http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14  

PETITIONER: SARDAR KAPUR SINGH

       Vs.

RESPONDENT: THE UNION OF INDIA

DATE OF JUDGMENT: 15/12/1959

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B. SUBBARAO, K. GUPTA, K.C. DAS

CITATION:  1960 AIR  493            1960 SCR  (2) 569  CITATOR INFO :  R          1961 SC1245  (20)  R          1963 SC 779  (7)  F          1964 SC 295  (2,3,7,9,20,22,24,51)

ACT: Public Servant, Dismissal of--Member of Indian Civil Service -Enquiry  Commissioner  a  appointed  by  State  Government- Validity    -’Government’,    meaning    of-Procedure,    if discriminatory  President,  if  must  hear  evidence  before Passing  order-Public Servants (Inquiries) Act, 1850 (37  of 1850),  S.  2, Civil Services (Classification,  Control  and Appeal) Rules, r. 55-Constitution of India, Arts. 511, 314.

HEADNOTE: The  appellant  was  a member of the  Indian  Civil  Service posted in the Punjab.  The East Punjab Government  suspended him and appointed the Chief justice of the East Punjab  High Court  as  Enquiry Commissioner under  the  Public  Servants (Inquiries)  Act,  1850  (37 Of 1850), to  hold  an  enquiry against  him  on  diverse charges  of  misappropriation  and misdemeanour framed against him.  After a protracted enquiry on  evidence, the Commissioner found him guilty on  most  of the  charges and submitted his report to the  Government  of the  East Punjab.  The appellant was supplied a copy of  the report by the Secretary to the Government of India, Ministry of   Home   Affairs,  and  informed  that   on   a   careful consideration of the report and the findings of the  Enquiry Commissioner,  the  President had provisionally  decided  to dismiss  the  appellant from service and  desired  that  the appellant  should have an opportunity of showing  cause  and making  a representation against the proposed  action.   The appellant   submitted  a  lengthy   representation.    After consultation  with the Union Public Service Commission,  the President   dismissed  the  appellant  from   service   with immediate effect.  The appellant challenged the  President’s order  under  Art 226 of the Constitution.  The  High  Court dismissed  his  petition and, on a  certificate  of  fitness granted  by it, the appellant filed the present appeal.   It was  contended, inter alia, on his behalf that (i) the  East

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14  

Punjab Government had no power to direct the enquiry against the  appellant  since he was a member of  the  Indian  Civil Service  and  not employed under that  Government,  (2)  the enquiry  could  only  -be  held under r.  55  of  the  Civil Services (Classification, Control and Appeal) Rules and  not the  Public Servants (Inquiries) Act, 185o and (3) that  the enquiry held under that Act was discriminatory and infringed Art. 14 Of the Constitution. Held,  that the contentions were without substance and  must fail. The  word  "  Government " in s. 2 of  the  Public  Servants (Inquiries)  Act,  1850, means, as defined by S. 23  of  the Act, the 73 570 Central  Government  in the case of persons  employed  under that  Government  and the State Government in  the  case  of persons  employed under the State Government.  A  member  of the Civil  service of the Union undoubtedly holds his office during  the  pleasure  of the President, but  the  power  of dismissal  cannot be   equated with the authority to  direct an  enquiry  under  the  Act and there  is  nothing  in  the Constitution which takes away the authority of the State  to direct an enquiry under S. 2 of the Act.  There was no doubt that appellant who was posted in the Punjab, was at the date of  the enquiry employed under the East  Punjab  Government. Consequently,  its  order directing an enquiry  against  him under the Act was perfectly valid in law. There  is no foundation for the contention that the  members of  the Indian Civil Service are beyond the purview  of  the Act which is meant to regulate enquiries into the conduct of superior  public  servants  not removable  except  with  the sanction of the Government.  The members of the lndian Civil Service,whether  employed under the Union or the State,  are not employees of the President ; and they are not liable  to be dismissed from their appointment without the sanction  of the Government. Rule  55 of the Civil Services (Classification, Control  and Appeal)  Rules  contemplates an enquiry,  either  under  the procedure  prescribed  by the Public  Servants  (Inquiries), Act,  1850, or the procedure prescribed by it.  It does  not require  that once an enquiry is held under the  Act,  there must be another under it before a member of the Indian Civil Service   can  be  dismissed.   The  expression  "   without prejudice " in the opening clause of the rule does not  mean ’notwithstanding’. S.   A.  Venkataraman v. The Union of India,  [1954]  S.C.R. 1150, referred to. It  is not correct to say that an enquiry under the  Act  is discriminatory  and infringes Art. 14 of  the  Constitution. While  guaranteeing  to  all public  servants  a  reasonable enquiry into their conduct under Art- 311 (2), as  explained by  this Court in Khem Chand v. The Union of  India,  [1958] S.C.R. 1080, the Constitution does not guarantee an  enquiry under  any  specific statutory provision  or  administrative rules.   Article  314 of the Constitution no  doubt  further guarantees  to the members of the Indian Civil  Service  the same rights- in regard to disciplinary actions as they  were entitled  to  immediately  before the  commencement  of  the Constitution,  which must mean an enquiry either  under  the Public  Servants  (Inquiries)  Act or r.  55  of  the  Civil Services (Classification, Control and Appeal) Rules, then in operation,  the primary constitutional guarantee to them  is one  of a reasonable enquiry as mentioned above.  There  is, therefore, no discrimination simply because the one and  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14  

