# S.A. VENKATARAMAN v. THE UNION OF INDIA AND ANOTHER

- **Citation:** [1954] 1 S.C.R. 1150
- **Court:** Supreme Court of India
- **Decided:** 1953-02-21
- **Case number:** CRIMINAL No. 72 of 1954
- **Bench:** 1954] Jagannadha Das, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-a-venkataraman-v-the-union-of-india-and-another-254
- **Pages:** 13

## Headnote

Constitution of India, art. 20(2)-Enquiry made under Public
Servants
(Inquiries)
Act, 1850-Whether amounts to prosecution
and punishment within the meaning of art. 20(2).
Held, that an enquiry made and concluded under the Public
Servants (Inquiries) Act, 1850 (Act XXXVII of 1850),
does
not
amount to prosecution and punishment for an offence
as contemplated by art. 20(2) of the Constitution.
Maqbool Hussain v. The State of Bombay ([1953] S.C.R. 703);
Willis on Constitutional
Law, p. 528; and
Shenton v.
Smith
([1895] A.C. 229); Venkata Rao v. The Secretary of State for
India (64 I.A. 55);
Government of India Act, 1935, s. 240 (3);
referred to.
CRIMINAL
No. 72 of 1954.
ORIGINAL
JURISDICTION :
Petition
Petition under article 32 of the
Constitution
for
the enforcement of fundamental rights.
A. K. Basu, K. S.
Jayaram and C. R. Pattabhiraman (R. Ganapathy and C. V. L. Narayan, with them)
for the petitioner.
M. C. Setalvad,
Attorney-General
for
India
and
C. K. Daphtary, Solicitor-General for
India
(Porus
A. Mehta
and P.
G.
Gokhale,
with
them)
for
respondent No. 1.
1954. March 30.
The Judgment of the Court was
delivered by
MuKHERJEA J.-This is a petition under
article 32
of the
Constitution, praying for a writ, in the nature
of certiorari,
for calling
up the records
of
certain
criminal proceedings started
against
the petitioner by
the
Special
Judge,
Sessions
Court,
Delhi,
and for
quashing the same on the ground that these proceedings are without jurisdiction, having been commenced
S.C.R.
SUPREME COURT REPORTS
1151
in violation
of the
fundamental
right
of the petitioner
guaranteed
under article 20(2)
of the Constitution.
The petitioner was a member of the Indian Civil
Service and till lately was employed as Secretary
to
the
Ministry of
Commerce
and
Industries
in
the
Government of
India.
Certain
imputations
of
misbehaviour by the petitioner, while holding offices
of
various descriptions under the
Government of
India,
<:ame to the notice of the
Central Government ar:d
the
latter being satisfied that there were prima facie
good
grounds for making an enquiry directed a formal and
public enquiry to be made as to the truth or falsity of
the allegations made against the petitioner,
in accordance
with
the
provisions
of the
Public
Servants
(Inquiries) Act of 1850.
The substance of the imputations was drawn up in the form of specific charges and
Sir Arthur Trevor
Harries, an ex-Chief Justice of the
Calcutta High
Court,
was appointed
Commissioner
under section 3 of the said
Act to conduct the enquiry
and report to the Government,
on the
result
of the
same, his opinion on the
several
articles
of
charge
formulated against the petitioner.
The
order
of the
Central Government directing the enquiry is dated the
21st February, 1953.
The charges
were drawn up
under six heads with
various sub-heads
under
each
one of them.
The first charge alleged that
the
petitioner was
guilty of misbehaviour
inasmuch
as
he
showed undue favour to
Messrs.
Millars Timber and
Trading Company Limited in the matter of issue of
import and export licences, by abusing
his position
as
a public servant in the discharge of his duties,
that
1s,
by accepting illegal gratification or valuable things for
import and export licences
recommended
or
to
be
recommended by him.
The second charge was to the
effect that the petitioner accepted or obtained valuable
things for himself and other members
of his
family,
without paying
for
them,
on different
dates
from
Messrs. Millars Timber and Trading Company Limited
for recommending their applications for import licences
and export permits.
The fourth
and the fifth charges
1954
S. A. V ""'ataraman
v.
Th. Union of
India
and Another.
Mukhtrjea J.
1954
S. A. V enkata·
ram an
v.
