Civil No 511 of 1988
WITH Writ Petition Civil No 975 of 1988
391 Under Article 32 of the Constitution of India
KV Sreekumar NP for the Petitioners
VC Mahajan AK Panda Ms CK Sucharita and Ms A Subhashini for the Respondents
The Court delivered the following Order One of the matters which arises for consideration in this Writ Petition is as to how the provisions of the inter state Migrant Workmen Regulation of Employment and Conditions of Service Act 1979 and particularly of sec tion 20 thereof can be enforced
In the affidavit filed by the Union of India in the Ministry of labour it has been stated that in view of the scheme contained in section 203 of the Act that officer of the Originating State can make enquiries within the Recepient State provided the Recepient State agrees to such Officers of the Originating State operating within that State the law has not become workable in a proper way
This is a beneficial legislation for satis fying the provisions of the Constitution and the obligation in international agreements to which India is a party
We do not think there can be any valid justification for not permitting the officers of the Originating State to hold appropriate enquiries in the Recepient State in regard to persons of the Originating State working as migrant labour in the Recepient State
We do not think that there is any necessity to hear the other States before making an order for enforcing section 203 and to give effect to the legis lative intention contained therein
Mr Panda appearing for the State of Orissa has agreed that Orissa State has no objection to officers of any origi nating State holding necessary enquiries within Orissa when it is a Recepient State
We would therefore make a direc tion that to implement the provisions of the Act of 1979 referred to above every State and Union Territory in India would be obliged to permit Officers of originating States of migrant labour for holding appropriate inquiries within the limits of the Recepient States for enforcement of the stat ute and no Recepient State shall place any embargo or hin drance in such process
Copy of this order shall be sent to the Chief Secretary of every State and Union Territory for compliance
We are cognizant of the fact that this order has been made with 392 out hearing the States other than Orissa and the Union Territories
In the event of any State or Union Territory is of the opinion that the direction should be modified liber ty is given to apply for modification of the order but until it is modified it shall remain in force
The Writ Petitions are disposed of with this order
No costs
TNA Petitions disposed of


Summary:
The appellant an employee of the Municipal Corporation Ahmedabad was holding the post of Laboratory Officer and while he was so holding the post he by a Notification dated 21121966 issued by the State Government was appointed as a Public Analyst for the local area within the municipal limits of the Corporation
The respondent filed a complaint before the Magistrate for offences punishable under Sections 465 468 and 20 1
IPC alleged to have been committed by the appellant while exercising his functions as a Public Analyst
The appellant moved the High Court under Section 482 for quashing the criminal proceedings sought to be initiated against him by the said complaint
His principle contention was that he being a public servant removable from office only by the State Government the magistrate could not take cognizance of the alleged offences and that previ ous sanction of the State Government as contemplated under section 197 Cr
PC was necessary
The High Court rejected the contention of the appellant and dismissed the petition
He has filed this appeal after obtaining special leave from the Court
Dismissing the appeal this Court HELD The privilege or immunity from prosecution without sanction extends only when the accused is a public servant of the kind mentioned in Section 197 Cr
He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Government or the Central Government as the case may be
The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty
Section 197 Cr
PC clearly intends to draw a line between public servants and to pro vide that only in the case of the higher ranks should the sanction of the Government to their prosecution be neces sary
513C D H 512 The words removable from office occurring in Section 197 signify removal from the office one is holding
514B In the instant case the appellant was not holding any public office in connection with the affairs of the State
The State Government had merely entrusted him with the functions of a Public Analyst which could be granted and taken by an administrative Act
It was on account of his being employed by the Municipal Corporation that he was appointed as a Public Analyst in the cadre against any post
The Prevention of Food Adulteration Act also does not con tain any deeming provision to treat the Public Analyst as a public servant
514D E The appellant is not therefore a public servant remova ble only by the State Government
514G