S.A. Venkataraman Vs. The Union of
India & ANR  INSC 34 (30 March 1954)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 375 1954 SCR 1150
CITATOR INFO :
F 1956 SC 66 (17,26) F 1958 SC 36 (25) R 1959
SC 375 (30) R 1960 SC 493 (11) RF 1961 SC 29 (22) D 1961 SC 751 (24)
Constitution of India, art. 20(2)--Enquiry
made under Public Servants (Inquiries) Act, 1850-Whether amounts to prosecution
and punishment within the meaning of art. 20(2).
Held that an enquiry made and concluded under
-the Public Servants (Inquiries) Act, 1850 (A-at XXXVII of 185O), does not
amount to prosecution and punishment for an offence as contemplated by art. 20(2)
of the Constitution.
Maqbool Hussain v. The State of Bombay
( S.C.R. 703); Willis on Constitutional Law, p. 528; and Shenton v. Smith
([18951 A.C. 229); Venkata Rao v. The Secretary of State for India (64 I.A.
55); Government of India Act, 1935, s. 240(3); referred to.
CRIMINAL ORIGIINAL JURISDICTioN: Petition No.
72 of 1954.
Petition under article 32 of the Constitution
for the enforcement of fundamental rights.
A. K. Basu, K. S. Jayaram and C. B.
Pattabhiraman (R. Ganapathy and C. V. L. Narayan, with them) for the
M. C. Setalvad, Attorney-General for India
and C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P. G.
Gokhate, with them) for respondent No. 1.
1954. March 30. The Judgment of the Court was
delivered by MUKHMRJEA J.-This is a. petit ion under article 32 of the
Constitution, praying for a writ, in the nature of certiorari, for calling up
the records of certain criminal proceedings started against the petitioner by
the Special, judge. Sessions Court, Delhi, and for quashing the safe on the
ground that these proceedings are without jurisdiction, having been commenced
1151 in violation of the fundamental right of the petitioner guaranteed under
article 20(2) of the Constitution.
The petitioner was a member of the Indian
Civil Service and till lately was employed as Secretary to the Ministry of
Commerce and Industries in the Government of India. Certain imputations of
misbehaviour by the petitioner, while holding offices of various descriptions
under the Government of India, came to the notice of the Central Government and
the latter being satisfied that there were prima facie good grounds for making
an enquiry directed a formal and public enquiry to be made as to the truth or
falsity of the allegations made Against the petitioner, in accordance with the
provisions of the Public Servants (Inquiries) Act of 1850. The substance of the
imputations was drawn up in the form of specific charges and Sir Arthur Trevor
Harries, an ex-Chief Justice of the Calcutta High Court, was appointed
Commissioner under section 3 of the said Act to conduct the enquiry and report
to the Government, on the result of the same, his opinion on the several
articles of charge formulated against the petitioner. The order of the Central
Government directing the enquiry is dated the 21st February, 1953. The charges
were drawn up under six heads with various sub-beads under each one of them.
The first charge alleged that the petitioner was guilty of misbehaviour
inasmuch as he showed undue favour to Messrs. Millars Timber and Trading
Company Limited in the matter of issue of import and export licences, by
abusing his position as a public servant in the discharge of his duties, that
is, by accepting illegal gratification or valuable things for import and export
licences recommended or to be recommended by him. The second charge was to the
effect that the petitioner accepted or obtained valuable things for himself and
other members of his family, without paying for them, on different dates from
Messrs. Millars Timber and Trading Company Limited for recommending their
applications for import licences and export permits. The fourth and the fifth
charges 149 1152 were similar in nature to charges 1 and 2 except that they
related to the Petitioners dealings with another firm known as Sunder Das Saw
The enquiry proceeded in the manner laid down
in ,the Public Servants (Inquiries) Act. The charges were read out to the
petitioner and his plea of "not guilty" was formally recorded.
