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PETITIONER: JAGANNATH PRASAD SHARMA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS.

DATE OF JUDGMENT: 06/03/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. HIDAYATULLAH, M. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1245            1962 SCR  (1) 151  CITATOR INFO :  R          1963 SC 779  (8)  F          1965 SC1103  (15)

ACT: Public  Servant-Disciplinary-Proceedings-Procedure-Two  sets of  Rules  applicable-Selection of  one  if  discriminatory- Governor’s Power to dismiss police officer U.P. Disciplinary Proceedings  (Administrative  Tribunal)  Rules,  1947-  U.P. Police  Regulations-Police  Act,  1861 (V of  1861),  s.  7- constitution of India, Art. 14.

HEADNOTE: There  were  certain charges of immorality,  corruption  and gross  dereliction of duty against the appellant who  was  a police  officer.   After an enquiry, the Governor of  U.  P. referred  the  case  under s. 4 Of the  U.  P.  Disciplinary Proceedings  (Administrative  Tribunal) Rules,  1947,  to  a Tribunal.   The  Tribunal recommended on February  4,  1950, that the appellant be dismissed from service.  The  Governor then  served a notice on the appellant to show cause why  he should  not be dismissed from service and after  considering the  explanation submitted by him dismissed him with  effect from  December 5, 1950.  The appellant challenged the  order of  dismissal,  inter  alia, on the grounds:  (i)  that  the Governor  had no power under s. 7 of the Police Act and  the U.  P.  Police Regulations framed thereunder  to  dismiss  a police  officer  and  (ii)  that the  enquiry  held  by  the Tribunal violated 152 Art.  14  Of  the  Constitution  as  of  the  two   parallel procedures available under the Tribunal Rules and under  the U.  P.  Police   Regulations, the mode  prejudicial  to  the appellant under the Tribunal Rules was adopted. Held  (per Das, Hidayatullah, Shah and Ayyangar,  JJ.)  that the  enquiry  by  the Tribunal and the  order  of  dismissal passed by the Governor were legal and valid. Under  para. 479(a) of the U. P. Police Regulations,  framed under S. 7 Of the Police Act, the Governor bad the power  to dismiss  a police officer.  Under the Tribunal  Rules  also,

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which  were framed in exercise of the various powers  vested in the Governor including the power under S. 7 Of the Police Act,  the  Governor  was  authorised  to  dismiss  a  police officer.   By virtue of Art. 313 Of the  Constitution  these provisions remained in operation even after the coming  into force  of  the Constitution.  The authority  vested  in  the Inspector-General of Police and his subordinates by S. 7  of the Police Act, was not exclusive; it was controlled by  the Government  of India Act, 1935, and the  Constitution  which made the tenure of all civil servants of a province or state during the pleasure of the Governor. The  procedure adopted did not violate Art. 14 Of  the  Con- stitution.  Though at the time when proceedings were started against  the appellant two distinct procedures  for  holding the enquiry were open for selection by the authorities,  the order by the Governor referring the case under the  Tribunal Rules  having been passed before the Constitution,  Art.  14 could   have   no  application  to  it  even   if   it   was discriminatory.   The  procedure ire-scribed in  the  Police Regulations  is  substantially  the same  as  the  procedure prescribed  by  the Tribunal Rules, and  by  continuing  the enquiry after the Constitution under the Tribunal Rules  and not  under the Police Regulations, a more onerous  procedure prejudicial to the appellant was not adopted.  The fact that an  order  made  by  a police  authority  under  the  Police Regulations  is made appealable whereas an-order  passed  by the Governor under the Tribunal Rules is not made appealable does  not  amount to discrimination within the-  meaning  of Art.  14.   The  Tribunal Rules provide for  the  giving  of reasonable  opportunity  to  a public  servant  in  ill  its aspects, viz., opportunity to deny his guilt, opportunity to defend  himself and opportunity ,to make his  representation against the proposed punishment.  The mere existence of  two sets of parallel procedures is not discriminatory unless  it was shown that one set is more onerous than the other. Syed Qasim Rozvi v. The State of Hyderabad [1953] S.C.R. 589 and  Lackhmandas  Kewalram.  Abuja v. The State  of  Bombay, [1952] S.C.R. 710, applied. Khem Chand v. The Union of India and others, [1954] S.C.  R. 1080 and Sardar Kapur Singh V: Union of India, (1960) 2 S.C. R. 569, referred to. 153 State Of Orissa v. Dhirendranath Das, A.I.R. 1961 S.C. 1715, distinguished. Per   Das  Gupta,  J.-The  U.P.,  Disciplinary   Proceedings (Administrative Tribunal) Rules, 1947, are hit by Art. 14 Of the Constitution.  The absence of the right of appeal  under the  Tribunal  Rules while a right of appeal is given  to  a police  officer  under the Police  Regulations,  results  in unequal  treatment  in a substantial matter  between  police officers   proceeded  against  under  the  two   procedures. Further,  there is no principle. to guide the Government  in selecting which of the two procedures is to be applied in  a particular case.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 490 of 1957. Appeal from the judgment and decree dated March 22,1954,  of the  Allahabad High Court in Civil Misc.  Writ No.  7854  of 1951. G....S.  Pathak, S. N. Andley, J. B.  Dadachanji,  Rameshwar Nath and P. L. Vohra, for the appellant. C....B. Agarwala, G. C Mathur and C. P. Lal, for respondents

