# STATE OF HARYANA v. N.C.TANDON

- **Citation:** [1977] 3 S.C.R. 593
- **Court:** Supreme Court of India
- **Decided:** 1977-04-14
- **Case number:** Criminal Appeal No. 126 Of 1977
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-haryana-v-n-c-tandon-7212
- **Pages:** 10

## Headnote

C'f
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593
STATE OF HARYANA
A
v.
N.C.TANDON
April 14, 1977
rv. R. KRISHNA IYER, R. s. SARKARIA AND JASWANT SINGH, JJ.]
B
Prevention of Corruption Act, Section 6( 1) (2 )-Sanction for prosecutionValidity of-Authority empowered to sanction-Delegation of po1ver to sanction.
Centtal Civil Services (Classification, Control and Appeal) Rules 1965Rule 10-Power delegated to the Chief Engineer of Con11nand-Whethcr can
be exercised by the zonal Chief Engineer.
The respondent v.·as convicted for an offence under section 5(2) read with
s. 5(1) (d) of the Prevention of Corruption Act, 1947 and section 161 of the
I.P.C·. The conviction was set aside by the High Court on the sole ground that
the sanction for his prosecution was not accorded by a competent authority.
The respondent Vias a Civilian in the Defence Services in the rank of temporary
Superintendent, Building and oRads Grade I. The prosec11tion case was that
he had accepted illegal gratification of Rs. 300/- from one Brij Bhushan Lal,
Contractor, as a motive or reward for doing an official act. The snnc.tion for
the prosecution of the respondent was accorded by Brig.
Naresh
Prasad,
Chief Engineer, North Western Zone, Chandigarh.
The 1-ligh Court held that Brig. Naresh Prasad bad no authority under
the relevant rules either plenary or delegated to appoint a person to a post
in dass III service at the time when he
passed the order for sanction
of
prosecution. That such a po\ver \Vas delegated to him subsequently. The
learned Judge held that the authority was the Chief Engineer, Western Command and no1 the Zonal Chief Engineer.
Section 6(1) of the Prevention of Corruption Act provides that no Court
shall take cognizance of the offence in question alleged to have been committed
by a public servant except with the previous sanction of the officer enumerated
in clauses (a), (b) and (c) of that section.
Sub-section
2 of section
6
further provides that where for any rea6on \Vhatsoever any doubt arises
whether the previous sanction as required under sub-section ( 1) should be
given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would_ have been
competent to remove the public servant from his office at the time \vhen the
offence was alleged to have been committed.
The appellant contended that by a.n order communicated by letter dated
27-4-1956 (subsequently reiterated in letter dt. 23-1-1963) made under rule 10,
the pngineer~in-Chief had. empO\Vered all Chief Engineers in Military Engg.
Service to make first appointments and that the operation of the said order \Vas
preserved by the saving clause in rule 34(1) of the 1965 Rules. The appellant
further contended tha-t the fetter placed on the power given to the Chief Enai-
~eers in the matter of removal or dismissal of Class III servants operates o;iy
in case of persons appointed by the Engineer-in-Chief and not \vhere he was
appointed by the Chief Engineer of a Command.
In the present case, the
respondent was appointed not by Engineer-in-Chief but by the Chief Engineer,
Western Command.
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The respondent contended that the order dated 27-4-1956 expressly delegates
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the power of inaking first appointments only to the Chief Engineers of the three
commands then in existence and of the other departments specified therein.
Jn
1956, when the order was made there \Vere no zonal Chief Enginers, which
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594
SUPREME COURT REPORTS
[1977] 3 s.c.R.
came into existence in December, 1962 as a class apart working under the
overall administrative control of the Chief Engineers of Commands. A general
delegation of the power in favour of the Chief Engineers of Commands as a
class cannot by any reckoning amount to a delegation in favour of the Zonal
Engineers also Vr'Orking under the control of the Chief Engineers of Commands.
Secondly, the letter dated 23·1·1963 wais not issued uhder the signature of
the Engineer-in-Chief nor can it be construed as a delegation of t

## Text

C'f
•
593
STATE OF HARYANA
A
v.
