SARDAR KAPUR SINGH v. UNION OF INDIA
(Supreme Court of India)
Civil Appeal No. 230 of 1959 | 15-12-1959
Bench: B.P. Sinha, C.J., P.B. Gajendragadkar, K. Subba Rao, K.C. Das Gupta, J.C. Shah
An appellant, Sardar Kapur Singh, was a member of Indian Civil Service posted in Punjab. He was posted as assistant commissioner, Ferozepore in the Province of Punjab in 1933. He also holds the post of Deputy Commissioner at Dharamsala and at Hoshiarpur. On April 13, 1949, an order was 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 from service and prayed if any disciplinary activity was proposed to be taken against him, it should be taken outside the Province of Punjab by people designated by the Government of India and must be liberated from bias and antagonism.
The East Punjab Government appointed the chief Justice of the East Punjab High Court as Enquiry Commissioner Under the Public servants (Inquiries) Act, 1850 to hold an enquiry against him on different charges of misappropriation and misdemeanour framed against him. He was charged with total 12 charges but later on at the suggestion of Enquiry Commissioner, Government of East Punjab withdrew charge 11 and 12. Charges 1, 2, 7, 8, 9 and 10 deals with misappropriation of money that appellant had received and failed to account. Charge 3 is related with the endeavours made by appellant to make sure about a firearm belonging to an engineer and the unapproved maintenance of that weapon and the procuration of approval from the Government of East Punjab in regards to its purchase. The fourth charge is of selling a plot of land by an agriculturist to a non-agriculturist, the appellant had misused his authority of being Deputy Commissioner in getting that land moved to his name, without awaiting the approval of the Government. The firth charge is related to the granting of Govt. quotation for the supply of firewood without inviting tenders and quotation and at a much higher rate and to the acknowledgment of wet and mediocre wood which when dried weighed only half the quantity purchased incurring thereby a loss of Rs.30,000 to state. The 6th charge identified with acquisition of a Motor Car by misusing of his position and for flouting the orders of the Government dated March 21, 1949, by going into a false transaction of sale of that vehicle with M/s. Massand Motors and deciding an appeal related to 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.
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.
- Whether a member of the Indian Civil Service is employed under the Government of East Punjab or not? Whether the enquiry could only be held under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules or not?
- Whether the holding of an enquiry against a public servant under the Public Servants (Inquiries) Act, 1850 violate the equal protection clause of the Constitution?
ARGUMENTS BY PETITIONER:
1. Counsel submitted that the order dismissing the appellant was liable to be set aside because the proceedings of the Enquiry Commissioner were without jurisdiction because the procedure followed by Commissioner was violative of the rules of natural justice.
2. Counsel submits that the Punjab Government does not have the power to direct enquiry as the appellant was a member of the Indian Civil Service and was not employed under the Government of East Punjab.
3. That in any case, the enquiry could only be held under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and the enquiry not having been held under that rule, the order passed against the appellant was without Jurisdiction.
4. That the enquiry under the Public Servants (Inquiries) Act, 1850, violated the equal protection clause of the constitution and was accordingly void.
5. That the Enquiry Commissioner held the enquiry against appealing party in a way in opposition to the principles of Natural Justice meaning hereby the Commissioner didn’t permit the appellant an opportunity to examine witnesses and to show documentary evidences, so that he can defend his case. The order of dismissal by the President was challenged by the appellant on the grounds that the President not having directed oral examination before him of witnesses whose evidences was recorded by the Enquiry Commissioner and also not giving the opportunity to the appellant to make an oral submission about the evidences in the case and, especially, in his defence. He was deprived of a reasonable opportunity of showing cause against the action proposed to be taken against him.
- The submission of the appellant that the Act did not apply to enquiries against members of the Indian Civil Service does not hold any ground. There is no ground for the submission that members of the Indian Civil Service, as they hold office during the pleasure of the President since the commencement of the Constitution, are employees of the President. They are and continue to remain employees of the Union or the State under which they are employed. Constitution has conferred the executive power of the Union upon the President, and by exercising that executive power; the President may dismiss a member of the Civil Service of the Union or of an all-India service from his appointment. Members 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.
- The rule in terms states that the enquiry contemplated therein is “without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850″(1). The rule prima facie 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 expression “without prejudice” in the opening clause of the rule does not mean ‘notwithstanding’.
- The observations made inS. A. Venkataraman v. The Union of India,(2) 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”.(3)
- The constitution guarantees a member of the Indian Civil Service to afford 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.
- It is not correct to say that an enquiry under the Act is discriminatory and infringes. Article 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 Union of India (4), 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 Rule 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 the other procedure is adopted unless it is shown that it operated to the prejudice of the public servant.
(1) Rule 55 of the Civil Services (Classification, Control and Appeal) Rules
(2) 1954 SCR 1150: (AIR 1954 SC 375)
(4)  S.C.R. 1080,
- It is not binding for president to hear the evidence of witnesses before passing an order of dismissal. He could arrive at his conclusion on the basis of the evidences already recorded in the enquiry by the Enquiry Commissioner. By virtue of Article 311 of the Constitution5, 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 orally, although a fair and full enquiry before the Enquiry Commissioner, is recorded.
- 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 was dismissed.
5 Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final