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PETITIONER: R. P. KAPUR

       Vs.

RESPONDENT: PRATAP SINGH KAIRON & OTHERS

DATE OF JUDGMENT: 02/08/1963

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-Enquiry under Public Servants (Inquiries) Act, 1850-Order of enquiry whether competent when First  Informa- tion Report already filed under Code of Criminal  Procedure- Meaning  of "misbehaviour" in Inquiries  Act-Differences  in procedure,   between   enquiry   under   Public    Servants- (Inquiries)  Act  and All India  Se)-vices  (Discipline  and Appeal) Rules, 1955 whether violate, Constitution, Art.  14- Articles 16 and 20(3)-Order of Government if malafide-Public Servant  Inquiries  Act,  1850,  s.  2-411  India   Services (Discipline   and  Appeal  Rules,  1955-Code   of   Criminal Procedure,  ss. 5, 154-Constitution of India Arts.  14,.  16 and 20(3).

HEADNOTE: The appellant jointed the Indian Civil Service in 1938.   He continued in the service after the independence of India and since  1948 has been serving the Government of  Punjab.   In July,  1959,  When  he was serving  as  Commissioner  Ambala Division,  he  was placed under suspension.   A  few  months before that, two criminal cases had been instituted  against him.   Several  other  cases  were  instituted  against  the appellant  and some of his relations during the  year  1960. The  criminal  cases which were pending in  the  courts.  of different  Magistrates  in the Punjab  were  transferred  to Criminal  Courts subordinate to the Allahabad High Court  by the  orders  of this Court.  Two of those cases  had  to  be dropped  by  the orders of Additional  District  Magistrate, Saharanpur.   The cases started on the complaint of  Dhingra and  report  of  Daryo Singh were  consigned  to  record  as untraced by the orders of the Magistrate on May, 25, 1961. On  May  26, 1961, an order was passed in the  name  of  the Governor   of  Punjab  directing  an  enquiry  against   the appellant  under the Public Servants (Inquiries) Act,  1850. Some  of  the charges were in respect of  the  acts  alleged against  the appellant in the complaint of Dhingra  and  the other  charges were in respect of the acts  alleged  against

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him in the report of Daryao Singh.  By another order of  the same  date, the Governor appointed Mr. Justice  D.  Falshaw, then  a puisne Judge of Punjab High Court,  as  Commissioner for  holding  the enquiry.  Notice was duly  served  on  the appellant  and he was informed that the enquiry would  begin on August 28, 1961.  On July 18, 1961, the appellant filed a writ  petition under Art. 226 of the  Constitution  praying. for  an order striking down the order of the Government  for making the enquiry against him.  The High Court rejected all the  contentions raised by the appellant and  dismissed  the writ petition.  The appellant came to this Court by  special leave. 205 The  contention of the appellant before this Court was  that no enquiry could be held under the Inquiries Act in as  much as  the  First Information Reports had already  been  lodged under the Code of Criminal Procedure in respect of the  acts mentioned  in the articles of charge, that Section 2 of  the Inquiries  Act  was bad as the word "misbehaviour"  was  too vague  and the section gave the Government uncontrolled  and uncanalised power to subject Government Servants to  enquiry under  the Act, that an enquiry under the Inquiries Act  was more  drastic  and less advantageous to an  officer  in  the position  of  appellant than an enquiry that could  he  held against an officer in a similar position under the All-India Services  (Discipline  and  Appeal) Rules,  1955,  and  thus resulted in infringement of Article 14 of the  Constitution, that the Inquiries Act violated Articles 16 and 20(3) of the Constitution   and  was  therefore  invalid  and  that   the Government had acted mala fide in ordering the enquiry. Held, that in mostcases, it would be proper and reasonable for Government to awaitthe    result   of    the    police investigation and where the investigation is followed by  an enquiry  or  trial,  the result of such  enquiry  or  trial, before  deciding to take disciplinary action against any  of its  Servants.   It  would be proper  and  reasonable  also, generally,  for  Government  not to take  action  against  a Government servant when on investigation by the police it is found  that  no prima facie case had been  made  out.   Even though  this  appears to be a reasonable course  which  will ordinarily  be followed by Government there is no legal  bar to the Government ordering a departmental enquiry even in  a case  where a First Information Report under s.  154  having been  lodged, an investigation will follow.  The use of  the words "otherwise dealt with" in s. 5 of the Code of Criminal Procedure  does not justify a conclusion that  enquiries  in connection  with  disciplinary proceedings on the  basis  of offences  alleged  to have been comitted by  the  Government servant must also be held in accordance with the  provisions of the Code of Criminal Procedure. The word "misbehaviour" as used in s. 2 of the Inquiries Act is not vague.  "Misbehaviour" by a Government servant  would certainly  mean a lapse by him from the proper  standard  of conduct  in the discharge of his functions as  a  Government servant.   A Government servant is expected and required  to act  honestly  and not to use his position as  a  Government servant  for enriching himself or others.   Every  dishonest act of a Government servant amounts to "misbehaviour". It  is  well settled that where the Government  is  invested with  authority  to  direct an enquiry in  one  of  the  two alternative  modes and one of the modes is more drastic  and less  advantageous  that  the other an  order  directing  an enquiry  under the more drastic and less  advantageous  mode will  amount  to  an  infringement  of  Article  14  of  the constitution as the more advantageous and less drastic  mode