N.C.TANDON
April 14, 1977
rv. R. KRISHNA IYER, R. s. SARKARIA AND JASWANT SINGH, JJ.]
B
Prevention of Corruption Act, Section 6( 1) (2 )-Sanction for prosecutionValidity of-Authority empowered to sanction-Delegation of po1ver to sanction.
Centtal Civil Services (Classification, Control and Appeal) Rules 1965Rule 10-Power delegated to the Chief Engineer of Con11nand-Whethcr can
be exercised by the zonal Chief Engineer.
The respondent v.·as convicted for an offence under section 5(2) read with
s. 5(1) (d) of the Prevention of Corruption Act, 1947 and section 161 of the
I.P.C·. The conviction was set aside by the High Court on the sole ground that
the sanction for his prosecution was not accorded by a competent authority.
The respondent Vias a Civilian in the Defence Services in the rank of temporary
Superintendent, Building and oRads Grade I. The prosec11tion case was that
he had accepted illegal gratification of Rs. 300/- from one Brij Bhushan Lal,
Contractor, as a motive or reward for doing an official act. The snnc.tion for
the prosecution of the respondent was accorded by Brig.
Naresh
Prasad,
Chief Engineer, North Western Zone, Chandigarh.
The 1-ligh Court held that Brig. Naresh Prasad bad no authority under
the relevant rules either plenary or delegated to appoint a person to a post
in dass III service at the time when he
passed the order for sanction
of
prosecution. That such a po\ver \Vas delegated to him subsequently. The
learned Judge held that the authority was the Chief Engineer, Western Command and no1 the Zonal Chief Engineer.
Section 6(1) of the Prevention of Corruption Act provides that no Court
shall take cognizance of the offence in question alleged to have been committed
by a public servant except with the previous sanction of the officer enumerated
in clauses (a), (b) and (c) of that section.
Sub-section
2 of section
6
further provides that where for any rea6on \Vhatsoever any doubt arises
whether the previous sanction as required under sub-section ( 1) should be
given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would_ have been
competent to remove the public servant from his office at the time \vhen the
offence was alleged to have been committed.
The appellant contended that by a.n order communicated by letter dated
27-4-1956 (subsequently reiterated in letter dt. 23-1-1963) made under rule 10,
the pngineer~in-Chief had. empO\Vered all Chief Engineers in Military Engg.
Service to make first appointments and that the operation of the said order \Vas
preserved by the saving clause in rule 34(1) of the 1965 Rules. The appellant
further contended tha-t the fetter placed on the power given to the Chief Enai-
~eers in the matter of removal or dismissal of Class III servants operates o;iy
in case of persons appointed by the Engineer-in-Chief and not \vhere he was
appointed by the Chief Engineer of a Command.
In the present case, the
respondent was appointed not by Engineer-in-Chief but by the Chief Engineer,
Western Command.
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The respondent contended that the order dated 27-4-1956 expressly delegates
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the power of inaking first appointments only to the Chief Engineers of the three
commands then in existence and of the other departments specified therein.
Jn
1956, when the order was made there \Vere no zonal Chief Enginers, which
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594
SUPREME COURT REPORTS
[1977] 3 s.c.R.
came into existence in December, 1962 as a class apart working under the
overall administrative control of the Chief Engineers of Commands. A general
delegation of the power in favour of the Chief Engineers of Commands as a
class cannot by any reckoning amount to a delegation in favour of the Zonal
Engineers also Vr'Orking under the control of the Chief Engineers of Commands.
Secondly, the letter dated 23·1·1963 wais not issued uhder the signature of
the Engineer-in-Chief nor can it be construed as a delegation of the pow·cr
of appointment under rule 10.
Alternatively, the power delegated by the
Engineer-in-Chief to the Chief Engineers was a qualified one inasmuch as no
power was given to them to dismiss or remove a Government servant of Class 111
service.