The Union of
India
and Another.
Mukhe>jeaJ.
1152
SUPREME COURT REPORTS
[1954}
were similar in nature to charges 1 and
they related to the petitioner's dealings
firm known as Sunder Das Saw Mills.
2 except
that
with
another
The enquiry proceeded in the manner laid down in
the Pu

## Text

1954
Mar,;h 30.
1150
SUPREME COURT REPORTS
S.A. VENKATARAMAN
v.
THE UNION OF INDIA AND ANOTHER.
[MuKHERJEA, S. R. DAs, BHAGWATI,
[1954]
JAGANNADHA DAS and VENKATARAMA AYYAR JJ.]
Constitution of India, art. 20(2)-Enquiry made under Public
Servants
(Inquiries)
Act, 1850-Whether amounts to prosecution
and punishment within the meaning of art. 20(2).
Held, that an enquiry made and concluded under the Public
Servants (Inquiries) Act, 1850 (Act XXXVII of 1850),
does
not
amount to prosecution and punishment for an offence
as contemplated by art. 20(2) of the Constitution.
Maqbool Hussain v. The State of Bombay ([1953] S.C.R. 703);
Willis on Constitutional
Law, p. 528; and
Shenton v.
Smith
([1895] A.C. 229); Venkata Rao v. The Secretary of State for
India (64 I.A. 55);
Government of India Act, 1935, s. 240 (3);
referred to.
CRIMINAL
No. 72 of 1954.
ORIGINAL
JURISDICTION :
Petition
Petition under article 32 of the
Constitution
for
the enforcement of fundamental rights.
A. K. Basu, K. S.
Jayaram and C. R. Pattabhiraman (R. Ganapathy and C. V. L. Narayan, with them)
for the petitioner.
M. C. Setalvad,
Attorney-General
for
India
and
C. K. Daphtary, Solicitor-General for
India
(Porus
A. Mehta
and P.
G.
Gokhale,
with
them)
for
respondent No. 1.
1954. March 30.
The Judgment of the Court was
delivered by
MuKHERJEA J.-This is a petition under
article 32
of the
Constitution, praying for a writ, in the nature
of certiorari,
for calling
up the records
of
certain
criminal proceedings started
against
the petitioner by
the
Special
Judge,
Sessions
Court,
Delhi,
and for
quashing the same on the ground that these proceedings are without jurisdiction, having been commenced
S.C.R.
SUPREME COURT REPORTS
1151
in violation
of the
fundamental
right
of the petitioner
guaranteed
under article 20(2)
of the Constitution.
The petitioner was a member of the Indian Civil
Service and till lately was employed as Secretary
to
the
Ministry of
Commerce
and
Industries
in
the
Government of
India.
Certain
imputations
of
misbehaviour by the petitioner, while holding offices
of
various descriptions under the
Government of
India,
<:ame to the notice of the
Central Government ar:d
the
latter being satisfied that there were prima facie
good
grounds for making an enquiry directed a formal and
public enquiry to be made as to the truth or falsity of
the allegations made against the petitioner,
in accordance
with
the
provisions
of the
Public
Servants
(Inquiries) Act of 1850.
The substance of the imputations was drawn up in the form of specific charges and
Sir Arthur Trevor
Harries, an ex-Chief Justice of the
Calcutta High
Court,
was appointed
Commissioner
under section 3 of the said
Act to conduct the enquiry
and report to the Government,
on the
result
of the
same, his opinion on the
several
articles
of
charge
formulated against the petitioner.
The
order
of the
Central Government directing the enquiry is dated the
21st February, 1953.
The charges
were drawn up
under six heads with
various sub-heads
under
each
one of them.
The first charge alleged that
the
petitioner was
guilty of misbehaviour
inasmuch
as
he
showed undue favour to
Messrs.
Millars Timber and
Trading Company Limited in the matter of issue of
import and export licences, by abusing
his position
as
a public servant in the discharge of his duties,
that
1s,
by accepting illegal gratification or valuable things for
import and export licences
recommended
or
to
be
recommended by him.
The second charge was to the
effect that the petitioner accepted or obtained valuable
things for himself and other members
of his
family,
without paying
for
them,
on different
dates
from
Messrs. Millars Timber and Trading Company Limited
for recommending their applications for import licences
and export permits.