the  other procedure is adopted unless it is shown  that  it operated to the prejudice of the public servant. Khem  Chand  v.  The Union of  India,  [1958]  S.C.R.  1080, referred to, 571 Although  the  procedure prescribed by the  Public  Servants (Inquiries) Act, 1850 is more detailed than that  prescribed by  r.  55,  it is in substance  not  materially  different. Under either form of enquiry, notice has to be given of  the charges,  the materials on which the charge is sought to  be sustained have to be furnished and, if the public servant so desires,  he can demand an oral hearing for the  examination of witnesses.  It is not, therefore, correct to contend that provisions  such as those of ss’ 11 and 19 of the  Act  made the  procedure laid down by it discriminatory.- Although  r. 55  lays down a somewhat more elastic procedure,  provisions similar to those contained in the two sections are  implicit in r. 55. An  opportunity  of making an oral representation is  not  a necessary  postulate  of  an opportunity  of  showing  cause within  the meaning of Art. 311 Of the Constitution and  the President of India is ’not bound under that Article to  hear evidence   of  witnesses  before  he  passes  an  order   of dismissal.  That Article does not contemplate that before an order of punishment can be passed against a public  servant, although  a full and fair enquiry has already  taken  place, there  must  be  a  further enquiry  at  which  evidence  of witnesses viva voce is recorded. The High Commissioner of India and Another v. 1. M. Lal,  75 I.A. 225 and Khem Chand v. The Union of India, [1958] S.C.R. 1080, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 230 of 1959. Appeal from the judgment and order dated October 7, 1955, of the  Punjab  High Court, in Civil Writ Petition No.  322  of 1953. I.   M.  Lal, K. S. Chawla and K. R. Krishnaswami,  for  the appellant. H.   N. Sanyal, Additional Solicitor-General of India, N.   S. Bindra,  R.  H. Dhebar and T. M. Sen, for  the  respondents. 1959. December 15.  The Judgment of the Court was  delivered by SHAH J.-Sardar Kapur Singh (who will hereinafter be referred to as the appellant) was admitted by the Secretary of  State for  India in Council to the Indian Civil Service  upon  the result  of a competitive examination held at Delhi in  1931. After  a  period  of training in  the  United  Kingdom,  the appellant returned to India in November, 1933 and was posted as Assistant 572 Commissioner,  Ferozepore  in  the Province  of  Punjab.  He served  in  the Province in various capacities  between  the years 1933 and 1947.  In July, 1947, he was posted as Deputy Commissioner at Dharamsala  India and continued to bold that office  till February 11, 1948, when he was  transferred  to Hoshiarpur at which place he continued to hold the office of Deputy  Commissioner till a few days before April 14,  1949. On  April 13, 1949, the appellant was served with  an  order passed by the Government of East Punjab suspending him  from service.   On  May  5,  1950,  the  appellant  submitted   a representation to the President of India protesting  against the  action of the Government of East Punjab suspending  him

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14  

from service and praying that he be removed from the control of the Punjab Government and that if any disciplinary action was  intended to be taken against him, it be  taken  outside the   Province  of  Punjab  by  persons  appointed  by   the Government  Of  India  and  in an  atmosphere  "  free  from prejudice and hostility ". The Government of East Punjab  on May  18, 1950, appointed Mr. Eric Weston, Chief  Justice  of the East Punjab High Court as Enquiry Commissioner under the Public Servants (Inquiries) Act, XXXVII of 1850, to bold  an enquiry against the appellant on twelve articles of charges. Notice  was  issued to the appellant of those  charges.   On November   5,  1950,  at  the  suggestion  of  the   Enquiry Commissioner, the Government of East Punjab withdrew charges Nos.  11  and 12 and the Enquiry Commissioner  proceeded  to hold  the  enquiry on the remaining  ten  charges.   Charges 1,2,7,8,9 and 10 related to misappropriation of diverse sums of  money  received by or entrusted to  the  appellant,  for which he failed to account.  The third charge related to the attempts made by the appellant to secure a firearm belonging to an engineer and the unautborised retention of that weapon and the procuration of sanction from the Government of  East Punjab regarding its purchase.  The fourth charge related to the  granting of sanction under the Alienation of  Land  Act for  sale  of a plot of land by an agriculturist to  a  non- agriculturist, the appellant being the beneficiary under the 573 transaction  of  sale,  and  to the  abuse  by  him  of  his authority  as  Deputy  Commissioner  in  getting  that  land transferred  to his name, without awaiting the   sanction of the  Government.  The fifth charge related to the  grant  to Sardar Raghbir Singh of a Government contract for the supply of  fire-wood’  without inviting tenders or  quotations,  at rates  unreasonably  high and to the acceptance of  wet  and inferior  wood  which  when  dried  weighed  only  half  the quantity purchased, entailing thereby a loss of Rs.,  30,000 to  the  State.  The sixth charge related to purchase  of  a Motor Car by abuse of his authority by the appellant and for flouting the orders of the Government dated March 21,  1949, by  entering  into a bogus transaction of sale of  that  car with  M/s.   Massand  Motors  and  for  deciding  an  appeal concerning that car in which he was personally interested. Charges  Nos.   1 to 4 and 7 to 10 related to  the  official conduct  of  the  appellant when he  was  posted  as  Deputy Commissioner at Dharamsala and charges Nos. 5 and 6  related to  the period when he was posted as Deputy Commissioner  at Hoshiarpur. The Enquiry Commissioner heard the evidence on behalf of the State  at  Dharamsala between July 31 and August  21,  1950. Enquiry  proceedings  were then resumed on  September  5  at Simla  and were continued till October 23 on which date  the evidence on behalf of the State was closed.  On October  27, the appellant filed a list of defence witnesses.  A detailed written  statement  was filed by the appellant and  he  gave evidence  on  oath between November 28 and December  5.  The defence witnesses were then examined between December 5  and December 28.  It appears that the appellant did not, at that stage  desire  to  examine  any  more  witnesses,  and   the appellant’s  case was treated as closed on December 28.   On and  after  December 28, 1950, the appellant  filed  several applications and affidavits for obtaining certain directions from the Enquiry Commissioner and for eliciting  information from   the   State.   On  January  2,  1951,   the   Enquiry Commissioner   adjourned  the  proceeding  for  the   winter vacation.  The proceedings were resumed 574