Dismissing the appeal,
HELD : ( 1) Unless a different intention appears the power to appoint to
an office includes the power to dismiss or remove from that office as provided
in s. 16 of General Clauses Act. The post which the respondent was holding
is a post of Class III service and the members of the service are governed by
Central Civil Services (Classification, Control and Appeal) Rules. 1965. 1965
Rules repeal the earlier 1952 Rules and any notification or orders issued there·
under in so far as. they were inconsistent with the 1965 rules. Under rule 10,
appointments to Class III and Class IV Civilian Service are to be made by the
officers empowered by the ·Engineer-in-Chief. Thus the appointing authority is
competent to delegate the power of appointment. [596 B, C, G-H, 597D]
(2) A perusal of the
letter dated 27-4-1956 communicMing the order of
the Engineer-in-Chief shows that it is addressed to the Chief Engineers, Southern
Command, .Eastern Command and Western Command.
On the date of this
letter there were only 3 Commands; two Commands were created subsequeiltly.
There were no Zones or Zonal Chief Engineers at that time. Therefore, the
Chief Engineers to whom the powers have been delegated under this letter could
only be the Chief Engineers of the Commands a6 a class and it would cover
Chief Engineers of the Commands which were subsequently created. But it
would not include the Chief Engineers of Zone.
Zonal Chief Engineers have
to work under the Command and technical control of Chief Engineers of Com·
mands.
Zonal Chief Engineers are a class apart from the Chief Engineers of
Commands. They are under the administrative control of the Chief Engineers
of Comn1and.
Thus the delegation is to the Chief Engineers of Commands
and not to the Zonal Chief Engineers. [600 A-B, F-H 601 A-Bl
(3) The letter dated 23-1-1963 is not signed by the Engineer-in-Chief. It
appears to have been signed by some other person for Engineer-in-Chief. Nor
does it purport to have been issued pursuant to any separately passed order of
the Engineer-in-Chief expressly delegating the powers of appointment to posts in
Class III service under Rule 10.
There is nothing in the Jetter to show that
the delegation was to the Zonal Chief Engineers.
On the contrary, paira 8 of
the letter talks of tQe Command Chief Engineers.
The way in \vhich the
Engineer-in-Chief has construed the letter is not relevant.
[601 G-H, 602AB]
(4) Brig. Naresh Prasad, Zonal Chief Engineer was not competent to remove
the respondent and as such, the order sanctioning the prosecution of the respondent was bad in law. [602 CJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 126 Of
1977.
Appeal by Special Leave from the Judgment and Order dated the
12-1-1976 of the Punjab and Haryana High Court in Crl.A. No. 583/
72
R. N. Sachthey and H. s. Marwah for the Appellant.
HARYANA v. N. c. TANDON (Sarkaria, !.)
Hardyal Hardy and S. K. Sabbarwal for Respondent.
The Judgment of the Court was delivered by
595
A
SARKARIA, J .-This appeal by the State is directed against a judgment
of the Punjab and Haryana High Court setting aside the conviction o!
the respondent herein in respect of offences under ss.5 (2) read with
s.5{1){d) of the Prevention of Corruption Act, 1947 and 161, Penal
B
Code on the sole ground that the sanction for his prosecution had not
been accorded by a competent authority.
N. C. Tandon, respondent was a civilian in the defence service in
the rank of temporary Superintendent Building and Roads, Grade 1.
It was alleged that he had accepted illegal gratification of Rs. 300 / -
from one Brij Bhushan Lal, Contractor on 11-3-1971 as a motive or
reward for doing an official act.
The Contractor was at the material
time doing the construction of main sewers in Chandigarh Cantonment
near Panchkula.
The respondent's duty was to supervise that construction.
The respondent, it is alleged, demanded the bribe as
a
reward for recording correct measurements. Brij Bhushan Lal did not,
in fact, want to pay the gratification. He therefore informed the Special Police Establishment authorities who on 10-11-1971 trapped the
accused and allegedly recovered the tainted money from his posse~sion.
The sanction for the prosecution of the accused was accorded by
Brig. Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh
on 24-6-1971.
The Special Judge, Ambala tried and convicted the
accused on the aforesaid charges and sentenced him to one year's
rigorous imprisonment and a fine of Rs. 1.000/-.
Tandon appealed to the High Court.
