http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 28  

PETITIONER: R.P. KAPUR

       Vs.

RESPONDENT: PRATAP SINGH KAIRON AND OTHERS

DATE OF JUDGMENT: 09/08/1961

BENCH: HIDAYATULLAH, M. BENCH: 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-A member of the Indian Civil Service  employed In     the State of Punjab Enquiry under order of  Governor- whether   competent-"Not  removable  from  his   appointment without  the sanction of Government"-Meaning  of-The  Public Servants (Inquiries) Act, 1850 , s. 2.

HEADNOTE: The  appellant joined the Indian Civil Service in  1938  and after  serving  in other capacities was employed  under  the Punjab  Government since 1948.  On May 26, 1961, an  enquiry was started against him by the Punjab Government under s.  2 of  the  Public Servant (Inquiries) Act, 1850,  He  filed  a petition in the Punjab High; Court under Article 226 of  the Constitution  challenging the validity Of the order of  the: Punjab  Government but his petition was dismissed.  He  came to this Court by special leave. 225 During  the hearing of the appeal a question  arose  Whether the Government of the State of Punjab was competent to order the enquiry against the appellant under S. 2 of, the  Public Servants  (Inquiries)  Act,  1850.  The  Bench  hearing  the appeal  was  of  the  opinion  that  s.  2  required   three conditions  to  be  satisfied before  a  formal  and  public enquiry could be ordered.  The first condition was that  the Government should be of opinion that there were good grounds for  making -such a formal and public enquiry.   The  second condition  was  that the enquiry could be  directed  by  the Government  against  a  servant  in  the  service  of   that Government  The third condition was that the  person  should not  be removable from his appointment without the  sanction of  that  Government.   The Bench held that  the  first  two conditions  were satisfied in the present case.  As  regards the  third condition, the Bench referred to a  larger  Bench the  question, as to the meaning of the following word’s  in section  2  of the Inquiries Act: "not’ removable  from  his appointment without the sanction of the Government"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 28  

Held  by Das Acting C. J., Gajendragadkar,  Sarkar,  Hidaya- tullah, JJ. (Wanchoo, Das Gupta and Ayyangar JJ. dissenting) that  the  third condition in s. 2 of  the  Public  Servants (Inquiries) Act, 1850 was also satisfied in this case. Per,  Das, Acting C. J., Gajendragadkar, Sarkar and  Hidaya- tullah, JJ: Section 23 of the Act furnishes the key to  find out  which  Government is to hold, the inquiry.   Where  the officer is in the service of a particular Government and  is also employed under it the position is clear.  When Officers in  the  service of the Central Government  are  deputed  to States and vice versa and while they are on such deputation, they  are "employed under" the Government to which they  are deputed.  If by "employed under" in s. 2 were meant "in  the service  of", s. 23 of the Public Servants (Inquiries)  Act, 1850,  would  hardly  be needed.  If an officer  is  in  the service  of the Central Government and is also serving  with the Central Government, the State Government cannot possibly hold  an  enquiry.   The same is true  of  officers  in  the service of the State Governments and serving with the  State Governments.  In their case the Central Government can  have no  hold.  It is only when there is an exchange of  officers between  Governments that questions arise  which  Government should  make  the  enquiry and the test is that  it  is  the Government under which the officer is employed at the  time. The  expression "in the service of that Government" in s.  2 is the equivalent of "employed under that Government, in the context where it occurs. The word "appointment" can only mean a ’post’, ’station’  or office’  and not the whole service as such.  Removal  cannot be  the equivalent of loss of service but the loss of  post, station  or office.  Section 2 is intended to apply only  to an  officer whose ’post’, ,station’ or office’ can  only  be lost under orders of the appropriate Government and not  any lesser  authority.  In this sense, the action of the  Punjab Government was clearly within its power.  The 226 key  furnished  by  s. 23 must be read into  s.  2  and  the section  then construed.  To construe the Act in the  manner suggested by the appellant would really mean that in respect of  I.C.S.  or other such officers serving  with  the  State Governments,  there  cannot be any enquiry  by  the  Central Government  because  they  are  employed  under  the   State Governments, and no enquiry by the State Governments because they are not removable from service in the limited sense  by the  State Governments.  The same difficulty would arise  in respect   of  State  employees  serving  with  the   Central Government or State Governments other than their own. Per Sarkar J.-Doubted the correctness of the view  expressed in Sardar Kapur Singh v. Union of India [1960] 2 S.C.R.  569 as  to the meaning of the word "Government" in s. 2  of  the Act but as the question referred was based on that view, its correctness could not be disputed in the reference. Per, Wanchoo, Das Gupta and Ayyangar JJ. Held,  that the Government of the Punjab is not  the  appro- priate  Government vested with powers to direct  an  enquiry under the Public Servants (Injuries) Act, 1850, against  the appellant. The  terms  of s. 23 have to be read in each  of  the  three places  where the word "the Government" occur in S. 2.  "The Government" when it occurs first in s.2 would mean only  the State  of Punjab in which the appellant is employed.   Where "the  Government" occurs for the second time, it also  means the Punjab Government.  As regards the use of the expression "the  Government"  for the third time’ in  the  phrase  "not removable  from his appointment without the sanction of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 28  

Government",  the  only meaning which  could  reasonably  be attributed  would  be that it is that  Government  which  is competent to terminate his employment.  The State of  Punjab is  not  the  Government which is capable  of  removing  the appellant from his appointment.  Hence, it is clear that the third condition is not satisfied. The condition that the officer against whom proceedings  are taken  must  be  one who is  amenable  to  the  disciplinary control of the Government which initiates the enquiry and is competent to inflict upon him the punishment of removal  has been  the  basic ratio and purpose of the Act of  1850  ever since it was enacted.  The change effected by the  amendment brought in 1897 retained this characteristic, though it gave an’  over-riding power to the Governor General  to  initiate proceedings  in  all cases whether or not  the  officer  was serving  a Local Government or the Central  Government.   It could  not  therefore be that by reason  of  the  Adaptation Order  under  the  Government of India Act,  1935,  a  vital change was made which upset this basic feature and conferred a power upon a Provincial Government to institute an enquiry even when such a Government had not the power to punish  him by way of removal. 227 Sardar Kapur Sin ,gh v. The Union of India, [1960] 2  S.C.R. 569,  Imperatrix  v.   Bhagwan Devraj, I.L.R.  4  Bom.  357; Angelo  v.  Kandan  Manjhi, 41 Criminal lAw  journal  221  ; Herron  v.  Rathmines, [1892] A.C. 498; Assam  Railways  and Trading  Co.  Ltd. v. Inland Revenue  Commissioners,  [1935] A.C.  445; Millar v. Taylor, (1769) 4 Burr. 2303 and  R.  v. Hertford College, (1878) 3 Q.B.D. 693, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 75 of 1963. On reference to larger bench in 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. M.C.  Setalvad, S.M. Sikri, N.S. Bindra and P.D.  Menon  for the respondents. ORDER OF REFERENCE The  following Order of the Court was delivered by  AYYANGAR J.-The  appellant-R.  P. Kapur was appointed to  the  Indian Civil Service in or about 1938.  He continued in the service after  independence and has, since 1948 been in the  service of  the Government of Punjab.  While so, on May 26, 1961  an order  was  made  in  the name of  the  Governor  of  Punjab directing an inquiry against the appellant under the  Public Servants  (Inquiries) Act, 1850.  The  appellant  challenged the  validity of this order in a petition that he  filed  in the High Court of Punjab under Art. 226 of the  Constitution and  when  that was dismissed he has preferred  this  appeal with the special leave of this Court.  This appeal was heard by us in the second week of February, 1963 and judgment  was reserved  on the 13th of that month.  Several points of  law and  fact  were canvassed in the appeal and  those  will  be dealt with in the judgment to be pronounced. There  was one point,- however, which did arise on the  case but  was  not fully argued and that related  to  the  proper construction and legal effect of s. 2 of the Public Servants (Inquiries) Act, 1850 which, as it now stands reads: .lm15 "Whenever the Government shall be of opinion that there  are good grounds for making a formal and public inquiry into the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 28  

truth of any imputation of misbehaviour by any person in the service of the 228               Government not removable from his  appointment               without the sanction of the Government, it may               cause  the substance of the amputations to  be               drawn  into distinct articles of  charge,  and               may  order a formal and public inquiry  to  be               made into the truth thereof." The  question we are referring to is whether the  Government of  the  State  of  the Punjab was  competent  to  make  the impugned order against the appellant under this provision on its  terms.   That  question might be  formulated  in  these terms:  Under s. 2 there are three conditions which have  to be  satisfied  before a formal and public inquiry  might  be directed  to  be made into the truth of the  imputations  of misbehaviour.   They are : (1) the Government should  be  of opinion that there are good grounds for making such a formal and  public  inquiry.  We have heard full arguments  on  the question  as to whether this condition has or has  not  been satisfied and it is not necessary to say anything more about it  now. (2) The inquiry can be directed under s. 2  by  the Government  only  against a person in the  service  of  that Government.  It is obvious that this condition is  satisfied and  there  was no argument raised in regard to it  and  the decision of this Court in Sardar Kapur Singh v. The Union of India(1) furnishes a complete answer to any contention  that this condition is not satisfied in the present case. (3) The third  and  the  last  condition  is  that  the  person   is "removable  from his appointment by or with the sanction  of that  Government".   We are stating here in  positive  terms what occurs in the section in negative terms.  One  possible construction  of  this provision would be that  the  officer against whom the inquiry is being directed should be capable of   being  dismissed  or  removed  from  service  by   that Government  which  is  authorised  to  direct  the  inquiry. Another  interpretation  might  be  that  the  condition  of "removability" only relates to removability from the  office which  the  officer holds for the time being.   We  are  not expressing  any opinion as to which of these is the  correct view  that  could  be taken of this provision,  but  we  are merely  pointing  out  that  the  former  is  one   possible construction.  If that construction, (1)  [1960] 2 S.C.R. 569. 229 however,  be right it would be apparent that  the  appellant who could not be dismissed or removed from service except by the  Government of India, would not fall within those  words and  consequently he would not be a public  servant  against whom the State Government of the Punjab could initiate these proceedings. During the course of the arguments a query was raised as  to whether  the third condition we have mentioned  earlier  was satisfied or not but it was assumed that this point had been considered  and  decided by this Court in  its  decision  in Sardar  Kapur  Singh v. The Union of India(1).   On  further examination, however, it appears to us that this  particular point  about  the  third condition was not  the  subject  of express  consideration by this Court on that  occasion,  for when one looks at the first of the grounds urged by  Counsel which is set out on page 576 of the report it reads :               "That the inquiry could not be directed by the               Punjab  Government  as  the  appellant  was  a               member of the Indian Civil Service and was not               employed under the Government of East Punjab."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 28  