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Nos. 1 and 3. 1961.  March 6. The Judgment of S. K. Das, M.  Hidayatullah, J. C. Shah and N. Rajagopala Ayyangar, JJ. was delivered  by J.  C.  Shah, J. K. C. Das Gupta, J. delivered  a  separate, Judgment. SHAH,  J.-In 1981, the appellant was admitted to the  police force  of  the  United Provinces and was  appointed  a  Sub- Inspector  of Police.  He was later promoted to the rank  of Inspector,  and  in  1946  was  transferred  to  the   Anti- corruption  department.   In 1947, he was  appointed,  while retaining   his  substantive  rank  of  Inspector,  to   the officiating   rank  of  Deputy  Superintendent  of   Police. Shortly  thereafter, complaints were received by  the  Chief Minister and Inspector-General of Police’ U. P. charging the appellant with immorality, corruption and gross  dereliction of  duty.   In  a  preliminary  confidential  enquiry,   the Inspector-General  of Police came to the conclusion that  "a prima facie case" was made out against the 20 154 appellant.   He then directed that a formal enquiry be  held against  the  appellant  and  passed  orders  reverting  the appellant  to his substantive rank of Inspector and  placing him under suspension.  An enquiry was held into the  conduct of  the  appellant by the Superintendent  of  Police,  Anti- corruption department.  The report of the Superintendent  of Police  was  forwarded to the Government of U. P.,  and  the Governor acting under r. 4 of the Uttar Pradesh Disciplinary Proceedings  (Administrative Tribunal)  Rules,  1947-herein- after  called  the  Tribunal  Rules-referred  the  case  for enquiry  to a Tribunal appointed under r. 3 of the  Tribunal Rules  on  charges of corruption,  personal  immorality  and failure  to discharge duties properly.  The Tribunal  framed three  charges against the appellant, and after  a  detailed survey of the evidence recommended on February 4, 1950, that the appellant be dismissed from service.  The Governor  then served a notice requiring the appellant to show cause why he should  not be dismissed from service and after  considering the  explanation  submitted by the appellant,  the  Governor ordered  that  the appellant be dismissed with  effect  from December 5, 1950.  The appellant challenged this order by  a petition  instituted  in  the High Court  of  Judicature  at Allahabad  under Art. 226 of the Constitution for a writ  of certiorari quashing the proceedings of the Tribunal and  for a  writ of mandamus directing the State of Uttar Pradesh  to hold   an  enquiry  under  s.  55  of  the  Civil   Services (Classification, Control and Appeal) Rules. In  support  the order dismissing the  appellant  from  High Court  dismissing  his petition, the  appellant  has  raised three contentions: 1....that the order dismissing the appellant from the police force  was unauthorised, because the Governor had  no  power under  s.  7 of the Police Act and  the  regulations  framed thereunder to pass that order; 2....that  even if the Governor was invested with  power  to dismiss  a police officer, out of two alternative  modes  of enquiry,  a  mode prejudicial to the appellant  having  been adopted the proceedings of the Tribunal which enquired  into the charges against him 155 were  void,  as  the equal protection  clause  of  the  Con- stitution was violated; and 3....that  the  proceedings of the  Tribunal  were  vitiated because  of  patent  irregularities  which  resulted  in  an erroneous decision as to the guilt of the appellant.

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To  appreciate  the first two contentions, it  is  necessary briefly  to  set  out the relevant provisions  of  the  laws procedural and substantive in force, having a bearing on the tenure  of  service of members of the police  force  in  the State of Uttar Pradesh. The  appellant was admitted to the police force  constituted under  Act V of 1861.  By s. 3 of that Act,  superintendence throughout  a  general  police  district  vests  in  and  is exercised by the State Government to which such district  is subordinate and except as authorised by the Act, no  person, officer or court may be empowered by the State Government to supersede  or control any police functionary.  By s. 4,  the administration  of  the police throughout a  general  police district  is vested in the Inspector-General of Police.   By s. 7, it is provided that subject to the provisions of  Art. 311  of  the  Constitution and to such rules  as  the  State Government  may  from time to time make under the  Act,  the Inspector-General,   Deputy  Inspectors-General,   Assistant Inspectors-General  and District Superintendents  of  Police may  at  any  time dismiss, suspend or  reduce  any  police- officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty, or unfit for  the same,  or may award any one or more of the punishments  (set out  therein) to any police-officer of the subordinate  rank who discharges his duty in a careless or negligent manner or who  by  any act of his own renders himself  unfit  for  the discharge thereof. Section  46  sub-s. (2) authorises the State  Government  to make  rules for giving effect to the provisions of the  Act, and  also to amend, add to or cancel the rules framed.   The Government  of  Uttar Pradesh has framed  rules  called  the Police Regulations under the Indian Police Act.  Chapter  32 containing  Regulations 477 to 507 deals  with  departmental punishment and 156 criminal  prosecution  of police officers and  Ch.  33  con- taining   Regulations  508  to  516  deals   with   appeals, revisions, petitions etc.  By Regulation 477, it is provided that no officer appointed under s. 2 of the Police Act shall be punished by executive order otherwise than in the  manner provided in the chapter.  Regulation 478A provides that  the punishment  of  dismissal  or  removal  from  the  force  or reduction  as defined in Regulation 482 may be awarded  only after departmental proceedings.  By Regulation 479 cl.  (a), "full  power"  is  reserved to the Governor  to  punish  all police  officers, and by cl. (b), the  Inspector-General  is authorised  to punish Inspectors and ill police officers  of "lower ranks".  Regulation 489 provides for the departmental trials  of police officers and Regulation 490 provides  that the departmental trials of police officers must be conducted in  accordance with the rules set out  therein.   Regulation 490  in its various clauses makes provisions about oral  and documentary evidence, framing of charges, explanation of the delinquent police officer, recording of statement of defence witnesses,  recording of findings by the  Superintendent  of Police and the making of a report by the enquiry officer if- he is of the view that the delinquent Police officer  should be dismissed or removed from the force.  Clause (9) provides that the police officer may not be represented by counsel in any  proceeding instituted against him under the rules.   By Regulation  508, every police officer against whom an  order of dismissal or removal is passed is entitled to prefer  one appeal  against an order of dismissal from the police  force to  the authorities prescribed in that behalf,  but  against the order of the Governor in exercise of authority  reserved

