Jagannath Prasad Sharma Vs. State of
Uttar Pradesh & Ors [1961] INSC 80 (6 March 1961)
SHAH, J.C.
DAS, S.K.
HIDAYATULLAH, M.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1245 1962 SCR (1) 151
CITATOR INFO :
R 1963 SC 779 (8) F 1965 SC1103 (15)
ACT:
Public
Servant-Disciplinary-Proceedings-Procedure-Two sets of Rules
applicable-Selection of one if discriminatoryGovernor's Power to dismiss police
officer U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947U.P.
Police Regulations-Police Act, 1861 (V of 1861), s. 7constitution of India,
Art. 14.
HEADNOTE:
There were certain charges of immorality,
corruption and gross dereliction of duty against the appellant who was a police
officer. After an enquiry, the Governor of U. P. referred the case under s. 4
Of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, to
a Tribunal. The Tribunal recommended on February 4, 1950, that the appellant be
dismissed from service. The Governor then served a notice on the appellant to
show cause why he should not be dismissed from service and after considering
the explanation submitted by him dismissed him with effect from December 5,
1950. The appellant challenged the order of dismissal, inter alia, on the
grounds: (i) that the Governor had no power under s. 7 of the Police Act and
the U. P. Police Regulations framed there under to dismiss a police officer and
(ii) that the enquiry held by the Tribunal violated 152 Art. 14 Of the
Constitution as of the two parallel procedures available under the Tribunal
Rules and under the U. P. Police Regulations, the mode prejudicial to the
appellant under the Tribunal Rules was adopted.
Held (per Das, Hidayatullah, Shah and
Ayyangar, JJ.) that the enquiry by the Tribunal and the order of dismissal
passed by the Governor were legal and valid.
Under para. 479(a) of the U. P. Police
Regulations, framed under S. 7 Of the Police Act, the Governor bad the power to
dismiss a police officer. Under the Tribunal Rules also, which were framed in
exercise of the various powers vested in the Governor including the power under
S. 7 Of the Police Act, the Governor was authorised to dismiss a police
officer. By virtue of Art. 313 Of the Constitution these provisions remained in
operation even after the coming into force of the Constitution. The authority
vested in the Inspector-General of Police and his subordinates by S. 7 of the
Police Act, was not exclusive; it was controlled by the Government of India
Act, 1935, and the Constitution which made the tenure of all civil servants of
a province or state during the pleasure of the Governor.
The procedure adopted did not violate Art. 14
Of the Constitution. Though at the time when proceedings were started against
the appellant two distinct procedures for holding the enquiry were open for
selection by the authorities, the order by the Governor referring the case
under the Tribunal Rules having been passed before the Constitution, Art. 14
could have no application to it even if it was discriminatory. The procedure
ire-scribed in the Police Regulations is substantially the same as the
procedure prescribed by the Tribunal Rules, and by continuing the enquiry after
the Constitution under the Tribunal Rules and not under the Police Regulations,
a more onerous procedure prejudicial to the appellant was not adopted. The fact
that an order made by a police authority under the Police Regulations is made
appealable whereas an-order passed by the Governor under the Tribunal Rules is
not made appealable does not amount to discrimination within themeaning of Art.
14. The Tribunal Rules provide for the giving of reasonable opportunity to a
public servant in ill its aspects, viz., opportunity to deny his guilt,
opportunity to defend himself and opportunity ,to make his representation
against the proposed punishment. The mere existence of two sets of parallel
procedures is not discriminatory unless it was shown that one set is more
onerous than the other.
Syed Qasim Rozvi v. The State of Hyderabad
[1953] S.C.R. 589 and Lackhmandas Kewalram. Abuja v. The State of Bombay,
[1952] S.C.R. 710, applied.
Khem Chand v. The Union of India and others,
[1954] S.C. R. 1080 and Sardar Kapur Singh V: Union of India, (1960) 2 S.C. R.
569, referred to.
153 State Of Orissa v. Dhirendranath Das,
A.I.R. 1961 S.C. 1715, distinguished.
Per Das Gupta, J.-The U.P., Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947, are hit by Art. 14 Of the
Constitution. The absence of the right of appeal under the Tribunal Rules while
a right of appeal is given to a police officer under the Police Regulations,
results in unequal treatment in a substantial matter between police officers
proceeded against under the two procedures.
Further, there is no principle. to guide the
Government in selecting which of the two procedures is to be applied in a
particular case.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 490 of 1957.
Appeal from the judgment and decree dated
March 22,1954, of the Allahabad High Court in Civil Misc. Writ No. 7854 of
1951.
G....S. Pathak, S. N. Andley, J. B.
Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
C....B. Agarwala, G. C Mathur and C. P. Lal,
for respondents Nos. 1 and 3.
1961. March 6. The Judgment of S. K. Das, M.
Hidayatullah, J. C. Shah and N. Rajagopala Ayyangar, JJ. was delivered by J. C.
Shah, J. K. C. Das Gupta, J. delivered a separate, Judgment.
SHAH, J.-In 1981, the appellant was admitted
to the police force of the United Provinces and was appointed a Sub Inspector of
Police. He was later promoted to the rank of Inspector, and in 1946 was
transferred to the Anticorruption department. In 1947, he was appointed, while
retaining his substantive rank of Inspector, to the officiating rank of Deputy
Superintendent of Police.