Evidence was adduced both by the prosecute or and the defence and the witnesses
on both sides were examined on oath and cross. examined and re-examined in the
usual manner. The Commissioner found, on a consideration of the evidence, that
four of the charges under various sub-heads were proved against the petitioner
and submitted a report to that effect to the Government on the 4th of May,
1953. By a letter dated the 15th of May, 1953, the Government informed the
-petitioner that, on careful consideration of the report, the President
accepted the opinion of the Commissioner and in view of the findings on the
several charges arrived at by the latter was provisionally of opinion that the
petitioner should be dismissed.
Opportunity was given to the petitioner by
this letter in terms of article 311(2) of the Constitution to show cause
against the action proposed to be taken in regard to him and it was stated that
any representation, which he might desire to make, would be taken into
consideration before the final order was passed. The petitioner, it seems, did
make a representation which was considered by the Government and after
consultation with the Union Public Service Commission the President finally
decided to impose the penalty of dismissal upon the petitioner. The order of
dismissal was passed on the 17th of September, 1953. On the 23rd February,
1954, the police submitted a charge-sheet against the petitioner before the
Special Judge, Sessions Court, Delhi, charging him with offences under sections
161/165 of the Indian Penal Code and section 5(2) of the Prevention of
Corruption Act and upon that, summons were issued by the learned Judge
directing the petitioner to appear be-fore his court on the 11th of March.
1954. , It is the legality of this proceeding that has been challenged 1153
before us in this writ petition. The petitioner's case, in substance, is that
the proceedings that have been started against him are without jurisdiction
inasmuch as they amount to fresh prosecution for offences for which he has been
prosecuted and punished already and this comes within the prohibition of
article 20(2) of the Constitution. The sole.-point for our consideration is,
whether in the events that have happened in this case, there has been a
violation of the fundamental right of the petitioner under article 20(2) of the
Constitution which would justify the issue of a writ for enforcement of the same?
The scope and meaning of the guarantee implied in. article 20(2) of the
Constitution has been indicated with sufficient fullness in the pronouncement
of this court in Maqbool Hussain Y. The State of Bombay(1). . The roots of the
principle, which this clause enacts, are to be found in the well established
rule of English law which finds expression in the maxim "Nemo debet bis
vexari"-a man must not be put twice in peril for the same offence. If a
man is indicted again for the same offence in an English court, he can plead,
as a complete defence, his former acquittal or conviction, or as it is
technically expressed, take the plea of "autrefois acquit" or
"autrefois convict". The corresponding provision in the Federal
Constitution of the U.S.A. is contained in the Fifth Amendment, which provides
inter alia: "Nor shall any person be subjected for the same offence to be
put twice in jeopardy of life and limb". This principle has been
recognised and adopted by the Indian Legislature and is embodied in the provisions
of section 26 of the General Clauses Act and section 403 of the Criminal
Although these were the materials which
formed the background of the guarantee of the fundamental right given in
article 20(2) of the Constitution, the ambit and contents of the guarantee, as
this court pointed out in the case referred to above, are much narrower than
those of the common law rule in England or the doctrine of "double
jeopardy" in the American (1)  S.C.R- 703.
1154 Constitution. Article,20(2)of our
Constitution it is to be noted, does not contain the principle of
"autrefois acquit" at all. It seems that our Constitution makers did
not think it necessary to raise one part of the common law rule to the level of
a fundamental right and thus make it immune from legislative interference. This
has been left to be regulated by the general law of the land. In order to
enable a citizen to invoke the protection of clause (2) of article 20 of the
Constitution, there must have been both prosecution and punishment in respect
of the same offence.
The words prosecuted and punished" are
to be taken not district butively so as to mean prosecuted or punished.
Both the factors must co-exist in order that
the operation of the clause may be attracted. The position is also different
under the American Constitution. There the prohibition is not against a second
punishment but against the peril in which a person may be placed by reason of a
valid indictment being presented against him, before a competent court, followed
by proper arraignment and plea and a lawful impanelling of the jury. It is not
necessary to have a verdict at all(1).
