# R.P. Kapur v. Union of India

- **Citation:** [1964] 5 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1963-11-19
- **Case number:** Civil Appeal No. 647 of 1963
- **Bench:** P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo, J.C. Shah, Raghubar Dyal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-p-kapur-v-union-of-india-2986
- **Pages:** 50

## Headnote

Civil Service-Member of former Secretary of State's Service
suspended by Governor pending criminal proceeding-Validity
of order-Rule, if ultra vires-A// India Services (Discipline
and Appeal)
Rules,
1955,
r.7-Constitution of India,
Art.
314-Government of India
Act,
1935,
ss.241,
247-Civil
Services (Classification, Control and Appeal) Rules, rr. 49, 56Fundamental Rules, r.53-Indian Administrative Service (Recruitment) Rules. 1954, r.3-India, (Provisional Constitution) Order,
1947, Art.7(1).-Indian Independence Act, 1947, s. 10
The appellant joined the Indian Civil Service in 1939 and was
posted in the province of Madras. After the transfer of power
under the Indian Independence Act on August 15,1947, he was
Shah J.
1963
November 19
1963
R.P. Kapur
v.
Union of India
and A.nr.
432
SUPREME COURT REPORTS
[1964]
transferred to the Punjab and later when the Indian Administrative
Service was constituted he became its member.
On July 18,
1959, he was suspended by the Governor of the State of Punjab
under r. 7(3) of the Indian Services (Discipline and Appeal) Rules,
1955, on the ground that a criminal case was pending against
him. He challenged the order of suspension by a writ petition
in the Punjab High Court as being violative of the guarantee contained in Art. 314 of the Constitution and contrary to r. 49 of the
Civil Services (Classification, Control and Appeal) Rules which
provided only for suspension as a penalty.
His case was that
there was no provision immediately before January 26,
1950,
that provided for suspension otherwise than as penalty. The
High Court dismissed the petition.
\
\
He/d:-{per Gajendragadkar, Subba Rao, Wanchoo and
Shah, JJ). The general law of master and servant and s. 247 of
the Government of India Act, r. 53 of the Fundamental Rules and
rr. 49, 56 of the Civil Services (Classification, Control and Appeal)
Rules, read together clearly show that members of the former
Secretary of State's Services were on August 14, 1947, liable to
suspension either as an interim measure or as a punishment. Interim
suspension could be imposed either by the Secretary of State as
the appointing authority or the Governor-General or the Governor,
as the case might be, as the statutory authority.
Management of Hotel Imperial, New Delhi v Hotel Workers'
Union, [1960] 1 S.C.R. 476 and T. Cajee v. U. Jormanik Siem,
[1961] 1 S.C.R. 750, referred to.
It was not therefore correct to say that there could be no
suspension except by way of punishment under r.49 of the Appeal
Rules before 1947. In a case of interim suspension before 1947
•
there was however no right of appeal.
~
Article 314 of the Constitution, properly construed, affords
such protection to the members of the Secretary of State's
Services as they were entitled to immediately before the commencement of the Constitution. There can be no doubt that suspension
pending a departmental enquiry or a criminal proceeding falls
within the word 'disciplinary matters' used in that Article.
It was not correct to say that as independence was conferred
on India and the Services automatically terminated, there was
in law reappointment of all the former Secretary of State's Services,
"
and those serving in a province must be deemed to have been
reappointed by the Governor and that, consequently, the Governor
as the appointing authority had the power to order suspension.
Article 7(1) of India (Provisional Constitution) Order, 1947,
G.G.O. 14, read with s. IO of the Independence Act, 1947, in
the light of other relevant circumstances shows that the final decision whether or not the former members of the Secretary of
..
State's Services should continue was of the Government of India .-
. and that Government, therefore, must be deemed to have appointed
•
\
t
5 S.C.R.
SUPREME COURT REPORTS
433
them to posts either under itself or in the Provinces. Section
24l(b) of the Government oflndia Act, as it then stood, and s.240(2)
of the said Act, as amended by G.G.O. 14, could not alter this
position.

## Text

_Characters 0–39,993 of 108,710. This is a partial read: ask again with offset=39993 for what follows._

..
5 S.C.R.
SUPREME COURT REPORTS
431
'Castle' being separately assessed at Bombay in the
1963
status of a registered firm apparently refer to assess-
--
ment of that business in subsequent years and not Commissioner of
in the year of assessment 1951-52. The conclusion
Income-tax,
of the Tribunal
therefore suffers from a double
Punjab
infirmity: it assumes the only fact on which its conv.
clusion is founded and ignores other relevant matters Indian Woollen
on which the Appellate Assistant Commissioner reTextile Mills
lied in support of his conclusion. The Tribunal
has therefore misdirected itself in law in arriving at
its finding, and in refusing to require the Tribunal
to state the case and to refer it, the High Court was,
in our view, in error.