As would be seen, this is the second point which we have set out  earlier and this was answered by reference to s. 23  of the  Public  Servants (Inquiries) Act, 1850, but  the  third point  which we have formulated earlier does not  appear  to have  been the subject of express consideration or  decision in  that  case.  Since, however, that  decision  states  and proceeds on the basis of all the requirements of s. 2 of the Act  having been satisfied, we feel it would not  be  proper for us to hear arguments on this aspect of the provision. The point is an important one and its decision is vital  for disposing  of this appeal.  We, therefore, propose to  place the  cage  before  the’  Hon’ble the  Chief  justice  for  a reference  being made to a larger Bench for considering  the question as to the meaning of the words "not removable  from his  appointment  without  the sanction  of  the  Government occurring  in  s.2 of the Public Servants  (Inquiries)  Act, 1850. The,  following  Opinions of the Court  were   delivered  by HAYATULLAH J. (on’ behalf of S. K. DAS, Acting C.J., (1)  [1960] 2 S.C.R. 569. 230 P.   B.  GAJENDRAGADKAR J. and himself)--The  appellant  Mr. R.Kapur,  joined    the  Indian Civil Service in  1938,  and after  serving   in  other capacities  was  employed   under Punjab  Government  since  1948.  On May 26, 1961,  an   in- quiry   was  started against him by  the  Punjab  Government under   s.  2 of the  Public   Servants   (Inquiries)   Act, 1850.    He  filed a petition in the High  Court  of  Punjab under Art. 226 of the Constitution impugning the validity of the order of   the  Punjab Government, but his petition  was dismissed He has now appealed by special leave.  During  the hearing of the present appeal on an earlier occasion  before another  Bench, a question arose whether the  Government  of the  State  of  Punjab was competent to  order  the  inquiry against the appellant under s. 2 of the Inquiries Act.   The Bench made this reference for the elucidation of the meaning of  certain  words in s. 2 of the Inquiries Act,  which  has been placed before this Bench. In the Order of Reference, it is observed that s. 2 requires three conditions to be satisfied before a formal and  public inquiry can be ordered, and they are:               (1)   The Government should be of opinion that               there  are  good  grounds for  making  such  a               formal and public inquiry ;               (2)   The  inquiry can be directed under  that               section  by  the Government against  a  person               in the service of that Government               (3)The person should not be removable from his               appointment without the section of the Govern-               ment. The  Order  of Reference states that the earlier  Bench  has heard  full arguments in regard to the first  condition  and the decision on that part of the case will be given in  ,due course.   Next, it states that the Bench considers that  the second condition is satisfied as held in an earlier decision of  this Court reported in Sardar Kapur .Singh v., Union  of India(1).   The Bench,apparently feels no  difficulty  about the  first two conditions requisite for the  application  of the section. The Bench, however, is of the view that the words of s. 2 reproduced in the third condition are susceptible of (1) [1960] 2 S.C.R. 569. 231 different meanings.  The Order of Reference states :               "One  possible construction........  would  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 28  

             that  the Officer against whom the inquiry  is               being  directed  should be  capable  of  being               dismissed  or  removed from  service  by  that               Government which is authorized to, direct  the               inquiry.  Another interpretation might be that               the condition of ’removability only relates to               removability  from  office which  the  officer               holds for the time being." The  Order  of Reference goes on to point out  that  if  the section  means  the  first,  then,  as  the  appellant   was removable from service only by the Government of India (that is  to say, the President), the Punjab Government could  not initiate the present proceedings.  According to the Order of Reference,  the  second condition alone  was  considered  in Kapur  Singh’s case(1), while , applying s. 23 of  the  Act, and  condition No.3 was overlooked.  The Order of  Reference thus states :               "Since,  however,  that  decision  states  and               proceeds  on the basis of all the  requirments               of  s. 2 of the Act having been satisfied,  we               feel  ’it would not be proper for us  to  hear               arguments on this aspect of the provision." Accordingly  the Bench  has referred the  question    as  to the meaning  of the following words in s. 2 of the  Injuries Act:               "not  removable from his  appointment  without               the sanction of the Government." We  are only concerned with the preamble and sections 2  and 23: of, the Inquiries Act., We shall presently set out these provisions  of the Public Servants (Inquiries) Act, 1850  as they exist today.  The original Act was amended in 1897 by the  Public Servants (Inquiries) Act,1897 (I of  1897),which supplied the present short title of the Act  and    effected some  amendments.   Later, certain other  amendments    were made and s. 23 was recast.  In 1937, the Government of India (Adaptation  of  Indian  Laws)  Order,  1937,  while  making certain  adaptations  in  the  text  of  a  formal   nature, substituted  another  section  in  place .  of  the  s.  23. Further, adaptations were made (1)  [1960] 2 S.C.R. 569. 232 by  the Adaptation, of Laws Order, 1950, but they were of  a formal nature. We  shall, now set out the relevant parts of  the  Inquiries Act as they were from time to time As in 1850               For regulating inquiries into the behaviour of               Public Servants.               Whereas  it is expedient to amend the law  for               regulating  inquiries  into the  behaviour  of               public  servants  not  removable  without  the               sanction  of Government, and to make the  same               uniform  throughout the territories under  the               Government  of the East India Company,  it  is               enacted as follows               1.               2.    When Government consider public  enquiry               into  the  conduct  of  any  of  its  officers               necessary, distinct  Articles of Charge  shall               be        drawn out.-’ Whenever the Government               shall  be  of  opinion  that  there  are  good               grounds for making a formal and public inquiry               into   the   truth  of   any   imputation   of               misbehaviour  by any person in the service  of               the East India Company not removable from  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 28  

             office  without  the  sanction  of  the   same               Government,  it shall cause the  substance  of               the  imputations  to be  drawn  into  distinct               Articles  of Charge, and shall order a  formal               public  inquiry  to  be made  into  the  truth               thereof.3 to 2223. Interpretation of the  word               ’Government’--The word ’Government’ as used in               this   Act  means  the’  Governor-General   in               Council,  the Governor or Deputy  Governor  of               the Presidency of Fort William ’in Bengal, the               Governor in Council of the:’ Presidencies  of:               Fort St. George and Bombay, respectively,  and               the.  Lieutenant-Governor of the North-Western               Provinces   of  Bengal,  whose   sanction   is               necessary  for  the  removal  of  the   person               accused.... In 1897, these provisions of  the Inquiries Act were amended in three respects, and they were: 233               (i)   In  the preamble, the word  ’India’  was               substituted  for  the words  ’the  East  India               Company’,               (ii)  The marginal note to s. 2 was changed to                             :               "Articles of charge to be drawn out for public               inquiry   into  conduct  of   certain   public               Servants",  but no change in the text  of  the               section was made, and of               (iii) Section 23 was replaced by the following               section :               23.   Powers  of Government under this Act  by               whom exercisable.-The powers of the Government               under  this Act may in all cases be  exercised               by  the Governor-General in Council, and  when               the  person  accused can be  removed  from  Ms               appointment  by  the Local  Government,  those               powers  may  also be exercised  by  the  Local               Government.               In  1937,- the Adaptation Order  replaced  the               above s. 23 by the following:               "23.   Definition of Government.-In this  Act,               ’the Government’ means the Central  Government               in  the  case of persons employed  under  that               Government  and the Provincial  Government  in               the  case  of  persons  employed  under   that               Government." It  also substituted the word ’may’ for the word "shall"  in two places in s. 2. The corresponding provisions of the Act, as they      final- ly stand today after adaptations in 1950 may now be set out "The Public Servants (Inquiries) Act, 1850 (37 of 1850). (1st November, 1850).               " For regulating inquiries into the  behaviour               of Public Servants.               WHEREAS  It is expedient to amend the law  for               regulating  inquiries  into the  behaviour  of               public  servants  not  removable  from   their               appointments    without   the   sanction    of               Government  and  to  make  the  same   uniform               throughout India, it is enacted as follows: -               1.               2.    "Whenever  the  Government shall  be  of               opinion that there are good grounds for making               a formal and public inquiry into the truth  of               any  imputation of misbehaviour by any  person