The appeal was heard by
a learned Single Judge who held that on 24-6-1971, when Brig. Naresh
Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or
delegated power to appoint to a post in Class III Service and that such
a power was delegated to Chief Engineers of Zones for the first time
on 14-1-1972. The learned Judge noted that the authority competent
to appoint the accused-respondent on 24-6-71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer. He
therefore concluded that the sanction for prosecution of the accused
had not been given by the competent authority.
On this short groun_d,
the High Court allowed Tandon's appeal, without going into the merits
of the case.
At the outset, we may notice the general principles which govern
the sanction for prosecution in such cases.
Sub-section(!) of s. 6 of the Prevention of Corruption Act says:
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"No court shall take cognizance of an offence punishable
nnder s. 161 (or sec. 164) or section 165 of the Indian Penal
Code, or under sub-section (2) (or sub-section (3A) of section 5 of this Act, alleged to have been committed by a pubH
lie servant, except with the previous sanction of the authorities enumerated in clauses (a), (b) and ( c) of that section."
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596
SUPREME COURT REPORTS
[1977] 3 S.C.R.
Sub-section_ (2) of the section provides :
"Where for any reason whatsoever any doubt arises
whether the previous sanction as required under sub-section
( 1) should be given by the Central or State Government or
any other authority, such sanction shall be given by that
Government or authority "which would have been competent
to remove the public servant from his office at the time when
the offeni:e w.aa all€ged to have been committed."
(emphasis added)
Thus the test as indicated· in this sub-section, for judging the competency of the authority giving the sanction is, whether at the time of
the alleged commission of the offence, it had the power to remove the
public servant from his office.
Another principle to be borne in mind is, that unless a differ•ent
intention appears, the power to appoint to an office includes the power
to dismiss or remove from 'that office ( vide s. 16, General Clauses
Act).
_We may further clear the ground and have a short, swift look at
the relevant statutory rulesIt is common ground that the post ol
Superintendent, Grade I (B & R) which the accused was temporarily
holding, is a post of Class III Services, and the members of this Service
are governed by Central Civil Services
(Classification, Control and
Appeal) Rules, 1965 (for short, hereinafteu called 1965 Rules).
The
1965 Rules were promulgated on November 20, 1965. Rule 34 of
the 1965 Rules repealed the earlier Rules of 1952 and any notification
or orders issued thereunder "in so far as they are inconsistent with
(the 1965 Rules)".
One of the provisions of the 1952 Rules, which
is relevant for our purpose, and which has substantially been rt:produced in the 1965 Rules, is Rule 10. It reads as under :
"10. All first appointments to Class I and Class II Services
shall be made by the Government.
Ali first appoint··
ments to Class III and Class- IV services shall be made
by the authorities specified in column 3 of Schedule
N in respect of posts mentioned against them or by
officers empowered in this behalf by such authorities:"
(emphasis added).
Schedule IV referred to in the Rule ran as follows :
"Schedule IV (Vide Rules, 10, 11, 12, 14 and 19).
SI.
Posts
Appointing AuthoNo.
rities in resPect 0f
Class !II and Class
IV posts (vide rule
10).
I to 7
8. PQsts in lower formatiQn under
E-in-C's l3r•nch
x
E-in-C'
x
Authority
1~.nwowert d
to
1rnpC'lse
penalties
(i), (ii\
(iv) rnd (v) of 1 ule
13 for Class II
Officers (Vid1!
r. 14)
C. Es. of th•o
Commands.
x ."
)
•
HARAYANA v. N. c. TANDON (Sarkaria, J.)
597
The former Rule 10 as recast into Rule 9 of the 1965 Rules reads
A
as below :
"9 ( 1) All appointments to Central Civil Services (other
than General Civil Service) Class II, Class III and
Class IV shall be made by the authorities specified
in this behalf in the Schedule.
Provided that in respect of Class Ill and Class IV
Civilian Services, or civilian posts in the Defence Services appointments may be made by officers empowered in this behalf by the aforesaid authorities.
(emphasis added)
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(2) AU appointments to the Central Civil Posts,Class II,
C
Class III and Class IV included in the General Central Civil Service shalJ be made by the
authorities
specified in this behalf by a general or special order
made, by the authorities specified in this behalf in the
Schedule."