The appeal is therefore allowed and the proceedings are remanded to the High Court with a direction
to proceed according to law. Costs in this appeal
will be costs in the High Court.
Appeal allowed and Case
remanded.
R.P. KAPUR
v.
UNION OF INDIA AND ANR.
(P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N.
WANCHOO, J.C. SHAH AND RAGHUBAR DYAL, JJ.)
Civil Service-Member of former Secretary of State's Service
suspended by Governor pending criminal proceeding-Validity
of order-Rule, if ultra vires-A// India Services (Discipline
and Appeal)
Rules,
1955,
r.7-Constitution of India,
Art.
314-Government of India
Act,
1935,
ss.241,
247-Civil
Services (Classification, Control and Appeal) Rules, rr. 49, 56Fundamental Rules, r.53-Indian Administrative Service (Recruitment) Rules. 1954, r.3-India, (Provisional Constitution) Order,
1947, Art.7(1).-Indian Independence Act, 1947, s. 10
The appellant joined the Indian Civil Service in 1939 and was
posted in the province of Madras. After the transfer of power
under the Indian Independence Act on August 15,1947, he was
Shah J.
1963
November 19
1963
R.P. Kapur
v.
Union of India
and A.nr.
432
SUPREME COURT REPORTS
[1964]
transferred to the Punjab and later when the Indian Administrative
Service was constituted he became its member.
On July 18,
1959, he was suspended by the Governor of the State of Punjab
under r. 7(3) of the Indian Services (Discipline and Appeal) Rules,
1955, on the ground that a criminal case was pending against
him. He challenged the order of suspension by a writ petition
in the Punjab High Court as being violative of the guarantee contained in Art. 314 of the Constitution and contrary to r. 49 of the
Civil Services (Classification, Control and Appeal) Rules which
provided only for suspension as a penalty.
His case was that
there was no provision immediately before January 26,
1950,
that provided for suspension otherwise than as penalty. The
High Court dismissed the petition.
\
\
He/d:-{per Gajendragadkar, Subba Rao, Wanchoo and
Shah, JJ). The general law of master and servant and s. 247 of
the Government of India Act, r. 53 of the Fundamental Rules and
rr. 49, 56 of the Civil Services (Classification, Control and Appeal)
Rules, read together clearly show that members of the former
Secretary of State's Services were on August 14, 1947, liable to
suspension either as an interim measure or as a punishment. Interim
suspension could be imposed either by the Secretary of State as
the appointing authority or the Governor-General or the Governor,
as the case might be, as the statutory authority.
Management of Hotel Imperial, New Delhi v Hotel Workers'
Union, [1960] 1 S.C.R. 476 and T. Cajee v. U. Jormanik Siem,
[1961] 1 S.C.R. 750, referred to.
It was not therefore correct to say that there could be no
suspension except by way of punishment under r.49 of the Appeal
Rules before 1947. In a case of interim suspension before 1947
•
there was however no right of appeal.
~
Article 314 of the Constitution, properly construed, affords
such protection to the members of the Secretary of State's
Services as they were entitled to immediately before the commencement of the Constitution. There can be no doubt that suspension
pending a departmental enquiry or a criminal proceeding falls
within the word 'disciplinary matters' used in that Article.
It was not correct to say that as independence was conferred
on India and the Services automatically terminated, there was
in law reappointment of all the former Secretary of State's Services,
"
and those serving in a province must be deemed to have been
reappointed by the Governor and that, consequently, the Governor
as the appointing authority had the power to order suspension.
Article 7(1) of India (Provisional Constitution) Order, 1947,
G.G.O. 14, read with s. IO of the Independence Act, 1947, in
the light of other relevant circumstances shows that the final decision whether or not the former members of the Secretary of
..
State's Services should continue was of the Government of India .-
. and that Government, therefore, must be deemed to have appointed
•
\
t
5 S.C.R.
SUPREME COURT REPORTS
433
them to posts either under itself or in the Provinces. Section
24l(b) of the Government oflndia Act, as it then stood, and s.240(2)
of the said Act, as amended by G.G.O. 14, could not alter this
position.
State of Madras v. K.M. Rajagopalan, [1955] 2 S.C.R. 541,
referred to.
On the eve of the commencement of the Constitution i.e.
January 25, 1950, a former member of the Secretary of State's
Services could be suspended under the general law by the Government of India alone as the appointing authority as an interim
measure pending departmental enquiry or criminal proceeding
and by no other authority. He was liable to suspension as punishment under s. 49 of the Civil Services (Classification, Control
and Appeal) Rules. Rule 53 of the Fundamental Rules governed
pay during interim suspension or suspension as penalty. While
there was no appeal from an order of interim suspension, r. 56
of the Appeal Rules provided for an appeal from an order of suspension as penalty. It was this position which Art. 314 of the
Constitution sought to protect.
