TMI Blog1954 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the Government of India. Certain imputations of misbehaviour by the petitioner, while holding offices of various descriptions under the Government of India, came to the notice of the Central Government and 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-beads 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 be-fore his court on the 11th of March. 1954. , It is the legality of this proceeding that has been challenged 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 Maqbool Hussain Y. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panelling of the jury. It is not necessary to have a verdict at all(Vide Wills on Constitutional Law, p. 528.). It has also been held by this court in Maqbool Hussain s case([1953] S.C.R.- 703) 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. The facts of this case are no doubt different and the point that requires determination is, whether the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in article 20(2) of the constitution. The questions raised are undoubetdly of some importance and require to be carefully exaimined. 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 servants 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 servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice (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, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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 I an act or omission made punishable by any law for the time 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 prescribed 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 definition of offences described in sections 161 and 165 of the Indian Penal Code and 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 penalties upon public servants for good and sufficient reasons. The rule does not mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer in the Commissioner even opinion about punishment and section 22 only 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 any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1940 and became its Chief Judge in 1946. He was appointed Senior Judge of the Allahabad High Court in 1948 on the amalgamation of the two High Courts in the United Provinces. On retirement from the High Court, he was appointed a member of the Labour Appellate Tribunal and on the 8th September, 1952, he became a Judge of this Court. Prior to his appointment as a Judge, he was a Member of the U. P. Legislative Assembly for two years. He war, also Chairman of the Executive Committee of the Red Cross and St. John Ambulance Association, U. P. Branch, since 1942. He received the honour of Knighthood of the Order of St. John in 1947 in recognition of his humanitarian services. He was interested in educational activities and was a member of the Court of the Aligarh University and a member of the Executive Committee of that University. He had varied social and cultural interests which are quite well known and it is hardly necessary to refer to them. Both as a Member of the Bar and the Bench, Shri Ghulam Hasan distinguished himself by his vast learning, his sense of detachment and high judicial integrity. He was always courteous and patient in his relations with the Bar, as in his rela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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