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under Regulation 479 cl. (a), no appeal is provided. By s. 96B of the Government of India Act,, 1915, the  tenure of  all civil officers including police officers was at  the pleasure  of  the  Sovereign.  In  exercise  of  the  powers conferred by sub.s. (2) of s. 96B, classification rules were framed by the local Governments.  In the Government of India Act, 1935, ch. 2 of Part X dealt with civil services,  their tenure, recruitment and 157 conditions of service.  The section corresponding to s.  96B of  the Government of India Act, 1915, in the later Act  was s.  240(1) and thereunder all members of the  civil  service held  office during the pleasure of the Sovereign.   By  the Government  of  India  Act, 1935, to every civil  servant  a two-fold protection was guaranteed by cls. (2) and (3) of s. 240(1)  that he shall not be dismissed from service  by  any authority  sub. ordinate to that by which he  was  appointed and that he shall not be dismissed or reduced in rank  until be has been given a reasonable opportunity of showing  cause against  the action proposed to be taken in regard  to  him. But  these provisions did not apply to police  officers  for whom  a  special  provision was enacted  in  s.  243.   That section provided:               "Notwithstanding  anything  in  the  foregoing               provisions of this chapter, the conditions  of               service  of  the  subordinate  ranks  of   the               various  police forces in India shall be  such               as  may  be  determined by or  under  the  Act               relating to those forces respectively." The  conditions  of  service  of the  police  force  of  the subordinate  ranks were under the Government of  India  Act, 1935 therefore only such as were prescribed by rules  framed under  s.  7  and  s.  46(2) of  the  Police  Act.   By  the Constitution  of  India,  the  distinction  between   police officers   and  other  civil  servants  in  the  matter   of protection by constitutional guarantees is abolished and  as from  January  26, 1950, the recruitment and  conditions  of service  of all persons serving the Union or the  State  are now governed by Art. 309 and their tenure by Art. 310 of the Constitution.  By Art. 311, the protection granted under  s. 240  cls.  (2)  and (3) of the Government of  India  Act  is extended  to members of the police force as well.   By  Art. 309,  the conditions of service of public servants are  made subject  to the provisions of the Constitution and the  Acts of  the  appropriate Legislature.  By Art.  310,  except  as expressly  provided  by the Constitution, (i.e.,  except  in cases  where there is an express provision for dismissal  of certain  public servants e.g., Judges of the  Supreme  Court and  of the High Courts, Comptroller and Auditor-General  of India, Chief Election Commissioner) 158 all civil servants who hold office under the Union ,of India hold  office during the pleasure of the ’President  and  all civil  servants  who  hold office under the  State  hold  it during the pleasure of the Governor.  By virtue of Art.  313 of the Constitution, until other provision is made, all laws in   force  immediately  be.  fore  the   Constitution   and applicable  to any public service which continues  to  exist under the Union or a State shall continue in force so far as consistent  with the Constitution: the power of  the  police functionaries  to  dismiss  police  officers  is   therefore preserved. On  November 4, 1947, the Governor of U. P. in exercise  of, the  powers conferred inter alia by s. 7 of the Police  Act, published the Tribunal Rules.  By r. 1 el. (3), these  rules

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apply  "to  all Government servants under  the  rule  making control  of  the Governor" and are applicable to  any  acts, omissions or conduct arising before the date of commencement of  the rules as they are applicable to those arising  after that date.  Clause (e) of r. 2 defines "corruption", el. (d) defines  "failure to discharge duties properly" and el.  (e) defines  "  personal  immorality".  Rule  4  authorises  the Governor  to  refer to a Tribunal constituted  under  r.  3, cases relating to an individual Government servant or  class of Government servant or servants in a particular area  only in respect of matters involving (a)     corruption,      (b) failure to discharge duties properly. (e)    irremediable general  inefficiency in a public servant of more  than  ten years’ standing, and (d) personal im. morality.  By cl. (2), the  Governor  is also authorised in respect of  a  gazetted Government servant on his own request to refer his case  to- the  Tribunal  in respect of matters referred to  in  sub.r. (1).   By  r. 7, the proceedings of the Tribunal are  to  be conducted  in  camera and neither the  prosecution  nor  the defense has the right to be represented by counsel.  Rule  8 prescribes the procedure to be followed by the Tribunal  and r. 9 deals with the record to be maintained by the Tribunal. Rule  10  states  that the Governor shall not  be  bound  to consult  the  Public Service Commission  on  the  Tribunal’s recommendations and shall paw an order of punishment in  the terms  recommended by the Tribunal, provided  "the  Governor may for 159 sufficient  reasons, award a lesser punishment".  Rule  1  2 provides that nothing in the rules shall be deemed to affect the  conduct  of disciplinary proceedings ’in’  oases  other than  those  specifically covered by the provisions  of  the Tribunal Rules.  Rule 13 authorises the Governor to delegate the  power to refer cases to gazetted officers,in charge  of districts and to pass an order of punishment under r. 10  to heads of departments. Enquiry  against the appellant, though commenced before  the Constitution  was concluded after the Constitution, and  the order  dismissing  him from the police force was  passed  in December,   1950.   Under  Police  Regulation  479(a),   the Governor  had  the power to dismiss a police  officer.   The Tribunal  Rules  were framed in exercise of  various  powers vested in the Governor including the power under s. 7 of the Police Act, and by those rules, the Governor was  authorised to  pass appropriate orders concerning police officers.   By virtue  of Art. 313, the Police Regulations as well  as  the Tribunal Rules in so far as they were not inconsistent  with the  provisions  of the Constitution remained  in  operation after  the  Constitution.   The  authority  vested  in   the Inspector-General of Police and his subordinates by s. 7  of the Police Act was not exclusive.  It was controlled by  the Government  of India Act, 1935, and the  Constitution  which made  the tenure of all civil servants of a Province  during the  pleasure  of the Governor of that Province.   The  plea that the Governor had no power to dismiss the appellant from service  and  such  power could only  be  exercised  by  the Inspector-General of Police and the officers named in s.7 of the police Act is therefore without substance. But  it  is  urged that the enquiry  held  by  the  Tribunal against  the  appellant and the order consequent  upon  that enquiry  deprived the appellant of the equal  protection  of the  laws and were therefore void as infringing Art.  14  of the  Constitution.   It is true that when  proceedings  were started against the appellant for an enquiry for his alleged misdemeanors, one of two distinct procedures for holding  an

