# R. P. Kapur v. Pratap Singh Kairon and Otht:rs

- **Citation:** [1964] 4 S.C.R. 224
- **Court:** Supreme Court of India
- **Decided:** 1961-05-26
- **Case number:** Civil Appeal No. 75 of 1963
- **Bench:** S.K. Das, Acting C.J, P.B. Gajendragadkar, A.K. Sarkar, K.N. WANCHoo, M. HmAYATULLAH, K.C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-p-kapur-v-pratap-singh-kairon-and-otht-rs-3037
- **Pages:** 42

## Headnote

Civil Servant-A member of the Indian Civil Service en1ployed
in the State of Punjab-Enquiry under order of Governor-whether
competent-"Not removable from his appointment without the
sanction
of
Government"-Meaning
of-The Public
Servants
(Inquiries) Act, 1850, s. 2.
The appellant joined the Indian Civil Service in 1938 and
after serving in other capacities was employed under the Punjab
Government since 1948. On May 26, 1961, an enquiry was started
against him by the Punjab Government under s. 2 of the Public
Servant (Inquiries) Act, 1850. He filed a petition in the Punjab
High Court under Article 226 of the Constitution challenging the
validity of the order of the Punjab Government but his petition was
dismissed.
He came to this Court by special leave.
-
...
-
-
4 S.C.R.
SUPREME COURT REPORTS
225
During the hearing of the appeal a question arose whether
the Government of the State of Punjab was competent to order
the enquiry against the appellant under s. 2 of the Public Servants
{Inquiries) Act, 1850. The Bench hearing the appeal was of the
opinion that s. 2 required three conditions to be satisfied before
a formal and public enquiry could be ordered. The first condition
was that the Government should be of opinion that there were
good grounds for making such a formal and public enquiry. The
second condition was that the enquiry could be directed by the
Government against a servant in the service of that Governmenr
The third condition was that the person should not be removable
from his appointment without the sanction of that Government.
The Bench held that the first two conditions were satisfied in the
present case.
As regards the third condition, the Bench referred
to a larger Bench the question as to the mt:aning of the following
words in section 2 of the Inquiries Act: "not removable from his
appointment without the sanction of the Government."
Held by Das Acting C. J., Gajendragadkar, Sarkar, Hidayatullah, JJ. {Wanchoo, Das Gupta and Ayyangar JJ. dissenting) that
the third condition in s. 2 of the Public Servants (Inquiries) Act,
1850 was also satisfied in this case.
Per, Das, Acting C. J., Gajendragadkar, Sarkar and Hidayatullah, JJ: Section 23 of the Act furnishes the key to find out which
Government is to hold the inquiry. Where the officer is in the service of a particular Government and is also employed under it the
position is clear. When Officers in the service of the Central Government are deputed to States and vice versa and while they are on such
deputation, they are "employed under" the Government to which
they are deputed.
If by "employed under" in s. 2 were meant
"in the service of", s. 23 of the Public Servants (Inquiries) Act,
1850, would hardly be needed. If an officer is in the service of
the Central Government and
is
also serving with the Central
Government, the State Government cannot possibly hold an enquiry.
The same is true of officers in the service of the State
Governments and serving with the State Governments.
In their
case the Central Government can have no hold. It is only when
th~re is ~n exchange of officers between Governments that questions
anse which Government should make the enquiry and the test is
that it is the Government under which the officer is employed at the
time. The expression "in the service of that Government" in s. 2
is the equivalent of "employed under Lhat Government" in the con~
text where it occurs.
The word "appointment" can only mean a 'post', 'station' or
'office' and not the \vhole service as such. Removal cannot be the
equivalent of loss of service but the loss of post, station or office.
~ect~on, 2 i~ inte,nded
to
apply only to an officer whose 'post',
station or office can only be lost under orders of the appropriate
Government. and not any lesser authority. In this sense, the action
of the Pun1ab Government was clearly within its power.
The
1963
R. P. Kapur
••
Pratap Singh
Kairon and
Others
1963
R. P. Kapur
Y.
Pratap Singh
Kairan and
Others
226
SUPREME COURT RE

## Text

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1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Otht:rs
Das Gupta J.
1963
Aug11st, 2
224
SUPREME COURT REPORTS
(1964]
the Inquiries Act would amount to contempt of the criminal court, we are clearly of opinion that it is wholly undesirable that the enquiry under the Inquiries Act should
be held at the same time when the trial before the criminal court is going on. No particular reason has been shown
to exist which makes the immediate commencement of the
enquiry essential or otherwise desirable. We think it proper therefore that the enquiry under the Inquiries
Act
should not proceed so long as the appellant's complaint
against Dhingra is not finally disposed of.