Rule 7 of the All India Services (Discipline and Appeal) Rules,
1955, violated the guarantee contained in Art. 314 in resp ct to
interim suspension and was to that extent ultra vires in so far as
it applied to the members of the Indian Administrative Services
who fell within els. (a) and (b) of r.3 of the Indian Administrative
Services (Recruitment) Rules, 1954. The Governor's Order under
r.7(3) directing interim suspension of the appellant must, therefore, be set aside. The proper procedure would be to approach
Government oflndia for such interim suspension.
The Accountant General, Bihar v. N. Bakshi, [1962] Supp.
I S.C.R. 505, referred to.
Per Dayal, J.-In view of the provisions of s. 241 of the Government of India Act as modified by the India (Provisional Constituion) Order, 1947, G.G.O. 14 of 1947, members of the Secretary
of State's Services who were holding posts under a provincial
Government immediately before the appointed day, i.e., August
15, 1947, and continued in service thereafter must be deemed
in view of art. 7(1) of the said Order to have been appointed to
the corresponding posts by the appropriate authority, the Governor
of the Province. That article generally applied to all appointments
on and after the appointed day. The appellant cannot be deemed
to have been appointed by the Governor-General or the Government
of India. It was not intended that merely because that Order
was made by the Governor-General, the deemed appointments
must be taken to have been made by him.
It would be anomalous to hold that the Governor, who was
in administrative control of the services, could not pass an interim
order of suspension against a person appointed by the Secretary
of State, though he could impose a penalty of suspension under
1/SCl/64-28
196.1
R.P. Kapur
v·.
Union of India
and ,for.
1963
R.P. Kapur
v.
Union OJ India
· and Anr.
434
SUPREME COURT REPORTS
[1964]
rr. 49 and 52 of the Civil Services (Classification, Control and Appeal) Rules, which continued in force till the All India Services
(Discipline and Appeal) Rules came into force in 1955.
The Indian Civil Services ceased to exist from August 15, 1947,
and the services of its members automaticaily terminated on August
14, 1947. The appellant's service, therefore, came to an end on
August 14, 1947, but since he was serving under the Madras Government immediately before August 15, 1947, and continued to do
so thereafter he must be deemed to have been appointed by the
Governor of Madras to the post he was holding on the appointed
day.
Rule 7 of the All India Services (Discipline and Appeal) Rules,
1955, does not violate the provision of Art. 314 of the Constitution,
nor can the absence of a right of appeal against interim suspension
do so since the appellant had none before the Constitution. His
suspension by the Governor of Punjab under r.7(3) was, therefore
valid.
State of Madras v. K.M. Rajagopalan, [1955) 2 S.C.R. S41,
considered.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 647 of 1963.
Appeal from the judgment and order dated
September 21, 1962, of the Punjab High Court in
Civil Writ No. 280 of 1962.
The appellant appeared in person.
S. V. Gupte, Additional Solicitor-General, N.S.
Bindra and R.H. Dhebar, for the respondent (Union of
India).
I
' I
S.M. Sikri, Adro<:ate-General, Puniab, N.S. Bindra t
and R.H. Dhebar, for the respondent (State of Punjab).
November 19, 1963. The Judgment of P.B.
•
Gajendragadkar, K. Subba Rao, K.N. Wanchoo and
..., -
J.C. Shah, JJ. was delivered by Wanchoo, J. Raghubar
Dyal, J. delivered a dissenting Opinion.
Wanchoo J.
WANCHOO J.-This is an appeal on a certificate
granted by the Punjab High Court. The appellant
joined the Indian Civil Service in 1939 and was governed
in matters relating to discipline by the Civil Services
....I
(Classification, Control and Appeal) Rules, (here-
-
inafter referred to as the Appeal Rules) made by
\
\
, .
5 S.C.R.
SUPREME COURT REPORTS
435
the Secretary of State for India in Council. He
continued in service till the transfer of power under
the Indian Independence Act, 1947.
Under s.10 of
that Act he continued to serve under the Government of India and was entitled to receive from the
Government of India or of the Province which he
might from time to time be serving the same conditions
of service as respects remuneration, leave and pension,
and the same rights as respects disciplinary matters
or, as the case may be, as respects the tenure of his
office, or rights as similar thereto as changed circumstances may permit as he was entitled to immediately before the transfer of power, which took place
on August 15, 1947. The same guarantee was extended to the appellant and all members of what
were the Secretary of State's Services before August 15,
1947 by Art. 314 of the Constitution. As the appellant's case is based on that Article we may set
it out:
"Except as otherwise expressly provided by this
Constitution, every person who having been
appointed by the Secretary of State or Secretary
of State in Council to a civil service of the Crown
in India continues on and after the commencement of this Constitution to serve under the
Government of India or of a State shall be entitled to receive from the Government of India
and the Government of the State, which he is
from time to time serving, the same conditions
of service as respects remuneration, leave and
pension, and the same rights
as
respects
disciplinary matters or rights as similar thereto as changed circumstances may permit as
that person was entitled to immediately before
such commencement."
