# [1960] 2 S.C.R. 569

- **Citation:** [1960] 2 S.C.R. 569
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 230 of 1959
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, 569 K. SuBBA RAO, K. 0. Das Gupta, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1960-2-s-c-r-569-1875
- **Pages:** 23

## Headnote

Public Servant, Dismissal of-Member of Indian Civil Service
-Enquiry Commissioner appointed by State Government-Validity
-'Government',
meaning
of-Procedure, if discriminatoryPresident, if must hear evidence before passing order-Public
Servants (Inquiries) Act, r850 (37 of r850), s. 2, Civil Services
(Classification, Control and Appeal) Rules, r. 55-Constitution of
India, Arts. ;)II, 3r4. ·
·
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 (1) the
East 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 Servant~ (Inquiries)
Act, 1850 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, 18501 means, as defined by s. 2~ of the Act, the
n
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December zs:
570
SUPREl\ffi COURT REPORTS [196012)]
z959
Central Government in the case of persons employed under that
Government and the State Government in the case of persons
Sardar
emplo)led under the State Government. A member of the Civil
Rapur Singh
Service of the Union undoubtedly holds his office during the
v.
pleasure of the President, but the power of dismissal cannot be
The Union of India 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 \Vith the sanction of the
Government. The members of the Indian Civil Service, whe1her
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