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 28  

             in the ser- 16- 2 S. C. India/64 234 vice  of the Government, nor removable from his  appointment without  the  sanction of the Government, it may  cause  the substance  of  the  imputations to be  drawn  into  distinct articles  of  charge,  and may order  a  formal  and  public inquiry to be made into the truth thereof. 3-22. 23.   ln  this  Act,  the  Government’  means  the   Central Government  in  the  case of  persons  employed  under  that Government  and the State Government in the case of  persons employed under that Government. 24 to 25.............. It will be seen from the preamble that ever since 1850,  the intention  was  that  there should be  an  uniform  law  for regulating  inquiries into the behaviour of public  servants not  removable  without the sanction of Government  and  the inquiry  was to be made either by the Central Government  or by  the  Governments  of the  Presidencies  (later,  of  the Provinces  and  now  of the States) and  the  provisions  of sections 2 and 23 between them pointed out which  Government it  was  to be.  At every stage of the Inquiries  Act  1850, right from the beginning till today, there has always been a key to the solution of the question which Government  should take  action  and it has not been necessary to go  to  other statutes. In this case, the short question that has arisen is  whether the  words  ’removable’  from  his  ’appointment’   indicate ’removable  from  service’  or merely  ’removable  from  the appointment  in  the  sense of office or post  held  by  the officer’?   The  solution of this problem must  depend  pri- marily  upon the language of the Act itself and  the  inter- relation  between  sections 2 and 23  with  such  legitimate assistance  to construction from any other source as we  can get. The  Inquiries  Act was not the first of its kind.   It  was preceded by other Acts in the Presidencies and they provided for  inquiries  into the conduct of  public  servants.   The argument shortly is that the words ’remove’ and  ’removable’ have  come to acquire a special meaning and have  frequently been  used  in statutes dealing  with  disciplinary  actions against public servants in connection 235 with  the termination of services only and that  they  have: been  so used in the Inquiries Act.  Examples were cited  to us  from other statutes and rules both past and  present  to illustrate the use of the words in this restricted sense and it is -contended that viewed historically, the word ’remove’ must be interpreted as denoting an action resulting in  loss of service.  In this connection, much is made of the history of.  such  enactments and the phrases used in them  some  of whom  are  not the phrases we have to interpret.   We  shall briefly touch upon this history. The  Inquiries Act, 1850, replaced three statutes  operating respectively  in  Bengal,  Madras  and  Bombay.   They  were Regulation  26 of 1839 (Bengal), Act XIII of  1843  (Madras) and  Act  VI  of 1838  (Bombay).   These  three  legislative measures followed the same pattern and used almost identical language.   Even these three measures were not the first  of the statutes of this kind.  They were also preceded by other legislative  measures which they replaced.  In  these  older statutes,  the  language  employed  was  different.    Thus, Regulation  13 of 1793 of Bengal used the  phrase  ’offender incapable of serving Government in any capacity’, Regulation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 28  

V  of  1803,  the  phrase  ’remove  from  his  service’  and Regulation  8 of 1806, the phrases ’to be continued  in  the employment  of  the Company’ and ’dismission  from  office’. The  emphasis  no  doubt was  largely  upon  termination  of service but then the power was exercisable centrally.   When the three Presidencies had their own legislative measures to which  we  have referred in this  paragraph  earlier,  those measures were to apply to covenanted servants of the Company who were not capable of being dismissed except by the  Court of  Directors.   The provisions of these Acts  enjoined  the Courts  to  refer cases of officers ’not  removable  without sanction  of Government’ to the Governor whenever  a  formal inquiry  into  an  imputation  of  official  misconduct  was necessary.   The  Acts, however, were meant  for  the  three Presidencies respectively and did not lay down any method by definition  or otherwise to distinguish between the  Central Government  and the Governments of the Presidencies,  or  to discover which of the Governments should order the  inquiry. Such a provision appear- 236 ed  for the first time in the Inquiries Act, 1850,  and  the earlier  enactments  do not help in interpreting  its  terms because from the very beginning it contained its own key and extraneous  aid was not necessary.  The earlier  Acts  might have  used sometimes the word ’remove’ to,  denote  ’removal from service’ but it is interesting to note that in s. 30 of the  Government of India Act, 1858 (21 and 22.   Vict.   Ch. 106) the text of which is given in the foot-note(*) the word ’removed’   was  used  not  only  in  connection  with   the termination  of service as such but also in connection  with ’stations’ and ’offices’, thus showing that the word was not confined to the inflexible use which is suggested. There is no doubt that the word ’remove’ has been used  time and  again in statutes and rules as meaning  termination  of service’ but that is not the only use.  In the Government of India Act, 1858, it was definitely used in a modified sense. There is thus nothing which fixes its use or meaning or robs it of the various shades of meaning it possesses.  Our  task is  not to read a particular meaning into the Inquiries  Act and  then to construe it. Our task is to see  which  meaning emerges on a proper interpretation of the Act as a whole. The original Inquiries Act as also the amendments made in it from  time  to time was designed to bifurcate the  power  of inquiry  between  the  Central  Government  and  the   local Governments  and the word "remove" simpliciter  which  might have  had the restricted meaning was never so used.  It  was first  qualified  by  the words ’from  office’  and  is  now qualified by the words ’from his appoint- *Section  30:-All  Appointments to  Offices,  Commands,  and Employment  in  India and all Promotions, which  by  Law  or under any Regulation, Usage, or Custom, are now made by  any Authority  in India, shall continue to be made in  India  by the  like  Authority , and subject  to  the  Qualifications, Conditions, and Restrictions now affecting such Appointments respectively;  but the Secretary of State in  Council  shall have the like Power to make Regulations for the Division and Distribution of Partonage and Power of Nomination among  the several  Authorities  in  India,  and  the  like  Power   of restoring  to  their  Stations,  Offices,  or   Employments, Officers and Servants suspended or removed by any  Authority in  India as might have been exercised by the said Court  of Directors, with the Approbation of the Commissioners for the said Affairs of India, if this Act had not been passed. 237 ment’.   The.  word  ’remove’ cannot  therefore  be  defined

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 28  

without the qualifying words.  We have thus to discover  the meaning  not  of  the word ’remove’  but  of  whole  phrases ’remove  from office’ and ’remove from  appointments’.   The words are not ’remove from service’ and never have been, and it is difficult to imagine that this simple phrase would not have occurred to persons wishing to convey that sense.  As a different  phrase  is  used and a  key  furnished,  we  must construe   the  phrase  ’removable  from  his   appointment’ occurring  in the second section of the Inquiries  Act  with the  help  of  the key.  The preamble  also  uses  the  same expression but it will obviously bear the same meaning.  Now the  key  furnished by s. 23 is merely a definition  of  the words  ’the Government’ wherever used in the Inquiries  Act. In the preamble, the, word ’Government’ is used without  the definite  article as again in s. 25.  These refer  generally to  Governments whether Central or State without seeking  to make  a distinction between them as stated in the  key.   In the sections where the, expression used is ’the Government’, the intention is to make a selection between Governments and only  that Government is meant which answers the  definition in s. 23. The  definition in s. 23 says that ’the Government’  in  the Inquiries  Act  means the Central Government if  the  public officer  is employed under the Central Government,  and  the State Government if the public officer is employed under the State Government.  There is in this way a clear division  of all officers likely to be affected by the Inquiries Act into two classes depending upon their employment at the time  the inquiry  is  commenced.   The division is  rested  not  upon service  but upon employment because the expression  is  not ’in  the service of’ or even ’in the employment of’ but  the less forceful one, ’employed under’.  It is common knowledge that  officers in the service of the Central Government  are deputed to the States and face versa, and while they are  on such deputation, they are ’employed under’ the Government to which  they are deputed.  If by ’employed under’ were  meant ’in the service of’, the definition in s. 23 would hardly be needed.  If an officer is in the service of, say the Central Government and is also serving with the 238 Central  Government,  the State Government  cannot  possibly hold  an inquiry.  The same is true of officers in the  ser- vice  of  the State Governments and serving with  the  State Governments.  In their case the Central Government can  have no  hold.  It is only when there is an exchange of  officers between Governments that a question arises which  Government should  make the inquiry, and the test furnished by the  key is  that  it is the Government under which  the  officer  is employed at the time. It  was  held in Sardar Kapur Singh’s case(1)  that  he  was ’employed  under’ the Government of Punjab.   No  contention was  raised in this case that the present appellant was  not ’employed under’ the Punjab Government.  Point No. 2 in  the Order of Reference summarized by us above is :               "(2)  The inquiry can be directed  under  that               section  (sec.  2)  against a  person  in  the               service of that Government." The  expression  ’in  the service  of  that  Government’  is apparently   the   equivalent  of   ’employed   under   that Government’.   In the Order of Reference in respect  of  the second point, it is observed :               "It   is  obvious  that  this   condition   is               satisfied and there was no argument raised  in               regard to it and the decision of this court in               Sardar Kapur Singh v. Union of India furnishes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 28  

             a complete answer to any contention that  this               condition is not satisfied." It follows, therefore, that the definition in s. 23  applies to  the present appellant’s ’case and the  Government  under which he is employed is the Government holding the  inquiry. This point is not only concluded by the earlier decision  of this  Court  but is expressly withdrawn from  the  Reference made to us. We have now to  read  the key and  its   answer  into  s. 2. That secetion uses the expression ’the Government in   three places and each of these places we shall read the Government under   which  the  officer  is.  employed.   So  read   and paraphrased, s,. 2 would read something like this : "Whenever  a Government under which an officer  is  employed shall be of opinion that there are good grounds for making a formal and public inquiry into [1960] 2 S.C.R. 569, 239               the truth of any imputation of misbehaviour by               an  officer in the service of  the  Government               under  which he is employed which  officer  is               not removable from his appointment without the               sanction  of the Government under which he  is               employed,  it may cause the substance  of  the               imputations to be drawn into distinct Articles               of  Charge and may order a formal  and  public               inquiry to be made into the truth thereof." The force of the definition must find place in all the three places  where the expression ’the Government has been  used. In the section as expanded by us, the words ’in the  service of’  in  the expression ’in the service  of  the  Government under  which he is employed’ or in the  original  expression ’in  the  service of the Government’,  mean  ’while  serving with’  and do not convey the sense of ’employment by’.   The word "appointment" can thus only mean a ’post’, ’station’ or ’office’  and  not  the whole  service  as  such.   Removal, therefore,  cannot be the equivalent of loss of service  but the  loss  of ’post’, ’station’ or ’office’.  Section  2  is intended to apply only to an officer whose ’post’, ’station’ or  ’office’  can only be lost under orders  of  appropriate Government and not any lesser authority. In this sense,  the action of the Punjab Government was clearly exercisable . in this  case.   To construe the Act in the  manner  -suggested would  really mean that in respect of I.C.S. or  other  such officers serving with the State Governments, there cannot be any inquiry by the Central Government, because they are  em- ployed  under the State Governments, and no inquiry  by  the State  Governments  because  they  ate  not  removable  from service in the limited sense by the State Governments.   The same  difficulty would arise in respect of  State  employees serving  under the Central Government or  State  Governments other  than their own. -To be able to say that  the  inquiry could  be  made by the other Government, one would  have  to discard  altogether s. 23 as a key ;and  the  interpretation placed on the section by this court in Sardar Kapur  Singh’s case(1). In  our  opinion,  the  third condition  in  s.  2  is  also satisfied in this case. SARKAR J.-On the Order of Reference made in this (1)  [1960] 2 S.C.R. 569. 240 case I am inclined to agree with the view to be expressed by my  brother Hidayatullah.  That Order proceeds on the  basis that  the view expressed in Sardar Kapur Singh v. The  Union of India(1) that the word "Government" in the expression "in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 28  

