# JAGANNATH PRASAD SHARMA v. STATE OF UTTAR PRADESH AND OTHERS

- **Citation:** [1962] 1 S.C.R. 151
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 490 of 1957
- **Bench:** S. K. Das, M. Hidayatullah, K. c. DAS GUPTA, J.C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagannath-prasad-sharma-v-state-of-uttar-pradesh-and-others-1977
- **Pages:** 25

## Headnote

Public Servant-Disciplinary proceedings- Procedure--Two
sets of Rules applicable-Selection of one, if discriminatory-Governor's power to dismiss police officer-U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, r947-U. P. Police Regulations-Police Act, r86r {V of r86r), s. 7-Constitution of India,
Art. r4 .
There were certain charges of immorality, corruption and
gross dereliction of duty against the appellant who was a police
officer. After an enquiry, the Governor of U. P. referred the case
under s. 4 of the U. P. Disciplinary Proceedings (Administrative
Tribunal) Rules, 1947, to a Tribunal. The Tribunal recommended on February 4, 1950, that the appellant be dismissed from
service. The Governor then served a notice on the appellant to
show cause why he should not be dismissed from service and
after considering the explanation submitted by him dismissed
him with effect from December 5, 1950. The appellant challenged the order of dismissal, inter alia, on the grounds: (i) that the
Governor had no power under s. 7 of the Police Act and the
U. P. Police Regulations framed thereunder to dismiss a police
officer and (ii) that the enquiry held by the Tribunal violated
r961
March 6.
152
SUPREME COURT REPORTS
1961
Art. 14 of the Constitution as of the two parallel procedures
available under the Tribunal Rules and under the U. P. Police
Jaga••••h Prasad Regulations, the mode prejudicial to the appellant under the
Sharma
Tribunal Rules was adopted.
7. ult1
Held (per Das, Hidayatullah, Shah and Ayyangar, JJ.J that
Stal• oJ<S- 0
~, the enquiry by the Tribunal and the ort\er of dismissal passed
Pradesh
1 "'by the Governor were legal and valid.
Under para. 479(a) of the U. P. Police Regulations, framed
under s. 7 of the Police Act, the Governor had the power to
dismiss a police officer.
Under the Tribunal Rules also, which
were framed in exercise of the various powers vested in the
Governor including the power under s. 7 of the Police Act, the
Governor was authorised to dismiss a police officer. By virtue
of Art. 313 of the Constitution these provisions remained m
operation even after the coming into force of the Constitution.
The authority vested in the Inspector-General of Police and his
subordinates by s. 7 of the Police Act, was not exclusive; it
was controlled by the Government of India Act, 1935, and the
Constitution which made the tenure of all civil servants of a
province or state during the pleasure of the Governor.
The procedure adopted did not violate Art. 14 of the Constitution. Though at the time when proceedings were started
against the appellant two distinct procedures for holding the
enquiry were open for selection by the authorities, the order by
the Governor referring the case under the Tribunal Rules having been passed before the Constitution, Art. 14 could have no
application to it even if it was discriminatory. The procedure
prescribed in the Police Regulations is substantially the same as
the procedure prescribed by the Tribunal Rules, and by continuing the enquiry after the Constitution under the Tribunal Rules
and not under the Police Regulations, a more onerous procedure
prejudicial to the appellant was not adopted. The fact that an
or<\er made by a police authority under the Police Regulations
is made appealable whereas an ·order passed by the Governor
under the Ti:ibunal Rules is not made appealable does not
amount to discrimination within the_ meaning of Art. 14. The
Tribunal Rules provide for the giving of reasonable opportunity to a public servant in all its aspects, viz., opportunity to
deny his guilt, opportunity to defend himself and opportunity
.to make his representation against ·the proposed punishment.
The mere existence of two sets 91 parallel procedures is not discriminatpry unless it was shown that one set is more onerous
than the other.
Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R.
589 and Lac/lhmandas Kewalram Ahuja v. The State of Bombay,
[1952] S.C.R. 710, applied.
·
Khe

## Text

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1 s.c.R.
SUPREME COURT REPORTS
151
,
I
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whole of the mortgagees interest.
t 1s common
_
ground that no other relationship existed between Khan Bahadur
the parties at the date of this letter, and the only sub- Shap°"' Fndoom
sisting relationship was that of mortgagee and mortMazda
gagor. This letter acknowledges the existence of the
v.
said jural relationship and amounts to a clear acknowDurg~ P.osad
d
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A t
It .
Chamana &
Ors.
ledgment un er s.
o t e 1m1 a 10n
c '•
1s con_
ceded that if this letter is held to be an ~cknowledg- Gajemfragadkar ].
ment there can be no other challenge agamst the decree under appeal.
In the result the appeal fails and is dismissed with
costs.
Appeal dismissed.
JAGANNATH PRASAD SHARMA
v.
STATE OF UTTAR PRADESH AND OTHERS.
