State v. Prabhakar Sampath

Cybercrime, also called computer crime, the use of a computer as an instrument to further illegal ends, such as committing fraud, trafficking in child pornography and intellectual property, stealing identities, or infringing privacy. Cybercrime, especially through the Internet, has grown in importance as the computer has become prominent to commerce, entertainment, and government.  Cybercrime, extremely involving the Internet, represents an extension of existing criminal behaviour alongside some novel illegal movements.

CourtSupreme Court of India
Name of the caseState v. Prabhakar Sampath  
Citation1986 AIR 210, 1985 SCRsupl.(2) 573
PetitionerPrabhakar sampath
RespondentState of Andhra Pradesh
Year of judgement1985
Important SectionsSection 2,3,4 and Article 14, 32 of Indian Constitution.
Bench/ judgesReddy, o. Chinnappa

Introduction

In February 1983, the Government of Andhra Pradesh agreed to reduce the age of the ancientness of its employees from 58 to 55 years. The Government also issued commands to local authorities and public corporations under its control to do likewise. The age of superannuation was in fact 55 years, to begin with. But, earlier, in the year 1979, the Government of Andhra Pradesh had raised the age of superannuation to 58 years, probably, because of the increased average human longevity in India, the better health and medical facilities accessible, the improved standard of living, the efficacy in service of experienced employees, the employment situation and potential and such other relevant deliberations. But in February 1983, the Government agreed to reduce the age of superannuation. An injunction to give effect to their policy of reversal, I.e. the policy of reducing the are of superannuation from 58 to 55, the Government amended Rule 56 (8) of the Fundamental Rules and Rule 231 of the Hyderabad Civil Services Rules by substituting the figure ’55’ for the figure ’58’ and by earning a special provision that those who had already attained the age of 55 years and were continuing in service beyond that age on 8/2/1983 shall retire from service on the afternoon of 28/1983. The announcements by which these amendments were accomplished were attended by another notification dated 17/2/1983 canceling the proviso to Rule 2 of the Fundamental Rules which conserved a civil servant against a charge of his conditions of service to his liability after he entered service. m is was followed by the promulgation of the Andhra Pradesh Ordinance No. 5 of 1983 regulating the recruitment and circumstances of service of persons elected to public service and posts in connection with the affairs of the State of Andhra Pradesh and the officers and servants of the High Court of Andhra Pradesh. Clause 10 of the Ordinance provided that ‘every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service in the afternoon of the last day of the month in Which he achieves the age of fifty-five years.’ In the case of Government employees pertaining to the Last Grade Service, it was given that they shall retire from service on the afternoon of the last day of the month in which they achieve the age of sixty years. Clause 18 (1) provided that the proviso to rule 2 of the Fundamental Rules shall be and shall be considered always to have been excluded. Now instantly after the notifications reducing the age of age from 58 to 55 were issued, a large number of Government employees, employees of public sector companies, and teachers working under several local authorities filed writ petitions in this Court as well as in the High Court of Andhra Pradesh challenging the vires of the provisions lessening the age of superannuation. After promulgation of the ordinance, they were permitted to amend the petitions to question the reasonable provisions of the ordinance too. The petitions in this Court were heard at great duration for several days by Chandrachud, CJ, Pathak, J. and S. Mukharji, J. and Judgment was reserved on 27.7.83. The judgment was however pronounced only on January 18, 1985. The impugned provisions were approved and all the writ petitions were dismissed. In the meanwhile, much water had flown under the bridge. There were agitations and agreements. There were twists and turns of political power. There were modifications to the legislation, once more raising the age of superannuation. Learned counsel informs us that the subsequent events were brought to the notice of the court and that a petition was also filed to amend the writ petitions and to raise the following grounds. The Court however refused to take notice of the successive events and continued to enunciate their judgment with reference to a situation which obtained several months ago and which situation stood considerably altered and had even become mythical by the subsequent march of events. It was a great pity. Much turmoil and heart-burning might have been avoided, as we shall presently see.

