# STATE OF JAMMU AND XA.SJJMIR v. M. S. F ~ROOQl AND Ol'HERS

- **Citation:** [1972] 3 S.C.R. 881
- **Court:** Supreme Court of India
- **Decided:** 1972-03-17
- **Bench:** Discipline, Appeal) Rules, hence, under Art. 2'4 as it existed when Commiasion Act came into force (July
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-jammu-and-xa-sjjmir-v-m-s-f-rooql-and-ol-hers-5627
- **Pages:** 17

## Headnote

the Commission Act must give way to the All India ServJoea Act and tm
Rules made ther~under. [883 C-D. 887 B-C; 897 FJ
(a) The position when the Commission Act came into force was that
F
Parlia~nt could legislate on it~:m 70, List I, cteruin~ with 'UniCill Public
Servicee, All India Services and Union Public Serv1ce Commission, .and
Art. 254, as appliqable to Jammu. and Ka&hmir at that time provided
that, if any provision of a law made by the Legislature of a StAte is
. repugnant to any provision of a law made by Parliament which Parliament iJ compmnt to enact the law made by Parliament, whether ~d
before or after the Jaw made by the Legislature of tbcl State, &hall prevail
G . and
the
law made
by the
Legislature Of
the
Sta~ aha.ll, to
the
extent of repugnancy,
be void. It therefore follows
that if
provision
of the Commission Act is repugnant to a provision of the
Discipline '3IId Appeal Rules, I9SS, then tl!e law made by the State of
Jammu and Kashmir must give way. ,L884 H·S85 F]
A. S, KrirhM v. State of MGJras,· [1957) S.C. a. ~99; ,Deep Charld.
v. State of Uttar Pradesh, [19591 Supp. 2 S.C.R. 8 and Prem Nath
H
Kaul v. The State of Jammu and Kashmir, [1959] Supp. 2 S.C.R. 270,
explained.
(b) Repugnancy arises when (i) there is inoonsi$tency in the a~~
terms of the Act enacted· by Parliament and the impugned State ..Act,
882
SUPREME COURT REPORTS
[1972] 3 S.C.R.
or (ii) the law enacted by Parli-ament was intended to be a complete and
A.
exhaustive code, (or) (ih) the law enacted by Parliament was in~nded
expressly or impliedly to cover the whole field. L887 FPH]
,
Ch. Tika Ram ji v. Stat.e of U.P., [1956] S.C. R. 393, f<>llowed.
Deep Chand v. State of Uttar Pradesh, [1959) Supp. 2 S.C.R. 8;
ref.erred to.
(c) It could be said '3. law enacted by Parliament was intended to
-cover the whole field, where by reason of the subject ma.tter dealt with,
and the ~thod of dealing with it, and the nature and multiplicity of
the regulations prescribed, Parliament had adopted a plan or scheme which
would be hindered and obstructed if '3.0y additional regulations whatever
are prescribed upon the subject by any other authority, that is, if
the
subject is either touched or trenched
upon by the State authority. [888
D-Fl
O'Sullivan v. Noarlunga Meat Ltd .. , [1957] A. C. 1: Attornczy General,
Canada v. Attorney-General, British Columbia, i1930] A.C. 1:t 1; Subrahmanyan Chattiar v. Muthuswami Goundan, t1940] F.C.R. 188 and Ukha
Kolha v. State of Madras, A.I.R. 1963 S.C. 1531, referred to.
Megh Raj v: Allah Rakhia, [1947} F.C.R. 77; Prafulla Kumar
Mukherjee v. Bank of Commerce; [1947] F.C.R. 28 and CalcuUa Gas
Company v. S~te of West Bengal, [1962] Supp. 3 S.C. R. 1 ; explained
Wynes, Legislative Executive and Judicial
Power~ in
Austral1'a~
4th ed. p. 101, referred to.
(d) From the perusal of the provisions of the two statutory laws,
namely, the All India Services (Discipline and Appeal) Rules, 1955,
and the Jammu and
Kashmir
Government Servants
Prevention
of
Cctruption (Commission) Act, 1962 it is impossible to escape
the
conclusion that the two cannot go
together.
The impugned Act pro.
vides for addition-al punishments not provided for in the Discipline and
Appeal Rules; and in so far as the Commission Act deals with the infliction of disciplinary punishment it is repugnant to the Disdpline and
Appeal Rules.
Parliament had occupied the field and given clear indication that the only manner in which any disciplinary action could re
taken against the members of the All India Service, was und-er the AU
India Services (Discipline and Appeal) Rules. [897 B-D]
In so far as the Commission Act deals, with a preliminary enquiry for
the purposes of enabling any prosecution to be launched it may be within
the legislative competence of the Jammu and Kashmir State and not repugn'ant to the provisions of the Discipline and Appeal Rules. But '8S the
provisions dealing with investigation for possible criminal prosecution are
inextricably interwined with the p

## Text

_Characters 0–39,926 of 43,507. This is a partial read: ask again with offset=39926 for what follows._

8
STATE OF JAMMU AND XA.SJJMIR
v.
M. S. F ~ROOQl AND Ol'HERS
March 17, 1972
rs. M. SIKRI, c.r., A. N. GR.ovila, A. N. RAv, n. o. PALBKAR
AND M. H. BEG, J.t.)
Constitution of lrtdia, 1950, Art. 254 as applied to Jammu and Kashmir
in 1962....:..Scope of.
