Sheikh Ghulam Rasul vs State of Jammu and Kashmir and Another

J.N. Bhat, J.—This is a writ petition filed by Sheikh Ghulam Rasul against the State of Jammu & Kashmir and the Chairman and the

members of the Anti-Corruption Commission (hereinafter to be referred to as the Commission), for the issue of a writ of certiorari quashing the

order of the Commission dated 9th July 1984 and further restraining the Commission from proceeding against the petitioner u/s 3 (d) of the J. & K.

Government Servants' Prevention of Corruption (Commission) Act (hereinafter to be referred to as the Act),

The petitioner's case is that he was working as. a Conservator of Forests in the State of Jammu & Kashmir till 8-3-58 when he was retired. He

was re-employed afterwards and finally ceased to be in Government service from 30-6-62. After re-employment the petitioner held the office of

the Custodian. Evacuee Property, Jammu and discharged the functions of a PRO (Provincial Rehabilitation Officer). On a complaint against one S.

Prahlad Singh in respect of certain acts alleged to have been committed by him, the Government appointed a Commission of Inquiry in which the

petitioner appeared as a witness for the prosecution. The Commission of Inquiry exonerated Prahlad Singh in respect of charges framed against

him.

The recommendation of that Commission was accepted by respondent 1, the State, on 27-2-63. On, the basis of the same allegations a fresh

inquiry was started against Prahlad Singh in which the petitioner also was called and the Commission framed a charge against the petitioner under

the Act as amended by Act No. 1 of 1964 which received the assent of the Sadar-i-Riyasat on 25-3-64. The petitioner has therefore, come up in

writ requesting the quashing of the charge framed against him and preventing the Commission from taking any further action on the basis of the

charge on the following grounds:

That the Act is not retrospective.

That its amendment in 1964 is not retrospective and violates Article 20 of the Constitution of India.

That the amendment has put in other penalties which were not existing in the previous Acts, etc.

The State and the Commission were represented in these proceedings by the learned Advocate General. The State has admitted that the

petitioner was retired on the date as stated by him. His re-employment and the termination of his services on 30-6-62 are also admitted by the

State. It is denied by the respondents that S. Prahlad Singh was exonerated. The charge framed against him by the Commission is different from

the charges levelled against him earlier by the State. About the legal objections raised by the petitioner to the framing of the charge against him by

the Commission and the proceedings therein, it is stated that all the grounds taken by the petitioner are incorrect and the petitioner is not entitled to

any relief.

The case was argued at great length and very ably by Mr. Sharma for the petitioner and the Advocate General for the State and the

Commission, Mr. Sharma's argument is that the Act makes the Government servants found guilty of corruption by the Commission liable to certain

punishments and therefore under the provisions of Article 20(1) of the Constitution of India which applies to this State this Act can have application

to only such actions or misdeeds of the Government servants as would be committed by them after the promulgation of this Act. In legal language

he has stated that the Act would be prospective and not retropective in operation. The same argument would apply to the amendment introduced

by Act No. 1 of 1964 to the Act. According to Mr. Sharma the alleged act of the petitioner has been committed by him somewhere after his re-

employment but before the principal Act came into force. Therefore the petitioner cannot be proceeded against under the provisions of this Act.

These contentions were raised by the petitioner before the Commission also. The Commission overruled these objections of the petitioner

holding that the corruption mentioned in the Act was also included in the definition of corruption as contained in the Prevention of Corruption Act,

2006, the Public Servants (Inquiries) Act of 1977 and the J. & K. Civil Services (Classification, Control & Appeal) Rules of 1956. The Act only

varied the procedure for determining the corruption committed by a Government servant. According to Mr. Sharma these findings of the

Commission were wrong in law. We shall examine the arguments advanced by Mr, Sharma in detail.

His first argument was that the Act as well as its amendment in 1964 contravened the provisions of Article 20(1) of the Constitution of India.

This Article reads as under:

No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor

be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

According to Mr. Sharma, the alleged act of the petitioner was committed by him before the Act was passed in 1062 by the State Legislature, It

makes the petitioner liable to punishment and the petitioner cannot be punished under this Act because corruption as defined in the Act did not

constitute an offence according to the laws prevalent when the alleged act of the petitioner was committed. In the first place this argument of the

learned Counsel is devoid of force, because Article 20 in its first part talks of convictions and offences. The Commission has no power of

convicting a person. It is an advisory or a recommendatory body which after inquiring into certain matters can at the most make a recommendation

to the Sadar-i-Riyasat for the prosecution of a certain person.