There was a substantial conversation at the Bar whether the agreement investigated and stipulated restoration of 58 years as the age of Superannuation if the power of the Government to curtail the age of superannuation was approved by the Supreme Court. The agreement seems to us to be clear and categorical and a quotation to the pleadings indicates that the Government also never doubted the employees’ understanding of the agreement. In Para 2 (h) of the petition in Writ Petition No. 3420-26 of 1985, the petitioners asserted, “It is pertinent to point out that in the interregnum between the Writ Petition being admitted in this Hon’ble Court and the judgment being delivered a Statewide agitation took place in Andhra Pradesh by the Non-Gazetted employees in the Andhra Pradesh State Government in June and July 1983. That turmoil was for the purpose of demanding inter alia that the retirement age of the State Government employees be restored to 58 years. Eventually, on 3.8.1983, an agreement was completed at between the State Government and the Action Committee of the Employees and workers in Andhra Pradesh by which it was agreed the State Government would restore the age of retirement to 58 years if the Supreme Court upheld the State Government’s Power to curtail the age of retirement. The said agreement which was a comprehensive agreement entered into between the State A. P. On behalf of the whom the negotiations were administered by the then Chief Secretary Shri G.V. Ramakrishna, I.A.S. and the Action Committee of the employees and workers, which Action Committee exemplified 39 service organization.

Sections 3 (1) and (2) were as follows:

“3 (1) Every Government employee, not being a workman and not pertaining to Last Grade Service shall retire E from service on the afternoon of the last day of the month in which he achieves the age of fifty-five years.

(2) Every Government employee not being a workman but belonging to the Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.

Explanation II(b) has the following effect:

“(b) a Government employee who attained the age of superannuation but who was allowed to proceed to hold the post beyond that date, but the integrity of stay order of a Court, shall be considered to have ceased to hold the post and alleviated of his charge from the date of the judgment rejecting his petition, irrespective of whether the charge of the post was handed over or not as stipulated in any law or injunction of the Government for the time being in force.

Andhra Pradesh Ordinance No. 24 of 1984 was renovated by Act No.3 of 1985. By Sec. 2 of the Amending Act, the words ‘ fifty-five years’ were transferred by the words ‘ fifty-eight years’ in Sec. 3(1) and Explanation II (a) of the Principal Act. Section 4 of the Amending Act which is more or less on the same lines as h Clause 3(1) of the Ordinance says:

“4(1) The requirements of Section 2 of this Act shall not apply to persons who achieved the age of superannuation in pursuance of the announcements issued in G.O.Ms. No. 36 Finance and Planning (Finance Wing F.R.I.) Department dated the 8th February 1983, or in pursuance of the requirements of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as in force prior to the opening of this Act.

Here, the facts speak for themselves. Res Ipsa Loquitur. The history and the procession of events, the initial reduction of the age of the superannuation, the turmoil consequent upon it, and the agreement that followed the agitation clearly indicate that the object of Ordinance No. 23 of 1984 and Act No. 3 of 1985 was to undo the misconduct or the damage that had been done by the reduction of the age or superannuation from 58 years to 55 years and to restore the previous position. Quite obviously, lt was not a case of change of social circumstances. It was a case of a change of policy to set right immediately a recent wrong perpetrated by a well-intentioned but perhaps ill-thought measure. It was not at all a case of a deterioration of policy because of changed circumstances. A reference to the note file which was made available to us by the learned Advocate General of Andhra Pradesh at our instance shows that it was after careful consideration of the representations made by the various services associations in regard to the restoration of the age of superannuation to 58 years that the Government resolved to restore the age of superannuation to 58 years, In the counter, the Government seemed to take the stand that the Governments of the States of Karnataka and Rajasthan had put forward the age of superannuation to 58 years and the Government of Andhra Pradesh wanted to fall in line. It was a wholly erroneous statement. There is no citation in the note file or elsewhere, except for the first time in the counter, to the circumstance that two other State Governments had raised the age of superannuation and the Andhra Pradesh Government had established their wisdom. The announcement in the counter must be ignored. 

During the pendency of the Writ Petitions in this Court, various employees of local authorities etc. Attained orders of stay from the High Court and were continuing in service on the dates when the judgment of the Supreme Court was uttered. After the pronouncement of the judgment of the Supreme Court, the authorities that be have sought to give effect to the provisions of the Act and the Ordinance by striving to throw them out on the ground that they had completed 55 years of age during the interregnum between February 28, 1983, and August 23, 1984, some others who had finalized 55 years between February 28, 1983, and August 23, 1984, but who had not finalized 58 years sought re-entry was notwithstanding the raising of the age of superannuation from 55 years Co 58 years. Their re-entry was pursued to be withstood on the basis of Cl.3(1) of the Ordinance and S.4(1) of the Amending Act. Those employees who were pursued to be removed from service or who were denied re-entry into service on the ground that they had achieved the age of 55 years between February 28, 1983, and August 23, 1984, have once again invoked the jurisdiction of this Court and sought reasonable writs from this Court to continue or to replace and proceed them in service until they attain the age of 58 years. They are the petitioners in Writ Petitions Nos. 3203, 3413-3419, 3420-3426 etc. etc. Of 1985. They sought interim orders from this Court.