Jammu and Kashmir Government Servants' Prevention of Corruption
C
(Commission) Act, 1962-/f repugnooo to All India Services Act, 1951,
and Rules made thereunder-Repugnahcy-Test$ for.
The respondent, a member of the Indian Police Service, wu borne on
the Jammu and Kashmir Cadre. The Cottunission 8et up under the
Jammu and Kashmir Government Servants'' Prevention of Corruption
(Commission) Act 1962, directed investigation into a complaint received
by t~ Comminlon again&t the respondent. He cballenaed the jurisdic·
D
tion of the Commission, and the High Court allowed the petition, holdl.QJ
tmot th.e members of an All In~a Service, serving in a State, are govern·
ed by the All India Services Act, 1951 and the Rules made thereUndet,
and the Commission Act was not applicable to them.
c
Dismilaing the ap~ to this Court,
HELD : Asaumina that the Conunisaion Act is, in pith all.d substaooe,
a law with respect. to cOrruption of Governm.ent servants, it ia repugnant
to the provisions of the All India Se!rvi~s Act and the All Indn ServiefS
(Discipline and Appeal) Rules, 1955_.....and hence, under Art. 2'4 as
it existed when the Commiasion Act came into force (July, 16, 1962)j
the Commission Act must give way to the All India ServJoea Act and tm
Rules made ther~under. [883 C-D. 887 B-C; 897 FJ
(a) The position when the Commission Act came into force was that
F
Parlia~nt could legislate on it~:m 70, List I, cteruin~ with 'UniCill Public
Servicee, All India Services and Union Public Serv1ce Commission, .and
Art. 254, as appliqable to Jammu. and Ka&hmir at that time provided
that, if any provision of a law made by the Legislature of a StAte is
. repugnant to any provision of a law made by Parliament which Parliament iJ compmnt to enact the law made by Parliament, whether ~d
before or after the Jaw made by the Legislature of tbcl State, &hall prevail
G . and
the
law made
by the
Legislature Of
the
Sta~ aha.ll, to
the
extent of repugnancy,
be void. It therefore follows
that if
provision
of the Commission Act is repugnant to a provision of the
Discipline '3IId Appeal Rules, I9SS, then tl!e law made by the State of
Jammu and Kashmir must give way. ,L884 H·S85 F]
A. S, KrirhM v. State of MGJras,· [1957) S.C. a. ~99; ,Deep Charld.
v. State of Uttar Pradesh, [19591 Supp. 2 S.C.R. 8 and Prem Nath
H
Kaul v. The State of Jammu and Kashmir, [1959] Supp. 2 S.C.R. 270,
explained.
(b) Repugnancy arises when (i) there is inoonsi$tency in the a~~
terms of the Act enacted· by Parliament and the impugned State ..Act,
882
SUPREME COURT REPORTS
[1972] 3 S.C.R.
or (ii) the law enacted by Parli-ament was intended to be a complete and
A.
exhaustive code, (or) (ih) the law enacted by Parliament was in~nded
expressly or impliedly to cover the whole field. L887 FPH]
,
Ch. Tika Ram ji v. Stat.e of U.P., [1956] S.C. R. 393, f<>llowed.
Deep Chand v. State of Uttar Pradesh, [1959) Supp. 2 S.C.R. 8;
ref.erred to.
(c) It could be said '3. law enacted by Parliament was intended to
-cover the whole field, where by reason of the subject ma.tter dealt with,
and the ~thod of dealing with it, and the nature and multiplicity of
the regulations prescribed, Parliament had adopted a plan or scheme which
would be hindered and obstructed if '3.0y additional regulations whatever
are prescribed upon the subject by any other authority, that is, if
the
subject is either touched or trenched
upon by the State authority. [888
D-Fl
O'Sullivan v. Noarlunga Meat Ltd .. , [1957] A. C. 1: Attornczy General,
Canada v. Attorney-General, British Columbia, i1930] A.C. 1:t 1; Subrahmanyan Chattiar v. Muthuswami Goundan, t1940] F.C.R. 188 and Ukha
Kolha v. State of Madras, A.I.R. 1963 S.C. 1531, referred to.
Megh Raj v: Allah Rakhia, [1947} F.C.R. 77; Prafulla Kumar
Mukherjee v. Bank of Commerce; [1947] F.C.R. 28 and CalcuUa Gas
Company v. S~te of West Bengal, [1962] Supp. 3 S.C. R. 1 ; explained
Wynes, Legislative Executive and Judicial
Power~ in
Austral1'a~
4th ed. p. 101, referred to.
(d) From the perusal of the provisions of the two statutory laws,
namely, the All India Services (Discipline and Appeal) Rules, 1955,
and the Jammu and
Kashmir
Government Servants
Prevention
of
Cctruption (Commission) Act, 1962 it is impossible to escape
the
conclusion that the two cannot go
together.
The impugned Act pro.
vides for addition-al punishments not provided for in the Discipline and
Appeal Rules; and in so far as the Commission Act deals with the infliction of disciplinary punishment it is repugnant to the Disdpline and
Appeal Rules.
Parliament had occupied the field and given clear indication that the only manner in which any disciplinary action could re
taken against the members of the All India Service, was und-er the AU
India Services (Discipline and Appeal) Rules. [897 B-D]
In so far as the Commission Act deals, with a preliminary enquiry for
the purposes of enabling any prosecution to be launched it may be within
the legislative competence of the Jammu and Kashmir State and not repugn'ant to the provisions of the Discipline and Appeal Rules. But '8S the
provisions dealing with investigation for possible criminal prosecution are
inextricably interwined with the provisions dealing with infliction of disciplinary punishment the whole Act mu~t be read so as to leave the mPmbers qf the All Jndia Services outside its purview. f1897 D-F]
CML APPELLATE JURISDICTION: C.A No. 1572 of 1968.