The fourth
and the fifth charges
1954
S. A. V ""'ataraman
v.
Th. Union of
India
and Another.
Mukhtrjea J.
1954
S. A. V enkata·
ram an
v.
The Union of
India
and Another.
Mukhe>jeaJ.
1152
SUPREME COURT REPORTS
[1954}
were similar in nature to charges 1 and
they related to the petitioner's dealings
firm known as Sunder Das Saw Mills.
2 except
that
with
another
The enquiry proceeded in the manner laid down in
the Public Servants (Inquiries) Act.
The charges
were
read out to the petitioner and his plea of "not guilty"
·was formally recorded.
Evidence
was
adduced
both
by the prosecutor and the defence and
the witnesses
on both sides
were examined
on oath
and
crossexamined and re-examined in the usual
manner.
The
Commissioner found,
on a consideration
of the
evidence, that four of the charges under various
sub-heads
were proved against the
petitioner
and submitted
a
report to that effect to the Government on the 4th of
May, 1953.
By a letter dated the 15th of May, 1953,
the
Government informed the
petitioner
that, on
careful
consideration
of
the
report,
the
President
accepted the opinion of the Commissioner and in view
of the findings on the several charges arrived at by the
latter, was provisionally of opinion that the petitioner
should be dismissed.
Opportunity
was
given to the
petitioner by this letter in terms
of article 311 (2) of
the Constitution to show cause
against
the
action
proposed to
be taken in regard to him and it
was
stated that any representation,
which he might
desire
to make, would be taken into consideration
before the
final order was passed.
The
pet1t1oner,
it seems, did
make a representation which was considered
by
the
Government and after
consultation with the
Union
Public Service Commission the President finally decided
to impose the penalty of dismissal upon the petitioner.
The order of
dismissal
was passed
on the
17th
of
September, 1953. On the
23rd
February, 1954, , the
police submitted a charge-sheet against
the
pet1t10ner
before the Special Judge, Sessions Court, Delhi, charging him with offences under
sections 161/165
of the
Indian Penal Code and section 5(2)
of the
Prevention
of Corruption Act and upon that, summons were issued
by the learned Judge directing the petitioner to appear
before his court on the 11th of March, 1954.
It is the
legality of this proceeding that
has
been
challenged
,
,/
'
S.C.R.
SUPREME COURT REPORTS
1153
before us in this writ petition.
The
petitioner's
case,
in substance, is that the
proceedings that have
been
started against him are without jurisdiction inasmuch
as they amount to fresh prosecution for offences
for
which he has been prosecuted
and punished
already
and this comes within the prohibition of article 20(2)
of the Constitution.
The sole point for our consideration is, whether in the events that have happened in
this case, there
has been a violation
of
the
fundamental right of the petitioner under article 20(2) of
the Constitution which would justify the issue of a
writ for enforcement of the same?
The scope and meaning of the guarantee implied in
article 20(2) of the Constitution has been indicated with
sufficient fullness in the pronouncement of this court
in M aqbool Hussain v. The State of Bombay ( 1 ) •
The
roots of the principle, which this clause enacts,
are
to
be found in the well
established rule of English law
which finds expression in the maxim "Nemo debet bis
vexari" -a man must not be put twice in peril for the
same offence. If a man is indicted again for the same
offence in
an
English court, he
can
plead, as a
complete defence, his former acquittal or conv:ction, or
as it is technically expressed, take the plea of "autrefois
acquit" or "autrefois
convict".
The
corresponding
provision in the Federal Constitution of the U.S.A. is
contained in
the
Fifth Amendment, which provides
inter alia : "Nor shall any person be subjected for the
same offence to be put twice in jeopardy
of life and
limb".
This principle has been recognised
and adopted
by the
Indian
Legislature and is embodied
in the
provisions of section 26 of the General Clauses Act and
section 403 of the Criminal Procedure Code.
Although these were the materials which formed the
background of the guarantee
of the fundamental right
given in article 20(2) of the
Constitution,
the ambit
and contents of the guarantee, as
this
court
pointed
out in the case referred to above, are much
narrower
than those of the common law rule m England or the
doctrine
of
"double
jeopardy" in
the
American
(•) [1953] S.C.R. 703.
