R. P. Kapur Vs. Pratap Singh Kairon
& Ors [1963] INSC 161 (2 August 1963)
02/08/1963 HIDAYATULLAH, M.
HIDAYATULLAH, M.
DAS, S.K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 295 1964 SCR (4) 224
ACT:
Civil Servant-Enquiry under Public Servants
(Inquiries) Act, 1850-Order of enquiry whether competent when First Information
Report already filed under Code of Criminal Procedure Meaning of
"misbehaviour" in Inquiries Act-Differences in procedure, between
enquiry under Public Servants(Inquiries) Act and All India Se)-vices
(Discipline and Appeal) Rules, 1955 whether violate, Constitution, Art. 14Articles
16 and 20(3)-Order of Government if malafide-Public Servant Inquiries Act,
1850, s. 2-411 India Services (Discipline and Appeal Rules, 1955-Code of
Criminal Procedure, ss. 5, 154-Constitution of India Arts. 14,. 16 and 20(3).
HEADNOTE:
The appellant jointed the Indian Civil
Service in 1938. He continued in the service after the independence of India
and since 1948 has been serving the Government of Punjab. In July, 1959, When
he was serving as Commissioner Ambala Division, he was placed under suspension.
A few months before that, two criminal cases had been instituted against him.
Several other cases were instituted against the appellant and some of his
relations during the year 1960.
The criminal cases which were pending in the
courts. of different Magistrates in the Punjab were transferred to Criminal
Courts subordinate to the Allahabad High Court by the orders of this Court. Two
of those cases had to be dropped by the orders of Additional District
Magistrate, Saharanpur. The cases started on the complaint of Dhingra and
report of Daryo Singh were consigned to record as untraced by the orders of the
Magistrate on May, 25, 1961.
On May 26, 1961, an order was passed in the
name of the Governor of Punjab directing an enquiry against the appellant under
the Public Servants (Inquiries) Act, 1850.
Some of the charges were in respect of the
acts alleged against the appellant in the complaint of Dhingra and the other
charges were in respect of the acts alleged against him in the report of Daryao
Singh. By another order of the same date, the Governor appointed Mr. Justice D.
Falshaw, then a puisne Judge of Punjab High Court, as Commissioner for holding
the enquiry. Notice was duly served on the appellant and he was informed that
the enquiry would begin on August 28, 1961. On July 18, 1961, the appellant
filed a writ petition under Art. 226 of the Constitution praying.
for an order striking down the order of the
Government for making the enquiry against him. The High Court rejected all the
contentions raised by the appellant and dismissed the writ petition. The
appellant came to this Court by special leave.
205 The contention of the appellant before
this Court was that no enquiry could be held under the Inquiries Act in as much
as the First Information Reports had already been lodged under the Code of
Criminal Procedure in respect of the acts mentioned in the articles of charge,
that Section 2 of the Inquiries Act was bad as the word
"misbehaviour" was too vague and the section gave the Government
uncontrolled and uncanalised power to subject Government Servants to enquiry
under the Act, that an enquiry under the Inquiries Act was more drastic and
less advantageous to an officer in the position of appellant than an enquiry
that could he held against an officer in a similar position under the All-India
Services (Discipline and Appeal) Rules, 1955, and thus resulted in infringement
of Article 14 of the Constitution, that the Inquiries Act violated Articles 16
and 20(3) of the Constitution and was therefore invalid and that the Government
had acted mala fide in ordering the enquiry.
Held, that in mostcases, it would be proper
and reasonable for Government to awaitthe result of the police investigation
and where the investigation is followed by an enquiry or trial, the result of
such enquiry or trial, before deciding to take disciplinary action against any
of its Servants. It would be proper and reasonable also, generally, for
Government not to take action against a Government servant when on
investigation by the police it is found that no prima facie case had been made
out. Even though this appears to be a reasonable course which will ordinarily
be followed by Government there is no legal bar to the Government ordering a
departmental enquiry even in a case where a First Information Report under s.
154 having been lodged, an investigation will follow. The use of the words
"otherwise dealt with" in s. 5 of the Code of Criminal Procedure does
not justify a conclusion that enquiries in connection with disciplinary
proceedings on the basis of offences alleged to have been committed by the
Government servant must also be held in accordance with the provisions of the
Code of Criminal Procedure.
The word "misbehaviour" as used in
s. 2 of the Inquiries Act is not vague. "Misbehaviour" by a Government
servant would certainly mean a lapse by him from the proper standard of conduct
in the discharge of his functions as a Government servant. A Government servant
is expected and required to act honestly and not to use his position as a
Government servant for enriching himself or others. Every dishonest act of a
Government servant amounts to "misbehaviour".
