PETITIONER:
SARDAR KAPUR SINGH
Vs.
RESPONDENT:
THE UNION OF INDIA
DATE OF JUDGMENT:
15/12/1959
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
GUPTA, K.C. DAS
CITATION:
1960 AIR 493 1960 SCR (2) 569
CITATOR INFO :
R 1961 SC1245 (20)
R 1963 SC 779 (7)
F 1964 SC 295 (2,3,7,9,20,22,24,51)
ACT:
Public Servant, Dismissal of–Member of Indian Civil Service
-Enquiry Commissioner a appointed by State Government-
Validity -’Government’, meaning of-Procedure, if
discriminatory President, if must hear evidence before
Passing order-Public Servants (Inquiries) Act, 1850 (37 of
1850), S. 2, Civil Services (Classification, Control and
Appeal) Rules, r. 55-Constitution of India, Arts. 511, 314.
HEADNOTE:
The appellant was a member of the Indian Civil Service
posted in the Punjab. The East Punjab Government suspended
him and appointed the Chief justice of the East Punjab High
Court as Enquiry Commissioner under the Public Servants
(Inquiries) Act, 1850 (37 Of 1850), to hold an enquiry
against him on diverse charges of misappropriation and
misdemeanour framed against him. After a protracted enquiry
on evidence, the Commissioner found him guilty on most of
the charges and submitted his report to the Government of
the East Punjab. The appellant was supplied a copy of the
report by the Secretary to the Government of India, Ministry
of Home Affairs, and informed that on a careful
consideration of the report and the findings of the Enquiry
Commissioner, the President had provisionally decided to
dismiss the appellant from service and desired that the
appellant should have an opportunity of showing cause and
making a representation against the proposed action. The
appellant submitted a lengthy representation. After
consultation with the Union Public Service Commission, the
President dismissed the appellant from service with
immediate effect. The appellant challenged the President’s
order under Art 226 of the Constitution. The High Court
dismissed his petition and, on a certificate of fitness
granted by it, the appellant filed the present appeal. It
was contended, inter alia, on his behalf that (i) the East
Punjab Government had no power to direct the enquiry against
the appellant since he was a member of the Indian Civil
Service and not employed under that Government, (2) the
enquiry could only -be held under r. 55 of the Civil
Services (Classification, Control and Appeal) Rules and not
the Public Servants (Inquiries) Act, 185o and (3) that the
enquiry held under that Act was discriminatory and infringed
Art. 14 Of the Constitution.
Held, that the contentions were without substance and must
fail.
The word “ Government ” in s. 2 of the Public Servants
(Inquiries) Act, 1850, means, as defined by S. 23 of the
Act, the
73
570
Central Government in the case of persons employed under
that Government and the State Government in the case of
persons employed under the State Government. A member of
the Civil service of the Union undoubtedly holds his office
during the pleasure of the President, but the power of
dismissal cannot be equated with the authority to direct
an enquiry under the Act and there is nothing in the
Constitution which takes away the authority of the State to
direct an enquiry under S. 2 of the Act. There was no doubt
that appellant who was posted in the Punjab, was at the date
of the enquiry employed under the East Punjab Government.
Consequently, its order directing an enquiry against him
under the Act was perfectly valid in law.
There is no foundation for the contention that the members
of the Indian Civil Service are beyond the purview of the
Act which is meant to regulate enquiries into the conduct of
superior public servants not removable except with the
sanction of the Government. The members of the lndian Civil
Service,whether employed under the Union or the State, are
not employees of the President ; and they are not liable to
be dismissed from their appointment without the sanction of
the Government.
Rule 55 of the Civil Services (Classification, Control and
Appeal) Rules contemplates an enquiry, either under the
procedure prescribed by the Public Servants (Inquiries),
Act, 1850, or the procedure prescribed by it. It does not
require that once an enquiry is held under the Act, there
must be another under it before a member of the Indian Civil
Service can be dismissed. The expression “ without
prejudice ” in the opening clause of the rule does not mean
‘notwithstanding’.
S. A. Venkataraman v. The Union of India, [1954] S.C.R.
1150, referred to.
It is not correct to say that an enquiry under the Act is
discriminatory and infringes Art. 14 of the Constitution.
While guaranteeing to all public servants a reasonable
enquiry into their conduct under Art- 311 (2), as explained
by this Court in Khem Chand v. The Union of India, [1958]
S.C.R. 1080, the Constitution does not guarantee an enquiry
under any specific statutory provision or administrative
rules. Article 314 of the Constitution no doubt further
guarantees to the members of the Indian Civil Service the
same rights- in regard to disciplinary actions as they were
entitled to immediately before the commencement of the
Constitution, which must mean an enquiry either under the
Public Servants (Inquiries) Act or r. 55 of the Civil
Services (Classification, Control and Appeal) Rules, then in
operation, the primary constitutional guarantee to them is
one of a reasonable enquiry as mentioned above. There is,
therefore, no discrimination simply because the one and not
the other procedure is adopted unless it is shown that it
operated to the prejudice of the public servant.
