# [1964] 4 S.C.R. 204

- **Citation:** [1964] 4 S.C.R. 204
- **Court:** Supreme Court of India
- **Decided:** 1961-05-26
- **Bench:** S. K. DAs, AcTING C.J, A. K. Sarkar, K. N. WANcHoo, K. c. DAS GUPTA, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-4-s-c-r-204-3036
- **Pages:** 21

## Headnote

Civil Servant-Enquiry under Public Servants (Inquiries) Act,
1850-0rder of enquiry whether competent when First Information Report a!ready filed under Code of Criminal Procedure-Meaning of "misbehaviour" in Inquiries Act-Differences in procedure
between enquiry under Public Servants (Inquiries) Act and All
India Services (Discipline and Appeal) Rules, 1955 whether violate
Constitution, Art. 14-Articles 16 and 20(3)-0rder of Government
if malafide-Public Servant Inquiries Act, 1850, s. 2-All India
Services (Discipline and Appeal Rules, 1955-Code of Criminal
Procedure, ss. 5, 154-Constitution of India Arts. 14, 16 and 20(3).
The appellant jointed the Indian Civil Service in 1938.
He
continued in the service after the independence of India and since
1948 has been serving the Government of Punjab. In July, 1959,
When he was serving as Commissioner, Ambala Division, he was
placed under suspension. A few months before that, two criminal
cases had been instituted against him.
Several other cases were
instituted against the appellant and some of his relations during
the year 1960. The criminal cases which were pending in the courts
of different Magistrates in the Punjab \Vere transferred to Criminal
Courts subordinate to the Allahabad High Court by the orders of
this Court. Two of those cases had to be dropped by the orders
of Additional District Magistrate, Saharanpur.
The cases started
on the complaint of Dhingra arnl report of Daryo Singh were
consigned to record as untraced by the orders of the Magistrate
on May, 25, 1961.
On May 26, 1961, an order was passed in the name of the Governor of Punjab directing an enquiry against the appellant under the
Public Servants (Inquiries) Act, 1850. Some of the charges were in
respect of the acts alleged against the appellant in the complaint
of Dhingra and the other charges were in respect of the acts- alleged
against him in the report of Daryao Singh. By 3nother order of the
same date, the Governor appointed Mr. Justice D. Falshaw, then
a puisne Judge of Punjab High Court, as Commissioner for holding
the enquiry. Notice was duly served on the appellant and he was
informed that the enquiry would begin on August 28, 1961. On
July 18, 1961, the appellant filed a writ petition under Art. 226
of the Constitution praying for an order striking down the order
of the Government for making the enquiry against him.
The
High Court rejected all the contentions raised by the appellant and
dismissed the writ petition. The appellant came to this Court by
special leave.
' )
(
-
,,..
-
-
•
J
4 S.C.R.
SUPREME COURT REPORTS
205
The contention of the appellant before this Court was that
no enquiry could be held under the Inquiries Act in as much as
the First Information Reports had already been lodged under the
Code of Criminal Procedure in respect of the acts mentioned in the
articles of charge, that Section 2 of the Inquiries Act was bad as
the word "misbehaviour" was too vague and the section gave the
Government uncontrolled and uncanalised power to subject Government Servants to enquiry under the Act, that an enquiry under the
Inquiries Act was more drastic and less ,advantageous to an officer
in the position of appellant than an enquiry that could he held
against an officer in a similar position under the All-India Services
(Discipline and Appeol) Rules, 1955, and thus resulted in infringement of Article 14 of the Constitution, th::i.t the Inquiries Act
violated Articles 16 and 20( 3) of the Constitution and \Vas there·
fore invalid and that the Government had acted ma/a fide in order·
ing the enquiry.
Held, that. in most case:;, it would be proper and reasonable
for Governmer:t to a\vait the result of the police investigation and
where the inYestigation is follovved by an enquiry or trial, the result
of such enquiry or trial, before deciding to take disciplinary action
against any of its servants. It V\.'ould be proper and reasonable also,
generally, for Government not to take action against a Government

## Text

_Characters 0–39,804 of 51,199. This is a partial read: ask again with offset=39804 for what follows._

1963
August, 2
204
SUPREME COURT REPORTS
[1964}
R. P. KAPUR
I .
PRATAP SINGH KAIRON & OTHERS
(S. K. DAs, AcTING C.J., A. K. SARKAR, K. N. WANcHoo,
. K. c. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.)