Before this Act came into force, there already existed on the Statute Book the Prevention of Corruption Act, 2006. Section 5 of that Act defines

corruption and has four clauses appended to it. Under this section criminal misconduct is used for the word corruption used in the Act, excepting

that in Clauses (a) and (b) of Section 5(1) of that Act the word habitually is an addition. Section 5(3) of that Act makes possession of property

disproportionate to one's known source of income as criminal misconduct. Therefore in substance the definition of corruption as given in the Act is

the same as contained in Section 5 of the previous Act of 2006, only that in the present Act the word corruption has been used whereas in the

previous Act the words criminal misconduct have been used. The Public Servants' (Inquiries) Act (No. 28 of 1977) also authorised the

appointment of an inquiry commission into the misbehaviour of any person in service of the Government in the form of a Court, Board or authority

to which the person was subordinate or by a commission set up by the Government for that purpose. The word 'misbehaviour' is a far wider term

than corruption used in the Act. The Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules also provide various punishments

that could be inflicted on a Government servant. Mr. Sharma pointed out that the forfeiture of recurring pension, gratuity or compensation was a

penalty greater than that could be imposed under the laws prevalent when the alleged act of the petitioner was committed. This also is not correct,

because under Article 168 of the Kashmir Civil Service Regulations the withholding or withdrawing of pension is permissible. Therefore on this

argument of the learned Counsel even the Act does not create a new offence; all that it gives is a definition of what corruption is. But the acts which

have been classified as corruption by the Act were already considered as such by the previous enactments referred to above. Article 20(1) dealt

with what is known in legal language as the doctrine of ex post facto law. What this Article prohibits is the conviction of a person except for the

violation of a law which was in force when the alleged act was committed. It does not at all affect the procedure of determining an offence which

may be different after the constitution came into existence from what it was before the constitution. As already stated, the commission has no

power to convict anybody; at best u/s 17 (3) it can recommend that a person may be prosecuted for an offence in a Court of law. Therefore

Article 20(1) has no application to the findings of the Commission.

In Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , it has been laid down, that:

What is prohibited under Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure

different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time

cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular

Court or by a particular procedure except in so far as any constitutional objection by way of discrimination or the violation of any other

fundamental right may be involved.

The same observations have been repeated in a Division Bench authority of the Madhya Bharat High Court in the State v. Narayan AIR 1954

MP 206 wherein it has been laid down:

Article 20 prohibits the creation of a new offence, the punishment of which may be prescribed with retrospective effect. The other limitation is that

no one shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the

offence. I£ the presiding Judge were to award a sentence under the Criminal Law Amendment Act, 1952, severer than that which was provided

in the former law (viz. the Indian P. C.) then of course it would offend against Article 20. But before the stage of sentence no question of any

heavier penalty arises and till the accused are tried and convicted under the new law, namely the Criminal Law Amendment Act which was not in

force when the acts constituting the offence were committed, there is no question of punishment. Till then the constitutionality of the trial under the

Criminal Law Amendment Act cannot be questioned.

The main stress of the arguments of Mr. Sharma was that the Act could not be held retrospective as also its amendment. Therefore for any acts

committed by an officer before the Act came into force he could not be proceeded with. If the Act is a procedural Act, it can have retrospective

effect. There can be no doubt about that. The law on this point is very well settled.

Maxwell in his Interpretation of Statutes (8th Edn. page 198) says:

Although to make a law punish that which, at the time when it was done, was not punishable, is contrary to sound principle; a law which merely

alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions and no secondary meaning is to be

sought for an enactment of such a kind. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in

the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has

no other right than to proceed according to the altered mode."" The remedy does not alter the contract or the tort; it takes away no vested right, for

the defaulter can have no vested right in a state of law which left the injured party without, or with only a defective, remedy.

These observations are based on a number of authorities cited therein.

Similarly the Privy Council, the Supreme Court and the High Courts in India have laid down the same principle. See AIR 1927 242 (Privy

Council) and The Ahmedabad Mfg. and Calico Printing Co., Ltd. Vs. S.C. Mehta, Income Tax Officer and Another, .

