STATE OF MADHYA PRADESH AND ORS.versusDR. YASHWANT TRIMBAK

A               STATE OF MADHYA PRADESH AND ORS.
                                         v.
                          DR. YASHWANT TRIMBAK

                              DECEMBER 4, 1995

B               [S.C. AGRAWAL AND G.B. PATTANAIK, JJ.]

           Constitution of India-Article 166(2) 309-Madhya Pradesh Civil Ser-
    vices--Pension Rule 1976--Rule 9(2)(b )(irSanction of Governor to institute
    departmental proceedings-W11ether order for sanction has to be made by the
C   Govemor-W/1ether court can examine validity of duly authenticated order
    passed in the name of the Governo,-Held, order expressed in the name of
    Governor and duly authenticated is immune from attack on the ground that
    it is not made or executed by the Governor-Signature of person auth01ised
    under authentication rules signifies consent of Governor.

D          Constitution of India-Article 166(3)-Madhya Pradesh Civil Ser-
    vices--Pension Rules 1976-Rule 9(2)(b)(irSanction of Governor to in-
    stitute departmental proceeding;-Wliether Governor required to accord
    sanction,_ or whether Council of Ministers can also give sanction-Held,
    excepting matters with respect to which Governor is required to exercise
E   discretion, personal satisfaction of Governor not requirec}-Power to accord
    sanction is executive action of government provided under Rules of Business
    and not a matter where Governor is required to act in his discretion-Artie/es
    154, 166( 1) and (2rRules of Business.

        The respondent retired from the post of Director, Institute of Animal
F Health and Veterinary Biological Products, Mhow on July 31, 1983. Gross
  financial irregularities during the period the respondent was Director,
  from 1977 onwards, having been noticed, a letter was issued on April 6,
  1985 proposing an enquiry against him. Chargesheet was served on him
  on April 2, 1986 and departmental enquiry was ordered. The appropriate
G authority further withheld 50 per cent of his pension and a part of the
  gratuity amount of the respondent.

          The respondent challenged the enquiry and the order withholding
    part of the pension and gratuity. The Tribunal, quashed the departmental
    proceedings and the consequential order, holding that the sanction of the
H   Governor himself was necessary and therefore departmental proceedings
                                       128
                          STATE v. Y. TRIMBAK                            129

could not be initiated under the orders of the Council of Ministers.            A

       In appeal before this Court it was contended for the State that the
order initiating departmental enquiry having been passed in the name and
by order of the Governor in terms of Article 166(2) of the Constitution, the
validity of the order could not be called in question on the ground that it
was not an order executed by the Governor. Moreover, the Governor
                                                                                B
having allocated the business of the State Government to be transacted by
the different Ministers under the Rules of Business made under Article
166(3), and admittedly the Council of Ministers having accorded sanction,
there was no infirmity with the order.
                                                                                c
      For the respondent it was contended that the Pension Rules being
framed under Article 309 and Rule 9(2)(b)(i) having conferred power of
sanction on the Governor, it was the Governor alone who was entitled to
accord sanction. He further contended that when the sanction had not been
accorded by the Governor himself, the bar, under Article 166(2) to ques-        D
tioning the order would not be attracted.

     The two questions before this Court were whether the order initiating
departmental proceedings which was served upon the respondent by a duly
authenticated order passed in the name of the Governor was open to
examination by the Court; and whether the power to accord sanction              E
conferred on the Governor under Rule 9(2)(b)(i) of the Pension rules 1916
can at all be conferred on the Council of Ministers by making Roles of
Business under Article 166(3) of the Constitution.

      Allowing the appeal, this Court                                           F

       HELD : 1. The order which is expressed in the name of the Governor
and is duly authenticated cannot be questioned in any court on the ground
that it is not made or executed by the Governor. The signature of the
person authorised under the authentication rules to sign the document           G
signifies the consent of the Governor as well as the acceptance of the advice
rendered by the concerned Minister. It is not possible to accept the
contention that the Governor being the authority to accord sanction and
the Governor not having accorded sanction, the prohibition contained in
Article 166(2) cannot be attracted and that the court's powers to examine
is not taken away. [134-G, 135-A]                                               H
    130                  St;PREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A          State of Bihar v. Rani Sonabati Kumari, [1961] 1 SCR 728 and MCD
    v. Bir/a Cotton Spinning and Weaving Mills, [1968] 3 SCR 251, relied on.