1954
S. A. Venkataraman
v.
The Unum of
India
and Another.
Mukherjea ].
1954
S. A. Venkata--
ram an
v.
The Union of
India
and Another.
MuldmjeaJ.
1154
SUPREME COURT REPORTS
[1954]
Constitution. Article 20(2) of our Constitution, it is to
be noted, does not contain
the principle
of "autrefois
acquit" at all.
It seems that our
Constitution makers
did not think it necessary to raise
one
part
of the
common law rule to the level of a fundamental right
and thus make it immune from legislative interference.
This has been left to be regulated by the general law of
the land.
In order to enable a citizen
to
invoke
the
protection of clause (2) of article 20 of the Constitution,
there must , have been
both
prosecution
and punishment in
respect of
the same
offence.
The
words
"prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished.
Both
the factors must co-exist in order that the operation of
the clause
may be
attracted.
The position
is
also
different under the
American
Constitution. There the
prohibition is not against
a second
punishment
but
against the peril in which a person may be placed
by
reason of a valid
indictment
being presented
against
him, before a competent
court,
followed
by proper
arraignment and plea and a lawful impanelling
of the
jury. It is not necessary to have a verdict at ail(').
It has also been held by this
court
in M aq boo!
Hussain's case(' ) that the language of article 20 and the
words actually used in it afford a clear indication that
the proceedings in connection
with
the
prosecution
and punishment of a person must be in the nature of a
criminal
proceeding, before a court of law or judicial
tribunal, and not before a tribunal which entertains
a
departmental or an administrative enquiry
even though
set up by a statute, but which is not required by law to
try a matter judicially and on legal evidence.
In
that
case the proceedings were taken under the Sea Customs
Act before a Customs authority who ordered confiscation of goods.
It was held that such proceedings
were
not "prosecution'',
nor the order of confiscation
a
"punishment" within the meaning of article 20(2) inasmuch as the Customs authority was not a court or a
judicial tribunal and merely
exercised
administrative
powers vested in him for revenue purposes.
(I) Vide Willis on Constitutional law, p. 528.
(2) [1953] S.C.R. 703.
S.C.R.
SUPREME COURT REPORTS
1155
The facts of this case
are no doubt different and
the point that requires determination is, whether
the
petitioner can be _said to have satisfied
all
the
conditions that are necessary to enable him to claim the
protection of article 20(2).
The charges,
upon which
the petitioner is being prosecuted
now,
are
charges
under sections 161 and 165 of the Indian Penal Code
and section 5 (2) of the Prevention of Corruption Act.
We will assume for our present purpose
that
the
allegations upon which these
charges
are based
are
substantially
the
same
which formed
the
subjectmatter of enquiry under the Public Servants (Inquiries)
Act of 1850.
The question
narrows
down to this :
whether the petitioner had already been (1) prosecuted
and (2) punished _for these offences ?
Mr. Basu, appearing on behalf of the petitioner,
contends that his client was, in fact,
prosecuted
for
these identical
offences
before the
Commissioner
appointed under
Act
XXXVII
of 1850.
This, it is
argued, was not a mere departmental enquiry
of the
type referred to in Maqbool Hussain's case(1 ). The Commissioner was a judicial tribunal in the proper sense
of
the expression.
He had to adjudicate
on the charges
judicially, on evidence,
recorded
on oath,
which he
was authorised by law to administer.
The prosecution
was conducted by a prosecutor
appointed
under
the
Act, charges were read out to the accused person
and
his plea was taken ; witnesses on
both
sides
were
examined on oath and they were cross-examined
and
re-examined.
The
Commissioner had all the
powers
of a court; he could summon witnesses,
compel
production of relevant documents
and punish people
for
contempt.
At the close of the enquiry,
the
Commissioner did record his finding against the petitioner on
some of the charges.
He had undoubtedly
no power
to impose any punishment
and had only to forward his
report to the Government. Under section
22 of the
Act, however, the
Government
was entitled
to pass
such orders within its authority, as
it considered
proper and in exercise of this authority the President did
impose upon the petitioner
the
penalty
of dismissal.
(r) [1953) S.C.R. 703.
1954
S. A. Venkataraman
v.
The Union of
India
and Another.
Mukherjea J.
1954
S. A. Venkataram an
v.