It is well settled that where the Government
is invested with authority to direct an enquiry in one of the two alternative
modes and one of the modes is more drastic and less advantageous that the other
an order directing an enquiry under the more drastic and less advantageous mode
will amount to an infringement of Article 14 of the constitution as the more
advantageous and less drastic mode may be applied against another Government
servant similarly circumstanced. However, the procedure and provisions of the
In206 quiries Act are not in substance less advantageous and more drastic than
the All India Services (Discipline and Appeal) Rules, 1955 and hence Article 14
is not violated.
Article 16 guarantees to all citizens
equality of opportunity in matters relating to employment or appointment to any
office under the State. However, that guarantee is no bar to disciplinary
action being taken against a citizen who holds an office under the State. The
fact that the result of such disciplinary action may be that a citizen is
deprived of promotion cannot be held to be a denial of equality of opportunity
relating to employment or appointment. There is also no violation of Article
20(3) of the Constitution. It cannot be said a provision that an accused shall
be required to make his defence amounts to compelling him to be a witness
against himself. Moreover, the accused is not even compelled to make his
defence. If he chooses not to make any defence, he is free to do so.
The Government of the Punjab had not acted
mala fide in orderingan enquiry against the appellant. For holding the enquiry
the Government had appointed a Judge of the High Court as the Commissioner and
it was reasonable -to think that the enquiry would be fair and impartial. The
appellant had also the right to appeal against the finding of the Inquiry
Officer. The concurrence of the Public Service Commission or the Central
Government was also necessary to impose any penalty on the appellant. If the
penalty was imposed by the State Government with the concurrence of the Public
service Commission, the appellant, had a right of appeal to the Central
Government. Hence, even if the Punjab Chief Minister was unfriendly to the
appellant, he could not expect to harm him by having recourse to an enquiry
under the Inquiries Act in preference to a trial in a criminal Court.
Sarder Kapur Singh v. Union of India. [1960]
2 S.C.R. 569 and State of Assam v. Bimal Kumar Pandit, 19641 2 S.C.R. 1,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 75 of 1963.
Appeal by special leave from the judgment and
decree dated August 9, 1961 of the Punjab High Court in Civil Writ No.
954 of 1961.
The appellant appeared in person.
C.K. Daphtary, Solicitor-General for India,
S. M. Sikri, Advocate-General for the State of Punjab, Mohinder Singh Punu,
Deputy Advocate-General for the State of Punjab, R.N.
Sachthey and P.D. Menon for the respondents.
August 2, 1963. The judgment of the Court was
delivered by 207 DAS GUPTA J.-The appellant, R. P. Kapur, was appointed to the
Indian Civil Service almost 25 years ago. He continued in the service after the
independence of India and since 1948 has been serving the Government of Punjab.
On the 18th July 1959, when the appellant was serving as Commissioner, Ambala
Division, he was placed under suspension. A few months before this, two
criminal cases had been instituted against him. The first of these was
instituted on December 10, 1958, by one M.L. Sethi against Kapur and his
mother-inlaw, Kaushalya Devi, on allegations of offences under s. 420 and s.
120B of the Indian Penal Code. The second was instituted on the complaint of
one M.L. Dhingra on allegations of offences under s. 55(2) of the Prevention of
Corruption Act, 1947 and ss. 167, 168, 406, 420 and 465 of the Indian Penal
Code. This complaint was submitted by Dhingra to Sardar Pratap Singh Kairon,
the Chief Minister of Punjab, on February 27, 1959. Action in this case was
taken under the orders of the Chief Minister and a first information report was
recorded on the basis of this complaint at Chandigarh Police Station on March
4, 1959. Several other cases were instituted against the appellant and some of
his relations after this, during the year 1960, including one instituted on the
basis of a report by Daryao Singh, Inspector of Police, C.I.D., Karnal. This
report which bears the date November 1, 1959, alleged that the appellant had
committed offences under s. 166, s. 167 of the Indian Penal Code read with s.
109 of the Indian Penal Code and also under s. 5(2) of the Prevention of
Corruption Act. This report was forwarded by Daryao Singh to the Secretary,
Orphanage Advisory Board, Chandigarh, in connection with the affairs of which
Board the offences were said to have been committed; it was sent by the latter
to the police for registration of a case and investigation, only on May 25,
1960. The criminal cases which were pending in the courts of different
magistrates of the Punjab were on appellant's application transferred by this
Court to criminal courts subordinate to the Allahabad High Court for disposal
in the State of Uttar Pradesh.
Two of these cases, one under s. 107 of the
Indian Penal Code in which the appellant's wife was made an 208 accused, and
the other under s. 145 of the Indian Penal Code in which also she figured as an
opposite party, were disposed of in March and April 1961, the proceedings in
both cases being dropped by an order of the Additional District Magistrate,
Saharanpur. In the case instituted on Dhingra's complaint the investigation
appears to have been completed in August-September 1959, and in February 1960,
the Government of Punjab applied to the Central Government for sanction-to
prosecute the appellant under s. 5(2) of the Prevention of Corruption Act, 1947
as required under s. 6(c) of that Act. The Government of India was however
reluctant to accord sanction and on June 2, 1960, the Government of India (Home
Department) wrote to the Chief Secretary to the Government of Punjab indicating
the view of the Central Government that such prosecution was not likely to
succeed and also that as Kapur was already involved in two criminal cases and
would be facing his trial in those cases, any action to prosecute him in a
third case' might look like chasing a man who was already in serious trouble.