(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)
Public Servant-Disciplinary proceedings- Procedure--Two
sets of Rules applicable-Selection of one, if discriminatory-Governor's power to dismiss police officer-U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, r947-U. P. Police Regulations-Police Act, r86r {V of r86r), s. 7-Constitution of India,
Art. r4 .
There were certain charges of immorality, corruption and
gross dereliction of duty against the appellant who was a police
officer. After an enquiry, the Governor of U. P. referred the case
under s. 4 of the U. P. Disciplinary Proceedings (Administrative
Tribunal) Rules, 1947, to a Tribunal. The Tribunal recommended on February 4, 1950, that the appellant be dismissed from
service. The Governor then served a notice on the appellant to
show cause why he should not be dismissed from service and
after considering the explanation submitted by him dismissed
him with effect from December 5, 1950. The appellant challenged the order of dismissal, inter alia, on the grounds: (i) that the
Governor had no power under s. 7 of the Police Act and the
U. P. Police Regulations framed thereunder to dismiss a police
officer and (ii) that the enquiry held by the Tribunal violated
r961
March 6.
152
SUPREME COURT REPORTS
1961
Art. 14 of the Constitution as of the two parallel procedures
available under the Tribunal Rules and under the U. P. Police
Jaga••••h Prasad Regulations, the mode prejudicial to the appellant under the
Sharma
Tribunal Rules was adopted.
7. ult1
Held (per Das, Hidayatullah, Shah and Ayyangar, JJ.J that
Stal• oJ<S- 0
~, the enquiry by the Tribunal and the ort\er of dismissal passed
Pradesh
1 "'by the Governor were legal and valid.
Under para. 479(a) of the U. P. Police Regulations, framed
under s. 7 of the Police Act, the Governor had the power to
dismiss a police officer.
Under the Tribunal Rules also, which
were framed in exercise of the various powers vested in the
Governor including the power under s. 7 of the Police Act, the
Governor was authorised to dismiss a police officer. By virtue
of Art. 313 of the Constitution these provisions remained m
operation even after the coming into force of the Constitution.
The authority vested in the Inspector-General of Police and his
subordinates by s. 7 of the Police Act, was not exclusive; it
was controlled by the Government of India Act, 1935, and the
Constitution which made the tenure of all civil servants of a
province or state during the pleasure of the Governor.
The procedure adopted did not violate Art. 14 of the Constitution. Though at the time when proceedings were started
against the appellant two distinct procedures for holding the
enquiry were open for selection by the authorities, the order by
the Governor referring the case under the Tribunal Rules having been passed before the Constitution, Art. 14 could have no
application to it even if it was discriminatory. The procedure
prescribed in the Police Regulations is substantially the same as
the procedure prescribed by the Tribunal Rules, and by continuing the enquiry after the Constitution under the Tribunal Rules
and not under the Police Regulations, a more onerous procedure
prejudicial to the appellant was not adopted. The fact that an
or<\er made by a police authority under the Police Regulations
is made appealable whereas an ·order passed by the Governor
under the Ti:ibunal Rules is not made appealable does not
amount to discrimination within the_ meaning of Art. 14. The
Tribunal Rules provide for the giving of reasonable opportunity to a public servant in all its aspects, viz., opportunity to
deny his guilt, opportunity to defend himself and opportunity
.to make his representation against ·the proposed punishment.
The mere existence of two sets 91 parallel procedures is not discriminatpry unless it was shown that one set is more onerous
than the other.
Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R.
589 and Lac/lhmandas Kewalram Ahuja v. The State of Bombay,
[1952] S.C.R. 710, applied.
·
Khem Chand v. The Union of India and.othm, [1954] S.C.R.
1080 and Sardar Kapur Singh v. Union of India, (1960} 2 S.C.R.
569, referred to.
t
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1 S.C.R. SUPREME COURT REPORTS
153
State of Orissa v. Dhirenaranath Das, A.LR. :i961 S.C. 1715,
z96r
distinguished.
Per Das Gupta, J.-The U. P. Disciplinary Proceedingsfagannath Prasad
(Administrative Tribunal) Rules, 1947, are hit by Art. 14 of the
Sharma
Constitution. The absence of the right of appeal under the
v.
Tribunal Rules while a right of appeal is given to a police
State 01 Uttar
officer under the Police Regulations, results in unequal treat-Pradesh & Others
ment in a substantial matter between police officers. proceeded
against under the two procedures. Further, there is no principle
to guide the Government in selecting which of the two procedures is to he applied in a particular case.
CIVIL
APPELLATE
JURISDICTION:
Civil
Appeal
No. 490 of 1957.
Appeal from the judgment and decree dated March
22, 1954, of the Allahabad High Court in Civil Misc.
Writ No. 7854 of 1951.
G. S. Pathak, S. N. Andley, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for the appellant.
0. B. Agarwala, G. O. Mathur and 0. P. Lal, for
respondents Nos. 1 and 3.
