Grover, J.:— This is a petition under Article 226 of the Constitution of India for writs and directions in the nature of Mandamus, Prohibition and Quo Warranto in respect of two orders made by the Governor of the Punjab dated 26th May, 1961 for making a formal and public inquiry against the petitioner under the provisions of the Public Servants (Inquiries) Act No. 37 of 1850 (hereinafter to be referred to as the Act) and appointing Mr. Justice D. Falshaw, a Judge of this Court, as Commission of Inquiry. The notice dated 26th May, 1961 enclosing eight articles of charges is also sought to be quashed.
2. It is alleged in the petition that owing to strained relations between the petitioner and the present Chief Minister of the Punjab a number of criminal cases were started against the petitioner, his wife, his mother-in-law, etc., and their Lordships of the Supreme Court, were pleased to transfer all the five cases pending against the petitioner and others to the State of Uttar Pradesh. At the stage of arguments we were informed that another case was also transferred and that out of these six cases five had been disposed of by the Additional District Magistrate of Saharanpur in favour of the petitioner. The inquiry which has been now ordered relates to certain charges which formed the subject-matter of the following two first information reports:—
(1) First information report No. 39 of 1959 registered by the Chandigarh Police Station on the complaint of one M.L Dhingra.
(2) First information report No. 100 of 1960 registered by the Karnal Sadar Police Station on a complaint lodged by Daryo Singh, Inspector, Criminal Investigation Department.
3. As regards the first case, it is alleged that investigation was completed in August/September 1959 and in Criminal Miscellaneous No. 448 of 1959 and undertaking was given by the Advocate General before S.B Capoor, J. on 10th September, 1959 that the report under section 173 of the Code of Criminal Procedure would be submitted within a month but that no such report has been submitted so far. Similarly in the second case, though the investigation had been completed ??? ago, no report under section 173 of the Code of Criminal Procedure has been submitted. The petitioner's case is that having failed to obtain the requisite sanction of the Government of India under section 197 of the Code of Criminal Procedure and the relevant provisions of the Prevention of Corruption Act, 1947, and having realised that there is no case for a “positive report” under section 173 of the Code of Criminal Procedure, respondents 1 and 2 are abusing their power in ordering a formal and public inquiry under the Act. It will be proper at this stage to mention that the learned Advocate-General, who appeared on behalf of the respondents, produced a copy of a letter from the Ministry of Home Affairs, Government of India, New Delhi, dated 2nd June, 1960, addressed to the Chief Secretary to the Government, Punjab, in connection with the first information report registered on the complaint of M.L Dhingra. This letter is reproduced below in its entirety—
“Will you please refer to your official letter No. 1773-GI-60/7167 dated the 26th February, 1960 in which you have asked for sanction of the Central Government for the prosecution of R.P Kapur, I.C.S, under section 5(2) of the Prevention of Corruption Act as required under section 6(c) of the same Act? The Ministry of Law of the Central Government have very carefully examined all the material available and the Union Horae Minister has also carefully gone through the case. There can be no doubt that R.P Kapur, in the transactions relating to the matter, has been guilty of misuse of authority and corrupt behaviour. The complainant, M.L Dhingra, however, also appears to be a very dishonest person and is himself a party to the conspiracy to set will bogus co-operative societies and defraud moneys. The prosecution will largely be based on the evidence of M.L Dhingra and it is unlikely that the court will give much credence to his evidence. Further, the actual file on which certain decisions were taken in the Punjab Secretariat and which would be an important piece of evidence in this case, seems missing and not traceable although it appears that Kaput himself was able to peruse the fils as late as the litter halt of 1959. This would be a further flaw in the prosecution case.
2. The Union Home Minister observes that Kapur is already involved in two criminal cases and will be facing his trial in those cases very soon. If we now take action to prosecute him in a third case, in existing circumstances, it might look like chasing a man who is already in serious trouble. The Union Home Minister would, therefore, like the Punjab Government to consider whether it is necessary for the Punjab Government to persue this particular case just now.”
4. Along with the return, which is accompanied with affidavits including that of the Chief Minister in which all the allegations of hostility against the petitioner and mala fides in the matter of ordering the public inquiry have been denied, copies of two orders made by the Magistrates in respect of the two first information reports in question have been filed. The order relating, to fist information report No. 39 is as follows:—
“On the request of the Police the case is filed as untraced for the present.”