the  service  of  the  Government’ in s.  2  of  the  Public Servants ((Inquiries) Act, 1850, means the Government  under which  the officer concerned is at the time when  the  order for  inquiry is made holding an office, is correct.  I  have some doubt as to the correctness of this view.  It seems  to me  that it might well be that the word  "Government"  there means the Government which originally appointed the  officer and  whose  servant  he still continues  to  be  though  his services might have been lent to another authority.  If this is  the correct view, then much of the difficulty  that  has been  felt in this case would disappear and in that  case  I would have answered the question referred to this bench in a way  different  from  what I am now  inclined  to  do.   The question  however  whether  the  decision  in  Sardar  Kapur Singh’s case(1) is right or not, does not arise in the  pre- sent case and cannot be gone into.  For the purpose of  this Reference  that decision has to be accepted as correct.   On that  basis,  I find the view expressed by  Hidayatullah  J, preferable and I agree with it. AYYANGAR J.(on behalf of K. N. WANCHOO, K. C. DAS GUPTA  JJ. and  himself) : The question referred to this Bench  relates to  the proper Construction of s. 2 of the  Public  Servants (Inquiries) Act, 1850 (which for convenience we shall  refer to as the Act) and in particular of the words "any person in the  service  of  the  Government  not  removable  from  his appointment   without  the  sanction  of   the   Government" occurring  in it.  The circumstances in which the  reference came  to  be  made  are set out in  a  short  order  by  the referring Bench. [The  Order  of Reference extracted here is  limited.   Ed.] Adopting the phraseology used in the Order of Reference. the question  to be answered is whether the third condition  set out  in it is satisfied viz., whether the Government of  the Punjab  is the appropriate Government vested with  power  to direct an inquiry under the Act against the appellant. In the Order of Reference two alternative construc- (1) [1960] 2 S.C.R. 569. 241 tions  of  the expression ’not removable  from  appointment’ were suggested and we have now to determine which of them is correct.   The submission of Mr. Setalvad appearing for  the respondent-State  was  that  the  word  ’removable’  in  the context  meant not termination of employment  as  ordinarily understood  but  a  reference to a  power  to  transfer  the officer from one appointment or post held by him to another, i.e., competent to impose  punishment by way of a  reduction in  rank.   The submission of the appellant who  argued  his case in person, however, was that ’removable’ in the context of its being a removal by way of punishment was a  reference to "removal" as known to the Service Rules VI Z., a  removal from  the office altogether i.e., virtually a  dismissal  of the incumbent.  The question for our consideration is  which of these two interpretations is correct. Before,  however,  proceeding to deal with these  rival  in- terpretations it is convenient, just to clear the ground, to state that it was not any part of the submissions on  behalf of the respondents that it was not an independent  statutory requirement  of s. 2 that the.  Government ordering the  en- quiry  should  be competent to remove the officer  from  his appointment  [whatever  meaning might be attributed  to  the word  ’removable’]  besides  the other  condition  that  the Officer  concerned should be in the service of that  govern- ment.  In other words, it was not suggested that the section was capable of the construction that it was sufficient  that the officer was employed under that Government and that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 28  

’third  condition’ was merely an explanation or incident  of the  second condition viz., of being ’in the service of  the Government. It  would  be noticed that there are two words used  in  the relevant portion of s. 2 on whose proper  interpretation the answer  to  the question referred would turn and   they  are ’removable’ and ’appointment’.  We shall first deal with the word ’removal’ and later with the other. The expression ’removable’ has been in the Act from the time of its first enactment in 1850 and it occurs not only in  s. 2 with which we are primarily concerned but in other places, and  as  we  consider that the history  of  the  legislation relating   to  inquiries  against  public  servants   throws considerable  light  on the meaning of this term,  we  shall briefly  refer to it.  It is only necessary to add that  the Act itself has under- 242 gone  some legislative changes which also are of some  rele- vance  in  this context but this we  shall  consider  later. When enacted in 1850, the preamble to the Act ran:               "Whereas it is expedient to amend the law  for               regulating  inquiries  into the  behaviour  of               public  servants  not  removable  without  the               sanction  of Government and to make  the  same               uniform  throughout the territories under  the               Government  of the East India Company,  it  is               enacted as follows:" This preamble would indicate that the Act was intended  only for enabling the institution of inquiries into the behaviour of certain classes of public servants, i.e., those who  were not  removable without the sanction of Government.   Section 2, as it originally stood, ran:               "2.  Whenever  the  Government  shall  be   of               opinion that there are good grounds for making               a formal and public inquiry into the truth  of               any  imputation of misbehaviour by any  person               in  the service of the East India Company  not               removable from his office without the sanction               of  the  same Government, it shall  cause  the               substance of the imputations to be drawn  into               distinct Articles of Charge, and shall,  order               a format, public inquiry to be made into  the,               truth thereof". The  word  Government  was  defined  in  s.  23  again  when originally enacted, in the following terms:               "The  word  ’Government’ as used in  this  Act               means  the  Governor-General in  Council,  the               Governor or Deputy Governor of the  Presidency               of  Fort  William in Bengal  the  Governor  in               Council of the Presidencies of Fort St. George               and Bombay, respectively, and the  Lieutenant-               Governor  of  the North-Western  Provinces  of               Bengal  whose sanction  is necessary  for  the               removal of the person accused" The  other  sections viz., 3 to 22 & 24 and 25 were  in  the same  form  as  they  now  are  and  we  shall  reserve  the consideration  of  their  relevance  for  interpreting   the relevant  expressions, used in s. 2 after we  have  examined certain other matters. The  problem  raised by the reference is occasioned  by  the fact that on the definition of ’Government’ in s. 23 in  the Act  as it-now stands, the Government which is competent  to "remove"  the  officer  in the sense of  removing  him  from service is not always that Government whom the offi-               243

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 28  

cer  is serving, for in the case of the members of  the  All India  Services they are appointed by the  Union  Government and are removable only by that appointing Government, though such  officers  are allotted to the States and  serve  under State  Governments.   This situation should not  obscure  or deflect  the interpretation of the relevant provisions  and, in our opinion, for a correct appreciation of the situation, it  is  necessary  to  trace  historically  the   provisions relating  to  the enquiries against public servants  of  the type we have in the Act.  The Act of 1950 was the first uni- form  law throughout the territories of the East India  Com- pany,  but  it would be both interesting and  useful  to  go beyond  and before it for understanding not only  the  phra- seology  employed, but the actual import of the  expressions used. The  Act  of 1850 repealed three enactments  which  were  in force  in each of the three presidencies of  Bengal,  Madras and Bombay Regulation 26 of 1839 in Bengal, Act XIII of 1843 in  Madras and Act VI of 1838 in Bombay, consolidated  their provisions  and re-enacted a law which was to be  applicable to the entirety of the territories under the  administration of  the  East India Company.  It would not be  necessary  to refer  to  all these three pieces of legislation,  for  they followed  a  very similar pattern,  using  almost  identical language  as  that employed in the Regulation which  was  in force in Bengal.  The earliest of the Bengal Regulations was Regulation 13 of 1793 which underwent several amendments and was  finally  consolidated into Regulation 26  of  1839  and which was repealed by the Act of 1850.  The preamble to this Regulation  of  1793 stated that it was  made  for  enacting rules  for the appointment of ministerial officers of  civil and  criminal Courts of judicature and for regulating  their duties  including provisions for receiving or  charging  any acts  of  corruption  and extortion that  may  be  preferred against them.  Sub-s. (1) of s. 9 of this Regulation enacted that  the  ministerial officers of the  civil  and  criminal courts  were  declared amenable to the Court to  which  they were  respectively  attached  for  acts  of  corruption   or extortion and the courts were empowered to receive any  such charges  that might be preferred against  them.   Similarly, the  second sub-section vested a similar power in the  Sadar Diwani Adalat and the Nizamat Adalat               244 which  were  empowered to receive charges of  corruption  or extortion against ministerial officers of a Provincial Court of  Appeal or of a court of circuit.   Elaborate  provisions regarding  the procedure for the inquiry and trial of  these charges  were  made  and when the offence  was  held  to  be finally  established s. 11 provided that the court by  which the  final decree may be passed shall transmit a copy of  it to  Governor-General  in  Council who, in  addition  to  the penalties or punishments specified in the decree, will,  "if there shall appear to him grounds for so doing, declare  the offender  incapable of serving Government in any  capacity". It  is  not necessary to refer to  the  several  Regulations which  were  enacted,  between 1793  and  the  consolidating Regulation 26 of 1839 but it may be of some significance  to refer to a few of them in which the phraseology employed  in the  Act and which we are called on to interpret  was  used. Thus s. 8 of Regulation V of 1803 which vested in the  Sadar Diwani Adalat the jurisdiction to try appeals from decisions Of  the  Provincial  Court of  Appeal  established  for  the Province ran:               "If  any person shall charge the judge of  the               zillah  court, or of the provincial  court  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 28  