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14  

on  March 12, 1951, and after recording formal  evidence  of two  witnesses,  S. Gurbachan Singh, Sub-Inspector  and  Ch. Mangal  Singh, Sub-Inspector about the state-ments  made  by certain     witnesses    for    the    defence    in     the course  of  the investigation which it  was  submitted  were materially  different  from those made  before  the  Enquiry Commissioner  and after hearing arguments, the  enquiry  was closed.  On May 14, 1951, the Enquiry Commissioner  prepared his report.  He held that the appellant had taken the amount referred to in charge No. 1 from the Government on the basis of  a claim of Raja Harmohinder Singh which was made at  the appellant’s  instance, that the appellant had also  received the  amount  which was the subject matter of charge  No.  2, that  the  appellant admitted to have received  the  amounts which  were the subject matter of charges Nos. 7, 9 and  10, that the amount which was the subject matter of charge No. 8 was  obtained by the appellant from the Government  under  a fraudulent  claim  sanctioned  by the  appellant  with  full knowledge  of  its  true nature  and  that  accordingly  the appellant had received an aggregate amount of Rs. 16,734-11- 6 and that even though he had made certain disbursements  to refugees,  the  appellant  had failed  to  account  for  the disbursement  of  the  amount received by  him  or  anything approximate to that amount and therefore the charge  against the  appellant  for  misappropriation must  be  held  proved although the amount not accounted for could not be precisely ascertained.   On charges 3 and 4, the Enquiry  Commissioner did  not record a finding against the appellant.  On  charge No. 6, he recorded an adverse finding against the  appellant in  so far as it related to the conduct of the appellant  in deciding an appeal in which he was personally concerned.  He held that the conduct of the appellant in giving a  contract to  Sardar  Raghbir Singh which was the  subject  matter  of charge  No.  5 was an act of dishonest  preference  and  the appellant  knowingly permitted the contractor to  cheat  the Government  when  carrying  out  the  contract  and  thereby considerable loss was occasioned to the Government for which the appellant was responsible. 575 This report was submitted to the Government of East  Punjab. On  February  11, 1952, the Secretary to the  Government  of India,  Ministry  of  Home Affairs supplied a  copy  of  the report  to the appellant and informed him that on a  careful consideration  of  the   report  and  in  particular  of the conclusions  reached by the Enquiry Commissioner in  respect of  the  charges framed, the President of India was  of  the opinion that the appellant was " unsuitable to continue " in Government  service  and  that  the  President   accordingly provisionally decided that the appellant should be dismissed from  Government service.  The appellant was  informed  that before  the  President took action, he desired to  give  the appellant an opportunity of showing cause against the action proposed  to be taken and that any representation which  the appellant may make in that connection will be considered  by the  President  before  taking  the  proposed  action.   The appellant  was called upon to submit his  representation  in writing  within  twenty  one days from the  receipt  of  the letter.  The appellant submitted a detailed statement on May 7, 1952, which runs into 321 printed pages of the record. The President consulted the Union Public Service Commission, and  by order dated July 27, 1953, dismissed  the  appellant from service with immediate effect.  The order passed by the President  was  challenged by a petition filed in  the  East Punjab High Court for the issue of a writ under Art. 226  of the Constitution.  The appellant prayed that a writ quashing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14  