Khem Chand v. The Union of India, [1958] S.C.R. 1080,
referred to,
571
Although the procedure prescribed by the Public Servants
(Inquiries) Act, 1850 is more detailed than that prescribed
by r. 55, it is in substance not materially different.
Under either form of enquiry, notice has to be given of the
charges, the materials on which the charge is sought to be
sustained have to be furnished and, if the public servant so
desires, he can demand an oral hearing for the examination
of witnesses. It is not, therefore, correct to contend that
provisions such as those of ss’ 11 and 19 of the Act made
the procedure laid down by it discriminatory.- Although r.
55 lays down a somewhat more elastic procedure, provisions
similar to those contained in the two sections are implicit
in r. 55.
An opportunity of making an oral representation is not a
necessary postulate of an opportunity of showing cause
within the meaning of Art. 311 Of the Constitution and the
President of India is ‘not bound under that Article to hear
evidence of witnesses before he passes an order of
dismissal. That Article does not contemplate that before an
order of punishment can be passed against a public servant,
although a full and fair enquiry has already taken place,
there must be a further enquiry at which evidence of
witnesses viva voce is recorded.
The High Commissioner of India and Another v. 1. M. Lal, 75
I.A. 225 and Khem Chand v. The Union of India, [1958] S.C.R.
1080, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 230 of 1959.
Appeal from the judgment and order dated October 7, 1955, of
the Punjab High Court, in Civil Writ Petition No. 322 of
1953.
I. M. Lal, K. S. Chawla and K. R. Krishnaswami, for the
appellant.
H. N. Sanyal, Additional Solicitor-General of India, N. S.
Bindra, R. H. Dhebar and T. M. Sen, for the respondents.
1959. December 15. The Judgment of the Court was delivered
by
SHAH J.-Sardar Kapur Singh (who will hereinafter be referred
to as the appellant) was admitted by the Secretary of State
for India in Council to the Indian Civil Service upon the
result of a competitive examination held at Delhi in 1931.
After a period of training in the United Kingdom, the
appellant returned to India in November, 1933 and was posted
as Assistant
572
Commissioner, Ferozepore in the Province of Punjab. He
served in the Province in various capacities between the
years 1933 and 1947. In July, 1947, he was posted as Deputy
Commissioner at Dharamsala India and continued to bold that
office till February 11, 1948, when he was transferred to
Hoshiarpur at which place he continued to hold the office of
Deputy Commissioner till a few days before April 14, 1949.
On April 13, 1949, the appellant was served with an order
passed by the Government of East Punjab suspending him from
service. On May 5, 1950, the appellant submitted a
representation to the President of India protesting against
the action of the Government of East Punjab suspending him
from service and praying that he be removed from the control
of the Punjab Government and that if any disciplinary action
was intended to be taken against him, it be taken outside
the Province of Punjab by persons appointed by the
Government Of India and in an atmosphere “ free from
prejudice and hostility “. The Government of East Punjab on
May 18, 1950, appointed Mr. Eric Weston, Chief Justice of
the East Punjab High Court as Enquiry Commissioner under the
Public Servants (Inquiries) Act, XXXVII of 1850, to bold an
enquiry against the appellant on twelve articles of charges.
Notice was issued to the appellant of those charges. On
November 5, 1950, at the suggestion of the Enquiry
Commissioner, the Government of East Punjab withdrew charges
Nos. 11 and 12 and the Enquiry Commissioner proceeded to
hold the enquiry on the remaining ten charges. Charges
1,2,7,8,9 and 10 related to misappropriation of diverse sums
of money received by or entrusted to the appellant, for
which he failed to account. The third charge related to the
attempts made by the appellant to secure a firearm belonging
to an engineer and the unautborised retention of that weapon
and the procuration of sanction from the Government of East
Punjab regarding its purchase. The fourth charge related to
the granting of sanction under the Alienation of Land Act
for sale of a plot of land by an agriculturist to a non-
agriculturist, the appellant being the beneficiary under the
573
transaction of sale, and to the abuse by him of his
authority as Deputy Commissioner in getting that land
transferred to his name, without awaiting the sanction of
the Government. The fifth charge related to the grant to
Sardar Raghbir Singh of a Government contract for the supply
of fire-wood’ without inviting tenders or quotations, at
rates unreasonably high and to the acceptance of wet and
inferior wood which when dried weighed only half the
quantity purchased, entailing thereby a loss of Rs., 30,000
to the State. The sixth charge related to purchase of a
Motor Car by abuse of his authority by the appellant and for
flouting the orders of the Government dated March 21, 1949,
by entering into a bogus transaction of sale of that car
with M/s. Massand Motors and for deciding an appeal
concerning that car in which he was personally interested.