             appeal,  before  the Sudder  Dewanny  Adawlut,               with  having  been  guilty  of  corruption  in               opposition  to  his  oath,  the  court   shall               receive  the  charge.........  If  the  charge               shall be established, the Governor-General  in               Council will either remove such Judge from his               office  or  suspend  him  from  the  Honorable               Company’s service, or pass such other order as               may appear proper. We are drawing particular attention to this provision  beca- use  of the use of the word ’remove’.  Then we have  Regula- tion  8  of 1806.  The preamble to  this  Regulation,  after referring  to the earlier enactments by which Collectors  of revenue,  commercial  residents,  or  agents,  salt  agents, collectors  of  the customs or other duties, the  -mint  and assay masters and their respective assistants, "are declared amenable  to the zillah or city court of Dewanny Adawlut  in the  jurisdiction of which they may reside, or carry on  the public business committed to their charge, for any acts done in   their   official  capacity,  in   opposition   to   any regulation",   and  after  reciting  various   parliamentary enactments  which  dealt  with the  prosecution  of  persons employed in the Company’s                             245 service  who were guilty of breach of trust or  embezzlement of  public moneys etc., recited that this was in order  that the Government may be enabled to judge whether such  officer deserved any longer to be continued in the employment of the Company and that in cases which may appear to require it the provisions of the law may be carried into effect by a public prosecution  in  the Supreme Court of,  judicature,....  The following  rules are accordingly enacted: "By s. 2  of  this Regulation  European public officers amenable to the  zillah or  city court may be proceeded against under s. 4 and s.  4 enacted :               "Whenever   a   complaint,   or   charge    of               corruption.... or a charge of embezzlement  of               public money, or stores, or of any gross fraud               upon the Company or breach of public trust, or               other high misdemeanor, such as may appear  to               come  within  the provisions of  the  statutes               quoted in the preamble to this regulation,  or               may  be  indictable as a  misdemeanor  in  the               Supreme  Court of Judicature under  any  other               statute in force, or though not so  indictable               may amount to a gross breach of duty or trust,               such  as,  if established, would  Subject  the               party  to  dismission from office ;  shall  be               preferred   against   any  of   the   officers               mentioned in Section 2, of this regulation, in               any   zillah,   city,  or   provincial   court               authorized  by the regulations to receive  the               same  ; or before the court of Sudder  Dewanny               Adawlut  ; the judge, or judges, of the  court               receiving  such  complaint  or  charge,  shall               transmit a copy and English translation of the               petition of plaint or charge, for the informa-               tion  and  orders of the Governor  General  in               Council". Sections  5 to 17 enacted procedural provisions of the  same type  as we have in ss. 3 to 22 of the Act and s. 17 of  the Regulation reads:               "The   Governor   General   in   Council,   on               consideration  of the report  and  proceedings               submitted to him in persuance of the foregoing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 28  

             section,  will pass such final orders  as  may               appear to him just and proper and in the event               of  his  deeming it necessary that  the  party               accused  should  be  brought to  trial,  by  a               public  prosecution, in the Supreme  Court  of               Judicature,    will   issue   the    necessary               instructions  for  that  purpose  to  the  law               officers of Government". 246 From this it would be clear that ’the final order as may ap- pear to him to be just and proper’ would include the dismis- sal which is referred to in s. 4. Reference may also be made to  s. 19 of this Regulation which contains a saving in  the same form as we have in s. 25 of the Act, for that reads:               "Nothing  in the persent regulation  shall  be               construed to preclude the Governor General  in               Council from ordering a public prosecution, in               the  Supreme Court of judicature, whenever  it               may  appear to him expedient,  without  making               the special inquiry herein provided for.   Nor               will  any  resolution  or  order,  which   the               Governor  General  in Council may  pass  under               this   regulation  prevent  individuals   from               having recourse, at all times, to the  supreme               court, in the mode prescribed by law." , By  s.  5  of  Regulation  10  of  1806  the  then  existing provisions  applicable to judges etc. under the  Regulations of 1793, Regulation 4 of 1803 and Regulation 8 of 1806  were made  applicable to charges of the same nature  against  any covenanted  servant of the Company employed in the  judicial department.   Finally, we have Regulation 26 of  1839  which repealed   portions   of   the   earlier   Regulations   and consolidated the law with reference to the mode of  inquiry, particularly   those  portions  of  the  Regulations   which required  security  to  be furnished by  those  persons  who preferred  charges against the officers.  Section 2 of  this Regulation  26 of 1839 which corresponds to s. 2 of the  Act ran: "If the Court of Sadar Dewani and Nizamut Adawlut, either of the Sudder Boards of Revenue, or the Board of Customs,  Salt and  Opium,  shall be of opinion  that  substantial  grounds exist for making a regular and formal inquiry into the truth of  any  imputation  of Official  misconduct  affecting  any officer....   not   removable  without   the   sanction   of Government,  they shall submit the documents on which  their opinion  may  be founded, together with a statement  of  the charges reduced to distinct articles which they may  propose to  be made the subject of a regular investigation,  to  the Governor of Bengal.............. In  other words, where the officer could be removed  by  the courts and authorities mentioned in the earlier part of  the section they could themselves take action but in the case of 247 an  officer who could not be removed except by Government  a reference  was  necessary  to be  made  to  the  Government. Section 9 enacted that if the Governor agreed with the Board or  authority  making the reference that there was  a  prima facie case for inquiry, he shall appoint a commissioner  and s. 20 provided that the Governor will "pass such decision as he deems most just" and "if he deems it proper may order the accused to be brought to trial" and there is a saving of the same  type  as we have in s. 25 contained in s.  21  of  the Regulation. The same language as we have just extracted from s. 2 of the Bengal  Regulation  26 of 1839 is to be found in Act  13  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 28  

1843  which was in force in the Presidency of Madras.   That section ran :               "2.   In  case  of  imputation   of   official               misconduct  of an officer subject to Sudr  and               Fouidaree Adawlut or Board of Revenue, and not               removable without sanction of Government, such               Courts  or Board may submit documents,  &  C.,               and  charges, to the Governor in  Council  for               his consideration"., and  s.  20 which deals with the power of  the  Governor  in Council is in the same terms as s. 19 of the Act  applicable to Bengal which we have extracted. This  examination  leads us irresistably to  the  conclusion that the word "remove" was used in the legislation preceding the  Act  of  1850,  as  synonymous  with  "termination   of service",  though a variety of phraseology was  employed  to denote  the  same idea:-"declare the offender  incapable  of serving Government" (s. 11 of Bengal Regulation 13 of 1793), "remove" (Bengal Regulation 8 of 1803); "Judge whether  such officer   deserved  any  longer  to  be  continued  in   the employment  of  the  Company"  and  "subject  the  party  to dismissal  from  office" (Bengal Regulation 8 of  1806)  and "not  removable without sanction of Government"  (Regulation 26 of 1839). Before concluding this examination of the language  employed in  the earlier enactments in pari materia with the  Act  of 1850  and  throwing  light  on  the  meaning  of  the   word ’removable’  used in s. 2 of the Act, it would be  pertinent to  refer to certain parliamentary enactments of the  period which also throw some light on the problem.  In the  Charter Act of 1833 (3 and 4 Will.  IV, Ch. 85) which 248 regulated the status and powers etc. of the East India  Com- pany and the Government of India by that body s.74 enacted:               "And  be it enacted, that it shall  be  lawful               for His Majesty, by any Writing under his Sign               Manual, Countersigned by the President of  the               said  Board  of Commissioners,  to  remove  or               dismiss   any  person  holding   any   office,               Employment  or Commission, Civil or  Military,               under the said Company in India...."               and again in s. 75:               But  that the said Court (Court of  Directors)               shall  and may at all times have full  Liberty               to  remove or dismiss any of such officers  or               servants at their will and pleasure;  provided               that any Servant of the said Company appointed               by  His Majesty .. shall not be  dismissed  or               removed without His Majesty’s approbation,  as               hereinbefore is mentioned" This antecedent history makes two things clear; (1) that  in them  the word ’remove’ is used in the sense of  termination of employment or dismissal from the service of the  Company, and  (2) that it was a condition of the Governor’s power  to initiate the inquiry that he should have the power to effect the  "removal"  in  that sense i.e.  the  dismissal  of  the officer.   It  need  hardly be mentioned  that  since  these enactments-XXVI  of 1839, XIII of 1843 and VI of 1838,  were local-each applicable only to a single Presidency-there  was no  necessity to have a definition of ’Government’  such  as became necessary when these laws were consolidated under the Act of 1850. This  exhausts the legislative provisions antecedent to  the Act  of  1850  and  which throw  light  on  the  phraseology employed in it.  Before leaving this aspect of the case,  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 28  

might  be  useful  to refer to some  enactments  which  were passed closely after the Act.  A few years after the Act now under consideration was passed the Government of India  Act, 1858 (21 and 22 Vict., Ch. 106) was enacted.  Section 30  of that Act dealt with the patronage in respect of appointments etc.  in India and referring to the powers of the  Secretary of State in Council, went on to provide that "he shall  have the  like  power to make regulations for  the  division  and distribution of patronage and power of 249 nomination among the -several authorities in India, and  the like  power  of  restoring to their  stations,  offices,  or employments,  officers and servants suspended or removed  by any authority in India, as might have been exercised by  the Court  of Directors etc We refrain from referring  to  later Parliamentary  enactments  for  the reason  that  they  were passed  at  a  time when under the Service  Rules  the  word ’removal’  was  used and that expression  attained  a  clear technical  meaning  as a termination of  employment  falling short  of  dismissal,  in that  certain  penal  consequences barring reemployment in Government service did not follow. While  on this topic, as regards the meaning that word  bore in  the  Act as originally enacted we consider it  would  be pertinent to refer to a cognate provision occurring in s.466 of the Criminal Procedure Code of 1872.  The words of  that section  which was the forerunner of s. 197 of  the  present Code of Criminal Procedure, 1898 ran :               "A  complaint  of an offence  committed  by  a               public servant in his capacity as such  public               servant, of which ..... any public servant not               removable from his office without the sanction               of the Government is accused as such    public               servant, shall not be entertained against such               public  servant, except with the  sanction  or               under  the direction of the Local  Government,               or  of  some officer empowered  by  the  Local               Government The decisions on the construction of the word ’remove’ in s. 466 and its successor s. 197 of the Code of 1898 are uniform and  we consider it would be sufficient to refer to  a  very early decision of West and Pinhey, JJ. of Bombay High  Court reported in Imperatrix v. Bhagwan Devraj(1).  A police patel was  prosecuted  for  an  offence committed  by  him  in  Ms official  capacity.  It was his contention that he  was  not "removable"’  without  the sanction of Government  and  this contention having been accepted the Sessions judge  annulled the  conviction and sentence.  The argument of  the  learned pleader  who appeared for the Crown who filed the appeal  is thus set out in the report : "Sanction is necessary only in the, case of public’ servant (1) I.L.R. 4 Bom. 357. 17-2 S C India/64 250               who  is not removable from his office  without               the  sanction  of the  Government.   A  police               patel  is  not  such  a  person;  he  can   be               dismissed  by  a  Magistrate  (First   class),               subject  to  the sanction of the  Police  Com-               missioner."               and as to this the court said               " It appears that a patel may be dismissed  on               proof  of misconduct, by a  Magistrate  (First               class), subject to the sanction of the  Police               Commissioner.   Section  466 of  the  Code  of               Criminal Procedure, therefore, does not  apply