## Text

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S.C.R.
SUPRiEME COURT REPORTS
SARDAR KAPUR SINGH
v. \
THE UNION OF INDIA
(B. P. SINHA, C.J., P. B. GAJENDRAGADKAR,
569
K. SuBBA RAO, K. 0. DAS GUPTA and J.C. SHAH, JJ.)
Public Servant, Dismissal of-Member of Indian Civil Service
-Enquiry Commissioner appointed by State Government-Validity
-'Government',
meaning
of-Procedure, if discriminatoryPresident, if must hear evidence before passing order-Public
Servants (Inquiries) Act, r850 (37 of r850), s. 2, Civil Services
(Classification, Control and Appeal) Rules, r. 55-Constitution of
India, Arts. ;)II, 3r4. ·
·
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 (1) the
East 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 Servant~ (Inquiries)
Act, 1850 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, 18501 means, as defined by s. 2~ of the Act, the
n
z959
December zs:
570
SUPREl\ffi COURT REPORTS [196012)]
z959
Central Government in the case of persons employed under that
Government and the State Government in the case of persons
Sardar
emplo)led under the State Government. A member of the Civil
Rapur Singh
Service of the Union undoubtedly holds his office during the
v.
pleasure of the President, but the power of dismissal cannot be
The Union of India 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 \Vith the sanction of the
Government. The members of the Indian Civil Service, whe1her
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
)"ule does not mean 'notwithstanding'.
. , S. A. Venkataraman v. The Union of bidia, [1954] S.C.R.
n50, 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
nuder 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 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. 10801
referred to,
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S.c.:R.
SUPREME COURT REPORTS
511
Although the procedure prescribed by the 'Public Servants
I959
(Inquiries) Act, 1850, is more detailed than that prescribed by
r. 55, it is in substance not materially different. Under either
Sardar
form of enquiry, notice has to be given of the charges, the ' Kapur Singh
materials on which the charge is sought to be sustained have to
. v.
. .
be furnished and if the public servant so desires he can demand The Union of India
an oral hearing' for the examination of witn'esses. It is not,
therefore, correct to contend that provisions such as those of
ss. II and r9 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. 3rr 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. I. M. Lal,
75 I.A. 225 and Khem Chand v. The Union of India, [1958] S.C.R.
I08o, referred to .
CIVIL APPELLATE
JURISDICTION:
Civil
Appeal
No. 230 of 1959.
AppelJ..l from the judgment and order dated October 7,
1955, of the Punjab High Court, in Civil Writ Petition
No. 322of1953.
I. M. Lal, K. S. Chawla and K. R. Krishnaswami,
for the appellant.
H. N. Sanyal, Additional Solicitor-General of India,
N. S. BinP,ra, R.H. Dhebar and T. M. Seri; 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 tq
India in N ove:mber, 1933 and was pos~ed a;;. A..~sist11ntl
Shah].
572
SUPREME COURT REPORTS [1960(2))
z959
Commissionef, Ferozepore in the Province of Punjab.
He served in the Province in various capacities
Sardar
d
Kapur Singh
between the years 1933 an 1947. In July, 1947, he
v.
was posted as D_eputy Commissioner at Dharamsala
The Union of India and continued to hold that office till February 11,
--
1948, when he was transferred to Hoshiarpur at which
Shah J.
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 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 CommisRioner under the Public Servants
(Inquiries) Act., XXXVII of 1850, to hold 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
belqnging to an engineer and the unauthorised 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 be!leficiary under the
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SUPREME COURT REPORTS
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transaction of sale, and to the abuse by him of his
authority as Deputy Commissioner in getting that
Sardar
land tral)sferred to his name, without awaiting the
Kapur Singh
sanction of the Government. The fifth charge related
v.
to the grant to Sardar Raghbir Singh of a Government The Union of India
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.
1 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. I 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 gav·e
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
Shah ].
1>74·
SUPREME COURT REPORtS [1960 (2))
x959
on March 12, 1951, and after recording formal evidence
of two witnesses, S. Gurbachan Singh, Sub-Inspector
Sardar
Kapur Singh
and Oh. Mangal Singh, Sub-Inspector about the statev.
ments made by certain witnesses for the defence in the
The Union of India course of the investigation which it was submitted
were materially different from those made before the
Shah J.
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 account- ·
ed 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.
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S.C.R.
SUPREME COURT REPORTS
575
This report was submitted to the Government of
x959
East Punjab. On February 11, 1952, the Secretary
Sardar
to the Government of India, Ministry of Home Affairs
Kapur Singh
supplied a copy of the report to the appellant and
v.
informed him that on a careful consideration of the The Union of India,
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 printedpages 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 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
fitnes~
~ranted by the High Court,
Shah ].
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576
SUPREME COURT REPORTS [1960(2)]
:r959
Counsel for the appellant submitted that the order
dismissing the appellant was liable to be set aside
Sardar
K
5 .
h
because the proceedings of the Enquiry Commissioner
apu:. mg
were without jurisdiction and were in any event
the Union of India vitiated because the Commissioner followed a procedure which was violative of the ·rules of natural
Shah J.
justice. Counsel urged, (1) that the enquiry could
not be directed by the Punjab Governnient as the
appellant was a member of the Indian Civil Service
and was not employed under the Government of East
Punjab ; (2) that in any event, the enquiry could not be
made under the Public Servants (Inquiries) Act, 1850,
and could only be held under r. 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; (3) that the enquiry under the Public Servants
(Inquiries) Act, 1850, violated the equal protection
clause of the Constitution and was accordingly void ;
and (4) that the Enquiry Commissioner held the
enquiry against the appellant in a manner contrary to
the rules of natural justice in that the Commissioner
did not allow the appellant sufficient opportunity to
examine witnesses and to produce
documentary
evidence in support of his case. The order of dismissal by the President was challenged by the appellant
on the plea that the President not having directed
viva voce examination before him of witnesses whose
evidence was recorded by the Enquiry Commissioner
and not having given opportunity to the appellant to
make an oral submission about the evidence led in the
case and particularly the defence, the appellant was
deprived of a reasonable opportunity of showing
cause against the action proposed to be taken against
him.
· The appellant was admitted to the civil service
under a covenant with the Secretary of State for
India, but the special method of recruitment of the
appellant to the service does not warrant the view
that the appellant was not employed at the material