Appeal from the judgment and order dated the 31st October,
1966 of the Jammu and Kashmir High Court m Writ P€~tition No.
130 of 1966.
c
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G
M. K. Ramamurthi, Ram Panjwani and R. N. Sachthey, for the
H
appellant.
G. L. Sanghi, for the respondents.
B
c
J. & K. STATE v. M. s. FAROOQI (Sikri, C.}.)
.883
The Judgment of the Court was delivered by
Sikri, C.J. This is an appeal by certificate granted by the High
Court of Jammu and ~ashmir from its judgment dated October 31,
1966 allowing the writ petition filed by the petitioner.respondent,
M. S. Farooqi of the In4ian Police Service, and restraining the State
of I ammu and Kashmit, appellant before us, from proceeding
against him under the Jammu and Kashmir Government Servant<~'
Prevention of Corruption (Commission) Act, 1962-hereinafter
referred to as the Collliliission Act. The High Court held that the
members of an All India Serviee serving in a State are governed
by the All India Services Act, 1951, and the Rules made thereunder, and the Commission Act was not applicable to them. The
High Court further held that the Commission Act was hit by art.
14 of the Constitution as "there is a c~.:.ar discrimina:tion between
the members of All India Services posted else where and the members of the same Servic~ postled in the State inasmuch as inquiry
against the former for .acts of corruption is to be hel4 under the
Central Act and the rules made thereunder while against the latter
o for the same acts of corruption enquiry is to be held under the
Commission Aot, the px:_ovisions of which are for more drastic than
the Central Act and tl_le rules made thereunder."
We may briefly state the releyant facts which necessitated the
filing of the writ petition. The respondent before us, M. S. Farooqi,
hereinafter referred to as the petitioner, is a member of the Indian
E
Police Service which is in All India Service. He is borne on the
Jammu & Kashmir cadre. On March 12, 1964, an anonymous
complaint was received by the Commission, set up undet:. the Commission Act.
On March 20, 1964, the Commi§sion asked for a
report from the Deputy Inspector General of Police. The Deputy
F
·G
••
Inspector General of Police (Anti Corruption Organisation) raised
the question of the juriSqiction of the Commission. The Commis4
sion, however, held that the Commission Act was applicable in its
entirety to Government servants belonging to Jammu and Kashmir
cadre of the All India ~ervices. The objection raised by the In4
vestigating Agency was thus overruled. The Investigating Agency
was directed to continue Investigation of the. case and submit a
report. Thereupon the Qetitioner filed the writ petition in the High
Court challenging the .jurisdiction of the Commission. As stated
above, the High Court allowed the petition, but later granted
certificate of fitness and the appeal filed on behalf of the State of
Jammu and Kashmir is now before us.
The learned counsel for the State contends that :
(l) The Commission Ad is in pith and substance a law in
respect of corruption of Government ·servants of 'Jammu ;and
Kashmir and only incidentally deals with memberi; of the All India
SUPREME COUJ.T RBPOilTS
·(1972) 3 S.C.R.
Services, and is therefore valid in its entirety.
(2) If such a legislation ia valid, t:be Act ilnot discriminatory
because aB·servants of Jammu and Kamii Government are treat·
ed alik«!! aDd the same procedure applied to them for the trial of
oftences ~ corruptionj
(3) There is ~ valid' classification on 1lbe basis of territory; and
( 4) In any event, the procedure under the Commission Act is
not more prejudicial than that under the All India Services Act,
1951, and the rules made thereunder.
A
B
The first pointraised by the learned counsel does not meet the.
real objection to the applicability of the Commission Act to memC
bers of the Indian Police Service serving in Jammu and Kashmir.
This objection is that,. assuming that the Commission Act is in
pith and substance a law with respect to corruption of Qovernment
servants, it is repugnant to the provisions of the All India Service
Act, 1951, and the All India Services (lmcipline and Appeal)
Rules, 1955-horeinafter referred to as the Discipline and Appeal
D
Rule., and it must give way to the statUtory provisions.
It seems to us that there is force in the objection raised on be·
half of the. petitioner an«). in that view it is not necessary to decide
the four points raised by the learned counsel.
We are here coricef!lled with. the Constitution ·Of India as applicable to the State of Jammu and Kaibm.ir at the relevant time. Arti_cle 3 70 of the Constitution of India, inter alia, provides that "the
powers of-Parliament to make laws for the State (of Jammu and
Kashmir) shall be limited to those matters in the Union J.,ist and
the Concurrent List whi~h, in consultation with the Government of
E
the State~ are declared by the President to correspond to matters
specified in the Instrument of Acce8sion. governing the Accession r
of the State to the Dominion of India as the matters with respect
to which the Dominion. Legillature may make laws for the State,
and (ii) such other matters in the said Lists as, with the concurrence
of the Government of the State, the President
may~ by order
epecify."
.
G
In exercise of the powers ~onferred by cl. (l) of art. 370, the
President, with the conc~rrence ot the Government of the State of
Jammu and Kashmir, made . the Cqnstitution (Applicatton to
Jammu andJ Kashmir) Order; 1954.