5. The copy did not contain any date on which this order was made but the Advocate-General, who had the original orders with him, has informed us that this order was passed on 25th May, 1961. As regards the other first information report registered at Karnal, an order was made on 25th May, 1961 as follows:—
“Received today after return from Assandh Camp. I have perused the Police report. In view of the Police report, the case is filed as untraced. File to record.”
6. Its has been vehemently contended on behalf of the petitioner that the these orders by the Magistrates by themselves show that the threat of criminal prosecution has been kept alive and the object of ordering the inquiry is merely to circumvent the procedure under the ordinary law of the land, namely, the Criminal Procedure Code. This contention along with the argument addressed on the question of mala fides will he examined in due course as it will be better to dispose of the legal and constitutional points that have been canvassed before us first. The constitutionality and vires of the Act have been challenged on a number of grounds. Tracing the historical background it has been submitted that the Act is an archaic and effete piece of legislation being the product of a time when the conception was one of undiluted imperialistic regime in this country. It was enacted in the year 1850 which was even prior to the time when the Honourable East India Company handed over power to the Crown. The tenure of a Government servant till the enactment of the Government of India Act, 1935, was based on the English doctrine of pleasure of the sovereign “Durante Bene Placito”. As pointed out by Das, C.J, in Parshotam Lal Dhingra v. Union Of India . A.I.R 1958 S.C 36., the established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of the Crown, no matter whether it had been referred to when the engagement had been made or not and that public policy demanded this qualification. In the Government of India Act, 1915, as originally enacted, there was no provision incorporating this doctrine of the English Common Law. Section 96B, which was introduced along with other sections by the Government of India Act, 1919, gave a statutory recognition for the first time to the rule that the servants of the Crown held their offices during the pleasure of the Crown. One restriction was imposed upon the exercise of the Crown's pleasure in that a servant cold not he dismissed by an authority subordinate to that by which his appointment had been made. It was for the first time that sub-section (3) of section 240 of the Government of India Act, 1935, introduced a statutory safeguard in respect of dismissal or reduction in rank of a Government servant which was to the effect that “no such person shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him”. Finally our Constitution makers introduced the safeguards contained in Article 311 and although Article 310(1) embodies the rule that public servants hold their offices during the pleasure of the President or the Governor, as the case may be, that pleasure must be exercised subject to the provisions contained in Article 311. Thus the argument raised is that the entire conception of the position of a Government servant has changed now and although he is still liable to dismissal at the pleasure of the Head of the State, the safeguards provided in the Constitution are paramount and, therefore, his tenure being dependant on mere pleasure has now become subject to what may be called “statutory pleasure”. The Act in this context contains provisions which may have been in consonance with the conception of a pleasure tenure but which now come into conflict which the constitutional safeguards relating to the exercise of that pleasure. The submission made, though specious, cannot effect the constitutionality or vires of the Act unless it can be shown that it is violative of any of the fundamental rights embodied in Part III of the Constitution.
7. A good deal has been said with regard to the various provisions of the Act. It has been emphasised that section 2 contains the words “good grounds” which indicate that there must be an objective decision before ordering a public enquiry into the truth of any imputation of misbehaviour. “Misbehaviour”, however, has not been defined and it is a word of very wide import. This would mean that the opinion which the Government will have to form will be subjective and not objective as appears to be contemplated by use of the words to which reference has been made before. Misbehaviour of a Government servant has been amply defined in various rules contained in the All India Services (Discipline & Appeal) Rules, 1955, but in the Act itself no such definition exists and, therefore, it is not possible to say that there are any ascertainable standards by which misbehaviour or misconduct can be judged. It is sought to establish from all this that section 2 gives unfettered and unrestricted powers to the Government in the matter of ordering a public enquiry against a Government servant which would be violative of Article 14 of the Constitution. The learned Advocate-General has successfully met this submission by referring to various Articles in the Constitution, namely, 124, 148, 217, 317 and 324 in which the word “misbehaviour” has been used. These Articles relate to the removal of Judges of the Supreme Court, the Comptroller & Auditor-General, Judges of the High Court, Members of Public Service Commission and the Chief Election Commissioner. The word “misbehaviour” is not used in Articles 148 and 324 but as the holders of the offices of the Comptroller & Auditor-General and the Chief Election Commissioner are removable only in the same manner as Judges of the Supreme Court, there can be no doubt that these Articles are quite relevant. It is also suggested that the world “misbehaviour” when employed in respect of holders of high offices has a well-understood and well-defined meaning according to the tradition and standards maintained by the members of a particular service or office.