Shortly thereafter, complaints were received
by the Chief Minister and Inspector-General of Police' U. P. charging the
appellant with immorality, corruption and gross dereliction of duty. In a
preliminary confidential enquiry, the Inspector-General of Police came to the
conclusion that "a prima facie case" was made out against the 20 154
appellant. He then directed that a formal enquiry be held against the appellant
and passed orders reverting the appellant to his substantive rank of Inspector
and placing him under suspension. An enquiry was held into the conduct of the
appellant by the Superintendent of Police, Anticorruption department. The
report of the Superintendent of Police was forwarded to the Government of U.
P., and the Governor acting under r. 4 of the Uttar Pradesh Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947-hereinafter called the
Tribunal Rules-referred the case for enquiry to a Tribunal appointed under r. 3
of the Tribunal Rules on charges of corruption, personal immorality and failure
to discharge duties properly. The Tribunal framed three charges against the
appellant, and after a detailed survey of the evidence recommended on February
4, 1950, that the appellant be dismissed from service. The Governor then served
a notice requiring the appellant to show cause why he should not be dismissed
from service and after considering the explanation submitted by the appellant,
the Governor ordered that the appellant be dismissed with effect from December
5, 1950. The appellant challenged this order by a petition instituted in the
High Court of Judicature at Allahabad under Art. 226 of the Constitution for a
writ of certiorari quashing the proceedings of the Tribunal and for a writ of
mandamus directing the State of Uttar Pradesh to hold an enquiry under s. 55 of
the Civil Services (Classification, Control and Appeal) Rules.
In support the order dismissing the appellant
from High Court dismissing his petition, the appellant has raised three
contentions:
1....that the order dismissing the appellant
from the police force was unauthorised, because the Governor had no power under
s. 7 of the Police Act and the regulations framed there under to pass that
order;
2....that even if the Governor was invested
with power to dismiss a police officer, out of two alternative modes of
enquiry, a mode prejudicial to the appellant having been adopted the
proceedings of the Tribunal which enquired into the charges against him 155
were void, as the equal protection clause of the Constitution was violated; and
3....that the proceedings of the Tribunal were vitiated because of patent
irregularities which resulted in an erroneous decision as to the guilt of the
appellant.
To appreciate the first two contentions, it
is necessary briefly to set out the relevant provisions of the laws procedural
and substantive in force, having a bearing on the tenure of service of members
of the police force in the State of Uttar Pradesh.
The appellant was admitted to the police
force constituted under Act V of 1861. By s. 3 of that Act, superintendence
throughout a general police district vests in and is exercised by the State
Government to which such district is subordinate and except as authorised by
the Act, no person, officer or court may be empowered by the State Government
to supersede or control any police functionary. By s. 4, the administration of
the police throughout a general police district is vested in the
Inspector-General of Police. By s. 7, it is provided that subject to the
provisions of Art.
311 of the Constitution and to such rules as
the State Government may from time to time make under the Act, the
Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General and
District Superintendents of Police may at any time dismiss, suspend or reduce
any police officer of the subordinate rank whom they shall think remiss or
negligent in the discharge of his duty, or unfit for the same, or may award any
one or more of the punishments (set out therein) to any police-officer of the
subordinate rank who discharges his duty in a careless or negligent manner or
who by any act of his own renders himself unfit for the discharge thereof.
Section 46 sub-s. (2) authorises the State
Government to make rules for giving effect to the provisions of the Act, and
also to amend, add to or cancel the rules framed. The Government of Uttar
Pradesh has framed rules called the Police Regulations under the Indian Police
Act. Chapter 32 containing Regulations 477 to 507 deals with departmental
punishment and 156 criminal prosecution of police officers and Ch. 33 containing
Regulations 508 to 516 deals with appeals, revisions, petitions etc. By
Regulation 477, it is provided that no officer appointed under s. 2 of the
Police Act shall be punished by executive order otherwise than in the manner
provided in the chapter. Regulation 478A provides that the punishment of
dismissal or removal from the force or reduction as defined in Regulation 482
may be awarded only after departmental proceedings. By Regulation 479 cl. (a),
"full power" is reserved to the Governor to punish all police
officers, and by cl. (b), the Inspector-General is authorised to punish
Inspectors and ill police officers of "lower ranks". Regulation 489
provides for the departmental trials of police officers and Regulation 490
provides that the departmental trials of police officers must be conducted in
accordance with the rules set out therein. Regulation 490 in its various
clauses makes provisions about oral and documentary evidence, framing of
charges, explanation of the delinquent police officer, recording of statement
of defence witnesses, recording of findings by the Superintendent of Police and
the making of a report by the enquiry officer if he is of the view that the
delinquent Police officer should be dismissed or removed from the force. Clause
(9) provides that the police officer may not be represented by counsel in any
proceeding instituted against him under the rules. By Regulation 508, every
police officer against whom an order of dismissal or removal is passed is
entitled to prefer one appeal against an order of dismissal from the police
force to the authorities prescribed in that behalf, but against the order of
the Governor in exercise of authority reserved under Regulation 479 cl. (a), no
appeal is provided.