It may be noted that both under the old Rule 10 and the Proviso to
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new Rule 9 (1), the appointing authority is competent to delegate the
power of appointment in respect of Class III Service.
Rule 13 enumerated. these penalties which could be impoBed upon
the servants subject to the Rules :
(i) Censure.
(ii) Withholding of increments or promotion.
(iii) Reduction to a lower post or time-scale or to a lower
stage in a time-scale.
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(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by .negligence or
breach of orders;
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(v) Suspension.
(vi) Removal from the civil service of the Government,
which does not disqualify from future employment.
(vii) Dismissal from the civil service of the Government
which ordinarily disqualifie;; from future
employG
ment.
(viii) Compulsory retirement .... "
Rule 14 of 1952 Rules specified who could impose these penalties
It provided :
·
·
"14(1) Any of the penalties specified in rule 13 may be imμ01;ed on any person subject to these rules by the
Government or by the appointing authority.
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598
(2)
(a)
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SUPREME COURT REPORTS
[1977] 3 s.c.R.
Without prejudice to the provisions of sub-rule (I),
any of the penalties specified in clauses (i), (ii),
(iv) or (v) of rule 13 may be imposed.
in the case of members of Class III and IV services
by the authority empowered in this behalf by the
appointing authority.
Explanation.-In this rule the expression "appointing
authority" includes an officer empowered
under Rule 10 to make first appointments to
Class III and Class IV Services."
Rules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14
of 1952 in all material aspects, excepting two, nameey, (1) Su!spension
has been taken out of the category of penalties, and (2) the Explanation appended to Rule 14 has been omitted because in the 1965 Rul,;s,
the subject matter of that Explanation has been made a part of the definition of "Appointing Authority" given in Rule 2(a).
The mafa submission of Mr. Sachthey, learned Counsel for the
appellant is that by an order communicated per letter, dated 27-4-1956,
made under Rule 10 of the 1956 Rules,
(subsequently reiterated in
letter dated 23-1-1963) the Engineer-in-Chief had empowered all Chief
Engineers in Military Engineering Service to make first appointments,
inter alia, to posts in Class III Service, and that the operation of the
aforesaid order was preserved and continued by the saving clause in
Rule 34(1) of the 1965 Rules.
On these premises, it is maintained,
that the High Court was wrong in holding that the Chief Engineer of the
North-Western Zone, Chandigarh was not the 'appointing authority
competent to remove the accused from service.
As against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that thfl order, dated 27-4-56, expressly
delegat~. the
power of making first appointments,, only to the Chief Engineers of the
three Commands, then in existence, and to the other authorities spedfied
therein. It is pointed out that in 1956 when this order was made, there
were no Zonal Chief Engineers which came into existence on reorganization in December 1962, as a class apart, working under the overall
administrative control of the Chief Engineers of Commands. The point
pressed into arguments is that a general delegation of the power in favour
of Chief Engineers of Commands, as a class, cannot, by any reckoning,
amount to a delegation in favour of the Zonal Chief Engineers, also,
working under the control of the Chief Engineers of Commands.
Mr. Hardy has further submitted that the letter dated 23-1-1963
has not been issued under the signature of the Engineer-in-Chief, nor
can it, by any; stretch of language, be construed as a delegation of the
power of appointment under Rule 10. In the alternative, it is submitted
the power delegated by the Engineer-in-Chief to the Chief Engineers
was a qualified one inasmuch as no power was given to them to dismiss
HARYANA v. N. c. TANDON (Sarkaria, !.)
599
or remove a Government servant of Class III Service.
It is maintained that by the aforesaid letter, the Chief Engineers were empowered
to impose only minor penalties other than that of dismissal aad
removal. It is urged, in view of this restricted delegation in the matter
of infilcting penalties, it cannot he said that on the principle underlying Sec. 16 of the General Clauses Act power of appointment will
automatically include the power to remove the person appointed from
his office.