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may be applied against another Government servant  similarly circumstanced.  However, the procedure and provisions of the In- 206 quiries Act are not in substance less advantageous and  more drastic than the All India Services (Discipline and  Appeal) Rules, 1955 and hence Article 14 is not violated. Article   16   guarantees  to  all  citizens   equality   of opportunity in matters relating to employment or appointment to  any office under the State.  However, that guarantee  is no bar to disciplinary action being taken against a  citizen who  holds  an office under the State.  The  fact  that  the result of such disciplinary action may be that a citizen  is deprived  of  promotion  cannot be held to be  a  denial  of equality   of   opportunity  relating   to   employment   or appointment.  There is also no violation of Article 20(3) of the  Constitution.   It cannot be said a provision  that  an accused shall be required to make hisdefence  amounts  to compelling him to be a witness against himself. Moreover, the accused is not even compelled to make his defence. If he chooses not to make any defence, he is free to do so. TheGovernment  of  the Punjab had not acted mala  fide  in orderingan enquiry against the appellant.  For holding the enquiry  the  Government had appointed a Judge of  the  High Court  as the Commissioner and it was reasonable  -to  think that the enquiry would be fair and impartial.  The appellant had  also  the right to appeal against the  finding  of  the Inquiry  Officer.   The concurrence of  the  Public  Service Commission  or the Central Government was also necessary  to impose  any  penalty on the appellant.  If the  penalty  was imposed by the State Government with the concurrence of  the Public  service  Commission, the appellant, had a  right  of appeal to the Central Government.  Hence, even if the Punjab Chief Minister was unfriendly to the appellant, he could not expect  to harm him by having recourse to an  enquiry  under the  Inquiries  Act in preference to a trial in  a  criminal Court. Sarder  Kapur Singh v. Union of India. [1960] 2  S.C.R.  569 and State of Assam v. Bimal Kumar Pandit, 19641 2 S.C.R.  1, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 75 of 1963. Appeal  by special leave from the judgment and decree  dated August  9, 1961 of the Punjab High Court in Civil  Writ  No. 954 of 1961. The appellant appeared in person. C.K. Daphtary, Solicitor-General for India, S. M.  Sikri, Advocate-General  for  the State of Punjab,  Mohinder  Singh Punu, Deputy Advocate-General for the State of Punjab,  R.N. Sachthey and P.D. Menon for the respondents. August 2, 1963.  The judgment of the Court was delivered by 207 DAS  GUPTA J.-The appellant, R. P. Kapur, was  appointed  to the Indian Civil Service almost 25 years ago.  He  continued in  the  service after the independence of India  and  since 1948 has been serving the Government of Punjab.  On the 18th July  1959, when the appellant was serving as  Commissioner, Ambala  Division,  he was placed under  suspension.   A  few months  before this, two criminal cases had been  instituted against him.  The first of these was instituted on  December 10, 1958, by one M.L. Sethi against Kapur and his mother-in- law, Kaushalya Devi, on allegations of offences under s. 420

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and  s. 120B of the Indian Penal Code.  The second was  ins- tituted on the complaint of one M.L. Dhingra on  allegations of  offences under s. 55(2) of the Prevention of  Corruption Act,  1947 and ss. 167, 168, 406, 420 and 465 of the  Indian Penal  Code.   This complaint was submitted  by  Dhingra  to Sardar Pratap Singh Kairon, the Chief Minister of Punjab, on February 27, 1959.  Action in this case was taken under  the orders of the Chief Minister and a first information  report was  recorded on the basis of this complaint  at  Chandigarh Police  Station on March 4, 1959.  Several other cases  were instituted  against the appellant and some of his  relations after  this, during the year 1960, including one  instituted on  the  basis  of a report by Daryao  Singh,  Inspector  of Police,  C.I.D., Karnal.  This report which bears  the  date November  1, 1959, alleged that the appellant had  committed offences under s. 166, s. 167 of the Indian Penal Code  read with s. 109 of the Indian Penal Code and also under s.  5(2) of  the  Prevention  of Corruption  Act.   This  report  was forwarded  by  Daryao  Singh  to  the  Secretary,  Orphanage Advisory  Board, Chandigarh, in connection with the  affairs of  which  Board  the  offences  were  said  to  have   been committed;  it  was  sent by the latter to  the  police  for registration  of a case and investigation, only on  May  25, 1960.   The criminal cases which were pending in the  courts of  different magistrates of the Punjab were on  appellant’s application  transferred  by this Court to  criminal  courts subordinate to the Allahabad High Court for disposal in  the State of Uttar Pradesh. Two  of  these cases, one under s. 107 of the  Indian  Penal Code in which the appellant’s wife was made an 208 accused, and the other under s. 145 of the Indian Penal Code in  which  also  she  figured as  an  opposite  party,  were disposed of in March and April 1961, the proceedings in both cases  being dropped by an order of the Additional  District Magistrate, Saharanpur.  In the case instituted on Dhingra’s complaint  the investigation appears to have been  completed in   August-September  1959,  and  in  February  1960,   the Government  of Punjab applied to the Central Government  for sanction-to  prosecute  the appellant under s. 5(2)  of  the Prevention of Corruption Act, 1947 as required under s. 6(c) of that Act.  The Government of India was however  reluctant to  accord sanction and on June 2, 1960, the  Government  of India (Home Department) wrote to the Chief Secretary to  the Government  of  Punjab indicating the view  of  the  Central Government  that such prosecution was not likely to  succeed and also that as Kapur was already involved in two  criminal cases and would be facing his trial in those cases, any  ac- tion to prosecute him in a third case’ might look like chas- ing a man who was already in serious trouble.  In this  let- ter the Punjab Government was requested to consider  whether it was necessary to pursue that particular case just then. The Government of Punjab does not appear to have pressed its request for sanction and ultimately on the 25th May 1961 the Police  submitted the final report in the case under s.  173 of  the  Code of Criminal Procedure praying  that  the  case "should  be consigned to record as untraced".  On  the  same date the Magistrate made an order directing the case "to  be consigned  to record as untraced".  A similar report was  on the  same date submitted by the Police to the Magistrate  in the  cases  started ,on the report of Daryao Singh  and  the Magistrate  made an order directing the case to be filed  as untraced  and to be sent to record.  On the next  date,  the 26th  of  May  1961 an order was made in  the  name  of  the Governor   of  Punjab  directing  an  enquiry  against   the