While therefore, we have come to the conclusion that
the High Court has rightly refused to issue to the appellant
writs prayed for to quash the Government's order for enquiry against him and the other prayers mentioned in the
petition, we direct that the enquiry should not take place
so long as the appellant's complaint against Dhingra is not
finally disposed of. The parties will bear their own costs.
Appeal dismissed.
R.P. KAPUR
ti,
PRATAP SINGH KAIRON AND OTHERS
(S.K. DAS, ACTING C.J., P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHoo, M. HmAYATULLAH, K.C. DAS
GUPTA AND N. RAJAGOPALA AYYANGAR JJ.)
Civil Servant-A member of the Indian Civil Service en1ployed
in the State of Punjab-Enquiry under order of Governor-whether
competent-"Not removable from his appointment without the
sanction
of
Government"-Meaning
of-The Public
Servants
(Inquiries) Act, 1850, s. 2.
The appellant joined the Indian Civil Service in 1938 and
after serving in other capacities was employed under the Punjab
Government since 1948. On May 26, 1961, an enquiry was started
against him by the Punjab Government under s. 2 of the Public
Servant (Inquiries) Act, 1850. He filed a petition in the Punjab
High Court under Article 226 of the Constitution challenging the
validity of the order of the Punjab Government but his petition was
dismissed.
He came to this Court by special leave.
-
...
-
-
4 S.C.R.
SUPREME COURT REPORTS
225
During the hearing of the appeal a question arose whether
the Government of the State of Punjab was competent to order
the enquiry against the appellant under s. 2 of the Public Servants
{Inquiries) Act, 1850. The Bench hearing the appeal was of the
opinion that s. 2 required three conditions to be satisfied before
a formal and public enquiry could be ordered. The first condition
was that the Government should be of opinion that there were
good grounds for making such a formal and public enquiry. The
second condition was that the enquiry could be directed by the
Government against a servant in the service of that Governmenr
The third condition was that the person should not be removable
from his appointment without the sanction of that Government.
The Bench held that the first two conditions were satisfied in the
present case.
As regards the third condition, the Bench referred
to a larger Bench the question as to the mt:aning of the following
words in section 2 of the Inquiries Act: "not removable from his
appointment without the sanction of the Government."
Held by Das Acting C. J., Gajendragadkar, Sarkar, Hidayatullah, JJ. {Wanchoo, Das Gupta and Ayyangar JJ. dissenting) that
the third condition in s. 2 of the Public Servants (Inquiries) Act,
1850 was also satisfied in this case.
Per, Das, Acting C. J., Gajendragadkar, Sarkar and Hidayatullah, JJ: Section 23 of the Act furnishes the key to find out which
Government is to hold the inquiry. Where the officer is in the service of a particular Government and is also employed under it the
position is clear. When Officers in the service of the Central Government are deputed to States and vice versa and while they are on such
deputation, they are "employed under" the Government to which
they are deputed.
If by "employed under" in s. 2 were meant
"in the service of", s. 23 of the Public Servants (Inquiries) Act,
1850, would hardly be needed. If an officer is in the service of
the Central Government and
is
also serving with the Central
Government, the State Government cannot possibly hold an enquiry.
The same is true of officers in the service of the State
Governments and serving with the State Governments.
In their
case the Central Government can have no hold. It is only when
th~re is ~n exchange of officers between Governments that questions
anse which Government should make the enquiry and the test is
that it is the Government under which the officer is employed at the
time. The expression "in the service of that Government" in s. 2
is the equivalent of "employed under Lhat Government" in the con~
text where it occurs.
The word "appointment" can only mean a 'post', 'station' or
'office' and not the \vhole service as such. Removal cannot be the
equivalent of loss of service but the loss of post, station or office.
~ect~on, 2 i~ inte,nded
to
apply only to an officer whose 'post',
station or office can only be lost under orders of the appropriate
Government. and not any lesser authority. In this sense, the action
of the Pun1ab Government was clearly within its power.
The
1963
R. P. Kapur
••
Pratap Singh
Kairon and
Others
1963
R. P. Kapur
Y.
Pratap Singh
Kairan and
Others
226
SUPREME COURT REPORTS
[1%4]
key furnished by s. 23 must be read into s. 2 and the section then
construed. To construe the Act in the manner suggested by the ap--
pellant would really mean that in respect of I.C.S. or other such
officers serving with the State Governments, there cannot be any
enquiry by the Central Government because
they are employed
under the State Governments, and no enquiry by the State Governments because they are not removable from service in thi limited
sense by the State Governments. The same difficulty would arise in
respect of State emplqyees serving with the Central Government or
State Governments other than their own.