In this letter the Punjab Government was requested to consider whether it was
necessary to pursue that particular case just then.
The Government of Punjab does not appear to
have pressed its request for sanction and ultimately on the 25th May 1961 the
Police submitted the final report in the case under s. 173 of the Code of
Criminal Procedure praying that the case "should be consigned to record as
untraced". On the same date the Magistrate made an order directing the
case "to be consigned to record as untraced". A similar report was on
the same date submitted by the Police to the Magistrate in the cases started
,on the report of Daryao Singh and the Magistrate made an order directing the
case to be filed as untraced and to be sent to record. On the next date, the
26th of May 1961 an order was made in the name of the Governor of Punjab
directing an enquiry against the appellant under the Public Servants
(Inquiries) Act, 1850.
Later in the judgment we shall refer to this
Act as "the Inquiries Act". The order was in these words :"Whereas
the Governor of Punjab is of opinion that there are good grounds for making a
formal and pub209 lic inquiry into the truth of certain imputations of
misbehaviour against Shri R.P.
Kapur, I.C.S., Commissioner (under
suspension) ;
"Now, therefore, in exercise of powers
conferred by section 2 of the Public Servants' (Inquiries) Act, 1850, the
Governor of Punjab hereby orders a formal and public inquiry to be made into
the truth of the amputations of misbehaviour, the substance whereof has been
drawn in articles of charge, against the said officer." It may be
mentioned here that some of these charges -are in respect of acts alleged
against the appellant in Dhingra's complaint while the other charges are in
respect of acts alleged against him in Daryao Singh's report.
Eight articles of charges were drawn up for
the purpose of the enquiry. Another order was made by the Governor on the same
date appointing Mr. justice D. Falshaw, then a puisne Judge of the High Court
of Punjab, as Commissioner for holding the enquiry. Notice was duly served on
the appellant of these orders and also of -the article of charge ; and he was
informed that the Inquiry would commence on August 28, 1961. On July 1.8, 1961,
the appellant applied to the Punjab High Court under Art. 226 of the
Constitution praying for an order striking down the order of the Governor dated
the 26th May, 1961, for making the enquiry against him. Other prayers were that
the order appointing Mr. justice Falshaw as Commissioner for the Inquiry and
the notice on the petitioner be also struck down ; a writ of quo warrants be
issued against Mr. Justice Falshaw and a writ of Prohibition against the
Commissioner not to proceed with the inquiry.
It is obvious that the real relief that the
appellant sought by this petition was that the order to hold the inquiry should
be struck down. The other reliefs prayed for are either superfluous or
irrelevant.
The averments in the petition cover a large
number of grounds but the principal grounds on which the appellant based his
prayer may be summarised thus:(1) That no inquiry could be held under the
Inquiries Act inasmuch as first information reports had already been lodged
under the Code of Criminal 210 Procedure in respect of the acts mentioned in
the articles of charge ;
(2) That s. 2 of the Inquiries Act was bad as
the word "misbehaviour" was too vague ;
and' so, the section gave the Government
uncontrolled and uncanalised power to subject Government servants to inquiries
under the Act;
(3) That an inquiry under this Act was more
drastic and less advantageous to an officer in the position of the appellant
than an inquiry that could be held against an officer in a similar position
under the All India Services (Discipline and Appeal) Rules, 1955, hereinafter
referred to as "the 1955 Rules" and thus resulted in infringement of
Art. 14 of the Constitution ;
(4) That the Inquiries Act violates Arts.
16, 21 and 20(3) of the Constitution and is
therefore invalid;
(5) That the Government has acted mala fide
in ordering the inquiry.
The High Court rejected all the contentions
and dismissed the petition. Against that order this appeal has been filed with
special leave of this Court.
In support of the appeal all the grounds
raised in the High Court have been urged again before us. After the arguments
were concluded, we reserved judgment for considering the matters raised. When
we were considering these it appeared to us that a further question which
required consideration, though it had not been raised before us on behalf of
the appellant, was whether under the terms of s. 2 of the Public Servants
(Inquiries) Act, 1850, the Punjab Government was competent to direct this
enquiry under the Act. On the face of it this question appeared to be concluded
by the decision of this Court in Sardar Kapur Singh v. Union of India(1).
As we were of opinion that some matters
involved in the question required further consideration by a larger Bench,
these were accordingly referred to a Bench of seven learned judges of this
Court. That Bench has delivered its judgment today. On the majority decision of
the Bench it is now finally settled that (1) [1960] 2 S.C.R. 569.
211 the Punjab Government was competent to
direct the inquiry.
We shall therefore now proceed to consider
the points originally raised by the appellant in support of his appeal.