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appellant  under the Public Servants (Inquiries) Act,  1850. Later  in  the judgment we shall refer to this Act  as  "the Inquiries Act".  The order was in these words :-               "Whereas the Governor of Punjab is of  opinion               that  there  are  good grounds  for  making  a               formal and pub- 209               lic   inquiry  into  the  truth   of   certain               imputations of misbehaviour against Shri  R.P.               Kapur, I.C.S., Commissioner (under suspension)               ;               "Now,   therefore,  in  exercise   of   powers               conferred by section 2 of the Public Servants’               (Inquiries) Act, 1850, the Governor of  Punjab               hereby  orders a formal and public inquiry  to               be  made into the truth of the amputations  of               misbehaviour,  the substance whereof has  been               drawn in articles of charge, against the  said               officer." It may be mentioned here that some of these charges -are  in respect  of acts alleged against the appellant in  Dhingra’s complaint  while  the other charges are in respect  of  acts alleged against him in Daryao Singh’s report. Eight  articles of charges were drawn up for the purpose  of the enquiry.  Another order was made by the Governor on  the same  date appointing Mr. justice D. Falshaw, then a  puisne Judge  of  the  High Court of Punjab,  as  Commissioner  for holding  the  enquiry.   Notice  was  duly  served  on   the appellant of these orders and also of -the article of charge ;  and  he was informed that the Inquiry would  commence  on August  28, 1961.  On July 1.8, 1961, the appellant  applied to the Punjab High Court under Art. 226 of the  Constitution praying for an order striking down the order of the Governor dated  the  26th May, 1961, for making the  enquiry  against him.   Other  prayers  were that the  order  appointing  Mr. justice  Falshaw  as Commissioner for the  Inquiry  and  the notice on the petitioner be also struck down ; a writ of quo warrants be issued against Mr. Justice Falshaw and a writ of Prohibition against the Commissioner not to proceed with the inquiry. It is obvious that the real relief that the appellant sought by  this  petition was that the order to  hold  the  inquiry should  be  struck down.  The other reliefs prayed  for  are either superfluous or irrelevant. The  averments  in  the petition cover  a  large  number  of grounds  but  the principal grounds on which  the  appellant based his prayer may be summarised thus:- (1)  That  no inquiry could be held under the Inquiries  Act inasmuch  as  first  information reports  had  already  been lodged under the Code of Criminal 210               Procedure in respect of the acts mentioned  in               the articles of charge ;               (2)   That  s. 2 of the Inquiries Act was  bad               as  the  word "misbehaviour" was too  vague  ;               and’  so,  the  section  gave  the  Government               uncontrolled and uncanalised power to  subject               Government  servants  to inquiries  under  the               Act;               (3)   That an inquiry under this Act was  more               drastic and less advantageous to an officer in               the position of the appellant than an  inquiry               that  could  be held against an officer  in  a               similar position under the All India  Services               (Discipline    and   Appeal)   Rules,    1955,

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             hereinafter  referred to as "the  1955  Rules"               and  thus resulted in infringement of Art.  14               of the Constitution ;               (4)   That  the Inquiries Act  violates  Arts.               16,  21 and 20(3) of the Constitution  and  is               therefore invalid;               (5)   That the Government has acted mala  fide               in ordering the inquiry. The  High Court rejected all the contentions  and  dismissed the petition.  Against that order this appeal has been filed with special leave of this Court. In support of the appeal all the grounds raised in the  High Court have been urged again before us.  After the  arguments were  concluded,  we reserved judgment for  considering  the matters raised.  When we were considering these it  appeared to us that a further question which required  consideration, though  it  had not been raised before us on behalf  of  the appellant, was whether under the terms of s. 2 of the Public Servants  (Inquiries) Act, 1850, the Punjab  Government  was competent to direct this enquiry under the Act.  On the face of it this question appeared to be concluded by the decision of  this Court in Sardar Kapur Singh v. Union  of  India(1). As  we  were of opinion that some matters  involved  in  the question  required further consideration by a larger  Bench, these were accordingly referred to a Bench of seven  learned judges of this Court.  That Bench has delivered its judgment today.   On  the majority decision of the Bench  it  is  now finally settled that (1)  [1960] 2 S.C.R. 569. 211 the  Punjab Government was competent to direct the  inquiry. We  shall  therefore  now proceed  to  consider  the  points originally raised by the appellant in support of his appeal. The  first  and indeed the most important  question  of  law raised by the appellant, who argued the appeal himself  with considerable ability and restraint, was that no disciplinary proceedings  can be commenced against a  Government  servant for  any act in respect of which a first information  report has  been  recorded  under s. 154 of the  Code  of  Criminal Procedure. At  one  stage  of  his  arguments  the  appellant  put  his propositions  in  an even wider form and submitted  that  no inquiry  except under the Code of Criminal Procedure can  be held at all in respect of any offence under the Indian Penal Code or any other law.  For this proposition he relied on s. 5 of the Code of Criminal Procedure.  That section lays down in its first sub-section that all offences under the  Indian Penal Code shall be investigated, inquired into, tried,  and otherwise dealt with according to the provisions hereinafter contained ; and in its second sub-section that all  offences under  any other law shall be investigated,  inquired  into, tried  and  otherwise  dealt  with  according  to  the  same provisions, but subject to any enactment for the time  being in  force regulating the manner or place  of  investigating, enquiring  into,  trying  or  otherwise  dealing  with  such offences.   The  appellant emphasises the use of  the  words "otherwise dealt with" in this section and contends that the provisions  of  the Code of Criminal Procedure  have  to  be followed  not  only for investigation, inquiry or  trial  of offences but also for dealing with them in any other manner, thus including an inquiry into the truth of the amputations, for the purpose of disciplinary action.  We do not think the words "otherwise dealt with" has the significance which  the appellant attaches to these.  "Otherwise dealt with" in  the section refers, in our opinion, to such dealing with  offen-