By s. 96B of the Government of India Act,,
1915, the tenure of all civil officers including police officers was at the
pleasure of the Sovereign. In exercise of the powers conferred by sub.s. (2) of
s. 96B, classification rules were framed by the local Governments. In the
Government of India Act, 1935, ch. 2 of Part X dealt with civil services, their
tenure, recruitment and 157 conditions of service. The section corresponding to
s. 96B of the Government of India Act, 1915, in the later Act was s. 240(1) and
there under all members of the civil service held office during the pleasure of
the Sovereign. By the Government of India Act, 1935, to every civil servant a
two-fold protection was guaranteed by cls. (2) and (3) of s. 240(1) that he
shall not be dismissed from service by any authority sub. ordinate to that by
which he was appointed and that he shall not be dismissed or reduced in rank
until be has been given a reasonable opportunity of showing cause against the
action proposed to be taken in regard to him.
But these provisions did not apply to police
officers for whom a special provision was enacted in s. 243. That section
provided:
"Notwithstanding anything in the
foregoing provisions of this chapter, the conditions of service of the subordinate
ranks of the various police forces in India shall be such as may be determined
by or under the Act relating to those forces respectively." The conditions
of service of the police force of the subordinate ranks were under the
Government of India Act, 1935 therefore only such as were prescribed by rules
framed under s. 7 and s. 46(2) of the Police Act. By the Constitution of India,
the distinction between police officers and other civil servants in the matter
of protection by constitutional guarantees is abolished and as from January 26,
1950, the recruitment and conditions of service of all persons serving the
Union or the State are now governed by Art. 309 and their tenure by Art. 310 of
the Constitution. By Art. 311, the protection granted under s.
240 cls. (2) and (3) of the Government of
India Act is extended to members of the police force as well. By Art.
309, the conditions of service of public
servants are made subject to the provisions of the Constitution and the Acts of
the appropriate Legislature. By Art. 310, except as expressly provided by the
Constitution, (i.e., except in cases where there is an express provision for
dismissal of certain public servants e.g., Judges of the Supreme Court and of
the High Courts, Comptroller and Auditor-General of India, Chief Election
Commissioner) 158 all civil servants who hold office under the Union ,of India
hold office during the pleasure of the 'President and all civil servants who
hold office under the State hold it during the pleasure of the Governor. By
virtue of Art. 313 of the Constitution, until other provision is made, all laws
in force immediately be. fore the Constitution and applicable to any public
service which continues to exist under the Union or a State shall continue in
force so far as consistent with the Constitution: the power of the police
functionaries to dismiss police officers is therefore preserved.
On November 4, 1947, the Governor of U. P. in
exercise of, the powers conferred inter alia by s. 7 of the Police Act,
published the Tribunal Rules. By r. 1 el. (3), these rules apply "to all
Government servants under the rule making control of the Governor" and are
applicable to any acts, omissions or conduct arising before the date of
commencement of the rules as they are applicable to those arising after that
date. Clause (e) of r. 2 defines "corruption", el. (d) defines
"failure to discharge duties properly" and el. (e) defines "
personal immorality". Rule 4 authorises the Governor to refer to a Tribunal
constituted under r. 3, cases relating to an individual Government servant or
class of Government servant or servants in a particular area only in respect of
matters involving (a) corruption, (b) failure to discharge duties properly. (e)
irremediable general inefficiency in a public servant of more than ten years'
standing, and (d) personal immorality. By cl. (2), the Governor is also
authorised in respect of a gazetted Government servant on his own request to
refer his case to the Tribunal in respect of matters referred to in sub.r. (1).
By r. 7, the proceedings of the Tribunal are to be conducted in camera and
neither the prosecution nor the defense has the right to be represented by
counsel. Rule 8 prescribes the procedure to be followed by the Tribunal and r.
9 deals with the record to be maintained by the Tribunal.
Rule 10 states that the Governor shall not be
bound to consult the Public Service Commission on the Tribunal's
recommendations and shall paw an order of punishment in the terms recommended
by the Tribunal, provided "the Governor may for 159 sufficient reasons,
award a lesser punishment". Rule 1 2 provides that nothing in the rules
shall be deemed to affect the conduct of disciplinary proceedings 'in' oases
other than those specifically covered by the provisions of the Tribunal Rules.
Rule 13 authorises the Governor to delegate the power to refer cases to
gazetted officers, in charge of districts and to pass an order of punishment
under r. 10 to heads of departments.
Enquiry against the appellant, though
commenced before the Constitution was concluded after the Constitution, and the
order dismissing him from the police force was passed in December, 1950. Under
Police Regulation 479(a), the Governor had the power to dismiss a police
officer. The Tribunal Rules were framed in exercise of various powers vested in
the Governor including the power under s. 7 of the Police Act, and by those
rules, the Governor was authorised to pass appropriate orders concerning police
officers. By virtue of Art. 313, the Police Regulations as well as the Tribunal
Rules in so far as they were not inconsistent with the provisions of the
Constitution remained in operation after the Constitution. The authority vested
in the Inspector-General of Police and his subordinates by s. 7 of the Police Act
was not exclusive. It was controlled by the Government of India Act, 1935, and
the Constitution which made the tenure of all civil servants of a Province
during the pleasure of the Governor of that Province. The plea that the
Governor had no power to dismiss the appellant from service and such power
could only be exercised by the Inspector-General of Police and the officers
named in s.7 of the police Act is therefore without substance.