The first and indeed the most important
question of law raised by the appellant, who argued the appeal himself with
considerable ability and restraint, was that no disciplinary proceedings can be
commenced against a Government servant for any act in respect of which a first
information report has been recorded under s. 154 of the Code of Criminal
Procedure.
At one stage of his arguments the appellant
put his propositions in an even wider form and submitted that no inquiry except
under the Code of Criminal Procedure can be held at all in respect of any
offence under the Indian Penal Code or any other law. For this proposition he
relied on s.
5 of the Code of Criminal Procedure. That
section lays down in its first sub-section that all offences under the Indian
Penal Code shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained ; and in its second
sub-section that all offences under any other law shall be investigated,
inquired into, tried and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force regulating the manner
or place of investigating, enquiring into, trying or otherwise dealing with
such offences. The appellant emphasises the use of the words "otherwise
dealt with" in this section and contends that the provisions of the Code
of Criminal Procedure have to be followed not only for investigation, inquiry
or trial of offences but also for dealing with them in any other manner, thus
including an inquiry into the truth of the amputations, for the purpose of
disciplinary action. We do not think the words "otherwise dealt with"
has the significance which the appellant attaches to these. "Otherwise
dealt with" in the section refers, in our opinion, to such dealing with
offences as is provided for in the provisions of the Code apart from the
provisions for investigation, enquiry or trial.
Such provisions are to be found in the Code,
for instance, in Chapters IV and V. Thus, the provisions in section 54 of the
Code for an arrest by a police officer without warrant 212 in certain cases may
come into operation even before any investigation, enquiry or trial in
connection with an offence has commenced. It is unnecessary to multiply
instances, but it seems to us clear that the use of the words "otherwise
dealt with" in s. 5 does not justify a conclusion that inquiries in
connection with disciplinary proceedings on the basis of offences alleged to
have been committed by the Government servant must also be held in accordance
with the provisions of the Code of Criminal Procedure.
In any case, then argues the appellant, at
least when a first information report has been recorded under s. 154 of the
Code of Criminal Procedure any enquiry under the Inquiries Act or any other
Rules for a disciplinary action must be held to be barred. The argument may
best be put thus: Once a first information report has been lodged under s. 154
of the Code of Criminal Procedure an investigation into the correctness of the
allegations made in the report will proceed under Chapter XIV of the Code of
Criminal Procedure. Under s. 173 of the Code every such investigation has to be
completed without unnecessary delay and as soon as it is completed the
officer-in-charge ,of the police station has to forward to the Magistrate
empowered to take cognizance of the offence on a police report, a report as
regards the results of the investigation. Such a report may either ask the
Magistrate to take cognizance of an offence which according to the police
investigation the accused person appears prima facie to have committed or it
may state that no such prima facie case has been made out,-.
Cases may occur where though an offence has,
in the opinion of the investigating officer, been 'Committed, no clue to the
identity of the culprit is found or even if such clue is found the culprit is
untraced. It is urged by the appellant that where on investigation a prima
facie case is made out against a Government servant the truth or falsity of the
allegations can best be ascertained finally by enquiries or trials in the
criminal courts that would follow. Where on the other hand, the police officer
finds that no prima facie case has been made out it would be reasonable to
think that the truth of the allegations has not been established. In either
case, it is said, there is no scope for the truth of the allegations of the
commission of an offence by a Government servant being 213 investigated by any
departmental inquiry.
At first sight it does seem reasonable that
when a first information report has been recorded against a Government servant
that he has committed a cognizable offence the truth of the same should be
ascertained only in an inquiry or trial by the criminal court when a prima facie
case is found by the investigation and a charge-sheet is submitted. When once
that has been done there is no need for any further inquiry in the same matter.
It seems no less reasonable that if the police on investigation finds that no
case is made out for submission of a charge sheet the allegations should be
held to be untrue, or doubtful and then also there is no need for any further
inquiry in the same matter. We are convinced that in most cases' it would be
proper and reasonable for Government to await the result of the police
investigation and where the investigation is followed by. in inquiry or trial,
the result of such inquiry or trial, before deciding to take any disciplinary
action against any of its servants. It would be proper and reasonable also,
generally, for Government not to take action against a government servant when
on investigation by the police, it is found that no prima facie case has been
made out. Even though this appears to be a reasonable course which we have no
doubt is and will ordinarily be followed by Government, we are unable to see
any legal bar to the government ordering a departmental enquiry even in a case
where a first information report under s. 154 having been lodged an
investigation will follow.