It was said that it was an exercise in the State of Andhra Pradesh to make even regular nominations and regular promotions under Rule 10 and Rule 37 only and thus, the mere fact that Rule 10 or Rule 37 was remembered in an order of nomination or publicity would not necessarily make the nomination or promotion temporary. Such appointments or promotions, if made after going through the regular process or selection were to be considered as regular and not provisional notwithstanding the mention of Rule 10 or Rule 37. But here as brought up in the counter, there was a special situation instantly after the age of superannuation was curtailed, writ petitions were filed in the Supreme Court and in the High Court and there was substantial agitation by the employees. The entire situation was fluid as it were and there was good reason for the Government to make the authorizations and promotions on a purely temporary basis, and that was what they did. That the Departmental Committees proposed the temporary appointments and promotions made on the suggestion of the Departmental Promotion Committee. 

The cases of Bishnu Narain Mishra v. State of Uttar Pradesh Ors.[1] and K. Nagaraj & Ors. v. State of Andhra Pradesh[2], belong to the second classification of cases. In Bishnu Narain Mishra’s case, by a statement dated November 27, 1957, the Government of Uttar Pradesh raised the age of superannuation from 55 to 58 years. On may 25, 1961 the Government curtailed the age once against to 55 years and further laid down that those who had proceeded beyond the age of 55 years owing to the earlier notification would be supposed to have been maintained in service beyond the age of superannuation and would be compulsorily retired on December 31, 1961. The appellant who attained the age of 55 years on December 11, 1960, and was proceeded in service was one of those who was retired on December 31, 1961. He challenged the change in the rule of retirement on the ground that it was hit by Art. 14 in as much as it occurred in inequality between public servants in the matter of retirement. The argument was that when all those who had passed 55 years were asked to retire on December 31, 1960, some had almost finalized 55, some were 56, some were 57 and so on and, thus, there was racism.

“The last argument that has been instructed is that the new rule is unjust as various public servants have in effect been retired at different ages. We see no force in this argument either, retirement namely December 31, 1961, in the case of all public servants and fixes the age of retirement at 55 years. There is no racism in the rule itself. It is however urged that the second announcement by which all public servants above the age of 55 years were compelled to retire on December 31, 1961, except those few who finalized the age of 55 years between May 25, 1961, and December 31, 1961, shows that various public servants were retired at various ages varying from 55 years and one day to up to 58 years. That really is the effect of the second order. But it is extraordinary that the order also fixed the same date of retirement namely December 31, 1961, in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no racism and all public servants who had finalized the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ruled to retire on the same date, namely December 31, 1961. The result of this appears to be that the dramatic public servants retired at various ages. Out this was not because they retired at different ages but because their services were maintained for different periods after the fifty-five. Now it cannot be urged that if the Government decides to retain the services of some public servants after the E` age of retirement it must maintain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case, the discrepancy in the period of retention has arisen on account of exigencies of public service. We are, thus, of the impression that the second notification of May 25, 1961, on which reliance is placed to prove racism is really not discriminatory, for it has dealt with all public servants alike and fixed December 31, 1961, as the date of retirement for those who had finalized 55 years but not 58 years up to December 31, 1961. The challenge accordingly, to the two announcements on the basis of Art. 14 must fail.”