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ces  as is provided for in the provisions of the Code  apart from  the  provisions for investigation, enquiry  or  trial. Such  provisions are to be found in the Code, for  instance, in Chapters IV and V. Thus, the provisions in section 54  of the Code for an arrest by a police officer without warrant 212 in  certain  cases may come into operation even  before  any investigation,  enquiry  or  trial  in  connection  with  an offence  has  commenced.   It  is  unnecessary  to  multiply instances,  but  it seems to us clear that the  use  of  the words  "otherwise  dealt with" in s. 5 does  not  justify  a conclusion  that inquiries in connection  with  disciplinary proceedings  on the basis of offences alleged to  have  been committed  by  the Government servant must also be  held  in accordance  with  the  provisions of the  Code  of  Criminal Procedure. In  any  case, then argues the appellant, at  least  when  a first  information report has been recorded under s. 154  of the  Code  of  Criminal  Procedure  any  enquiry  under  the Inquiries  Act or any other Rules for a disciplinary  action must  be  held to be barred.  The argument may best  be  put thus: Once a first information report has been lodged  under s.  154 of the Code of Criminal Procedure  an  investigation into  the correctness of the allegations made in the  report will  proceed  under  Chapter XIV of the  Code  of  Criminal Procedure.    Under   s.  173  of  the   Code   every   such investigation has to be completed without unnecessary  delay and as soon as it is completed the officer-in-charge ,of the police station has to forward to the Magistrate empowered to take cognizance of the offence on a police report, a  report as regards the results of the investigation.  Such a  report may  either  ask  the Magistrate to take  cognizance  of  an offence  which  according to the  police  investigation  the accused  person appears prima facie to have committed or  it may state that no such prima facie case has been made out,-. Cases may occur where though an offence has, in the  opinion of  the investigating officer, been ’Committed, no  clue  to the identity of the culprit is found or even if such clue is found the culprit is untraced.  It is urged by the appellant that  where on investigation a prima facie case is made  out against  a  Government servant the truth or falsity  of  the allegations can best be ascertained finally by enquiries  or trials  in the criminal courts that would follow.  Where  on the other hand, the police officer finds that no prima facie case has been made out it would be reasonable to think  that the  truth of the allegations has not been established.   In either case, it is said, there is no scope for the truth  of the  allegations  of  the  commission of  an  offence  by  a Government servant being 213 investigated by any departmental inquiry. At  first  sight it does seem reasonable that when  a  first information  report has been recorded against  a  Government servant that he has committed a cognizable offence the truth of  the  same should be ascertained only in  an  inquiry  or trial by the criminal court when a prima facie case is found by the investigation and a charge-sheet is submitted.   When once  that  has been done there is no need for  any  further inquiry  in  the same matter.  It seems no  less  reasonable that  if the police on investigation finds that no  case  is made  out  for submission of a chargesheet  the  allegations should be held to be untrue, or doubtful and then also there is  no need for any further inquiry in the same matter.   We are  convinced  that in most cases’ it would be  proper  and reasonable for Government to await the result of the  police