1961. March 6.
The Judgment of S. K. Das,
M. Hidayatullah, J. C. Shah and N. Rajagopala
Ayyangar, JJ. was delivered by J.C. Shah, J. K. C.
Das Gupta, J. delivered a separate Judgment.
SHAH, J.-In 1931, the appellant was admitted to
the police force of the United Provinces and was
appointed a Sub-Inspector of Police. He was later
promoted to the rank of Inspector, and in 1946 was
transferred to the Anti-corruption department. In
1947, he was appointed, while retaining his substantive rank of Inspector, to the officiating rank of
Deputy Superintendent of Police. Shortly thereafter,
complaints were received by the Chief Minister and
Inspector-General of Police, U. P. charging the appellant with immorality, corruption and gross dereliction
of duty. In a preliminary confidential enquiry, the·
Inspector-General of Police came to the conclusion
that "a prima facie case" was made out against the
20
Shah j.
154
SUPREME COURT REPORTS
[1962)
1961
appellant. He then directed that a formal enquiry be
Jagannath Prasad held against the a:ppellant afi:d passed orders reverting
Sharma
the appellant to his substantive rank of Inspector and
v.
placing him under suspension. An enquiry was held
State of Uttar into the conduct of the appellant by the SuperinPradesh '"' Others tendent of Police, Anti-corruption department. The
Shah],
report of the Superintendent of Police was forwarded
to the Government of U. P., and the Governor acting
under r. 4 of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 194 7-hereinafter called the Tribunal Rules-referred the case for
enquiry to a Tribunal appointed under r. 3 of the
Tribunal Rules on charges of corruption, personal
immorality and failure to discharge duties properly.
The Tribunal framed three charges · against the
appellant, and after a detailed survey of the evidence
recommended on :February 4, 1950, that the appellant
be dismissed from service. The Governor then
served a notice requiring the appellant to show
cause why he should not be dismissed from s-ervice
and after considering the explanation submitted by
the appellant, the Governor ordered that the appellant be dismissed with effect from December 5, 1950.
The appellant challenged this order by a petition
instituted in the High Court of Judicature at Allahabad under Art. 226 of the Constitution for a writ of
certiorari quashing' the proceedings of the Tribunal
and for a writ of mandamus directing the State of Uttar
Pradesh to hold an enquiry under s. 55 of the Civil
Services (Classification, Control and Appeal) Rules.
In support of his appeal against the order of the
High Court dismissing his petition, the appellant has
raised three contentions:
1. that the order dismissing the appellant from
the police force was unauthorised, because the Governor had no power under s. 7 of the Police Act and the
regulations framed thereunder to pass that order;
2. that even if the Governor was invested with
power to dismiss a police officer, out of two alternative modes of enquiry, a mode prejudicial to the appellant having been adopted the proceedings of the
Tribunal which enquired into the charges against him
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I S.C.R. SUPREME COURT REPORTS
155
were void, as the equal protection clause of the Conz96z
stitution was violated; and
Jagannath Prasad
3, that the proceedings of the Tribunal were
Sharma
vitiated because of patent irregularities which resulted
v.
in an erroneous decision as to the guilt of the appelState of Uttar
lant.
Pradesh & Others
To appreciate the first two contentions, it is necesShah J.
sary briefly to set out the relevant provisions of the
laws procedural and substantive in force, having a
bearing on the tenure of service of members of the
police force in the State of Uttar Pradesh.
The appellant was admitted to the police force constituted under Act V of 1861. By s. 3 of that Act,
superintendence throughout a general police district
vests in and is exercised by the State Government to
which such district is subordinate and except as authorised by the Act, no person, officer or court may be empowered by the State Government to supersede or
control any police functionary. By s. 4, the administration of the police throughout a general police.
district is vested in the Inspector-General of Police.
By s. 7, it is provided that subject to the provisions
of Art. 311 of the Constitution and to such rules as
the State Government may from time to time make
under the Act, the Inspector-General, Deputy Inspectors-General, Assistant Inspectors-General and District
Superintendents of Police may at any time dismiss,
suspend or reduce any police-officer of the subordinate
rank whom they shall think remiss or negligent in the
discharge of his duty, or unfit for the same, or may
award any one or more of the punishments (set out
therein) to any police-officer of the subordinate rank
who discharges his duty in a careless or negligent
manner or who by any act of his own renders himself
unfit for the discharge thereof.
Section 46 sub-s. (2) authorises the State Government to make rules for giving effect to the provisions
of the Act, and also to amend, add to or cancel the
rules framed. The Government of Uttar Pradesh has
framed rules called the Police Regulations under the
Indian Police Act. Chapter 32 containing Regulations
477 to 507 deals with departmental punishment and
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156
SUPREME COURT REPORTS
[1962]
z96z
criminal prosecution of police officers and Ch. 33 conJ agann-;;;: Prasad tai~ii;ig Regu.l~tions 508 to 516 deals with .appeals,
Sharma
• rev1s10ns, pet1t10ns etc. By Regulation 477, 1t is prov.
vided that no officer appointed under s. 2 of the
State of Uttar Police Act shall be punished by executive order otherPradesh & Others wise than in the manner provided in the chapter.