Civil Servant-Enquiry under Public Servants (Inquiries) Act,
1850-0rder of enquiry whether competent when First Information Report a!ready filed under Code of Criminal Procedure-Meaning of "misbehaviour" in Inquiries Act-Differences in procedure
between enquiry under Public Servants (Inquiries) Act and All
India Services (Discipline and Appeal) Rules, 1955 whether violate
Constitution, Art. 14-Articles 16 and 20(3)-0rder of Government
if malafide-Public Servant Inquiries Act, 1850, s. 2-All India
Services (Discipline and Appeal Rules, 1955-Code of Criminal
Procedure, ss. 5, 154-Constitution of India Arts. 14, 16 and 20(3).
The appellant jointed the Indian Civil Service in 1938.
He
continued in the service after the independence of India and since
1948 has been serving the Government of Punjab. In July, 1959,
When he was serving as Commissioner, Ambala Division, he was
placed under suspension. A few months before that, two criminal
cases had been instituted against him.
Several other cases were
instituted against the appellant and some of his relations during
the year 1960. The criminal cases which were pending in the courts
of different Magistrates in the Punjab \Vere transferred to Criminal
Courts subordinate to the Allahabad High Court by the orders of
this Court. Two of those cases had to be dropped by the orders
of Additional District Magistrate, Saharanpur.
The cases started
on the complaint of Dhingra arnl report of Daryo Singh were
consigned to record as untraced by the orders of the Magistrate
on May, 25, 1961.
On May 26, 1961, an order was passed in the name of the Governor of Punjab directing an enquiry against the appellant under the
Public Servants (Inquiries) Act, 1850. Some of the charges were in
respect of the acts alleged against the appellant in the complaint
of Dhingra and the other charges were in respect of the acts- alleged
against him in the report of Daryao Singh. By 3nother order of the
same date, the Governor appointed Mr. Justice D. Falshaw, then
a puisne Judge of Punjab High Court, as Commissioner for holding
the enquiry. Notice was duly served on the appellant and he was
informed that the enquiry would begin on August 28, 1961. On
July 18, 1961, the appellant filed a writ petition under Art. 226
of the Constitution praying for an order striking down the order
of the Government for making the enquiry against him.
The
High Court rejected all the contentions raised by the appellant and
dismissed the writ petition. The appellant came to this Court by
special leave.
' )
(
-
,,..
-
-
•
J
4 S.C.R.
SUPREME COURT REPORTS
205
The contention of the appellant before this Court was that
no enquiry could be held under the Inquiries Act in as much as
the First Information Reports had already been lodged under the
Code of Criminal Procedure in respect of the acts mentioned in the
articles of charge, that Section 2 of the Inquiries Act was bad as
the word "misbehaviour" was too vague and the section gave the
Government uncontrolled and uncanalised power to subject Government Servants to enquiry under the Act, that an enquiry under the
Inquiries Act was more drastic and less ,advantageous to an officer
in the position of appellant than an enquiry that could he held
against an officer in a similar position under the All-India Services
(Discipline and Appeol) Rules, 1955, and thus resulted in infringement of Article 14 of the Constitution, th::i.t the Inquiries Act
violated Articles 16 and 20( 3) of the Constitution and \Vas there·
fore invalid and that the Government had acted ma/a fide in order·
ing the enquiry.
Held, that. in most case:;, it would be proper and reasonable
for Governmer:t to a\vait the result of the police investigation and
where the inYestigation is follovved by an enquiry or trial, the result
of such enquiry or trial, before deciding to take disciplinary action
against any of its servants. It V\.'ould be proper and reasonable also,
generally, for Government not to take action against a Government
servant w·hen on investigation by the police it is found that no prinia
facic case had been made out.
Even though this appears to be a
reasonable course which will ordinarily be followed by Government
there is no legal bar to the Government ordering a departmental
enquiry even in a case where a First Information Report under
s. 154 having been lodged, an investigation will follow. The use of
the words "otherwise dealt \vith" in s. 5 of the Code of Criminal
Procedure does not justify a conclusion that enquiries in connection
with disciplinary proceedings on the basis of offences alleged to
have been comitted by the Government servant must also be held
in accordance with the provisions of the Code of Criminal Procedure.
The \Yard "misbehaviour" as used in s. 2 of the Inquiries Act
is not vague.
"Misbehaviour" by a Government servant would
certainly mean a lapse by him from the proper standard o.f conduct
in the discharge of his functions as a Government servant. A Government servant is expected and required to act honestly and not
to use his position as a Government servant for enriching himself
or others. Every dishonest act of a Government servant amounts to
"misbehaviour".
It is well settled that where the Government is invested \vith
authority to direct an enquiry in one of the two alternative modes
and one of the modes is more drastic and less advantageous that the
other an order directing an enquiry under the ~ore drastic and less
advantageous mode will amount to an infringement of Article 14 of
the Constitution as the more advantageous and less drastic mode
may be applied against another Government servant similarly circumstanced. However, the procedure and provisions of the In1963
R. P. Kapur
v.
Pratap Singk
Kairon and
Others
1963
R. P. 1<.apur
v.