The appellant's next argument is that the
word "misbehaviour" in s. 2 of the Inquiries Act is vague and consequently
the Act is bad. "Misbehaviour" by a government servant would
certainly mean a lapse by him from the proper standard of conduct in the
discharge of his functions as a government servant; but the appellant argues
that there was at the date of the Act in 1850 no ascertainable standard of
conduct and so neither the government nor its servants could know for certain
what would amount to "misbehaviour". This argument seems to us to be
misconceived. Even in the absence of any detailed instructions or directions as
to how a government servant should act and conduct himself there could never be
any manner of doubt that a government servant was expected and required 214 to
act honestly and not to use his position as a government servant for enriching
himself or others. Every dishonest act of a government servant, including acts
by which he uses his position for enriching himself or others would clearly
amount to "misbehaviour". We are unable therefore to accept the
appellant's argument that the word "misbehaviour" as used in s. 2 of
the Inquiries Act is vague.
It may be pointed out in this connection that
even if the appellant is correct in his argument that at the date of the Act in
1850 no ascertainable standard of conduct for government servants had been laid
down this argument is not available to him after such standard was clearly laid
down in the numerous Government Servants' Conduct Rules. So far as the appellant
himself is concerned he was at the date of the order made by government in 1961
governed by the All India Services Conduct Rules, 1954. The attack on the
validity of the Inquiries Act on the ground that the word
"misbehaviour" is vague must therefore fail.
The next attack on the validity of the Act is
on the ground that it is discriminatory inasmuch as the procedure and
provisions of the Inquiries Act are more drastic and less advantageous than
those of the 1955 Rules. It is well settled that where the government is
invested with authority to direct an enquiry in one of two alternative modes
and one of the modes is more drastic and less advantageous than the other, an
order directing an enquiry under the more drastic and less advantageous mode
will amount to an infringement of Art. 14 of the Constitution as the more
advantageous and less drastic mode may be applied against another government
servant similarly circumstanced. We are not satisfied however that the
procedure and provisions of the Inquiries Act are in substance less
advantageous and more drastic than the 1955 Rules as contended for by the
appellant. It may be mentioned that in Sardar Kapur Singh's Case(1) when a
somewhat similar argument was raised against the validity of the Inquiries Act
on the allegation that it was more drastic and less advantageous than an
enquiry under Rule 55 of the Classification Rules, this Court contrasted and
compared the provisions of the Inquiries Act with [1960] 2 S.C.R. 569.
215 Rule 55 of the Classification Rules and
held that there was no substantial difference between the two alternative modes
of enquiry. The procedure of enquiry under the 1955 Rule is practically the
same as under Rule 55 of the Classification Rules.
Faced therefore with the decision in Kapur Singh's
Case (Supra) the appellant tried to persuade us that the procedure and
provisions of an enquiry under the 1955 Rules were more advantageous to a
government servant than those of the Inquiries Act in the following respects
which were not considered in Kapur Singh's Case (Supra) as those advantages
were not available under the Classification Rules. These advantages, according
to the appellant, are: (1) Under sub rule 4 of Rule 5 of the 1955 Rules the
government servant may request for access to official records for the purpose
of preparing his written statement, but there is no such provision in the
Inquiries Act; (2) Under sub-rule 7 of the same Rule a Board of Inquiry shall
contain at least one member who shall be an officer of the service to which the
government servant belongs. There is no such provision in the Inquiries Act;
(3) Under sub rule (9) of the Rule the member of the service charged shall be
supplied with a copy of the report of enquiry, whereas there is no such
provision under the Inquiries Act; (4) Under the proviso to sub-rule (9)
mentioned above, if the punishing authority disagrees with any part or whole of
the findings of the Board of Inquiry or the Inquiry Officer, the point or
points of such disagreement together with a brief statement of the grounds
thereof, shall also be communicated to the member of the service. There is no
similar provision under the Inquiries Act.
We do not think that these provisions under
sub-rules 4, 7 and 9 and the provision to sub-rule 9 of Rule 5 result in any
substantial difference between an enquiry under the Inquiries Act and an
enquiry under the 1955 Rules. While it is true that there is no express
provision in the Inquiries Act for an access to official records for the
purpose of preparing the officer's written statement such as there is in sub
rule 4, we see no reason to think that similar facilities will not be allowed
by the authority holding an enquiry under the Inquiries Act. It has to be
noticed that tinder sub-rule 4 the access to such records may be 216 refused
"if in the government's opinion such records are not strictly relevant to
the case or it is not desirable in the public interest to allow such
access." We have no doubt that in an enquiry under the Inquiries Act also
the authority holding the enquiry will afford the officer proper facilities of
access to official records for the purpose of preparing his written statement
except where these appear to be irrelevant or it is satisfied on. an objection
made by the Government that it is not desirable in the public interest to allow
such access. It is reasonable to expect that in actual practice there will be
no difference in the matter of access to official records as between an enquiry
under the Inquiries Act and an enquiry under the 1955 Rules.