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investigation and where the investigation is followed by. in inquiry  or  trial,  the result of such  inquiry  or  trial, before deciding to take any disciplinary action against  any of  its servants.  It would be proper and  reasonable  also, generally,  for  Government  not to take  action  against  a government  servant when on investigation by the police,  it is  found that no prima facie case has been made out.   Even though this appears to be a reasonable course which we  have no  doubt is and will ordinarily be followed by  Government, we  are  unable  to  see any legal  bar  to  the  government ordering a departmental enquiry even in a case where a first information report under s.   154  having  been  lodged   an investigation will follow. The  appellant’s  next  argument  is  that  the  word  "mis- behaviour"  in s. 2 of the Inquiries Act is vague  and  con- sequently  the Act is bad.  "Misbehaviour" by  a  government servant would certainly mean a lapse by him from the  proper standard  of conduct in the discharge of his functions as  a government servant; but the appellant argues that there  was at the date of the Act in 1850 no ascertainable standard  of conduct and so neither the government nor its servants could know for certain what would amount to "misbehaviour".   This argument  seems  to  us to be  misconceived.   Even  in  the absence of any detailed instructions or directions as to how a  government servant should act and conduct  himself  there could never be any manner of doubt that a government servant was expected and required 214 to act honestly and not to use his position as a  government servant  for enriching himself or others.   Every  dishonest act of a government servant, including acts by which he uses his  position for enriching himself or others would  clearly amount to "misbehaviour".  We are unable therefore to accept the  appellant’s  argument that the word  "misbehaviour"  as used in s. 2 of the Inquiries Act is vague. It  may be pointed out in this connection that even  if  the appellant is correct in his argument that at the date of the Act  in  1850  no  ascertainable  standard  of  conduct  for government servants had been laid down this argument is  not available  to him after such standard was clearly laid  down in the numerous Government Servants’ Conduct Rules.  So  far as the appellant himself is concerned he was at the date  of the  order  made by government in 1961 governed by  the  All India  Services  Conduct  Rules, 1954.  The  attack  on  the validity  of the Inquiries Act on the ground that  the  word "misbehaviour" is vague must therefore fail. The next attack on the validity of the Act is on the  ground that  it  is discriminatory inasmuch as  the  procedure  and provisions  of the Inquiries Act are more drastic  and  less advantageous  than  those  of the 1955 Rules.   It  is  well settled that where the government is invested with authority to direct an enquiry in one of two alternative modes and one of the modes is more drastic and less advantageous than  the other, an order directing an enquiry under the more  drastic and less advantageous mode will amount to an infringement of Art.  14  of the Constitution as the more  advantageous  and less drastic mode may be applied against another  government servant  similarly  circumstanced.   We  are  not  satisfied however  that the procedure and provisions of the  Inquiries Act are in substance less advantageous and more drastic than the 1955 Rules as contended for by the appellant.  It may be mentioned  that  in  Sardar Kapur  Singh’s  Case(1)  when  a somewhat similar argument was raised against the validity of the Inquiries Act on the allegation that it was more drastic and  less advantageous than an enquiry under Rule 55 of  the

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Classification Rules, this Court contrasted and compared the provisions of the Inquiries Act with [1960] 2 S.C.R. 569. 215 Rule 55 of the Classification Rules and held that there  was no substantial difference between the two alternative  modes of enquiry.  The procedure of enquiry under the 1955 Rule is practically the same as under Rule 55 of the  Classification Rules. Faced  therefore  with the decision in  Kapur  Singh’s  Case (Supra)  the  appellant  tried  to  persuade  us  that   the procedure and provisions of an enquiry under the 1955  Rules were more advantageous to a government servant than those of the  Inquiries Act in the following respects which were  not considered in Kapur Singh’s Case (Supra) as those advantages were  not available under the Classification  Rules.   These advantages, according to the appellant, are: (1) Under  sub- rule  4 of Rule 5 of the 1955 Rules the  government  servant may  request for access to official records for the  purpose of  preparing  his written statement, but there is  no  such provision in the Inquiries Act; (2) Under sub-rule 7 of  the same  Rule  a Board of Inquiry shall contain  at  least  one member  who shall be an officer of the service to which  the government  servant belongs.  There is no such provision  in the  Inquiries  Act; (3) Under subrule (9) of the  Rule  the member of the service charged shall be supplied with a  copy of the report of enquiry, whereas there is no such provision under  the Inquiries Act; (4) Under the proviso to  sub-rule (9)  mentioned above, if the punishing  authority  disagrees with  any  part  or whole of the findings of  the  Board  of Inquiry or the Inquiry Officer, the point or points of  such disagreement together with a brief statement of the  grounds thereof,  shall  also be communicated to the member  of  the service.  There is no similar provision under the  Inquiries Act. We  do not think that these provisions under sub-rules 4,  7 and 9 and the provisio to sub-rule 9 of Rule 5 result in any substantial   difference  between  an  enquiry   under   the Inquiries Act and an enquiry under the 1955 Rules.  While it is true that there is no express provision in the  Inquiries Act  for  an access to official records for the  purpose  of preparing  the officer’s written statement such as there  is in  sub  rule  4, we see no reason  to  think  that  similar facilities  will not be allowed by the authority holding  an enquiry under the Inquiries Act.  It has to be noticed  that tinder sub-rule 4 the access to such records may be 216 refused "if in the government’s opinion such records are not strictly relevant to the case or it is not desirable in  the public interest to allow such access." We have no doubt that in  an  enquiry under the Inquiries Act also  the  authority holding  the  enquiry will afford the officer  proper  faci- lities of access to official records for the purpose of pre- paring his written statement except where these appear to be irrelevant  or it is satisfied on. an objection made by  the Government  that it is not desirable in the public  interest to  allow such access.  It is reasonable to expect  that  in actual practice there will be no difference in the matter of access  to official records as between an enquiry under  the Inquiries Act and an enquiry under the 1955 Rules. The appellant’s contention that in an enquiry under the 1955 Rules  he will have the benefit of having an officer of  the service to which belongs taking part in the enquiry while he cannot  have this benefit in an enquiry under the  Inquiries Act appears to be misconceived.  Subrule 5 of Rule 5  leaves