In reply, Mr. Sachthey has pointed out that the fetter placed on
the power given to the Chief Engineers by the letter dated 27-4-56,
in the matter of removal or dismissal of Class III servants, operates
only in case of persons appointed by the Engineer-in-Chief, and not
where he was appointed by the Chief Engineer of a Command.
It is
pointed out that in the instant case, the accused was appointed not by
E-in-C but by the Chief Engineer, Western Command, Simla.
The main question that falls to be considered is,
whether the
E-in-C's order communicated through letter, dated 27-4-1956, can be
construed as a valid delegation of the power of appointment to posts
in Class III Service to Zonal Chief Engineers, which came into existence on re-organization in December, 1962?
The material part of this letter reads as under :
"To
x
The Chief Engineer,
Southern Command, Poona
Eastern Command, Lucknow
Western Command, Simla
x
x
Subject : Civilians in Defence Services (Classification, Control and
Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in Defence Services
(Classification, Control and Appeal) Rules, 1962, I hereby authorise
the authorities mentioned hereunder to make first appointments to
Class III and IV Services to the extent indicated below :
Authority
Posts
A
B
c
D
E
F
(a) Chief Engineers
(b) CWO, NDES
All posts with the exception of permanent appointments to the follow·
ing categories :
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(i) SuPerintendent, BIR Grade I.
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2. Under Rule 14(b) of CDS (Cc&A) Rules, 1952 the undermentioned authorities are empowered to impose penalties referred to
in Rule 13 ibid, to the extent indicated below :-
(a) CbiefEngineers and CWO, NDES
Penalties at (i), (ii), (iv) and (v) of
Rule 13
on Class Ill employees in
respect of whom E·in.c is the appoint.
ing authority."
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SUPREME COURT REPORTS
[1977] 3 S.C.R.
A perusal of this letter will show that it is
(among others)
addressed to the Chief Engineers, Southern Command, Eastern
Command, Lucknow, and Western Command, Simla.
On the date o:f
this letter there were only three Commands; two commands wem
created subsequently.
There were no Zones or Zonal Chief Engineers
at tl\at time.
Therefore, the Chief Engineers to whom the powers
have been delegated under this letter could only be the Chief Engineers of the Commands, as a class.
Since the delegation lias been to
the Chief Engineers of the Commands, as a class, it will cover the
Chief Engineers of these Commands, also, which were subsequently
created.
But, the question is will it take in Chief Engineer o~ :ZOru:s
and amount to a delegation of power in their favour, too, on their
creation six years later in 1962 ? Answer to this question will
depend on whether the Chief Engineers of Zones belong to the same
class holding the same rank and exercising same administrative powers
and control as the Chief Engineers of Commands ?
At the final bearing, we bad asked Shri Sacbtbey, to make ava,ilable to us the official order, regulations and like material throwin&
light on this aspect of the problem.
From the material furnished by
him, it appears that the decision to reorganize the Military Engineering
Service was taken by the Government in December, 1962. Pursuant
to that decision, the Zones were created and Engineering Services in
each Zone were placed under the charge of a Chief Engineer, of that
Zone.
Chandigarh area was also made North-Western Zone, for this
purpose.
This reorganisation took effect from January 1, 1963. The main
object of creation of Zonal Chief Engineers as
stated in C-in-C's
letter No. 66161/Il/E2A, dated 13-12-1962, was to "effect maxinmm
possible decentralisation and thereby achieve speed and efficiency in
the planning and execution of work services."
As is apparent from the letter dated 22/26-12-1962 from the
Engineer-in-Chief, the Zonal Chief Engineers have to work "under the
command and technical control of CEs Commands for the planning
and execution of works." E-in-C's letter, No. 6161/Il/E2A, dated
December 13, 1962 addressed to the Chief Engineers, Commands and
others, also, makes it clear that nnder the re-organized set up, "C.E.
located at each Command H.Q. will be responsible for all engineer
matters in the Command, administration and training of engineer troops
and for the coordination of works. Under the Command and technical
control of this Chief Engineer there will be number of CEs/CsWE ...
on zonal basis."
These two letters unmistakably show that the zonal Chief Engineers are a class apart from the Chief Engineers of Commands.