The Court eventually deemed the favorite argument advanced against what some of the Counsel who seemed before us described as judicial ‘tinkering’ with legislative policy. The Court took the view that the State cannot say ‘Take it or leave it’. If there are words in a law which bring about racism, those words can be broken. They said, “There is nothing inflexible about the choosing of an event as an eligibility standard subsequent to a specified date. If the event is distinct but its circumstance at a point of time is deemed wholly unrelated and arbitrarily selected having no justification for selecting it and having an unpleasant effect of allocating homogeneous class and of introducing the discrimination, the same can be easily severed and set aside. While examining the case under Art. 14, the strategy is not: ‘either take it or leave it’, the strategy is the disposal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to reduce the discriminatory part maintaining the beneficial portion. The pensioners do not challenge the liberalized pension scheme. They seek the benefit of it. Their complaint is of the rejection to them of the same by the arbitrary beginning of words of constraint and we find no difficulty in severing and quashing the same. This strategy can be legitimized on the ground that every Government servant retires. The state grants upward modification of pension clearly from a date. The event has happened revision has been earned. The date is barely to avoid payment of arrears which may assess a heavy burden. If the date is wholly reduced, revised pensions will have to be paid from the actual date of – the retirement of each pensioner. That is banned. The State cannot be burdened with arrears beginning from the date of retirement of each pensioner. But beneficial from the specified date future pension of earlier retired Government servants can be computed and paid on the metaphor of fitments in revised pay-scales becoming prospectively operative. That reduces the nefarious unconstitutional part and maintains the beneficial portion. It does not adversely affect future pensioners and their presence in the petitions becomes unrelated. out before we do so, we must look into the reasons assigned for eligibility criteria, namely, ‘in service on the specified date and retiring after that date’.” The learned judges then conveyed their reluctance to share the fear conveyed by the learned Attorney, General that the Parliament would not have authorized the measure if the unconstitutional part was struck down and added “Our strategy may have a parliamentary flavor to sensitive noses. Dealing with the question of frame of relief, the Court struck down as unconstitutional the words, that in respect of the Government servants who were in service on the 31st March 1979 and retiring from service on or after that date and the words the new rates of pension are effective from 1st April 1979 and will be acceptable to all service officers who became/become non-effective on or after that date in the impugned memoranda, but stipulated that the date remembered therein will be relevant as being one from which the liberalized pension scheme becomes functional to all pensioners governed by 1972 Rules irrespective of the date of retirement.”

We may now refer to two arguments that were remembered in passing but were not pursued. The first was that a writ petition related to Writ Petition Nos. 3420-3426/83 etc. had been filed earlier and had been dismissed in liming by a Bench of this Court. We do not see how the dismissal in liming of such a writ petition can probably bar the present writ petitions. Such a dismissal in liming may inhibit our intention but not our jurisdiction. So the complaint such as it was, was not maintained further. So also the second complaint related to the no joinder of all pretentious parties to the litigation. We are quite pleased that even if some individual affected parties have not been impleaded before us, their interests are identical with those and, have been sufficiently and well affected. Further, the relief claimed in the Writ petition Nos. 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no particular relief is claimed against any individual party. We do not think that the more disappointment to implead all affected parties is a bar to the maintainability of the present petitions in the special circumstances of these cases where the actions are really between two ‘warning groups’.

Concepts Highlighted

“1. All employees of the Government, public corporations and local authorities, who were retired from service on the ground that they had attained the age of 55 years by 28.2.85 or between 28.2.83 and 23.8.84, shall be reinstated in service provided they would not be completing the age of 58 years on or before 31.10.1985.

2. All employees who were compelled to retire on February 28, 1983, and between February 28, 1983, and August 23, 1984, and who are not eligible for reinstatement under the first clause, shall be entitled to be paid compensation equal to the total emoluments which they would have received, had they been in service, until they attained the age of 58 years, less any amount they might have received ex-gratia or by way of pension etc. Or under the Interim orders of this Court. They will be entitled to consequential retiral benefits.

3. Such of the employees as have not been compelled to retire by virtue of orders of stay obtained from the High Court or the Administrative Tribunal, or who have actually been reinstated in service pursuant to interim orders of this Court, shall be allowed to continue in service until they attain the higher age of superannuation.

4. The reinduction of those employees that have been compelled to retire previously will put them back as regards their seniority in precisely the same position which they occupied before they were retired from service. They will be entitled to all further consequential benefits.

5. The employees who were retired and who are reinducted will be entitled to be compensated for the period during which they were out of service in the same manner as mentioned in clause (2).

6. In the matter of reinduction of employees who do not attain the age of 58 years on or before 31st October 1985, the Government may exercise an option not to reinduct them in the case of all or some or any of the employees, as the case may be, provided the employees are paid the compensation as in the case of those covered by (2) and (5).