Shah J.
Regulation 478A provides that the punishment of
dismissal or removal from the force or reduction as
defined in Regulation 482 may be awarded only after
departmental proceedings. By Regulation 479 cl. (a),
"full power" is reserved to the Governor to puniEh all
police officers, and by cl. (b ), the Inspector-General is
authorised to punish Inspectors and all police officers
of "lower ranks". Regulation 489 provides for the
departmental trials of police officers and Regulation
490 provides that the departmental trials of police
officers must be conducted in accordance with the
rules set out therein. Regulation 490 in its various
clauses makes provisions about oral and document11ry
evidence, framing of charges, explanation of the
delinquent police officer, recording of statement of
defence witnesses, recording of findings by the
Superintendent of Police and the making of a report
by the enquiry officer if he is of the view that the
delinquent police officer should be dismissed or removed from the force.
Clause (9) provides that the police
officer may not be represented by counsel in any proceedings instituted against him under the rules.
By
Regulation 508, every police officer against w horn an
order of dismissal or removal is passed is entitled to
prefer one appeal against an order of dismissal from
the police force to the authorities prescribed in that
behalf, but against the order of the Governor in
exercise of authority reserved under Regulation 4 79
cl. (a), no appeal is provided.
By s. 96B of the Government of India Act., 1915,
the tenure of all civil officers including police officers
was at the pleasure of the Sovereign. In exercise of
the powers conferred by sub-s. (2) of s. 96B, classification rules were framed by the local Governments. In
the Government of India Act, 1935, ch. 2 of Part X
dealt with civil services, their tenure, recruitment and
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1 S.C.R. SUPREME COURT REPORTS
157
conditions of service. The section corresponding to
r96r
s. 96B of the Government of India Act, 1915, in the 1
-;; P
d
later Act was s. 240(1) and thereunder all members of agan;haa.marasa
the civil service held office during the pleasure of the
v.
Sovereign. By the Government of India Act, 1935,
State of Uttar
to every civil servant a two-fold protection was gua- Pradesh & Others
ranteed by els. (2) and (3) of s. 240(1) that he shall
not be dismissed from service by any authority sub.
ordinate to that by which he was appointed and that
he shall not be dismissed or reduced in rank until he
has been given a reasonable opportunity of showing
cause against the action proposed to be taken in
regard to him. But these provisions did not apply to
police officers for whom a special provision was enacted in s. 243.
That section provided:
"Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of
the subordinate ranks of the various police forces in
India shall be such as may be determined by or
under the Act relating to those forces respectively."
The conditions of service of the police force of
the subordinate ranks were under the Government of
India Act, 1935 therefore only such as were prescribed by rules framed under s. 7 and s. 46(2) of the Police
Act.
By the Constitution of India, the distinction
between police officers and other civil servants in the
matter of protection by constitutional guarantees is
abolished and as from January 26, 1950, the recruit.
ment and conditions of service of all persons serving
the Union or the State are now governed by Art. 309
and their tenure by Art. 310 of the Constitution. By
Art. 311, the protection granted under s. 240 els. (2)
and (3) of the Government of India Act is extended to
members of the police force as well.
By Art. 309, the
conditions of service of public servants are made sub.
ject to the provisions of the Constitution and the Acts
of the appropriate Legislature. By Art. 310, except
as expressly provided by the Constitution, (i.e., except
in cases where there is an express provision for dismissal of certain public servants e.g., Judges of the
Supreme Court and of the High Courts, Comptroller and
Auditor-General of India, Chief Election Commissioner)
Shah J.
158
SUPREME COURT REPORTS
[1962]
'96'
all civil servants who hold office under the Union
J agannath Prasad of
~ndia hold o;ffi?e during the pleasure of the
Sharma
President and all mvrl servants who hold office under
v.
the State hold it during the pleasure of the Governor.
State of Uttar By virtue of Art. 313 of the Constitution, until other
Pradesh &- Others provision is made, all laws in force immediately be-
-
fore the Constitution and applicable to any public serShah J.
vice which continues to exist under the Union or a
State shall continue in force so far as consistent with
the Constitution: the power of the police functionaries
to dismiss police officers is therefore preserved.
On November 4, 1947, the Governor of U. P. in
exercise of the powers conferred inter alia by s. 7 of
the Police Act, published the Tribunal Rules. By r. 1
cl. (3), these rules apply "to all Government servants
under the rule making control of the Governor" and
are applicable to any acts, omissions or conduct arising before the date of commencement of the rules as
they are applicable to those arising after that date.