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it  to the discretion of the government to appoint either  a Board  of Inquiry or an Inquiry Officer to enquire into  the charges.  Indeed, under that sub-rule if the government does not  consider it necessary to appoint a Board of Inquiry  or an Inquiry Officer the enquiry may be held into the  charges "in  such manner as it deems fit".  It is only when a  Board of Inquiry is appointed that sub-rule 7 comes into operation and  at least one of the members of the Board has to  be  an officer  of the service to which the member of  the  service belongs.  It is wrong to think therefore that in an  enquiry under  the 1955 Rules the officer will necessarily have  the advantage-if it is an advantage--of having an officer of the service  to  which he belongs taking part  in  the  enquiry. There is also nothing to prevent the government to have  the enquiry  held  by  an officer of the  service  to  which  he belongs  even in an enquiry under the Inquiries Act.  It  is clear  therefore  that the provision of subrule 7  does  not mean any real difference between the two modes of enquiry. Coming now to sub-rule 9 we find that it provides for a copy of the report of the enquiry to be supplied to the member of the service after the punishing 217 authority  has arrived, at a provisional conclusion  that  a penalty  of  dismissal, removal,  compulsory  retirement  or reduction  in  rank should be imposed.   The  Inquiries  Act contains  no such provision; but the member of  the  service will be. entitled to get a copy of the report under the pro- visions, of Art. 311(2) of the Constitution in all cases  of proposed dismissal, removal or reduction in rank.  The  only difference is that while under this Rule the officer will be entitled  to  get  a  copy  of  the  report  even  where:  a punishment   of  compulsory  retirement  is  proposed,   the provisions  of Art. 311(2) of the Constitution will have  no application  to  such a case, so that he will  not,  if  the enquiry is held under the Inquiries Act, get the benefit  of having  a copy of the report under the Inquiries Act if  the penalty  of  compulsory  retirement  is  proposed.   It   is unnecessary however to consider in the present case  whether this  difference  amounts to a violation of Art. 14  of  the Constitution.   For  it is clear to us that the  penalty  of compulsory  retirement which can be imposed under  the  1955 Rules  (See  R. 3) cannot be imposed on an  officer  in  the position of the present appellant in view of Art. 314 of the Constitution.   The  appellant  did not  contest  that  this consequence will flow from Art. 314. It appears to us also that just as under the proviso to sub- rule  9  the point or points of  disagreement  with  grounds thereof have to be furnished to the officer concerned  where the  punishing authority disagrees with any of the  findings of the report, the same result flows from Art. 311(2) of the Constitution.   This  was  held by this Court  in  a  recent decision-state of Assam v. Bimal Kumar Pandit(1).  There  is therefore  no substance in the appellant’s  contention  that the  procedure and provisions of the Inquiries Act are  less advantageous and more drastic than an enquiry under the 1955 Rules.  The contention that the Inquiries Act violates  Art. 14 of the Constitution is therefore rejected. It  is  not  easy  to  understand  the  appellant’s  further contention  that the Inquiries Act contravenes Art.  16  and Art.  20(3) of the Constitution.  Article 16  guarantees  to all citizens equality of opportunity in matters relation to employment or appointment to any office under the (1)  [1964] 2 S.C.R. 1. 15-2 S. C. India/64 218

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State.   That  guarantee is however no bar  to  disciplinary action  being  taken against a citizen who holds  an  office under  the State.  The fact that the result of  such  disci- plinary  action may be that a citizen is deprived of  promo- tion  cannot possibly be held to be a denial of equality  of opportunity  relating  to employment  or  appointment.   The appellant also suggested that the provision in section 15 of the Inquiries Act that a person accused shall be required to make his defence, infringes Art. 20(3) of the  Constitution. Art.  20(3) provides that no person accused of  any  offence shall  be compelled to be a witness against himself.  It  is difficult  to  understand how a provision  that  an  accused shall be required to make his defence amounts to  compelling the  accused  to be a witness against himself.   Under  this section  the  accused  is not even  compelled  to  make  his defence.  ’Me section merely compels the Inquiring authority to  require the accused to make a defence.  If  the  accused chooses  not to make any defence s. 15 could not compel  him to --do so The -argument, that the Inquiries Act contravenes Art.  16  or  Art.  20(3)  of  the  Constitution  is  wholly misconceived and is rejected. This  brings  us to the question whether the  Government  of Punjab  acted  mala  fide  in  ordering  the  enquiry.   The appellants  case is that he incurred the severe  displeasure and  hostility of.the.Punjab Chief Minister,  Sardar  Pratap Singh  Kairon and for this the Chief Minister has been  bent upon  his ruin.  To this end it is said the  Chief  Minister instituted  criminal cases against , the appellant and  even against his wife, mother and mother-in-law through, his  own creatures  in  the  expectation’ that  he  would  get,  them ’convicted  and  sent  to prison  and  thereafter  have  the appellant dismissed on the basis of his own conviction.   As the  cases  were transferred for trial to  courts  in  Uttar Pradesh and May 1st 1961 two of the cases had been disposed’ of  against  the  prosecution,   the  Chief  Minister   felt apprehensive that the other criminal cases might also end in the acquittal or discharge of the appellant.  So he hit upon the, plan of having an enquiry under the inquiries I Act  on the  basis  of  allegations  made in  the  two  cases  viz., Dhingra’s   complaint  and  Daryao  Singh’s  report,   being apprehensive  that even these cases, if  charge-sheets  were submitted in court, might be transferred to courts 219 outside  Punjab and were likely to end in the  acquittal  or discharge  of the appellant.  The appellant urges  that  the statement in the Order that the Governor was of opinion that there  were  good  grounds for making a  formal  and  public enquiry   into   the  truth  of   certain   imputations   of misbehaviour  against  him,  was false, and  that  the  real purpose  was not to ascertain the truth of  the  imputations but  to harass and humiliate him and if possible  to  impose penalties  on him by way of disciplinary action  whether  or not the amputations were true or false. The  appellant  has  not  been able  to  produce  before  us materials to explain why the Punjab Chief Minister should be personally hostile to him.  There are several  circumstances however  which seem to suggest that whatever be  the  reason the Punjab Chief Minister is not friendly to the  appellant. The appellant repeatedly drew our attention to the manner in which  the Chief Minister took it upon himself to  accept  a complaint  of serious charges against a senior officer  like the appellant and directed the Additional, Inspector-General "to  take  immediate  action in  taking  ’over  papers  from Government  Departments concerned and the papers  with  Shri Dhingra",  and  to  the  direction  given  by  him  to   the

