Mar,;h 30 v. THE UNION OF INDIA & Anr.

Indian Civil Service and till lately was employed as Secretary the Ministry of Commerce and Government of imputations of mis behaviour by the petitioner, while holding offices of India, various descriptions under the Government of <:ame to the notice of the Central Government ar:d that there were prima facie good latter being satisfied 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 in accord ance with the Public Servants (Inquiries) Act of 1850. The substance of the imputa tions 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 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 the peti one of them. The first charge alleged that tioner was guilty of misbehaviour as he showed undue favour to Messrs. Millars Timber and issue of Trading Company Limited in the matter of import and export licences, by abusing his position that 1s, a public servant in the discharge of his duties, by accepting illegal gratification or valuable import and export licences to be recommended recommended by him. The second charge was to the effect that the petitioner accepted or obtained valuable family, things for himself and other members of his without paying Messrs. Millars Timber and Trading Company Limited for recommending their applications for import licences and export permits. The fourth and the fifth charges them, on different dates things articles of inasmuch several 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 another report, informed petitioner and submitted consideration of the prosecutor and the defence and 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" adduced both ·was formally recorded. Evidence was the witnesses on both sides were examined on oath and examined and re-examined in the usual manner. The Commissioner found, on a consideration of the evid sub-heads ence, that four of the charges under various were proved against the petitioner a report to that effect to the Government on the 4th of May, 1953. By a letter dated the 15th of May, 1953, that, on the Government the President careful accepted the opinion of the Commissioner and in view of the findings on the several charges arrived at by the the petitioner latter, was provisionally of opinion that should be dismissed. Opportunity was given to the petitioner by this letter in terms of article 311 (2) of the Constitution to show cause action it was proposed to be taken in regard to him and stated that any representation, which he might desire to make, would be taken into consideration before it seems, did final order was passed. The pet1t1oner, make a representation which was considered 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, charg sections 161/165 of the ing him with offences under Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that, summons were issued to appear by the learned Judge directing the petitioner It is the before his court on the 11th of March, 1954. challenged legality of this proceeding that has been against S.C.R. SUPREME COURT REPORTS 1153 jurisdiction case, before us in this writ petition. The petitioner's in substance, is that the proceedings that have been inasmuch started against him are without as they amount to fresh prosecution already which he has been prosecuted and this comes within the prohibition of article 20(2) of the Constitution. The sole point for our considera tion is, whether in the events that have happened in this case, there has been a violation of mental right of the petitioner under article 20(2) of issue of a the Constitution which would writ for enforcement of the same? and punished for offences justify 1954 S. A. Venkata- v. The Unum of India and Another. Mukherjea ]. ' twice in peril an English court, he 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 be found in the well established rule of English which finds expression in the maxim "Nemo debet bis vexari" -a man must not be put for the If a man is indicted again for the same same offence. offence can plead, as a complete defence, his former acquittal or conv:ction, or as it is technically expressed, take the plea of "autrefois corresponding acquit" or "autrefois convict". 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 life and same offence to be put twice in jeopardy limb". This principle has been recognised and adopted by the in the provisions of section 26 of the General Clauses Act and section 403 of the Criminal Procedure Code. Indian Legislature and is embodied The Although these were the materials which formed the guarantee of the fundamental right background of the ambit given in article 20(2) of the Constitution, 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 the American doctrine jeopardy" "double (•) [1953] S.C.R. 703. 1954 S. A. Venkata-- ram an v. The Union of India and Another. MuldmjeaJ. 1154 SUPREME COURT REPORTS [1954] invoke In order to enable a citizen Constitution. Article 20(2) of our Constitution, it is to the principle of "autrefois be noted, does not contain It seems that our Constitution makers acquit" at all. 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. protection of clause (2) of article 20 of the Constitution, there must , have been both prosecution and punish ment in the same offence. The words "prosecuted and punished" are to be taken not distri butively 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 indictment being presented against reason of a valid him, before a competent court, by proper arraignment and plea and a lawful impanelling of the It is not necessary to have a verdict at ail('). jury. respect of followed It has also been held by this in M aq boo! Hussain's case(' ) that the language of article 20 and the words actually used in it afford a clear indication 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. case the proceedings were taken under the Sea Customs Act before a Customs authority who ordered confisca tion 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) inas much as the Customs authority was not a court or a judicial administrative powers vested in him for revenue purposes. tribunal and merely exercised In (I) Vide Willis on Constitutional law, p. 528. (2) [1953] S.C.R. 703. 