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Judgement by the Hon'ble Calcutta High Court (Division Bench): Excerpts

1994 (1) CLJ 153: Arun Prosad Mukherjee & Others vs Birendra Kumar Saha

Hon'ble Judges: Sh. AK Sengupta & Sh. Nure Alam Chowdhury


Constitution of India- Article 162- State Vigilance Commission- Pre-disciplinary proceeding enquiry- Open investigation- Regarding member of All India Services- Not within the executive power of the State.  

The concept of open investigation is diametrically opposed to the concept of preliminary enquiry, which the Supreme Court in various decisions accorded approval for the benefit of elimination of groundless disciplinary proceedings to reduce harassment to the public servant to the bare minimum. (para 46)

It is one fundamental principal of law that every executive action, if it is to operate to the prejudice of any person must be supported by some legislative authority. (para 48)

The executive power of the state does not extend to a member of All India Services as the executive power of the state only extends to the matter in respect of which it has power to make law in view of the provisions of Article 162 of the Constitution of India. The All India Services Act has been enacted by Parliament in exercise of power conferred under Entry 70, List I of the Seventh Schedule of the Constitution of India. Accordingly, neither the Vigilance Commission can command and / or direct the state government to compel a member of All India Services to appear before the Vigilance Commission for a so called open investigation nor the state government have any executive power to direct an officer of Indian Police Service to appear before an authority which has been created by an administrative circular issued by the state government. (para 59)

Cases referred to:

Union of India v. Paramanda, AIR 1989 SC 1185

SP Sampath Kumar v. Union of India, 1987 (1) SCC 124: AIR 1987 SC 386

DS Garewal v. State of Punjab, AIR 1959 SC 512

Champaklal v. Union of India, AIR 1964 SC 1854

Ravindra Kumar v. UP State Handloom Corporation, AIR 1987 SC 2408

Sunil Kumar v. State of West Bengal, AIR 1980 SC 1170

Amulya Ratan v. Deputy Chief Mechanical Engineer, AIR 1961 Cal 40

AG Benjamin v. Union of India, 1967 (15) FLR 347

M Dastagir v. State of Madras, AIR 1960, SC 756

State of Bombay v. Kathikaluoghad, AIR 1961 SC 1808

MP Sharma v. Satish Chandra, AIR 1954 SC 300

M Shujat Ali v. Union of India, AIR 1974 SC 1631

RS Deodhar v. State of Maharashtra, AIR 1974 SC 259

Union of India v. KV Jankiraman, AIR 1991 SC 2010

R Beharilal v. King Emperor, 1933 (60) IA 354

Anisminic Ltd v. Foreign Compensation Commission, 1969 (2) AC 147

Secretary of State v. Mask & Company, AIR 1940 PC 105

Dhulabhai v. State of MP, AIR 1969 SC 78

Bhagelu v. Civil Surgeon, AIR 1960 Allahabad 353