The Union of
India
and Anothtr.
Mukheriea ].
1156
SUPREME COURT REPORTS
[1954]
It is immaterial, it is argued, for the purpose of
article 20(2) of the Constitution that the prosecution
was before one authority and punishment
was inflicted
by another.
The petitioner was both prosecuted
and
punished and he is sought to
be
prosecuted
on the
same charges over again.
This constitutes,
according
to the learned counsel, a clear violation of the guarantee
implied
in article
20(2)
of the
Constitution.
The
questions raised are undoubtedly
of some importance
and require to be carefully examined.
It is true that the
Commissioner appointed to make
an enquiry under Act XXXVII of 1850 is invested with
some of the powers of a court,
particularly
in
the
matter of summoning witnesses and compelling
the
production of documents and the report, which he has
to make, has to be made on legal evidence
adduced
under sanction of oath and tested by cross-examination.
But from these facts alone
the
conclusion
does
not
necessarily follow that an enquiry made and concluded
under Act XXXVII of 1850 amounts
to
prosecution
and
punishment for an
offence as
contemplated
by
article 20(2) of the
Constitution.
In order to arrive
at a proper decision
on this point, it is necessary
to
examine the entire background of the provisions
relating to enquiry into the conduct of public serv.i!llts
and
to ascertain the exact scope and purpose of the enquiry
as is contemplated by Act XXXVII of 1850
and the
ultimate result that flows from it.
It is a well established principle of English law that,
except where it is otherwise provided by a statute, all
public officers and . servants of the
Crown hold
their
appointments at the pleasure of the
Crown.
Their
services can be
terminated
without
ass1gmng
any
reason and even if any public servant considers that
he has been unjustly dismissed, his remedy is not by
way of a law suit but by an appeal of an official or
political character(t ). This principle of law was applied
in India ever since the advent of British rule in this
country and the servants in the employ of the
East
India Company also came within the purview
of this
(1) Vide Shenton v. Smith [1895] A.G. 229.
'
•
•
S.C.R.
SUPREME COURT REPORTS
1157
rule.
It is to be remembered that it was during the
period of the East India Company that the Public
Servants (Inquiries)
Act was
passed
in 1850.
The
object of the
Act, as stated in the preamble,
was to
regulate enquiry into the behaviour of public servants,
not removal from service without the sanction
of the
Government.
The enquiry was quite optional with the
Government and did not affect in any way the powers
of the Government to dismiss its servants
at
pleasure
and this was expressly provided by section 25 of the
Act, the wording of which is as follows :
"Nothing in this Act shall be construed to affect
the authority of the
Government
to
suspending
or
removing any public servant for any cause without
an
enquiry under the Act."
After assumption of the Government of India by the
Crown, this rule of
English common law
continued
unaltered till 1919 when section %B was introduced
by the amended
Government of India Act of that year.
Sub-section ( 1) of section 96B of the
Government
of
India Act, 1919, runs as follows :
"Subject to the provisions of this Act and of rules
made thereunder, every person in the civil service
of
the Crown in India holds office during
His
Majesty's
pleasure and may be employed in any manner required
by a proper authority within the scope of his duty,
but
no person in that service may be dismissed by any
authority
subordinate
to that
by
which
he
was
appointed .................... "
Thus one restriction imposed by this section upon
the unfettered right of the
Government
to dismiss its
servants at its pleasure, was that no servant
could
be
dismissed by any authority subordinate
to
that
by
which he was appointed. The section by its opening
words also makes the exercise of the power subject to
the rules made under the Act and it was in pursuance
of the provision
of section 96-B(Z) that
the
Civil
Service (Classification, Control and Appeal) Rules were
framed which with the later amendments
are in force
even now.
Part XII of these rules deal with Conduct
and Discipline of
Civil Servants and rule 49 of this
part lays down that
the
different penalties
provided
1954
S. A. Venka~a ..
raman
v.
Tk Union of
India
and Another.
Mukherjea J.
1954
S. A. Venkata·
raman
v.
The Union of
India
and Another.
Mukhujea J.