8. Reference has next been made on hf half of the petitioner to certain provisions of the Act from which it is sought to be shown that the procedure laid down therein operates to the prejudice and disadvantage of a Government servant and that he is deprived of the benefits which are conferred by the procedure contained in the All India Services (Discipline & Appeal) Rules, 1955. For instance, it is said that, according to section 11 of the Act, at the begining of the inquiry the prosecutor has to exhibit the articles of charge, which shall be openly read, and the person accused shall thereupon be required to plead “guilty” or “not guilty” to each of them, which pleas shall be forthwith recorded with the articles of charge. If the person accused refuses or without reasonable cause neglects, to appear to answer the charge either personally or by his counsel or agent, he shall be taken to admit the truth of the articles of charge. Section 15 provides that when the case for prosecution is closed, the person accused shall be required to make his defence, orally, or in writing, as he shall prefer. If made orally, it shall not be recorded if made in writing, it shall be recorded after being openly read, and in that case a copy shall be given at the same time to the prosecutor. Thus it is submitted that it is contrary to all known procedures and to rules of natural justice that if a defence is made orally, it should not be recorded and that it should be recorded only when it is made in writing. Section 19 is also characterised as containing a complete departure from the procedure prescribed by the law of the land, namely, the Evidence Act. According to this section, if the person accused makes only an oral defence, and exhibits no evidence, the inquiry shall end with his defence; if he records a written defence, or exhibits evidence, the prosecutor shall be entitled to a general oral reply on the whole case, and may also exhibit evidence to contradict any evidence exhibited for the defence, in which case the person accused shall not be entitled to any adjournment of the proceedings, although such new evidence were not included in the list furnished to him. The right given to the prosecution to produce evidence after the prosecution has closed its case and after the defence has been recorded and evidence led in support thereof is said to give an undue advantage to the prosecution contrary to the ordinary law of evidence and procedure. The other submissions, which have been addressed in respect of the infirmities in the Act, are—
(i) The provisions of the Act militate against a proper reasonable opportunity being afforded of being heard.
(ii) The Act is not based on any reasonable classification with regard to those Government servants against whom a formal and public inquiry can be ordered under it and those against whom a domestic or departmental inquiry can be hold under the All India Services (Discipline & Appeal) Rules, 1955.
(iii) There is nothing in the Act as to the type of misbehaviour which should be considered appropriate for inquiry under the Act or under the Rules.
(iv) The Act is violative of Article 20(3) of the Constitution inasmuch as a Government servant, who may be an accused person, is compelled to disclose his defence in the inquiry.
(v) The Act is violative of Article 16(1) as the inquiry will deprive the petitioner of the right of equality of opportunity.
(vi) It is also violative of Article 19(1)(g) of the Constitution.
9. It may be mentioned that the arguments addressed to us in support of contentions (v) and (vi) relating to violation of Articles 16(1) and 19(1)(g) were not quite intelligible and were pressed only in a half-hearted manner.
