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1979 Supreme(Cal) 330
HIGH COURT OF CALCUTTA
M. M. Dutt & Sharma, JJ.
Union of India & Ors
Vs.
Samrendra Mohan Maitra & Ors.
MANDAMUS APPEAL NO. 884 of 1977
Decided On : September 12, 1979
Advocate Appeared:
D. N. Das. S. N. Banerjee for the appellant
Bhola Nath Sen, Aloke Ganguly fur the respondent.
The repeal of the 1955 Central Civil Services (Conduct) Rules by Rule 25 of the 1964 Central Civil Services (Conduct) Rules did not attract the provisions of Section 6 of the General Clauses Act, as the 1964 Rules were not 'Regulations' within the meaning of Section 3(50) of the Act.
Headnote:
CENTRAL CIVIL SERVICES (CONDUCT) RULES - REPEAL OF 1955 RULES - APPLICABILITY OF S. 6 OF GENERAL CLAUSES ACT - RETROSPECTIVE OPERATION OF SECOND PROVISO TO RULE 25 OF 1964 RULES - VALIDITY OF PROCEEDINGS INITIATED UNDER WRONG RULE.
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 the competent departmental authority. The charge period was between 4.6.63 and 30.11.64. The 1964 Conduct Rules came into existence on 12.12.64, and the 1955 Conduct Rules were repealed by Rule 25 of the 1964 Rules.
Finding of the Court:
The court held that the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules did not attract the provisions of Section 6 of the General Clauses Act, as the 1964 Rules were not 'Regulations' within the meaning of Section 3(50) of the Act. The court further held that the second proviso to Rule 25, which gave retrospective effect to the saving of the 1955 Conduct Rules, could not be applied to the respondent's case, as there was no evidence that he had contravened any provision of the 1955 Rules during the relevant period.
Issues: 1. Whether Section 6 of the General Clauses Act applied to the repeal of the 1955 Conduct Rules by Rule 25 of the 1964 Conduct Rules? 2. Whether the second proviso to Rule 25, which gave retrospective effect to the saving of the 1955 Conduct Rules, could be applied to the respondent's case?
Ratio Decidendi: 1. Section 6 of the General Clauses Act applies to the repeal of an enactment by a Regulation as defined in Section 3(50) of the Act. The 1964 Conduct Rules were not Regulations within the meaning of Section 3(50), as they were not made by the President under Article 240 of the Constitution or under any other provision of the Constitution or a Central Act or Regulation. 2. The second proviso to Rule 25 could not be applied to the respondent's case, as there was no evidence that he had contravened any provision of the 1955 Conduct Rules during the relevant period.
Final Decision: The court dismissed the appeal filed by the Union of India and the Customs authorities, upholding the judgment of the lower court which had quashed the impugned orders against the respondent.
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 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, learn