It has also been held by this court in
Maqbool Hussain's case(2) that the language of article 20 and the words
actually used in it afford a clear indication that the proceedings in
connection with the prosecution and punishment of a person must be in the
nature of a criminal proceeding, before a court of law or judicial tribunal,
and not before a tribunal which entertains a departmental or an administrative
enquiry even though set up by a statute, but which is not required by law to
try a matter judicially and on legal evidence. In that case the proceedings
were taken under the Sea Customs Act before a Customs authority who ordered confiscation
of goods. It was held that such proceedings were not "Prosecution",
nor the order of confiscation a "punishment" within the meaning of
article 20(2) inasmuch as the Customs authority was not a court or a judicial
tribunal and merely exercised administrative powers vested in him for revenue
(1) Vide Wills on Constitutional Law, p. 528.
(2)  S.C.R.- 703.
1155 The facts of this case are no doubt
different and the point that requires determination is, whether the petitioner
can be said to have, satisfied all the conditions that are necessary to enable
him to claim the protection of article 20(2) The charges, upon which the
petitioner is being prosecuted now, are charges under sections 161 and 165 of
the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. We
will assume for our present purpose that the allegations upon which these
charges are based are substantially the same which formed the subject matter of
enquiry under the Public Servants (Inquiries) Act of 1850.
The question narrows down to this : whether
the petitioner had already been (1) prosecuted and (2) punished for these
offences ? Mr. Basu, appearing on behalf of the petitioner, contends that his
client was, in fact, prosecuted for these identical offences before the
Commissioner appointed under Act XXXVII.
of 1850. This, it is argued, was not a mere
departmental enquiry of the type referred to in Maqbool Hussain's case(1). The
Commissioner was a judicial tribunal in the proper sense of the expression. He
had to adjudicate on the charges judicially, on evidence, recorded on oath,
which he was authorised by law to administer. The prosecution was conducted by
a prosecutor appointed under the Act, charges were read out to the accused
person and his plea was taken;
witnesses on both sides were examined on oath
and they were cross-examined and re-examined. The Commissioner had all the
powers of a court; he could summon witnesses, compel production of relevant
documents and punish people for contempt. At the close of the enquiry, the
Commissioner did record his finding against the petitioner on some of the
charges. He had undoubtedly no power to impose any punishment and had only to
forward his report to the Government. Under section 22 of the Act, however, the
Government was entitled to pass such orders within its authority, as it
considered proper and in exercise of this authority the President did impose
upon the petitioner the penalty of dismissal.
(1)  S.C. R. 7o3.
1156 It is immaterial, it is argued, for the
purpose of article 20(2) of the constitution that the -prosecution was before
one authority and punishment was inflicted by another. The petitioner was both
prosecuted and punished and he is sought to be prosecuted on the same chages
over again. This constitutes, according to the learned counsel, a clear
violation of the guarantee implied in article 20(2) of the constitution. The
questions raised are undoubtedly of some importance and require to be carefully
It is true that the Commissioner appointed to
make an enquiry under Act XXXVII of 1850 is invested with some of the powers of
a court, particularly in the matter of summoning witnesses and compelling the
production of documents and the report, which he has to make has to be made on
legal evidence adduced under sanction of oath and tested by cross-examination.
But from these facts alone the conclusion does not necessarily follow that an
enquiry made and concluded under Act XXXVII of 1850 amounts to prosecution and
punishment for an offence as contemplated.
by article 20(2) of the Constitution. In
order to arrive at a proper decision on this point, it is necessary to examine
the entire background-of the provisions relating to enquiry into the conduct of
public servants and to ascertain the exact scope and purpose of the enquiry as
is contemplated by Act XXXVII of 1850 and the ultimate result that flows from
It is a well established principle of English
law that, except where it is otherwise provided by a statute, all public
officers and servants of the Crown hold their appointments at the pleasure of
the Crown. Their services can be terminated without assigning any reason and
even if any public servant considers that he has been unjustly dismissed, his
remedy is not by way of a law suit but by an appeal of an official or political
character(1). This principle of law was applied in lndia ever since the advent
of British rule in this country and the servants in the employ, of the East
India Company also came within the purview of this (1) Vide Shenton v. Smith
[1895) A.C. 229.