We are concerned in this
case with the position as it existed onJuly 16, 1962 when ~e Com·
missiqn Act received ~he assent of the Sadar~i-Riyasat. nte posi·
1:1
1ion was that Pailiametlt coald legislate on List I, entry 70, which
reads: .. Union Public Services, AU•Ind.ia Servicesj UniOn. Public
Sttvice commission... ·
.
A
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J. & K. STATE v. M. s. FAl\OOQI (Sikri, C.J.)
88.5.
Articl~ 246 of the Constitution, as applied to Jammu and
Kashmir, then read:
"246 ( 1) Parliament has exclusive power to .~
. laws with respect t9 any of the matters enumera~ in
List I in the Seventh Schedule (in this Constitution re--
ferred to as the "Union List"."
·Articles 248 and .249 of the Consditution had not been mado
applicable to the Stat~ of Jammu and Kashmir and, therefore. all
the residuary powers res~ed with the State of Jammu and Kashmir.
Entry 97 of List I, dealing with residuary powers~ had abo been
omitted.
. Article 254, as applica~e to the State of Jammu and Kashmir
at the relevant time, provided :
"254. If any provision of a law made by the Legi~
lature of a State is r~pugnant to any provision of a law
made by Parliament which Parliament is competent to ·
enact, the law made by Parliament, whether passed before or after the law made by the Legislature of the State,
shall prevail and t.he law made by the Legislature of the
State shal11 to the extent of repugnancy, be void.''
At the relevant time there was no concurrent list. Certain entries
in the Concummt 'List ~eem to have been applied by the order
J
No. CO 66 of 1963 dated September 25,-1963, for the first time.
. Fr9m this constitu.tiQnal scheme it follo\vs tha• if a. provision
6f the Conuuission Act ~ repugnant to a provision of the Discipline
and Appeal Rules, 19S5, then the law made by the State of Jammu
and Kashmir must give way.
·r
Article 254 o( the Consrtitution as applied abOw, is similar to
section 109 of ~e Al:!~tralian Constitution which provides that
"when· a Jaw of the State is inconsist&nt with a law ol the Coni·
monwealth, the latter Shall prevail, and the fonner shall to the
extent of inconsistency, be invalid."
G
The ]earned counsel for the State relied on various deei&ions of
thi~ Co.urt interpreting art. 2S4, as it exists- in the Indian Consti·
H
tuhon.
·
· ·
In A . s. Krishna v. State of M atltas.( 1) while ~nteq?rettfig s.
107 of the Gov~ent of' India Act, 1935,, which is similar tO art.
254(1) of the Constitution, Venkatarama Ayyar, J, o~~ :
"For tbia section to apply, :two eonditians ttlott ·be
f\IUilled: (1) the provisions of the Provincial law ~d
(1) [l9S7J S.(:.R. 399.
SUPREME COURT REPORTS.
(1972] 3 S.C.R..
those of the_ Centr~ Legislation must bOth be in respect
of a matter which is enumerated in the Concurrent List.
and (2) they must be repugnant to each other. It is only
when both these requirements are satisfied that t:he provincial law will, to the extent of repugnancy, become
void."
In Deep Chand v. State of Uttar Pradesh(!), SubbaRao, J., as
he then was, seems td read cl. (2) of art. 254 in a similar manner.
In Prem Nath Kaul v. The State of Jammu and Kashmir( 2 ),
Gajendragadkar, J., as he then was, observed:
"Besides, it is clear that the es~nrtial condition for
the application of Art. 254( 1) is that the existing law
must be with respect to one of the matters enumeJrated in
the Concurrent List; in other words, unless it is shown
that the repugnancy is between the provisions of a sub~
sequent law and those of an existing law in respect of
the specified matters, the Article would be inapplicable;
and, as we have already pointed out, Schedule Seven
which cont;ains the three Legislative Lists was not then
extended to the ~fa;.te; and. it is, therefore, impossible to
predicate that the matter covered by the prior law is one
.of the matllers enumerated in the Concurrent List. That
· is why Art. 2S4 cannot be invoked by the appelf.ant."
Art. 254, as applicable to the State of Jammu and Kashmir,
at the time this judgment was delivered, was in the same form as
in the Indian Constitution. This Court was not then dealing with.
art. 254 in the form wit~ which we have to deal with.
We may mention that this Court left open the questjon regarding the interpretation of art. 254(1) in the following words in
Ch. Tika Ramji v. The State of Uttar Pradesh(8 ) :
"We are concerned here with the repugnancy, if
any, arising by reason of both Parliament and t!be State
Legislature having operated in the same field inrespect
of a matter enumerated in the Concurrent List, i.e., food~
stuffs comprised in Entry 33 of List III and we are,
therefore, not ca1Le4 upon to express any opinion on the
controversy which was raised in regard to the exact .
scope and extent of article 254(1) in regard to "a law
·made by Parliament which Parliament is competent to
enact", as to whether the l~gislative power of Parlia~
ment therein refers to List I, List lli and ·the residuary
power of legislation vested in Parliament . under article
1 [t<m] SJp>. 2 S.C.R. 8~1.
(2) [1959} Supp. 2 S.C.R. 270; 300.
(3) {1956) S.C.R. 393; 424.
Bc
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.A.
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J. & K. STATE v . . Jd; .s, FAR.OOQI (Sikri, C.J.)
' 881'
248 or is confined merely to. the matters enumerated.in·th$
Cpncurrent List (V.ide A.I.R. 1942 Cal. 587 contra,. pet
Sulantiut, J., in 1940 F.C.R. 188 at p. 226)."
It seems to us that the above cases are not applicable as the
language of Art. 254 as appli~able ~ J. & K. is different .