Per Sarkar /.-Doubted the correctness of the view expressed
in Sardar Kapur Singh v. Union of India [1960] 2 S.C.R. 569
as to the meaning of the word "Government" in s. 2 of the
Act but as the question referred was based on that view, its correctness could not be disputed in the reference.
Per, Wanchoo, Das Gupta and Ayyangar !l.
Held, that the Government of the Punjab is not the appr<>-
priate Government vested with powers to direct an enquiry under
the Public Servants (Inquries) Act, 1850, against the appellant.
The terms of s. 23 have to be read in each of the three
places where the word "the Government" occur in s. 2.
"The
Government" when it ·occures first in s. 2 would mean only the
State of Punjab in which the appellant is employed. Where "the
Government" occurs for the second time, it also means the Punjab Government. As regards the use of the expression "the Government" for the 1 third time in the phrase "not removable from his
appointment without the sanction of the Government", the only
meaning which could reasonably be attributed would be that it
is that Government which is competent to terminate his employment.
The State of Punjab
is
not the Government which is
capable of removing the appellant from his appointment.
Hence,
it is clear that the third condition is not satisfied.
The condition that the officer against whom proceedings are
taken must be one who is amenable to the disciplinary control of
the Government which initiates the enquiry and is competent to
inflict upon him the punishment of removal has been the basic
ratio and purpose of the Act of 1850 ever since it was enacted.
The change effected by the amendment brought in 1897 retained
this characteristic, though it gave an over-riding power to the
Governor General to initiate proceedings in all cases whether or
not the officer was serving a Local Government Or the Central
Government.
It could not therefore
be
that by reason of the
Adaptation Order under the Government of India Act, 1935, a
vital change was made which upset this basic feature and conferred a power upon
a
Provincial Government to institute an
enquiry even when such
a
Government had not the power to
punish him by way of removal.
·.
_ _,,,
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-
'
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,
4 S.C.R.
SUPREME COURT REPORTS
227
Sardar Kapur Singh v. The Union of India, [1960] 2 S.C.R.
569; lmperatrix v. Bhagwan Devraj, I.L.R. 4 Born. 357; Angelo
v. Kandan Manjhi, 41 Criminal Law Journal 221; Herron v.
Rathmines, [1892] A.C. 498; Assam
Railwavs and Trading Co.
Ltd. v. Inland Revenue Commissioners, [ 1935] A.C. 445; Millar
v. Taylor, (1769) 4 Burr. 2303 and R. v. Hertford College, (1878)
3 Q.B.D. 693, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 75 of
1963.
On reference to larger bench in Appeal by Special
Leave from the Judgment and Decree dated August 9,
1961 of the Punjab High Court in Civil Writ No. 954 of
1%1.
The appellant appe<ared in person.
M.C. Setalvad, S.M. Sikri, N.S. Bindra and P.D.
Menon for the respondents.
ORDER OF REFERENCE
The following Order of the Court was delivered by
AYYANGAR J.-The appellant-R. P. Kapur was appointed
to the Indian Civil Service in or about 1938. He continued in the service after independence and has, since 1948,
been in the service of the Government of Punjab. While
so, on May 26, 1%1 an order was made in the name
of the Governor of Punjab directing an inquiry against
the appellant under the Public Servants
(Inquiries)
Act, 1850. The appellant challenged the validity of
this order in a petition that he filed in the High Court of
Punjab under Art. 226 of the Constitution and when that
was dismissed he has preferred this appeal with the
special leave of this Court. This appeal was heard by
us in the second week of February, 1%3 and judgment was reserved on the 13th of that month. Several
points of law and fact were canvassed in the appeal and
those will be dealt with in the judgment to be pronounced.
There was one point, however, which did arise on the
case but was not fully argued and that related to the proper construction and legal effect of s. 2 of the Public Servants (Inquiries) Act, 1850 which, as it now stands reads :
"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
1963
R. P. KafJ#r
v.
Pratap Singh
Ktziron and
Others
Ayyangar /.
1963
R. P. Kapur
v.
Pratap Singh
Kairon aruJ
Others
Ayyangar /.
228
SUPREME COURT REPORTS
[1964]
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."
The question we are referring to is whether the Government of the State of the Punjab was competent
to make the impugned order against the appellant under
this provision on its terms. That question might be formulated in these terms: Under s. 2 there are three conditions which have to be satisfied before a formal and public inquiry might be directed to be made into the truth
of the imputations of misbehaviour. They are: (1) the
Government should be of opinion that there are good
grounds for making such a formal and public inquiry.