10. Now, in Sardar Kapur Singh v. The Union of India . 1960 2 S.C.R 569., then Lordships had occasion to examine the question whether an inquiry ordered under the Act was discriminatory and infringed Article 14 of the Constitution. It was laid down that while guaranteeing to all public servants a reasonable inquiry into their conduct under Article 311(2), as explained by the Court in Khem Chand v. The Union of India . 1958 S.C.R 1080., the Constitution did not guarantee an inquiry under any specific statutory provision or administrative rules. Article 314 no doubt further guaranteed to the members of the Indian Civil Service the same rights in regard to disciplinary actions as they were entitled to immediately before the commencement of the Constitution, which must mean an inquiry either under the Public Servants (Inquiries) Act or rule 55 of the Civil Services (Classification, Control and Appeal) Rules, then in operation, the primary constitutional guarantee to them being one of a reasonable inquiry as mentioned above. There was, therefore, no discrimination simply because the one and not the other procedure was adopted unless it was shown that it operated to the prejudice of the public servant. The various provisions of the Act were examined including sections 11 and 19 which were similarly assailed there as before us though unsuccessfully. Their Lordships affirmed the decision of this Court in Kapur Singh v. Union of India . A.I.R 1956 Punj. 58., in which the validity of the Act had been directly impugned under Article 14 but the Bench had upheld its constitutionality. Neither the petitioner nor Mr. Mani his counsel, both of whom addressed arguments to us, contended that in the aforesaid case the validity of the Act had not been upheld by this Court as also by the Supreme Court. Their submission was that certain points which have now been raised were not canvassed in the previous case and, therefore, the validity and constitutionality of the Act could be challenged before us. As the decision of this Court in that case which included the question of validity of the Act was upheld by their Lordships of the Supreme Court, it is difficult to entertain the contention that because certain points which have been raised now were not raised then or have not been noticed in the judgment of the Supreme Court, it is not binding on us. This is sufficient to make the Act immune from all challenge to its validity and constitutionality on the grounds that have been taken by the petitioner.
11. The grievance of the petitioner is that by ordering an inquiry under the Act the petitioner, against whom the two first information reports are still pending and who must be considered to be a person accused of an offence under them, will be compelled to be a witness against himself and thus the protection afforded by Article 20(3) of the Constitution will be of no avail to him. According to the petitioner, the provisions contained in sections 11, 15, 16 and 19 of the Act are so stringent that it would become necessary for him to disclose his entire defence and produce the necessary documents which may later on be used against him in the criminal Courts when the criminal cases are tried in respect of the two first information reports which can be resuscitated at any stage. The rule laid down in M.P Sharma v. Satish Chandra . 1954 S.C.R 1077., Allen Berry and Co. Private Ltd. v. Vivian Bose . A.I.R 1960 Punj. 86. and Collector of Customs v. Calcutta Motor and Cycle Co. . A.I.R 1958 Cal 682., has been invoked, the rule being that a compelled production of incriminating documents or evidence by a person against whom a first information report has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution and that the inhibition in the aforesaid Article extends to the very first stage. The moment such compulsion is exercised he can claim immunity. The extortion of any evidentiary material even at the stage of investigation which may aid the building up of a case against an accused person must be within the condemnation of the Article. The learned Advocate-General submits that the two first information reports in question have been ordered to be filed and judicial process has not commenced against the petitioner in respect of the said reports nor indeed it could commence unless sanction had been granted by the Central Government under section 197 of the Code of Criminal Procedure. It is stated in unequivocal terms that the police cannot investigate any more now so far as these two first information reports are concerned. Emphasis has been laid on behalf of the petitioner, however, on the language of the orders made by the Magistrates, section 173 of the Code of Criminal Procedure and rule 25.57 of the Punjab Police Rules, 1934 for showing that the investigation has merely been suspended and it cannot be said to have ended by proper orders made under section 173. It is unnecessary to decide this matter, because we are of the view that even if it be considered that the petitioner is in the position of a person who has been accused of certain offences under the two aforesaid first information reports, no question of the applicability of Article 20(3) of the Constitution arises in the present case. The mere fact that the petitioner will have to disclose his defence or produce documents in support of his defence cannot mean that he will be compelled to produce such evidence which may incriminate him. In the first place, the petitioner is not bound to produce any document which may be of an incriminatory nature nor nerd he disclose any fact in his defence which may fall within the mischief of Article 20(3). There is no power given to the Inquiry Commissioner to compel him to make any such statement or produce any such document. In fact his powers are no higher than those of the Courts in the matter of summoning of witnesses and production of documents. In State v. Fundan Lakhammal . A.I.R 1960 Bom. 377., the constitutionality of section 124 of the Bombay Police Act was impugned on the ground that it contravened Article 20(3) of the Constitution. That section called upon an accused person to explain his possession of stolen property. The Bombay Court held that when the accused person was asked to explain his possession, there was no question of his being compelled to incriminate himself. The position was precisely the same as if an accused person were asked to explain his possession under section 342 of the Code of Criminal Procedure. Actually on the argument of the petitioner section 342 itself would be void as contravening Article 20(3). Even in the Calcutta case, on which the petitioner relied, Chakravartti, C.J observed that there could be no objection to ask a person accused of an offence questions by answering which he can clear himself of suspicion or to ask or enable him to produce documents which will prove his innocence. The judgment of a Division Bench of this Court in G.L Salwan v. The Union of India . A.I.R 1960 Punj. 351., effectively meets the petitioner's argument. According to it, a notice calling on a person who may be prosecuted for an offence in relation to the property to show cause why the attachment order in respect of that property should not be made absolute, does not in any way compel him to be a witness against himself. Even if a person in this position has for the purpose of securing the release of the property from attachment to reveal incidentally to whole or part of what his answer to the charge against him will be, the provisions of Article 20(3) of the Constitution are not violated. It is difficult to postulate that while defending the charges in the inquiry the petitioner will be incriminating himself unless he proposes to confess or admit his guilt.
