NAVENDRA KUMAR Vs. UNION OF INDIA AND ANOTHER

JUDGEMENT

(1.) The writ petitioner is an employee of the Mahanagar Telephone Nigam Ltd., New Delhi. He seeks to challenge the investigation in R.C. No. 3(A)/2001/SIL under section 13(1)(d) and 13(2) of the Prevention of Corruption Act which has been registered against him by the Central Bureau of Investigation. The allegations/charges in respect of which the aforesaid case has been registered pertain to the earlier tenure of the petitioner as the Divisional Engineer of Telephone at Guwahati (1996-97).

(2.) The basis of the challenge made in the writ petition is that the constitution of the C.B.I. by Government decision dated 1.4.1963 to investigate offences earlier handled by the Delhi Special Police Establishment is contrary to the Constitution. Specifically the petitioner contends that the Delhi Special Police Establishment was brought into being by an ordinance dated 12.7.1943 ('the first ordinance') promulgated by the Governor General in exercise of power under section 72 contained in the 9th Schedule of the Government of India Act, 1935. The said ordinance was issued by the Governor General when an emergency occasioned by the World War II was in force. According to the petitioner, the emergency stood terminated on 1.4.1946, where after, the first ordinance issued by the Governor General on 12.7.1943 had lapsed. Thereafter, according to the petitioner, another ordinance ('the second ordinance') to the same effect was issued by the Governor General on 25th Sept., 1946 which was beyond the powers of the Governor General under section 72 of the 9th Schedule to the Government of India Act, 1935 as no proclamation of emergency under section 102 of the Government of India Act, 1935, was in force. The aforesaid ordinance was replaced by the Delhi Special Police Establishment Act, 1946 which came into force on 30.9.1946. The petitioner contends, on the aforesaid facts, that as the second ordinance promulgated on 25.9.1946 was beyond the powers of the Governor General, the Delhi Special Police Establishment Act, 1946, as originally enacted, is ultra vires the Government of India Act, 1935.

(3.) The contention of the petitioner, ex facie, appears to be misconceived. Even if the second ordinance issued on 25.9.1946 was beyond the powers of the Governor General under section 72 of the 9th Schedule to the Government of India Act, 1935, the same, ipso facto, would not invalidate the Delhi Special Police Establishment Act unless the same can be understood to be ultra vires the scheme of distribution of legislative powers between the federal (Indian) and provincial legislatures as provided for by the VIIth Schedule to the Government of India Act, 1935. The invalidity of the Act, therefore, does not automatically follow even it the absence of power in the Governor General to issue the second ordinance is assumed. The matter, therefore, would require a closer examination which could constructively begin by briefly tracing the history behind constitution of the Central Bureau of Investigation by Government resolution dated 1.4.1963.