the  proceeding and the report of the  Enquiry  Commissioner and  also a writ of Mandamus or any other appropriate  Writ, Direction  or  Order  commanding  the  Union  of  ,India  to reinstate  the appellant into the Indian Civil Service  from the  date  of  suspension  be  issued.   By  separate,   but concurring judgments, Chief Justice Bhandari and Mr. Justice Khosla of the East Punjab High Court dismissed the petition. Against the order of dismissal of the petition, this  appeal has been filed by the appellant pursuant to a certificate of fitness granted by the High Court, 577 in  so  far  as it is material, it was  enacted  that  every person  appointed  by  the Secretary of  State  to  a  civil service  of the Crown in India who continued on  and   after the  appointed  day  to serve under the  Government  of  the Dominion  of India or of any Province or   part  thereof was entitled  to  receive  the same. conditions  of  service  as respects remuneration, leave and pension and the same rights as respects disciplinary matters, or as the case may be,  as respects the tenure of his office.  By sub-s. 2 of s. 240 of the  Government of India Act as amended, a person  appointed by the Secretary of State who continued in the establishment of  the Dominion of India was not liable to be dismissed  by any  authority  subordinate to the Governor General  or  the Governor according as that person was serving in  connection with   the  affairs  of  the  Dominion  or   the   Province. Indisputably, since India became a Republic, by Art.  310(1) of the Constitution, every person who is a member of a civil service of the Union or of an all-India service or holds any civil post under the Union, holds office during the pleasure of the President.  But the power to dismiss a member of  the civil  service of the Union or of an all-India  service  may not be equated with the authority conferred by statute  upon the State under which a public servant is employed to direct an enquiry into the charges of misdemeanour against him.  By s.  2  of the Public Servants (Inquiries) Act, 1850,  it  is provided that : "Whenever the Government shall be of opinion that there  are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the Government not removable from his appointment without  the  sanction of the Government, it may  cause  the substance  of  the  imputations to be  drawn  into  distinct articles  of  charge,  and may order  a  formal  and  public inquiry to be made into the truth thereof ", and  the expression ’Government’ is defined by s. 23 of  the Act  as  meaning  Central  Government  in  case  of  persons employed under that Government and the 74 579 of the Indian Civil Service are accordingly not liable to be dismissed from their appointment without the sanction of the Government  and  are not excluded  from the  purview  of the Public Servants (Inquiries) Act, 1850. Rule  55 of the Civil Services (Classification, Control  and Appeal) Rules provides: "Without prejudice to the provisions of the Public  Servants (Inquiries)  Act, 1850, no order ’of dismissal,  removal  or reduction  shall be passed on a member of a  Service  (other than  an  order  based  on  facts  which  have  led  to  his conviction in a criminal court or by a Court Martial) unless he  has been informed in writing of the grounds on which  it is  proposed  to  take  action, and  has  been  afforded  an adequate  opportunity of defending himself.  The grounds  on which it is proposed to take Action shall be reduced to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14  

form  of  a  definite  charge or  charges,  which  shall  be communicated to the person charged together with a statement of the allegations on which each charge is based and of  any other  circumstances  which  it is  proposed  to  take  into consideration  in passing orders on the case.  He  shall  be required,  within  a reasonable time, to put  in  a  written statement of his defence and to state whether he desires  to be  heard in person.  If he so desires, or if the  authority concerned so direct, an oral inquiry shall be held.  At that inquiry  oral  evidence  shall be heard as to  such  of  the allegations  as  are not admitted, and  the  person  charged shall  be  entitled to crossexamine the witnesses,  to  give evidence  in person and to have such witnesses called as  he may  wish, provided that the officer conducting the  inquiry may,  for  special and sufficient reason to be  recorded  in writing,  refuse to call a witness.  The  proceedings  shall contain a sufficient record of the evidence and a  statement of the findings and the grounds thereof. This  rule shall not apply where the person con. cerned  has absconded, or where it is for other reasons impracticable to communicate  with him.  All or any of the provisions of  the rule,  may in exceptional cases, for special and  sufficient reasons to be recorded in writing, be waived, where there is a difficulty in 580 observing  exactly  the requirements of the rule  and  those requirements  can be waived without injustice to the  person charged." It   was   submitted  relying  upon  that  rule,   that   no order  for  dismissal or removal of a member of  the  Indian Civil  Service  can  be passed unless  an  enquiry  is  held against  him as prescribed by r. 55.  But the rule in  terms states  that the enquiry contemplated therein is "  ’without prejudice   to  the  provisions  of  the   Public   Servants (Inquiries)  Act, 1850 ". The rule apparently means that  an order  of dismissal, removal or reduction in rank shall  not be  passed  without  an  enquiry  either  according  to  the procedure prescribed by the Public Servants (Inquiries) Act, 1850,  or  the procedure prescribed by the Rule.   The  Rule does  not support the submission that even if an enquiry  be held under the Public Servants (Inquiries) Act, 1850, before an  order  of dismissal or removal or  reduction  is  passed against  a  member  of the  civil  service  another  enquiry expressly  directed under r. 55 shall be made. The  argument on behalf of the appellant proceeds upon an assumption which is  not  warranted by the language used, or by  the  context that  the expression without prejudice’ is used in the  rule as meaning notwithstanding’. The observations made in S. A. Venkataraman v. The Union  of India and Another(1) by Mr. Justice Mukherjea, in delivering the judgment of the court, that : "Rule 55, which finds a place in the same chapter, lays down the  procedure  to be followed before passing  an  order  of dismissal,  removal or reduction in rank against any  member of  the service.  No such order shall be passed  unless  the person  concerned  has  been informed, in  writing,  of  the grounds  on which it is proposed to take action against  him and  has been afforded an adequate opportunity of  defending himself.   An enquiry has to be made regarding  his  conduct and  this  may  be  done  either  in  accordance  with   the provisions  of the Public Servants (Inquiries) Act of  1850, or  in a less formal and less public manner as  is  provided for in the rule itself (1)  [1954] S.C.R. 1150. 581