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Additional Inspector-General to    give   "a   prima   facie report".  In a previous decision(1) of  this Court  observed thus:-               "We  do  not know what reasons led  the  Chief               Minister  to  make  the  endorsement  on   the               complaint  of  Dhin-ara  as  he  did  and  why               instead  of  referring the  complaint  to  the               officer  in  charge of the police  station,  a               reference   was   made   to   the   Additional               Inspector-General     of     the      Criminal               Investigation  Department’ : It is  not  clear               why  he  ordered  the seizure  of  the  papers               before even a prima facie report was given  in               respect  of  an  offence  said  to  have  been               committed five year’s ago.’) The  Court  then  proceeded to point  out  that  these  were matters on which the Chief Minister alone was in a  position to  enlighten the Court and that "the Chief Minister owed  a duty  to  this Court to file an affidavit stating  what  the correct position was so far as he remembered".  Even  though the appellant made a pointed reference to the Chief R.   Pi Kapur v. Sardar Pratap Singh Kairon [1961] 2  S.C.R. 143. 220 Minister’s  endorsement on Dhingra’s complaint and also  set out  this Court’s observations on the earlier occasion,  the Chief  Minister  did  not file any  affidavit  even  on  the present  occasion  throwing any light on  the  circumstances under  which  he acted in this, to say  the  least,  unusual manner.  There is the further circumstance that even  though after the investigation of Dhingra’s case was completed, the Government  of  Punjab did ask for  the  Central  Government sanction  to  prosecute the appellant under s. 5(2)  of  the Prevention  of  Corruption  Act, the  Government  of  Punjab waited  for  about  a year after  the  Government  of  India expressed its reluctance to give the sanction, before taking further  action  in  the matter.  The manner  in  which  the police  proceeded in the matter after this long  delay  also appears to be unusual.  For, instead of submitting a charge- sheet  for the offences found to have been committed by  the appellant, the Police Inspector merely asked the  Magistrate to  consign the case to record as untraced.  This is a  most curious  procedure, apparently unknown to law.  The  learned Advocate-General, who appeared for the State of Punjab,  was unable  to  explain  how  the  case  could  be  treated   as "untraced".   It  may  well happen in some  cases  that  the culprit is untraced.  But we do not understand how the  case can  be untraced.  It is surprising that the  police  should make  such a request to the Magistrate in the  circumstances of Dhingra’s case.  It is even more surprising and indeed it is  a  matter  which has caused us deep  concern,  that  the Magistrate readily did what the police requested him to  do. The papers produced before us show that in his report to the Magistrate  the  Inspector, C.I.D., mentions the  fact  that this  course  had  been decided upon  in  consultation  with "higher   authorities".   Apparently  that  was   what   the Magistrate decided.  We were not enlightened as to who these "higher authorities" were. On  the same date, ie., May.25,,1961, a similar  report  was submitted  by  the  police to the  Magistrate  in  the  case instituted  on the basis of Daryao Singh,s report, and  the, Magistrate  readily  passed a similar  order.   That  report itself  had  been made by Daryao Singh on November  1,  1959 stating  that  he  had  discovered  during  the  course   of investigation of another case that the several offences men-