Prattip Singh
Kairon and
Others
206
SUPREME COURT REPORTS
[1964]
quiries Act are not in substance less advantageous and more drastic
than the All India Services (Discipline and Appeal) Rules, 1955
and hence Article 14 is not violated.
Article 16 guarantees to all citizens equality of opportunity in
matters relating to e1nployment or appointment to any office under
the State. I-Iowever, that guarantee is no bar to disciplinary action
being taken against a citizen who holds an office under the State.
The fact· that the result of such disciplinary action inay be that a
citizen is deprived of promotion cannot be held to be a denial of
equality of opportunity relating to employment or appointment.
There is also no violation of Article 20(3) of the Constitution. It
cannot be said a provision that an accused shall be required to
make his defence amounts to compelling him to be a witness against
himself. Moreover, the accused is not even compelled to make his
defence. If he chooses not to make any defence, he is free to do so.
The Government of the Punjab had not acted ma/a fide in
ordering an enquiry against the appellant. For holding the enquiry
the Government had appointed a Judge of the High Court as the
Com1nissioner and it was reasonable to think that the
enquiry
would be fair and impartial. The appellant had also the right to
appeal against the finding of the Inquiry Officer. The concurrence
of the Public Service Commission or the Central Government was
also necessary to impose any penalty on the appellant. If the penalty
\Vas itnposed by the State Government with the concurrence of the
Public service Com1nission, the appellant, had a right of appeal to
the Central Government. Hence, even if the Punjab Chief Minister
was unfriendly to the appellant, he could not expect to harm him
by having recourse to an enquiry under. the Inquiries Act in preference to a trial in a criminal Court.
S'i1rder Kapur Singh v. Union
of India.
[1960]
2
S.C.R. 569 and State of Assam v. Bimal Kumar Pandit,
, '
r
[1964] 2 S.C.R. I, referred to.
•
CIVIL APPELLATE JumsmcnoN: Civil Appeal No. 75· of
1963.
Appeal by special leave from the judgment and decree dated August 9, 1961 of the Punjab High Court in
~
Civil Writ No. 954 of 1961.
·
The appellant appeared in person.
C. K. Daphtary, Solicitor-General for India, S. M. Sikri,
Advocate-General for the State of Punjab, Mohinder Singh
Punu, Deputy Advocate-General for the State of Puniab,
R.N. Sachthey and P.D. Menon for the re.spondents.
. .
August 2, 1963. The judgment of the Court was deli-
'\..
vered by
-
-
I
,•
4 S.C.R.
SUPREME COURT REPORTS
207
DAs GUPTA J.-The appellant, R. P. Kapur, was appointed to the Indian Civil Service almost 25 years ago.
He continued in the service after the independence of
India and since 1948 has been serving the Government of
Punjab.
On the 18th July 1959, when the appellant
was serving as Commissioner, Ambala Division, he was
placed under suspension. A few months before this, two
criminal cases had been instituted against him. The first
of these was instituted on December 10, 1958, by one M.L.
·Sethi against Kapur and his mother-in-law, Kaushalya
Devi, on allegations of offences under s. 420 and · s.
120B of the Indian Penal Code. The second was instituted on the complaint of one M.L. Dhingra on allegations of offences under s. 55(2) of the Prevention of Corruption Act, 1947 and ss. 167, 168, 406, 420 and 465 of the
Indian Penal Code.
This complaint was submitted
by
D hingra to Sardar Pratap Singh Kairon, the Chief Minister of Punjab, on February 27, 1959. Action in this case
was taken unper the orders of the Chief Minister and a
first information report was recorded on the basis of this
complaint at Chandigarh Police Station on March 4, 1959.
Several other cases were instituted against the appellant
and some of his relations after this, during the year
1960, including one instituted on the .basis of a report
by Daryao Singh, Inspector of Police, C.l.D., Kamal.
This report which bears the date November 1, 1959, alleged that the appellant had committed offences under s. 166,
s. 167 of the Indian Penal Code read with s. 109 of the
Indian Penal Code and also under s. 5 (2) of the Prevention of Corruption Act. This report was forwarded by
Daryao Singh to the Secretary, Orphanage Advisory Board,
Chandigarh, in connection with the affairs of which
Board the offences were said to have been committed·
it was sent by the latter to the police for registration of
a case and investigation, only on May 25, 1960. The criminal cas,s which were pending in the courts of differe_nt magistrates of the Punjab were on appellant's application transferred by this Court to criminal courts subordinate to the Allahabad High Court for disposal in the State
of Uttar Pradesh.
_j
Two of these cases, one under s. 107 of the Indian
Penal Code in which the appellant's wife was made an
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta f.