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enquiry,  was  open for selection by the  authorities.   The police 160 authorities  could  direct  an  enquiry  under  the   Police Regulations  under  the procedure prescribed  by  Regulation 490;  it was also open to the Governor to direct an  enquiry against  the appellant, and as the charges against him  fell within r. 4 of the Tribunal Rules, the procedure for enquiry was  the  one  prescribed by r. 8  of  the  Tribunal  Rules. Relying  upon  the  existence of these  two  sets  of  rules simultaneously  governing enquiries against police  officers either’  of which could be resorted to at the option of  the authorities  in  respect of charges set out in r. 4  of  the Tribunal  Rules, it was urged that in directing  an  enquiry against   the   appellant   under   the   Tribunal    Rules, discrimination  was  practiced  against  him,  and  he   was deprived  of the guarantee of equal protection of the  laws. That  an enquiry against the appellant could have been  made under  the  procedure prescribed by Regulation  490  of  the Police  Regulations appears to be supported by rr.  1(3),  4 and  12  of the Tribunal Rules.  Rule 1 subr.  (3)  provides that  the  Tribunal  Rules shall  apply  to  all  Government servants under the rule making control of the Governor,  and by  r. 4, the Governor is authorised to refer cases  to  the Tribunal,  but  he  if; not obliged to do  so.   By  r.  12, nothing  in the Tribunal Rules is to affect the  conduct  of disciplinary   proceedings   in  oases  other   than   those specifically dealt with under the rules. But  the order of the Governor directing an enquiry  against the  appellant was passed before the Constitution, and  Art. 14  has  no  retrospective operation: it  does  not  vitiate transactions  even  if patently  discriminatory  which  were completed  before the commencement of the Constitution.   In Syed  Qasim Razvi v. The State of Hyderabad (1), this  court was  called  upon to decide whether a trial of  an  offender commenced before the Constitution under the Special Tribunal Regulation  promulgated  by  the Military  Governor  of  the Hyderabad State was, since the Constitution, invalid in view of  Art. 14.  Mukherjea J. speaking for the majority of  the court observed:               (1)   [1953] S.C.R 589               161               is  not to obliterate the entire operation  of               the  inconsistent  laws or to  wipe  them  out               altogether from the statute book; for to do so               will  be  to give  them  retrospective  effect               which they do not possess.  Such laws must  be               hold to be valid for all past transactions and               for  enforcing rights and liabilities  accrued               before  the  advent of the  Constitution.   On               this principle, the order made by the  Mlitary               Governor  referring this case to  the  Special               Tribunal cannot be impeached and  consequently               the  Special Tribunal must be deemed  to  have               taken  cognizance of the case quite  properly,               and  its  proceedings up to the  date  of  the               coming in of the Constitution would also  have               to be regarded as valid." Similarly,  Das,  J. in Lachhmandas Kewalram  Ahuja  v.  The State  of  Bombay  (1)  in  dealing  with  the  validity  of proceeding before a Special Judge holding a trial before the Constitution observed:               "As  the Act was valid in its entirety  before               the date of the Constitution, that part of the               proceeding before the Special Judge, which, up

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             to  that  date,  had been  regulated  by  this               special   procedure  cannot   be   questioned,               however     discriminatory   it    may    have               been....... ". Selection  by  the  authorities of one  of  two  alternative procedures at a time when Art. 14 was not in operation, does not  therefore enable the appellant to contest the  validity of the enquiry on the plea of denial of equal protection  of the  laws.   It  was also observed  in  Syed  Qasim  Razvi’s case(2) by Mukherjea J. at p. 606:               "In  cases  of  the  type  (where  the   trial               commenced  before the Constitution)  Which  we               have  before us where part of the trial  could               not  be challenged as bad and the validity  of               the other ’part depends on the question as  to               whether the accused has been deprived of equal               protection  in  matters of  procedure,  it  is               incumbent upon the court to consider, firstly,                             whether    the   discriminatory   or    unequa l               provisions of law could be separated from  the               rest  and even without them a fair measure  of               equality in the matter                (2) [1952] S.C.R. 710.                (2) [1953] S.C.R. 585.               162                of procedure could be secured to the accused.               In  the second place, it has got  to  consider               whether the procedure actually followed did or               did   not  proceed  upon  the  basis  of   the               discriminatory provisions.  In our opinion,  a               mere   threat   or  possibility   of   unequal               treatment is not sufficient.  If actually  the               accused  has been discriminated against,  then               and then only he can complain, not otherwise.               We may mention here that the impossibility  of               giving  the accused the substance of  a  trial               according   to   normal   procedure   at   the               subsequent  stage may arise not only from  the               fact  that the discriminatory provisions  were               not severable from the rest of the Act and the               court  consequently had no option to  continue               any  other than the discriminatory  procedure;               or  it  may arise from something done  at  the               previous  stage  which though not  invalid  at               that   time  precludes  the  adoption   of   a               different procedure               subsequently." The proceedings of the Tribunal prior to the commencement of the Constitution are therefore not open to challenge  except to the limited extent indicated by Mukherjea J. The question which  falls  to  be considered  is  whether  the  procedure followed   by  the  Tribunal  after  the  Constitution   was discriminatory   and  operated  to  the  prejudice  of   the appellant. Regulation  490  of  the Police  Regulations  sets  out  the procedure  to  be  followed  in an  enquiry  by  the  police functionaries, and rr. 8 and 9 of the Tribunal Rules set out the  procedure to be followed by the Tribunal.  There is  no substantial difference between the procedure prescribed  for the two forms of enquiry.  The enquiry in its true nature is quasi-judicial.  It is manifest from the very nature of  the enquiry that the approach to the materials placed before the enquiring  body  should  be judicial.  It is  true  that  by Regulation 490, the oral evidence is to be direct, but  even

