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R. P. Kapur Vs. Pratap Singh Kairon and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC295; 1964CriLJ224; [1964]4SCR204
ActsPublic Servants (Inquiries) Act, 1850 - Sections 2; All India Services (Discipline and Appeal) Rules, 1955; Code of Criminal Procedure - Sections 5 and 154; Constitution of India - Articles 14, 16 and 20(3); All India Services (C&A) Rules, 1955
AppellantR. P. Kapur
RespondentPratap Singh Kairon and ors.
Cases Referred(R. P. Kapur v. Sardar PratapSingh Kairon
Excerpt:
service - inquiry - section 2 of public servant (inquiries) act, 1850, all india services (discipline and appeal) rules, 1955, all india services (c&a) rules, 1955, sections 5 and 154 of criminal procedure code, 1898 and articles 14, 16 and 20 of constitution of india - first information report (fir) against appellant under section 154 of code of 1898 - government ordered inquiry against appellant under act of 1850 - appellant challenged order of inquiry on ground that case already framed under code of 1898 and matter should be proceeded with only under code - under scheme of code once fir lodged under section 154 case to proceeded with following procedures laid down under code - but no bar has been placed to inquiry under other act - held, inquiry order valid. - section 9: [tarun.....das gupta, j. 1. the appellant, r. p. kapur, was appointed to the indian civil servicealmost 25 years ago. he continued in the service after the independence ofindia and since 1948 has been serving the government of punjab. on the 18thjuly 1959, when the appellant was serving as commissioner, ambala division, hewas placed under suspension. a few months before this, two criminal cases hadbeen instituted against him. the first of these was instituted on december 10,1958, by one m. l. sethi against kapur and his mother-in-law, kaushalya devi,on allegations of offences under section 420 and section 120b of the indianpenal code. the second was instituted on the complaint of one m. l. dhingra onallegations of offences under section 55(2) of the prevention of corruptionact, 1947 and sub-section.....
Judgment:

Das Gupta, J.

1. The appellant, R. P. Kapur, was appointed to the Indian Civil Servicealmost 25 years ago. He continued in the service after the independence ofIndia and since 1948 has been serving the Government of Punjab. On the 18thJuly 1959, when the appellant was serving as Commissioner, Ambala Division, hewas placed under suspension. A few months before this, two criminal cases hadbeen instituted against him. The first of these was instituted on December 10,1958, by one M. L. Sethi against Kapur and his mother-in-law, Kaushalya Devi,on allegations of offences under section 420 and section 120B of the IndianPenal Code. The second was instituted on the complaint of one M. L. Dhingra onallegations of offences under section 55(2) of the Prevention of CorruptionAct, 1947 and sub-section 167, 168, 406, 420 and 465 of the Indian Penal Code.This complaint was submitted by Dhingra to Sardar Pratap Singh Kairon, theChief Minister of Punjab, on February 27, 1959. Action on this case was takenunder the orders of the Chief Minister and a first information report wasrecorded on the basis of this complaint at Chandigarh Police Station on March4, 1959. Several other cases were instituted against the appellant and some ofhis relations after this, during the year 1960, including one instituted on thebasis of a report by Daryao Singh, Inspector of Police, C.I.D., Karnal. Thisreport which bears the date November 1, 1959, alleged that the appellant hadcommitted offences under section 166, section 167 of the Indian Penal Code readsection 109 of the Indian Penal Code and also under section 5(2) of thePrevention of Corruption Act. This report was forwarded by Daryao Singh to theSecretary, Orphanage Advisory Board, Chandigarh, in connection with the affairsof which Board the offences were said to have been committed; it was sent bythe latter to the police for registration of a case and investigation, only onMay 25, 1960. The criminal cases which were pending in the courts of differentmagistrates of the Punjab were on appellant's application transferred by thisCourt to criminal courts subordinate to the Allahabad High Court for disposalin the State of Uttar Pradesh.