As already stated, corruption as defined in the Act constituted an offence under the laws existing in the State even before. The Commission

and the Act came into being as a result of complaints of widespread corruption in the administrative machinery of the State. In the year 1958 the J

& K Civil Services (Disciplinary Proceedings Tribunal) Rules were enforced under which the misconduct of Government servants was to be

investigated by a Commission appointed under these rules. To inquire into the misconduct of a certain class of Government servants the Act came

into force and a high powered commission was contemplated which could take cognizance of such misdeeds of the Government servants and after

due inquiry recommend to the Sadar-i-Riyasat appropriate punishment to be awarded to such guilty persons. In cases where the commission

recommend-ed the imposition of any punishment in respect of which Section 133 of the Constitution of Jammu & Kashmir required the

consultation of the Public Service Commission or compliance of any other provision of the said Constitution, orders could only be passed after

such consultation or compliance. This shows that the role of the commission was simply to institute an inquiry and make a recommendation to the

Sadar-i-Riyasat for an appropriate punishment. The punishment was to be awarded by the Sadar-i-Riyasat. Even then the formalities of a show

cause notice were to be gone into. In our opinion this Act simply modified the procedure of holding an inquiry into a complaint against a

Government servant and the Commission was the Tribunal which could conduct the inquiry according to the procedure contain-ed in the Act. In

view of this matter further arguments of Mr. Sharma need not have been considered, but as some important propositions were enunciated by him,

we shall comment upon those submissions of Mr. Sharma also.

Mr. Sharma contended that the word 'corruption' uses the present tense only in Section 3 of the Act, i. e., accepts, obtains, misappropriates or

converts to his own use etc., which shows that the operation of the Act was intended to be prospective and not retrospective. If the Act was

designed to apply to past actions of Government servants it should have used the words 'has accepted before or after the commencement of the

Act, so on and so forth. He strongly contended that the amendment of 1964 which was the Act applicable to retired Government servants leaves

no room for doubt that it is prospective and not retrospective. By this amending Act (Act 1 of 1964) the main change that has beep introduced in

this Act is in the definition of a Government servant. Formerly Government servant meant

a person who was in the service or pay of the Jammu & Kashmir Government and whose pay or salary or pension was met from the revenues of

the State.

By the amendment of 1964 (Act 1 of 1964) the word Government servant

means a person who is or at any time whether before or after the commencement of this Act was in the service or pay of the Government of

Jammu & Kashmir or whose pay, salary, or pension is met from the revenues of the State, or who has received a gratuity or any other post

retirement compensation, from the revenues of the State.

When this amendment was introduced the purpose was that the principal Act should be deemed to have defined a Government servant according

to its new definition. It could not be the intention of the legislature to make the Act prospective because if the Act were to apply to acts done by a

Government servant after the date of the amendment, it would render the amendment meaningless because after a particular person ceased to be a

Government servant, he could not commit any act as a Government servant. On the other hand the insertion of a wider definition in the original

definition of the Government servant shows that the intention of the legislature has been to make the actions of a retired Government servant liable

to be the subject-matter of a charge before the Commission if those acts were performed before he finally retired. The following salutary provisions

of interpretation have to be kept in view while considering whether the main Act as well as its amendment are prospective or retrospective in effect:

(1) What was the object of the Act.

(2) What was the evil that was intended to be cured by the Act.

(3) The establishment of the machinery for achieving the object.

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of

the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which

modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an

unusual meaning to particular words, by altering their collocation by rejecting them altogether, or by interpolating other words, under the influence,

no doubt, of an irresistible conviction that the legislature could not possibly have intended that its words signify, and that the modifications thus

made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must

not be reduced to a nullity by the draftsman's unskilfullness or ignorance of the law, except in a case of necessity, or the absolute intractability of

the language used.

(Vide Maxwell's Interpretation of Statutes, 8th Edn. page 202).

The learned author has given a number of illustrations from English law where certain words have been interpreted differently from their

ordinary meaning and where certain words have been taken as non-existent in an enactment. He has also given a number of cases where certain

words have been thought to be existing in a particular legislation when they did not at all so exist. This rule of interpretation is very well settled.

In the case of amending Acts ordinarily an amendment is intended to carry out the immediate legislative object. Sutherland in his hook on

Statutory Construction, 3rd Edn, Vol. III at pp. 410-412 has observed:

In interpreting an amendatory Act, the courts have followed the principles of construction used in the interpretation of an original Act, making

special use of certain principles of interpretation particularly applicable to an amendatory Act; but in addition they have developed at least one

principle of construction peculiar to an Act purporting to change in existing statute. Thus, as in the case of original Acts, the object in construing an

amendatory Act is to determine the legislative intent. To do so, the Court will read the amendment as a whole, words of common use will be

construed in their natural, plain, and ordinary meaning. If possible, effect must be given to every word. The amendment will be given a reasonable

construction; a literal construction which would lead to absurd consequences will be avoided. When the intent of the legislature is not clear from its

language, the court will consider surrounding circumstances. The Court will examine the title of the amendment. It will consider records of

legislative proceedings and reports of legislative committees concerning the amendments; also previous judicial and executive construction thereof.

Statutes in pan materia will be looked at and amendments of procedural statutes will be liberally construed.