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under  r.  8 of the Tribunal Rules, the Tribunal  is  to  be guided  by  rules of equity and natural justice and  is  not bound by formal rules of procedure relating to evidence.  It was  urged  that whereas the Tribunal may  admit  on  record evidence which is hearsay, the oral 163 evidence  under  the  Police  Regulations  must  be   direct evidence and hearsay is excluded.  We do not think that  any such distinction was intended.  Even though the Tribunal  is not  bound  by  formal  rules  relating  to  procedure   and evidence,  it  cannot  rely  on  evidence  which  is  purely hearsay,  because  to do so in’ and enquiry of  this  nature would  be contrary to rules of equity and  natural  justice. The  provisions for maintaining the record and calling  upon the delinquent public servant to submit his explanation  are substantially  the same under Regulation 490 of  the  Police Regulations  and  r. 8 of the Tribunal Rules.  It  is  urged that  under  the  Tribunal Rules, there is  a  departure  in respect  of  important matters from the  Police  Regulations which  render the Tribunal Rules prejudicial to  the  person against whom enquiry is held under those rules.  Firstly  it is  submitted  that there is no right of  appeal  under  the Tribunal  Rules  as is given under the  Police  Regulations; secondly that the Governor is bound to act according to  the recommendations of the Tribunal and thirdly, that under  the Tribunal  Rules,  even  if the complexity of  a  case  under enquiry justifies engagement of counsel to assist the person charged,  assistance by counsel may not be permitted at  the enquiry.   These  three variations, it is  urged,  make  the Tribunal  Rules not only discriminatory but  prejudicial  as well to the person against whom enquiry is held under  these Rules.   In our vie,"-, this plea cannot be sustained.   The Tribunal Rules and the Police Regulations in so far as  they deal with enquiries against police officers are  promulgated under s. 7 of the Police Act, and neither the Tribunal Rules nor  the  Police Regulations provide an  appeal  against  an order  of dismissal or reduction in rank which the  Governor may pass.  The fact that an order made by a police authority is made appealable whereas the order passed by the  Governor is not made appealable is not a ground on which the validity of  the Tribunal Rules can be challenged.  In  either  case, the  final order rests with the Governor who has  to  decide the  matter himself.  Equal protection of the laws does  not postulate equal treatment of all persons without 164 distinction:it merely guarantees the application of the same laws  alike  and  without  discrimination  to  all   persons similarly situated.  The power of the Legislature to make  a distinction between persons or transactions based on a  real differentia  is  not  taken away by  the   equal  protection clause.   Therefore by providing a right of  appeal  against the  order  of police authorities acting  under  the  Police Regulations  imposing penalties upon a member of the  police force,  and  by providing no such right of appeal  when  the order passed is by the Governor, no discrimination  inviting the application of Art. 14 is practiced. under r. 10 of the Tribunal Rules, the Governor is  enjoined to  pass an order of punishment in terms recommended by  the Tribunal, whereas no such obligation is cast upon the police authority who is competent to dismiss a police officer  when an  enquiry  is  held under Regulation  490  of  the  Police Regulations.  To the extent that r. 10 requires the Governor to  accept the recommendation of the Tribunal, the rule  may be  regarded as inconsistent with the Constitution,  because every police officer holds office during the pleasure of the

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Governor, and is entitled under Art. 311(2) to a  reasonable opportunity  to  show  cause  to  the  satisfaction  of  the Governor  against the action proposed to be taken in  regard to  him.  The partial invalidity of r. 10 however  does  not affect  the  remaining rules: that part of  the  rule  which requires  the Governor to accept the recommendation  of  the Tribunal as to the guilt of the public servant concerned  is clearly  severable.  We may observe that in considering  the case   of   the  appellant,  the  Governor   exercised   his independent  judgment and passed an order of  dismissal  and did  not act merely on the recommendation of  the  Tribunal. The  difference between the two sets of rules on the  matter under consideration does not relate to the procedure of  the enquiring   bodies,  but  to  the  content   of   reasonable opportunity guaranteed by Art. 311 of the Constitution. The  rules  relating to appearance of lawyers  at  enquiries under  the Police Regulations and under the  Tribunal  Rules are also not different.  Under cl. (9) 165 of  Regulation  490 of the Police  Regulations,  an  accused police  officer  may not be represented by  counsel  in  any proceeding instituted under those Regulations,’ and by r.  7 of  the  Tribunal  Rules, neither the  prosecution  nor  the defence  have the right to be represented by counsel.   Both the  rules  deny  to  the police officer  the  right  to  be represented by counsel. The   procedure  provided  in  the  Police  Regulations   is substantially  the same as the procedure prescribed  by  the Tribunal  Rules,  and by continuing the  enquiry  after  the Constitution  under  the Tribunal Rules and  not  under  the Police Regulations, a more onerous procedure prejudicial  to the appellant was not adopted. The Governor appointed the Tribunal for enquiry against  the appellant   before  the  Constitution,  but  the  order   of dismissal was passed after the Constitution came into force. The appellant was entitled to the protection of Art.  311(2) of  the Constitution.  Since the Constitution  was  enacted, the  distinction  which  was  made between  members  of  the police force and other civil servants under ss. 240, 241 and 243 of the Government of India  Act has disappeared and  all civil servants including the police officers are entitled to the protection of Art. 311(2).  The content of the guarantee was  explained by this court in Khem Chand v. The  Union  of India (1).  It was observed by                "To  summarise:  the  reasonable  opportunity               envisaged    by    the    provisions     under               consideration includes-                (a)an  opportunity  to  deny  his  guilt  and               establish  his innocence which he can only  do               if he is told what the charges leveled against               him  are  and the allegations  on  which  such               charges are based;                (b)an opportunity to defend himself by cross-               examining  the witnesses produced against  him               and   by  examining  himself  or   any   other               witnesses  in  support  of  his  defence;  and                             finally                (c)an opportunity to make his  representation               as  to why the proposed punishment should  not               be  inflicted on him, which he can only do  if               the competent authority, after the enquiry  is               over and after                (1)  [1958] S.C.R. 1080, 1096.               166               applying his mind to the gravity or  otherwise