But it is urged that the enquiry held by the
Tribunal against the appellant and the order consequent upon that enquiry
deprived the appellant of the equal protection of the laws and were therefore
void as infringing Art. 14 of the Constitution. It is true that when
proceedings were started against the appellant for an enquiry for his alleged
misdemeanors, one of two distinct procedures for holding an enquiry, was open
for selection by the authorities. The police 160 authorities could direct an
enquiry under the Police Regulations under the procedure prescribed by
Regulation 490; it was also open to the Governor to direct an enquiry against
the appellant, and as the charges against him fell within r. 4 of the Tribunal
Rules, the procedure for enquiry was the one prescribed by r. 8 of the Tribunal
Rules.
Relying upon the existence of these two sets
of rules simultaneously governing enquiries against police officers either' of
which could be resorted to at the option of the authorities in respect of
charges set out in r. 4 of the Tribunal Rules, it was urged that in directing an
enquiry against the appellant under the Tribunal Rules, discrimination was
practiced against him, and he was deprived of the guarantee of equal protection
of the laws.
That an enquiry against the appellant could
have been made under the procedure prescribed by Regulation 490 of the Police
Regulations appears to be supported by rr. 1(3), 4 and 12 of the Tribunal
Rules. Rule 1 subr. (3) provides that the Tribunal Rules shall apply to all
Government servants under the rule making control of the Governor, and by r. 4,
the Governor is authorised to refer cases to the Tribunal, but he if; not
obliged to do so. By r. 12, nothing in the Tribunal Rules is to affect the
conduct of disciplinary proceedings in oases other than those specifically
dealt with under the rules.
But the order of the Governor directing an
enquiry against the appellant was passed before the Constitution, and Art.
14 has no retrospective operation: it does
not vitiate transactions even if patently discriminatory which were completed
before the commencement of the Constitution. In Syed Qasim Razvi v. The State
of Hyderabad (1), this court was called upon to decide whether a trial of an
offender commenced before the Constitution under the Special Tribunal
Regulation promulgated by the Military Governor of the Hyderabad State was,
since the Constitution, invalid in view of Art. 14. Mukherjea J. speaking for
the majority of the court observed:
(1) [1953] S.C.R 589 161 is not to obliterate
the entire operation of the inconsistent laws or to wipe them out altogether
from the statute book; for to do so will be to give them retrospective effect
which they do not possess. Such laws must be hold to be valid for all past
transactions and for enforcing rights and liabilities accrued before the advent
of the Constitution. On this principle, the order made by the Mlitary Governor
referring this case to the Special Tribunal cannot be impeached and
consequently the Special Tribunal must be deemed to have taken cognizance of
the case quite properly, and its proceedings up to the date of the coming in of
the Constitution would also have to be regarded as valid." Similarly, Das,
J. in Lachhmandas Kewalram Ahuja v. The State of Bombay (1) in dealing with the
validity of proceeding before a Special Judge holding a trial before the
Constitution observed:
"As the Act was valid in its entirety
before the date of the Constitution, that part of the proceeding before the
Special Judge, which, up to that date, had been regulated by this special
procedure cannot be questioned, however discriminatory it may have been.......
".
Selection by the authorities of one of two
alternative procedures at a time when Art. 14 was not in operation, does not
therefore enable the appellant to contest the validity of the enquiry on the
plea of denial of equal protection of the laws. It was also observed in Syed
Qasim Razvi's case(2) by Mukherjea J. at p. 606:
"In cases of the type (where the trial
commenced before the Constitution) Which we have before us where part of the
trial could not be challenged as bad and the validity of the other 'part
depends on the question as to whether the accused has been deprived of equal
protection in matters of procedure, it is incumbent upon the court to consider,
firstly, whether the discriminatory or unequa l provisions of law could be
separated from the rest and even without them a fair measure of equality in the
matter (2) [1952] S.C.R. 710.
(2) [1953] S.C.R. 585.
162 of procedure could be secured to the
accused.
In the second place, it has got to consider
whether the procedure actually followed did or did not proceed upon the basis
of the discriminatory provisions. In our opinion, a mere threat or possibility
of unequal treatment is not sufficient. If actually the accused has been
discriminated against, then and then only he can complain, not otherwise.
We may mention here that the impossibility of
giving the accused the substance of a trial according to normal procedure at
the subsequent stage may arise not only from the fact that the discriminatory provisions
were not severable from the rest of the Act and the court consequently had no
option to continue any other than the discriminatory procedure;
or it may arise from something done at the
previous stage which though not invalid at that time precludes the adoption of
a different procedure subsequently." The proceedings of the Tribunal prior
to the commencement of the Constitution are therefore not open to challenge
except to the limited extent indicated by Mukherjea J. The question which falls
to be considered is whether the procedure followed by the Tribunal after the
Constitution was discriminatory and operated to the prejudice of the appellant.
Regulation 490 of the Police Regulations sets
out the procedure to be followed in an enquiry by the police functionaries, and
rr. 8 and 9 of the Tribunal Rules set out the procedure to be followed by the
Tribunal. There is no substantial difference between the procedure prescribed
for the two forms of enquiry. The enquiry in its true nature is quasi-judicial.