Charges Nos. 1 to 4 and 7 to 10 related to the official
conduct of the appellant when he was posted as Deputy
Commissioner at Dharamsala and charges Nos. 5 and 6 related
to the period when he was posted as Deputy Commissioner at
Hoshiarpur.
The Enquiry Commissioner heard the evidence on behalf of the
State at Dharamsala between July 31 and August 21, 1950.
Enquiry proceedings were then resumed on September 5 at
Simla and were continued till October 23 on which date the
evidence on behalf of the State was closed. On October 27,
the appellant filed a list of defence witnesses. A detailed
written statement was filed by the appellant and he gave
evidence on oath between November 28 and December 5. The
defence witnesses were then examined between December 5 and
December 28. It appears that the appellant did not, at that
stage desire to examine any more witnesses, and the
appellant’s case was treated as closed on December 28. On
and after December 28, 1950, the appellant filed several
applications and affidavits for obtaining certain directions
from the Enquiry Commissioner and for eliciting information
from the State. On January 2, 1951, the Enquiry
Commissioner adjourned the proceeding for the winter
vacation. The proceedings were resumed
574
on March 12, 1951, and after recording formal evidence of
two witnesses, S. Gurbachan Singh, Sub-Inspector and Ch.
Mangal Singh, Sub-Inspector about the state-ments made by
certain witnesses for the defence in the
course of the investigation which it was submitted were
materially different from those made before the Enquiry
Commissioner and after hearing arguments, the enquiry was
closed. On May 14, 1951, the Enquiry Commissioner prepared
his report. He held that the appellant had taken the amount
referred to in charge No. 1 from the Government on the basis
of a claim of Raja Harmohinder Singh which was made at the
appellant’s instance, that the appellant had also received
the amount which was the subject matter of charge No. 2,
that the appellant admitted to have received the amounts
which were the subject matter of charges Nos. 7, 9 and 10,
that the amount which was the subject matter of charge No. 8
was obtained by the appellant from the Government under a
fraudulent claim sanctioned by the appellant with full
knowledge of its true nature and that accordingly the
appellant had received an aggregate amount of Rs. 16,734-11-
6 and that even though he had made certain disbursements to
refugees, the appellant had failed to account for the
disbursement of the amount received by him or anything
approximate to that amount and therefore the charge against
the appellant for misappropriation must be held proved
although the amount not accounted for could not be precisely
ascertained. On charges 3 and 4, the Enquiry Commissioner
did not record a finding against the appellant. On charge
No. 6, he recorded an adverse finding against the appellant
in so far as it related to the conduct of the appellant in
deciding an appeal in which he was personally concerned. He
held that the conduct of the appellant in giving a contract
to Sardar Raghbir Singh which was the subject matter of
charge No. 5 was an act of dishonest preference and the
appellant knowingly permitted the contractor to cheat the
Government when carrying out the contract and thereby
considerable loss was occasioned to the Government for which
the appellant was responsible.
575
This report was submitted to the Government of East Punjab.
On February 11, 1952, the Secretary to the Government of
India, Ministry of Home Affairs supplied a copy of the
report to the appellant and informed him that on a careful
consideration of the report and in particular of the
conclusions reached by the Enquiry Commissioner in respect
of the charges framed, the President of India was of the
opinion that the appellant was ” unsuitable to continue ” in
Government service and that the President accordingly
provisionally decided that the appellant should be dismissed
from Government service. The appellant was informed that
before the President took action, he desired to give the
appellant an opportunity of showing cause against the action
proposed to be taken and that any representation which the
appellant may make in that connection will be considered by
the President before taking the proposed action. The
appellant was called upon to submit his representation in
writing within twenty one days from the receipt of the
letter. The appellant submitted a detailed statement on May
7, 1952, which runs into 321 printed pages of the record.
The President consulted the Union Public Service Commission,
and by order dated July 27, 1953, dismissed the appellant
from service with immediate effect. The order passed by the
President was challenged by a petition filed in the East
Punjab High Court for the issue of a writ under Art. 226 of
the Constitution. The appellant prayed that a writ quashing
the proceeding and the report of the Enquiry Commissioner
and also a writ of Mandamus or any other appropriate Writ,
Direction or Order commanding the Union of ,India to
reinstate the appellant into the Indian Civil Service from
the date of suspension be issued. By separate, but
concurring judgments, Chief Justice Bhandari and Mr. Justice
Khosla of the East Punjab High Court dismissed the petition.