          2. It is undisputed that under Article 166(3) of the Constitution the
    Governor has made rules for the convenient transaction of the business of
    the government aud the question of sanction to prosecute in the case in
B   hand was dealt with by the Council of Ministers iu accordance with the
    Rule of Business. Under Article 163(1) of the Constitution, excepting
    functions required by the Constitution to be exercised by the Governor in
    his discretion, the Governor acts on the aid and advice of the Council of
    Ministers. [136-B-D]
c
          Shamsher Singh v. State of Punjab, [1975] l SCR 814; Shamrao v.
    State of Maharashtra, [1964] 6 SCR 446 and State of Bihar v. Rani Sonabati
    Kumari, [1961] l SCR 728, relied on.

          3. Excepting the matters with respect to which the Governor is
D
    required by or under the Constitution to act in his discretion, the personal
    satisfaction of the Governor is not required and any function may be
    allocated to Ministers. The power to sanction is nothing but an executive
    action of the government provided under the Rules. This is not a matter
    with respect to which the Governor is required under the Constitution to
E   act in his discretion. In this view of the matter when the Governor has
    framed rules of business under Article 166(3) of the Constitution allocat-
    ing his functions and it is the Council of Ministers which has taken the
    decision to sanction prosecution of the respondent, there is no legal
    infirmity in the same. [138-B, DJ
F
         4. In the facts and circumstances of the present case, the power of
    the Governor under Rule 9(2)(b)(i) has been duly allocated in favour of
    the Council of Ministers under Article 166(3) of the Constitution and the
    said Council of Ministers has taken the decision to grant sanction for
G   prosecution of the respondent. [138-F]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11536 of
    1995.

            From the .Judgment and Order dated 30.4.93 of the Madhya Pradesh
H Administrative Tribunal Indore in T.A. No. 3551 of 1988.
                   STATE v. Y. TRIMBAK[PATTANAIK,J.]                   131

         A.K. Chitale, Niraj Sharma and Satish K. Agnihotri for the Appel-   A
!ants.

         S.K. Jain and A.P. Dhamija for the Respondent.

         The Judgment of the Court was delivered by
                                                                             B
         PATTANAIK, J. Leave granted.

       This appeal is directed against the order dated 30th April, 1993 of
the Madhya Pradesh Administrative Tribunal (Indore Bench) in the Trans-
fer Application No. 3551 of 1988. By the impugned order the Tribunal has
held that the departmental enquiry against the respondent was instituted     c
without a proper and valid sanction as contemplated by Rule 9(2)(b)(i) &
(ii) of the Madhya Pradesh Civil Services Pension Rules, 1976 (hereinafter
as 'Pension Rules) and as such it is not sustainable and deserves to be
quashed. Being aggrieved by the aforesaid order of the Tribunal the State
of Madhya J'radesh has approached this Court.                                D
       The respondent had retired from the post of Director. Institute of
Animal Health & Veterinary Biological Products, Mhow on 31st July, 1983.
His retiral benefits had been sanctioned by the appropriate authority. At
that point of time gross fmancial irregularities having come to the notice
of the Secretary to the Government of Madhya Pradesh, Department of E
Animal and Cattle Wealth during the period while the respondent was
continuing in the post of Director, Institute of Animal Health & Veterinary
Biological Products from 1977 onwards, a letter was issued to the said
respondent proposing an enquiry against him on 6th April, 1985. There-
after, a charge sheet was served upon the respondent on 2nd April, 1986
and a departmental enquiry was ordered against him. The appropriate F
authority further withheld 50 per cent of his pension and a part of the
gratuity amount of the respondent. The respondent being aggrieved by the
said order moved the High Court of Madhya Pradesh for quashing the
aforesaid enquiry as well as for quashing the order of withholding a part
of the pension and gratuity, inter alia, on the ground that without the G
sanction of the Governor as contemplated under Rule 9(2)(b)(i) of the
Pension Rules, the proceeding is vitiated and also the consequential order
withholding a part of the pension and gratuity. During the pendency of the
application before the Madhya Pradesh High Court, the State Tribunal
having been constituted, the proceeding was transferred to the Administra-
tive Tribunal and the Tribunal finally disposed of the matter.              H
    132                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A          In the return filed by the State and its officers it was contended that
    the respondent had committed grave financial irregularities during his
    tenure relating to period of 1977 onwards. The said financial irregularities
    came to the notice of appropriate authority after the pension case of the
    respondent was forwarded by the Director of Veterinary Services. In fact
    the respondent before his superannuation got the no demand and no
B
    enquiry certificate issued in his favour on misrepresentation of facts. When
    the financial irregularities and embezzlement committed by the respondent
    came to the notice of the appropriate authority, as a result of investigation
    started by the Economic Wing of the Police, the appropriate authority took
    the decision to initiate the departmental proceeding. Before initiation of
c   the departmental proceedings against the respondent under the provision
    of Pension Rules of 1976, due sanction of the Council of Ministers had
    been obtained and the order in question was communicated to the respon·
    dent by a duly authenticated order purported to have been passed by order
    of the Governor of Mac,lhya Pradesh. The order in question though had
D   been signed by the Under Secretary to the Government of Madhya
    Pradesh, Department of Animal Husbandry, but it has been clearly stated:

             "IN THE NAME AND BY ORDERS OF THE GOVERNOR
             OF MAD HYA PRADESH"

E         The Tribunal on examining the provisions of Pension Rules more
    particularly Rule 9(2)(b)(i), came to the conclusion that the sanction of the
    Governor himself is necessary and therefore departmental proceedings
    could not be initiated under the orders of the Council of Ministers.
    Accordingly, the Tribunal quashed the departmental proceedings initiated
F   against the -respondent and also the order withholding a part of the pension
    and gratuity of the respondent.

          Mr. Chitale, learned senior counsel appeanng for the appellant
    raised two contentions assailing the legality of the order of the Tribunal :

G            (1) The order initiating the departmental enquiry proceeding
             which was served on the respondent having been passed in the.
             name and by order of the Governor in terms of Article 166(2) of
             the Constitution of India, the validity of the order cannot be called
             in question on the ground that it is not an order executed by the
H            Governor and Tribunal, therefore, committed gross error of law
                STATE v. Y. TRIMBAK[PATTANAIK,J.]                       133

        in quashing the departmental proceedings on a finding that there A
        has been no sanction of the Governor.

        2. The power to accord sanction under Rule 9(2)(b)(i) of the
        Pension Rules being an executive power of the State Government
        and the Governor having allocated the Business of the State
        Government to be transacted by the different Ministers under the      B
        Rule. !'f Business made under sub Article (3) of Article 166 of the
        Constitution and admittedly the Council of Ministers having ac-
        corded sanction, there is no infirmity with the same and further
        the sanction of the Governor himself is not necessary.
                                                                              c
      Mr. Jain, learned counsel appearing for the respondent on the other
hand contended that the Pension Rules being a Rule framed under Article
309 of the Constitution and the said Rule having conferred power of
sanction on the Governor, it is the Governor alone who is entitled to
sanction and the Council of Ministers could not have exercised that power.
He further contended that when the sanction has not been accorded by the D
Governor himself, the bar under Article 166(2) of the Constitution cannot
be attracted, and therefore, the Tribunal was fully justified in quashing the
order initiating the departmental proceeding.

      In view of the rival submission at the Bar two questions really arise   E
for consideration :

        (1) On the admitted position that the order initiating the
        departmental proceeding was served upon the respondent by a
        duly authenticated order passed in the name of the Governor, is
        it open to the Court to examine the validity of the same in view of   F
        the provisions contained in Article 166(2) of the Constitution?

        (2) Whether the power to sanction conferred on the Governor
        u'nder Rule 9(2)(b)(i) of the Pension Rules can at all be conferred
        on the Council of Ministers by making rules for convenient trans-     G
        action of the Business of the Government of State under Article
        166(3) of the Constitution?

       Before embarking upon an enquiry to the aforesaid two questions,
it will be appropriate to extract the provisions of Rule 9(2)(b) of the
Pension Rules :                                                         H
    134                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A           9(2)(b) : The departmental proceeding, if not instituted while the
            Government servant was in service whether before his retirement
            of during his re-employment :

            (i) shall not be instituted save with the sanction of the Governor;

B           (ii) shall not be in respect of any event which took place more than
            four years before such institution; and

            (iii) shall be conducted by such authority and in such place as the
            Government may direct and in accordance with the procedure
c           applicable to departmental proceedings -

                 (a) in which an order of dismissal from services could be
                 made in relation to the Government servant during his ser-
                 vice in case it is proposed to withhold or withdraw a pension
                 or part thereof whether permanently or for a specified
D                period; or

                 (b) in which an order of recovery from his pay or the whole
                 or part of pay pecuniary loss caused by him to the Govern-
                 ment by negligence or breach of orders could be made in
                 relation to the Government servant during his service it is
E                proposed to order recovery from his pension of the whole or
                 part of any pecuniary loss caused to the Government."