We have heard full arguments on the question as to
whether this condition has or has not been satisfied
and it is not necessary tn say anything more about it
now.
(2) The inquiry can be directed
under s. 2 by
the Government only against a person in the service of
that Government.
It is obvious that this condition is
satisfied and there was no argument raised in regard to
it and the decision of this Court in Sardar Kapur Singh
v. The Union of India(') furnishes a complete answer to
any contentio11 that this condition is not satisfied in the
present case. (3) The third and the last condition is that
the person is "removable from his appointment by or with
the sanction of that Government". We are stating here in
positive terms what occurs in the section in negative terms.
One pos.sible construction of this prov1s10n would be
that the officer against whom the inquiry is being directed should be capable of being dismissed or removed from service by that Government which is authorised to direct the inquiry. Another interpretation might
be that the condition of "removability" only relates to
removability from the office which the officer holds for
the time being. We are not expressing any opinion as
to which of these is the correct view that could be taken
of this provision, but we are merely pointing out that the
former is one possible construction. If that construction,
( 1) [1960] 2 S.C.R. 569.
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-
..
4 S.C.R.
SUPREME COURT REPORTS
229
however, be right it would be apparent that the appellant who could not be dismissed or removed from service
except by the Government of India, would not fall
within those words and consequently he would not be
a public servant against whom the State Government
of the Punjab could initiate these proceedings.
During the course of the arguments a query was raised as to whether the third condition we have mentioned
earlier was -satified or not but it was assumed that this
point had been considered and decided by this Court in
its decision in Sardar Kapur Singh v. The Union of
India(').
On further examination, however, it appears
to us that this particular point about the third condition
was not the subject of express consideration by this Court
on that occasion, for when one looks at the first of the
grounds urged by Counsel which is set out on page 576 of
the report it reads :
"That the inquiry could not be directed by the Punjab Government as the appellant was a member of the
Indian Civil Service and was not employed under the
Government of East Punjab."
As would be seen, this is the second point which we
have set out earlier and this was answered by reference
to s. 23 of the Public Servants (Inquiries) Act, 1850, but
the third point which we have formulated earlier does
not appear to have been the subject of express consideration or decision in that case. Since, however, that decision states and proceeds on the basis of all the requirements of s. 2 of the Act having been satisfied, we feel it
would not be proper for us to hear arguments on this aspect of the provision.
The point is an important one and its decision is vital
for disposing of this appeal.
We, therefore, propose to
place the case before the Hon'ble the Chief Justice for a
reference being made to a larger Bench for considering
the question as to the meaning of the words "not rem<>-
vable from his appointment without the sanction of the
Government" occurring in s. 2 of the Public Servants (Inquiries) Act, 1850.
The following Opinions of the Court were delivered by
HmAYATULLAH J. (on behalf of S. K. DAs, Acting C.J.,
(') [1960] 2 S.C.R. 569.
1963
R. P. Kapur
v.
Pratap Singh
Kaironand
Otkors
Ayyangar {.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah ].
230
SUPREME COURT REPORTS
(1964]
P. B. GAJENDRAGADKAR J. and himself).-The appellant
.. Mr. R. P. Kapur, joined the Indi<ll! Civil Service in 1938,
and after serving in other capacities was employed under
Punjab Government since 1948. On May 26, 1%1, an inquiry was started against him by the Punjab Government
under s. 2 of the Public Servants ·(Inquiries) Act, 1850.
He filed a petition in the High Court of Punjab under
Art. 226 of the Constitution impugning the validity of the
order of the Punjab Government, but his petition was dismissed. He has now appealed by special leave. During
the hearing of the present appeal on an earlier occasion
before another Bench, a question arose whether the Government of the State of Punjab was competent to order
the inquiry against the appellant under s. 2 of the Inquiries
Act. The Bench made this reference for the elucidation of
the meaning' of certain words in s. 2 of the Inquiries Act,
which has been placed before this Bench.
In the Order of Reference, it is observed that s. 2
requires three conditions to be satisfied before a formal
and public inquiry can be ordered, and they are :
( l) The Government should be of opinion that there
are good grounds for making such a formal and
public inquiry ;
(2) The inquiry can be directed under that section by
the Government against a person in the service
of that Government ;
(3) The person should not be removable from his appointment without the sanction of the Government.
The Order of Reference states that the earlier Bench
has heard full arguments in regard to the first condition
and the decision on that part of the case will be given in
due course.