1954 S. A. Venkata v. The Union of India and Another. Mukherjea J. S.C.R. SUPREME COURT REPORTS 1155 to enable him to claim The facts of this case are no doubt different and the point that requires determination is, whether petitioner can be _said to have satisfied all the con ditions that are necessary protection of article 20(2). The charges, upon which the petitioner is being prosecuted now, 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 allegations upon which these charges are based substantially subject same which matter 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 ? formed offences identical appointed under Mr. Basu, appearing on behalf of that his client was, in fact, prosecuted before the petitioner, contends Commissioner appointed under Act XXXVII of 1850. This, it argued, was not a mere departmental enquiry of the ). The Com type referred to in Maqbool Hussain's case(1 missioner was a judicial tribunal in the proper sense of the expression. He had to adjudicate on the charges recorded on oath, which he judicially, on evidence, law to administer. The prosecution was authorised by was conducted by a prosecutor 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 compel pro of a court; he could summon witnesses, duction of relevant documents and punish people contempt. At the close of the enquiry, the Commis sioner 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 the Government. Under report to 22 of the Act, however, the Government was entitled to pass it considered pro such orders within its authority, as the President did per and in exercise of this authority the penalty of dismissal. impose upon the petitioner section (r) [1953) S.C.R. 703. 1954 S. A. Venkata- ram an v. The Union of India and Anothtr. Mukheriea ]. 1156 SUPREME COURT REPORTS [1954] immaterial, it is argued, It 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 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 matter of summoning witnesses and compelling production of documents and the report, which he has adduced to make, has to be made on legal evidence under sanction of oath and tested by cross-examination. the conclusion does not But from these facts alone necessarily follow that an enquiry made and concluded under Act XXXVII of 1850 amounts to prosecution contemplated by In order to arrive article 20(2) of the Constitution. at a proper decision on this point, it is necessary examine the entire background of the provisions ing to enquiry into the conduct of public serv.i!llts and to ascertain the exact scope and purpose of the enquiry ultimate result that flows from it. is contemplated by Act XXXVII of 1850 punishment for an offence as 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 appointments at the pleasure of the Crown. Their ass1gmng any terminated without services can be reason and even if any public servant considers is not by he has been unjustly dismissed, his remedy 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 in this country and the servants in the employ of the East India Company also came within the purview of this the advent of British rule (1) Vide Shenton v. Smith [1895] A.G. 229. • S.C.R. SUPREME COURT REPORTS 1157 It is remembered that it was during the to be rule. period of the East the Public India Company 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 at pleasure of the Government to dismiss its servants and this was expressly provided by section 25 of the Act, the wording of which is as follows : 1954 S. A. Venka~a .. v. Tk Union of India and Another. Mukherjea J. "Nothing in this Act shall be construed to affect suspending or the authority of the Government removing any public servant for any cause without 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 thereunder, every person in the civil service 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 he was appointed .................... " by which subordinate 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 which he was appointed. The section by its opening words also makes the exercise of the power subject the rules made under the Act and it was in pursuance the Civil of the provision of section 96-B(Z) 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. Venkata· v. The Union of India and Another. Mukhujea J. 1158 SUPREME COURT REPORTS [1954J others, include, amongst reduction reduction in rank against 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 censure, with penalties holding of increment, dismissal, and removal. Rule 55, which finds a place in the same chapter, to be procedure followed before passing dismissal, any member removal or of the service. No such order shall be passed unless in writing, the person concerned has been informed, of the grounds on which it is proposed to take action against him and has been afforded an adequate oppor tunity of defending to be made regarding his conduct and this may be done either in accordance with the provisions of the Public formal servants (Inquiries) Act of 1850 or in a less and less public manner as is provided for in the itself. himself. An enquiry has These rules have no statutory force and it was held by the Privy Council that when an officer was dismiss the provisions ed from service without complying with of these rules, he had no right of action against