We shall hereafter refer to such a person as
a member of the (former) Secretary of State's Services.
It appears that the appellant was in the Indian Civil
Service cadre in the State of Madras at the time of
transfer of power, though later he was transferred
to the Punjab. After the transfer of power the Indian
1963
R.P. Kapur
v.
Union of India
and Anr.
Wanchool.
1963
R.P. Kapur
v.
Union of India
and Anr.
Wanchoo J.
436
SUPREME COURT REPORTS
[1964]
Civil Service as a Secretary of State's Service came
to an end and thereafter a new Service was constituted known as the Indian i\dministrative Service.
Formal legal shape was given to the new Service
after the enactment of the All India Services Act,
No. LXI of 1951, and the Indian Administrative
Service (Recruitment) Rules, 1954, (hereinafter referred to as the Recruitment Rules) were framed
under Act LXI of 1951.
By r. 3 of these Rules, the
Indian Administrative Service was to consist of-
(a) members of the Indian Civil Service, not
permanently allotted to the judiciary;
(b) members of the Indian Civil Service permanently allotted to the judiciary who have
been holding executive posts from the date
of the commencement of the Constitution
and who may be declared by the Central
Government to be members of the Service
. in consultation with the State Government;
(c) persons who, at the commencement of these
rules, are holding substantively listed posts,
other than posts in the judiciary;
(d) persons recruited to the Service before the
commencement of these rules: and
( e) persons recruited to the Service in accordance
with the provisions of these rules.
The appellant thus became a member of the
new Indian Administrative Service by virtue of these
rules and continued to serve in the Punjab. In 1955,
the Central Government framed the All India Services
(Discipline and Appeal) Rules, 1955
(he:reinafter
referred to as the Discipline Rules) which were applicable to all members of the Indian Administrative
Service and the Indian Police Service.
On July 18, 1959, the appellant was suspended
with immediate effoct by the Governor of the Punjab
on the ground that a criminal case was pending against
him. The order also provided that for the period
of suspension the appellant shall be paid subsistence
J
111
'
\, 5 S.C.R.
SUPREME COURT REPORTS
437
allowance which shall be equal to leave salary which
he would have drawn under the leave rules applicable
to him if he bad been on leave on half average pay
with a further provision that in case the suspension
lasted for more than twelve months a further order
fixing the rate of subsistence allowance shall be passed. This order appears to have been passed under
r. 7(3) of the Discipline Rules and in consequence
thereof the appellant remained under suspension.
The appellant filed a writ petition in the Punjab
High Court on February 16, 1962, challenging this
order of suspension. His contention was that he
was entitled to the guarantee contained in Art. 314
of the Constitution and the order of suspension passed
against him violated that guarantee and was therefore ineffective and invalid. He relied for this purpose
on r. 49 of the Appeal Ru:es, which provided for
suspension as a penalty. He contended that the
Appeal Rules which governed him and which must
be held to have continued to govern him in view
of the guarantee contained in Art. 314 provided
for suspension as a penalty only and that there was
no provision anywhere in any rule or statute immediately before January 26, 1950 on which date the
Constitution came into force, providing for suspension otherwise than as a penalty. Therefore it
was not open to the Governor to suspend him in
the manner in which he did so in the present case,
though it was not denied that he could be suspended
pending criminal proceedings provided the suspension was as a penalty under r. 49 of the Appeal Rules;
on the other hand mere suspension pending a criminal
case not inflicted as a penalty was not provided
at all by the Rules or the statute governing the appellant immediately before January 26, 1950. Therefore when the Governor proceeded to suspend him
under r. 7{3) of the Discipline Rules, he violated
the guarantee contained in Art. 314. The appellant
also contends that as it was not open to any authority
to suspend him except as a punishment immediately
before January 26, 1950, r.7 of the Discipline Rules
1963
R. P. Kapur
v.
Union of India
and Anr.
Wanchoo J.
438
SUPREME COURT REPORTS
(1964] J
which provides for suspension during disciplinary
proceedings or during the pendency of a criminal
R. P. Kapur
charge insofar as it applies to him was ultra vires
v.
Art. 314 of the Constitution. He also attacked rr.3
1969
Union of India and l O of the Discipline Rules as violative of Art.
and Anr.