Next, it states that the Bench considers
that the second condition is satisfied as held in an earlier decision of this Court reported in Sardar Kapur
Singh v. Union of India('). The Bench apparently feels
no difficulty about the first two conditions requisite for the
application of the section.
The Bench, however, is of the view that the words of
s. 2 reproduced in the third condition are susceptible of
( 1)
[1960] 2 S.C.R. 569.
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-
...,
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•
4 S.C.R.
SUPREME COURT REPORTS
231
different meanings. The Order of Reference states :
"One possible construction . . . . . . . . would be that the
Officer against whom the inquiry is being directed
should be capable of being dismissed or removed
from service by that Government which is authorized
to direct the inquiry. Another interpretation might
be that the condition of 'removability' only relates to
removability from office which the officer holds for the
time being."
The Order of Reference goes on to point out that if
the section means the first, then, as the appellant was
removable from service only by the Government of India
(that is to say, the President), the Punjab Government
could not initiate the present proceedings. According to
the Order of Reference, the second condition alone was
considered
in Kapur Singh's case('), while applying s. 23 of the Act, and condition No. 3 was overlooked.
The Order of Reference thus states :
"Since, however, that decision states and proceeds on
the basis of all the requirements of s. 2 of the Act
having been satisfied, we feel it would not be proper
for us to hear arguments on this aspect of the provi-
.
"
srnn.
Accordingly the Bench has referred the question as to
the meaning of the following words in s. 2 of the Inquiries Act :
"not removable from his appointment without the
sanction of the Government."
We are only concerned with the preamble and sections
2 and 23 of the Inquiries Act. We shall presently set
out these provisions of the Public Servants (Inquiries)
Act, 1850, as they exist today.
The original Act was
amended in 1897 by the Public Servants (Inquiries) Act;
1897 (1 of 1897), which supplied the present short title of
the Act and effected some amendments. Later, certain
other amendments were made and s. 23 was recast. In
1937, the Government of India (Adaptation of Indian
Laws) Order, 1937, while making certain adaptations in
the text of a formal nature, substituted another section in
place of the existing s. 23. Further adaptations were made
(1) [1960] 2 S.C.R. 569.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Othm
Hidayatullah /.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah /.
232
SUPREME COURT REPORTS
[1%4]
by the Adaptation of Laws Order, 1950, but they were of
a formal nature.
We shall now set out the relevant parts of the Inquiries Act as they were from time to time :
As in 1850
1.
For regulating inquiries into the behaviour of Public Servants.
Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public
servants not removable without the sanction of
Government, and to make the
same uniform
throughout the territories under the Government
of the East India Company, it is enacted as follows:
2. When Government consider public enquiry into
the conduct of any of its officers necessary, distinct Articles of Charge shall be drawn out.-
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 East India Company not removable from
his office without the sanction of the same Government, it shall cause the substance of the imputations to be drawn into distinct Articles of
Charge, and shall order a formal public inquiry
to be made into the truth thereof.
3 to 22 .....
23. Interpretation of the word 'Governmenf.-The
word 'Government' ·as used in this Act means the
Governor-General in Council, the Governor or
Deputy Governor of t.he Presidency of Fort William in Bengal, the Governor in Council of the
Presidencies of Fort St. George and Bombay, respectively, and the Lieutenant-Governor of the
North-Wes tern Provinces of Bengal, whose sanction is necessary for the removal of the person ac- ·
cused.
In 1897, these provisions of the Inquiries Act were
amended in three respects, and they were :
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•
-
!
•
4 S.C.R.
SUPREME COURT REPORTS
233
(i) In the preamble, the word 'India' was substituted for the words 'the East India Company',
(ii) The marginal note to s. 2 was changed to:
"Articles of charge to be drawn out for public
inquiry into conduct of certain public Servants",
but no change in the text of the section was made,
and
(iii) Section 23 was replaced by the following section :
23. Powers of Government under this Act by whom
exercisable.-The powers of the Government under this Act may in all cases be exercised by the
, Governor-General in Council, and when the person accused can be removed from his appointment
by the Local Government, those powers may also
b~ exercised by the Local Government.
In 1937, the Adaptation Order replaced the above s. 23
by the following :
"23. Definition of Government,-In this Act, 'the
Government' means the Central Government in
the case of persons employed under that Government and the Provincial Government in the case
of persons employed under that Government."
It also substituted the word 'may' for the word "shall"
in two places in s. 2.
The corresponding provisions of the Act, as they finally stand today after adaptations in 1950 may now be set
~:
~c
"The Public Servants (Inquiries) Act, 1850 (37 of
1850).