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             of  the charges proved against the  government               servant tentatively proposes to inflict one of               the  three punishments and communicates  the’.               same to the government servant;". To a police officer charged with misdemeanor, opportunity in all  the  three branches set out in Khemchand’s  case  (1)is provided under the Tribunal Rules.  There is opportunity  to the  police officer against whom an enquiry is made to  deny his   guilt  and  to  establish  his  innocence;  there   is opportunity  to  defend  himself  by  cross-examination   of witnesses produced against him and by examining himself  and other witnesses in support of his defence, and there is also opportunity  to  make  his  representation  as  to  why  the proposed   punishment-should   not   be   inflicted.     The discrimination which is prohibited by Art. 4 is treatment in a  manner  prejudicial  as  compared  with  another   person similarly  circumstanced  by  the adoption of  a  law,  sub- stantive or procedural, different from the one applicable to that  other person.  In Sardar Kapur Singh v. The  Union  of India  (1),  this court held that by  directing  an  enquiry against a member of the Indian Civil Service who was charged with misdemeanor under, the Public Servants (Inquiries) Act, 1850   and   not  under  r.  55  of   the   Civil   Services (Classification, Control and Appeal) Rules when there was no substantial  difference  between  the  material  provisions, discrimination  was not practiced.  It was observed  (at  p. 581):               "Does  the  holding of an  enquiry  against  a               public  servant  under  the  Public   Servants               (Inquiries)  Act,  18,50  violate  the   equal               protection  clause of the  Constitution?   The               appellant  submits  that  the  Government   is               invested  with authority to direct an  enquiry               in  one  of  two  alternative  modes  and   by               directing an enquiry under the Public Servants               (Inquiries)  Act  which Act  it  is  submitted               contains   more  stringent   provisions   when               against   another  public  servant   similarly               circumstances  an enquiry under r. 55  may  be               directed,  Art.  14  of  the  Constitution  is               infringed." After considering the-,,special protection given to (1) [1958] S.C.R. 1080. 1096. (2) [1960] 2 S.C.R. 569. 167 members  of  the  Indian Civil  Service  and  the  essential characterised  of the procedure for making  enquiries  under the public Servants (Inquiries) Act,1850, it was observed at p.584.                "The  primary  constitutional  guarantee,   a               member of the Indian Civil Service is entitled               to  is  one of’. being afforded  a  reasonable               opportunity of the content set out earlier, in               an enquiry in exercise of powers conferred  by               either the Public Servants (Inquiries) Act  or               r. 55 of the Civil Services (Classifi. cation,               Control and Appeal) Rules, and  disorimination               is not practised merely because resort is  had               to   one   of  two  alternative   sources   of               authority,   unless  it  is  shown  that   the               procedure adopted operated to the prejudice of               the  public  servant concerned.  In  the  case               before  us,  the  enquiry  held  against   the               appellant is not in manner different from  the               manner  in  which  an  enquiry  may  be.  held

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             consistently with the procedure prescribed  by               r.  55, and therefore on a plea of  inequality               before  the  law,  the  enquiry  held  by  the               Enquiry  Commissioner  is  not  liable  to  be               declared void because it was held in a  manner               though  permissible  in law, not in  the  man.               ner,  the appellant says, it might  have  been               held." In  Syed  Qasim Razvi’s case (1), it was held  that  if  the substance  of  the  special  procedure  followed  after  the Constitution  in  an enquiry or trial commenced  before  the Constitution  is the same as in the case of a trial  by  the normal procedure, the plea of discrimination invalidating  a trial must fail, Counsel  for the appellant in support of his plea  that  the enquiry  by  the Tribunal was vitiated because it  was  held under  a discriminatory procedure relied  judgment  of  this Bench in the State of Orissa Dhirendranath Das (2).  In that case,  a lower Division Assistant in the Secretariat of  the Orissa Government was found guilty of certain misdemeanor by a  Tribunal  appointed  under rules  framed  by  the  Orissa Government  after  an enquiry held in that  behalf  and  was ordered to be dismissed from service.  In a petition by  the public  servant under Art. 226 of the  Constitution  praying for a writ declaring illegal the order  (1) [1953] S.C.R. 589 (2) A.LR. 1951 S.C. 1715. 168 of  dismissal it was held by the Orissa High Court  that  ad on  the  date  on which enquiry  was  directed  against  the petitioner-there  were two sets of rules in  operation,  the Tribunal Rules and the Bihar and Orissa Subordinate Services Discipline  and  Appeal  Rules  and  it  was  open  to   the Government  of  Orissa  to select either set  of  rules  for enquiry against any public servant against whom a charge  of misdemeanor   was  made  and  that  selection  of  one   in, preference  to the other set of rules was violative  of  the guarantee  of Art. 14 of the Constitution.  The  High  Court accordingly declared the order of dismissal inoperative  and further  declared  that  the  disciplinary  proceedings   be restored  to the stage which they had reached when the  case was referred to the Tribunal.  Against that order, the State of  Orissa preferred an appeal to this court.  The  relevant rules  were not in that case incorporated in the  paper-book prepared  for  the hearing nor did counsel  for  the@  State produce  for  our consideration those rules.   Counsel  also conceded that by the adoption of the procedure prescribed by the  Tribunal  Rules in preference to the  procedure  in  an enquiry  under  the Service Rules, discrimination  would  be practiced because there were substantial differences in  the protection to which the public servants were entitled  under the  Service Rules and the Tribunal Rules.  The only  ground pressed in support of the appeal was that the Service  Rules were  not  in  operation at the time  when  the  enquiry  in question was directed and by directing an enquiry under  the Tribunal Rules, discrimination was not practiced.  But  this argument  raised  for the first time  questions  which  were never investigated and this court declined to allow  counsel to raise them.  It was observed in that case:               "If the two sets of rules were in operation at               the   material  time  when  the  enquiry   was               directed  against the respondent and by  order               of  the  Governor, the  enquiry  was  directed               under  the  Tribunal  Rules  which  are  "more