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14  

dispel doubt, if there be any, as to the true meaning of the opening clause of the rule. Does  the  holding of an enquiry against a  public   servant under the Public Servants (Inquiries) Act, 1850 -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 circumstanced  an enquiry under r. 55 may be directed,  Art. 14  of the Constitution is infringed.  The  Constitution  by Art.  311(2)  guarantees to a public  servant  charged  with misdemeanour  that  he shall not be  dismissed,  removed  or reduced  in  rank  unless he has  been  given  a  reasonable opportunity of -showing cause against the action proposed to be  taken in regard to him.  The content of  that  guarantee was  explained  in  Khem Chand v. The  Union  of  India  and Others(1).  It was observed that: "the reasonable opportunity envisaged by the provision 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  levelled  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 applying his mind to the gravity or otherwise of  the  charges  proved  against  the  government   servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant." By the Constitution, to public servants who are not  members of the Indian Civil Service charged with (1)  [1958] S.C.R. 1080 at 1096-97. 582 misdemeanour  a  guarantee  to a  fair  enquiry  into  their conduct is given: i. e., the public servant must be afforded a  reasonable opportunity of defending himself  against  the charges  by  demonstrating that the evidence  on  which  the charges  are sought to be founded is untrue  or  unreliable, and also by leading evidence of himself and his witnesses to that  end; he must, besides, be afforded an  opportunity  of showing   cause  against  the  proposed   punishment.    The Constitution however does not guarantee an enquiry  directed in  exercise of any specific statutory powers or  administr- ative rules.  But the guarantee in favour of members of  the Indian Civil Service is slightly different.  By Art. 314,  a public  servant who was appointed by the Secretary of  State to a civil service of the Crown in India continues except as expressly  provided  by  the Constitution on  or  after  the commencement   of  the  Constitution  to  serve  under   the Government  of  India or of the State subject  to  the  same conditions  of service as respects remuneration,  leave  and pension and the same rights as respects disciplinary matters or  rights as similar thereto as changed  circumstances  may permit as that person was entitled to immediately before the Constitution.     Rule    55   of   the    Civil    Services (Classification,  Control and Appeal) Rules before the  date of  the  Constitution assured the public  servants  that  no order of dismissal, or removal from service shall be  passed except following upon an enquiry, and by Art. 314, to  civil

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14  

servants appointed by the Secretary of State the same rights in  disciplinary  matters  as  were  available  before   the Constitution  are guaranteed.  A member of the Indian  Civil Service, before disciplinary action is taken against him  is therefore  entitled by the force of guarantees enshrined  in the Constitution to an enquiry into his alleged misdemeanour either under the Public Servants (Inquiries) Act or under r. 55  of  the  Civil  Services  (Classification,  Control  and Appeal) Rules, in operation at the date of the Constitution. But the guarantee being one of an enquiry directed under one of  two alternative powers, the exercise of authority  under one of the two alternatives is not prima facie illegal. 583 The procedure to be followed in making an enquiry under  the Public Servants (Inquiries) Act, 1850, is prescribed in some detail.   The Enquiry Commissioner is required to supply  to the  person  accused a copy of the articles of  charges  and list of the Documents and witnesses by which the charges are to be sustained at least three days before the beginning  of the  enquiry.   By  s. II, the  prosecutor  is  required  to exhibit  articles of charges which are read and  the  person accused is required to plead ’ guilty ’ or ’ not guilty ’ to each  of  them;  then  the plea of  the  person  accused  is required  to  be  recorded and if that  person  refuses,  or without  reasonable cause neglects to appear to  answer  the charge  either  personally or by his counsel  or  agent,  he shall be taken to admit the truth of the articles of charge. By ss. 13, 14, 15 and 16, the sequence to be followed in the examination   of  witnesses  is  prescribed.    Section   18 prescribes the method of maintaining notes of oral evidence. By s. 19, after the person accused has made his defence, the prosecutor  is given an opportunity to make a  general  oral reply  on  the  whole  case  and  to  exhibit  evidence   to contradict  any evidence exhibited for the defence; but  the person  accused  is not entitled to any adjournment  of  the proceedings although such new evidence were not included  in the list furnished to him.  By s. 20, power is given to  the Enquiry Commissioner to amend the charge.  This procedure is evidently  prescribed in greater detail than  the  procedure prescribed  by r. 55.  Under r. 55, the grounds on which  it is  proposed  to  take action  against  the  public  servant concerned  must be reduced to the form of a definite  charge and  be communicated to him together with the  statement  of the  allegations  on which each charge is based and  of  any other  circumstances  on which it is proposed to  take  into consideration  in  passing orders on the case.   The  public servant  must be given reasonable time to put in  a  written statement of his defenee and to state whether he desires  to be heard in person, and if he desires or if the authority so directs,  an  oral enquiry must be held.  At  that  enquiry, opportunity is given to the public servant to  cross-examine witnesses 584 to give evidence in person and to examine his own witnesses. The provisions of the Public Servants   (Inquiries)     Act, 1850, were made more detailed for the obvious reason that at the  time when that Act was  enacted, there was no  codified law  of evidence in force. But the procedure  prescribed  by Act XXXVII of 1850 and the procedure to be followed under r. 55 are in substance not materially different.  Under  either form  of  enquiry, the public servant concerned  has  to  be given  notice  of  the charges against him;  he  has  to  be supplied with the materials on which the charge is sought to be  sustained  and if he so desires, he may demand  an  oral hearing  at which the witnesses for the prosecution and  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14  