It is manifest from the very nature of the enquiry that the approach to the
materials placed before the enquiring body should be judicial. It is true that
by Regulation 490, the oral evidence is to be direct, but even under r. 8 of
the Tribunal Rules, the Tribunal is to be guided by rules of equity and natural
justice and is not bound by formal rules of procedure relating to evidence. It
was urged that whereas the Tribunal may admit on record evidence which is
hearsay, the oral 163 evidence under the Police Regulations must be direct
evidence and hearsay is excluded. We do not think that any such distinction was
intended. Even though the Tribunal is not bound by formal rules relating to
procedure and evidence, it cannot rely on evidence which is purely hearsay,
because to do so in' and enquiry of this nature would be contrary to rules of
equity and natural justice.
The provisions for maintaining the record and
calling upon the delinquent public servant to submit his explanation are
substantially the same under Regulation 490 of the Police Regulations and r. 8
of the Tribunal Rules. It is urged that under the Tribunal Rules, there is a
departure in respect of important matters from the Police Regulations which
render the Tribunal Rules prejudicial to the person against whom enquiry is
held under those rules. Firstly it is submitted that there is no right of
appeal under the Tribunal Rules as is given under the Police Regulations;
secondly that the Governor is bound to act
according to the recommendations of the Tribunal and thirdly, that under the
Tribunal Rules, even if the complexity of a case under enquiry justifies
engagement of counsel to assist the person charged, assistance by counsel may
not be permitted at the enquiry. These three variations, it is urged, make the
Tribunal Rules not only discriminatory but prejudicial as well to the person
against whom enquiry is held under these Rules. In our vie,"-, this plea
cannot be sustained. The Tribunal Rules and the Police Regulations in so far as
they deal with enquiries against police officers are promulgated under s. 7 of
the Police Act, and neither the Tribunal Rules nor the Police Regulations
provide an appeal against an order of dismissal or reduction in rank which the
Governor may pass. The fact that an order made by a police authority is made
appealable whereas the order passed by the Governor is not made appealable is
not a ground on which the validity of the Tribunal Rules can be challenged. In
either case, the final order rests with the Governor who has to decide the
matter himself. Equal protection of the laws does not postulate equal treatment
of all persons without 164 distinction: it merely guarantees the application of
the same laws alike and without discrimination to all persons similarly situated.
The power of the Legislature to make a distinction between persons or
transactions based on a real differentia is not taken away by the equal
protection clause. Therefore by providing a right of appeal against the order
of police authorities acting under the Police Regulations imposing penalties
upon a member of the police force, and by providing no such right of appeal
when the order passed is by the Governor, no discrimination inviting the
application of Art. 14 is practiced.
under r. 10 of the Tribunal Rules, the
Governor is enjoined to pass an order of punishment in terms recommended by the
Tribunal, whereas no such obligation is cast upon the police authority who is
competent to dismiss a police officer when an enquiry is held under Regulation
490 of the Police Regulations. To the extent that r. 10 requires the Governor
to accept the recommendation of the Tribunal, the rule may be regarded as
inconsistent with the Constitution, because every police officer holds office
during the pleasure of the Governor, and is entitled under Art. 311(2) to a
reasonable opportunity to show cause to the satisfaction of the Governor
against the action proposed to be taken in regard to him. The partial
invalidity of r. 10 however does not affect the remaining rules: that part of
the rule which requires the Governor to accept the recommendation of the
Tribunal as to the guilt of the public servant concerned is clearly severable.
We may observe that in considering the case of the appellant, the Governor
exercised his independent judgment and passed an order of dismissal and did not
act merely on the recommendation of the Tribunal.
The difference between the two sets of rules
on the matter under consideration does not relate to the procedure of the
enquiring bodies, but to the content of reasonable opportunity guaranteed by
Art. 311 of the Constitution.
The rules relating to appearance of lawyers
at enquiries under the Police Regulations and under the Tribunal Rules are also
not different. Under cl. (9) 165 of Regulation 490 of the Police Regulations,
an accused police officer may not be represented by counsel in any proceeding
instituted under those Regulations,' and by r. 7 of the Tribunal Rules, neither
the prosecution nor the defence have the right to be represented by counsel.
Both the rules deny to the police officer the right to be represented by
counsel.
The procedure provided in the Police
Regulations is substantially the same as the procedure prescribed by the
Tribunal Rules, and by continuing the enquiry after the Constitution under the
Tribunal Rules and not under the Police Regulations, a more onerous procedure
prejudicial to the appellant was not adopted.
The Governor appointed the Tribunal for
enquiry against the appellant before the Constitution, but the order of
dismissal was passed after the Constitution came into force.
The appellant was entitled to the protection
of Art. 311(2) of the Constitution. Since the Constitution was enacted, the
distinction which was made between members of the police force and other civil
servants under ss. 240, 241 and 243 of the Government of India Act has
disappeared and all civil servants including the police officers are entitled
to the protection of Art. 311(2). The content of the guarantee was explained by
this court in Khem Chand v. The Union of India (1). It was observed by "To
summarise: the reasonable opportunity envisaged by the provisions 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 leveled 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 (1) [1958] S.C.R. 1080, 1096.