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221 tioned  in the report had been committed by  the  appellant. There was a delay of more than six months before this report was  forwarded  to the police.  It is not  possible  to  say clearly from the papers on the record when the investigation by the police was completed.  That it was completed has  not been  disputed  before  us.  It is  not  known  whether  the investigation  officer  found  a  case  made  out  for   the submission of charge-sheet.  All that we find is that on May 25, 1961, that is, a year after the first information report was  recorded and a year and six months after  Daryao  Singh made  the  report, the Magistrate granted a request  of  the police that the case should be treated as untraced. Not  unnaturally the appellant has laid great stress on  the conduct  of the police in connection with these  two  cases. Why,asks  the appellant, did the"higher  authorities"  under whose  directions  the police  acted, decide to treat  these cases  as  untraced and at the same time  start  an  enquiry under   the  Inquiries  Act  in  respect  of  some  of   the allegations  in these very cases?  If the intention  of  the Government was to ascertain the truth of these  imputations, he asks, why was it decided to discard the usual and obvious method of enquiry into these in a court of law in favour  of the  unusual method of an enquiry under the  Inquiries  Act? The learned Advocate-General did not attempt to answer these questions;  but he argued that when two alternative  methods were  open to the Government for ascertaining the  truth  of the  allegations,  the  mere fact that one  was  adopted  in preference to the other is no reason to suspect mala  fides. The appellant, on the other hand, strenuously contends  that when the conduct of the police in connection with these  two cases  is  considered  in the back-ground  of  the  previous history  of  the  criminal  cases  instituted  against   the appellant,  the manner in which the Chief  Minister  himself acted in connection with Dhingra’s complaint, the fact  that five criminal cases against the appellant or the persons  in whom  he was interested were transferred to courts in  Uttar Pradesh  and the further fact that at the date when  we  are considering the matter all these cases have ended in  favour of the appellant, it is reasonable to think that the enquiry under  the  Inquiries Act was adopted more as a  measure  of persecu- 222 tion of the appellant than the ascertainment of the truth of the  amputations against Mm.  Even if we assume  that  these facts  by  themselves might afford some ground  for  Such  a conclusion,  we  are of opinion that when  considered  along with  other  circumstances to which our attention  has  been drawn, this conclusion would not be justified. For holding the enquiry the Government has appointed a judge of  the  High Court of Punjab.  It is  reasonable  to  think therefore that the enquiry would be fair and impartial.   It is  true,,  as  pointed  out  by  the  appellant,  that  the Government is not in law, bound to accept the report of  the Inquiring Authority.  It has to be noticed however that  the power  of  the  Government  to impose  any  penalty  on  the appellant  will  be limited by the provisions  of  the  1955 Rules.  It is clear also that the appellant will be entitled to the rights of appeal under the 1955 Rules.  The penalties which  can  be  imposed  are set out in  Rule  3.  Of  these penalties,the penalty No. 5, VIZ., compulsory retirement  on proportionate pension, cannot be imposed on the appellant in view  of  Art.  314  of the  Constitution.   The  other  two penalties  mentioned  in  cls.  6 and 7  of  Rule  3,  viz., dismissal or removal from service, cannot be imposed, except

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by an order of the Central Government.  As regards penalties which can be imposed by the State Government Rule 6 provides that  no order imposing such penalty shall be passed by  the Government  except,  after  consultation  with  the   Public Service  Commission  and  where there  is  a  difference  of opinion between the State Government and the Public  Service Commission  the  matter  shall be referred  to  the  Central Government  whose  decision  thereon  shall  be  final.   If therefore it does happen that’ the Inquiring Authority finds the appellant not guilty as regards some or all the  charges and  the Government considers him guilty of  those  charges, even  so the Government will not be in a position to  impose any  penalty  on  him  unless  either  the  Public   Service Commission  or the Central Government takes the  same  view. If  a  penalty is imposed by the State Government  with  the concurrence of the Public Service Commission, the member  of the service has a right of appeal to the Central Government. The circumstances in which an appeal can be withheld by  the State  Government  are set out in Rule 14.   These,  in  our opinion, do not 223 interfere  with, the proper and reasonable exercise :of  the right of appeal. A consideration of all these provisions makes it  reasonable to  think  that even if the Punjab Chief  Minister  was  un- friendly  to the appellant he could not expect to. harm  him by having recourse to an enquiry under the Inquiries Act  in preference to a trial in a criminal court.  It is  therefore not  possible  for us to accept as correct  the  appellant’s contention  that the Inquiries Act was being used only as  a device to harass and humiliate him or to impose penalties on him  in any case, nor that the statement in the  Order  that the Governor was of the opinion that there were good grounds for  making  a formal and public inquiry into the  truth  of certain  imputations  of misbehaviour, was false.   We  hold that the appellant’s case that the Government of Punjab  has acted mala fide in ordering the enquiry against him has  not been established. There  remains  for consideration the question  whether  the enquiry  under  the Inquiries Act can go on so long  as  the appellant’s  complaint against Dhingra which is  pending  in the criminal court has not been disposed of.  This complaint was  made by the appellant in the court of  the  Magistrate, First  Class, Chandigarh, alleging that the case  instituted against  him by, Dhingra was false and that Dhingra  himself had  by making this complaint committed offences  under  ss. 93,  204,  211  and 385 of the Indian Penal  Code.   We  are informed that the hearing of this case is in progress in the court  of a Magistrate in U.P. The appellant  contends  that the  holding of the enquiry under the Inquiries Act  ordered against him would amount to contempt of court.  The argument is that the appellant’s case in his complaint being that the allegations  made  by Dhingra in his complaint  against  the appellant  are  false,  the criminal  court  is  engaged  in examining  the  truth or otherwise of those  allegations  of Dhingra,  and  an  enquiry under  the  Inquiries  Act  would involve the examination of witnesses on the same  questions. This,  it  is said, will tend to interfere with  the  proper determination  of the question by the criminal court and  so amount  to contempt of the criminal court.  We do not  think it necessary to decide this question for the purpose of  the present  case.   For, whether or not the holding of  such  a parallel enquiry under 224 the Inquiries Act would amount to, contempt of the  criminal

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court,  we  are  clearly of opinion that it  is  wholly  un- desirable that the enquiry under the Inquiries Act should be held  at  the same time when the trial before  the  criminal court  is going on.  No particular reason has been shown  to exist which makes the immediate commencement of the  enquiry essential  or  otherwise  desirable.  We  think  it  pro.per therefore  that the enquiry under the Inquiries  Act  should not  proceed  so long as the  appellants  complaint  against Dhingra is not finally disposed of. While  therefore; we have come, to the conclusion  that  the High  Court has rightly refused, to issue to  the  appellant writs  prayed: for to quash the Government’s order  for  en- quiry  against  him and the other prayers mentioned  in  the petition, we direct that the enquires should not take  place so long as the appellant’s complaint against Dhingra is  not finally disposed of.  The parties will bear their own costs. Appeal-dismissed.