1963
R. P. Kapu,.
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
208
SUPREME COURT REPORTS
[1964]
accused, and the other under s. 145 of the Indian Penal
Code in which also she figured as an opposite party, were
disposed of in March and April 1961, the proceedings in
both cases being dropped by au order of the Additional
District Magistrate, Saharanpur. Jn the case instituted on
Dhingra's complaint the investigation appears to have been
completed m August-Septemb.er 1959, and in February
1960, the Government of Punjab applied to the Central
Government for sanction to prosecute the appellant under s. 5(2) of the Prevention of Corruption Act, 1947
as required under s. 6( c) of that Act. The Government
of India was however reluctant to accord sanction and on
June 2, 1960, the Government of India (Home Department) wrote to the Chief Secretary to the Government of Punjab indicating the view of the Central Government that such prosecution was not likely tu succeed and
also that as Kapur was already involved in two criminal
cases and would be facing his trial in those cases, any action to prosecute him in a third case, might look like chasing a man who was already in serious trouble. In this letter the Punjab Government was requested to consider
whether it was necessary to pursue that particular case just
then.
The Governl]1ent of Punjab does not appear to have
pressed its request for sanction and ultimately on the 25th
May 1961 the Police submitted the final report in the case
under s. 173 of the Code of Criminal Procedure praying
that the case "should be consigned. to record as untraced". On the same date the Magistrate made' an
order directing the case "to be consigned to record as
untraced". A similar report was on the same date submitted by the Police to the Magistrate in the cases started
on the report of Daryao Singh and the Magistrate made
an order directing the case to be filed as untraced and
to be sent to record. On the next date, the 26th of
May 1961 an order was made in the name of the Governor
of Punjab directing an enquiry against the appellant under
the Public Servants (Inquiries) Act, 1850. Later in the
judgment we shall refer to this Act as "the Inquiries Act".
The order was in these words :-
"Whereas the Governor of Punjab is of opinion that
there are good grounds for making a formal and pub-
' -
. I
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
209
lie inquiry into the truth of certain imputations of misbehaviour against Shri R.P. Kapur, I.C.S., Commissioner (under suspension) ;
"Now, therefore, in exercise of powers conferred by
section 2 of the Public Servants' (Inquiries) Act,
1850, the Governor cf. Punjab hereby orders a formal
and public inquiry to be made into the truth of the
imputations of misbehaviour, the substance whereof
has been drawn in articles of charge, against the said
officer.'''
It may be mentioned here that some of these charges
are in respect of acts alleged against the appellant in Dhingra's complaint while the other charges are in respect of
acts alleged against him in Daryao Singh' s report.
Eight articles of charges were drawn up for the purpose of the enquiry. Another order was made by the
Governor on the same date appointing Mr. Justice D.
Falshaw, then a puisne Judge of the High Court of Punjab, as Commissioner for holding the enquiry. Notice was
duly served on the appellant of these orders and also of
the article of charge ; and he was informed that the Inquiry would commence on August 28, 1961. On July 18,
1961, the appellant applied to the Punjab High Court under .Art. 226 of the Constitution praying for an order
striking down the order of the Governor dated the
26th May, 1961, for making the enquiry against him.
Other prayers were that the order appointing Mr. Justice
Falshaw as Commissioner for the Inquiry and the notice
on the petitioner be also struck down ; a writ of quo
warranto be issued against Mr. Justice Falshaw and a writ
of Prohibition against the Commissioner not to proceed
with the inquiry.
It is obvious that the real relief that the appellant
sought by this petition was that the order to hold the inquiry should be struck down. The other reliefs prayed
for are either superfluous or irrelevant.
The averments in the petition cover a large number
of grounds but the principal grounds on which the appellant based his prayer may be summarised thus :-
(1) ~hat no. inquiry could be held under the Inquines Act masmuch as first information reports had
already been lodged under the Code of Criminal
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
210
SUPREME COURT REPORTS
[1964]
Procedure in respect of the acts mentioned in the
articles of charge ;
·
(2) That s. 2 of the Inquiries Act was bad as the word
"misbehaviour" was too vague ; and so, the section gave the Government uncontrolled and uncanalised power to subject Government servants
to inquiries under the Act;
(3) That an inquiry under this Act was more drastic
and less advantageous to an officer in the position
of the appellant than an inquiry that could be
held against an officer in a similar position under
the All India Services (Discipline and Appeal)
Rules, 1955, hereinafter referred to· as "the 1955
Rules" and thus resulted in infringement of Art.
14 of the Constitution ;
( 4) That the Inquiries Act violates Arts. 16, 21 and
20(3) of the Constitution and is therefore invalid;
(5) That the Government has acted mala fide in
ordering the inquiry.
The High Court rejected all the contentions and dismissed the petition. Against that order this appeal has been
filed with special leave of this Court.