Clause (c) of r. 2 defines "corruption'', cl. (d) defines
"failure to discharge duties properly" and cl. {e)
defines "personal immorality''. Rule 4 authorises the
Governor to refer to a Tribunal constituted under
r. 3, cases relating to an individual Government servant or class of Government servant or servants in a
particular area only in respect of matters involving
(a) corruption, {b) failure to discharge duties properly,
(c) irremediable general inefficiency in a public servant
of more than ten years' standing, and (d) personal immorality. By cl. (2), the Governor is also authorised
in respect of a gazetted Government servant on his
own request to refer his case to the Tribunal in respect of matters referred to in sub-r. (1).
By r. 7, the
proceedings of the Tribunal are to be conducted in
camera and neither the prosecution nor the defence
has the right to be represented by counsel. Rule 8
prescribes the procedure to be followed by the Tribunal and r. 9 deals with the record to be maintained
by the Tribunal. Rule 10 states that the Governor
shall not be bound to consult the Public Service Commission on the Tribunal's recommendations and shall
pass an order of punishment in the terms recommended by the Tribunal, provided "the Governor may for
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1 S.C.R. SUPREME COURT REPORTS
159
sufficient reasons, award a lesser punishment''. Rule
r96r
12 provides that nothing in the rules shall be deemed
-
.
"" t th
d t
f' d' · l'
d'
· ]agannath Prnsad
to auec
e con uc
o
. ismp .mary procee mgs m
Sharma
cases other than those spemfically covered by the prov.
visions of the Tribunal Rules. Rule 13 authorises
stale of Uttar
the Governor to delegate the power to refer cases to p,adesh & Others
gazetted officers in charge of districts and to pass an
order of punishment under r. 10 to heads of departments.
Enquiry against the appellant, though commenced
before the Constitution was concluded after the Constitution, and the order dismissing him from the
police force was passed in December, 1950.
Under
Police Regulation 479(a), the Governor had the power
to dismiss a police officer. The Tribunal Rules were
framed in exercise of various powers vested in the
Governor including the power under s. 7 of the Police
Act, and by those rules, the Governor was authorised
to pass appropriate orders concerning police officers.
By virtue of Art. 313, the Police Regulations as well
as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution. The authority
vested in the Inspector-General of Police and his subordinates by s. 7 of the Police Act was not exclusive.
It was controlled by the Government of India Act,
1935, and the Constitution which made the tenure of
all civil servants of a Province during the pleasure
of the Governor of that Province. The plea that the
Governor had no power to dismiss the appellant from
service and such power could only be exercised by the
Inspector-General of Police and the officers named in
s. 7 of the Police Act is therefore without substance.
But it is urged that the enquiry held by the Tribunal against the appellant and the order consequent
upon that enquiry deprived the appellant of the equal
protection of the laws and were therefore void as infringing Art. 14 of the Constitution. It is true that
when proceedings were started against the appellant
for an enquiry for his alleged misdemeanours, one of
two distinct procedures for holding an enquiry, was
open for selection by the authorities. The police
Shah].
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160
SUPREME COURT REPORTS
[1962)
1961
authorities could direct an enquiry under the Police
.
--
Regulations under the procedure prescribed by ReguJagan .. ath Prasad lation 490; it was also open to the Governor to direct
Sh':;_'""
an enquiry against the appellant, and as the charges
State of Uttar against him fell within r. 4 of the Tribunal Rules, the
Pradesh G Others procedure for enquiry was the one prescribed by r. 8
of the Tribunal Rules. Relying upon the existence
Shah .I·
of these two sets of rules simultaneously governing
enquiries against police officers either of which could
be resorted to at the option of the authorities in respect of charges set out in r. 4 of the Tribunal Rules,
it was urged that in directing an enquiry against the
appellant under the Tribunal Rules, discrimination
was practised against him, and he was deprived of the
guarantee of equal protection of the laws. That an
enquiry against the appellant could have been made
under the procedure prescribed by Regulation 490 of
the Police Regulations appears to be supported by
rr. 1(3), 4 and 12 of the Tribunal Rules. Rule 1 subr. (3) provides that the Tribunal Rules shall apply to
all Government servants under the rule making control of the Governor, and by r. 4, the Governor is
authorised to refer cases to the Tribunal, but he is
not obliged to do so. By r. 12, nothing in the Tribunal Rules is to affect the conduct of disciplinary
proceedings in cases other than those specifically dealt
with under the rules.
But the order of the Governor directing an enquiry
against the appellant was passed before the Constitution, and Art. 14 has no retrospective operation: it
does not vitiate transactions even if patently discriminatory which were completed before the commencement of the Constitution. In Syed Qasim Razvi v.
The State of Hyderabad (1), this court was called upon
to decide whether a trial of an offender commenced
before the Constitution under the Special Tribunal
Regulation promulgated by the Military Governor of
the Hyderabad State was, since the Constitution,
invalid in view of Art. 14. Mukherjea J. speaking for
the majority of the court obse.rved:
" ...... the effect of article 13(1) of the Constitution
(1) [1953] S.C.R. 589.