(1st November, 1850)."
For regulating inquiries into the behaviour of Public
Servants.
WHEREAS It is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without
the sanction of Government and to make the same uniform throughout India, it is enacted as follows :-
1.
2. '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 ser16- 2 $. C. India/64
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah /.
.· '
/
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah /.
234
SUPREME COURT REPORTS
[1964]
vice of the Government, nor 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,
anrl may order a formal and public inquiry to be
made into the truth thereof.
3-22.
23. In this Act, 'the Government' means the Central
Government in the case. of persons employed under that Government and the State Government
in the case of persons employed under that Government.
24 to 25 ....
It will be seen from the preamble that ever since 1850,
the intention was that there should be an uniform law
for regulating inquiries into the
behaviour of public
servants not removable without the sanction of Government and the inquiry was to be made either by the Central Government or by the Governments of the Presiden··
cies (later, of the Provinces and now of the States) and
the provisions of sections 2 and 23 between them pointed
out which Government it was to be. At every stage of
the Inquiries Act 1850, right from the beginning till today, there has always been a key to the solution of the
question which Government should take action and it has
not been necessary to go to other statutes.
In this case, the short question that has arisen is whether the words 'removable' from· his 'appointment' indicate 'removable from service' or merely 'removable from
the appointment in the sense of office or post held by the
officer' ? The solution of this problem must depend primarily upon the language of the Act itself and the interrelation between sections 2 and 23 with such legitimate
assistance to construction from any other source as we can
get.
The Inquiries Act was not the first of its kind. It was
preceded by other Acts in the Presidencies and they 'provided for inquiries into the conduct of public servants.
The argument shortly is that the words 'remove' and 'removable' have come to acquire a special meaning and
have frequently been used in statutes dealing with disciplinary actions against public servants in connection
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with the termination of services only and that they have
been so used in the Inquiries Act.
Examples were
cited to us from. other statutes and rules both past and
present to illustrate the use of the words in this restricted sense and it is contended that viewed historically,
the word 'remove' must be interpreted as denoting an
action resulting in loss of service. In this connection,
much is made of the history of such enactments and the
phrases used in them some of whom are not the phrases
we have to interpret. We shall briefly touch upon this history.
The Inquiries Act, 1850, replaced three statutes operating respectively in Bengal, Madras and Bombay. They
were Regulation 26 of 1839 (Bengal), Act XIII of 1843
(Madras) and Act VI of 1838 (Bombay). These three
legislative measures followed the same pattern and used
almost identical language.
Even these three measures
were not the first of the statutes of this kind. They were
also preceded by other legislative measures which they
replaced.
In these older statutes, the language employed was different. Thus, Regulation 13 of 1793 of Bengal
used the phrase 'offender incapable of serving Government
in any capacity', Regulation V of 1803, the phrase 'remove
from his service' and Regulation 8 of 1806, the phrases
'to be continued in the employment of the Company' and
'dismission from office'.
The emphasis no doubt was
largely upon termination of service but then the power
was exercisable centrally.
When the three Presidencies
had their own legislative measures to which we have
referred in this paragraph earlier, those measures were
to apply to covenanted servants of the Company who
were not capable of being dismissed except by the Court
of Directors.
The provisions of these Acts enjoined
the Courts to refer cases of officers 'not removable
without sanction of Government' to the Governor whenever a formal inquiry into an imputation of official misconduct was necessary. The Acts, however, were meant
for the three Presidencies respectively and did not lay down
any method by definition or otherwise to distinguish
between the Central Government and the Governments
of the Presidencies, or to discover which of the Governments should order the inquiry. Such a provision appear1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah f.
'
/
1963
R. P. Kapur
...
Pratap Sinzh
Kairon and
Other1
Hidayatullah J.
236
SUPREME COURT REPORTS
[1964)
ed for the first time in the Inquiries Act, 1850, and the
earlier enactments do not help in interpreting its terms
because from the very beginning it contained its own key
and extraneous aid was not necessary. The earlier Acts
might have used sometimes the word 'remove' to denote
'removal from service' but it is interesting to note that in
s. 30 of the Government of India Act, 1858 (21 and 22
Viet. Ch. 106) the text of which is given in the foot-note(*)
the word 'removed' was used not only in connection
with the termination of service as such but also in
connection with 'stations' and 'offices', thus showing
that the word was not confined to the inflexible use which
is suggested.