2. Two of these case, one under section 107 of the Indian Penal Code inwhich the appellant's wife was made an accused, and the other under section 145of the Indian Penal Code in which also she figured as an opposite party, weredisposed of in March and April 1961, the proceedings in both cases beingdropped by an order of the Additional District Magistrate, Saharanpur. In thecase instituted on Dhingra's complaint the investigation appears to have beencompleted in August-September 1959, and in February 1960, the Government ofPunjab applied to the Central Government for sanction to prosecute theappellant under section 5(2) of the Prevention of Corruption Act, 1947 asrequired under section 6(c) of that Act. The Government of India was howeverreluctant to accord sanction and on June 2, 1960, the Government of India (HomeDepartment) wrote to the Chief Secretary to the Government of Punjab indicatingthe view of the Central Government that the such prosecution was not likely tosucceed and also that as Kapur was already involved in two criminal cases andwould be facing his trial in those cases, any action to prosecute him in athird case, might look like chasing a man who was already in serious trouble.In this letter the Punjab Government was requested to consider whether it wasnecessary to pursue that particular case just then.

3. The Government of Punjab does not appear to have pressed its request forsanction and ultimately on the 25th May 1961 the Police submitted the finalreport in the case under s. 173 of the Code of Criminal Procedure praying thatthe case 'should be consigned to record as untraced'. On the samedate the Magistrate made an order directing the case 'to be consigned torecord as untraced'. A similar report was on the same date submitted bythe Police to the Magistrate in the cases started on the report of Daryao Singhand the Magistrate made an order directing the case to be filed as untraced andto be sent to record. On the next date, the 26th of May 1961 an order was madein the name of the Governor of Punjab directing and enquiry against theappellant under the Public Servants (Inquiries) Act, 1850. Later in thejudgment we shall refer to this Act as 'the inquiries Act'. The orderwas in these words :-

'Whereas the Governor ofPunjab is of opinion that there are good grounds for making a formal and publicinquiry into the truth of certain imputations of misbehavior against Shri R.P. Kapur, I.C.S., Commissioner (under suspension) :

'Now, therefore, in exerciseof powers conferred by section 2 of the Public Servants' (Inquiries) Act 1850,the Governor of Punjab hereby orders a formal and public inquiry to be madeinto the truth of the imputation of misbehavior, the substance whereof hasbeen drawn in articles of charge, against the said officer.'

4. It may be mentioned here that some of these charges are in respect ofacts alleged against the appellant in Dhingra's complaint while the othercharges are in respect of acts alleged against him in Daryao Singh's report.

5. Eight articles of charges were drawn up for the purpose of the enquiry.Another order was made by the Governor on the same date appointing Mr. JusticeD. Falshaw, then a puisne Judge of the High Court of Punjab, as Commissionerfor holding the enquiry. Notice was duly served on the appellant of theseorders and also of the article of charge; and he was informed that the Inquirywould commence on August 28, 1961. On July 18, 1961, the appellant applied tothe Punjab High Court under Art. 226 of the Constitution praying for an orderstriking down the order of the Governor dated the 26th May, 1961, for makingthe enquiry against him. Other prayers were that the order appointing Mr.Justice Falshaw as Commissioner for the Inquiry and the notice on the petitionerbe also struck down; a writ of quo warran to be issued against Mr. JusticeFalshaw and a writ of Prohibition against the Commissioner not to proceed withthe inquiry.

6. It is obvious that the real relief that the appellant sought by thispetition was that the order to hold the inquiry should be stuck down. The otherreliefs prayed for are either superfluous or irrelevant.

7. The averments in the petition cover a large number of grounds but theprincipal ground on which the appellant based his prayer may be summarised thus:-

(1) That no inquiry could couldbe held under the Inquiries Act inasmuch as first information reports hadalready been lodged under the Code of Criminal Procedure in respect of the actsmentioned in the article of charge;

(2) That s. 2 of the Inquiry Actwas bad as the word 'misbehaviors' was too vague; and so, thesection gave the Government uncontrolled and uncanalised power to subjectGovernment servants to inquiries under the Act;

(3) That an inquiry under thisAct was more drastic and less advantageous to an officer in the position of theappellant than an inquiry that could be held against an officer in a similarposition under the All India Services (Discipline and Appeal) Rule, 1955,hereinafter referred to as 'the 1955 Rules' and thus resulted ininfringement of Art. 14 of the Constitution;

(4) That the Inquiries Actviolates Arts. 16, 21 and 20(3) of the Constitution and is therefore invalid;

(5) That the Government has actedmala fide in ordering the inquiry.