1157 rule. It is to be remembered that it was
during the period of the East India Company that the Public Servants (Inquiries)
Act was passed in 1850. The object of the Act, as stated in the preamble, was
to regulate enquiry into the behaviour of public servants, not removal from
service without the sanction of the Government. The enquiry was quite optional
with the Government and did not affect in any way the powers of the Government
to dismiss its servants at pleasure and this was expressly provided by section
25 of the Act, the wording of which is as follows:
" Nothing in this Act shall be construed
to affect the authority of the Government to. suspending or removing any public
servant for any cause without an enquiry under the Act. " After assumption
of the Government of India by the Crown, this rule of English common law
continued unaltered till 1919 when section 96B was introduced by the amended
Government of India Act of that year. Sub-section (1) of section 96B of the
Government- of India Act, 1919, runs as follows:
" Subject to the provisions of this Act
and of rules made there under, every person in the civil service of the Crown
in India holds office during His Majesty's pleasure and may be employed in any
manner required by a proper authority within the scope of his duty, but no
person in that service may be dismissed by any authority subordinate to that by
which he was appointed ....................." Thus one restriction imposed
by this section upon the unfettered right of the Government to dismiss its
servants at its pleasure, was that no servant could be dismissed by any
authority subordinate to that by which he was appointed.
The section by its opening words also makes
the exercise of the power subject to the rules made under the Act and it was in
pursuance of the provision of section 96-B(2) that the Civil Service
(Classification, Control and Appeal) Rules were framed which with the later
amendments are in force even now. Part XII of these rules deal with Conduct and
]Discipline of Civil Servants and rule 49 of this part lays down that the
different penalties provided, 1l58 by the different clauses of the rule may,
for good and sufficient reasons, be imposed upon members of the services
comprised in clauses (1) to (5) in rule 14. These penalties include, amongst
others, censure, withholding of increment, dismissal, reduction in rank and
removal. 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.
These rules have no statutory force and it
was held by the Privy Council that when an officer was dismissed from service
without complying with the provisions of these rules, he had no right of action
against: the Crown(1). In other words, the rules, which were not incorporated
in a statute, did not impose any legal restriction upon the right of the Crown
to dismiss its servants at pleasure.
The position was altered to some extent in
the Government of India Act, 1935, and in addition to the restriction imposed
by section 96-B(1) of the Government of India Act, 1919, that a civil servant
could not be dismissed by an authority subordinate to that by which he was
appointed, a further statutory provision was made(2), that a civil servant
could not be dismissed or reduced in rank unless the person concerned was given
a reasonable opportunity of showing cause against the action proposed to be
taken against him. Article 311(2) of the present Constitution has further added
the word " removal " after " dismissal " and (1) Vide
Vankata Rao v. The Secretary of State for India, 64 I.A. 55.
(2) Vide section 240(3) Of the Government of
India Act, 1935.
1159 before reduction in rank " and thus
in all the three cases which are covered by rule 55 of the Civil Services
Rules, a civil servant has now a constitutional right to claim a - reasonable
opportunity of showing cause against the action proposed to be taken in regard
As the law stands at present, the only
purpose, for which an enquiry under Act XXXVII of 1850 could be made, is to
help the Government to come to a definite conclusion regarding the misbehaviour
of a public servant and thus enable it to determine provisionary the punishment
which should be imposed upon him prior to giving him a reasonable opportunity
of showing cause, as is required under article 311(2) of the Constitution. An
enquiry under this Act is not at all compulsory and it is quite open to the
Government to adopt any other method if it so chooses. It is a matter of
convenience merely and nothing else. It is against this background that we will
have to examine the material provisions of the Public Servants (Inquiries),Act
of 1850 and see whether from the. nature and result of the enquiry which the
Act contemplates it is at all possible to say that the proceedings taken or
concluded under the Act amount to prosecution and punishment for a criminal
It may be pointed out that the words
"prosecution" and "punishment" have no fixed connotation
and they, are susceptible of both a wider and a narrower meaning; but in
article 20(2) both these words have been used with reference to an "offence"
and the word "offence" has to be taken in the sense in which it is
used in the General Clauses Act as meaning I an act or omission made punishable
by any law for the time being in force." It follows that the prosecution
must be in reference to, the law which creates the offence and the punishment
must also be in accordance with what that law prescribed The acts alleged to
have been committed by, the petitioner in the present case and on the basis of
which the charges have been framed against him do come within the definition of
"offences" described in sections 161 and 165 of the Indian Penal Code
and 150 1160 section 5(2) of the Prevention of Corruption Act. The Public
Servants (Inquiries) Act does not itself create any offence nor does it provide
any, punishment for it. Rule 49 of the Civil Services Rules mentioned above
merely speaks of imposing certain penalties upon public servants for good and
sufficient reasons. The rule does not mention any particular offence and
obviously can create none. It is to enable the Government to come to the
conclusion as to whether good and sufficient reasons exist, within the meaning
of rule 49 of the Civil Services Rules, for imposing the penalties of removal,
dismissal or reduction in rank upon a public servant that an enquiry may be
directed under Act XXXVII of 1850. A Commissioner appointed under this Act has
no duty to investigate any offence which is punishable under the Indian Penal.