166 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;".
To a police officer charged with misdemeanor,
opportunity in all the three branches set out in Khemchand's case (1)is
provided under the Tribunal Rules. There is opportunity to the police officer
against whom an enquiry is made to deny his guilt and to establish his
innocence; there is opportunity to defend himself by cross-examination of
witnesses produced against him and by examining himself and other witnesses in
support of his defence, and there is also opportunity to make his
representation as to why the proposed punishment-should not be inflicted. The
discrimination which is prohibited by Art. 4 is treatment in a manner
prejudicial as compared with another person similarly circumstanced by the
adoption of a law, substantive or procedural, different from the one applicable
to that other person. In Sardar Kapur Singh v. The Union of India (1), this
court held that by directing an enquiry against a member of the Indian Civil
Service who was charged with misdemeanor under, the Public Servants (Inquiries)
Act, 1850 and not under r. 55 of the Civil Services (Classification, Control
and Appeal) Rules when there was no substantial difference between the material
provisions, discrimination was not practiced. It was observed (at p.
581):
"Does the holding of an enquiry against
a public servant under the Public Servants (Inquiries) Act, 18,50 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 circumstances an enquiry under r. 55 may be
directed, Art. 14 of the Constitution is infringed." After considering
the-,,special protection given to (1) [1958] S.C.R. 1080. 1096.
(2) [1960] 2 S.C.R. 569.
167 members of the Indian Civil Service and
the essential characterised of the procedure for making enquiries under the
public Servants (Inquiries) Act,1850, it was observed at p.584.
"The primary constitutional guarantee, a
member of the Indian Civil Service is entitled to is one of'. being 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
disorimination 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." In Syed Qasim Razvi's case
(1), it was held that if the substance of the special procedure followed after
the Constitution in an enquiry or trial commenced before the Constitution is
the same as in the case of a trial by the normal procedure, the plea of
discrimination invalidating a trial must fail, Counsel for the appellant in
support of his plea that the enquiry by the Tribunal was vitiated because it
was held under a discriminatory procedure relied judgment of this Bench in the
State of Orissa Dhirendranath Das (2). In that case, a lower Division Assistant
in the Secretariat of the Orissa Government was found guilty of certain
misdemeanor by a Tribunal appointed under rules framed by the Orissa Government
after an enquiry held in that behalf and was ordered to be dismissed from
service. In a petition by the public servant under Art. 226 of the Constitution
praying for a writ declaring illegal the order (1) [1953] S.C.R. 589 (2) A.LR.
1951 S.C. 1715.
168 of dismissal it was held by the Orissa
High Court that ad on the date on which enquiry was directed against the
petitioner-there were two sets of rules in operation, the Tribunal Rules and
the Bihar and Orissa Subordinate Services Discipline and Appeal Rules and it
was open to the Government of Orissa to select either set of rules for enquiry
against any public servant against whom a charge of misdemeanor was made and
that selection of one in, preference to the other set of rules was violative of
the guarantee of Art. 14 of the Constitution. The High Court accordingly declared
the order of dismissal inoperative and further declared that the disciplinary
proceedings be restored to the stage which they had reached when the case was
referred to the Tribunal. Against that order, the State of Orissa preferred an
appeal to this court. The relevant rules were not in that case incorporated in
the paper-book prepared for the hearing nor did counsel for the@ State produce
for our consideration those rules. Counsel also conceded that by the adoption
of the procedure prescribed by the Tribunal Rules in preference to the
procedure in an enquiry under the Service Rules, discrimination would be
practiced because there were substantial differences in the protection to which
the public servants were entitled under the Service Rules and the Tribunal
Rules. The only ground pressed in support of the appeal was that the Service
Rules were not in operation at the time when the enquiry in question was
directed and by directing an enquiry under the Tribunal Rules, discrimination
was not practiced. But this argument raised for the first time questions which
were never investigated and this court declined to allow counsel to raise them.
It was observed in that case:
"If the two sets of rules were in
operation at the material time when the enquiry was directed against the
respondent and by order of the Governor, the enquiry was directed under the
Tribunal Rules which are "more drastic" and prejudicial to the
interest of the respondent, a clear case of discrimination arises and the order
directing enquiry 169 against the respondent and the subsequent proceedings are
liable to be struck down as infringing Art. 14 of the Constitution."
Before us, counsel for the appellants has produced a printed copy of the
Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 published by the
Government of Orissa.
A perusal of these rules may apparently
suggest that subject to certain minor differences, these rules are
substantially the same as the Tribunal Rules framed by, the State of U. P.
We have however not been supplied with a copy
of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935.
The judgment of this court in The State of Orissa v. Dhirendranath Das can have
no application to this case, because in that case, the order of the High Court
was.
assailed on the limited ground that the High
Court erred in assuming that there were two sets of rules simultaneously in
operation, and it was open to the Executive Government to select one or the
other for holding an enquiry against a delinquent public servant. That
contention was negatived and the judgment of the High Court was confirmed.
We do not think that there is any substance
in the plea that discrimination was practiced by continuing the enquiry under
the Tribunal Rules after the Constitution was brought into force.