8. The High Court rejected all the contentions and dismissed the petition.Against that order this appeal has been filed with special leave of this Court.

9. In support of the appeal all the grounds raised in the High Court havebeen urged again before us. After the arguments were concluded, we reservedjudgment for considering the matter raised. When we were considering these itappeared to us that a further question which required consideration, though ithad not been raised before us on behalf of the appellant, was whether under theterms of s. 2 of the Public Servants (Inquiries) Act, 1850, the PunjabGovernment was competent to direct this enquiry under the Act. On the face ofit this question appeared to be concluded by the decision of this Court in SardarKapur Singh v. Union of India : [1960]2SCR569 . As we were of opinion thatsome matters involved in the question required further consideration by alarger Bench, these were accordingly referred to a Bench of seven learnedJudges of this Court. That Bench has delivered its Judgment today. On themajority decision of the Bench it is now finally settled that the PunjabGovernment was competent to direct the inquiry. We shall therefore now proceedto consider the points originally raised by the appellant in support of hisappeal.

10. The first and indeed the most important question of law raised by theappellant, who argued the appeal himself with considerable ability andrestraint, was that no disciplinary proceedings can be commenced against aGovernment servant for any act in respect of which a first information reporthas been recorded under s. 154 of the Code of Criminal Procedure.

11. At one stage of his arguments the appellant put his propositions in aneven wider form and submitted that no inquiry except under the Code of CriminalProcedure can be held at all in respect of any offence under the Indian PenalCode or any other law. For this proposition he relied on Section 5 of the Code ofCriminal Procedure. That section lays done in its first sub-section that alloffences under the Indian Penal Code shall be investigated, inquired into,tried, and otherwise dealt with according to the provisions hereinaftercontained; and in its second sun-section that all offences under any other lawshall be investigated, inquired into, tired and otherwise dale with accordingto the same provisions, but subject to any enactment for the time being inforce regulating the manner or place of investigating, enquiring into, tryingor otherwise dealing with such offences. The appellant emphasise the use of thewords 'otherwise dealt with' in this section and contends that theprovision of the Code of Criminal Procedure have to be followed not only forinvestigation, inquiry or trial of offences but also for dealing with them inany other manner, thus including an inquiry into the truth of the imputations,for the purposes of disciplinary action. We do not think the words'otherwise dealt with' has the significance which the appellantattaches to these. 'Otherwise dealt with' in the section refers inour opinion, to such dealing with offences as is provided for in the provisionsof the Code apart from the provisions for investigation, enquiry or trial. Suchprovisions are to be found in the Code, for instance, in Chapters IV and V.Thus, the provision in section 54 of the Code for an arrest by a police withoutwarrant in certain case may come into operation even before any investigation,enquiry or trial in connection with an offence has commenced. It is unnecessaryto multiply instances but it seems to us clear that the use of the words'otherwise dealt with' in s. 5 does not justify a conclusion thatinquiries in connection with disciplinary proceedings on the basis of offencesalleged to have been committed by the Government servant must also be held inaccordance with the provision of the Code Criminal Procedure.

12. In any case, then argues the appellant, at least when a firstinformation report has been under s. 154 of the Code of Criminal Procedure anyenquiry under the Inquiries Act or any other Rules for a disciplinary actionmust be held to be barred. The argument may best be put thus : Once a firstinformation report has been lodged under s. 154 of the Code of CriminalProcedure an investigation into the correctness of the allegations made in thereport will proceed under Chapter XIV of the Code of Criminal Procedure. Unders. 173 of the Code every such investigation has to be completed withoutunnecessary delay and as soon as it is completed the officer-in-charge of thepolice station has to forward to the Magistrate empowered to take cognizance ofthe offence on a police report, a report as regards the results of theinvestigation. Such a report may either ask the Magistrate to take cognizanceof an offence which according to the police investigation the accused personappears prima facie to have committed or it may state that on such prima faciecase has been made cut. Cases may occur where though an offence has, in theopinion of the investigation officer, been committed, no clue to the identityof the culprit is found or even if such clue is found the culprit is untraced.It is urged by the appellant that where on investigation a prima facie case ismade out against a Government servant the truth to falsity of the allegations canbest be ascertained finally by enquiries or trials in the criminal court thatwould follow. Where on the other hand, the police officer finds that no primafacie case has been made out it would be reasonable to think that the truth ofthe allegations has not been established. In either case, it is said, there isno scope for the truth of the allegations of the commission of an offence by aGovernment servant being investigation by any departmental inquiry.

