondent was guilty of charge no. 2. He, accordingly, imposed a punishment on the respondent by stopping his increment for two years without cumulative effect. Against the said order of the Collector of Customs, the respondent preferred an appeal, but that appeal was dismissed. Thereafter, the respondent filed a writ petition in this Court and obtained the Rule Nisi out of which this appeal arises. It has been held by the learned Judge that as the period mentioned under the second charge is 4663 and 30.11.64 and as the 1964 Conduct Rules came into existence on 12.12.64., the question of obtaining prior permission from the competent departmental authority with respect to the transaction made prior to the 1964 Conduct Rules did not arise at all. Further, the learned Judie observes that the second proviso to Rule 25 of the 1964 Conduct Rules refers to the 1955 Conduct Rules, but as the respondent was charged for the contravention of 1964 Conduct Rules, the second proviso to Rule 25 has no application. Upon the said findings, the learned Judge quashed the impugned orders and made the Rule absolute. Hence this appeal. 5. Rule 25 of the 1964 Conduct Rules repeals the 1955 Conduct Rules which were immediately in force before the commencement of the 1964 Conduct Rules. Mr. D.N. Das, learned Advocate appearing on behalf of the appellants submits that as Rule 25 repeals the 1955 Conduct Rules, the provision of S. 6 of the General Clauses Act will apply. 5. Rule 25 of the 1964 Conduct Rules repeals the 1955 Conduct Rules which were immediately in force before the commencement of the 1964 Conduct Rules. Mr. D.N. Das, learned Advocate appearing on behalf of the appellants submits that as Rule 25 repeals the 1955 Conduct Rules, the provision of S. 6 of the General Clauses Act will apply. As a result of such application (he repeal of the 1955 Conduct Rules shall not affect any right, privilege, obligation or liability acquired. accrued or incurred under the 1955 Conduct Rules as provided in clause (c) of S. 6. The opening words of S. 6 of the General Clauses Act are: "Where this Act, or any Central Act or Regulation made after the Commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not-". 6. Section 6, therefore, applies to a repeal made by the General Clauses Act or any Central Act or Regulation of any enactment. It is contended on behalf of the appellants that the 1964 Conduct Rules were Regulations and, as such. the provision of S 6 would apply to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules Regulation' has been defined in S. 3(50) of the General Clauses Act as meaning Regulation made by the President under Article 240 of the Constitution and shall include a Regulation made by the President under Article 243 thereto and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1979. or the Government of India Act, 1935. Neither the 1964 Conduct Rules nor the 1955 Conduct Rules answer the description of 'Regulation' as defined in S. 3(50) of the General Clauses Act. The definition of "Rule" as given in S.3(51), in our opinion, does not also help the contention of the appellants. Under S. 3(51). Rule shall mean Rule made in exercise of power conferred by any enactment and shall include a Regulation made as a rule under any enactment. Under that definition a Rule may include a Regulation but a Regulation does not include a Rule. As. Under S. 3(51). Rule shall mean Rule made in exercise of power conferred by any enactment and shall include a Regulation made as a rule under any enactment. Under that definition a Rule may include a Regulation but a Regulation does not include a Rule. As. therefore, the 1964 Conduct Rules are not Regulations within the meaning of S. 3(50) of the General Clauses Act, S. 6 of that Act does not in terms apply to the repeal made by Rule 25. It is now well-established that rules framed under the provision of a statute are as much part of that statute under which they are framed at the provisions of the statute. The 1964 Conduct Rule have been framed by the President in exercise of his power under the proviso to Article 309 of the Constitution. It is contended on behalf of the appellants that the 1964 Conduct Rules shall be 'deemed to have been enacted in the Constitution itself. But this proposition has, in our opinion, no bearing on the question 81 to the applicability of S. 6 of the General Clauses Act to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Roles. In order to invoke the provision of S. 6, one of the conditions that must be fulfilled is that the repeal has been made by a Regulation as defined in S. 3(50) of the General Clauses Act. 1964 Conduct Rules not being Regulations, S. 6 has no application. There is no substance in the contention made on behalf of the appellants that as by the proviso 10 Article 309 of the Constitution, the President has been conferred with the power "to make rules regulating the recruitment, and the conditional of service of persons appointed, to such services and posts" and as the 1964 Conduct Rules have been made by the President under the proviso to Article 309. they are Regulations. Under the proviso to Article 309, the President may make rules and not regulations within the meaning of S.3(50) of the General Clauses Act. In these circumstances, we are of the view that the contention of the appellants regarding the applicability of S. 6 of the General Clauses Act is without any substance. 7. The second proviso to Rule 25 of the 1964 Conduct Rule is retrospective in operation inasmuch as it takes effect from November 30, 1964. In these circumstances, we are of the view that the contention of the appellants regarding the applicability of S. 6 of the General Clauses Act is without any substance. 7. The second proviso to Rule 25 of the 1964 Conduct Rule is retrospective in operation inasmuch as it takes effect from November 30, 1964. The second proviso is as follows : "Provided further that such repeal shall not affect the previous operation of the rules so repealed and a contravention of any of the said rules shall be punishable as if it were a contravention of these rules." 