314 of the Constitution, r.3 being concerned with
penalties to be imposed on members of the Indian
Wanchoo J. Administrative Service and r.10 with the right of
appeal. The contention in this connection was that
r.3 omitte? the penalty of suspension ~hich was to
be found m r.49 of the Appeal Rules with the result
J
that suspension under r.7 was not open to appeal
under r.10 which provided for appeals against penaltie2 mentioned in r.3. Therefore the guarantee
under Art.314 was violated inasmuch as previously
whenever the penalty of suspension was inflicted
on a member of the Secretary of State's Services
it was open to him to appeal under r.56 of the Appeal
Rules. Therefore the scheme of the Discipline Rules
was such as to take away the protection to a member
of the Secretary of State's Service which was available to him· immediately before the Constitution
came into force and in consequence rr.3 and 10 also
violated the guarantee contained in Art. 314 and were
ultra vires. The appellant therefore prayed for an
;
appropriate writ, order or direction in the nature
~
of mandamus striking down rr.3,7 and IO of the Discipline Rules being violative of Art. 314 of the Constitution and also for an order striking down the order
of the Governor dated July 18, 1959, by which he
suspended the appellant and such other appropriate
relief as was just and proper.
The petition was opposed by the State of Punjab
and its main contention was that rr. 3,7 and 10 of
the Discipline Rules were perfectly valid and did not
violate the guarantee contained in Art.314. It was
r
./I
urged that Art. 314 only gave restricted protection to
the members of what were formerly the Secretary of
State's Services in respect of disciplinary matters and .....
stress was laid on the words "or rights as similar ,
thereto as changed circumstances may permit" appear-
\c
S S.C.R.
SUPREME COURT REPORTS
-439
l
'
l
ing therein. It was also urged that suspension pending
departmental en9uiry or pending a criminal case was
not the same thing as suspension by way of punishment and that previous to January 26, 1950, there
could be suspension pending departmental enquiry or
pending a criminal case and that no appeal lay from
such suspension even then. It was also urged that suspension pending a departmental enquiry or pending
a cirminal case was not a disciplinary matter at all
and was therefore not included within the sweep of
Art. 314 and in any case the rule relating to suspension even if it is connected with disciplinary matters
was liable to variation as changed circumstances might
demand and r.7 was framed in view of the changeed circumstances. It was also urged that removal
of suspension as a penalty under r. 3 could not affect
the guarantee contained in Art. 314, for the effect
of such removal was that there could be in future
no penalty of suspension against a member of the
Indian Administrative Service. Therefore as the penalty had gone r. 10 did not naturally provide for an
appeal against a penalty which did not exist. Rule
7 which provides for suspension does not provide
for any penalty and therefore there was no necessity
of providing for any appeal against it. It was urged
that a difference must be made between suspension
as a penalty and suspension as an interim measure
only pending a departmental enquiry or pending
a criminal case and if that difference was borne in
mind there was no reason for holding that rr.3 and
IO were ultra vires Art. 314. The respondent State
finally contended that the order of the Governor passed under r. 7(3) was perfectly valid and did not violate
the guarantee contained in Art. 314.
The High Court dismissed the petition. It was
of the view that it was inconceivable that under the
old rules prevailing before January 26, 1950, a civil
servant could never be suspended while an enquiry
into his conduct was pending. It was further of the
view that suspension during the pendency of an enquiry was a power inherent in an employer like the
1963
R.P. Kapur
v.
Union of India
and Anr.
WanchooJ.
440
SUPREME COURT REPORTS
[1964]
~
1963
Government and the power to suspend was always
implied in the authority making the appointment. The
R. P. Kapur High Court
therefore rejected
the
contention
v.
of the
appellant
that under the
old
rules
Union of India no member of the Secretary of State's Services could
and Anr.
have been suspended except by way of punishment.
The High Court further held that even if the contenWanchoo 1· tion of the appellant be accepted that a member of
the Secretary of State's Services had a right of appeal
even where he was suspended during a departmental
enquiry there was a provision in the Discipline Rules
for a memorial to the President (see r.20J and that
in the opinion of the High Court gave a right as
similar to the right existing before January 26, 1950,
as the changed circumstances permitted. The High
Court therefore dismissed the petition. The appellant
then applied for a certificate which was granted;
and that is how the matter has come up before us.
The only question that has been debated before
us is with respect to suspension whether as a punishment or otherwise of a member of one of the Secretary
of State's Services, in this case the Indian Civil Service, members of which have become members of
the Indian Administrative Service under the Recruitment Rules; and it is only this question that falls
to be determined in the present appeal. But the
appellant has also challenged rr .3 and 10 of the Discipline Rules which do not deal
with suspension
at all. In these circumstances we do not propose
to consider the vires of rr. 3 and I 0, for that does
not fall for decision as the order which is challenged
has not been made under r. 3 and relates only to
suspension. It is therefore unnecessary to decide
whether rr. 3 and 10 can in the changed circumstances apply to those members of the Indian Administrative Service who were at one time members of the
Indian Civil Service. We shall therefore express
no view one way or the other on the vires of r. 3 and
r. 10 and consider only r. 7 which deals with suspension. We should also like to make it clear that
what we say during the course of this judgmemt
.J
_, J
t
'
5 S.C.R.
SUPREME COURT REPORTS
441
with respect to suspenion refers only to those members of the Indian Administrative Service who became
members thereof under r. 3 (a) and (b) of the Recruitment Rules and not to other members of the
Indian Administrative Service who were not members
before 1947 of the Indian Civil Service, for it is only
the former kind of members of the Indian Administrative Service who are entitled to the protection of Art. 314 and the whole case of the appellant
is based on that protection.
