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TMI Blog1959 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... office of Deputy Commissioner till a few days before April 14, 1949. On April 13, 1949, the appellant was served with an order passed by the Government of East Punjab suspending him from service. On May 5, 1950, the appellant submitted a representation to the President of India protesting against the action of the Government of East Punjab suspending him from service and praying that he be removed from the control of the Punjab Government and that if any disciplinary action was intended to be taken against him, it be taken outside the Province of Punjab by persons appointed by the Government Of India and in an atmosphere free from prejudice and hostility . The Government of East Punjab on May 18, 1950, appointed Mr. Eric Weston, Chief Justice of the East Punjab High Court as Enquiry Commissioner under the Public Servants (Inquiries) Act, XXXVII of 1850, to bold an enquiry against the appellant on twelve articles of charges. Notice was issued to the appellant of those charges. On November 5, 1950, at the suggestion of the Enquiry Commissioner, the Government of East Punjab withdrew charges Nos. 11 and 12 and the Enquiry Commissioner proceeded to hold the enquiry on the remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n December 28. On and after December 28, 1950, the appellant filed several applications and affidavits for obtaining certain directions from the Enquiry Commissioner and for eliciting information from the State. On January 2, 1951, the Enquiry Commissioner adjourned the proceeding for the winter vacation. The proceedings were resumed on March 12, 1951, and after recording formal evidence of two witnesses, S. Gurbachan Singh, Sub-Inspector and Ch. Mangal Singh, Sub-Inspector about the state-ments made by certain witnesses for the defence in the course of the investigation which it was submitted were materially different from those made before the Enquiry Commissioner and after hearing arguments, the enquiry was closed. On May 14, 1951, the Enquiry Commissioner prepared his report. He held that the appellant had taken the amount referred to in charge No. 1 from the Government on the basis of a claim of Raja Harmohinder Singh which was made at the appellant's instance, that the appellant had also received the amount which was the subject matter of charge No. 2, that the appellant admitted to have received the amounts which were the subject matter of charges Nos. 7, 9 and 10, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 7, 1952, which runs into 321 printed pages of the record. The President consulted the Union Public Service Commission, and by order dated July 27, 1953, dismissed the appellant from service with immediate effect. The order passed by the President was challenged by a petition filed in the East Punjab High Court for the issue of a writ under Art. 226 of the Constitution. The appellant prayed that a writ quashing the proceeding and the report of the Enquiry Commissioner and also a writ of Mandamus or any other appropriate Writ, Direction or Order commanding the Union of ,India to reinstate the appellant into the Indian Civil Service from the date of suspension be issued. By separate, but concurring judgments, Chief Justice Bhandari and Mr. Justice Khosla of the East Punjab High Court dismissed the petition. Against the order of dismissal of the petition, this appeal has been filed by the appellant pursuant to a certificate of fitness granted by the High Court, in so far as it is material, it was enacted that every person appointed by the Secretary of State to a civil service of the Crown in India who continued on and after the appointed day to serve under the Government of the Domi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conviction in a criminal court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take Action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to crossexamine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Servants (Inquiries) Act of 1850, or in a less formal and less public manner as is provided for in the rule itself dispel doubt, if there be any, as to the true meaning of the opening clause of the rule. Does the holding of an enquiry against a public servant under the Public Servants (Inquiries) Act, 1850 -violate the equal protection clause of the Constitution ? The appellant submits that the Government is invested with authority to direct an enquiry in one of two alternative modes and by directing an enquiry under the Public Servants (Inquiries) Act which Act it is submitted contains more stringent provisions when against another public servant similarly circumstanced an enquiry under r. 55 may be directed, Art. 14 of the Constitution is infringed. The Constitution by Art. 311(2) guarantees to a public servant charged with misdemeanour that he shall not be dismissed, removed or reduced in rank unless he has been given a reasonable opportunity of -showing cause against the action proposed to be taken in regard to him. The content of that guarantee was explained in Khem Chand v. The Union of India and Others(1) [1958] S.C.R. 1080 at 1096-97.. It was observed that: the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed except following upon an enquiry, and by Art. 314, to civil servants appointed by the Secretary of State the same rights in disciplinary matters as were available before the Constitution are guaranteed. A member of the Indian Civil Service, before disciplinary action is taken against him is therefore entitled by the force of guarantees enshrined in the Constitution to an enquiry into his alleged misdemeanour either under the Public Servants (Inquiries) Act or under r. 55 of the Civil Services (Classification, Control and Appeal) Rules, in operation at the date of the Constitution. But the guarantee being one of an enquiry directed under one of two alternative powers, the exercise of authority under one of the two alternatives is not prima facie illegal. The procedure to be followed in making an enquiry under the Public Servants (Inquiries) Act, 1850, is prescribed in some detail. The Enquiry Commissioner is required to supply to the person accused a copy of the articles of charges and list of the Documents and witnesses by which the charges are to be sustained at least three days before the beginning of the enquiry. By s. II, the prosecutor is required to exhibit arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and if he so desires, he may demand an oral hearing at which the witnesses for the prosecution and his own witnesses shall be examined. Counsel for the appellant submitted that the procedure under the Act was more onerous against the public servant concerned in two important respects: (1) under s. 11 of Act XXXVII of 1850, if the accused refuses or without reasonable cause neglects to appear to answer the charge, he shall be taken to admit the truth of the articles of charge, whereas there is no similar provision in r. 55; (2) that under s. 19 of the Act, even after the evidence for the defence is closed, it is open to the prosecutor to exhibit evidence to contradict evidence exhibited for the defence and the Commissioner is not bound to adjourn the proceeding although the new evidence was not included in the list furnished to the accused whereas there is no similar provision in r. 55. The procedure prescribed by r. 55 is undoubtedly somewhat more elastic, but the provisions similar to those which have been relied upon by counsel for the appellant as discriminatory are also implicit in r. 55. If the public servant concerned does not desire an oral enquiry to be held, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry at Delhi or Simla, but not at Dharamsala where the appellant had a reasonable apprehension that the witnesses will be freely suborned and interfered with was summarily rejected'; but admittedly, all the witnesses of the appellant were examined at Simla and not at Dharamsala. In paras. 8, 9 and 10 of his petition he submitted that even though he had brought to the notice of the Enquiry Commissioner that there was a conspiracy among certain high functionaries of the Government and certain influential politicians against him, the Enquiry Commissioner declined to permit the evidence about the alleged conspiracy to be brought on the record and observed that he will not give any definite finding against any functionary or high officer of the Government and on this account the enquiry was vitiated. Before us, this contention was not pressed. By para. 10 of his petition, the appellant stated that even those documents which the appellant desired to be called for to rebut the specific charges were not ordered to be called for by the Enquiry Commissioner and he merely directed that if the appellant possessed any copies of such documents, he may file them in the court and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 29, 1950, the appellant applied that the Advocate General appearing for the prosecution be directed to give 'final and complete answers' to certain queries and to produce relevant documents in support of his answers, and as many as seven questions were set out. It appears from the application dated December 30, 1950, filed by the appellant that the Enquiry Commissioner asked the appellant to remodel the questions and accordingly a fresh application with questions re-modelled was submitted. On that application, the Commissioner ordered that he had no objection to allow the appellant to give evidence as to some incident about ' Pauji Mela' even though there was no reference to that matter at any earlier stage. He, however, declined to allow any further evidence to be called and observed that he had not given to the Prosecutor any special privilege, and that it was not the case of the Prosecutor that there existed express instructions to District Officers in the management of trust funds. The appellant also submitted another application dated December 30, 1950, praying that the Prosecutor may be asked to reply to the questions set out therein and to produce document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aaja of Guler was taken possession by the Deputy Commissioner and when the allowances of the Raja of Guler and his other dependants were fixed. The Enquiry Commissioner observed that the application was belated and that although he was away from Simla, he was accessible by post and his whereabouts were ascertainable and that he could not allow further evidence of that nature to go on the record. At the instance of the Prosecutor, the Enquiry Commissioner allowed two witnesses, S. Gurbachan Singh and Ch. Mangal Singh to formally prove the statements made by two witnesses, Bishan Das Gupta and Shahbaz Singh who it was claimed had made in the course of the enquiry statements on oath inconsistent with the statements made in the course of the investigation. Pursuant to the order of the Enquiry Commissioner dated December 30, 1950, the Prosecutor filed certain answers on March 13, 1951, to the questions which were ordered by the Enquiry Commissioner to answer. The appellant's counsel has conceded that the entire record of -the Enquiry Commissioner is not before us Both the learned Judges of the High Court have held that on every application submitted by the appellant, the Enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on that stage being reached that the statute gives the civil servant the opportunity for which sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant had been through an inquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out; but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry. And this view was affirmed by this court in Khem Chand v. The Union of India and Others (1) [1958] S.C.R. 1080,where at p. 1099, it was observed by Chief Justice S. R. Das: Of course if the government servant has been through the enquiry under r. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out. By the Constitution, an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. Whether opportunity afforded to a public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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