          Coming to the first question, from a bare look at the order which
    was served on the respondent, it is implicitly clear that the said order has
F   been executed in the name of the Governor and has been duly authenti-
    cated by the signature of the Under Secretary to the Government and
    therefore the bar to judicial enquiry with regard to the validity of such
    order engrafted in Article 166(2) of the Constitution will be attracted. The
    order which is expressed in the name of the Governor and is duly authen-
    ticated cannot be questioned in any court on the ground that it is not made
G   or executed by the Governor. The signature of the concerned Secretary or
    Under Secretary who is authorised under the authentication rules to sign
    the document signifies the consent of the Governor as well as the accep-
    tance of the advice rendered by the concerned Minister. It is not the case
    of the respondent and Mr. Jain appearing for the respondent in this Court
H   did not urge that the order in question is not an order within the meaning
                 STATE v. Y. TRIMBAK[PATTANAIK,J.]                       135

of Article 166(2) of the Constitution. But according to Mr. Jain under the A
Rules the Governor being the authority to sanction and the Governor not
having sanctioned, the prohibition contained in sub Article (2) of Article
166 of the Constitution cannot be attracted and the courts power to
examine is not taken away. We are unable to accept this contention of Mr.
Jain, appearing for the respondent.                                        B

      This Court in the case of The State of Bihar v. Rani Sonabati Kumari,
[1961] 1 S.C.R. 728 considered this question with reference to a notification
issued under Section 3(1) of the Bihar Land reforms Act, 1950 and held:

        "The order of Government in the present case is expressed to be         c
        made in the name of the Governor" and is authenticated as
        prescribed by Art. 166(2), and consequently the validity of "the
        order or instrument cannot be called in question on the ground
        that it is not an order or instrument made or executed by the
        Governor."
                                                                                D
      Even where an order is issued by Secretary of the Government
without indicating that it is by order of the Central Government or by order
of the President, this court came to the conclusion that the immunity in
Article 166(2) would be available if it appears from other material that in
fact the decision had been taken by the Government. In Municipal Cor- E
poration of Delhi v. Bir/a Cotton Spinning and Weaving Mills, Delhi and
Another, [1968] 3 S.C.R. 251 this Court came to the conclusion that in fact
sanction had been given by the Central Government as required under the
Act though the order did not indicate to be so.
                                                                                F
       This being the position and the order initiating the departmental
proceeding having been signed by the Under Secretary to the Govermnent
by Order. of the Governor, the same is immune from attack on the ground
that it is not an order executed by the Governor as provided under Article
166(2) of the Constitution. As such the Tribunal was wholly incompetent
to examine the legality of the same. In fact Article 166(2) of the Constitu- G
tion has not been looked into at all by the Tribunal. In our opinion the
Tribunal was wholly in error in quashi.Jlg the order on the ground that the
Governor has not executed the same:"In view of our conclusion on the first
question though the appeal is bound to succeed, but we think it proper to
examine the second question aisci.                                           H
    136                   SUPREME COURT REPORTS (1995) SUPP. 6 S.C.R.

A          The Rule in question no doubt provides that departmental proceed-
    ings if not instituted while the Government servant was in service whether
    before his retirement or during his re-employment shall not be instituted
    save with the sanction of the Governor. The question that arises for
    consideration is whether it requires the sanction of the Governor himself
    or the Council of Ministers in whose favour the Governor under the Rules
B
    of Business has allocated the matter, can also sanction. It is undisputed that
    under Article 166(3) of the Constitution the Governor has made rule for
    comenient transaction of the business of the Government and the question
    of sanction to prosecute in the case in hand was dealt with by the Council
    of Ministers in accordance with the Rules of Business. Under Article 154
c   of the Constitution the executive power of the State vests in the Governor
    and is exercised by him either directly or through officers subordinate to
    him in accordance with the Constitution. The expression 'executive power'
    is wide enough to connote the residue of the governmental function that
    remain after the legislative and judicial functions are taken away.
D
           Under Article 163(1) of the Constitution, excepting functions re-
    quired by the Constitution to be exercised by the Governor in his discre-
    tion, the Governor acts on the aid and advice of the Council of Ministers.
    This Court in the case of Samsher Singh v. State of Punjab and another had
    indicated that any function vested in the Governor, whether executive,
E   legislative or quasi judicial in nature and whether vested by the Constitu-
    tion or by a statute be delegated by Rules of Business unless the contrary
    is clearly provided for by such constitutional or statutory provision. The
    Court further held :