Let us therefore tum to Art. 314 which we have
already set out above. This Article came to be
considered by this Court in the Accountant General
Bihar v. N. Bakshi(ll. In that case, however, that part
of it was considered which related to "conditions of
service as respects remuneration, leave and pension",
and it was held that r. 3 of the All India Services (Overseas Pay, passage and leave salary) Rules, 1957, was
ultra vires having regard to the guarantee contained
in Art.
314
of
the
Constitution. That case
is an authority for the proposition that where
any rule is framed, which is inconsistent with the
guarantee contained in Art. 314 with respect to remuneration, leave and pension, that rule would be
bad. In the present case we are concerned with another part of Art. 314, namely, "the same rights as
respects disciplinary matters or rights as similar
thereto as changed circumstances may permit as
that person was entitled to immediately before such
commencement". The same principle will apply to
this part of Art. 314 also and if any rule is framed
which goes against the guarantee contained in this
part of Art. 314 with respect to members of what
were former Secretary of State's Services, it will be bad.
What Art. 314 provides with respect to disciplinary
matters is that the members of the former Secretary
of State s Services who continue to serve under the
Government of India or of a State would be entitled
to the same rights as respects disciplinary matters
or rights as similar thereto as changed circumstances
(1) [1962] Supp. I. S.C.R. 505.
1963
R.P. Kapur
V.
Union of India
and Anr.
WanchooJ.
442
SUPREME COURT REPORTS
[1964)
'A
1963
may permit. Stress has been laid on behalf of the
respondent on the words "rights as similar thereto
R. P. Kapur as changed circumstances may permit", and it is
. v.
. urged that in view of these words it was open in the
Union °1 India "changed circumstances" to frame rules in partiand Anr ·
cular with respect to suspension pending departmental enquiry or pending criminal proceedings.
Wanchoo J.
These words in our opinion cannot bear this interpretation. What the words "changed circumstances"
mean is the change in circumstances due to transfer of power in August, 1947, and the coming into
force of the Constitution in January, 1950, and no
more. Therefore when Art. 314 speaks of "rights
as similar thereto as changed circumstances may
permit", it only means that a member of the former
Secretary of State's Services would have rights similar
to his pre-existing rights as the changed circumstances
resulting from constitutional changes may allow.
As an illustration take a case where a member of a
Secretary of State's Service could before August,
1947, be dismissed only by the Secretary of State;
but after the transfer of power and the coming into
force of the Constitution, circumstances have changed
and there is no Secretary of State, therefore
we have to look to the changed
circumstances and find out which would be the authority to dismiss such a member in the changed circumstances.
If we do so, we find that the Government of India
can be the only authority which now in the changed
circumstances will have the power to dismiss such
a member in the absence of a specific
provision
of law in force before January 26, 1950. These words
do not mean that as time passes circumstances change
and therefore new rules may be framed to meet the
new circumstances due to passage of time.
The
words "changed circumstances" in Art. 314 only
refer to the constitutional changes which occurred
after the transfer of power in August, 1947, and the
coming into force of the Constitution in January
1950. Further, Art. 314 provides that the protection
is limited only to those rights as to disciplinary matters which a member of the former Secretary of State's
---
t
,\
5 S.C.R.
SUPREME COURT REPORTS
443
Services was entitled to immediately before the commencement of the Constitution i.e. on January 25,
1950. It is only those rights which are protected
and no more.
Another ar~ent that is urged on behalf of
the respondent is that suspension pending a departmental enquiry or pending a criminal proceeding
cannot be said to be a disciplinary matter at all and
therefore the protection of Art. 314 does not extend
to such suspension. We cannot accept this argument.
The words "disciplinary matters" with which
we are concerned appear m a constitutional provision
and must be given their widest meaning consistent
with what disciplinary matters may reasonably include. Suspension is of two kinds, namely, as a
punishment, or as an interim measure pending a
departmental enquiry or pending a criminal proceeding.
We shall deal with these aspect's of suspension in
detail later.
So far as suspension as a punishment
is concerned, it is conceded that it is a disciplinary
matter. The dispute is only as to suspension pending
a departmental enquiry or pending a criminal
proceeding. There can in our opinion be no doubt
that suspension of this kind also must be comprised
within the wordi "disciplinary matters" as used
in Art. 314. Take the case of suspension pending
a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental
enquiry and to ensure that while such enquiry is
going on-it may relate to serious lapses on the part
of a public servant-, he is not in a position to misuse
his authority in the same way in which he might
have been charged to have done so in the enquiry.