On the wording of art. 254, as it existed when the C~ssion
Act was enacted, it seems to us that there is no escape from the
clear wording of the article. It says in plain words tb.at if there is
any repugnancy between the law made by the State and the law
made by Parliam~nt the law made by the Legislature of .the State
must give way.
So, the only question to be determined is whether there is any
repugnancy between the Discipline and Appeal Rules and the
Commission Act.
We may state that we are not concerned with
the meaning ascribed to art. 254, as it exists in the Indian Constiw
tution and which was interpreted by the judgments referred to
above.
· In Ch. Tika Ramji v. The State of Uttar Prade5h( 1) this.,Court
examined the question of. repugnancy. It referred to various
authorities and concluded that either there mus~ be inconsistency
in the actual terms of the Act. enacted by Parliament and the impugned State Act or 1he law enacted by Parliament be intended to
be a complete and exh~ustive code; in other words, expressly or
impliedly evince an intention to cover the whole field. Various tests
have been suggested by various authorities as to how to dmmine
whether there is any inconsistelicy or repugnancy. Bhagwati, J.,
referred to Nicholas-Australian Constitution, 2nd ed. p. 303who bad suggested three tests of inconsistency or repugnancy,
namely:-
·
(1) There must be inconsistency in the actual terms
of the c6nlpeting statutes.
·
(2) Though th~re may be no direct conflict, a Statt: ·
G
law may be inoperative because the Cooimblf..: •
wealth law~ or the award of·th6 CoininonWealth ·
Court, is intended to be a complete exhauStive
code.·
B
(3) Even in *e absence pf inten~on, a conftict:tnay ·
arise when both State and Conurionwealth·-seek
to exercise their powers over the same s~ject
matter.
(1) (1956] S.C.R.. 393.
. SUPReME COURT REPORTS
[1972] 3 S.C.R .
In Deep Chand v. State of Uttar Pradesh(!) Subba Rao, 1., as he
then was, speaking for the Court, observed on the question of re--
pugnancy:
"Repugnancy 'between two statutes may thus be as·
certain«~ on the basis of the following .three principles :
( 1) Whether there is ·direct conflict between the two
provisions;
(2) Whether Parliament intended to iay down .an
exhaustive code in respect of the subject matter
replacing the Act of the State Legislature; and
( 3) Whether the law made by Parliament and the
law made by the State Legislature occupy the
same field."
We may also refer to the observations of Evatt, J., in Stock Motor
Plough Ltd. v. Forsyth(2 ), which were extracted in Tika Ramji's
case( 8) :
"It (the test of covering the field) is no more than
a cliche for expressing the fact that, by reason of the sub·
ject matter dealt with, and the method of dealing with
it, and the nature and multi.plicity of the regulations
prescribed, the ~ederal authority has adopted a plan or
scheme which will be hindered and obstructed if any
additional regulations whatever are prescribed upon thesu~iect by any other authority; if, in other words, the
subject is· either touched or trenched upon by Stale
authority."
A
•
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It has been held in Australia that s. 109 of the Australian ·
Constitution is not limited in its application to cases where both B
sets of provisions deal with the same subject matter.
Wynes in
his "Legislative, Executive and Judicial Powers in A·ustralia" 4th
ed. states the general principles as applicable to Australia at page
101, . Some of these p_rinciples may be set out :
"1. Itis essential to consider first whether the ques-
·tiM ~ of incOnsistency arises. Th:us;· if the Commonwealth have no power to pass th6 law under consideraG
tion ·or the law is otherwise invalid, the matter is ended
and sec:. 109 does·not arise. Similarly, sec.l 09 does not
arise where the State law is invalid on other grounds.
•
•
1 t
~ t
..
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t
t
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t
t
t
3. It matters not which Act is first in point of time ..
~ ~ ·~ • ... , ....... .
II
(1)
~19~91 Supp. 1S:d.k.·~1. .
(2) : [1932)48 C.L.R. 128,)47:.>
(1) ·(I9S6J s.c.a. m.
B
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J. & K. STATE v. ~. $. FA.ROOQI (Sikri, C.J.)
.88&
. 7. Where th~e is ~t a direct conHict or <liscrimina.-
uoo, there tnay still be UJ.c006i~y if the SWe Utell1pts
to govern conduct or to de.aJ. with a mattu which hM
~!ready been dealt with by a law of the Commonwealth
mtcnde<l to expre~s CO!llpUlt!!lY elhau.tively or exc111Siv~
ly th~ law goven:u~g a certaL~ subject matter. TI;c question m every ca6e 1s : What " the in~tion of the a:nn~
monwealth Parliam.ent ? Is it an intention to lay dGWn
the .wb~le ~f the .J.e.w on a ccctain subject'! II so, that
subJect IS Withdrawn from State control, but, as we have
see f~o~ t.he reasoning of Dixon 1., in the 44-hour
CO:t", 1t JS wtthdrawn, not from any or all State legislation
wh1ch may affect or h.wc some connection with it, but
only from Store legislation which attempt5 to govern it
in the character in virtue of which it is regulated by
Commonwealth law.
8. It is not essential to ihe operation of sec. I 09 that
the two Acts comidered as a whole should be upon or
"wilh respect to" the Jame &ubject matter, but where the
inconsistency sou.Rht to be established is between Commonwealth intention to deal exclusively with a certain
5ubject and Scate law dealil\l: with conduct which may
conceivnbly fonn a portion of that 5ubject, the question
is whether tho State Act deal• with such conduct as for·
ming an dcrru:nt in the subject intended to be e.telusi\'l:ly
governed by Commonwenllh law. This question is ooe
which must be decided in the circumstances of each
Pllrticulor case."