The appellant's contention that in an enquiry
under the 1955 Rules he will have the benefit of having an officer of the
service to which belongs taking part in the enquiry while he cannot have this
benefit in an enquiry under the Inquiries Act appears to be misconceived. Sub rule
5 of Rule 5 leaves it to the discretion of the government to appoint either a
Board of Inquiry or an Inquiry Officer to enquire into the charges. Indeed,
under that sub-rule if the government does not consider it necessary to appoint
a Board of Inquiry or an Inquiry Officer the enquiry may be held into the
charges "in such manner as it deems fit". It is only when a Board of
Inquiry is appointed that sub-rule 7 comes into operation and at least one of
the members of the Board has to be an officer of the service to which the
member of the service belongs. It is wrong to think therefore that in an
enquiry under the 1955 Rules the officer will necessarily have the advantage-if
it is an advantage--of having an officer of the service to which he belongs
taking part in the enquiry.
There is also nothing to prevent the
government to have the enquiry held by an officer of the service to which he
belongs even in an enquiry under the Inquiries Act. It is clear therefore that
the provision of sub rule 7 does not mean any real difference between the two
modes of enquiry.
Coming now to sub-rule 9 we find that it
provides for a copy of the report of the enquiry to be supplied to the member
of the service after the punishing 217 authority has arrived, at a provisional
conclusion that a penalty of dismissal, removal, compulsory retirement or
reduction in rank should be imposed. The Inquiries Act contains no such
provision; but the member of the service will be. entitled to get a copy of the
report under the provisions, of Art. 311(2) of the Constitution in all cases of
proposed dismissal, removal or reduction in rank. The only difference is that
while under this Rule the officer will be entitled to get a copy of the report
even where: a punishment of compulsory retirement is proposed, the provisions
of Art. 311(2) of the Constitution will have no application to such a case, so
that he will not, if the enquiry is held under the Inquiries Act, get the
benefit of having a copy of the report under the Inquiries Act if the penalty
of compulsory retirement is proposed. It is unnecessary however to consider in
the present case whether this difference amounts to a violation of Art. 14 of
the Constitution. For it is clear to us that the penalty of compulsory
retirement which can be imposed under the 1955 Rules (See R. 3) cannot be
imposed on an officer in the position of the present appellant in view of Art.
314 of the Constitution. The appellant did not contest that this consequence
will flow from Art. 314.
It appears to us also that just as under the
proviso to sub rule 9 the point or points of disagreement with grounds thereof
have to be furnished to the officer concerned where the punishing authority
disagrees with any of the findings of the report, the same result flows from
Art. 311(2) of the Constitution. This was held by this Court in a recent
decision-state of Assam v. Bimal Kumar Pandit(1). There is therefore no
substance in the appellant's contention that the procedure and provisions of
the Inquiries Act are less advantageous and more drastic than an enquiry under
the 1955 Rules. The contention that the Inquiries Act violates Art.
14 of the Constitution is therefore rejected.
It is not easy to understand the appellant's
further contention that the Inquiries Act contravenes Art. 16 and Art. 20(3) of
the Constitution. Article 16 guarantees to all citizens equality of opportunity
in matters relation to employment or appointment to any office under the (1)
[1964] 2 S.C.R. 1.
15-2 S. C. India/64 218 State. That guarantee
is however no bar to disciplinary action being taken against a citizen who
holds an office under the State. The fact that the result of such disciplinary
action may be that a citizen is deprived of promotion cannot possibly be held
to be a denial of equality of opportunity relating to employment or
appointment. The appellant also suggested that the provision in section 15 of
the Inquiries Act that a person accused shall be required to make his defence,
infringes Art. 20(3) of the Constitution.
Art. 20(3) provides that no person accused of
any offence shall be compelled to be a witness against himself. It is difficult
to understand how a provision that an accused shall be required to make his
defence amounts to compelling the accused to be a witness against himself.
Under this section the accused is not even compelled to make his defence. 'Me
section merely compels the Inquiring authority to require the accused to make a
defence. If the accused chooses not to make any defence s. 15 could not compel
him to --do so The -argument, that the Inquiries Act contravenes Art. 16 or
Art. 20(3) of the Constitution is wholly misconceived and is rejected.
This brings us to the question whether the
Government of Punjab acted mala fide in ordering the enquiry. The appellants
case is that he incurred the severe displeasure and hostility of.the.Punjab
Chief Minister, Sardar Pratap Singh Kairon and for this the Chief Minister has
been bent upon his ruin. To this end it is said the Chief Minister instituted
criminal cases against , the appellant and even against his wife, mother and
mother-in-law through, his own creatures in the expectation' that he would get,
them 'convicted and sent to prison and thereafter have the appellant dismissed
on the basis of his own conviction. As the cases were transferred for trial to
courts in Uttar Pradesh and May 1st 1961 two of the cases had been disposed' of
against the prosecution, the Chief Minister felt apprehensive that the other
criminal cases might also end in the acquittal or discharge of the appellant.