13. At first sight it does seem reasonable that when a first informationreport has been recorded against a Government servant that he has committed acognizable offence the truth of the same should be ascertained only in aninquiry or trial by the criminal court when a prima facie case is found by theinvestigation and a charge-sheet is submitted. When once that has been donethere is no need for any further inquiry in the same matter. It seems no lessreasonable that if the police on investigation finds that no case is made outfor submission of a charge-sheet the allegation should be held to be untrue, ordoubtful and then also there is no need for any further inquiry in the samematter. We are convinced that in most cases it would be proper and reasonablefor Government to await the result of the police investigation and where theinvestigation is followed by an inquiry or trial the result of such inquiry ortrial, before deciding to take any disciplinary action against any of itsservants. It would be proper and reasonable also, generally, for Government notto take action against a government servant when on investigation by thepolice, it is found that no prima facie case has been made out. Even thoughthis appears to be a reasonable course which we have no doubt is and willordinarily be followed by Government, we are unable to see any legal bar to thegovernment ordering a departmental enquiry even in a case where a firstinformation report under s. 154 having been lodged an investigation willfollow.

14. The appellant's next argument is that the word 'misbehavior'in s. 2 of the Inquiries Act is vague and consequently the Act is bad.'Misbehavior' by a government servant would certainly mean a lapseby him form the proper standard of conduct in the discharge of his functions asa government servant; but the appellant argues that there was at the date ofthe Act in 1850 no ascertainable standard of conduct and so neither thegovernment nor it servants could know certain what would amount to'misbehavior'. This arguments seems to us to be misconceived. Evenin the absence of any detailed instructions or directions as to how agovernment servant should act and conduct himself there would never be anymanner of doubt that a government servant was expected and required to acthonestly and not to use his position as a government servant for enrichinghimself or others. Every dishonest act of a government servant, including actsby which he uses his position for enriching himself or others would clearlyamount to 'misbehavior'. We are unable therefore to accept theappellant's argument that the word 'misbehavior' as used in s. 2 ofthe Inquiry Act is vague.

15. It may be pointed out in this connection that even if the appellant iscorrect in his connection that even of the Act in 1850 no ascertainable standardof conduct for government servants had been laid down this argument is notavailable to his after such standard was clearly laid down in the numerousGovernment Servants' Conduct Rules. So far as the appellant himself isconcerned he was as the date if the order made by government in 1961, governedby the All India Services Conduct Rules, 1954. The attack on the validity ofthe Inquiries Act on the ground that the word 'misbehavior' is vaguemust therefore fail.

16. The next attack on the validity of the Act is on the ground that the itis discriminatory inasmuch as the procedure and provisions of the Inquiries Actare more drastic and less advantageous than those of the 1955 Rules. It is wellsettled that where the government is invested with authority to direct anenquiry in one of two alternative modes and one of the modes is more drasticand less advantageous than the other, an order directing an enquiry under themore drastic and less advantageous mode will amount to an infringement of Art.14 of the Constitution as the more advantageous and less drastic mode may beapplied against another government servant similarly circumstanced. We are notsatisfied however that the procedure and provisions of the Inquiries Act are insubstance less advantageous and more drastic than the 1955 Rules as contendedfor by the appellant. It may by mentioned that in Sardar Kapur Singh's Case : [1960]2SCR569 when a somewhat similar argument was raised against thevalidity of the Inquiries act on the allegation that it was more drastic andless advantageous than an enquiry under Rule 55 of the Classification Rules,this Court contrasted and compared the provisions of the Inquiries Act withRule 55 of the Classification Rules and held that there was no substantialdifference between the two alternative modes of enquiry, The procedure ofenquiry under the 1955 Rule is practically the same as under Rule 55 of theClassification Rules.