Code or the Prevention of Corruption Act and he has absolutely no jurisdiction
to do so. The subject-matter of investigation by him is the truth or otherwise
of the imputation of misbehaviour made against a public servant and it is only
as instances of misbehaviour that the several articles of charge are
investigated, upon which disciplinary action might be taken by the Government
if it so chooses. The mere fact that the word-"prosecution" has been
used, would not make the proceeding before the Commissioner one for prosecution
of an offence. As the Commissioner has to form his opinion upon legal evidence,
he has been given the power to summon witnesses, administer oath to then and
also to compel production of relevant documents. These, may be some of the
trappings of a judicial tribunal, but they cannot make the proceeding any-
thing more than a mere fact finding enquiry. This is concluisively established
by the provisions of section 21 and 22 of the Act. At the close of the enquiry,
the Commissioner has to submit a report to the Government regarding his finding
on each one of the charges made: This is a mere expression of opinion and it
lacks both finality and authoritativeness which are ,he essential tests of a
judicial pronouncement. The )pinion is not even binding on the Government Under
section 22 of the Act, the Government can, after 1161 receipt of the report,
call upon the Commissioner to take, further evidence or give further
explanation of his opinion. When Special Commissioners are appointed, their
report could be referred to the court or other authority to which the officer
concerned is subordinate for further advice and after taking -the opinion of
the different authorities and persons, the Government has to decide finally
what action it should take.
Then again neither section 21 nor section 22
of the Act says anything about punishment. There is no to express any power in
the Commissioner even opinion about punishment and section 22 only contemplates
such order as the Government can pass in its capacity as employer in respect to
servants employed by it. As has been said already, an order of dismissal of a
servant cannot be regarded as a punishment for an offence punishable under
particular sections of the Indian Penal Code or of the Prevention of Corruption
Act. A somewhat analogous case would be that of a member of the Bar whose name
is struck off the rolls on grounds of professional misconduct, in exercise of
disciplinary jurisdiction by the proper authority. The professional misconduct
might amount to a criminal offence, but if we are to accept the petitioner's
contention as correct, the man cannot be prosecuted for it, even though the
authority inflicting the penalty of removal was not a competent court to
investigate any criminal charge nor was the punishment imposed in exercise of disciplinary
jurisdiction a punishment for an offence.
In our opinion, therefore, in an enquiry
under the Public Servants (Inquiries) Act of 1850, there is neither any
question of investigating an offence in the sense of an act or omission
punishable by any law for the time being in force, nor is there any question of
imposing punishment prescribed by the law which makes that act or omission an
offence. The learned Attorney General raised a point before us that the test of
the guarantee under article 20(2) is whether the person has been tried and
punished, not for the same act, but 1162 for the same offence and his contention
is that the offences here are different, though they may arise -out of the same
acts. In the view that we have taken this question does not arise for
consideration at all. It is also not necessary to express any opinion on the
question raised by the learned counsel for the petitioner as to whether for the
purpose of attracting the operation of article 20(2) the punishment must be
imposed by the same authority before which the prosecution was conducted. The
result is that, in our opinion, the petition fails and in dismissed.
APPENDIX PROCEEDINGS AT THE SITTING OF THE
SUPREME COURT ON NOVEMBER 5,1954.