12. It has been pressed on behalf of the petitioner that the action of the Government in ordering an inquiry under the Act is discriminatory and should be struck down as such inasmuch as under the All India Services (Discipline & Appeals) Rules, 1955, even for the penalty of compulsory retirement on proportionate pension the procedure prescribed by rule 5 would have to be followed whereas after an inquiry under the Act the petitioner can be compulsorily retired without, a reasonable opportunity being given to him to show cause against such retirement in view of various decisions of the Courts that Article 311(2) is not attracted to cases of compulsory retirement. It is not possible to see how the question of compulsory retirement is relevant at this stage. It is significant that rule 5 of the Rules itself states that the inquiry contemplated thereby is without prejudice to the provisions of the Act itself. Similar phraseology employed in rule 55 of the Civil Services (Classification, Control & Appeal) Rules was noticed by their Lordships in Kapur Singh's case and it was observed—
“The rule apparently means that an order of dismissal, removal or reduction in rank shall not be passed without an inquiry either according to the procedure prescribed by the Public Servants (Inquiries) Act, 1850, or the procedure prescribed by the Rules.”
13. Even otherwise it is incomprehensible how the petitioner will not have a reasonable opportunity when an inquiry is conducted under the Act before any kind of penalty is imposed on him because the Act is meant for the purpose of affording such an opportunity. The petitioner and his counsel were at pains to point out that rule 5 contained definite provisions which provided greater facilities and safeguards to a Government servant in the matter of inquiry than were to be found in the Act. Now it is clear that sub-rules (1) to (8) of rule 5 incorporate the salient features of what was contained in rule 55 of the Civil Services (Classification, Control & Appeal) Rules. There may be one or two provisions, e.g, those contained in sub-rules (4) and (7) which are not to be found in the old rule 55, but in substance the procedure prescribed is the same. Their Lordships of the Supreme Court considered rule 55 and negatived the plea that an inquiry under the Act would be discriminatory, and on the same reasons that plea cannot be sustained here in respect of rule 5 of the All India Services (Discipline & Appeal) Rules, 1955. Our attention was called to the proviso to Sub-rule (9) of rule 5 which enjoins that if the punishing authority disagrees with any part or whole of the findings of the Board of Inquiry or the Inquiry Officer, the point or points for such disagreement together with brief statement of the grounds thereof shall also be communicated to the member of the Service. Sub-rule (9) relates to a stage which is reached later after the inquiry under the Act has been held and when a show-cause notice is served on the Government servant in order to satisfy condition (c) as laid down in Khem Chand v. Union of India, at pages 1096 and 1097, namely, when an opportunity has to be afforded to a Government servant to make his representation as to why the proposed punishment should not be inflicted on him. Even after an inquiry under the Act, reasonable opportunity will have to be afforded to the petitioner as indicated in the I aforesaid decision of the Supreme Court under Article 311(2). Consequently it must be held that it was open to the Government to order an inquiry under the Act and the exercise of this power is not discriminatory.