The Judicial Committee of the Privy Council_. in ~ ·sullivan v.
r Noarrlunga M~aJ Ltd. (I) approved of the follov.ang lines from the
judgment of Dixon 1. in Ex part~ Mc/(an(') :
G
"The inconsistency does not lie! .in the mere~
tence of two l11ws wflich nre 5Uscept!ble. of simultaneous
obedience. It depends upon th7 mtent1on of the p:tra·
mount legu!arure tu ex~ss by fls eructment, CO!IJple~
ly, ellhoustlvely, or cxclwively, what shall be.J;f h'i~
~ovn-n.Iog the partlcnlar conduct or rpatter to _.,_ c
1
.
I d'
._..
Wtren a P~da'sl st3tute "~c o~s
r.ttenltOf! ' 'rec'"'-'·
.
·m It (I}( the law of
till~ an ml'e!tltlcn, it ~ lnoonmtent W1
ft
..
a Stt!te to tovcn the ra~ condaet or ma er,
.
·
tromt.r ti ~
and
l11 Cued.l 1lli• Q'11eJti~ .+tas lll'ISCS Ul a
l\OOillcy i6 .sa.14 to
.H
those c~ are re~v~t bccn~se .. ln Can.nd3 .Pa: IIIIIC of tAo four .
be tied up with dte &r~ng Qoc&r!AO .w
..... ·4'! ._
1
.
(I) (19HJ A.C. I; 28.
()) -4) c....... .• •
890
SUPREME COURT REPORTS
\
[1972] 3 S.C.lt.
propositions. laid down in the Fish Canneries case-Attorney
General, Canada v. Attorney-General, British Columbia(!) and
the fourth proposition was in these words :
"There can be a domain in which provincial. and
Dominion legislation may overlap in which case neither
legislation will be ultra vires if the field is clear, but if
the field is not clear and the two legislations meet the
Dominion legislation must prevail." {see G.T.R. v. A.G.
Can.( 2)]•·
I
Sulaiman, J., examined this question in Subrahamanyan
C
Chettiar v. Muthuswami Goundan( 3 ). He observed:
"lt seems to me that the principles of interpretation
laid down by their Lordships. in the Canadian cases cannot be brushed aside by simQly saying tpat they relate to
.a different Constitution. Those principles are not only
,of the greatest weight but must be a guide to us even in
interpreting the ~ndian Constitution. Of course, we cannot interpret the. language of any section in the Indian
Act in the light of the interpretation of the corresponding
section in the Canadian Constitution. That has to be
ayoidedi but the· principles of interpretation that have
been established cannot be ignored. At the same time
it would be dangerous to impon only a part of the doctrine and exclude another part. Partial application may
frustrate the very object for which the rule of law was
deduced.
The two doctrines of incidental encroachment and unoccupied field are closely related. I would
go further and say that they are indissolubly connected.
We cannot import the doctrine of incidental encroachment in favour of the Provinces, and refuse to import the
doctrine of unoccupied field which is in favour of the
Centre. The two must go hand in hand. To allow
Provincial legislatures to encroach upon the exclusiv~
Federal field, even though in an indirect way, when there
. is a Central legislation already occupying -the fJ.eld,
would be to give the former a free hand in nullifying
Central Acts relating to matters in the Federal List
Such a carte blanche could hardly have been· contemplated. ·The scheme of s. 100 of the Act is to exclude
completely from the authority of the ProVincial Legis-
. l.ature the power to legislate with· respect' to subjects in
(1)
(19~ A.C~ lll.
(2) (1907] A.C. 6S~
•Sei LUkin canadian Constitutional Law 3rd ed, p, lOS.
(3) {l940) ~.C.R. 1881 231, 240, 241.
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891
List I. .If in consequence of certain difficulties that Provincial Legislatures would experience by a rigid enforcement of such an exclusion we must in interpreting
the words "with respect to" import the Canadian doctrine of permissibility of incidental encroachment, we must
then at the sa:me ·time import the other allied doctrine
also that such an encroachment is permissible only when
the field is actually unoccupied. It is only in this way
that actual clash between the Centre and the Provinces
can be avoided, which I think we must. This will also
explain the apparent gap in s. 107 ( 1) of the Act, that
gap being filled in by the provisions of s. 1 00''.
Varadachariar J., left open the point whether the provisions
of the impugned Act may also be VQ.id under s. 107 of the Constitution Act insofar as they are repugnant to the provisions of the
Negotiable Instruments ;\ct. He observed :
0
"The validity of this contention will depend upon
the import of the expression "federal law" occurring in
the opening part of sub-section (1) of s. 107. It may be
conceded that the words "which the Federal Legislature
is competent to enact" may refer to the first List also and
they need not be qualified by the words occurring later
and referring to the Concurrent Legislative List; because,
if these later words were intended to qualify the opening words of the sub-section also, it .would not have been
necessary to use the words "which the Federal Legislature
is competent to enact" in the earlier portion."
E
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He further saw a possible anomaly in the operation of s. 107, viz.,
"that while provincial legislation in respect of subjects in the
Concurrent List cannot override "existing Indian law'' except when
assented to by the Governor General, such legislation in respect of
subjects enumerated in List II may without any such safeguard
override pre-existing enactments even of the Central Legislature if
they relate to subjects specified in List 1."