In support of the appeal all the grounds raised in the
High Court have been urged again before us. After the
arguments were concluded, we reserved judgment for considering the matters -raised. When we were considering
these it appeared to us that a further question which required consideration, though it had not been raised before
us on behalf of the appellant, was whether under the terms
·of s. 2 of the Public Servants (Inquiries) Act, 1850, the
Punjab Government was competent to direct this enquiry
under the Act. On the face of it this question appeared
to be concluded by the decision of this Court in Sardar
Kapur Singh v. Union of India('). As we were of opinion
that some matters involved in the question required• further
consideration by a larger Bench, these were accordingly
referred to a Bench of seven learned Judges of this Court.
That Bench has delivered its judgment today. On the
majority decision of the Bench it is now finally settled that
. ( 1 ) [1960] 2 S.C.R. 569.
. ;
f
-
'
y
4 S.C.R.
SUPREME COURT REPORTS
211
the Punjab Government was competent to direct the inquiry.
We shall therefore now proceed to consider the
points originally raised by the appellant in support of his
appeal.
The first and indeed the most important question of
law raised by the appellant, who argued the appeal himself
with considerable ability and restraint, was that no disciplinary proceedings can be commenced against a Government servant for any act in respect of which a first information report has been recorded under s. 154 of the Code of
Criminal Procedure.
At one stage of his arguments the appellant put his
propositions in an even wider form and submitted that no
inquiry except under the Code of Criminal Procedure can
be held at all in respect of any offence under the Indian
Penal Code or any other law.
For this proposition he
relied on s. 5 of the Code of Criminal Procedure. That
section lays down in its first sub-section that all offences
under the Indian Penal Code shall be investigated, inquired
into, tried, and otherwise dealt with according to the provisions hereinafter contained ; and in its second sub-section
that all offences under any other law shall be investigated,
inquired into, tried and otherwise dealt with according to
the same provisions, but subject to any enactment for the
time being in force regulating the manner or place
of investigating, enquiring into,
trying
or
otherwise
dealing with such offences.
The appellant emphasises
the use of the words "otherwise dealt with" in this
section and contends that the provisions of the Code
of Criminal Procedure have to be followed not only for
investigation, inquiry or trial of offences but also for
dealing with them in any other manner, thus including
an inquiry into the truth of the imputati0ns, for the purpose of disciplinary action. We do not think the words
"otherwise dealt with" has the significance which the appellant attaches to these. "Otherwise dealt with" in the
section refers, in our opinion, to such dealing with offences as is provided for in the provisions of the Code apart
from the provisions for investigation, enquiry or trial. Such
provisions are to be found in the Code, for instance, in
Chapters IV and V. Thus, the provisions in section 54
of the Code for an arrest by a police officer without warrant
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
212
SUPREME COURT REPORTS
[1964]
in certain cases may come into operation even before any
investigation, enquiry or trial in connection with an offence
has commenced. It is unnecessary to multiply instances,
but it seems to us clear that the use of the words "otherwise dealt with" in s. 5 does not justify a conclusion that
inquiries in connection with disciplinary proceedings on
the basis of offences alleged to have been committed by
the Government servant must also be .held in accordance
with the provisions of the Code of Criminal Procedure.
In any case, then argues the appellant, at least when
a first information report has been recorded under s. 154
of the Code of Criminal Procedure any enquiry under the
Inquiries Act or any other Rules for a disciplinary action
must be held to be barred.. The argument. may best be
put thus: Once a first information report has been lodged
under s. 154 of the Code of Criminal Procedure an investigation into the correctness of the allegations made in the
report will proceed under Chapter XIV of the Code of
Criminal Procedure. Under s. 173 of the Code every such
investigation has
to be completed without unnecessary
delay and as soon as it is completed the officer-in-charge ·
of the police station has to forward to the Magistrate empowered to take cognizance of the offence on a police
report, a report as regards the results of the investigation.
Such a report may either ask the Magistrate to take cognizance of an offence which according to the police investigation the accused person appears prima facie to have
committed or it may state that no such prima facie case
has been made out. Cases may occur where though an
offence has, in the opinion of the investigating officer, been
committed, no clue to the identity of the culprit is found
or even if such clue is found the culprit is untraced. It
is urged by the appellant that where on investigation a
prima facie case is made out against a Government servant
the truth or falsity of the allegations can best be ascertained
finally by enquiries or trials in the criminal courts that
·would follow. Where on the other hand, the police officer finds that no prima facie case has been made out it
would be reasonable to think that the truth of the allegations has not been established. In either case, it is said,
there is no scope for the truth of the allegations of the
commission of an offence by a Government servant being
-
. '
....
4 S.C.R.
SUPREME COURT REPORTS
213
investigated by any departmental inquiry.