7. All interim orders are vacated and subject to these directions, the Government is free to revert persons promoted or appointed to the posts held by persons who were retired on having attained the age of 55 years by 28.2.1983 or between 28.2.83 and 23.8.84 to the posts which they held on February 29, 1983, or on the dates previous to their promotion or appointment provided that they need not be so reverted if they would otherwise be entitled to be promoted or appointed even if the other employees had not been retired consequent on the lowering of the age of superannuation.

8. The Government shall be free to create supernumerary posts wherever they consider it necessary so to do.

9. All payment of compensation to be made and completed before December 31, 1985. If for any reason the Government finds itself unable to pay the entire amount at one time within the time fixed by us, the Government will be at liberty to pay the amount in not more than four installments within the time stipulated by us. The Government will also have the liberty to supply to us for extension of time if so advised. Where the employees are awarded compensation by the Government, such employees may apply to the concerned Income-tax Officer for relief under Section 89 of the Income-tax Act read with Rule 21-A of the Income-tax Rules and Income-tax Officer concerned will grant the appropriate relief.”

Judgment

Employees of the State with limited resources, who have been planning their future with a comfortable feeling that they could work till the age of 58 years, have as though overnight, been stolen of their tenure, their aspirations, and the future. They have become the helpless victims of certain swift moves on the political chessboard. These swift moves, perhaps taken in a hurry, without severe application of mind have occurred in arbitrariness that has been strongly launched by the petitioners. This plea cannot be light-heartedly thrown overboard. Justice stresses that the petitioners should be recouped of their predicament.

The second factor that has existed upon me to give succor to the petitioners is the blame that this Court has to share for the sorry state that has come to pass in the matter. Without meaning disrespect to anyone, I firmly believe, that quick action by the Court, would have alleviated the situation, considerably and relieved the petitioners of their sad plight and us of this avoidable exercise. It is not as though the subsequent developments were not sent to the notice of this Court in Nagara’s case, (supra). We were told that the Bench was enticed in time about the improvements that had taken place but unfortunately they were not taken into account. When the Judgment ultimately came on 18.1.1985, as many as 6000 employees had lost their service, a tragic result, not based on any related consideration having a nexus to the age of superannuation. The damage had been done and it can be repaired only by broadening this Court’s powers to a section of employees who earn sympathy and fair deal.

This short Judgment is only to vindicate my stand. I respectfully agree with the Judgment prepared by my learned brother Reddy, J. I am also in entire agreement with my learned brother Eradi, J. about the restricted scope of the principles laid down in these cases on their unique facts.

At last, it was decided that the accused was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 10,000.

[1][1965] 1 S.C.R. 693.

[2]AIR 1985 A.C. 551.

References

  1. https://www.google.com/url?q=https://indiankanoon.org/doc/1066060/&usg=AOvVaw2WWKKgMZbgubAIp3k-Fxdj
  2. http://www.prashantmali.com/cyber-law-cases

Questions

Q1. What is Data Theft as per Indian Law?

According to The amended Information Technology Act, 2000, the Crime of data theft under Section 43(b) is stated as If any person without the permission of the owner or any other person who is in charge of a computer, the computer system of computer network, downloads, copies or extracts any data, computer database or information from such computer, computer system or computer network. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent. The act of illegally downloading data from a networked computer to a USB flash drive is called thumbsucking. The use of an iPod or other portable music player for the same purpose is called podslurping.

Q2. Can you tell us some examples of Data Theft as per law?

a. Forwarding emails to personal email id from corporate ids without prior permission from office management.
b. Sending data files as attachments from corporate ids to personal email ids with malafide intentions.
c. Copying data on pen drives from computers without the permission of the owner.
d. Selecting, copying and pasting data from websites for financial gain.
e. Downloading .mp3, .mp4 files or Videos from websites like youtube without purchasing or using the downloaded material for financial gain.
f. Helping people to commit offence of Data Theft.

Q3. What measures should the Government take to Prevent Data Leakage and losses due to Data Theft?

I strongly feel that the Government should appoint a Data Controller and a Data Commissioner to implement Section 43A of The IT Act, 2000 with full might. Data leakages incident should be mad compulsorily reported to Data Commissioners. Incidents of mishandling the Sensitive Personal Data and the penalty bored by the company should be made public, which sets an example in the peer industry.

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