date under the Government of East Punjab. By
sub-s. 2 of s. 10 oft.he Indian Independence Act, 1947,
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S.C.R.
SUPREME COURT REPORTS
577
in so far as it is material, it was enacted that every
z959
person appointed by the Secretary of State to a civil
Sardar
service of the Crown in India who continued on and
Kapur Singh
after the appointed day to serve under the <;l-overnv.
ment of the Dominion of India or of any Province or The Union of India
part thereof was entitled to receive the same conditions of service as respects remuneration, leave and
Shah J.
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 prov;ided
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
578
SUPREME COURT REPORTS [1960(2))
State Government in the case of persons employed
under that Government. The appellant was, at the
Sardar
Kapur Singh
date when enquiry was directed, employed under the
I959
v.
East Punjab Government and there-is nothing in the
The Union of fadia Constitution which abrogates the authority of the
Shah J.
State to direct an enquiry under s. 2 of the Act.
The submission of the appellant that the Act did
not apply to enquiries against members of the Indian
Civil Service is without force. The Act was, as the
preamble recites, passed for regulating enquiries into'
the behaviour of public servants who are not removable from appointm~nt without the sanction of the
Government. The appellant, it is true,
entered
service under a covenant with the Secretary of State
for India in Council, but since the commencement of
the Constitution of India, the Secretary of State had
no authority in the matter of employment and
dismissal of public servants employed in the civil
service of the Union of India and the members of the
Indian Civil Service who continue to remain employed
in India hold office during the pleasure of the President, and are accordingly liable to be dismissed from
service by the
President. The Public Servants
(Inquiries) Act, 1850, seeks to regulate enquiries into
the behaviour of superior public servants who are not
removable from their appointment without the
sanction of the Government; enquiries into the
behaviour of members of subordinate services, who
are appointed and are liable to be dismissed by
authorities subordinate to the Government being
excluded from the purview of the Act. There is no
foundation for the submission that members of the
Indian Civil Service, because 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.
By the Constitution, the executive power of the Union
is conferred upon the President, and it is in exercise of
that executive power that the President may dismiss
a member of the Civil Service of the Union or of an
all-India service from his appointment.
Members
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S.C.R.
SUPREME COURT REPORTS
579
of the Indian Civil Service are accordingly not
x959
liable to be dismissed from their appointment without
the sanction of the Government and are not excluded
Sardar
Kapur Singh
from the purview of the Public Servants (Inquiries)
v.
Act, 1850.
The Union of India
Rule 55 of the Civil Services (Classification, Control
and Appeal) Rules provides:
Shah J .
. " 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 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 su:ffiQient record of the evidence and a statement of
the findings and the grounds thereof.
This rule shall not apply where the person concerned 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
SUPREME COURT REPORTS [1960(2)]
'959
observing exactly the requirements of the rule and
Sarda•
those requirements can be waived without injustice to
Kapu•Singh
the person charged."
v.
It was submitted relying upon that rule, that no
The Union of India order for dismissal or removal of a member of the
Shah].
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 !\fr. 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.
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S.C.R.
SUPREME COURT REPORTS
581
dispel doubt, if there be any, as to the true meaning
of the opening clause of the rule.
I959
Sardar
Does the holding of an enquiry against a. public
Kapur Singh
servant under the Public Servants (Inquiries) Act, 1850
v.
violate the equal protection clause of the Constitu- The Union of India
tion?. 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
ifthe competent authority, after the enquiry is over
and after applying his mind to the gravity or other-
. wise 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
(x) [x958) S.C.R. 1080 at 1096-97,
Shah J.'
582
SUPREME COURT REPORTS (1960(2)]
z959
misdemeanour a guarantee to a fair enquiry into their
conduct is given : i. e., the public servant must be
Sardar
Kapur Singh
afforded a reasonable opportunity of defending himself
v.
against the charges by demonstrating that the evidTh• Union of India ence on which the charges are sought to be founded
is untrue or unreliable, and also by leading evidence
Shah J.
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 administrative 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 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 ta.ken against him is therefore
entitled by the force 6f 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.
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S.C.R.
SUPREME COURT REPORTS
583
The procedure to be followed in maki~g an enquiry
z959
under the Public Servants (Inquiries) Act, 1850, is
Prescribed in some detail. The Enquiry OommisSardar
Kapur Singh
sioner is required to supply to the person accused
v.
a copy of the articles of charges and list of the docu- The union of India
ments and witnesses by which the charges are to be
sustained at least three days before the beginning of the
Shah J.
enquiry. By s. 11, the prosecutor is required to exhibit
articles of charges which are read. and the person
accused is reql1ired 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 sequernYe 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 entit~ed to any adjournment
of the proceedings alt:\lough 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 pubJic servant must be given reasonable time to put in a written statement of his defence
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
SUPREME COURT REPORTS [1960(2)]
'959
to give evidence in person and to examine his own
witnesses. The provisions of the Public Servants
Sardar
Kapu, Singh
(Inquiries) Act, 1850, were made more detailed for the
v.
obvious reason that at the time when that Act was
The Union of India enacted, there was no codified law of evidence in force.
1 But the procedure prescribed by Act XXXVII of 1850
·Shah J ·
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 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
1 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
•
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585
S.C.R.
SUPREME COURT REPORTS
afforded a reasonable opportunity of the content set
I 959
out earlier, in an enquiry in exercise of powers consardar
-
ferred by either tlie Public Servants (Inquiries) Act or
Kapur Singh
r. 55 of the Civil Services (Classification Control and
v.
Appeal) Rules, and discrimination is not practised The Union °1 India
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 !n 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 apprehension that the
• witnesses will be ' freely suborned a.nd interfered with
Shah].
oS6
SUPREME COURT REPORTS [1960(2))
'959
was summarily rejected'; but admittedly, an· the
-
witnesses of the appellant were examined at Simla and
Sardar
Kapur Singh
not at Dharamsala.
v.
In paras.