17. Faced therefore with the decision in Kapur Singh's Case (Supra) theappellant tried to persuade us the procedure and provisions of an enquiry underthe 1955 Rules were more advantageous to a government servant than those of theInquiries Act in the following respects which were not considered in KapurSingh's Case (Supra) as those advantages were not available under theClassification Rules. These advantages, according to the appellant, are : (1)Under sub-rule 4 of Rule 5 of the 1955 Rules the government servant may requestfor access to official records for the purpose of preparing his writerstatement, but there is no such provision in the Inquiries Act; (2) Undersub-rule 7 of the same Rule a Board of Inquiry shall contain at least onemember who shall be an officer of the service to which government servantbelongs. There is no such provision in the Inquiries Act; (3) Under sub-rule(9) of the Rule the member of the service charged shall be supplied with a copyof the report of enquiry, whereas there is no such provision under theinquiries Act; (4) Under the proviso to sub-rule (9) mentioned above, if thepunishing authority disagrees with any part or whole of the findings of theBoard of Inquiry or the Inquiry Officer, the point or points of suchdisagreement together with a brief statement of the grounds thereof, shall alsobe communicated to the member of the service. There is no similar provisionunder the Inquiries Act.

18. We do not think that these provisions under sub-rules 4, 7 and 9 and theprovision to sub-rule 9 of Rule 5 result in any substantial difference betweenan enquiry under the Inquiries Act and an enquiry under the 1955 Rules. Whileit is true that there is no express provision in the Inquiries Act for anaccess to official records for the purpose of preparing the officer's writtenstatement such as there is in sub-rule 4, we see no reason to think thatsimilar facilities will not be allowed by the authority holding an enquiryunder the inquiries Act. It has to be noticed that under sub-rule 4 the accessto such records may be refused 'if in the government's opinion suchrecords are not strictly relevant to the case or it is not desirable in thepublic interest to allow such access'. We have no doubt that in an enquiryunder the Inquiries Act also the authority holding the enquiry will afford theofficer proper facilities of access to official records for the purpose ofpreparing his written statement except where these appear to be irrelevant orit is satisfied on an objection made the Government that it is not desirable inthe public interest to allow such access. It is reasonable to expect that inactual practice there will be no difference in the matter of access of officialrecords as between an enquiry under the Inquiries Act an enquiry under the 1955Rules.

19. The appellant's contention that in an enquiry under the 1955 Rules hewill have the benefit of having an officer of the service to which he belongstaking part in the enquiry while he cannot have this benefit in an enquiryunder the Inquiries Act appears to be misconceived. Sub-rule 5 of Rule 5 leavesit to the discretion of the government to appoint either a Board of Inquiry oran Inquiry Officer to enquiry into the charges. Indeed, under that sub-rule ifthe government does not consider it necessary to appoint a Board of InquiryOfficer or an Inquiry Officer the enquiry may be held into the charges 'insuch manner as it deems fit'. It is only when a Board of Inquiry isappointed that sub-rule 7 comes into operation and at least one of members ofthe Board has to be an officer of the service to which the member of theservice belongs. It is wrong to think therefore that in an enquiry under the1955 Rules the officer will necessarily have the advantage - if it is anadvantage - of having an officer of the service to which be belongs taking partin the enquiry. There is also nothing to prevent the government to have theenquiry held by an officer of the service to which he belongs even in anenquiry under the Inquiries Act. It is clear therefore that the provisions ofsub-rule 7 does not mean any real difference between the two modes of enquiry.

20. Coming now it sub-rule 9 we find that it provides for a copy of thereport of the enquiry to be supplied to the member of the service after thepunishing authority has arrived at a provisional conclusion that a penalty ofdismissal, removal, compulsory retirement or reduction in rank should beimposed. The Inquiries Act contains no such provision; but the member of theservice will be entitled to get the report under the provision of Art. 311(2)of the Constitution in all cases of proposed dismissal, removal or reduction inrank. The only difference is that while under this Rule the officer will beentitled to get a copy of the report even where a punishment of compulsoryretirement is proposed, the provisions of Art. 311(2) of the Constitution willhave no application to such a case, so that he will not, if the enquiry is heldunder the Inquiries Act, get the benefit of having a copy of the report underthe Inquiries Act if the penalty of compulsory retirement is proposed. It isunnecessary however it consider in the present case whether this differenceamount to a violation of Art. 14 of the Constitution. For it is clear to usthat the penalty of compulsory retirement which can be imposed under the 1955Rules (See R. 3) cannot be imposed on an officer in the position of the presentappellant in view of Art. 314 of the Constitution. The appellant did notcontest that this consequence will flow from Art. 314.