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1 S.C.R. SUPREME COURT REPORTS
161
r96r
is not to obliterate the entire operation of the incon_
sistent laws or to wipe them out altogether from Jagannath Prasad
the statute book; for to do so will be to give them
Sharn•a
retrospective effoct which they do not possess. Such
v.
laws must be held to be valid for all past transacstat' 0! Uttar
·
d c
c
·
· h•~
d l" b"l" ·
d Pradesh & Othm
t10ns an 1or en1orcmg rrg "" an
ta i ities accrue
_
before the advent of the Constitution. On this
principle, the order made by the Military Governor
referring this case to the Special Tribunal cannot
be impeached and consequently the Spegial Tribunal must be deemed to have taken cognizance of the
case quite properly, and its proceedings up to the
date of the coming in of the Constitution would also
have to be regarded as valid."
Similarly, Das, J. in Lachhmandas Kewalram
Ahuja v. The State of Bombay(') in dealing with the
validity of proceeding before a Special Judge holding
a trial before the Constitution observed:
"As the Act was valid in its entirety before the
date of the Constitution, that part of the proceeding
before the Special Judge, which, up to that date,
had been regulated by this special procedure cannot
be questioned, however discriminatory it may have
been ...... ".
Selection by the authorities of one of two alternn-tive procedures at a time when Art. 14 was not in
operation, does not therefore enable the appellant to
contest the validity of the enquiry on the plea of
denial of equal protection of the laws. It was also
observed in Syed Qasim Razvi' s case(') by Mukherjea J.
at p. 606:
"In cases of the type (where the trial commenced
before the Constitution) which we have before us
where part of the trial could not be chall~nged as
bad and the validity of the other part depends on
the question as to whether the accused has been
deprived of equal protection in matters of procedure,
it is incumbent upon the court to consider, firstly,
whether the discriminatory or unequal provisions of
law could be separated from the rest and.even without them a fair measure of equality in the matter
(I) [1952] S.C.R. 710.
(2) [t953] S.C.R. 585.
.
Shah ].
J agannath Prasad
Sharma
v.
State of Uttar
Pradesh &- Others
Shah ].
162
SUPREME COURT REPORTS
(1962]
of procedure could be secured to the accused. In
the second place, it has got to consider whether the
procedure actually followed did or did not proceed
upon the basis of the discriminatory provisions. In
our opinion, a mere threat or possibility of unequal
treatment is not sufficient. If actually the accused
has been discriminated against, then and then only
he can com plain, not otherwise.
We may mention here that the impossibility of
giving the accused the substance of a trial according to normal procedure at the subsequent stage may
arise not only from the fact that the discriminatory
provisions were not severable from the rest of the
Act and the court consequently had no option to
continue any other than the discriminatory procedure; or it may arise from something doae at the
previous stage which though not invalid at that
time precludes the adoption of a different procedure
subsequently."
The proceedings of the Tribunal prior to the commencement of the Constitution are therefore not open
to challenge except to the limited extent indicated by
Mukherjea J. The question which falls to be considered is whether the procedure followed by the Tribunal
after the Constitution was discriminatory and operated to the prejudice of the appellant.
Regulation 490 of the Police Regulations sets out
the procedure to be followed in an enquiry by the
police functionaries, and rr. 8 and 9 of the Tribunal
Rules set out the procedure to be followed by the Tribunal. There is no substantial difference between the
procedure prescribed for the two forms of enquiry. The
enquiry in its true nature is quasi-judicial. It is manifest from the very nature of the enquiry that the approach to the materials placed before the enquiring
body should be judicial. It is true that by Regulation
490, the oral evidence is to be direct, but even under
r. 8 of the Tribunal Rules, the Tribunal is to be guided by rules of equity and natural justice and is not
bound by formal rules of procedure relating to evidence. It was urged that whereas the Tribunal may
admit on record evidence which is hearsay, the oral
•
•
11
•
I S.O.R. SUPREME COURT REPORTS
163
b d,
r961
evidence under the Police Regulations must e
irect
_
evidence and hearsay is excluded. We do not think Jagannath Ptasad
that any such distinction was intended. Even though
Sharma
the Tribunal is not bound by formal rules relating to
v.
procedure and evidence, it cannot rely on evidence
State 01 U1tar
which is purely hearsay, because to do so in an Pradesh '"' Others
enquiry of this nature would be contrary to rules of
Shah J.
equity and natural justice. The provisions for main.
taining the record and calling upon the delinquent
public servant to submit his explanation are substan.
tially the same under Regulation 490 of the Police
Regulations and r. 8 of the Tribunal Rules. It is urged
that under the Tribunal Rules, there is a departure in
respect of important matters from the Police Regula.