Against the order of dismissal of the petition, this appeal
has been filed by the appellant pursuant to a certificate of
fitness granted by the High Court,
577
in so far as it is material, it was enacted that every
person appointed by the Secretary of State to a civil
service of the Crown in India who continued on and after
the appointed day to serve under the Government of the
Dominion of India or of any Province or part thereof was
entitled to receive the same. conditions of service as
respects remuneration, leave and pension and the same rights
as respects disciplinary matters, or as the case may be, as
respects the tenure of his office. By sub-s. 2 of s. 240 of
the Government of India Act as amended, a person appointed
by the Secretary of State who continued in the establishment
of the Dominion of India was not liable to be dismissed by
any authority subordinate to the Governor General or the
Governor according as that person was serving in connection
with the affairs of the Dominion or the Province.
Indisputably, since India became a Republic, by Art. 310(1)
of the Constitution, every person who is a member of a civil
service of the Union or of an all-India service or holds any
civil post under the Union, holds office during the pleasure
of the President. But the power to dismiss a member of the
civil service of the Union or of an all-India service may
not be equated with the authority conferred by statute upon
the State under which a public servant is employed to direct
an enquiry into the charges of misdemeanour against him. By
s. 2 of the Public Servants (Inquiries) Act, 1850, it is
provided that :
“Whenever the Government shall be of opinion that there are
good grounds for making a formal and public inquiry into the
truth of any imputation of misbehaviour by any person in the
service of the Government not removable from his appointment
without the sanction of the Government, it may cause the
substance of the imputations to be drawn into distinct
articles of charge, and may order a formal and public
inquiry to be made into the truth thereof “,
and the expression ‘Government’ is defined by s. 23 of the
Act as meaning Central Government in case of persons
employed under that Government and the
74
579
of the Indian Civil Service are accordingly not liable to be
dismissed from their appointment without the sanction of the
Government and are not excluded from the purview of the
Public Servants (Inquiries) Act, 1850.
Rule 55 of the Civil Services (Classification, Control and
Appeal) Rules provides:
“Without prejudice to the provisions of the Public Servants
(Inquiries) Act, 1850, no order ‘of dismissal, removal or
reduction shall be passed on a member of a Service (other
than an order based on facts which have led to his
conviction in a criminal court or by a Court Martial) unless
he has been informed in writing of the grounds on which it
is proposed to take action, and has been afforded an
adequate opportunity of defending himself. The grounds on
which it is proposed to take Action shall be reduced to the
form of a definite charge or charges, which shall be
communicated to the person charged together with a statement
of the allegations on which each charge is based and of any
other circumstances which it is proposed to take into
consideration in passing orders on the case. He shall be
required, within a reasonable time, to put in a written
statement of his defence and to state whether he desires to
be heard in person. If he so desires, or if the authority
concerned so direct, an oral inquiry shall be held. At that
inquiry oral evidence shall be heard as to such of the
allegations as are not admitted, and the person charged
shall be entitled to crossexamine the witnesses, to give
evidence in person and to have such witnesses called as he
may wish, provided that the officer conducting the inquiry
may, for special and sufficient reason to be recorded in
writing, refuse to call a witness. The proceedings shall
contain a sufficient record of the evidence and a statement
of the findings and the grounds thereof.
This rule shall not apply where the person con. cerned has
absconded, or where it is for other reasons impracticable to
communicate with him. All or any of the provisions of the
rule, may in exceptional cases, for special and sufficient
reasons to be recorded in writing, be waived, where there is
a difficulty in
580
observing exactly the requirements of the rule and those
requirements can be waived without injustice to the person
charged.”
It was submitted relying upon that rule, that no
order for dismissal or removal of a member of the Indian
Civil Service can be passed unless an enquiry is held
against him as prescribed by r. 55. But the rule in terms
states that the enquiry contemplated therein is “ ‘without
prejudice to the provisions of the Public Servants
(Inquiries) Act, 1850 “. The rule apparently means that an
order of dismissal, removal or reduction in rank shall not
be passed without an enquiry either according to the
procedure prescribed by the Public Servants (Inquiries) Act,
1850, or the procedure prescribed by the Rule. The Rule
does not support the submission that even if an enquiry be
held under the Public Servants (Inquiries) Act, 1850, before
an order of dismissal or removal or reduction is passed
against a member of the civil service another enquiry
expressly directed under r. 55 shall be made. The argument
on behalf of the appellant proceeds upon an assumption which
is not warranted by the language used, or by the context
that the expression without prejudice’ is used in the rule
as meaning notwithstanding’.
The observations made in S. A. Venkataraman v. The Union of
India and Another(1) by Mr. Justice Mukherjea, in delivering
the judgment of the court, that :
“Rule 55, which finds a place in the same chapter, lays down
the procedure to be followed before passing an order of
dismissal, removal or reduction in rank against any member
of the service. No such order shall be passed unless the
person concerned has been informed, in writing, of the
grounds on which it is proposed to take action against him
and has been afforded an adequate opportunity of defending
himself. An enquiry has to be made regarding his conduct
and this may be done either in accordance with the
provisions of the Public Servants (Inquiries) Act of 1850,
or in a less formal and less public manner as is provided
for in the rule itself
(1) [1954] S.C.R. 1150.
