Back
1979 Supreme(Cal) 325
High Court Of Calcutta
M. M. DUTT, MUKUNDAKAM SHARMA
UNION OF INDIA - Appellant
Versus
SAMARENDRA MOHAN MOITRA - Respondent
. . Of .
Decided On : 09/02/1979
ALOKE GANGULY, BHOLA NATH SEN, D.N.DAS, S.N.BANERJEE
S. 6 of the General Clauses Act does not apply to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules as the 1964 Conduct Rules are not Regulations within the meaning of S. 3 (50) of the General Clauses Act.
Headnote:
CENTRAL CIVIL SERVICES (CONDUCT) RULES - Rule 18 (2) - Contravention - Retrospective operation of second proviso to Rule 25 - Applicability of S. 6 of the General Clauses Act - Legality of departmental proceedings.
Fact of the Case:
The respondent, an Upper Division Clerk in the office of the Collector of Customs, Calcutta, was charged with contravening Rule 18 (2) of the Central Civil Services (Conduct) Rules, 1964, by acquiring land and constructing a building thereon without obtaining prior permission from his competent departmental authority. The charge period was from 4.6.63 to 30.11.64. The 1964 Conduct Rules came into existence on 12.12.64. The respondent contended that there could be no contravention of Rule 18 (2) of the 1964 Conduct Rules as they were not in existence during the charge period. He also contended that if at all there was any contravention, it was of the 1955 Conduct Rules, which were repealed by the 1964 Conduct Rules without any saving clause. A second proviso was added to Rule 25 of the 1964 Conduct Rules on 3.3.69, providing that the repeal of the 1955 Conduct Rules shall not affect the previous operation of the rules so repealed and contravention of any of the said rules shall be punishable as if it were a contravention of the 1964 Conduct Rules. The Collector of Customs found the respondent guilty of the charge and imposed a punishment on him. The respondent filed a writ petition in the High Court, which quashed the impugned orders and made the Rule absolute.
Finding of the Court:
The High Court held that 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 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.
Issues: 1. Whether S. 6 of the General Clauses Act applies to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules? 2. Whether the second proviso to Rule 25 of the 1964 Conduct Rules can be applied retrospectively to save the 1955 Conduct Rules? 3. Whether the departmental proceedings against the respondent were legally initiated?
Ratio Decidendi: 1. S. 6 of the General Clauses Act applies to a repeal made by the General Clauses Act or any Central Act or Regulation of any enactment. The 1964 Conduct Rules are not Regulations within the meaning of S. 3 (50) of the General Clauses Act. Therefore, S. 6 does not apply to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules. 2. The second proviso to Rule 25 of the 1964 Conduct Rules is retrospective in operation with effect from 30.11.64, the last date of the alleged contravention by the respondent. However, there is no evidence on record that on 30.11.64 any such contravention was made by the respondent. Further, the charge sheet or the impugned order does not show that the respondent contravened Rule 15 (1) of 1955 Conduct Rules which is more similar to Rule 18 (2) of the 1964 Conduct Rules. Therefore, the appellants cannot take the advantage of the saving of the 1955 Conduct Rules by the second proviso to rule 25 of the 1964 Conduct Rules with retrospective effect. 3. The departmental proceedings against the respondent were illegally initiated as the 1964 Conduct Rules were not in existence at the time of the alleged contravention and the appellants cannot take the advantage of the saving of the 1955 Conduct Rules by the second proviso to rule 25 of the 1964 Conduct Rules with retrospective effect.
Final Decision: The appeal is dismissed, but in view of the facts and circumstances of the case, there will be no order for costs.
( 1 ) 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. Mookerji 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. II 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 1 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 Jadu 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 Service (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 may be stated here that by the Notification dated March 3, 1969 of the Ministry of Home Affairs a second proviso was added to Rue 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 4. 6. 63 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 Judge 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