14. The contention that since the two first information reports must be considered to be still pending an inquiry under the Act could not have been ordered may now be examined. Reliance was placed on Bhugiram Hazarika v. Superintendent of Police . A.I.R 1954 Assam 18., in which it was observed that where the charges framed against a Sub-Inspector of Police showed that they related to offences under section 29 of the Police Act read with section 342/161, Indian Penal Code, these offences being triable by a Magistrate a departmental inquiry in regard to them was not called for unless the Sub-Inspector had been found guilty or otherwise in a Court of law. These observations, as is clear from paragraph 7, were purely obiter and the final decision proceeded on the assumption that such offences could form the subject matter of a departmental proceeding. According to the decision in The King v. Parmanand . A.I.R 1949 Pat. 222 F.B., when a matter was pending for decision before a Court of justice nothing should be done which might disturb the free course of justice. Any inquiry with regard to a case which was sub judice by the Government for the purpose of satisfying themselves whether the prosecution was likely to end in conviction or not so that they might instruct the Public Prosecutor for withdrawal from prosecution was bound to interfere with the ordinary course of justice and any attempt on the part of an executive official to prejudice the merits of the case and to usurp the functions of the Court would be discountenanced and such a parallel inquiry could not be started by the Government. The facts in this case were entirely different and the so called parallel inquiry had been ordered for the purpose of deciding whether the criminal prosecution should be withdrawn or not. In D. Jones Shield v. N. Ramesam . A.I.R 1955 Andhra 156., the observations of the Patna Full Bench were accepted as laying down the correct law on the subject. In that case also the facts were altogether distinguishable and the question was whether during the pendency of a criminal revision petition before the learned Sessions Judge respondent No. 1, the District Collector, respondent No. 2, his personal assistant, and respondent No. 3, who was the acting Public Prosecutor, had committed contempt by making an inquiry in their departmental capacity into the truth or falsity of the contents of the revision petition. What happened in Saibal Kumar Gupta v. B.K Sen . A.I.R 1961 S.C 633., was that during the pendency of the proceedings in the Magistrate's Court as well as in the High Court against the Commissioner of the Calcutta Corporation, a Special Committee was set up to inquire into the conduct of certain servants, including the Commissioner, alleged to have been taking advantage of their offices in carrying on business in their own names. In the course of the inquiry the Committee sent a questionnaire to the Commissioner seeking to inquire whether he had made certain appointments of persons who were either related to the prosecution witnesses in the criminal case or were helping him in conducting his defence in that case. According to the majority judgment, it was held that the circumstances did not establish that the Special Committee had constituted itself as a Court of a parallel inquiry to look into the matters in issue in the criminal case pending in the High Court. The conduct of the Committee did not tend to interfere with the course of justice and the members were not guilty of the offence of contempt. It was even observed by Imam, J., who delivered the majority judgment, that what exactly was meant by a Court of parallel inquiry was not clear. It is noteworthy that in the present case there are no proceedings pending at the moment either in the Court of a Magistrate or in any other competent Court relating to the two first information reports. It may be that investigation in respect of these first information reports can be revived or started again by the police but that situation has not yet arisen and there can be no parallel between an inquiry under the Act, which is meant for the purpose of imposing such penalties as dismissal, removal or reduction in rank if the charges are finally proved against the petitioner, and those inquiries which departmental officers might embark on of the nature which were condemned in some of the cases referred to and which tend to ambarrass and prejudice the fair trial of a person against whom criminal proceedings are pending in a competent Court. Indeed, there is volume of authority for the view that the mere fact that the charges framed against a public servant may make out the ingredients of an offence punishable under the Penal Code and that a person can be prosecuted in a criminal Court does not effect the jurisdiction of a superior officer to inquire into the truth of the charges in a departmental inquiry or to punish him, if the charges are proved, without recourse to a criminal Court (vide Karuppa Udaya v. The State of Madras . A.I.R 1956 Mad 460., The State of Madhya Pradesh v. Ladli Saran Sinha . A.I.R 1958 M.P 326. and S. Dalmer Singh v. State of Pepsu . A.I.R 1955 Pepsu 97..) As has been rightly observed in the Madhya Pradesh case, where misconduct of a civil servant constitutes an offence, a departmental inquiry can be held and he can be dismissed or removed as a result of the findings of the inquiry and this is clear from proviso (a) to sub-clause (2) of Article 311, which shows that departmental