581
dispel doubt, if there be any, as to the true meaning of the
opening clause of the rule.
Does the holding of an enquiry against a public servant
under the Public Servants (Inquiries) Act, 1850 -violate the
equal protection clause of the Constitution ? The appellant
submits that the Government is invested with authority to
direct an enquiry in one of two alternative modes and by
directing an enquiry under the Public Servants (Inquiries)
Act which Act it is submitted contains more stringent
provisions when against another public servant similarly
circumstanced an enquiry under r. 55 may be directed, Art.
14 of the Constitution is infringed. The Constitution by
Art. 311(2) guarantees to a public servant charged with
misdemeanour that he shall not be dismissed, removed or
reduced in rank unless he has been given a reasonable
opportunity of -showing cause against the action proposed to
be taken in regard to him. The content of that guarantee
was explained in Khem Chand v. The Union of India and
Others(1). It was observed that:
“the reasonable opportunity envisaged by the provision under
consideration includes-
(a)An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what the
charges levelled against him are and the allegations on
which such charges are based ;
(b) an opportunity to defend himself by cross-examining the
witnesses produced against him and by examining himself or
any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the
proposed punishment should not be inflicted on him, which he
can only do if the competent authority, after the enquiry is
over and after applying his mind to the gravity or otherwise
of the charges proved against the government servant
tentatively proposes to inflict one of the three punishments
and communicates the same to the government servant.”
By the Constitution, to public servants who are not members
of the Indian Civil Service charged with
(1) [1958] S.C.R. 1080 at 1096-97.
582
misdemeanour a guarantee to a fair enquiry into their
conduct is given: i. e., the public servant must be afforded
a reasonable opportunity of defending himself against the
charges by demonstrating that the evidence on which the
charges are sought to be founded is untrue or unreliable,
and also by leading evidence of himself and his witnesses to
that end; he must, besides, be afforded an opportunity of
showing cause against the proposed punishment. The
Constitution however does not guarantee an enquiry directed
in exercise of any specific statutory powers or administr-
ative rules. But the guarantee in favour of members of the
Indian Civil Service is slightly different. By Art. 314, a
public servant who was appointed by the Secretary of State
to a civil service of the Crown in India continues except as
expressly provided by the Constitution on or after the
commencement of the Constitution to serve under the
Government of India or of the State subject to the same
conditions of service as respects remuneration, leave and
pension and the same rights as respects disciplinary matters
or rights as similar thereto as changed circumstances may
permit as that person was entitled to immediately before the
Constitution. Rule 55 of the Civil Services
(Classification, Control and Appeal) Rules before the date
of the Constitution assured the public servants that no
order of dismissal, or removal from service shall be passed
except following upon an enquiry, and by Art. 314, to civil
servants appointed by the Secretary of State the same rights
in disciplinary matters as were available before the
Constitution are guaranteed. A member of the Indian Civil
Service, before disciplinary action is taken against him is
therefore entitled by the force of guarantees enshrined in
the Constitution to an enquiry into his alleged misdemeanour
either under the Public Servants (Inquiries) Act or under r.
55 of the Civil Services (Classification, Control and
Appeal) Rules, in operation at the date of the Constitution.
But the guarantee being one of an enquiry directed under one
of two alternative powers, the exercise of authority under
one of the two alternatives is not prima facie illegal.
583
The procedure to be followed in making an enquiry under the
Public Servants (Inquiries) Act, 1850, is prescribed in some
detail. The Enquiry Commissioner is required to supply to
the person accused a copy of the articles of charges and
list of the Documents and witnesses by which the charges are
to be sustained at least three days before the beginning of
the enquiry. By s. II, the prosecutor is required to
exhibit articles of charges which are read and the person
accused is required to plead ‘ guilty ‘ or ‘ not guilty ‘ to
each of them; then the plea of the person accused is
required to be recorded and if that person refuses, or
without reasonable cause neglects to appear to answer the
charge either personally or by his counsel or agent, he
shall be taken to admit the truth of the articles of charge.
By ss. 13, 14, 15 and 16, the sequence to be followed in the
examination of witnesses is prescribed. Section 18
prescribes the method of maintaining notes of oral evidence.