1158
SUPREME COURT REPORTS
[1954J
by the different clauses of the rule may, for good and
sufficient reasons, be imposed upon
members
of the
services comprised in clauses (1) to (5) in rule 14. These
penalties
include,
amongst
others,
censure,
withholding of increment, dismissal,
reduction
in
rank
and removal. Rule 55,
which finds a place
in the
same chapter, lays
down
the
procedure
to
be
followed
before
passing
an
order
of
dismissal,
removal or reduction in rank against
any member
of the service.
No such order shall be passed
unless
the person concerned has been informed,
in
writing,
of the grounds on which it is proposed to
take action
against him and has been afforded an adequate opportunity of defending
himself.
An enquiry
has
to be
made regarding his conduct
and this
may be
done
either in accordance with the provisions
of the Public
servants (Inquiries)
Act of 1850 or in a less
formal
and less public manner as is provided for in the
rule
itself.
These rules have no statutory force and it was held
by the Privy Council that when an officer was dismissed from service without complying with the provisions
of these rules, he had no right of action against
the
Crown('). In other words, the rules, which were not
incorporated in a statute, did
not impose
any
legal
restriction upon the right of the
Crown to dismiss its
servants at pleasure.
The position was altered to some extent
m the
Government of India Act, 1935, and in addition to
the
restriction imposed by section 96-B ( 1)
of the
Government of India Act, 1919, that a civil servant could not
be dismissed by an authority subordinate to
that
by
which he was appointed, a further statutory provision
was made( 2 ), that a civil servant could not be dismissed
or reduced in rank unless the
person concerned was
given
a reasonable
opportunity of
showing cause
against the action proposed to be taken
against
him.
Article 311(2) of the present Constitution has further
added
the
word "removal"
after "dismissal"
and
(I) Vi de V enkata Rao v. The Secretary of State for India, 64 I.A. 55.
(2) Vide section 240 (3) of the Government of India Act, 1935.
•
•
•
..
S.C.R •
SUPREME COURT REPORTS
1159
before "reduction in rank" and thus in all the three
cases which are covered by rule 55 of the
Civil Services
Rules, a civil servant has now a constitutional right to
claim
a reasonable
opportunity
of showing
cause
against
the action proposed to be taken in regard to
him.
As the law stands at present, the only purpose, for
which an enquiry under Act XXXVII of 1850 could
be made, is to help the Government to come to a
definite conclusion regarding the misbehaviour of
a
public servant and thus enable it to determine
provisionally the punishment which should be imposed upon
him, prior to giving him a reasonable opportunity
of
showing cause, as is required under article 311(2)
of
the Constitution. An enquiry under this Act is not
at all compulsory and it is quite open to the
Government to adopt any other method if it so chooses.
It
is a matter of convenience merely
and nothing else.
It is against this background that
we will have
to
examine the material provisions of the
Public Servants
(Inquiries)
Act of 1850 and see whether from
the
nature and result of the enquiry which the
Act contemplates it is at all possible to say that
the
proceedings taken or concluded under the
Act amount
to
prosecution and punishment for a criminal offence.
It may be pointed out that the words "prosecution"
and "punishment" have no fixed connotation and
they
are susceptible of both a wider and a narrower
meaning ; but in article 20(2) both these words
have been
used with reference to an "offence" and
the word
"offence" has to be taken in the sense in which it is used in
the General Clauses Act as meaning "an act or omission
made punishable by any law for the rime being in force."
It follows that the prosecution must
be in reference to
the law which creates the offence and the
punishment
must also be in accordance with
what that law prescribes.
The acts alleged to have been committed by
the petitioner in the present case and on the basis
of
which the charges have been framed
against
him do
come within the d~~nition of "offences"
described
in
sections 161 and 16' of the Indian Penal
Code and
9-98 S.C. India/59
1954
S. A. V tnkata~
raman
v,
Tm Union of
India
and Anothtr.
MukhMjea].
1954
S. A. Venkata~
rama11
v.
The Union of
India
and Another.
Muklurjea J.
1160
SUPREME COURT REPORTS
[1954]
section 5(2) of the Prevention of
Corruption Act. The
Public Servants (Inquiries)
Act does not itself create
any offence nor does it provide any punishment for it.
Rule 49 of the
Civil Services Rules mentioned
above
merely
speaks
of
imposing
certain
p~nalties upon
public servants for good and
sufficient
reas<ms.