There is no doubt that the word 'remove' has been
used time and again in statutes and rules as meaning
'termination of service' but that is not the only use. In
the Government of India Act, 1858, it was definitely
used in a modified sense. There is thus nothing which
fixes its use or meaning or robs it of the various shades of
meaning it possesses. Our task is not to read a particular meaning into the Inquiries Act and then to construe
it. Our task is to see which meaning emerges on a proper interpretation of the Act as a whole.
The original Inquiries Act as also the amendments
made in it from time to time was designed to bifurcate
the power of inquiry between the Central Government and
the local Governments and the word "remove" simpliciter which might have had the restricted meaning was never so used. It was first qualified by the words 'from
office' and is now qualified by the words 'from his appoint-
*Section 30:-All Appointn1ents to Offices, Commands, and
Employ1nent in India and all Promotions, \vhich by Law or under
any Regulation, Usage, or Custom, are now made by any Authorjty in India, shall continue to be made in India by the like Authority, and subject to the Qualifications, Conditions, and Restrictions
DO\V affecting such Appointments respectively; but the Secretary of
State in Council shall have the like Power to 1nake Regulations for
the Division and Distribution of Partonage and Po\ver of Nomination among the several Authorities in India, and the like Power
of restoring to their Stations, Offices, or Employments, Officers
and Servants suspended or removed by any Authority in India as
might have been exercised by the said Court of Directors, with
the Approbation of the Commissioners
for
the said Affairs of
India, if this Act had not been passed.
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ment'.
The word 'remove' cannot therefore be defined
without the qualifying words. We have thus to discover
the meaning not of the word 'remove' but of whole phra-
'
f
ffi ,
d '
f
.
,
ses remove rom o ce an
remove rom appomtments .
The words are not 'remove from service' and never
have been, and it is difficult to imagine that this simple
phrase would not have occurred to persons wishing to
convey that sense. As a different phrase is used and a
key furnished, we must construe the phrase 'removable
from his appointment' occurring in the second section
of the Inquiries Act with the help of the key. The preamble also uses the same expression but it will obviously bear the same meaning. Now the key furnished
by s. 23 is merely a definition of the words 'the Government' wherever used in the Inquiries Act. In the preamble, the word 'Government' is used without the definite
article as again in s. 25. These refer generally to Governments whether Central or State without seeking to make
a distinction between them as stated in the key.
In
the sections where the expression used is 'the Government', the intention is to make a selection between Governments and only that Government is meant which answers
the definition in s. 23.
The definition in s. 23 says that 'the Government'
in the inquiries Act means the Central Government if the
public officer is employed under the Central Government,
and the State Government if the public officer is employed under the State Government.
There is in this
way a clear division of all officers likely to be affected
by the Inquiries Act into two classes depending upon their
employment at the time the inquiry is commenced. The
division is rested nqt upon service but upon employment
because the expression is not 'in the service of' or even
'in the employment of' but the less forcefull one, 'employed under'. It is common knowledge that officers in
the service of the Central Government are deputed to the
States and vice versa, and while they are on such deputation, they are 'employed under' the Government to
which they are deputed. If by 'employed under' were
meant 'in the service of', the definition in s. 23 would
hardly be needed. If an officer is in the service of, say
the Central Government and is also serving with the
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah /.
1963
R. P. Kapur
v.
Pratap Singh
Kairon ant)
Others
Hidayatullah /.
238
SUPREME COURT REPORTS
[1964]
Central Government, the State Government cannot possibly hold an inquiry. The same is true of officers in the service of the State Governments ·and serving with the
State Governments.
In their case the Central Government can have no hold. It is only when there is an exchange of officers between Governments that a question
arises which Government should make the inquiry, and the
test furnished by the key is that it is the Government under which the officer is employed at the time.
It was held in Sardar Kapur Singh's case(') that
he was 'employed under' the Government of Punjab. No
contention was raised in this case that the present appellant was not 'employed under' the Punjab Government. Point No. 2 in the Order of Reference summarized
by us above is :
"(2) The inquiry can be directed under that section
(sec. 2) against a person in the service of that Government."
The expression 'in the service of that Government' is
apparently the equivalent of 'employed under that Government'.
In the Order of Reference in respect of the
second point, it is observed :
"It is obvipus that this condition is satisfied and there
was no argument raised in regard to it and the 9ecision
of this court in Sardar Kapur Singh v. Union of India furnishes a complete answer to any contention that
this condition is not satisfied."
It follows, therefore, that the definition in s. 23 applies to the present appellant's case and the Government
under which he is employed is the Government holding
the inquiry. This point is not only concluded by the earlier decision of this Court but is expressly withdrawn from
the Reference made to us.