So he hit upon the, plan of having an enquiry under the inquiries I Act on the
basis of allegations made in the two cases viz., Dhingra's complaint and Daryao
Singh's report, being apprehensive that even these cases, if charge-sheets were
submitted in court, might be transferred to courts 219 outside Punjab and were
likely to end in the acquittal or discharge of the appellant. The appellant
urges that the statement in the Order that the Governor was of opinion that there
were good grounds for making a formal and public enquiry into the truth of
certain imputations of misbehaviour against him, was false, and that the real
purpose was not to ascertain the truth of the imputations but to harass and
humiliate him and if possible to impose penalties on him by way of disciplinary
action whether or not the amputations were true or false.
The appellant has not been able to produce
before us materials to explain why the Punjab Chief Minister should be
personally hostile to him. There are several circumstances however which seem
to suggest that whatever be the reason the Punjab Chief Minister is not
friendly to the appellant.
The appellant repeatedly drew our attention
to the manner in which the Chief Minister took it upon himself to accept a
complaint of serious charges against a senior officer like the appellant and
directed the Additional, Inspector-General "to take immediate action in
taking 'over papers from Government Departments concerned and the papers with
Shri Dhingra", and to the direction given by him to the Additional
Inspector-General to give "a prima facie report". In a previous
decision(1) of this Court observed thus:"We do not know what reasons led
the Chief Minister to make the endorsement on the complaint of Dhin-ara as he
did and why instead of referring the complaint to the officer in charge of the
police station, a reference was made to the Additional Inspector-General of the
Criminal Investigation Department' : It is not clear why he ordered the seizure
of the papers before even a prima facie report was given in respect of an
offence said to have been committed five year's ago.') The Court then proceeded
to point out that these were matters on which the Chief Minister alone was in a
position to enlighten the Court and that "the Chief Minister owed a duty
to this Court to file an affidavit stating what the correct position was so far
as he remembered". Even though the appellant made a pointed reference to
the Chief R. Pi Kapur v. Sardar Pratap Singh Kairon [1961] 2 S.C.R.
220 Minister's endorsement on Dhingra's
complaint and also set out this Court's observations on the earlier occasion,
the Chief Minister did not file any affidavit even on the present occasion
throwing any light on the circumstances under which he acted in this, to say
the least, unusual manner. There is the further circumstance that even though
after the investigation of Dhingra's case was completed, the Government of
Punjab did ask for the Central Government sanction to prosecute the appellant
under s. 5(2) of the Prevention of Corruption Act, the Government of Punjab
waited for about a year after the Government of India expressed its reluctance
to give the sanction, before taking further action in the matter. The manner in
which the police proceeded in the matter after this long delay also appears to
be unusual. For, instead of submitting a chargesheet for the offences found to
have been committed by the appellant, the Police Inspector merely asked the
Magistrate to consign the case to record as untraced. This is a most curious
procedure, apparently unknown to law. The learned Advocate-General, who
appeared for the State of Punjab, was unable to explain how the case could be
treated as "untraced". It may well happen in some cases that the
culprit is untraced. But we do not understand how the case can be untraced. It
is surprising that the police should make such a request to the Magistrate in
the circumstances of Dhingra's case. It is even more surprising and indeed it
is a matter which has caused us deep concern, that the Magistrate readily did
what the police requested him to do.
The papers produced before us show that in
his report to the Magistrate the Inspector, C.I.D., mentions the fact that this
course had been decided upon in consultation with "higher
authorities". Apparently that was what the Magistrate decided. We were not
enlightened as to who these "higher authorities" were.
On the same date, i.e., May.25,,1961, a
similar report was submitted by the police to the Magistrate in the case
instituted on the basis of Daryao Singh,s report, and the, Magistrate readily
passed a similar order. That report itself had been made by Daryao Singh on
November 1, 1959 stating that he had discovered during the course of
investigation of another case that the several offences men221 tioned in the
report had been committed by the appellant.
There was a delay of more than six months
before this report was forwarded to the police. It is not possible to say
clearly from the papers on the record when the investigation by the police was
completed. That it was completed has not been disputed before us. It is not
known whether the investigation officer found a case made out for the
submission of charge-sheet. All that we find is that on May 25, 1961, that is,
a year after the first information report was recorded and a year and six
months after Daryao Singh made the report, the Magistrate granted a request of
the police that the case should be treated as untraced.
Not unnaturally the appellant has laid great
stress on the conduct of the police in connection with these two cases.
Why, asks the appellant, did the “higher
authorities" under whose directions the police acted, decide to treat
these cases as untraced and at the same time start an enquiry under the
Inquiries Act in respect of some of the allegations in these very cases? If the
intention of the Government was to ascertain the truth of these imputations, he
asks, why was it decided to discard the usual and obvious method of enquiry
into these in a court of law in favour of the unusual method of an enquiry
under the Inquiries Act? The learned Advocate-General did not attempt to answer
these questions; but he argued that when two alternative methods were open to
the Government for ascertaining the truth of the allegations, the mere fact
that one was adopted in preference to the other is no reason to suspect mala
fides.