By s. 19, after the person accused has made his defence, the
prosecutor is given an opportunity to make a general oral
reply on the whole case and to exhibit evidence to
contradict any evidence exhibited for the defence; but the
person accused is not entitled to any adjournment of the
proceedings although such new evidence were not included in
the list furnished to him. By s. 20, power is given to the
Enquiry Commissioner to amend the charge. This procedure is
evidently prescribed in greater detail than the procedure
prescribed by r. 55. Under r. 55, the grounds on which it
is proposed to take action against the public servant
concerned must be reduced to the form of a definite charge
and be communicated to him together with the statement of
the allegations on which each charge is based and of any
other circumstances on which it is proposed to take into
consideration in passing orders on the case. The public
servant must be given reasonable time to put in a written
statement of his defenee and to state whether he desires to
be heard in person, and if he desires or if the authority so
directs, an oral enquiry must be held. At that enquiry,
opportunity is given to the public servant to cross-examine
witnesses
584
to give evidence in person and to examine his own witnesses.
The provisions of the Public Servants (Inquiries) Act,
1850, were made more detailed for the obvious reason that at
the time when that Act was enacted, there was no codified
law of evidence in force. But the procedure prescribed by
Act XXXVII of 1850 and the procedure to be followed under r.
55 are in substance not materially different. Under either
form of enquiry, the public servant concerned has to be
given notice of the charges against him; he has to be
supplied with the materials on which the charge is sought to
be sustained and if he so desires, he may demand an oral
hearing at which the witnesses for the prosecution and his
own witnesses shall be examined.
Counsel for the appellant submitted that the procedure under
the Act was more onerous against the public servant
concerned in two important respects: (1) under s. 11 of Act
XXXVII of 1850, if the accused refuses or without reasonable
cause neglects to appear to answer the charge, he shall be
taken to admit the truth of the articles of charge, whereas
there is no similar provision in r. 55; (2) that under s. 19
of the Act, even after the evidence for the defence is
closed, it is open to the prosecutor to exhibit evidence to
contradict evidence exhibited for the defence and the
Commissioner is not bound to adjourn the proceeding although
the new evidence was not included in the list furnished to
the accused whereas there is no similar provision in r. 55.
The procedure prescribed by r. 55 is undoubtedly somewhat
more elastic, but the provisions similar to those which have
been relied upon by counsel for the appellant as
discriminatory are also implicit in r. 55. If the public
servant concerned does not desire an oral enquiry to be
held, there is no obligation upon the authority to hold an
enquiry. Again, there is nothing in the rule which prevents
the authority from exhibiting evidence for the prosecution
after the case of the defence is closed if that evidence is
intended to contradict the evidence of the public servant
concerned.
The primary constitutional guarantee, a member of the Indian
Civil Service is entitled to is one of being
585
afforded a reasonable opportunity of the content set out
earlier, in an enquiry in exercise of powers conferred by
either the Public Servants (Inquiries) Act or r. 55 of the
Civil Services (Classification Control and Appeal) Rules,
and discrimination is not practised merely because resort
is had to one of two alternative sources of authority,
unless it is shown that the procedure adopted operated to
the prejudice of the public servant concerned. In the case
before us, the enquiry held against the appellant is not in
manner different from the manner in which an enquiry may be
held consistently with the procedure prescribed by r. 55,
and therefore on a plea of inequality before the law, the
enquiry held by the Enquiry Commissioner is not liable to be
declared void because it was held in a manner though
permissible in law, not in the manner, the appellant says,
it might have been held.
The plea that the Enquiry Commissioner held the enquiry in a
manner violative of the rules of natural justice, may now be
considered. The appellant examined at the enquiry 82
witnesses and he produced a considerable body of documentary
evidence. The High Court held that the Enquiry Commissioner
dealt with each charge exhaustively and the enquiry was held
in a manner just and thorough. According to the learned
Judges of the High Court, on all the applications submitted
by the appellant, orders were passed by the Enquiry
Commissioner and in a majority of the orders detailed
reasons for refusing to accede to the request of the
appellant were given. They also held that the appellant had
no inherent right to require the Commissioner to summon
every witness cited and failure to summon the witnesses
could not by itself be regarded reasonably as a ground on
which the procedure could be challenged as contrary to the
rules of natural justice.
In his petition before the High Court, in para. 7 it was
suggested by the appellant that his written request to the
Enquiry Commissioner to hold the enquiry at Delhi or Simla,
but not at Dharamsala where the appellant had a reasonable
apprehension that the witnesses will be freely suborned and
interfered with
75
586
was summarily rejected’; but admittedly, all the witnesses
of the appellant were examined at Simla and not at
Dharamsala.
In paras. 8, 9 and 10 of his petition he submitted
that even though he had brought to the notice of the Enquiry
Commissioner that there was a conspiracy among certain high
functionaries of the Government and certain influential
politicians against him, the Enquiry Commissioner declined
to permit the evidence about the alleged conspiracy to be
brought on the record and observed that he will not give any
definite finding against any functionary or high officer of
the Government and on this account the enquiry was vitiated.