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 28  

             to the case.................. In  passing  it  may  be pointed out  that  Harries,  C.  J. understood  s. 197 of the Code of 1898 in the same way in  a decision  reported as Angelo v. Kandan Manibi (1).  At  page 225 of the report the learned Chief justice equated the word ’removal’  with the word ’dismissal’ as would be  seen  from the following passage :               "I  have already stated that Capt.  Angelo  is               undoubtedly a public servant, and, in my view,               is  a  servant who is not removable  from  his               office  save  with the sanction of  the  Local               Government.   In my view, as  his  appointment               could  only be made with the sanction  of  the               Prolvincial  Government,  his  dismissal  also               would require such sanction". We  are not referring to other cases on the meaning  of  the expression ’remove’ in s. 197 of the Criminal Procedure Code 1898  for  the reason that these decisions are  uniform  and ’removal’  is  equated with the  termination  of  employment i.e.,   practically  with  dismissal  and  has  never   been understood as meaning a reduction in rank or a transfer from one post to a lower post by way of punishment. The  position, therefore, would be that if the Act  of  1850 continued in the same form, the point, in our opinion, would be  inarguable  that  ’removal’  meant  anything  else  than removal as understood in the Service Rules as a punishment. The  Act however underwent some amendments in 1897 by Act  I of  1897 and we shall now proceed to consider the effect  of these   amendments.   Before  however  setting   out   these amendments,  it  is necessary to point out that by  1897  as contrasted with the state of things in 1850 the (1) 41 Criminal Law Journal 221. 251 British  Crown  had assumed to itself all the  powers  which before  then vested in the East India Company and since  the Act of 1850 had, in its preamble and in s. 2, used the words "Service of the Company" amendments had to be made in  order to fit the words of the statute into the new situation.   We shall  now  proceed  to consider each  one  of  the  several amendments  which were introduced by the Act of -  1897  and examine  whether they have really made any  change  material for  the present purpose.  The preamble as amended  ran,  to quote only the relevant words :               "For  regulating inquiries into the  behaviour               of  Public Servants not removable  from  their               appointment without the sanction of Government               and  to make the same uniform  throughout  the               territories under the Government of India,  it               is enacted as follows :" Now  for  the words "not removable without the  sanction  of Government"  were substituted the words "not removable  from their  appointment without the sanction of Government".   It was  suggested  by learned counsel for the  respondent  that this  made a significant change and that there was a  marked difference  introduced  by the addition of the  words  "from their   appointment"  into  the  preamble.   But   to   this difference  we shall advert later because there  is  another such  change  made in s. 2 and the two might  be  considered together.  Section 2 as amended ran :               " Whenever the Government shall be of  opinion               that  there  are  good grounds  for  making  a               formal  and public inquiry into the  truth  of               any  imputation of misbehaviour by any  person               in  the  service of Government  not  removable               from  his appointment without the sanction  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 28  

             the  Government, it shall cause the  substance               of  the imputations to be drawn into  distinct               Articles  of Charge, and shall order a  formal               public  inquiry  to  be made  into  the  truth               thereof." Along  with this the amendment effected in s. 23 has  to  be taken into account and the section, as amended, read :               "The  powers of the Government under this  Act               may in all cases be exercised by the Governor-               General  in  Council,  and  when  the   person               accused can be removed from his appointment by               the Local Government, those 252        powers may also be exercised by the Local Government" The  two points arising for consideration on the changes  in the preamble and these sections would be : (1) whether there is  any  difference between the content or  meaning  of  the words  "an  -officer not removable without the  sanction  of Government"   and   the  words  "not  removable   from   his appointment  without the sanction of Government" in s. 23  ; (2) whether there is any difference between "removable  from his  office"  used  in s. 2 as it was enacted  in  1850  and "removable  from  his appointment without  the  sanction  of Government"  brought in by the amending Act of 1897.   These two  may be considered together.  Let us first take the  Act before  it  was amended-the relevant words used in  it  were first in the preamble "Public servants not removable without the sanction of Government" and in Section 2 "person in  the service  of  the East India Company not removable  from  his office  without the sanction of the same Government" and  in s.  23  "Government  whose sanction  is  necessary  for  the removal  of  the person accused".  It is  obvious  that  the "removal" in the three places has reference to removal ’from office’ and though the word ’office’ was not used either  in the  preamble  or in s. 23, in the context the  omission  is immaterial.   Taking next the Act after the  amendment,  the relevant phraseology in the three places was "not  removable from  their appointment without the sanction of  Government" (preamble), "not removable from his appointment without  the sanction  of tile Government" (s. 2) and the same but  in  a positive  form "when the person accused can be removed  from his  appointment  by the Local Government" in  s.  23.   The material  variation  brought  in by the  amendment  was  the substitution of the word "from his office" by the word "from his  appointment".   The question is whether  there  is  any difference   between   removal  of  a   person   from   "his appointment’  and  the removal from the  office  which  such person holds, the meaning of the word "removable"  remaining the same.  There could be no serious controversy that though the   Service   Rules  might   make   distinctions   between appointments  to a Service and appointments to a  post,  the expression ’office which a person hold’ 253 is  the same as that to which he is appointed.  If a  person is  appointed  to  an office there  can  be  no  distinction between  a removal from his ’appointment and a removal  from his  office, for they both signify the identical  idea.   We consider  the  conclusion inescapable that the Act  of  1897 really  effected  no  relevant  change  in  the  law  as  it originally stood in 1850, except that by dropping the  words ’East India Company’ and "the Company’s Servants" it brought it  into line with the nomenclature of the Government  after the  Government of India Acts of 1858 and 1861.  Of  course, there  was  some  little change effected by  reason  of  the amendment  to  s.  23  as to  the  Governments  which  could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 28  

initiate these proceedings by conferring a superior power on the Governor-General, but this is irrelevant for our present purposes. The next amendment effected to the Act was by the adaptation order issued in 1937 under the Government of India Act, 1935 to  bring  the  provision  of the Act  into  line  with  the constitutional   changes  effected  by  that   Parliamentary statute.  Before proceeding to deal with it, however, it  is necessary  briefly  to advert to the  arguments  strenuously pressed  before  us  by Mr.  Setalvad  that  the  amendments effected  by the Act of 1897 were intended to bring about  a change in the law.  His submission was this : A Bill No.  20 of  1896  was introduced into the Council of  the  Governor- General  of India on September 20, 1896 to amend Act  37  of 1850.   As  originally  drafted and,  as  published  in  the Gazette,  there  was  no material  change  effected  in  the preamble  except  the  dropping  of  the  word  ’East  India Company’ and its substitution by the word ’India’.  In s.  2 the original Bill proposed for the words ’any person in  the service  of  the East India Company not removable  from  his office without the sanction of the same Government’ the word ’Government’.  If that amendment stood the words material to the context would have read : "Imputation of misbehaviour by any person in the service  of Government............ and for s. 23 the words originally proposed were "the powers of  Government under this Act may in all cases be  exercised by  the  Governor-General  in Council and  when  the  person accused can be removed by a Local Govern- 254 ment  those  powers  may  also be  exercised  by  the  Local Government."  In  the statement of objects and  reasons  the purpose  of  the amendment by the Bill was stated to  be  to clarify  the  language which was obscure and  bring  it  "in accord with the present state of facts" and to remove doubts which  might  arise  on the construction of  s.  23  and  to declare  the authority by whom the powers of Government  may be exercised.  In this connection it is necessary to  advert that  by the date of the Bill there was no such official  as the  Deputy Governor of the Presidency of Fort  William,  or Lt.    Governor   of   the   NorthWestern   Provinces,   and consequently the Act as it then stood referred to a state of affairs which had ceased to be relevant.  Mr. Setalvad  then drew our attention to the fact that the Government of Madras had  objected  to the amendment in that form on  the  ground that  the  amendment as proposed would  interfere  with  the powers  which  that Government was exercising  over  certain officers  and  in particular I.C.S. officers  serving  under that  Government  and that for that reason and in  order  to satisfy the apprehensions of the Madras Government as to the effect  of the amendments as originally proposed  the  words "removable  from  his appointment" were used in  the  places where  they are now found.  Learned counsel also invited  us to  the report of the Select Committee in which there  is  a reference  -to  these representations of the  Government  of Madras.  From these facts learned counsel invited us to hold that  the substitution of the words "from  his  appointment" for the words "from his office" were intended to enable  the Local  Government  to exercise Jurisdiction  under  the  Act against officers of the type of the appellant before us. We consider, however, that this is not material which  could legitimately be taken into account to construe the provision where, as we have stated earlier, they are absolutely clear. In Herron v. Rathmines(1), Lord Halsbury, L.C.said :               "I  very heartily concur with the language  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 28  