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             drastic"  and prejudicial to the  interest  of               the respondent, a clear case of discrimination               arises and the order directing enquiry               169               against  the  respondent  and  the  subsequent               proceedings  are liable to be struck  down  as               infringing Art. 14 of the Constitution." Before us, counsel for the appellants has produced a printed copy   of  the  Disciplinary   Proceedings   (Administrative Tribunal) Rules, 1951 published by the Government of Orissa. A perusal of these rules may apparently suggest that subject to certain minor differences, these rules are  substantially the same as the Tribunal Rules framed by, the State of U. P. We  have however not been supplied with a copy of the  Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935.  The judgment of this court in The State of Orissa  v. Dhirendranath  Das  can have no application  to  this  case, because  in  that  case, the order of the  High  Court  was. assailed on the limited ground that the High Court erred  in assuming that there were two sets of rules simultaneously in operation,  and it was open to the Executive  Government  to select  one  or the other for holding an enquiry  against  a delinquent  public servant.  That contention  was  negatived and the judgment of the High Court was confirmed. We do not think that there is any substance in the plea that discrimination was practiced by continuing the enquiry under the  Tribunal Rules after the Constitution was brought  into force. This  appeal is filed with a certificate under Art.  132  of the Constitution.  By’ el. (3) of Art. 132 the appellant  is entitled to appeal to this court only on the ground that the High Court has wrongly decided a substantial question as  to the interpretation of the Constitution and unless this court grants leave to him, on no other.  Counsel for the appellant has  challenged  the regularity of the  proceedings  of  the Tribunal and we have heard him to assure ourselves that  the proceeding  of  the Tribunal has not been  vitiated  by  any serious irregularity, or that the appellant was net deprived of  the protection under Art. 311 of the  Constitution.   We proceed  to  consider  briefly  the  arguments  advanced  in support of that plea.  It was urged 170 in  the first instance that the appellant was not  permitted to  appear  at the enquiry before the Tribunal by  a  lawyer whereas  the State Government was represented by  a  lawyer. It  was  averred  in paragraph 14 of the  affidavit  of  the appellant  that the case for the prosecution- was  conducted by  Jwala Prasad, Deputy Superintendent of Police and  Legal Advisor  to  the Anti-corruption Department,  and  that  the Tribunal  was told that such a course would be  contrary  to the  Tribunal  Rules and in any case contrary  to  rules  of equity and natural justice, because he-the appellant-was not permitted  to  appear by counsel.  In  reply,  Hari  Shankar Sharma,  Deputy  Superintendent  of  Police  stated  in  his affidavit  that  it was not true that  before  the  Tribunal prosecution was conducted by Jwala Prasad.  Ho also,  stated that  the Tribunal had required the presence of Sri  Krishna who had made enquiries, but as Sri Krishna could not  remain present, Jwala Prasad attended the sitting of the  .Tribunal only on one day as Deputy Superintendent of Police,  C.I.D., but  he  did  not  take any part  in  the  proceedings,  and "examination of witnesses and the cross-examination was  all done by the members of the Tribunal" and the appellant.   It does  not appear that Jwala Prasad was a practicing  lawyer: he  was not in any case permitted to appear as a lawyer  and

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on the affidavit of Hari Shankar Sharma, it is clear that he did  not  take any part in the examination of  witnesses  or cross-examination.   It was then urged that the  explanation submitted  by the appellant was not considered  because  the Governor felt bound by the recommendations of the  Tribunal. But in para 25 of the affidavit, Hari Shankar Sharma  stated that  the explanation of the appellant was submitted to  the Government  by  the  Inspector-General  of  Police  and  the Governor duly considered the explanation and was of  opinion that  the  appellant  was unable to clear  his  conduct  and therefore under r. 10(1) of the Tribunal Rules the  Governor ordered  dismissal  of  the  appellant  from  service  after considering  the merits of his defence.  It was  then  urged that   the  application  submitted  by  the  appellant   for summoning witnesses and 171 calling  for  certain  records was not  considered  and  the appellant  had on that account been prejudiced.  In para  15 of  his  affidavit, the appellant stated that  the  Tribunal refused to call for certain records and though he wanted  to summon  certain defence witnesses, his application  in  that behalf was also refused.  In answer P to this averment, Hari Shankar  Sharma stated that the appellant had given  a  long list  of  defence witnesses and the Tribunal  asked  him  to select those witnesses whose evidence in the opinion of  the appellant  would be relevant and thereupon the  appellant  " reduced  his list to a much smaller number" and  all  those. witnesses  were  summoned.   Then  it  was  urged  that  the assessor  who  is  required under the rules  to  assist  the Tribunal  not  having remained present at the  hearing,  the enquiry was vitiated. In paragraph 16 of the affidavit,  the appellant has stated that during the enquiry S. N. Agha  the assessor was absent on many days on which the case was heard and  the  evidence  was recorded.  In  reply,  Hari  Shankar Sharma  stated  that  the contents of paragraph  16  of  the affidavit were not correct, that it was true that Agha could not   attend   on   certain  dates   "due   to   unavoidable circumstances", but the appellant was specifically asked  if he had any objection to the recording of evidence in  Agha’s absence  and  the appellant having stated that  he  has-  no objection,  the proceedings were continued with his  written consent.  He further stated that the assessor was  explained of the proceedings held on the days on which he had remained absent.   The  averments  made  in  the  affidavit  of  Hari ShankarSharma were not controverted by the appellant. On  the materials placed on record, there is no sub.  stance in any of the pleas raised by the appellant relating to  the regularity  of the proceedings of the Tribunal.  It  may  be pertinent to note that even though the appellant  challenged before  the High Court the regularity of the proceedings  of the  Tribunal, no argument was, it appears, advanced  before the High Court in support thereof.  The judgment of the High Court which is fairly detailed does not refer to any 172 ground on which the contention was sought to be sustained. The appeal fails and is dismissed with costs. DAS  GUPTA,  J.-  I have had the advantage  or  reading  the judgment prepared by Shah J.; but while I respectfully agree with  the  conclusions  on all other  points,  I  regret  my inability to agree with the conclusion reached there on  the main question in controversy, viz. whether the Uttar Pradesh Disciplinary  Proceedings (Administrative  Tribunal)  Rules, 1947  are void as being in contravention of Art. 14  of  the