own witnesses shall be examined. Counsel for the appellant submitted that the procedure under the  Act  was  more  onerous  against  the  public   servant concerned in two important respects: (1) under s. 11 of  Act XXXVII of 1850, if the accused refuses or without reasonable cause  neglects to appear to answer the charge, he shall  be taken to admit the truth of the articles of charge,  whereas there is no similar provision in r. 55; (2) that under s. 19 of  the  Act,  even after the evidence for  the  defence  is closed, it is open to the prosecutor to exhibit evidence  to contradict  evidence  exhibited  for  the  defence  and  the Commissioner is not bound to adjourn the proceeding although the  new evidence was not included in the list furnished  to the accused whereas there is no similar provision in r.  55. The  procedure prescribed by r. 55 is  undoubtedly  somewhat more elastic, but the provisions similar to those which have been   relied   upon  by  counsel  for  the   appellant   as discriminatory  are also implicit in r. 55.  If  the  public servant  concerned  does not desire an oral  enquiry  to  be held,  there is no obligation upon the authority to hold  an enquiry.  Again, there is nothing in the rule which prevents the  authority from exhibiting evidence for the  prosecution after the case of the defence is closed if that evidence  is intended  to contradict the evidence of the  public  servant concerned. The primary constitutional guarantee, a member of the Indian Civil Service is entitled to is one of being 585 afforded  a  reasonable opportunity of the content  set  out earlier,  in an enquiry in exercise of powers  conferred  by either  the Public Servants (Inquiries) Act or r. 55 of  the Civil  Services (Classification Control and  Appeal)  Rules, and  discrimination is not practised  merely  because resort is  had  to  one of two alternative  sources  of  authority, unless  it is shown that the procedure adopted  operated  to the prejudice of the public servant concerned.  In the  case before us, the enquiry held against the appellant is not  in manner different from the manner in which an enquiry may  be held  consistently with the procedure prescribed by  r.  55, and  therefore on a plea of inequality before the  law,  the enquiry held by the Enquiry Commissioner is not liable to be declared  void  because  it  was held  in  a  manner  though permissible  in law, not in the manner, the appellant  says, it might have been held. The plea that the Enquiry Commissioner held the enquiry in a manner violative of the rules of natural justice, may now be considered.   The  appellant  examined  at  the  enquiry  82 witnesses and he produced a considerable body of documentary evidence.  The High Court held that the Enquiry Commissioner dealt with each charge exhaustively and the enquiry was held in  a  manner just and thorough.  According to  the  learned Judges of the High Court, on all the applications  submitted by  the  appellant,  orders  were  passed  by  the   Enquiry Commissioner  and  in  a majority  of  the  orders  detailed reasons  for  refusing  to  accede to  the  request  of  the appellant were given.  They also held that the appellant had no  inherent  right to require the  Commissioner  to  summon every  witness  cited and failure to  summon  the  witnesses could  not by itself be regarded reasonably as a  ground  on which  the procedure could be challenged as contrary to  the rules of natural justice. In  his  petition before the High Court, in para. 7  it  was suggested  by the appellant that his written request to  the Enquiry Commissioner to hold the enquiry at Delhi or  Simla, but  not at Dharamsala where the appellant had a  reasonable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14  