The learned counsel for the State relies on the decision of the ·
G
Privy Council in Megh Raj. v. Allah Rakhia(l) in support of his
proposition that if the impugned legislation is a law not with respect to All India Servic~s but a law with respect to Corruption of
·Public Officers it is within the jurisdiction of the State Legislature,
and no question of repugnancy arises. He relies paiticuhirly on. the
H
following observations :
"Thus both patties" rightly construed s. ·1 07 .as )ul.ving
.no appUcation in a case· where the province CO\Ikl s~ ·
(1) U947} P.C.R. 77, 8S, 88.
SUPREME COURT JlEPOltTS
[1972] 3 S.C.R.
that it was acting wholly within its powers under the Provin.ciill List and was not relying on any power conferred
on it by the Concurrent List."
"It follows that in their Lordships' judgment there is
not sufficient ground for holding that the impugned Act,
or any part of it, was invalid. As. a whole it fell within
the powers given to tJ:te province by items 2 ·and 21 of
list U, without any necessity to invoke any powers from
the Concurrent List, List III. Accordingly questions of
re~gnancy under s. 107 of the Constitution A~t do not
anse and need. not be consideml here;"
·B
But if facts are examined it would be clear that these obs«vations
do not assist the appellant.
The Act which was impugned was
the Punjab Restitution of Mortgaged Lands Act, 1938, and it was
argued that the provisions of the impugned Act were repugnant to
certain existing Indiari Laws, viz., Indian Contract Act and the
Code of Civil Procedure, which fell within en&ies· 8 and 10 of List
c
m ~ tho Government of India- Act, 1935.
Entry 8 dealt with
"transfer of ·property other than agricultural land; registration of
deeds and documents" and entry 1 0 deJlt with "COjlltracts, including partnership, agency, contracts of carriage, and other special
forms of contract, but not including contracts relating to agricultural land." The Privy Council came to the conclusion that the
impugned Act was within items 2 and 21 of List n. Their Lordlilhips observed :
·K
"If, as their Lordships think, the impugned Act is
limited to agricultural la~d, items 7, 8 and f 0 of List Ill
do not affect the position, since agncultural land is ex4
cl'uded in these entries. But in any event, the Act does
D
:not deal with wills or the transfer of property at ·an; it
does certainly deal with mortgages, but as their Lordships
lrave already stated, mortgages, though not expressly
mantioned in the Constitution Aot, are properly to bo
classed not under the head of contrac~. but as special
transactions ancillary to the entry of "land."."
, _
Ill this cue it was obvious that there was no conflict between legisG
lation ~ entries in List ll ·and JePlation on entries in List m;
the conftic:t if at all was with the existing ll!dian laws. The Privy
CoucU had not lO deal -M.th the matter with Which 'We are con~
cened, viz., wbaa a Yalid .Sr. legislation eomes iDto caatUct with
a competemt legislation of Parliament under List 1 ·
· ·
hhrly, in P~
KlnMr Mw/cMrfN -.. kNk of Com-
•
JMrce(t) tMI'e was alltlei ~'1 MtwteR t1Je Blllpl Money
(l) [1941] P.C.R. 28, 34.
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8~3
Lenders Act, 1940, and an existing Indian Law, namely, Negotiaable I!nstruments Act. It was u,:ged before the Privy Council that
"if outside the authorized field the impugned Act con1licts with a
Federal law-in the sense in which the words are 'used in s. 107
of the Constitution Act~t may be that its provisions would be
ineffective.
The answer to the suggestion that there is any such
conflict here is threefold : (i) There is no conflict or inconsistency
between the impugned Act and the !~egotiable I~truments Act;
(ii) If there is a conflict, then the Negotia~e Instruments Act is not
a Federal law within the meaning of s. 107 of the Cqnstitution Act;
(iii) If there is a conflict, and· if the Negotiable Instruments Act is
a Federal law then the conflict is with that part of the Fed.eraj Law
which is in the field Of contract, which is within the power conferred by List m, the Cqncurrent List, and the conflict is cured by
the provisions of s. 107, sub-s. 2, of the Constitution Act, because
this is a case where the Act was reserved for the consideration of
the Governor-General, and therefore the Provincial law in the
province would prevail."
The Privy Council posed three questions.
( 1) Does the Act
in question deal in pith and substance with money lending? (2) It
it does, is it valid though it incidentally trenches on matters
reserved for the Federal legislature ? ( 3) Once it is determined
whether the pith and substance is money lending, is the extent to
which the Federal field is invaded a material matter ? They ootswered the first question in the affirmative.
Dealing with the second
question, the Privy Council o'bserYed :
''Moreover, the British Parliament when enacting the
Indian CQnstitution Act had . a long experience of the
working of the British North America Act and the Aus~
tralian Commonwealth Act and must have known that
it is npt in principle possible to ensure that the powers
entrusted to the several legislatures will never overlap."
The Privy Cooocil approved of certain obserVations of Sir Maurice
Gwy~r, C.J. and then observed:
"But the overlapping of subject~tnatter is not avoided
by substituting three lists for two, or even ·Jtr arranging
for a hierarchy of jurisdictions. Subjects must still overlap, and where they do, the question· must be. asked what
in pith and substance is the effect of the enactnient of
which complaint is made, and in what list is its true
nature and characttr to be found.
If these questions.
could not be asked;· much benefiCient legislation would.
be stifled at birth, and many oi the subjects entruS~d to
il-L1061SupCI/72
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894
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Provincial legislation could never effectively be dealt
.4
with."