21. It appears to us also that just as under the proviso to sub-rule 9 thepoint or point of disagreement with grounds thereof have to be furnished to theofficer concerned where the punishing authority disagrees with any of thefindings of the report, the same result flows from Art. 311(2) of the Constitution.This was held by this Court in a recent decision - State of Assam v. BimalKumar Pandit : (1963)ILLJ295SC . There is therefore no substance in theappellant's contention that the procedure and provisions of the Inquiries Actare less advantageous and more drastic than an enquiry under the 1955 Rules.The contention that the Inquiries Act violates Art. 14 of the Constitution istherefore rejected.

22. It is not easy to understand the appellant's further contention that theInquiries Act contravenes Art. 16 and Art. 20(3) of the Constitution. Article16 guarantees to all citizens equality of opportunity in matters relating toemployment or appointment to any office under the State. That guarantee ishowever no bar to disciplinary action being taken against a citizen who holdsan office under the State. The fact that the result of such disciplinary actionmay be that a citizen is deprived of promotion cannot possibly be held to be adenial of equality of opportunity relating to employment or appointment. Theappellant also suggested that the provision in section 15 of the Inquiries Actthat a person accused shall be required to make his defence, infringes Art.20(3) of the Constitution Art. 20(3) provides that no persons accused of anyoffence shall be compelled to be a witness against himself. It is difficult tounderstand how a provision that an accused shall be required to make hisdefence amounts to compelling the accused to be a witness against himself.Under this section the accused is not even compelled to make his defence. Thesection merely compels the Inquiring authority to require the accused to make adefence. If the accused chooses not to make any defence s. 15 could not compelhim to do so. The argument that the Inquiries Act contravenes Art. 16 or Art.20(3) of the Constitution is wholly misconceived and is rejected.

23. This brings us to the question whether the Government of Punjab actedmala fide in ordering the enquiry. The appellant's case so that he incurred theseveral displeasure and hostility of the Punjab Chief Minister, Sardar PratapSingh Kairon and for this the Chief Minister has been bent upon his ruin. Tothis end, it is said, the Chief Minister instituted criminal cases against theappellant and even against his wife, mother and mother-in-law through his owncreatures in the expectation that he would get them convicted and sent toprison and thereafter have the appellant dismissed on the basis of his ownconvection. As the cases were transferred for trial to courts in Uttar Pradeshand by May 1961 two of the cases had been disposed of against the prosecution,the Chief Minister felt apprehensive that the other criminal cases might alsoend in the acquittal or discharge of the appellant. So, he hit upon the plan ofhaving an enquiry under the Inquiries Act on the basis of allegations made inthe two cases, viz., Dhingra's complaint and Daryao Singh's report beingapprehensive that even these cases, if charge-sheet were submitted in court,might be transferred to court outside Punjab and were likely to end in theacquittal or discharge of the appellant. The appellant urges that the statementin the Order that the Governor was of opinion that there were good grounds formaking a formal and public enquiry into the truth of certain imputations ofmisbehavior against him, was false, and that the real purpose was not toascertain the truth of the imputations but to harass and humiliate him and ifpossible to impose penalties on him by way of disciplinary action whether ornot the imputation were true or false.

24. The appellant has not been able to produce before us materials toexplain why the Punjab Chief Minister should be personally hostile to him.There are several circumstances however which seem to suggest that whatever bethe reason the Punjab Chief Minister is not friendly to the appellant. Theappellant repeatedly drew our attention to the manner in which the ChiefMinister took it upon himself to accept a complaint of serious changes againsta senior officer like the appellant and directed the AdditionalInspector-General 'to take immediate action in taking over papers fromGovernment Departments concerned and the papers with Shri Dhingra', and tothe direction given by him to the Additional Inspector-General to give 'aprima facie report'. In a previous decision(R. P. Kapur v. Sardar PratapSingh Kairon : [1961]2SCR143 ) of this Court observed thus :-

'We do not know reasons led the Chief Minister tomake the endorsement on the complaint of Dhingra as he did and why instead ofreferring the complaint to the officer in charge of the police station, areference was made to the Additional Inspector-General of the CriminalInvestigation Department. It is not clear why he ordered the seizure of thepapers before even a prima facie report was given in respect of an offence saidto have been committed five years ago.'