We have now to read the key and its answer into
s. 2. That secetion uses the expression 'the Government'
in three places and each of these places we shall read the
Government under which the officer is employed. So read
and paraphrased, s. 2 would read something like this :
"Whenever a Government under which an officer is
employed shall be of opinion that there are good
grounds for making a formal and public inquiry into
( 1)
[1960] 2 S.C.R. 569.
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the truth of any imputation of misbehaviour by an
officer in the service of the Government under which
he is employed which officer is not removable from his
appointment without the sanction of the Government
under which he is employed, 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."
The force of the definition must find place in all the
three places where the expression 'the Government' has
been used. In the section as expanded by us, the words
'in the service of' in the expression 'in the service of
the Government under which he is employed' or in the
original expression 'in the service of the Government',
mean 'while serving with' and do not convey the sense
of 'employment by'. The word "appointment" can thus
only mean a 'post', 'station' or 'office' and not the whole
service as such.
Removal, therefore, cannot be the equivalent of loss of service but the loss of 'post', 'station'
or 'office'.
Section 2 is intended to apply only to an
officer whose 'post', 'station' or 'office' can only be lost
under orders of appropriate Government and not any lesser authority.
In this sense, the action of the Punjab Government was clearly
exercisable in this case.
To
construe the Act in the manner suggested would really
mean that in respect of I.C.S. or other such officers serving with the State Governments, there cannot be any inquiry by the Central Government, because they are employed under the State Governments, and no inquiry by
the State Governments because they are not removable
from service in the limited sense by the State Governments. The same difficulty would arise in respect of State
employees serving under the Central Government or
State Governments other than their own.
To be able
to say that the inquiry could be made by the other
Government, one would have to discard altogether s. 23
as a key and the interpretation placed on the section by this
court in Sardar Kapur Singh's case(').
In our opinion, the third condition in s. 2 is also
satisfied in this case.
SARKAR J .-On the Or? er of Reference made in this
(') [1960] 2 S.C.R. 569.
1963
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Hidayatullah f.
1~63
R. P. Kapur
v.
Pratap Singh
Kairon and
Others
Sarkar f.
Ayyangar f.
240
SUPREME COURT REPORTS
(1964]
case I am inclined to agree with the view to be expressed
by my brother Hidayatullah. That Order proceeds on the
basis that the view expressed in Sartkr Kapur Singh v. The
Union of India(') that the word "Government" in the
expression "in the service of the Government" in s.
2 of the Public Servants ((Inquiries) Act, 1850, means
the Government under which the officer concerned is
at the time when the order for inquiry is made holding an office, is correct. I have some doubt as to the
correctness of this view.
It seems to me that it might
well be that the word "Government" there means the
Government which originally appointed the officer and
whose servant he still continues to be though his services
might have been lent to another authority.
If this is
the correct view, then much of the difficulty that has been
felt in this case would disappear and in that case I would
have answered the question referred. to this bench in a
way different from what I am now inclined to do. The
question however whether the decision in Sardar Kapur
Singh's case(') is right or not, does not arise in the present case and cannot be gone into. For the purpose of this
Reference that decision has to be accepted as correct. On
that basis I find the view expressed by Hidayatullah J.,
preferable and I agree with it.
AvvANGAR J.( on behalf of K. N. W ANcHoo, K. C. DAs
GUPTA JJ. and himself) : The question referred to this
Bench relates to the proper Construction of s. 2 of the
Public Servants (Inquiries) Act, 1850 (which for conveni~nce we shall refer to as the Act) and in particular of
the words "any person in the service of the Government
not removable from his appointment without the sanction
of the Government", occurring in it. The circumstances
in which the reference came to be made are set out in a
short order by the referring Bench.
[The Order of Reference extracted here is omitted. Ed.]
Adopting the phraseology used in the Order of Reference
the question to be answered is whether the third condition
set out in it is satisfied viz., whether the Government of
the Punjab is the appropriate Government vested with
power to direct an inquiry under the Act against the appellant.
In the Order of Reference two alternative construc-
( 1) [1960J 2 S.C.R. 569.
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tions of the expression 'not removable from appointment'
were suggested and we have now to determine which of
them is correct. The submission of Mr. Setalvad appearing for the respondent-State was that the word 'removable'
in the context meant not termination of employment as
ordinarily understood but a reference to a power to transfer the officer from one appointment or post held by him
to another, i.e., co"1petent to impose punishment by way
of a reduction in rank. The submission of the appellant
who argued his case in person, however, was that 'removable' in the context of its being a removal by way of punishment was a reference to "removal" as known to the Service
Rules viz., a removal from the office altogether i.e., virtually
a dismissal of the incumbent.