Although extensive financial powers have been delegated to the Zonal
Chief Engineers, which are almost the same as that of the Chief
Engineers of the Commands, the fact remains that they are under the
overall administrative control of the Chief Engineer of tlie Commands concerned.
j
HARYANA v. N. c. TANDON (Sarkar/a, J.)
601
In this view of the matter the scope of the
delegation of the
powers made under the letter dated 27-4-1956, must be construed
as a delegation only to the Chief Engineers of Commands, as distinguished from the Chief Engineers of Zones which were then not even
in embryo.
This takes us to the letter dated January 23, 1963 from the Army
H.Qrs., E-in-C's Branch. In the first place, this letter is not signed
by the E-in-C. It appears to have been signed by some other i:>erson
"for E-in-Chief'; secondly it does not purport to have been issued
pursuant to any separately passed order of the E-in-C expressly delegating under Rule 10; the powers of appointment to posts in Class III
Service.
The opening sentence of this letter, no doubt, refers to
HQ Letters No. 66161/II-E2A, dated 8 Dec. 1962, para 4 and even
No. of 22 Dec. 1962, which we. have already noticed.
There is
nothing in them which delegates the powers of appointment to any
posts to the Zonal Chief Engineers.
On the contrary, para E of this
letter says "All Class III and IV personnel will be provided by the
Command CE and will continue to be borne on the strength of that
Command for purposes of (a) All documentation (b) Temporary
promotion (c) Permanency
(d) Retrenchment and reversion
(e)
Pension-progress by the Unit but overall control by the Commarid CE."
(Emphasis added)
Mr. Sachthey has placed great stress on para 12 of this
letter
which says :
"The normal powers of Chief Engineer in all matters
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relating to appointments, punishments etc. vest with each
.E
Zonal Chief Engineer in accordance with this HQ letter No.
27304/EID(2) dated 27th April 1956. In exercising these
powers it will be necessary to consult CE Command prior
to recruitment and replacements."
The argument advanced on behalf of the appellant is that the very
authority that had issued the letter dated April 27, 1956 has construed
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it as delegating the powers of appointment, punishment etc. to the
Zonal CEs. also, and therefore, the Court should accept that interpretation.
We are unable to accept this argument. We have already pointed .
out that this letter, dated 23-1-63, has not been issued under the
signature of the same authority from which the order, dated 27-4-56,
G
had emanated. It does not ex facie show that any order, apart from
that dated 27-4-56, had been passed by the Engineer-in-Chief under
Rule 10.
For reasons given earlier, we have no hesitation in holding
that, the assumption made in Paragraph 12 of this letter extracted
above, to the effect that the Zonal Chief Engineers were vested with
powers of appointments, punishments etc. in accordance with H.Q.
letter dated 27 April 1956 was clearly incorrect, Perhaps, thai was
H
why on 14-1-1972, the necessity of making a proper order delegating
such powers to Zonal Chief Engineers and others, under Rule 9 was felt
by the Engineer-in-Chief.
'602
SUPREME COURT REPORTS
[1977] 3 S.C.R.
A
No other order of the Engineer-in-Chief made prior to 24-6'-197 l
under Rule 10 of 1952 Rules or under Rule 9(1) of the 1965 Rules
delegating the power of appointment to posts in Class Ill Services,
has been placed before us.
We have therefore no alternative but to
hold that on 24-6-1971, Brig.
Naresh Prasad, Zonal Chief Engineer,
North Western Zone, Chandigarh, was not competent to remove the
accused-respondent, Tandon, from the post of Superintendent, B&R
B
Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.
In view of this finding, we do not think it necessary to examine
the alternative contention advanced by Shri Hardy.
The case fa'i!s
because there is no valid sanction, as required by the law.
Obviously,
this does not preclude a fresh prosecution for the same offence-but
C
1d't is ahmthatter for the
1
. Stateh, in
1
dthbe c
1
ircumhstdances. of thhe case, todconsier w e er prosecu ion s ou
e aunc e agamst t e respon ent or
not. We make this observation only to remove a possible misapprehension.
In the result, the appeal fails and is dismissed.
iP.H.P.
Appeal dismissed.