25. The Court then proceeded to point out that these were matters on whichthe Chief Minister alone was in a position to enlighten the Court and that'the Chief Minister owned a duty to this Court to file and affidavitstating what the correct position was so far as he remembered'. Eventhrough the appellant made a pointed reference to the Chief Minister'sendorsement on Dhingra's complaint and also set out this Court's observation onthe easier occasion the Chief Minister did not file any affidavit even on thepresent occasion throwing any light on the circumstances under which he actedin this, to say the least, unusual manner. There is the further circumstancethat even through after the investigation of Dhingra's case was completed, theGovernment of Punjab did ask for the Central Government's sanction toprosecutor the appellant under s. 5(2) of the Prevention of Corruption Act, theGovernment of Punjab waited for about a year after the Government of Indiaexpressed its reluctance to give the sanction, before taking further action inthe matter. The manner in which the police proceeded in the matter after thislong delay also appears to be unusual. For, instead of submitting acharge-sheet for the offences found to have been committed by the appellant,the Police Inspector merely asked the Magistrate to consign the case to recordas untraced. This is a most curious procedure, apparently unknown to law. Thelearned Advocate-General, who appeared for the State of Punjab, was unable toexplain how the case could be started as 'untraced'. It may wellhappen in some cases the culprit is untraced. But we do not understand how thecase can be untraced. It is surprising that the police should make such arequest to the Magistrate in the circumstances of Dhingra's case. It is evenmore surprising and indeed it is a matter which has caused us deep concern,that the Magistrate readily did what the police requested him to do. The papersproduced before us show that in his report to the Magistrate the Inspector,C.I.D., mentions the fact that this course had been decided upon inconsultation with 'higher authorities'. Apparently that was what theMagistrate decide. We were not enlightened as to who these 'higherauthorities' were.

26. On the same date, i.e., May 25, 1961, a similar report was submitted bythe police to the Magistrate in the case instituted on the basis of DaryaoSingh's report and the Magistrate readily passed a similar order. That reportitself had been made by Daryao Singh on November 1, 1959 stating that he haddiscovered during the course of investigation of another case that the severaloffences mentioned in the report had been committed by the appellant. There wasa delay of more than six months before this report was forwarded to the police.It is not possible to say clearly from the papers on the record when theinvestigation by the police was completed. That it was completed has not beendisputed before us. It is not known whether the investigation officer found acase made out for the submission of charge-sheet. All that we find is that onMay 25, 1961, that is, a year after the first information report was recordedand a year and six months after Daryao Singh made the report, the Magistrategranted a request of the police that the case should be treated as untraced.

27. Not unnaturally the appellant has laid great stress on the conduct ofthe police in connection with these two cases. Why, asks the appellant, did the'higher authorities' under whose directions the police acted, decideto treat these cases as untraced and at the same time start an enquiry underthe Inquiries Act in respect of some of the allegations in these very cases ?If the intention of the Government was to ascertain the truth of theseimputations, he asks, why was it decided to discard the usual and obviousmethod of enquiry into these in a court of law in favour of the unusual methodof an enquiry under the Inquiries Act The learned Advocate-General did notattempt to answer these question; but he argued that when two alternativemethods were open to the Government for ascertaining the truth of theallegations, the mere fact that one was adopted in preference to the other isno reason to suspect mala fides. The appellant, on the other hand, strenuouslycontends that when the conduct of the police in connection with these two casesis considered in the back-ground of the previous history of the criminal casesinstituted against the appellant, the manner in which the Chief Ministerhimself acted in connection with Dhingra's complaint, the fact that fivecriminal cases against the appellant or the persons in whom he was interestedwere transferred to courts in Uttar Pradesh and the further fact that at thedate when we are considering the matter all these cases have ended in favour ofthe appellant, it is reasonable to think that the enquiry under the InquiriesAct was adopted more as a measure of persecution of the appellant than theascertainment of the truth of the imputations against him. Even if we assumethat these facts by themselves might afford some ground for such a conclusion,we are of opinion that when considered along with other circumstances to whichour attention has been drawn, this conclusion would not be justified.