This appeal is filed with a certificate under
Art. 132 of the Constitution. By' el. (3) of Art. 132 the appellant is entitled
to appeal to this court only on the ground that the High Court has wrongly
decided a substantial question as to the interpretation of the Constitution and
unless this court grants leave to him, on no other. Counsel for the appellant
has challenged the regularity of the proceedings of the Tribunal and we have
heard him to assure ourselves that the proceeding of the Tribunal has not been
vitiated by any serious irregularity, or that the appellant was net deprived of
the protection under Art. 311 of the Constitution. We proceed to consider
briefly the arguments advanced in support of that plea. It was urged 170 in the
first instance that the appellant was not permitted to appear at the enquiry
before the Tribunal by a lawyer whereas the State Government was represented by
a lawyer.
It was averred in paragraph 14 of the
affidavit of the appellant that the case for the prosecutionwas conducted by
Jwala Prasad, Deputy Superintendent of Police and Legal Advisor to the
Anti-corruption Department, and that the Tribunal was told that such a course
would be contrary to the Tribunal Rules and in any case contrary to rules of
equity and natural justice, because he-the appellant-was not permitted to
appear by counsel. In reply, Hari Shankar Sharma, Deputy Superintendent of
Police stated in his affidavit that it was not true that before the Tribunal
prosecution was conducted by Jwala Prasad. Ho also, stated that the Tribunal
had required the presence of Sri Krishna who had made enquiries, but as Sri
Krishna could not remain present, Jwala Prasad attended the sitting of the
.Tribunal only on one day as Deputy Superintendent of Police, C.I.D., but he
did not take any part in the proceedings, and "examination of witnesses
and the cross-examination was all done by the members of the Tribunal" and
the appellant. It does not appear that Jwala Prasad was a practicing lawyer:
he was not in any case permitted to appear as
a lawyer and on the affidavit of Hari Shankar Sharma, it is clear that he did
not take any part in the examination of witnesses or cross-examination. It was
then urged that the explanation submitted by the appellant was not considered
because the Governor felt bound by the recommendations of the Tribunal.
But in para 25 of the affidavit, Hari Shankar
Sharma stated that the explanation of the appellant was submitted to the
Government by the Inspector-General of Police and the Governor duly considered
the explanation and was of opinion that the appellant was unable to clear his
conduct and therefore under r. 10(1) of the Tribunal Rules the Governor ordered
dismissal of the appellant from service after considering the merits of his
defence. It was then urged that the application submitted by the appellant for
summoning witnesses and 171 calling for certain records was not considered and
the appellant had on that account been prejudiced. In para 15 of his affidavit,
the appellant stated that the Tribunal refused to call for certain records and
though he wanted to summon certain defence witnesses, his application in that
behalf was also refused. In answer P to this averment, Hari Shankar Sharma
stated that the appellant had given a long list of defence witnesses and the
Tribunal asked him to select those witnesses whose evidence in the opinion of
the appellant would be relevant and thereupon the appellant " reduced his
list to a much smaller number" and all those.
witnesses were summoned. Then it was urged
that the assessor who is required under the rules to assist the Tribunal not
having remained present at the hearing, the enquiry was vitiated. In paragraph
16 of the affidavit, the appellant has stated that during the enquiry S. N.
Agha the assessor was absent on many days on which the case was heard and the
evidence was recorded. In reply, Hari Shankar Sharma stated that the contents
of paragraph 16 of the affidavit were not correct, that it was true that Agha
could not attend on certain dates "due to unavoidable circumstances",
but the appellant was specifically asked if he had any objection to the
recording of evidence in Agha's absence and the appellant having stated that he
has no objection, the proceedings were continued with his written consent. He
further stated that the assessor was explained of the proceedings held on the
days on which he had remained absent. The averments made in the affidavit of
Hari ShankarSharma were not controverted by the appellant.
On the materials placed on record, there is
no sub. stance in any of the pleas raised by the appellant relating to the
regularity of the proceedings of the Tribunal. It may be pertinent to note that
even though the appellant challenged before the High Court the regularity of
the proceedings of the Tribunal, no argument was, it appears, advanced before
the High Court in support thereof. The judgment of the High Court which is
fairly detailed does not refer to any 172 ground on which the contention was
sought to be sustained.
The appeal fails and is dismissed with costs.
DAS GUPTA, J.I have had the advantage or
reading the judgment prepared by Shah J.; but while I respectfully agree with
the conclusions on all other points, I regret my inability to agree with the
conclusion reached there on the main question in controversy, viz. whether the
Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947
are void as being in contravention of Art. 14 of the Constitution, in so far as
they do not provide for any appeal against a decision by the Governor under
Rule 10.
The facts have been fully stated by my
learned Brother and need not be repeated, especially as the facts in this
particular case do not arise for consideration in the decision of the question
of law, whether Art. 14 is contravened by the above provisions of the Tribunal
Rules.
Under these rules the Governor may refer to
the Tribunal constituted in accordance with rule 3 "cases relating to an
individual government servant or class of government servants or government
servants in a particular area only in respect of matters involving-(a)
corruption; (b) failure to discharge duties properly; (c) irremediable general
inefficiency in a public servant of more than ten year's standing;
and (d) personal immorality." Under cl.