Before us, this contention was not pressed. By para. 10 of
his petition, the appellant stated that even those documents
which the appellant desired to be called for to rebut the
specific charges were not ordered to be called for by the
Enquiry Commissioner and he merely directed that if the
appellant possessed any copies of such documents, he may
file them in the court and that those documents will be
treated as legal substitute for the original documents. The
appellant submitted that this extraordinary procedure
resulted in the exclusion of the admissions of the high
functionaries of the Punjab Government to the effect that
the charges framed against the appellant directly arose out
of a conspiracy carried out against the appellant. Neither
of these grounds was sought to be pressed before us. In
para. II, the appellant stated that the proceedings taken
and the charges framed against him were mala fide and the
result of a conspiracy, that the Enquiry Commissioner
excluded other evidence, documentary and oral, which was
sought to be produced to show that the specific charges as
framed against him were the result of acts of conspiracy,,
that the Enquiry Commissioner insisted on a discriminatory
procedure requiring the appellant to state in advance in
case of each item of evidence or witness, as to what the
document contained or the witness had to state before he
would agree to summon or record the defence evidence while
this procedure was not adopted in the case of the
prosecution. Before this court, the
587
plea of mala fides or that discrimination was made between
the facilities given to the prosecutor and the appellant was
not adverted to. But reliance was Kapur Singh sought to be
placed upon the ground that the appellant was not permitted
an opportunity to examine the witnesses whom he desired to
examine and to produce certain documentary evidence, and
that on some of the applications which had been submitted by
the appellant, the Enquiry Commissioner had not passed any
orders. Our attention was invited to certain applications
which were filed on or after December 28, 1950. As already
observed on December 28, 1950, the last witness for the
appellant was examined. His counsel then submitted an
application dated December 28, 1950, praying that documents
and files which had been admitted by the parties as part of
the record of the case be formally exhibited for facility of
reference. This indicates that the appellant had no more
evidence to lead after December 28, 1950. It is not clear
on the record whether any express order was passed on this
application; but assuming that there was no such direction
given for exhibiting the documents, we fail to appreciate
how the procedure followed operated to the prejudice of the
appellant. On December 29, 1950, the appellant applied that
the Advocate General appearing for the prosecution be
directed to give ‘final and complete answers’ to certain
queries and to produce relevant documents in support of his
answers, and as many as seven questions were set out. It
appears from the application dated December 30, 1950, filed
by the appellant that the Enquiry Commissioner asked the
appellant to remodel the questions and accordingly a fresh
application with questions re-modelled was submitted. On
that application, the Commissioner ordered that he had no
objection to allow the appellant to give evidence as to some
incident about ‘ Pauji Mela’ even though there was no
reference to that matter at any earlier stage. He, however,
declined to allow any further evidence to be called and
observed that he had not given to the Prosecutor any special
privilege, and that it was not the case of the Prosecutor
that there existed express
588
instructions to District Officers in the management of trust
funds. The appellant also submitted another application
dated December 30, 1950, praying that the Prosecutor may be
asked to reply to the questions set out therein and to
produce documents in support of is answers. The Enquiry
Commissioner ordered that answers to the questions may be
given on affidavits obviating thereby the necessity of
considering the prayer for further evidence, and he called
upon the Prosecutor to file answers within one month. In
the meanwhile, on December 29, 1950, the appellant bad
submitted an affidavit in which he had set out what happened
at a meeting between the Governor of East Punjab, the Chief
Secretary and the Deputy Commissioners of various districts
and the superintendents of police, and made certain
submissions with regard to the record which had been
produced. On December 31, 1950, referring to the order
passed by the Commissioner giving the appellant an
opportunity to give evidence regarding the ‘Fauji Mela’, the
latter requested the Commissioner to direct the Prosecutor
to file an affidavit on certain facts stated in the applic-
ation with a view to enable him to take further necessary
steps to establish his contentions in the matter. On that
application, the Enquiry Commissioner ordered that the
Prosecutor was unable to make statements and in the
circumstances ‘of the case he could not accept that further
enquiries be allowed. On January, 2, 1951, the appellant
produced a post card alleged to have been received by him
and which he contended had a bearing on his evidence in the
enquiry and prayed that if the Enquiry Commissioner had no
objection,’ the writer of the enclosure be heard as defence
witness before the defence was closed’. But it does not
appear that any attempt was made to summon the writer, Suraj
Parkash Bakhshi or to keep him present before the Enquiry
Commissioner. When the Enquiry Commissioner resumed his
enquiry after the winter vacation, on March 12, 1951, the
appellant’s counsel submitted a narrative regarding the
alleged victimisation of certain witnesses. The Enquiry
Commissioner ordered thereon that he could not enter
589
upon an enquiry as to the alleged victimisation of the
witnesses. On March 12, 1951, the appellant submitted
another application requesting that immediate steps be
taken to examine one Tikka Nardev Chand of Guler in the ”
light of certain extra judicial state- ments ” made by him
and also the clerk of the Court of Wards of the Deputy
Commissioner’s Office may be summoned with necessary papers
and files to show as to when the property of the Aaja of
Guler was taken possession by the Deputy Commissioner and
when the allowances of the Raja of Guler and his other
dependants were fixed. The Enquiry Commissioner observed
that the application was belated and that although he was
away from Simla, he was accessible by post and his
whereabouts were ascertainable and that he could not allow
further evidence of that nature to go on the record. At the
instance of the Prosecutor, the Enquiry Commissioner allowed
two witnesses, S. Gurbachan Singh and Ch. Mangal Singh to
formally prove the statements made by two witnesses, Bishan
Das Gupta and Shahbaz Singh who it was claimed had made in
the course of the enquiry statements on oath inconsistent
with the statements made in the course of the investigation.