At first sight it does seem reasonable that when a
first information report has been recorded against a Government servant that he
has
committed a cognizable
offence the truth of the same should be ascertained only
in an inquiry or trial by the criminal court when a prima
facie case is found by the investigation and a charge-sheet
is submitted.
When once that has been done there is
no need for any further inquiry in the .same matter. It
seems no less reasonable that if the police on investigation
finds that no case is made out for submission of a chargesheet the allegations should be held to be untrue, or doubtful and then also there is no need for any further inquiry
in the same matter. We are convinced that in most cases
it would be proper and reasonable for Government to await
the result of the police investigation and where the investigation is followed by an inquiry or trial, the result of
such inquiry or trial, before deciding to take any disciplinary action against any of its servants. It would be proper
and reasonable also, generally, for Government not to take
action against a government servant when on investigation
by the police, it is found that no prima fade case has
been made out. Even though this appears to be a reasonable course which we have no doubt is and will ordinarily
be followed by Government, we are unable to see any
legal bar to the government ordering a departmental enquiry even in a case where a first information report under
s. 154 having been lodged an investigation will follow.
The appellant's next argument is that the word "misbehaviour" in s. 2 of the Inquiries Act is vague and consequently the Act is bad. "Misbehaviour" by a government servant would certainly mean a lapse by him from
the proper standard of conduct in the discharge of his
functions as a government servant; but the appellant argues
that there was at the date of the Act in 1850 no ascertainable standard of conduct and so neither the government
nor its servants could know for certain what would amount
to "misbehaviour". This argument seems to us to be misconceived. Even in the absence of any detailed instructions
or direcc1u1b as to how a government servant should act
and conduct himself there could never be any manner of
doubt that a government servant was expected and required
1963
R. P. Kapu•
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
i963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta/.
214
SUPREME COURT REPORTS
[1964]
to act honestly and not to use his position as a government
servant for enriching himself or others. Every dishonest
act of a government servant, including acts by which he
uses his position for enriching himself or others would
clearly amount to "misbehaviour". We are unable therefore to accept the appellant's argument that the word
"misbehaviour" as used in s. 2 of the Inquiries Act is vague.
It may be pointed out in this connection that even
if the appellant is correct in his argument that at the date
of the Act in 1850 no ascertainable standard of conduct
for government servants had bee.n laid down this argument is not available to him after such standard was clearly
laid down in the numerous Government Servants' Conduct Rules. So far as the appellant himself is concerned
he was at the date of the order made by government in 1961
governed by the All India Services Conduct Rules, 1954.
The attack on the validity of the Inquiries Act on the
ground that the word "misbehaviour" is vague must therefore fail.
The next attack on the validity of the Act is on the
ground that it is discriminatory inasmuch as the procedure and provisions of the Inquiries Act are more drastic
and less advantageous than those of the 1955 Rules. It is
well settled that where the government is invested with
authority to direct an enquiry in one of two alternative modes and one of the modes
is
more drastic
and less advantageous than the other, an order directing
an enquiry under the more drastic and less advantageous
mode will amount to an infringement of Art. 14 of the
Constitution as the more advantageous and less drastic
mode may be applied against another government servant
similarly circumstanced. We are
not satisfied however
that the procedure and provisions of the Inquiries Act are
in substance less advantageous and more drastic than the
1955 Rules as contended for by the appellant. It may be
mentioned that in Sardar Kapur Singh's Case(') when a
somewhat similar argument was raised against the validity
of the Inquiries Act on the allegation that it was more
drastic and less
advantageous than an enquiry under
Rule 55 of the Classification Rules, this Court contrasted
and compared the provisions of the Inquiries Act with
(') (1960] 2 S.C.R. 569.
\'
...
•
..
••
4 S.C.R.
SUPREME COURT REPORTS
215
Rule 55 of the Classification Rules and held that there was
no substantial difference between the two alternative modes
of enquiry.
The procedure of enquiry under the 1955
Rule is practically the same as under Rule 55 of the Classification Rules.
Faced therefore with the decision in Kapur Singh's
Case (Supra) the appellant tried to persuade us that the
procedure and provisions of an enquiry under the 1955
Rules were more advantageous to a government servant
than those of the Inquiries Act in the following respects
which were not considered in Kapur Singh's Case (Supra)
as those advantages were not available under the Classification Rules. These advantages, according to the appellant,
are: (1) Under sub-rule 4 of Rule 5 of the 1955 Rules the
government servant may request for access to official records
for the purpose of preparing his written statement, but
there is no such provision ip the Inquiries Act; (2) Under
sub-rule 7 of the same Rule a Board of Inquiry shall contain at least one member who shall be an officer of the
service to which the government servant belongs. There
is no such provision in the Inquiries Act; (3) Under subrule (9). of the Rule the member of the service charged
shall be supplied with a copy of the report of enquiry,
whereas there is no such provision under the Inquiries Act;
( 4) Under the proviso to sub-rule (9) mentioned above,
if the punishing authority disagrees
with any part or
whole of the findings of the Board of Inquiry or the
Inquiry Officer, the point or points of such disagreement
together with a brief statement of the grounds thereof,
shall also be communicated to the member of the service.