             Fitzgibbon,  L.J., that ’we  cannot  interpret               the Act by any reference to the Bill, nor  can               we determine its construc- (1)  [1892] A.C. 498, 502. 255 tion by any reference to its original form’ To  a  similar effect is an observation of Lord  Wright  who said in Assam Railways and Trading Co. Ltd v. Inland Revenue Commissioners (1) :               "It  is clear that the language of a  Minister               of  the  Crown in proposing  in  Parliament  a               measure   which  eventually  becomes  law   is               inadmissible  and the report of  commissioners               is even more removed from value as evidence of               intention,  because  it does not  follow  that               their recommendations were accepted."               Willes, J. said in Millar v. Taylor (2) :               "The sense and meaning of an Act of Parliament               must  be  collected  from what  it  says  when               passed into a law, and not from the history of               changes  it  underwent in the House  where  it               took its rise."               The  alterations made in the Bill  during  its               passage through Committee are :               "wisely inadmissible to explain it."               (R.   v. Hertford College) (3) : It  would  not be correct to say that every  change  in  the phraseology  introduced  by  way  of  amendment  necessarily implies  exchange in the content of the provision or in  its meaning,  for it entirely depends upon whether  these  words are  merely meant to clarify or to alter the  then  existing meaning.   Now, take for instance the use of the  expression "Governor whose sanction is necessary for the removal of the person accused" used in s. 23 a enacted in 1850.   "Removal" is  ambiguous  for it might refer (a) to  removal  from  ap- pointment, or (b) to physical removal of the person.  It  is obvious  that  it cannot be the latter.  Therefore  the  ad- ditional words ’removal from his appointment’ merely clarify what  the word ’removal’ already meant and do not alter  its meaning.   Nor can it be said that there was  a  distinction drawn between the words ’office’ and ’appointment’ and  that the  substitution  of the word ’appointment’  for  the  word ’office’  in  s.  2 introduced a  vital  difference  in  the meaning  of the word ’remove’ which occurs not only in s.  2 but in the preamble, in s. 23 as also in s. 25 which remains till today in the form in which it (1) [1935] A.C. 445, 458    2) (1769) 4 Burr. 2303, 2332 (3)  [1878] 3 Q.B.D. 693, 707. 256 was when originally enacted.  Section 25 runs:               "25.   Nothing in this Act shall be  construed               to  effect  the authority of  Government,  for               suspending or removing any public servant  for               any cause without any inquiry under this Act." It  cannot  be that ’removal’ meant a power  to  reduce’  an officer  in  his rank in ss. 2 and 23 but by the  same  word used  in  s.  25 is meant removal from  service  i.e.,  ter- mination  of employment.  We are saying this  because  there was  no alteration or amendment effected to s. 25  in  which the  word  ’remove’ continues to express the  same  idea  of termination  of  employment  as  it did  under  the  Act  as originally enacted, and as it is conceded, it does even now. The meaning of the words being clear, this extraneous aid to interpretation  in  the  form of the report  of  the  Select Committee  is,  even if in any particular  exceptional  case

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 28  

legitimate, wholly irrelevant in the case before us. It  was next submitted that as the Government of Madras  had in  their communication to the Government of  India  pointed out  that that Government had been utilising the  provisions of  the  enactment and their powers under s. 2 even  in  the case  of  I.C.S. officers who could not be  removed  by  the Governments   in  India,  we  should  consider  this  as   a "contemporaneous     exposition"    or     an     "executive interpretation"  of the statute and therefore of some  guide to  the interpretation of its provisions.  We consider  that this argument is without substance.  In the first place,  it is  clear  even  on the material placed  before  us  by  the learned  counsel that it was the Government of Madras  alone that  had brought to the notice of the Government  of  India that  the  power  of  the  Local  Government  to   institute inquiries against I.C.S. officers would be affected, if  the amendments  as proposed in the original Bill whose terms  we have set out, were put through.  It would, therefore, appear as if no other Local Government in India had ever sought  to do so but they proceeded on the construction that it was not within  their  power  to  institute  inquiry  against   such officers.   In other words, every Local Government in  India other than the Madras Government proceeded on the view  that ’removal’ 257 meant  removal under the Service Rules viz., termination  of employment,  and as the Local Government had no  such  power over officers recruited by the Secretary of State it was not capable of exercising that power.  If therefore contemporary exposition were any guide, the conclusion should be contrary to  that  suggested by learned counsel for  the  respondent. Besides" even the Government of Madras in the  communication to the Government of India to which our attention was drawn, referred  only to one instance and we do not  consider  that this isolated instance furnishes any basis on which to  rest an   argument  about  "contemporania  exposition".    Lastly contemporaneous exposition has value only when such views or actions  could  be  tested in Courts and there  has  been  a general  acquiescence  in the course adopted or  the  action taken by the executive authority.  It is obvious that  there is  no basis for such an argument in the present case.   The position,  therefore,  is  that we have to  cons,  true  the section  as  it stands after the amendment by  comparing  it with  what it was before and so considered it is clear  that the  changes made are inconsequential and were merely  meant to  clarify  and  bring the provisions into  line  with  the circumstances then existing and were not meant to effect any radical  change in the position of Government  servants  and the powers of Local Governments over them. Before parting with the submission regarding the evidentiary value  of the objections raised by the Madras Government  to the  amendments  originally  proposed  to  the  Act,  it  is necessary to advert to one matter.  It would be seen that it was the view of the Madras Government that on the Act, as it originally  stood, it had power to direct enquiries  against I.C.S. Officers serving in that Presidency and if that  were right  really nothing turns on the effect of the  amendment. We  did  not,  however understand learned  counsel  for  the respondent  to  suggest  that on the words of  the  Act,  as originally  enacted,  the  words  "removal  of  the  accused person" and "removal from office" could mean anything  other than  removal  by termination of employment.   The  argument based  on  the  executive  interpretation  of  the  amending section must, for this additional reason, be rejected.                             258

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 28  

From  another  aspect  the problem could  be  stated  to  be whether  by  reason  of the changes  effected  in  1897  the content of the expression ’removable’ underwent any  altera- tion or became from bearing the meaning of "terminable  from employment"  to "reduction in rank".  It would be seen  from the foregoing that on any proper construction of the Act  as it  emerged after the amendments of 1897 it is not  possible to read any such alteration. Something was said to us about the legitimacy of a reference to  the  state  of  the law before  and  the  evil  which  a legislation was intended to overcome as legitimate guides to the  interpretation  of  statutes, but such  an  enquiry  is wholly   inapposite  to  the  present  case,   because   the contention  which is urged by learned counsel for  the  res- pondent is not that a change was made in the law in order to overcome a difficulty but that the intention was to continue the law as it was always understood to be.  If this were the correct  position,  the change in the  phraseology  made  no difference.   If so, we have to examine the earlier law  and this shows that it is inconsistent with the construction for which the respondent contends. We now come to amendment effected to s. 23 by the Adaptation Order under the Government of India Act, 1935.  As  amended, the section read :               "In  this  Act  the  ’Government’  means   the               Central  Government  in the  case  of  persons               employed   under  that  Government   and   the               Provincial  Government in the case of  persons               employed under that Government." Pausing  here,  it  is  necessary  to  emphasise  that   the "adaptation"  was made under the powers conferred by s.  293 of  the  Government of India Act, 1935 which  empowered  His Maesty by Order in Council to provide that any law in  force in  British  India  "shall  have  effect  subject  to   such adaptations  and modifications as appear to be necessary  or expedient  for  bringing  the provisions of  that  law  into accord with provisions of this Act" and in particular  "into accord with the provisions thereof which reconstitute  under different  names  Governments and authorities in  India  and prescribe  the  distribution of  legislative  and  executive powers  between the Federation and the Provinces".   Why  we are drawing attention to this is that the manifest intention of the Adaptation was not 259 to  alter the law but merely to bring it into line with  the circumstances  and nomenclature that were brought in by  the constitutional  changes effected by the Government of  India Act, 1935. In this context it is necessary to advert to certain of  the provisions of the Government of India Act, 1935 because they throw light on the amendments actually carried out in s.  23 of  the  Act  which  we  have just  set  out.   It  will  be recollected  that s. 96(B) of the Government of  India  Act, 1915 as amended in 1919 contained a constitutional guarantee that   "no  person  shall  be  dismissed  by  an   authority subordinate to that by which he was appointed" which in  the case  of  a  person  appointed by  the  Secretary  of  State immunised  him  from dismissal by any  authority  in  India. This  provision  in the Government of India  Act,  1919  was repeated  in s. 240(2) of the Government of India Act,  1935 which read :               "No such person as aforesaid (a member of  the               Civil Service of the Crown in India) shall  be               dismissed   from  service  by  any   authority               subordinate   to   that  by   which   he   was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 28  