Dealing with the third question, the Privy Council observed :
"No doubt it is an important matter, not, as their
Lordships think, because the validity of an Act can be
determined by discriminating between degrees of invasion. butJor the purpose of determining what is the pith
and substance of the impugned Act.
Its provisions may
advance so far into F~eral territory as to show. that its
true nature is not concerned with provincial matters, but
the question is not, has it trespassed more or less, but is
the trespass, whatever it be, such as to sho'Y that the
pith and substance of the impugned Act is not money
lending but promissory notes or banking ?"
Their Lordships further observed :
"Does the priority of the Federal legislature prevent
the Provincial legislature from dealing with any matter
which may incidentally affect any item in its list, or in
each case has one to consider what the substance of an
Act is and, whatever its ancillary effect, attribute it to
the appropriate list according to its true character ?"
in this case there was no conflict alleged with the Federal legislation on an item in List I and what they were considering was
conflict with the existing law.
·
In A. S. Krishna v. State'oj Madras( 1) the conflict alleged was
between the Madras Prohibition Act, 193 7, on the one hand atld
the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898 on the other. This Court held that the impugned Act in
question was a law with respect to. entry 31 List II, and observed :
'The Madras Prohibition Act is thus in its entirety
a law within the exclusive competence of the Provincial
Legislature,
and 'the question of repugnance under s.
107 (1 ) does not arise."
The Court did not address itself to the question whether assuming
that it was a law with respect to entry 31 List IT a,nd not a law
with respect to entries 5 and 2 respectively. of List m, yet what is
to happen if the existing laws, namely, the Evidence Act and the
Criminal Procedure Code, were in fact repugnant. At any rate,
this Court was then not concerned with Parliamentary legislation
under List I and also was not concerned with art. 254 in the form
as it existed at the relevant tim~ as awlic•bl~ . to the State of
Jammu and Kashmir.
(1) [19S7] S.C.R. 399.
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sgs
We may mention that this Court upheld the provisions of the
Bombay Prohibition Act, 1949, under art. 254(2) in Ukka Kolhe
v. State of Madras (1) insofar as they were consistent with the
provisions of the Code of Criminal Procedure.
The learned counsel for the appellant referred to Calcutta Gas
Company v. State of West Bengal(2), but we are unable to see
how it helps the appellant's case.
In that case the Court was concerned with reconciling certain entries and observed that "entries
in the lists are only legislative heads or fields of l~slation; they
demarcate the area over which- the appropriate legislature cal'
operate. It is well settled that wide:;t amplitude should be given
to the language of the entries.
But some of the entries in the
different List or in the same List may overlap and sometimes may
also appear to be in direct conflict with each other.
It is then the
duty of this Court to reconcile the entries and bring harmony
between them."
But in this case we are not concerned with any
question of harmonising the entries because we have on the one
hand a specific entry in List I and on the other hand a residuary
List.
Now it remains to be seen whether the impugned Act is repugnant to the provisions of the All
India Service (Discipline and
Appeal) Rules, 1955.
We may first notice the provisions of the
Discipline and Appeal Rules.
Rule 3 prescribes certain penalties,
which may for good and sufficient reasons. and as hereinafter pro.
vided be imposed on a member of the Service.
The penalties
include censure, withholding of increments or promotion; reduction
in rank, removal from service and dismissal from service, etc. The
·authority to institute proceedings and to impose penalties is mentioned in r. 4.
It is the Government, under whom the member is
serving At the time of the commission of an act or omission which
renders him liable to any penalty, which is competent alone to
institute disciplinary proceedings and that Government can also
impose all the penalties specified in r. 3 except the penalty of dismissal, removal or compulsory retirement which order can only be
passed by an order of the Central Government.
Rule 5 prescribes
the procedure for imposing penalties.
The gro"Jnds on which it is
proposed to take action shall be reduced to the fonn · of definite
charge or charges which shall be communicated to the member of
the Service charged together with a statement of the allegations on
which each charge is based and of any other circumstances which
it,'is proposed to take into consideration in passing orders on the
B . case. A member of the service is given reasonable time to 'put in
a written statement of defence. It enables him to be,heard if he
(1) A.l.R. £1963} S.C. 1531.
{2)' £1962f Supp. 3 S.C.R. 1.
896
SUP.Rl!MB COUllT REPORTS
[1972]'3 S.C.ll.
so desires. The member of the Service is entitled to have acce8s A
to official records.
After the written statement is received, if such
is filed, the Government may· appOint a Board of Inquiry or an
Inquiry Officer to enquire into the . charges or the Government
enquires into the charges itself.
'
In brief, detailed rules are laid down regarding the manner of
B
holding the enquiry. Rule 6 provides for consultation with the
Union Public Service Commission.
Rule 7 deals. with suspension
during disciplinary proceedings and r. 8 deals with subsistence
allowance during suspension. Rule 9 deals with payment of pay
and allowances and treatment of service on reinstatem~nt. A right
of appeal is given against certain orders and r. 20 provides for a C ·
. memorial to be submitted to the President.
These rules are a complete code as far as infliction of penalties
prescribed in r. 3 is concerned.
The ·Commission Act provides for the constitution of one or D ·
. more Commissions to be known as the Anti-Corruption Commis~
sions to hold enquiry into the charges of corruption -and misconduct, as defined in ~s. 3 and 4 of the Coqunission Act, against all
government servants including members of All India Services. The
Commission is provided with an investigating agency to investigate
into the charges.