There is no similar provision under the Inquiries Act.
We do not think that these provisions under sub-rules
4, 7 and 9 and the provisio to sub-rule 9 of Rule 5 result
in any substantial difference between an enquiry under
the Inquiries Act and an enquiry under the 1955 Rules.
While it is true that there is no express provision in the
Inquiries Act for an access to official records for the purpose of preparing the officer's written statement such as
there is in sub rule 4, we see no reason to think that similar facilities will not be allowed by the authority holding
an enquiry under the Inquiries Act. It has to be noticed
that under sub-rule 4 the access to such records may be
1963
R. P. Kapur
v.
Pratap Singh
Kajron and
Others
Das Gupta/.
1963
,R. P. Kapur
v.
Pratap Singh
Kairon and
Others'
Das Gupta/,
•
216
SUPREME COURT REPORTS
[1964)
refused "if in the government's opinion such records are
not strictly relevant to the case or it is not desirable in
the public interest to allow such access." We have no doubt
that in an enquiry under the Inquiries Act also the auth<>-
rity holding the enquiry will afford the officer proper facilities of access to official records for the purpose of preparing his written statement except where these appear
to be irrelevant, or It is satisfied on an objection made by
the Government that it is
not desirable in the public
interest to allow such access.
It is reasonable to expect
that in actual practice there will be no difference in the
matter of access to official records as between an enquiry
under the Inquiries Act and an enquiry under the 1955
Rules.
The appellant's contention that in an enquiry under
the 1955 Rules he will have the benefit of having an officer
of the service to which he belongs taking part in the enquiry while he cannot have this benefit in an enquiry
under the Inquiries Act appears to be misconceived. Subrule 5 of Rule 5 leaves it to the discretion of the government to appoint either a Board of Inquiry or an Inquiry
Officer to enquire into the charges.
Indeed, under that
sub-rule if the government does not consider it necessary
to appoint a Board of Inquiry or an Inquiry Officer the
enquiry may be held into· the charges "in such manner as
it deems fit". It is only 'when a Board of Inquiry is appointed that sub-rule 7 comes into operation and at least
one of the members of the Board has to be an officer of
the service to which the member of the service belongs.
It is wrong to think therefore that in an enquiry under
the 1955 Rules the officer will necessarily have the advantage-if it is an advantage---0f having an officer of the
service to which he belongs taking part in the enquiry.
There is also nothing to prevent the government to
have the enquiry held by an officer of the service
to which he belongs even in an enquiry under the Inquiries Act. It is clear therefore that the provision of subrule 7 does not mean any real difference between the two
modes of enquiry.
Coming now to sub-rule 9 we find that it provides
for a copy of the report of the enquiry to be supplied
to the member of the service after the punishing
. l r
...
••
-
>
-..
4 S.C.R.
SUPREME COURT REPORTS
217
authority has arrived at a provisional conclusion that a
penalty of dismissal, removal, compulsory retirement or
reduction in rank should be imposed. The Inquiries Act
contains no such provision; but the member of the service
will be entitled to get a copy of the report under the provisions of Art. 311 (2) of the Constitution in all cases of
proposed dismissal, removal or reduction in rank. The
only difference is that while under this Rule the officer
will be entitled to get a copy of the report even where a
punishment of compulsory retirement is ·proposed, the·
provisions of Art. 311 (2) of the Constitution will have
no application to such a case, so that he will not, if the
enquiry is held under the Inquiries Act, get the benefit
of having a copy of the report under the Inquiries Act if
the penalty of compulsory retirement is proposed.
It is
unnecessary however to consider in the present case
whether this difference amounts to a violation of Art. 14
of the Constitution. For it is clear to us that the penalty
of compulsory retirement which can be imposed under
the 1955 Rules (See R. 3) cannot be imposed on an officer
in the position of the present appellant in view of Art. 314
of the Constitution. The appellant did not contest that
this consequence will flow from Art. 314.
It appears to us also that just as under the proviso
to sub-rule 9 the point or points of disagreement with
grounds thereof have to be furnished to the officer concerned where the punishing authority disagrees with any
of the findings of the report, the same result flows from
Art. 311(2) of the Constitution. This was held by this
Court in a recent decision-State of Assam v. Bimal
Kumar Pandit('). There is therefore no substance in the
appellant's contention that the procedure and provisions
of the Inquiries Act are less advantageous and more drastic
than an enquiry under the 1955 Rules. The contention
that the Inquiries Act violates Art. 14 of the Constitution
is therefore rejected.