             appointed." The meaning of the word "dismissal’ here being defined by s. 277 thus "references to dismissal from His Majesty’s Service include  references to removal from His Majesty’s  service". Neither  the  Governor-General  nor  the  Governor  had  any authority  to remove persons appointed by the  Secretary  of State  from  their appointment.  Section  241  enacted  that "appointments to the Civil Service and Civil posts under the Crown in India shall, after the commencement of Part III  of this Act (April 1, 1937) be made in the case of servants  of the  Federation and posts in connection with the affairs  of the  Federation by the Governor-General and in the  case  of services  or  posts in connection with the  affairs  of  the Provinces by the Governor," and sub-section (2) enabled  the Governor-General  to  make  rules in  the  case  of  persons serving in connection with the affairs of the Federation and the  Governor in the case of persons serving  in  connection with  the affairs of the Province.  There were  provisos  to these provisions contained in sub-section (3) which are  not very  relevant  for our present purpose.   In  this  context reference may be made to s. 270 which contains the 260 pattern  of the distribution of officers between the  Centre and the Provinces and the phraseology which we find employed in the amended s. 23 of the Act.               S.    270(1)  Indemnity  for Past  acts  --’No               proceedings   civil  or  criminal   shall   be               instituted  against any person in  respect  of               any  act done or purporting to be done in  the               execution  of  his duty as a  servant  of  the               Crown  in India or Burma before  the  relevant               date, except with the consent, in the case  of               a  person who was employed in connection  with               the affairs of the Government of India or  the               affairs  of Burma, of the Governor-General  in               his  discretion  and in the case of  a  person               employed  in connection with the affairs of  a               Province, of the Governor of that Province  in               his discretion." The reason why we are drawing attention to these  provisions is that when quasi-federalism was introduced into the Indian Constitution  by  the  Government of  India.   Act,  1935  a distinction  was drawn between persons in the Civil  Service of  the  Crown  who were employed  in  connection  with  the affairs of the Federation and those who were employed in the Provinces  in connection with the affairs of  the  Provinces and  it is just this that is reflected in the amendments  to s. 23 and shows that this was merely designed to bring  that section  into line with the constitutional  provisions  just referred to. We  shall  now take up for consideration the effect  of  the change introduced in s. 23 on the identity of the Government which  could  take action under s. 2. To digress  a  little, before  the  amendment effected by the Adaptation  Order  of 1937  which  brought  in  the  idea  of  "employment   under Government"  (compare the terms of s. 270 of the  Government of  India  Act, 1935 already referred to)  as  distinguished from  "officers  removable from their appointments  by  that Government  the conditions for determining the  identity  of the  Government  which  could take action under  s.  2  were really  two : (1) that the officer must be "removable"  from his  appointment  by  the  Government  which  initiated  the inquiry, and (2) such a Government must be satisfied that it was  necessary  to  embark upon  this  inquiry.   And  this, notwithstanding  the word "The Government" occurring  thrice

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 28  

in s. 2 as 261 it does now.  The competency of the Government to remove the officer  was  the condition stipulated for  identifying  the Government under s. 23.  After the amendment of 1937, though the condition in s. 2 of the Act that it was that Government alone that could initiate any enquiry which had authority to ’remove’.  the  officer  was retained, because  s.  2  stood unchanged, a different concept was introduced in s. 23  that the Government must be that one-Provincial or  Central-under whom   the  officer  was  employed.   When  therefore   this definition was read into the operative provision in s. 2, it meant  that  instead  of there being two  conditions  to  be satisfied  before  the  enquiry could  be  initiated,  three conditions  had  to be satisfied, because  servants  in  the employ  of a Government were not necessarily ’removable’  by that  Government owing to the guarantees  regarding  service conditions  contained  in  the  Constitution.   It  is  this circumstance  that has been responsible for  the  difficulty created  by  the  definition  in s. 23  as  amended  on  the interpretation  of  s.  2 of the Act.  As,  however,  s.  23 constitutes   the   definition  of   the   expression   "the Government"  wherever it occurs in the Act, it would  follow that the terms of s. 23 have to be read in each of the three places  where the word "the Government" occurs in s. 2.  The decision  of this Court in Kapur Singh v. The Union  of  In- dia(1)  has  decided  that an officer of  the  Indian  Civil Services who has been allotted to a State and appointed to a post in that State is in "the employ of that State" for  the purposes  of  s. 23.  Therefore, "the  Government"  when  it occurs  first  in  s. 2 would mean,  having  regard  to  the definition,  only  the  State of the  Punjab  in  which  the appellant  before  us is employed.   The  Punjab  Government would  again be "the Government" in the 2nd condition  viz., misbehaviour  by a person in the service of the  Government’ where "the Government" occurs for the second time.  We  have next  the words "not removable from his appointment  without the  sanction  of the Government".  The only  meaning  which could  reasonably be attributed to these words would be,  if we  are right in our interpretation of the word  ’removable’ which we have discussed earlier, that it is that Govern- R. 569. 262 ment which is competent to terminate his employment.  It  is common ground that the State of Punjab is not the Government which  is  capable  of  removing  the  appellant  from   his appointment.   In  the  circumstances  the  question  arises whether  definition in s. 23 of the words  "the  Government" can  assist  the  respondent in contending  that  since  the appellant is "employed under that State" the last  condition is also satisfied.  We are clearly of the opinion that it is not  possible to accept such a construction.  The  condition that the officer against whom proceedings are taken must  be one  who  is  amenable to the disciplinary  control  of  the Government  which initiates the inquiry and is competent  to inflict  upon  him the punishment of removal  has  been  the basic ratio and purpose of the Act of 1850 ever since it was enacted.   The change effected by the amendment  brought  in 1897  retained  this  characteristic,  though  it  gave   an overriding   power  to  the  Governor-General  to   initiate proceedings  in  all cases whether or not  the  officer  was serving  a Local Government or the Central  Government.   It could  not,  therefore, be that by reason of  an  adaptation which was effected in order to bring the Act into line  with the  Constitution the Government of India Act, 1935-a  vital

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 28  

change was made which upset this basic feature and conferred a power upon a Provincial Government to institute an inquiry even when such a Government had not the power to punish  him by  way  of removal.  In this connection it is  not  without significance  that the words in the preamble of the Act  "To enact  a law for regulating inquiries into the behaviour  of public  servants  not  removable  from  their   appointments without  the  sanction of Government"  were  left  untouched i.e.,  without  the addition of the definite  article  "the" before   "Government"  when  it  occurs  here.   Hence   the definition of "the Government" in s. 23 of the Act as it now stands  would  not  in  terms apply  to  that  word  in  the preamble.  The result would be that the word ’Government’ as used  in  the  preamble would continue to  retain  the  same meaning  as  it had when the Act was originally  enacted  in 1850 when the word which s. 23 defined was ’Government’  and not ’the Government’ as it has done since 1897.  In 1850  it meant  read  with  the then definition,  "removable  by  the Governor-General 263 or  the Governor, Lt.  Governor etc." "whose  sanction.  was necessary   for  the  removal  of  the   accused   officer". Translated  in  terms of  post-Constitution  phraseology  it would  mean "who is not removable from his appointment  save with  the  sanction  of the Union Government  or  the  State Government, as the case may be".  If therefore the preamble, and  the  operative  provisions have to  be  reasonably  and harmoniously  construed, one must posit as a  condition  for the availability of the power to institute the enquiry under s. 2, that the officer must be one over whom the  Government that  initiates  the  proceedings  has  disciplinary  powers extending  to  his removal from service.  It  was  suggested that  there  was an anomaly which would be  avoided  if  the construction pressed on us on behalf of the respondent  were accepted.   It was pointed out that in the case of  officers of  the  All  India Services,  including  the  Indian  Civil Service, where they were employed in the State and not under the Central Government, if the word ’Government’ were  given the interpretation which we consider is the right one, viz., the  Government having the power to order his  removal  from service,  neither  the State Government nor  the  Union  Go- vernment would have the authority to exercise power under s. 2  ;  for  the  power  of  the  State  Government  would  be restricted to officers of the Provincial Services and  simi- larly the power of the Central Government could be exercised in  the case of officers of the All India Services  only  if they   were  employed  under  the  Union  Government.    The submission was that this anomaly, could be eliminated if  we understood  the  word  ’removable’  as  signifying  a   mere reduction  in  -rank as distinguished from  removal  in  the sense  of  termination  of employment.  What  we  have  said earlier  would suffice to show that ,historically and  as  a matter  of  mere  interpretation of the words  used  in  the relevant  sections the word "removable" is used in the  same sense  in  which it is used in connection with  the  service rules   as  a  punishment  involving  the   termination   of appointment.   If  that word cannot therefore but  be  given that significance, the anomaly cannot be avoided by  reading the  definition of the expression ’the Government’ in s.  23 into  the  words ’the Government’ when they  occur  for  the third time in s. 2. 264 That would be not only,incongruous but would not make sense, for  where the employing Government does not have the  power of  terminating  the  service of the officer  to  read  ’the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 28  

Government’ there as meaning the employing Government  would lead to a reductio ad absurdum.  Nor is it possible to  omit from  all consideration the words " not removable  from  his appointment  without the sanction of the  Government"  which would  practically be the result of that  construction,  for that  would be to rob the clause of its entire content,  for it  was the power to remove that was the criterion  for  the determination of the Government which had power to order the inquiry  from  1850  right  up  to  1937.   The  mere  fact, therefore, that in the case of a particular type of officers there  is no power in either the Union Government or in  the State  Government  to order an inquiry is  no  argument  for adopting  a  forced,  and we will even  add  an  impossible, construction  of  the section.  Nor would  the  construction which  we  have placed upon the terms of s. 2  lead  to  any practical inconvenience, even assuming that that would be  a relevant  consideration  when  a court  has  to  construe  a statute.   It  is  admitted  that  there  is  practically  a parallel  provision  for  conducting  an  inquiry  into  the misconduct  of  an  officer under  the  All  India  Services (Discipline  & Appeal) Rules, 1955-a proceeding which  could be initiated by the State Government where the officer  were in the employ of the State Government.  Nor is this the only remedy because an officer in the All India Services could be called  over  to the Union Government and  then  proceedings even  under this Act could be launched against him,  and  we -would   add  there  is  precedent  for   this.    Practical inconvenience  there  is none and in  the  circumstances  we consider  that the supposed anomaly which is brought  in  by reason of a definition :In s. 23 which does not entirely fit into the provisions of s. 2 of the Act, is no ground at  all for  adopting a forced construction of s. 2 by  reading  the word  ’removal’ in an unusual, if not an  unnatural,  sense. In this connection we might point out that we put a question to Mr. Setalvad whether there was any Service Rule from 1850 or thereabouts right up to date in which the words  ’removal of an officer from his appointment have been used in the 265 sense  of  "a reduction in rank" as distinguished  from  the termination of his employment and he fairly conceded that he could  not  point to any.  We would, therefore,  answer  the reference  by  saying  that  the  word  ’removable’  in  the reference means removable from his appointment in the  sense of  terminating  his appointment and signifies  the  penalty numbered  6  in Rule 3 of All India Services  (Discipline  & Appeal) Rules, 1955 where the expression is expanded to mean ’removal  from  the service which shall not  disqualify  for future employment’.  The reference is answered accordingly.