MEHR CHAND MAHAJAN C. J., BIJN KUMAR.
MUKHERJEA, S. R. DAS, VIVIAN BOSE N. H. BHAGWATI, B. JAGANNADHADAS, T. L.
VEMNKATARAMA AYYAR, JJ.
MEHR CHAND MAHAJAN C. J.-We are meeting here
this morning on a very sad occasion to mourn the death of our brother, Mr.
Justice Ghulam Hasan, who suddenly collapsed this morning at about 1 A.m.
During my absence from Delhi to Patiala, where I had gone to visit the High
Court of Pepsu, he was taken ill and was absent from Court on Monday last.
On my- return I made enquiries from him and
he told me that he had slight congestion in the lungs but that he was feeling
much better and would in all likelihood attend Court on Friday. I saw him
myself on Wednesday evening. He was quite cheerful and looked well, and he told
me that he was feeling much better and would in all likelihood attend Court on
Friday, failing that on Monday. On Thursday morning his condition had much
improved, but late in the evening he felt uncomfortable and was removed to
hospital,, where he suddenly collapsed. This is the short story of the
termination of a successful career on the Bench and at the Bar of a very
devoted and patriotic citizen of India.
Shri Ghulam Hasan was born on the 3rd July,
1891. After a distinguished University career and an equally 1164 distinguished
career at the Bar, he was raised to the Bench of the Oudh Chief Court in 1940
and became its Chief Judge in 1946. He was appointed Senior Judge of the
Allahabad High Court in 1948 on the amalgamation of the two High Courts in the
United Provinces. On retirement from the High Court, he was appointed a member
of the Labour Appellate Tribunal and on the 8th September, 1952, he became a
Judge of this Court. Prior to his appointment as a Judge, he was a Member of
the U. P. Legislative Assembly for two years.
He war, also Chairman of the Executive
Committee of the Red Cross and St. John Ambulance Association, U. P. Branch,
since 1942. He received the honour of Knighthood of the Order of St. John in
1947 in recognition of his humanitarian services. He was interested in
educational activities and was a member of the Court of the Aligarh University
and a member of the Executive Committee of that University. He had varied
social and cultural interests which are quite well known and it is hardly
necessary to refer to them.
Both as a Member of the Bar and the Bench,
Shri Ghulam Hasan distinguished himself by his vast learning, his sense of
detachment and high judicial integrity. He was always courteous and patient in
his relations with the Bar, as in his relations with his colleagues. If I may
say so, courtesy was writ large on his face. His full grasp of facts, his
thorough knowledge of law and his quick perception of the real points in a case
were of great assistance to us in dealing with the many complicated questions
that arose for determination in this Court. He had a singularly equable and
gentle temperament. His simple and unaffected manner attracted friends in every
sphere and he will be very much missed not only by me and his colleagues in
this Court but also in the social life of this city, which would be distinctly
poorer for his loss.
We have lost an esteemed colleague and a
learned, just and upright Judge, and the country has lost a patriotic and great
citizen. He leaves behind his widow, a son, and a daughter. We all mourn his
loss with the members of his family and offer condolence to all of them, 1165 I
am sure gentlemen of the Bar will desire to associate themselves with the Bench
in conveying an expression of heart-felt sympathy and condolence to the
May his soul rest in peace.
The Court will remain closed today as a mark
of respect to the deceased.
M.C. SETALVAD, ATTORNEY-GENERAL FOR
INDIA.--My Lords, the Bar respectfully associates itself with deep regret in
your Lordships expression of grief and sympathy. I recall how about three years
ago this Court assembled to mourn the death of its first Chief Justice. The
hand of fate has smitten with equal suddenness on this occasion.
It is a little over two years ago that his
Lordship became a member of your Lordship Court. His affable personality, his
genial and his uniform courtesy made a deep impression on all those who came
into contact with him. Members of the Bar will never forget the keen practical
sense which he brought to bear on all questions that came before him, the
patience with which he heard them, and the invariable kindness he showed to
The Bar tenders its deep and heart-felt
sympathy to those near and dear to him in their great, sudden and irreparable
END OF VOL. V.