apprehension that the witnesses will be  freely suborned and interfered with 75 586 was  summarily rejected’; but admittedly, all the  witnesses of  the  appellant  were  examined  at  Simla  and  not   at Dharamsala.  In  paras.  8,  9  and 10  of  his  petition  he  submitted that even though he had brought to the notice of the Enquiry Commissioner that there was a conspiracy among certain  high functionaries  of  the Government  and  certain  influential politicians  against him, the Enquiry Commissioner  declined to  permit the evidence about the alleged conspiracy  to  be brought on the record and observed that he will not give any definite finding against any functionary or high officer  of the Government and on this account the enquiry was vitiated. Before us, this contention was not pressed.  By para. 10  of his petition, the appellant stated that even those documents which  the appellant desired to be called for to  rebut  the specific  charges were not ordered to be called for  by  the Enquiry  Commissioner  and he merely directed  that  if  the appellant  possessed  any copies of such documents,  he  may file  them  in the court and that those  documents  will  be treated as legal substitute for the original documents.  The appellant   submitted  that  this  extraordinary   procedure resulted  in  the exclusion of the admissions  of  the  high functionaries  of the Punjab Government to the  effect  that the charges framed against the appellant directly arose  out of a conspiracy carried out against the appellant.   Neither of  these  grounds was sought to be pressed before  us.   In para.   II, the appellant stated that the proceedings  taken and  the charges framed against him were mala fide  and  the result  of  a  conspiracy,  that  the  Enquiry  Commissioner excluded  other  evidence, documentary and oral,  which  was sought  to be produced to show that the specific charges  as framed  against him were the result of acts of  conspiracy,, that  the Enquiry Commissioner insisted on a  discriminatory procedure  requiring  the appellant to state in  advance  in case  of  each item of evidence or witness, as to  what  the document  contained  or the witness had to state  before  he would  agree to summon or record the defence evidence  while this   procedure  was  not  adopted  in  the  case  of   the prosecution.  Before this court, the 587 plea  of mala fides or that discrimination was made  between the facilities given to the prosecutor and the appellant was not adverted to.  But reliance was Kapur Singh sought to  be placed upon the ground that the appellant was not  permitted an  opportunity to examine the witnesses whom he desired  to examine  and  to produce certain documentary  evidence,  and that on some of the applications which had been submitted by the  appellant, the Enquiry Commissioner had not passed  any orders.   Our attention was invited to certain  applications which were filed on or after December 28, 1950.  As  already observed  on  December 28, 1950, the last  witness  for  the appellant  was  examined.   His counsel  then  submitted  an application dated December 28, 1950, praying that  documents and files which had been admitted by the parties as part  of the record of the case be formally exhibited for facility of reference.   This indicates that the appellant had  no  more evidence  to lead after December 28, 1950.  It is not  clear on  the record whether any express order was passed on  this application;  but assuming that there was no such  direction given  for exhibiting the documents, we fail  to  appreciate how the procedure followed operated to the prejudice of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14  

appellant.  On December 29, 1950, the appellant applied that the  Advocate  General  appearing  for  the  prosecution  be directed  to  give ’final and complete answers’  to  certain queries and to produce relevant documents in support of  his answers,  and as many as seven questions were set  out.   It appears from the application dated December 30, 1950,  filed by  the  appellant that the Enquiry Commissioner  asked  the appellant  to remodel the questions and accordingly a  fresh application  with questions re-modelled was  submitted.   On that  application, the Commissioner ordered that he  had  no objection to allow the appellant to give evidence as to some incident  about  ’  Pauji Mela’ even  though  there  was  no reference to that matter at any earlier stage.  He, however, declined  to  allow any further evidence to  be  called  and observed that he had not given to the Prosecutor any special privilege,  and that it was not the case of  the  Prosecutor that there existed express 588 instructions to District Officers in the management of trust funds.   The  appellant also submitted  another  application dated December 30, 1950, praying that the Prosecutor may  be asked  to  reply  to the questions set out  therein  and  to produce  documents  in support of is answers.   The  Enquiry Commissioner  ordered that answers to the questions  may  be given  on  affidavits  obviating thereby  the  necessity  of considering  the prayer for further evidence, and he  called upon  the Prosecutor to file answers within one  month.   In the  meanwhile,  on  December 29, 1950,  the  appellant  bad submitted an affidavit in which he had set out what happened at a meeting between the Governor of East Punjab, the  Chief Secretary and the Deputy Commissioners of various  districts and   the  superintendents  of  police,  and  made   certain submissions  with  regard  to  the  record  which  had  been produced.   On  December 31, 1950, referring  to  the  order passed   by  the  Commissioner  giving  the   appellant   an opportunity to give evidence regarding the ’Fauji Mela’, the latter  requested the Commissioner to direct the  Prosecutor to file an affidavit on certain facts stated in the  applic- ation  with a view to enable him to take  further  necessary steps  to establish his contentions in the matter.  On  that application,  the  Enquiry  Commissioner  ordered  that  the Prosecutor  was  unable  to  make  statements  and  in   the circumstances ’of the case he could not accept that  further enquiries  be allowed.  On January, 2, 1951,  the  appellant produced  a post card alleged to have been received  by  him and which he contended had a bearing on his evidence in  the enquiry  and prayed that if the Enquiry Commissioner had  no objection,’ the writer of the enclosure be heard as  defence witness  before  the defence was closed’.  But it  does  not appear that any attempt was made to summon the writer, Suraj Parkash  Bakhshi or to keep him present before  the  Enquiry Commissioner.   When  the Enquiry Commissioner  resumed  his enquiry  after the winter vacation, on March 12,  1951,  the appellant’s  counsel  submitted a  narrative  regarding  the alleged  victimisation  of certain witnesses.   The  Enquiry Commissioner ordered thereon that he could not enter 589 upon  an  enquiry  as to the alleged  victimisation  of  the witnesses.   On  March  12, 1951,  the  appellant  submitted another  application  requesting that  immediate    steps be taken  to examine one Tikka Nardev Chand of Guler in  the  " light of certain extra judicial state-  ments " made  by him and  also  the  clerk of the Court of Wards  of  the  Deputy Commissioner’s Office may be summoned with necessary  papers and  files  to show as to when the property of the  Aaja  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14  