tions which render the Tribunal Rules prejudicial to
the person against whom enquiry is held under those
rules. Firstly it is submitted that there is no right of
appeal under the Tribunal Rules as is given under
the Police Regulations; secondly that the Governor is
bound to act according to the recommendations of the
Tribunal and thirdly, that under the Tribunal Rules,
even if the complexity of a case under enquiry justi.
fies engagement of counsel to assist the person charg.
ed, assistance by counsel may not be permitted at the
enquiry. These three variations, it is urged, make
the Tribunal Rules not only discriminatory but prejudicial as well to the person against whom enquiry
is held under these Rules. In our view, this plea
cannot be sustained. The Tribunal Rules and the
Police Regulations in so far as they deal with enquiries
against police officers are promulgated under s. 7 of
the Police Act, and neither the Tribunal Rules nor the
Police Regulations provide an appeal against an
order of dismissal or reduction in rank which the
Governor may pass. The fact that an order made by
a police authority is made appealable whereas the
order passed by the Governor is not made appealable
is not a ground on which the validity of the Tribunal
Rules can be challenged. In either case, the final
order rests with the Governor who has to decide the
matter himself. Equal protection of the Jaws does
not postulate equal treatment of all persons. without
•
164
SUPREME COURT REPORTS
[1962)
1961
distinction: it merely guarantees the application1of the
Jagaunath Prnsad same laws alike and without discrimination to all per.
Sharma
sons similarly situated.
The power of the Legislature
v.
to make a distinction between persons or transactions
Stato of Uiiar based on a real differentia is not taken away by the
Pradesh & Others
1
t t"
1
Th
.c
b
"d"
•
·-
equa pro cc ion cause.
ere1ore
y prov1 mg a
Shah .f.
right of appeal against the order of police authorities
acting under the Police Regulations imposing penalties upon a member of the police force, and by providing no such right of appeal when the order passed is
by the Governor, no discrimination inviting the application of Art. 14 is practised.
Under r. 10 of the Tribunal Rules, the Governor is
enjoined to pass an order of punishment in terms
recommended by the Tribunal, whereas no such obligation is cast upon the police authority who is competent to dismiss a police officer when an enquiry is held
under Regulation 490 of the Police Regulations. To
the extent that r. 10 requires the Governor to accept
the recommendation Of the Tribunal, the rule may be
regarded as inconsistent with the Constitution, because
every police officer holds office during the pleasure of
the Governor, and is entitled under Art. 311(2) to a
reasonable opportunity to show cause to the satisf~c
tion of the Governor against the action proposed to oe
taken in regard to him. The partial invalidity of r. 10
however does not affect the remaining rules: that part
of the rule which requires the Governor to accept the
recommendation of the Tribunal as to the guilt of the
public servant concerned is clearly severable. We may
observe that in considering the case of the appellant,
the Governor exercised his independent judgment and
passed an order of dismissal and did not act merely on
the recommendation of the Tribunal. The difference
between the two sets of rules on the matter under
consideration does not relate to the procedure of the
enquiring bodies, but to the content of reasonable
opportunity guaranteed by Art. 311 of the Constitu:
tion.
The rules relating to appearance of lawyers at enquiries under the Police Regulations and under the
Tribunal Rules are also not different. Under cl. (9)
•
•
t
1 S.C.R. SUPREME COURT REPORTS
165
of Regulation 490 of the Police Reaulations, an accus1!_6.:_
ed police officer may not be represented by counsel in Jagannath Prasad
any proceeding instituted under those Regulations,
Sha.ma
and by r. 7 of the Tribunal Rules, neither the prosecuv.
t.ion nor·the defence have the right to be represented Stat'
0~ u0ttahr
h
1.
ffi
Pradesh ~ t ers
by counsel. Both the rules deny to t e po me o cer
_
the right to be represented by counsel.
Shah J.
The procedure provided in the Police Regulations is
substantially the same as the procedure prescribed by
the Tribunal Rules, and by continuing the euquiry
after the Constitution under the Tribunal Rules and
not under the Police Regulations, a more onerous
procedure prejudicial to the appellant was not adopted.
The Governor appointed the Tribunal for enquiry
against the appellant before the Constitution, but the
order of dismissal was passed after the Constitution
came into force.
The appellant was entitled to the
protection of Art. 311(2) of the Constitution. Since
the Constitution was enacted, the distinction which
was made between members of the police force and
other civil servants under ss. 240, 241 and 243 of the
Government of India Act has disappeared and all
civil servants including the police officers are entitled
to the protection of Art. 311(2).
The content of the
guarantee was explained by this court in Khem
Chand v. The Union of India (1). It was observed by
Chief Justice Das:
"To summarise: the reasonable opportunity envisaged by the provisions 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 crossexamining the witnesses produced against him and
by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as
to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after
(1) [1958] S.C.R. 1080, 1096.
J tigannath Prasad
Shatnta
v.
State of Uttar
Pradesh & Others
Shah J.