Crown('). In other words, the rules, which were not incorporated in a statute, did not restriction upon the right of the Crown to dismiss its servants at pleasure. impose The position was altered to some extent m Government of India Act, 1935, and in addition to restriction imposed by section 96-B ( 1) of the Govern ment 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 showing cause against the action proposed to be taken against him. Article 311(2) of the present Constitution has further the word "removal" after "dismissal" opportunity of (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. • • 1954 S. A. V tnkata~ v, Tm Union of India and Anothtr. MukhMjea]. • S.C.R • SUPREME COURT REPORTS 1159 before "reduction in rank" and thus in all the cases which are covered by rule 55 of the Civil Services Rules, a civil servant has now a constitutional right to opportunity of showing cause the action proposed to be taken in regard to against him. a reasonable to come it to determine As the law stands at present, the only purpose, which an enquiry under Act XXXVII of 1850 could to a be made, is to help the Government a definite conclusion regarding the misbehaviour of public servant and thus enable sionally 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 Govern It ment to adopt any other method if it so chooses. is a matter of convenience merely and nothing else. It is against this background that we will have examine the material provisions of the Public Servants (Inquiries) Act of 1850 and nature and result of the enquiry which the Act con the proceed templates it is at all possible to say that ings taken or concluded under the Act amount prosecution and punishment for a criminal offence. see whether to an "offence" and It may be pointed out that the words "prosecution" and "punishment" have no fixed connotation and are susceptible of both a wider and a narrower mean ing ; but in article 20(2) both these words have been used with reference 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 pres cribes. The acts alleged to have been committed by the petitioner in the present case and on the basis of against him do which the charges have been framed come within the d~~nition of "offences" described Indian Penal Code and sections 161 and 16' of the 9-98 S.C. India/59 .. 1954 S. A. Venkata~ rama11 v. The Union of India and Another. Muklurjea J. , • .. ! 1160 SUPREME COURT REPORTS [1954] sufficient It is to enable imposing certain 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 p~nalties upon speaks of public servants for good and reas<ms. The rule does not mention any particular offence and the Govern obviously can create none. ment 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 rank upon a of removal, dismissal or reduction in 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 Indian Penal Code or which is punishable under 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 investigated, that the several upon which disciplinary action might be taken by Government if it so chooses. The mere fact word "prosecution" has been used, would not make the proceeding before the Commissioner one for pro secution of an offence. As the Commissioner has to form his opinion upon legal evidence, he has been given the to them power to summon witnesses, administer oath and also to compel production of relevant documents. These may be some of the judicial tribunal, but they cannot make the proceeding thing 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 Govern ment regarding his finding on each one of the charges made. This is a mere expression of opinion finality and authoritativeness which are lacks both 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 articles of charge are trappings of a • S.C.R . SUPREME COURT REPORTS 1161 the Commissioner receipt of the report, call upon take further evidence or give further explanation of his opinion. When Special Commissioners are appoint ed, their report could be referred to the court or other authority to which the officer concerned is subordinate opinion for further advice and after different Government has should take. and persons, finally what action to decide authorities taking 1954 S. A. V enkata- v. The Unionoj' India and Another. Mul:/zer.iea ]. in the Commissioner even Then again neither section 21 nor section 22 of the Act says anything about punishment. There 1s no to express any opinion about punishment and section 22 on! y contem plates 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 for an a servant cannot be regarded as a punishment 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 in exercise of on grounds of professional misconduct, disciplinary authority. jurisdiction The professional misconduct might amount to a crimi nal offence, but if we are to accept the petitioner's contention 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. by the proper 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 imposing law which makes that punishment prescribed by the act or omission an offence. The learned Attorney General 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 there any question of 1954 S.A, V .nkata- ram 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 offences here are different, though they may arise out of that we have taken this the same acts. In the view question does not arise for consideration at all. It is also to express any opinion on the question not necessary raised by the learned counsel for the petitioner whether for the purpose of attracting the operation of article 20(2) the punishment must be imposed by the prosecution was same authority before which conducted. petition fai1s and is dismissed. The result is that, in our opinion, Petition dismissed.