8. It may be recalled at this stage that the period during which the respondent was alleged to have contravened Rule 18(2) of the 1964 Conduct Rules was 4.6.63 and 30.11.64, The second proviso to Rule 25 bas been given retrospective operation with direct from November 30, 1964, that is, the last date of the period of the alleged contravention by the respondent. There is no evidence on record that on November 30, 1964 any such contravention was made by the respondent. It may be further recalled that the contention of the respondent in the departmental proceeding was that if at all there was any contravention, it was the contravention of the 1955 Conduct Rules which were repealed by Rule 25. It ii, however, contended on behalf of the appellants that as by the second proviso to Rule 25 the provisions of the 1955 Conduct Rules were saved with retrospective effect, the appellants Were entitled to take action against the respondent under the 1955 Conduct Rules, There is, however, one serious difficulty in regard to this contention. The charge shed or the impugned order does not show that the respondent contravened Rule 15 (1) of 1955 Conduct Rules which is more or less similar to rule 18(2) of the 1964 Conduct Rules. It is contended that the mentioning of the contravention of rule 18(2) of 1964 Conduct Rules was a mistake but as the appellants were competent to impose punishment on the respondent for the contravention of the 1955 Conduct Rules the mentioning of a wrong provision in the charge sheet, namely, Rule 18(2) of the 1964 Conduct Rules instead of rule 15(1) of the 1955 Conduct Rules did not vitiate the proceeding or the punishment imposed on the respondent. In support of that contention, reliance has been placed on behalf of the appellants on a decision of the Supreme Court in P. Balakotaiah v. Union of India & ors, AIR 1958 SC 232 . In that case, the services of the appellants were terminated by the orders of the Railway authorities under Rule 3 of the Security Rules and the appellants having filed a writ petition on the ground that the Security Rules were ultra vires, the High Court held that the orders could be sustained under Rule 148 of the Railway Establishment Code but that ground was not merely not in the contemplation of the authorities when they passed the orders, but was not even raised in the in Court. It has been held by the Supreme Court that though no exception can be taken to the proposition that when an authority passes an order which is within its competence. It cannot fail merely because it purports to be made under any wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form, that proposition was not applicable to the case because it had not been the contention of the authorities at any stage that the orders in question were really made under Rule 148 (3) of the Railway Establishment Code, and that the reference to Rule 3 of the Security Rules in the proceedings might be disregarded as due to a mistake. In the instant case also, the said proposition of law as laid down by the Supreme Court will not apply as it was not the case of the appellants that the impugned orders were really made for the contravention by the respondent of Rule 15(1) of the 1955 Conduct Rules, and that the mentioning of Rule 18(2) of the 1964 Conduct Rules is due to a mistake. Throughout the affidavit-in-opposition filed on behalf of the respondents nos. 2, 3 and 7, it was maintained that the contravention was made by the respondent under Rule 18(2) of the 1964 Conduct Rules. In paragraph 19 of the affidavit-in-opposition. Throughout the affidavit-in-opposition filed on behalf of the respondents nos. 2, 3 and 7, it was maintained that the contravention was made by the respondent under Rule 18(2) of the 1964 Conduct Rules. In paragraph 19 of the affidavit-in-opposition. it has been alleged Inter alia that the question and/or plea sought to be raised by the respondent in connection with the 1955 Conduct Rules docs not arise, and that they have been introduced by the respondent to cloud the issue. Thus it appeared that apart from making out any case of a wrong reference to Rule 18(2) of the 1964 Conduct Rules in the charge sheet or in the impugned orders the appellant case was all through that the respondent had contravened the provision of Rule 18(2) of the 1964 Conduct Rules. In the circumstances, in view of the decision of the Supreme. Court in P.Balakotaiah's case (supra) the reference to Rule 18(2) of the 1964 Conduct Rules either in the charge sheet or in the impugned orders cannot be disregarded as due to a mistake. 9. Mr. Bhola Nath Sen, learned Advocate appearing on behalf of the respondent, submits that although a retrospective operation can be given 'to a rule by such retrospective operation conditions of service of Government servants cannot be affected to their prejudice. In Ex-Major N.C. Singhal v. Director-General, Armed Forces Medical Services, AIR 1972 SC 626 the Supreme Court observed that the condition of service was not liable to be altered or modified with retrospective effect to the prejudice of the Government servant We do not, however, think that in view of our above finding. it is necessary to decide the contention as made on behalf of the respondent. 10. For the reasons aforesaid, we are of the view that the proceeding was illegally initiated by the appellants against the respondent for the alleged contravention of Rule 18(2) of the 1964 Conduct Rules which were not in existence at that time. The appellant also cannot take the advantage of the saving of the 1955 Conduct Rules by the second proviso to rule 25 of tae 1964 Conduct Rules with retrospective effect. 11. The appeal is, accordingly, dismissed, but in view of the facts and circumstances of the case, there will be no order for costs. Sharma. J: I agree. Rule made absolute.