166
SUPREME COURT REPORTS
[1982]
applying his ming to the gravity or otherwise of the
charges proved against the government servant
tentatively proposes to inflict one of the three
punishments and communicates the same to the
government servant;".
To a police officer charged with misdemeanour,
opportunity in all the three branches set out in Khemchand's case (1) is provided under the Tribunal Rules.
There is opportunity to the police officer against whom
an enquiry is made to deny his guilt and to establish
his innocence; there is opportunity to defend himself
by cross-examination of witnesses produced against
him and by examining himself and other witnesses in
support of his defence, and there is also opportunity
to make his representation as to why the proposed
punishment should not be inflicted. The discrimination which is prohibited by Art. 14 is treatment in a
manner prejudicial as compared with another person
similarly circumstanced by the adoption of a law, substantive or procedural, different from the one applicable to that other person. In Sardar Kapur Singh v.
The Union of India('), this court held that by directing an enquiry against a member of the Indian Civil
Service who was charged with misdemeanour under
the Public Servants (Inquiries) Act, 1850 and not
under r. 55 of the Civil Services (Classification, Control and Appeal) Rules when there was no substantial
difference between the material provisions, discrimination was not practised. It was observed (at p. 581):
"Does the holding of an enquiry against a public
servant under the Public Servants (Inquiries) Act,
1850 violate the equal protection clause of the Constitution? The appellant submits that the Government is invested with authority to direct an enquiry
in one of two alternative modes and by directing an
enquiry under the Public Servants (Inquiries) Act
which Act it is submitted contains more stringent
provisions when against another public servant
similarly circumstanced an enquiry under r. 55 may
be directed, Art. 14 of the Constitution is infringed."
After considering the special protection given to
(11 [1958] S.C.R. 1080, '°'6.
(2) [1960] 2 S.C.R. 569.
1
..
1 S.C.R. SUPREME COURT REPORTS
167
members of the Indian Civil Service and the essential
r96r
characteristics of the procedure for making enquiries 1
-t-h P
d
b . S
(I
. . ) A
1850 .
aganna
rasa
under the Pu he ervants nqmries
ct,
, 1t was
Sharma
observed at p. 584:
v.
"The primary constitutional guarantee, a member
State of Uttar
of the Indian Civil Service is entitled to is one -of P,.desk & Others
being afforded a reasonable opportunity of the content set out earlier, in an enquiry in exercise of
powers conferred by either the Public Servants
(Inquiries) Act or r. 55 of the Civil Services (Classification, Control and Appeal) Rules, and discrimination is not practised merely because resort is had to
one of two alternative sources of authority, unless
it is shown that the procedure adopted operated
to the prejudice of the public servant concerned.
In the case before us, the enquiry held against the
appellant is not in manner different from the manner in which an enquiry may be held consistently
with the procedure prescribed by r. 55, and therefore on a plea of inequality before the law, the
enquiry held by the Enquiry Commissioner is not
liable to be declared void because it was held in a
manner though permissible in law, not in the manner, the appellant says, it might have been held."
In Syed Qasim Razvi' s case (1 ), it was held that if
the substance of the special procedure followed after
the Constitution in an enquiry or trial commenced
before the Constitution is the same as in the case of a
trial by the normal procedure, the plea of discrimination invalidating a trial must fail.
Counsel for the appellant in support of his plea
that the enquiry by the Tribunal was vitiated because
it was held under a discriminatory procedure relied
upon a judgment of this Bench in the State of Orissa
v. Dhirendranath Das('). In that case, a lower Division Assistant in the Secretariat of the Orissa Government was found guilty of certain misdemeanour by a
Tribunal appointed under rules framed by the Orissa
Government after an enquiry held in that behalf and
was ordered to be dismissed from service. In a petition by the public servant under Art. 226 of the Constitution praying for a writ declaring illegal the order
(1) (1953] S,C.R. 589,
(2) A.I.R. 1951 S.C. 1715.
Shah ].
168
SUPREME COURT REPORTS
[1962J
I96I
of dismissal it was held by the Orissa High Court that
-
on the date on which enquiry was directed against
Jagannath Prasad h
· ·
h
'
f
l
·
Sharma
t. e pet1t10ne;-t ere were two sets o ru cs m op~rav
t10n, the Tribunal Rules and the Bihar and Onssa
State oi Uttar Subordinate Services Discipline and Appeal RulesPradesh 0 Others and it was open to the Government of Orissa to select
Shah J,
either set of rules for enquiry against any public servant against whom a charge of misdemeanour was
made and that selection of one in preference to the
other set of rules was violative of the guarantee of
Art. 14 of the Constitution. The High Court accordingly declared the order of dismissal inoperative and
further declared that the disciplinary proceedings be
restored to the stage which they had reached when
the case was referred to the Tribunal. Against that
order, the State of Orissa preferred an appeal to this
court. The relevant rules were not in that case incorporated in the paper-book prepared for the hearing
nor did counsel for the State produce for our consideration those rules.