F            "The President as well as the Governor is the Constitutional or
             formal head. The President as well as the Governor exercises his
             powers and functions conferred on him by or under the Constitu-
             tion on the aid and advice of his Council of Ministers, save in
             spheres where the Governor is required by or under the Constitu-
             tion to exercise his functions in his discretion. Whenever the
G            Constitution requires the satisfaction of the President or the
             Governor for any exercise by the President or the Governor of any
             power or function, the satisfaction required by the Constitution is
             not the personal satisfaction of the President or Governor but the
             satisfaction of the President or Governor in the Constitutional
H            sense in the Cabinet system of Government, that is, satisfaction of
                  STATE v. Y. TRIMBAK[PATTANAIK,J.]                       137

          his Council of Ministers on whose aid and advice the Ptesident or      A
          the Governor generally exercises all his powers and functions. The
          decision of any Minister or officer under rules of business made
          under any of these two Articles 77(3) and i66(3) is the decision
          of the president or the Governor respectively. These articles did
          not provide for any delegation. Therefore, the decision fofhMinister   B.
          or officer under the rules of business is the decision o t e Presi-
          dent or the Governor."

        After referring to the several previous authorities this Court further
held:

          "For the foregoing reasons we hold that the President or the
                                                                                 c
          Governor acts on the aid and advice of the Council of Ministers
          with the Prime Minister at the head in the case of Union and the
          Chief Minister at the head in the case of State in all matters which
          vest in the executive whether those functions are executive or
          legislative in character. Neither the President nor the Governor is D
          to exercise the executive functions personally."

       The order of sanction for prosecution of ·a retired Government
servant is undoubtedly an executive action of the Government. A Governor
in exercise of his powers under Article 166(3) of the Constitution may E
allocate all his functions to different Ministers by framing rules of business
except those which the Governor is required by the Constitution to exercise
in his own discretion. The expression "business of the Government of the
State" in Article 166(3) of the Constitution, comprises of functions which
the Governor is to exercise with the aid and advice of the Council of
Ministers including those which he is empowered to exercise on his sub- F
jective satisfaction and including statutory functions of the State Govern-
ment. The Court has held in Shamrao v. State of Maharashtra, (1964] 6
S.C.R. 446 that even the functions and duties which are vested in a State
Government by a statute may be allocated to Ministers by the Rule of
Business framed under Article 166(3) of the Constitution. In State of Bihar G
v. Rani Sonabati Kumari, (1961] 1 S.C.R. 72fl,, where power of issuing
notification under section 3(1) of the Bihar Land Reforms Act, 1950 have
been conferred on the Governor of Bihar, this Court held :

          "Section 3(1) of the Act confers the power of issuing notifications
          under it, not on any officer but on the State Government as such H
    138                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A            though the exercise of that power would be governed by the _i:_ule
             of business framed by the Governor under Art. 166(3) of the
             Constitution. 1'

          Therefore, excepting the matters with respect to which the Governor
    is required by. or under the Constitution to act in his discretion, the
B   personal satisfaction of the Governor is not required and any function may
    be allocated to Ministers.

         Mr. Jain's contention is solely based on the ground that in the Rule
  itself both the expressions 'Governor' and 'Government' have been used
c and therefore the expression 'sanction of the Governor' in Rule 9(2)(b)(i)
  would mean the personal sanction of the Governor. We are unable to
  accept this conlention. The power to sanction is nothing but an executive
  action of the Government provided under the Rules. This is not a matter
  with respect to which the Governor is required under the Constitution to
  act in his discretion. In this view of the matter when the Governor has
D framed rules of business under Article 166(3) of the Constitution allocating
  his functions and it is the Council of Ministers which has taken the decision
  to sanction prosecution of the respondent, we see no legal infirmity in the
  same. The Tribunal erred in law in coming to the conclusion that the
  sanction required under the rule is a sanction of the Governor.
E
          In our ccnsidered opinion, in the facts and circumstances of the
    present case the power of Governor under Rule 9(2)(b)(i) has been duly
    allocated in favour of the Council of Ministers under Article 166(3) of the
    Constitution and the said Council of Ministers has taken the decision to
    grant sanction for prosecution of the respondent.
F
         In view of our aforesaid conclusion, the impugned order of the
    Tribunal is wholly unsustainable in law and we accordingly quash the same.
    The Transfer application No. 3551 of 1988 filed by the Respondent before
    Madhya Pradesh Administrative Tribunal stands dismissed. The ap-
G   propriate authority may now proceed with the departmental proceeding
    which has been initiated against the respondent.

            This appeal is allowed, there will be no order as to costs.

     U.R.                                                        Appeal allowed.