3 of rule 1 these rules apply to all government servants under the rule-making
control of the Governor. It is not disputed that these rules apply to every
member of the police service in Uttar Pradesh and that the Governor may refer
to the Tribunal the cases relating to any individual government servant
belonging to the police department in respect of any of the matters mentioned
'in cl. (1) of Rule 4. It is also not disputed that if the Governor "does
not make any such reference, the case of any such member of the police service
in respect of any of these matters may be inquired into under the Uttar Pradesh
Police Regulations. The co-existence of the provisions of Police Regulations on
173 the question of departmental punishment of police officers with the
Tribunal Rules, thus results in the position that of two members of the police
service holding the same post and rank, one may be proceeded against in respect
of any of the matters mentioned in Rule 4(1) of the Tribunal Rules, under the
Tribunal Rules and another may be proceeded against for the self-same matter
under the Police Regulations. Where the inquiry is held under the Tribunal
Rules, the Tribunal has to make a record of the charges, the explanation, its
own findings and the views of the assessor and where satisfied that punishment
be im. posed, also formulate its recommendations about punishment. Under Rule
10 the Governor will then decide the case and no appeal shall lie against the
order so passed by the Governor.
Where the action is taken under the Police
Regulations procedure, a police officer against whom an order of dismissal,
removal, suspension or reduction is passed has a right of appeal to the
authority prescribed in Regulation 508. The question is whether the existence
of the right of appeal under the Police Regulation Procedure and the absence of
the right, appeal against the decision by the Governor in the Tribunal Rules'
procedure amounts to unequal treatment.
On behalf of the respondent it has been urged
that there is no unequal treatment as in one case it is the order of the
Governor which is made not appealable and in the other case it is the order of
a police functionary which is made appealable. The argument seems to be that
only if in the Police Regulations an order made by the Governor had been made
appealable while under the Tribunal Rules the order made by the Governor was
not appealable there could be any scope for a complaint of unequal treatment.
With great respect to my learned brethren who have taken the contrary view, I
am of the opinion that this argument misses the realities of the position and
is really an attempt to slur over the difficulty. The real Position that
requires examination appears to me to be this: Suppose A and B are two police
officers holding the same rank and post and A is proceeded against under the
174 Tribunal Rules on a charge of corruption while B is proceeded against on a
similar charge of corruption under the Police Regulations procedure. In the
first case if the Tribunal finds A guilty and recommends, say, dismissal; and
the Governor makes an order of dismissal, against this order there is no
appeal. Suppose in B's case also the punishing authority makes an order of
dismissal but against this B has a right of appeal. It is obvious that while in
the latter case B has some chance of the appellate authority taking a different
view either about his guilt or about the quantum of punishment and setting
aside or modifying the order, A has no such chance at all. It will be little
consolation to A that the order in his case has been passed by such an high
authority as the Governor. He can, it seems to me, legitimately complain that
there is a real difference between the way he is treated and B is treated
because of this existence of B's right of appeal against the punishing
authority's order while he has no such right. Unless one assumes that the right
of appeal is only in name, I do not see how one can deny that there is a
legitimate basis for this complaint. I cannot agree that the right of ap. peal
is a right without substance. Whenever one authority sits in appeal over
another authority there is always a chance that the appellate authority may
take a different view of facts or of law and as regards the quantum of punishment
requisite, from the authority whose decision is under appeal. It is this chance
which is denied, if a right of appeal is taken away. I am therefore of opinion
that the absence of the right of appeal under Rule 10 of the Tribunal Rules
while a right of appeal is given to a police officer under the Police
Regulations, results in unequal treatment in a substantial matter, as between a
police officer proceeded against under the Tribunal Rules and an officer who is
proceeded against under the Police Regulations procedure. Nor is it possible to
discover any principle to guide the discretion of the Government to select some
police officers to be proceeded against under the Tribunal Rules while leaving
out other police officers to be proceeded against, in respect 175 of similar
matters, under the Police Regulations procedure.
I have therefore come to the conclusion that
the Tribunal Rules in so far as they provide that no appeal shall lie against
the decision of the Governor is ultra vires the Constitution, being in
contravention of Art. 14 of the Constitution.
As has been noticed by Shah J. a somewhat
similar question fell to be considered by us in Civil Appeal No. 103 of 1959
(State of Orissa v. Dhirendranath Das). Comparing the Disciplinary Proceedings
(Administrative Tribunal) Rules., 1951 of the Orissa Government under which
Dhirendranath Das had been proceeded against and dismissed from service with
the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 this
Court held that inasmuch as there was a right of appeal to the authority
immediately superior to the punishing authority under the Service Rules. while
there is no such appeal against the findings and recommendations of the
Tribunal, the pre-proceedings were substantially different. The court further
pointed out that as inquiries could be directed according to procedures
substantially different at the, discretion of the executive authority
"exercise whereof is not governed by any principle,% having any rational
relation to the purpose to be achieved by the inquiry, the order selecting a
prejudicial procedure, out of the two open for selection, is hit by Art. 14 of
the Constitution." I cannot find anything here that would justify a
revision of the view taken by us in that case.
As in my judgment the U. P. Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947 are hit by Art. 14 of the
Constitution I would allow the appeal and set aside the order of dismissal
passed against the appellant.
By Court.-In view of the majority Judgment of
the Court, the appeal fails and is dismissed with costs.
Appeal dismissed.
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