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Constitution,  in  so  far as they do not  provide  for  any appeal against a decision by the Governor under Rule 10. The  facts have been fully stated by my learned Brother  and need  not  be  repeated, especially as  the  facts  in  this particular  case  do  not arise  for  consideration  in  the decision  of  the  question  of  law,  whether  Art.  14  is contravened  by the above provisions of the Tribunal  Rules. Under  these  rules the Governor may refer to  the  Tribunal constituted in accordance with rule 3 "cases relating to  an individual   government  servant  or  class  of   government servants or government servants in a particular area only in respect of matters involving-(a) corruption; (b) failure  to discharge duties properly; (c) irremediable general  ineffi- ciency in a public servant of more than ten year’s standing; and  (d) personal immorality." Under cl.  3 of rule 1  these rules apply to all government servants under the rule-making control  of  the Governor.  It is not  disputed  that  these rules  apply to every member of the police service in  Uttar Pradesh and that the Governor may refer to the Tribunal  the cases   relating  to  any  individual   government   servant belonging to the police department in respect of any of  the matters  mentioned  ’in cl. (1) of Rule 4. It  is  also  not disputed that if the Governor "does not make any such  refe- rence, the case of any such member of the police service  in respect  of any of these matters may be inquired into  under the  Uttar Pradesh Police Regulations.  The co-existence  of the provisions of Police Regulations on 173 the  question of departmental punishment of police  officers with  the Tribunal Rules, thus results in the position  that of  two members of the police service holding the same  post and rank, one may be proceeded against in respect of any  of the  matters mentioned in Rule 4(1) of the  Tribunal  Rules, under  the  Tribunal  Rules and  another  may  be  proceeded against   for   the  self-same  matter  under   the   Police Regulations.   Where the inquiry is held under the  Tribunal Rules, the Tribunal has to make a record of the charges, the explanation, its own findings and the views of the  assessor and  where  satisfied  that punishment be  im.  posed,  also formulate its recommendations about punishment.  Under  Rule 10  the  Governor will then decide the case  and  no  appeal shall  lie  against  the order so passed  by  the  Governor. Where  the  action  is taken under  the  Police  Regulations procedure,  a  police  officer  against  whom  an  order  of dismissal, removal, suspension or reduction is passed has  a right  of appeal to the authority prescribed  in  Regulation 508.  The question is whether the existence of the right  of appeal under the Police Regulation Procedure and the absence of the right, appeal against the decision by the Governor in the Tribunal Rules’ procedure amounts to unequal  treatment. On behalf of the respondent it has been urged that there  is no  unequal treatment as in one case it is the order of  the Governor which is made not appealable and in the other  case it  is  the  order of a police  functionary  which  is  made appealable.   The argument seems to be that only if  in  the Police  Regulations an order made by the Governor  had  been made  appealable while under the Tribunal Rules  the  order- made  by the Governor was not appealable there could be  any scope  for  a complaint of unequal  treatment.   With  great respect  to my learned brethren who have taken the  contrary view,  I  am of the opinion that this  argument  misses  the realities  of the position and is really an attempt to  slur over  the  difficulty.   The  real  Position  that  requires examination  appears to me to be this: Suppose A and  B  are two police officers holding the same rank and post and A  is

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proceeded against under the 174 Tribunal  Rules  on  a  charge  of  corruption  while  B  is proceeded  against on a similar charge of  corruption  under the Police Regulations procedure.  In the first case if  the Tribunal finds A guilty and recommends, say, dismissal;  and the  Governor  makes an order of   dismissal,  against  this order  there  is no appeal.  Suppose in B’s  case  also  the punishing authority makes an order of dismissal but  against this  B has a right of appeal.  It is obvious that while  in the latter case B has some chance of the appellate authority taking a different view either about his guilt or about  the quantum  of  punishment and setting aside or  modifying  the order,  A  has  no such chance at all.  It  will  be  little consolation to A that the order in his case has been  passed by such an high authority as the Governor.  He can, it seems to me, legitimately complain that there is a real difference between  the way he is treated and B is treated  because  of this existence of B’s right of appeal against the  punishing authority’s  order while he has no such right.   Unless  one assumes  that the right of appeal is only in name, I do  not see  how one can deny that there is a legitimate  basis  for this  complaint.  I cannot agree that the right of ap.  peal is  a right without substance.  Whenever one authority  sits in  appeal over another authority there is always  a  chance that  the appellate authority may take a different  view  of facts  or  of law and as regards the quantum  of  punishment requisite,  from  the  authority  whose  decision  is  under appeal.   It is this chance which is denied, if a  right  of appeal  is taken away.  I am therefore of opinion  that  the absence of the right of appeal under Rule 10 of the Tribunal Rules  while a right of appeal is given to a police  officer under  the Police Regulations, results in unequal  treatment in  a  substantial  matter,  as  between  a  police  officer proceeded  against under the Tribunal Rules and  an  officer who  is  proceeded  against  under  the  Police  Regulations procedure.  Nor is it possible to discover any principle  to guide the discretion of the Government to select some police officers  to be proceeded against under the  Tribunal  Rules while  leaving  out other police officers  to  be  proceeded against, in respect 175 of similar matters, under the Police Regulations procedure. I  have therefore come to the conclusion that  the  Tribunal Rules  in  so far as they provide that no appeal  shall  lie against  the  decision of the Governor is  ultra  vires  the Constitution,  being  in  contravention of Art.  14  of  the Constitution. As  has been noticed by Shah J. a somewhat similar  question fell to be considered by us in Civil Appeal No. 103 of  1959 (State  of  Orissa  v. Dhirendranath  Das).   Comparing  the Disciplinary  Proceedings (Administrative Tribunal)  Rules., 1951 of the Orissa Government under which Dhirendranath  Das had  been proceeded against and dismissed from service  with the  Bihar  and Orissa Subordinate  Service  Discipline  and Appeal  Rules, 1935 this Court held that inasmuch  as  there was a right of appeal to the authority immediately  superior to  the punishing authority under the Service  Rules.  while there   is   no  such  appeal  against  the   findings   and recommendations  of  the Tribunal, the  pre-proeedings  were substantially different.  The court further pointed out that as  inquiries  could  be directed  according  to  procedures substantially different at the, discretion of the  executive authority   "exercise  whereof  is  not  governed   by   any principle,%  having any rational relation to the purpose  to

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be   achieved  by  the  inquiry,  the  order   selecting   a prejudicial procedure, out of the two open for selection, is hit by Art. 14 of the Constitution." I cannot find  anything here  that would justify a revision of the view taken by  us in that case. As  in  my  judgment  the  U.  P.  Disciplinary  Proceedings (Administrative Tribunal) Rules, 1947 are hit by Art. 14  of the Constitution I would allow the appeal and set aside  the order of dismissal passed against the appellant. By Court.-In view of the majority Judgment of the Court, the appeal fails and is dismissed with costs. Appeal dismissed. 176