In such a case suspension pending a departmental enquiry cannot be but a matter intimately related to
disciplinary matters. Take again the case where
suspension is pending criminal proceedings. The usual
ground for suspension pending a criminal proceeding
is that the charge is connected with his position Iii
a government servant or is likely to embarass him in
the discharge of his duties or involves moral turpitude.
1963
R. P. Kapur
V.
Union of India
and Anr.
Wanchoo J.
444
SUPREME COURT REPORTS
[1964)
1963
In such a case a public servant may be suspended
pending investigation, enquir)' or trial relating to
R. P. Kapur a criminal charge. Such suspension also in our opinion
. v.
. is clearly related to disciplinary matters.
If the
Union °1 India trial of the criminal charge results in conviction,
and Anr.
disciplinary proceedings are bound to follow against
the public servant so convicted. Even in case of acquittal
Wanchoo 1· proceedings may follow where the acquittal is other
than honourable. The usual practice is that where
a public servant is being tried on a criminal charge,
the Government postpones holding a departmental
enquiry and awaits the result of the criminal trial
and departmental proceedings follow on the result
of the criminal trial. Therefore, suspension during
investigation, enquiry or trial relating to a criminal
charge is also in our opinion intimately related to
disciplinary matters. We cannot therefore accept the
argument on behalf of the respondent that suspension pending a departmental enquiry or pending
investigation, enquiry or trial relating to a criminal
charge is not a disciplinary matter within the meaning
of those words in Art. 314.
Before we investigate what rights a member
of the former Secretary of State's Services had with
respect to suspension, whether as a punishment
or pending a departmental enquiry or pending criminal
proceedings, we must consider what rights the Government has in the matter of suspension of one kind
or the other. The general law on the subject of
suspension has been laid down by this Court in two
cases, namely, The Management of Hotel Imperial
New Delhi v. Hotel Workers' Union<1>, and T. Cajee
v. U. Jormanik Siem< 2 ). These two cases lay down that
it is well settled that under the ordinary law of master
and servant the power to suspend the servant without
pay could not be implied as a term in an ordinary
contract of service between the master and the servant
but must arise either from an express term in the contract itself or a statutory provision governing such
contract.
It was further held that an
order
(1) [1960] I. S.C.R. 476.
(2) [1961] I. S.C.R. 750.
.I
" •
~
' .,
....
~
' •
5 S.C.R.
SUPREME COURT REPORTS
445
1963
of interim suspension could be passed against an
employee while inquiry was pending into his conduct
even though there was no specific provision to that
R. P. Kapur
effect in his terms of appointment or in the rules.
v.
But in such a case he would be entitled to his remuneUnion of India
ration for the period of his interim suspension if
and Anr.
there is no statute or rule existing under which it could
be withheld.
The general principle therefore is that an employer
can suspend an employee pending an enquiry into
his conduct and the only question that can arise
on such suspension will relate to the payment during
the period of such suspension. If there is no express
term in the contract relating to suspension and payment during such suspension or if there is no statutory
provision in any law or rule, the employee is entitled
to his full remuneration for the period of his interim
suspension; on the other hand if there is a term in
this respect in the contract or there is a provision in
the statute or the rules framed thereunder providing
for the scale of payment during suspension, the payment
would be in accordance therewith. These general
principles in our opinion apply with equal force in
a case where the government is the employer and
a public servant is the employee with this modification that in view of the peculiar structural hierarchy of government, the employer in the case of
government, must be held to be the authority which
has the power to appoint a public servant. On
general principles therefore the authority entitled
to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his
conduct or pending a criminal proceeding, which may
eventually result in a departmental enquiry against
him. This general principle is illustrated by the provision in s. 16 of the General Clauses Act, No. X
of 1897, which lays down that where any Central
Act
or
~egulation gives
power
of
appointment that mcludes the power to suspend or dismiss
unless a different intention appears. Though this
provision does not directly apply in the present case,
Wanchool.
446
SUPREME COURT REPORTS
[1964]
1963
it is in consonance with the general law of master
and servant. But what amount should be paid to
R. P. Kapur the public servant during such suspension will depend
v.
. upon the provisions of the statute or rule in that
Union of India connection.