It is not easy to understand the appellant's further
contention that the Inquiries Act contravenes Art. 16 and
Art. 20(3) of the Constitution. Article 16 guarantees to
all citizens equality of opportunity in matters relating to
y
employment or appointment to any office under the
( 1) [1964] 2 S.C.R. 1.
15-2 S. C. India/64
1963
R. P. Kapur
v.
Pratap Singft
Kairon and
Others
Das Gupta/.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta].
218
SUPREME COURT REPORTS
[1964]
State. That guarantee is however no bar to disciplinary
action being taken against a citizen who holds an office
under the State. The fact that the result of such disciplinary action may be that a citizen is deprived of promotion cannot possibly be held to be a denial of equality
of opportunity relating to employment or appointment.
The appellant also suggested that the provision in section 15
of the Inquiries Act that a person accused shall be required
to make his defence, infringes Art. 20(3) of the Constitution. Art. 20(3) provides that no person accused of any
offence shall be compelled to be a witness against himself.
It is diflicult to understand how a provision that an accused
shall be required to make his defence amounts to compelling the accused to be a witness against himself. Under
this section the accused is not even compelled to make
his defence. The section merely compels the Inquiring
authority to require the accused to make a defence. If
the accused chooses not to make any defence s. 15 could
not compel him to do so.
The argument that the Inquiries Act contravenes Art. 16 or Art. 20(3) of the Constitution is wholly misconceived and is rejected.
This brings us to the question whether the Government
of Punjab acted
mala fide in ordering the enquiry.
The appellant's case is that he incurred the severe displeasure and hostility of the Punjab Chief Minister, Sardar
Pratap Singh Kairon and for this the Chief Minister has
been bent upon his ruin. To this ehd, it is said, the Chief
Minister instituted criminal cases against the appellant
and even against his wife, mother and mother-in-law
through his own creatures in the expectation that he would
get them convicted and sent to prison and thereafter have
the appellant dismissed on the basis of his own conviction. As the cases were transferred for trial to courts in
Uttar Pradesh and by May 1961 two of the cases had been
disposed of against the prosecution, the Chief Minister
felt apprehensive that the other criminal cases might also
end in the acquittal or discharge of the appellant.
So,
he hit upon the plan of having an enquiry under the Inquiries Act on the basis of allegations made in the t\vo
cases, viz., Dhingra's complaint and Daryao Singh's report,
being apprehensive that even these cases, if charge-sheets '.:
were submitted in court, might be transferred to courts
-
-
-
•
..
..
4 S.C.R.
SUPREME COURT REPORTS
219
outside Punjab and were likely to end in the acquittal
or discharge of the appellant. The appellant urges that
the statement in the Order that the Governor was of
opinion that there were good grounds for making a formal
and public enquiry into the truth of certain imputations
of misbehaviour against him, was false, and that the real
purpose was not to ascertain the truth of the imputations
but to harass and humiliate him and if possible to impose
penalties on him by way of disciplinary action whether or
not the imputations were true or false.
The appellant has not been able to produce before us
materials to explain why the Punjab Chief Minister should
be personall-y hostile to him. There are several circumstances however which seem to suggest that whatever be
the reason the Punjab Chief Minister is not friendly to
the appellant. The appellant repeatedly drew our attention to the manner in which the Chief Minister took it
upon himself to accept a complaint of serious charges
against a senior officer like the appellant and directed the
Additional Inspector-General "to take immediate action in
taking over papers from Government Departments concerned and the papers with Shri Dhingra", and to the
direction given by him to the Additional Inspector-General
to give "a prima facie report". In a previous decision(')
of this Court observed thus:-
"We do not know what reasons led the Chief Minister
to make the endorsement on the complaint of Dhingra
as he did and why instead of referring the complaint
to the officer in charge of the police station, a reference
was made to the Additional Inspector-General of the
Criminal Investigation Department. It is not clear
why he ordered the seizure of the papers before even
a prima facie report was given in respect of an offence
said to have been committed five years ago."
The Court then proceeded to point out that these were
matters on which the Chief Minister alone was in a position to enlighten the Court and that "the Chief Minister
owed a duty to this Court to file an affidavit stating what
the correct position was so far as he remembered". Even
though the appellant made a pointed reference to the Chief
( 1 )
R. P. Kapur v. Sardar
Pratap Singh
Kairon [1961] 2
S.C.R. 143.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Das Gupta].
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Othtrs
Das Gupta/.
zzo
SUPREME COURT REPORTS
(1964]
Minister's endorsement on Dhingra's complaint and also
set out this Court's observations on the ealier occasion,
the Chief Minister did not file any affidavit even on the
present occasion throwing any light on the circumstances
under which he acted in this, to say the least, unusual
manner.