Guler  was taken possession by the Deputy  Commissioner  and when  the  allowances  of the Raja of Guler  and  his  other dependants  were fixed.  The Enquiry  Commissioner  observed that  the application was belated and that although  he  was away  from  Simla,  he  was  accessible  by  post  and   his whereabouts  were ascertainable and that he could not  allow further evidence of that nature to go on the record.  At the instance of the Prosecutor, the Enquiry Commissioner allowed two  witnesses, S. Gurbachan Singh and Ch.  Mangal Singh  to formally prove the statements made by two witnesses,  Bishan Das  Gupta and Shahbaz Singh who it was claimed had made  in the  course of the enquiry statements on  oath  inconsistent with the statements made in the course of the investigation. Pursuant  to  the order of the  Enquiry  Commissioner  dated December  30, 1950, the Prosecutor filed certain answers  on March  13, 1951, to the questions which were ordered by  the Enquiry Commissioner to answer. The appellant’s counsel has conceded that the entire  record of  -the  Enquiry  Commissioner is not before  us  Both  the learned  Judges  of the High Court have held that  on  every application   submitted  by  the  appellant,   the   Enquiry Commissioner  had passed his orders and in a large  majority of the orders, detailed reasons were given.  We are in  this case not concerned to adjudicate upon the correctness of the orders   passed  by  the  Enquiry  Commissioner   on   those applications.   We are only concerned to decide whether  the proceedings  were  conducted in a manner  violative  of  the rules  of natural justice.  In the petition before the  High Court,  beyond a vague reference in para.   1 that  evidence was excluded and documentary and oral evidence to show that 590 the specific charges framed against him were the result of a conspiracy " was not allowed to go in", no particulars  were furnished.  In the circumstances, we are unable to hold that the proceedings were conduct-ed in a manner violative of the rules of natural justice.  The appellant has not set out  in detail in his  petition  before  the  High  Court   specific instances  in  which  evidence  was  sought  to  be   given, explaining  how  the  evidence  was  relevant  and  how  the appellant was prejudiced by the evidence being shut out.  In the absence of any express pleading and adequate material to support the plea, we are unable to disagree with the view of the High Court that the enquiry was not vitiated on  account of violation of the rules of natural justice. The President of India was not bound before passing an order dismissing the appellant, to hear the evidence of witnesses. He  could arrive at his conclusion on the  evidence  already recorded  in  the enquiry by the Enquiry  Commissioner.   By Art.  311 of the Constitution, a public servant is  entitled to  show  cause against the action proposed to be  taken  in regard  to  him, but exercise of the authority  to  pass  an order   to  the  prejudice  of  a  public  servant  is   not conditioned  by the holding of an enquiry at which  evidence of witnesses viva voce, notwithstanding an earlier fair  and full  enquiry before the Enquiry Commissioner, is  recorded. In  The High Commissioner for India and Another v. I.M.  Lal (1)  dealing with s. 240, cl. 3, Lord Thankerton in  dealing with similar contentions observed: "  In the opinion of their Lordships, no action is  proposed within  the  meaning  of the sub-section  until  a  definite conclusion  has been come to on the charges and  the  actual punishment to follow is provisionally determined on.   Prior to  that stage, the charges are unproved and  the  suggested punishments  are merely hypothetical.  It is on  that  stage being  reached that the statute gives the civil servant  the

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

opportunity  for  which  sub-section  (3)  makes  provision. Their  Lordships would only add that they see no  difficulty in the statutory opportunity being reasonably afforded at (1)  75 I.A. 225. 591 more than one stage.  If the civil servant had been  through an inquiry under rule 55, it would not be reasonable that he should ask for a repetition of that  stage, if  duly carried out; but that would not exhaust his statutory right, and  he would still be entitled to represent against the  punishment proposed as the result of the findings of the inquiry." And  this view was affirmed by this court in Khem  Chand  v. The  Union of India and Others (1) where at p. 1099, it  was observed by Chief Justice S. R. Das: "  Of course if the government servant has been through  the enquiry  under  r. 55, it would not be  reasonable  that  he should  ask for a repetition of that stage, if duly  carried out.  " By the Constitution, an opportunity of showing cause against the action proposed to be taken against a public servant  is guaranteed  and  that  opportunity  must  be  a   reasonable opportunity.   Whether  opportunity  afforded  to  a  public servant in a particular case is reasonable must depend  upon the  circumstances of that case.  The enquiry in  this  case was  held by the Enquiry Commissioner who occupied the  high office of Chief Justice of the East Punjab High Court.   The appellant himself examined 82 witnesses and produced a large body of documentary evidence and submitted an  argumentative defence  which covers 321 printed pages.  An opportunity  of making  an  oral  representation not being  in  our  view  a necessary  postulate  of  an opportunity  of  showing  cause within the meaning of Art. 311 of the Constitution, the plea that  the  appellant  was  deprived  of  the  constitutional protection of that Article because he was not given an  oral hearing by the President cannot be sustained. The appeal therefore fails and is dismissed with costs. Appeal dismissed. (1) [1958] S.C.R. 1080, 592