Pursuant to the order of the Enquiry Commissioner dated
December 30, 1950, the Prosecutor filed certain answers on
March 13, 1951, to the questions which were ordered by the
Enquiry Commissioner to answer.
The appellant’s counsel has conceded that the entire record
of -the Enquiry Commissioner is not before us Both the
learned Judges of the High Court have held that on every
application submitted by the appellant, the Enquiry
Commissioner had passed his orders and in a large majority
of the orders, detailed reasons were given. We are in this
case not concerned to adjudicate upon the correctness of the
orders passed by the Enquiry Commissioner on those
applications. We are only concerned to decide whether the
proceedings were conducted in a manner violative of the
rules of natural justice. In the petition before the High
Court, beyond a vague reference in para. 1 that evidence
was excluded and documentary and oral evidence to show that
590
the specific charges framed against him were the result of a
conspiracy ” was not allowed to go in”, no particulars were
furnished. In the circumstances, we are unable to hold that
the proceedings were conduct-ed in a manner violative of the
rules of natural justice. The appellant has not set out in
detail in his petition before the High Court specific
instances in which evidence was sought to be given,
explaining how the evidence was relevant and how the
appellant was prejudiced by the evidence being shut out. In
the absence of any express pleading and adequate material to
support the plea, we are unable to disagree with the view of
the High Court that the enquiry was not vitiated on account
of violation of the rules of natural justice.
The President of India was not bound before passing an order
dismissing the appellant, to hear the evidence of witnesses.
He could arrive at his conclusion on the evidence already
recorded in the enquiry by the Enquiry Commissioner. By
Art. 311 of the Constitution, a public servant is entitled
to show cause against the action proposed to be taken in
regard to him, but exercise of the authority to pass an
order to the prejudice of a public servant is not
conditioned by the holding of an enquiry at which evidence
of witnesses viva voce, notwithstanding an earlier fair and
full enquiry before the Enquiry Commissioner, is recorded.
In The High Commissioner for India and Another v. I.M. Lal
(1) dealing with s. 240, cl. 3, Lord Thankerton in dealing
with similar contentions observed:
“ In the opinion of their Lordships, no action is proposed
within the meaning of the sub-section until a definite
conclusion has been come to on the charges and the actual
punishment to follow is provisionally determined on. Prior
to that stage, the charges are unproved and the suggested
punishments are merely hypothetical. It is on that stage
being reached that the statute gives the civil servant the
opportunity for which sub-section (3) makes provision.
Their Lordships would only add that they see no difficulty
in the statutory opportunity being reasonably afforded at
(1) 75 I.A. 225.
591
more than one stage. If the civil servant had been through
an inquiry under rule 55, it would not be reasonable that he
should ask for a repetition of that stage, if duly carried
out; but that would not exhaust his statutory right, and he
would still be entitled to represent against the punishment
proposed as the result of the findings of the inquiry.”
And this view was affirmed by this court in Khem Chand v.
The Union of India and Others (1) where at p. 1099, it was
observed by Chief Justice S. R. Das:
“ Of course if the government servant has been through the
enquiry under r. 55, it would not be reasonable that he
should ask for a repetition of that stage, if duly carried
out. ”
By the Constitution, an opportunity of showing cause against
the action proposed to be taken against a public servant is
guaranteed and that opportunity must be a reasonable
opportunity. Whether opportunity afforded to a public
servant in a particular case is reasonable must depend upon
the circumstances of that case. The enquiry in this case
was held by the Enquiry Commissioner who occupied the high
office of Chief Justice of the East Punjab High Court. The
appellant himself examined 82 witnesses and produced a large
body of documentary evidence and submitted an argumentative
defence which covers 321 printed pages. An opportunity of
making an oral representation not being in our view a
necessary postulate of an opportunity of showing cause
within the meaning of Art. 311 of the Constitution, the plea
that the appellant was deprived of the constitutional
protection of that Article because he was not given an oral
hearing by the President cannot be sustained.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
(1) [1958] S.C.R. 1080,
592