If there is such
a provision the
and Anr.
payment during suspension will be m accordance
therewith. But if there is no such provision, the public
Wanchoo 1·
servant will be entitled to his full emoluments during
the period of suspension. This suspension must be
distinguished from suspension as a punishment which
is a different matter altogether depending upon the rules
in that behalf. On general principles therefore the government, like any other employer, would have a right to
suspend a public servant in one of two ways. It may
suspend any public servant pending departmental enquiry or pending criminal proceedings; this may Je
called interim suspension. Or the Government m iy
proceed to hold a departmental enquiry and af1er
his being found guilty order suspension as a punishment
if the rules so permit. This will be suspension as a
penalty. These general principles will apply to 111
public servants but they will naturally be subject to
the provisions of Art. 314 and this brings us to an investigation of what was the right of a member of t lie
former Secretary of State's Services in the matter of
suspension, whether as a penalty or otherwise.
As Art. 314 only guarantees protection to thc,se
rights which were in existence immediately before 1 he
Constitution came into force, all that is necessary is
to find out the position before August 14, 1947, when
the transfer of power took place and on January '.~5,
1950, just before the Constitution came into for :e.
Members of the Secretary of State's Services who i 're
protected under Art. 314 were appointed either by lhe
Secretary of State or by the Secretary of State in Couni :il.
Therefore on general principles it would have b( en
open to the Secretary of State or the Secretary of St tte
in Council, as the case may be, to suspend a member of
such Services as the appointing authority as an inteiim
measure pending a departmental enquiry or pend ng
a criminal proceeding if it thought fit to do so. What .. '
5 S.C.R.
SUPREME COURT REPORTS
447
~~~· -
1963
R. P. Kapur
v.
Union. of India ·
and Anr.
remuneration such a public servant would get during
such interim suspension would depend upon the rules
if any, and if there were no rules he would be entitled
to his full emoluments during such interim suspension.
But it appears that as the Secretary of State or the Secretary of State in Council was in London it was thought
proper for the sake of administrative convenience to
provide for suspension by authorities other than the
appointing authority. Reference in this connection may
be made to s. 247 (2) of the · Government of India Act.
1935, as in force . upto August 13, 1947. That subsection provided that "any order suspending any such
person (meaning thereby a member of the former Secretary of State's Services) from office shall, if he is serving
in connection with the affairs of the Federation, be made
by the Governor-General exercising his individual judg~
ment and, if he is serving in connection with the affairs.
of a Province, be made by the Governor exercising
his individual judgment". This sub-section therefore
made a specific provision for suspension by authorities
other than the appointing authority; this was in addition
to the general right of the employer (namely, the Secretary
of State who was the app01nting authority) to suspend
an employee (namely, a member of one of the former
Secretary of State's Services). Suspension in s. 247 (2)
cannot in our opinion be confined only to suspension·.
as a penalty. .The words are general and must be given
their full meaning and would include any kind of suspension, whether as a penalty or otherwise; and this .
power vested firstly in the Secretary of State or the
Secretary of State in Council, as the case may be, under
the general law of master and servant and also in the
Governor-General and the Governor, as the case may
be, by virtue of this provision of the statute.
Further s. 247 (3) also provided for remuneration
of a suspended member of one of the former Secretary
· of State's Services and laid down that "if any such
person . as aforesaid is suspended from office, his remuneration shall not during the period of his suspension
be reduced except to such extent, if any, as may be
directed by the Governor-General exercising his inWanchoo J.
,-
448
SUPREME COURT REPORTS
[1964]
'
1963
divid~aljudgment or, as the-case may be, by the Governor exercising his individual judgment". Besides this
R. P. ,Kapur statutory provision relating to former Secretary of State's
u. _ v>f. l d-. Services, there was a general provision as to payment
nzon ° n '0 to a government servant under suspension in Fundaand Anr.
mental Rule 53. That general provision is that a susW anchoo J~ - pended government servant is at least entitled to onefourth of his pay.
This general provision was subject
to s. 247 (3) and in the case of members of the former
Secretary of State's Services, the Governor-General
or the Governor as the case may be, had to specify
the amount which could be even more than what was
provided by F.R. 53. Here again when F.R. 53 speaks
of suspension, it speaks of it in general terms. It applies
to all kinds of suspension whether. as a penalty or otherwise.
_ · -Further r. 49 of the Appeal Rules deals with penalties
and provides suspension as a penalty:- It also provides
for appeals in r. 56 etc. where suspension is inflicted
as a penalty for good and sufficient reasons. Rule 49
applied to the former Secretary of State's Services also
and thus these members were subject to the penalty
of suspension.
-
·
A review therefore of the general law of master
and servant,_the provisions of the Government of India
Act, 1935, of the Appeal Rules and the Fundamental
Rules discloses that the position on August 13, 1947
with respect to members of the former Secretary of
-State's Services with respect to suspension whether
as a punishment or otherwise was as follows. Members
of the former Secretary of State's Services were liable
to suspension either as an interim measure or as a punishment. Where suspension was as an -interim measure
and not as ·a punishment, it could be imposed either
by the Secretary of State or the Secretary of State in
Council as the appointing authority or by the Governor-
- --· General or the Governor as the case may be as the statutory authority.