28. For holding the enquiry the Government has appointed a Judge of the HighCourt of Punjab. It is reasonable to think therefore that the enquiry would befair and impartial. It is true, as pointed out by the appellant, that theGovernment is not in law, bound to accept the report of the InquiringAuthority. It has to be noticed however that the power of the Government toimpose any penalty on the appellant will be limited by the provisions of the1955 Rules. It is clear also that the appellant will be entitled to the rightsof appeal under the 1955 Rules. The penalties which can be imposed are set outin Rule 3. Of these penalties, the penalty No. 5, viz., compulsory retirementon proportionate pension, cannot be imposed on the appellant in view of Art.314 of the Constitution. The other two penalties mentioned in cls. 6 and 7 ofRule 3, viz., dismissal or removal from service, cannot be imposed except by anorder of the Central Government. As regards penalties which can be imposed bythe State Government Rule 6 provides that no order imposing such penalty shallbe passed by the Government except after consultation with the Public ServiceCommission and where there is a difference of opinion between the StateGovernment and the Public Service Commission the matter shall be referred tothe Central Government whose decision thereon shall be final. If therefore itdoes happen that the Inquiring Authority finds the appellant not guilty asregards some or all the changes and the Government considers him guilty ofthose charges, even so the Government will not be in position to impose anypenalty on him unless either the Public Service Commission or the CentralGovernment takes the same view. If a penalty is imposed by the State Governmentwith the concurrence of the Public Service Commission, the member of theservice has a right of appeal to the Central Government. The Circumstances inwhich an appeal can be withheld by the State Government are set out in Rule 14.These, in our opinion, do not interfere with the proper and reasonable exerciseof the right of appeal.

29. A consideration of all these provisions makes it reasonable to thinkthat seven if the Punjab Chief Minister was unfriendly to the appellant hecould not expect to harm him by having recourse to an enquiry under theInquiries Act in preference to a trial in a criminal court. It is therefore notpossible for us to accept as correct the appellant's contention that theinquiries Act was being used only as a device to harass and humiliate him or toimpose penalties on him in any case, nor that the statement in the Order thatthe Governor was of the opinion that there were good grounds for making aformal and public inquiry into the truth of certain imputations of misbehavior,was false. We hold that the appellant's case that the Government of Punjab hasacted mala fide in ordering the enquiry against him has not been established.

30. There remains for consideration the question whether the enquiry underthe Inquiries Act can go on so long as the appellant's complaint againstDhingra which is pending in the criminal court has not been disposed of. Thiscomplaint was made by the appellant in the court of the Magistrate, FirstClass, Chandigarh, alleging that the case instituted against him by Dhingra wasfalse and that Dhingra himself had by making this complaint committed offencesunder Sections 93, 204, 211 and 385 of the India Penal Code. We are informed thatthe hearing of this case is in progress in the court of a Magistrate in U.P.The appellant contends that the holding of the enquiry under the Inquiries Actordered against him would amount to contempt of court. The argument is that theappellant's case in his complaint being that the allegations made by Dhingra inhis complaint against the appellant are false, the criminal court is engaged inexamining the truth or otherwise of those allegation of Dhingra, and an enquiryunder the Inquiries Act would involve the examination of witnesses on the samequestions. This, it is said, will tend to interfere with the properdetermination of the question by the criminal court and so amount to contemptof the criminal court. We do not think it necessary to decide this question forthe purpose of the present case. For, whether or not the holding of such aparallel enquiry under the Inquiries Act would amount to contempt of thecriminal court, we are clearly of opinion that it is wholly undesirable thatthe enquiry under the Inquiries Act should be held at the same time when the trialbefore the criminal court is going on. No particular reason has been shown toexist which makes the immediate commencement of the enquiry essential orotherwise desirable. We think it proper therefore that the enquiry under theInquiries Act should not proceed so long as the appellant's complaint againstDhingra is not finally disposed of.

31. While therefore, we have came to the conclusion that the High Courtrightly refused to issue to the appellant writs prayed for to quash theGovernment's order for enquiry against him and the other prayers maintained inthe petition, we direct that the enquiry should not take place a long as toappellant's complaint against Dhingra is not finally disposed of. The partieswill bear their own costs.

32. Appeal dismissed


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