The appellant, on the other hand, strenuously
contends that when the conduct of the police in connection with these two cases
is considered in the back-ground of the previous history of the criminal cases
instituted against the appellant, the manner in which the Chief Minister
himself acted in connection with Dhingra's complaint, the fact that five
criminal cases against the appellant or the persons in whom he was interested
were transferred to courts in Uttar Pradesh and the further fact that at the
date when we are considering the matter all these cases have ended in favour of
the appellant, it is reasonable to think that the enquiry under the Inquiries
Act was adopted more as a measure of persecution of the appellant than the
ascertainment of the truth of the amputations against Mm. Even if we assume
that these facts by themselves might afford some ground for Such a conclusion,
we are of opinion that when considered along with other circumstances to which
our attention has been drawn, this conclusion would not be justified.
For holding the enquiry the Government has
appointed a judge of the High Court of Punjab. It is reasonable to think
therefore that the enquiry would be fair and impartial. It is true,, as pointed
out by the appellant, that the Government is not in law, bound to accept the
report of the Inquiring Authority. It has to be noticed however that the power
of the Government to impose any penalty on the appellant will be limited by the
provisions of the 1955 Rules. It is clear also that the appellant will be
entitled to the rights of appeal under the 1955 Rules. The penalties which can
be imposed are set out in Rule 3. Of these penalties, the penalty No. 5, VIZ.,
compulsory retirement on proportionate pension, cannot be imposed on the
appellant in view of Art. 314 of the Constitution. The other two penalties
mentioned in cls. 6 and 7 of Rule 3, viz., dismissal or removal from service,
cannot be imposed, except by an order of the Central Government. As regards
penalties which can be imposed by the State Government Rule 6 provides that no
order imposing such penalty shall be passed by the Government except, after
consultation with the Public Service Commission and where there is a difference
of opinion between the State Government and the Public Service Commission the
matter shall be referred to the Central Government whose decision thereon shall
be final. If therefore it does happen that' the Inquiring Authority finds the
appellant not guilty as regards some or all the charges and the Government
considers him guilty of those charges, even so the Government will not be in a
position to impose any penalty on him unless either the Public Service
Commission or the Central Government takes the same view.
If a penalty is imposed by the State
Government with the concurrence of the Public Service Commission, the member of
the service has a right of appeal to the Central Government.
The circumstances in which an appeal can be
withheld by the State Government are set out in Rule 14. These, in our opinion,
do not 223 interfere with, the proper and reasonable exercise :of the right of
appeal.
A consideration of all these provisions makes
it reasonable to think that even if the Punjab Chief Minister was unfriendly to
the appellant he could not expect to. harm him by having recourse to an enquiry
under the Inquiries Act in preference to a trial in a criminal court. It is
therefore not possible for us to accept as correct the appellant's contention
that the Inquiries Act was being used only as a device to harass and humiliate
him or to impose penalties on him in any case, nor that the statement in the
Order that the Governor was of the opinion that there were good grounds for
making a formal and public inquiry into the truth of certain imputations of
misbehaviour, was false. We hold that the appellant's case that the Government
of Punjab has acted mala fide in ordering the enquiry against him has not been
established.
There remains for consideration the question
whether the enquiry under the Inquiries Act can go on so long as the
appellant's complaint against Dhingra which is pending in the criminal court
has not been disposed of. This complaint was made by the appellant in the court
of the Magistrate, First Class, Chandigarh, alleging that the case instituted
against him by, Dhingra was false and that Dhingra himself had by making this
complaint committed offences under ss.
93, 204, 211 and 385 of the Indian Penal
Code. We are informed that the hearing of this case is in progress in the court
of a Magistrate in U.P. The appellant contends that the holding of the enquiry
under the Inquiries Act ordered against him would amount to contempt of court.
The argument is that the appellant's case in his complaint being that the
allegations made by Dhingra in his complaint against the appellant are false,
the criminal court is engaged in examining the truth or otherwise of those
allegations of Dhingra, and an enquiry under the Inquiries Act would involve
the examination of witnesses on the same questions.
This, it is said, will tend to interfere with
the proper determination of the question by the criminal court and so amount to
contempt of the criminal court. We do not think it necessary to decide this
question for the purpose of the present case. For, whether or not the holding
of such a parallel enquiry under 224 the Inquiries Act would amount to,
contempt of the criminal court, we are clearly of opinion that it is wholly undesirable
that the enquiry under the Inquiries Act should be held at the same time when
the trial before the criminal court is going on. No particular reason has been
shown to exist which makes the immediate commencement of the enquiry essential
or otherwise desirable. We think it proper therefore that the enquiry under the
Inquiries Act should not proceed so long as the appellants complaint against
Dhingra is not finally disposed of.
While therefore; we have come, to the conclusion
that the High Court has rightly refused, to issue to the appellant writs
prayed: for to quash the Government's order for enquiry against him and the
other prayers mentioned in the petition, we direct that the enquires should not
take place so long as the appellant's complaint against Dhingra is not finally
disposed of. The parties will bear their own costs.
Appeal-dismissed.
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