Similarly Crawford in his book on Statutory Construction at pp. 616-617 summarizes the position thus:

Of course amendments or amendatory statutes are subject to the rules and principles of construction applicable to original enactments. For

instance, the only legitimate recourse to construction is to ascertain the legislative intention. In ascertaining this intent the Court may not only

examine the body of the statute, but its caption. Statutes in pari materia may also be resorted to for assistance. Executive as well as judicial

construction may likewise be of assistance And the evil sought to be remedied by the amendment may be considered as some indication of the

legislative intent.

Similarly in Halsbury's Laws of England, second Edn, Vol. 31 at p. 693 it has been laid down:

Mere amending provisions should not be interpreted so as to alter completely the character of the principal law, unless clear language is found

indicating such an intention, and where a statute of limited operation is repealed by one which re-enacts its provisions in an amended form it need

not be presumed that its operation was to be extended to classes of persons hitherto not subject to them. Where, however, expressions of larger

meaning are used in an amending statute than in the principal Act, it must be taken that they are used intentionally.

Halsbury has laid down ten general rules with regard to the language of statutes, and the third rule is that a statute is to be regarded as always

speaking. Therefore the use of the present tense in this definition. Moreover, in view of the principles laid down by different jurists and authorities

regarding interpretation of statutes, the present tense will be deemed in this case to include the past or past participle.

In a Special Bench case of the Orissa High Court in Radhi Bewa and Another Vs. Bhagwan Sahu and Others, a difference of opinion arose

between the Chief Justice and Jagannadhadas J. with regard to the interpretation of certain sections of the Hindu Women's Right to Property Act.

The matter was referred to Narasimham J. as he then was, who agreeing with the Chief Justice laid down:

The tense and the mood of the verb used in the Act are such that whenever the Act is taken up for consideration it should appear as if the Act is

then speaking. Therefore merely because the verb 'dies' in Section 3 (2) is in the present tense it is not correct to say that the Act refers to the

present and to the future and not the past, as such construction would overlook the well-known rule that a statute is to be regarded as always

speaking.

This is discussed in para. (6) of the judgment wherein Narasimham J. discussed the various sections of that short Act. It was considered that it was

in consonance with the object of the Act that the word 'dies' should be interpreted as the words 'has died' also.

In AIR 1963 SC 1438 Hidayatullah and Rughbar Dayal JJ. have laid down that

under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the

commencement of the Act. But this rule is not unalterable. The legislature may affect substantial rights by enacting laws which are expressly

retrospective or by using language which has that necessary result. And this language may give an enactment more retrospectivity than what the

commencement clause gives to any of its provisions. When this happens provisions thus made retrospective, expressly or by necessary intendment,

operate from a date earlier than the date of commencement and affect rights which, but for such operation, would have continued undisturbed.

In construing the main Act as well as the amending Act, as will be clear from the above quotations, the object with which the Act was passed

has to be kept in view. The old Act is to be deemed to be good law and to govern the purpose for which it was enacted except so far as it is

amended. The object of the Act was to punish the acts of those Government servants who had committed corruption within its meaning while they

were in service. It would be ridiculous if the acts which could be the subject-matter of an investigation by the commission were the acts of only

those officers who still continue in service and who would commit such acts after the Act came into force. It was to remedy an evil which as

already stated was rampant in the administrative set-up that the main Act came into being. Moreover, when the Act was being implemented,

certain cases came to the notice of the legislature which according to the strict interpretation of, the Act would not constitute corruption by a class

of officers, namely those who had retired. In their case the legislature thought it necessary to enlarge the definition of the word 'Government

servant' so as to cover their misdeeds. The definition of Government servant was therefore amended and the rest of the material provisions of the

Act remained, unaltered. The amendment of this definition clearly made it applicable to acts performed by retired Government officers while in

service.

It has already been remarked that a statute is to be considered always speaking. The use of the present tense in Section 3 has to be considered

in that very spirit. The interpretation sought to be put on the present tense in the section would defeat the purpose of the Act. In interpreting a

statute the policy is to carry out the object and not defeat the purpose of the Act. The use of the present tense in our opinion, refers to the time of

the commission of the act and not its cognizance being taken by a competent Tribunal. The act when committed should satisfy the definition of the

word corruption, no matter when it is sought to be adjudicated upon.

In our view, therefore, the Act and its amendment are valid legislation and do not contravene the provisions of any law much less the

Constitution of India as applied to the State. The interpretation sought to be put on these by Mr. Sharma is unwarranted; There is no force in this

writ petition which is dismissed.

S. Murtaza Fazl Ali, J.

I agree.