The
rule does
not mention any
particular
offence
and
obviously can create none. It is to enable the Government to come to the conclusion as to whether
good' '.
and sufficient reasons exist, within the meaning of rule
49 of the Civil Services Rules, for imposing the penalties
of removal, dismissal
or reduction in rank upon a
public servant that an enquiry may be directed
under
Act XXXVII of 1850.
A
Commissioner appointed
under this
Act has no duty to investigate any offence
which is punishable under the
Indian Penal Code or
the
Prevention of
Corruption
Act
and
he
has
absolutely no jurisdiction to do so.
The subject-matter
of investigation by him is the truth or otherwise of the
imputation of
misbehaviour
made
against
a public
servant and it is only as instances
of
misbehaviour
that the several
articles of
charge are investigated,
upon which disciplinary action might be taken by the
Government if it so chooses.
The mere fact
that
the
word "prosecution" has been used, would not make
the proceeding before the
Commissioner one
for prosecution of an offence. As the Commissioner has to form
his opinion upon legal evidence, he has been given the
power to summon witnesses, administer oath
to them
and also to compel production of relevant
documents.
These may be some of the
trappings
of a
judicial
tribunal, but they cannot
make the proceeding
anything more than a mere fact finding enquiry.
This is
conclusively established
by the
provisions
of sections
21 and 22 of the Act.
At the close of the enquiry, the
Commissioner has to submit a report to the
Government regarding his finding on each one of the charges
made.
This is a mere expression of opinion
and
it
lacks
both finality and authoritativeness which
are
the essential tests of a judicial
pronouncement.
The
opinion is
not even binding on the
Government.
Under section 22 of the
Act, the Government can, after
,
•
..
!
•
S.C.R .
SUPREME COURT REPORTS
1161
receipt of the report, call upon
the
Commissioner to
take further evidence or give further explanation
of
his opinion.
When Special Commissioners are appointed, their report could be referred to the court or other
authority to which the officer concerned is subordinate
for further advice
and
after
taking
the
opinion
of
the
different
authorities
and
persons,
the
Government has
to decide
finally
what action
it
should take.
Then again neither section 21 nor section 22 of the
Act says anything
about
punishment.
There
1s no
power
in the
Commissioner
even
to
express
any
opinion about punishment and section 22 on! y
contemplates such order as the
Government can pass in its
capacity as employer in respect to servants
employed
by it. As has been said already, an order of dismissal of
a servant cannot be regarded as a punishment for an
offence punishable
under
particular sections
of the
Indian Penal Code or of the
Prevention of Corruption
Act. A somewhat analogous case would be that of a
member of the Bar whose name is struck
off the rolls
on grounds of professional misconduct,
in exercise
of
disciplinary jurisdiction
by the
proper
authority.
The professional misconduct might amount to a criminal offence, but if we are to accept the
petitioner's
contention
as
correct, the man cannot be prosecuted
for it, even though the authority inflicting the penalty
of removal was not a competent
court to investigate
auy criminal charge nor was the punishment
imposed
in exercise of disciplinary
jurisdiction a
punishment
for an offence.
In our opinion, therefore, in an enquiry
under the
Public Servants (Inquiries) Act of 1850, there is neither
any question of investigating an offence in the sense of
an act or omission punishable by any law for the time
being in force, nor is
there any question of imposing
punishment prescribed by the law which makes that
act or omission an offence.
The learned
AttorneyGeneral raised a point before us that the test
of the
guarantee under article 20(2) is whether the
person
has been tried and punished, not for the same act, but
1954
S. A. V enkataraman
v.
The Unionoj'
India
and Another.
Mul:/zer.iea ].
1954
S.A, V .nkataram an
v.
Tho Union of
India
and Anoth<r.
Mu!;Mr.iea ].
1162
SUPREME COURT REPORTS
[1954]
for the same offence and his contention is
that
the
offences here are different, though they may arise out of
the same acts.
In the view that we have taken this
question does not arise for consideration at all. It is also
not necessary to express any opinion on the
question
raised by the learned
counsel for the petitioner
as to
whether for the purpose of attracting the operation
of
article 20(2) the punishment must be imposed
by
the
same authority
before
which the
prosecution
was
conducted.
The result is that, in our opinion,
the
petition fai1s and is dismissed.
Petition dismissed.
•