inquiry can be held against a civil servant without his being prosecuted and convicted in a criminal Court, but that if he is prosecuted and convicted, then for his consequential dismissal, removal or reduction in rank it is not necessary to comply with the provisions of Article 311(2) of the Constitution. In K.R Sharma v. The State of Punjab . Cr W. No. 49 of 1957., Criminal Writ No. 49 of 1957, decided by Bishan Narain, J. on 15th January, 1958, the petitioner was a Suprintending Engineer against whom first information report had been made on 22nd April, 1955 wherein allegations of offences under section 161, Indian-Penal Code, and under the Prevention of Corruption Act had been made. The Government started departmental inquiry against him under the Civil Services (Appeal and Punishment) Rules in November 1955. That inquiry was pending when the petitioner moved this Court under Article 226. One of the pleas taken by the State was that it was open to the competent authority to have the matter thrashed out in a departmental inquiry before deciding whether or not to accord sanction under section 6 of the Prevention of Corruption Act, 1947. It was argued that the departmental inquiry was being held with the ulterior object of enabling the Government to make up its mind as to whether or not sanction to prosecute should be granted. This contention was rejected with the observation that the departmental inquiry was being held to determine if any action under the Service Rules should be taken against the petitioner. The learned Judges relied on a decision of the Supreme Court in V.D Jhingan v. The State . A.I.R 1958 S.C 107. (Criminal Appeal No. 25 of 1956) in which the following observations had been made:
“Indeed, it may be legitimately said that the Government preferred to await the result of a departmental inquiry. If that inquiry exonerated the appellant the occasion for granting a sanction may not arise. If, on the other hand, the departmental inquiry established the allegation against the appellant, the Government might find itself in possession of more material than that disclosed by the police investigation on which to decide whether a sanction should or should not be granted.”
15. In Shri Ved Parkash Ckohan v. The State of Punjab . C.W No. 878 of 1958. (Civil Writ No. 878 of 1958) decided by Gosain, J. on 30th January, 1959, the investigation in respect of various alleged offences under the Penal Code and the Prevention of Corruption Act had continued for a long time and then a departmental inquiry was ordered against the petitioner in that case. This inquiry was sought to be quashed on the ground that the findings arrived at in the inquiry would very seriously prejudice the petitioner in the criminal prosecution which was imminent. Gosain, J. also relied on the observations of the Supreme Court referred to before and declined to quash the inquiry on the ground that till sanction had been accorded for prosecution, there was no bar to the making of an inquiry. Thus it is not possible to hold that when no sanction for prosecution of the petitioner has yet been granted in respect of the charges preferred in the two first information reports, the inquiry under the Act against the petitioner could not have been ordered or cannot proceed.
16. The question of competence of the State Government to appoint a Judge of this Court as a Commission of Inquiry is covered by the decision in Kapur Singh's case and the challenge of the petitioner to the appointment of Mr. Justice Falshaw must be repelled on that ground. It has been laid down at page 577 that the expression “Government” is defined by section 23 of the Act as meaning Central Government in case of persons employed under that Government and the State Government in the case of persons employed under that Government. Kapur Singh was, at the date when the inquiry was directed, employed under the East Punjab Government and there was nothing in the Constitution which abrogated the authority of the State to direct an inquiry under section 2 of the Act. Similarly the petitioner is employed under the Punjab Government and the State would be perfectly competent to direct an inquiry under the Act against him. There is no force in the allied submission of the petitioner that a Judge of this Court could not be appointed as a Commission of Inquiry by the Governor, the contention being that such an appointment is repugnant to Article 217 read with paragraph 11 of the Second Schedule of the Constitution, which makes it clear that a Judge of a High Court may be called upon to perform functions other than those of his office, only at the request of the President and in no other manner whatsoever. In paragraph 17 of the return it is stated that in respect of the matters arising out of the two first information reports the Government of India was approached for according approval to the acting of Mr. Justice Falshaw as Commissioner for Inquiry. The Government of India asked for the articles of charges and statement of allegations against the petitioner. After these were sent, the Government of India granted approval to the acting of Mr. Justice Falshaw as Commissioner for Inquiry. Indeed, the learned Advocate-General produced a letter from tie Government of India showing that the appointment of the Commissioner was made with the approval of the President of India.
17. The last contention of the petitioner on which a great deal of stress was laid arises out of allegations of mala fides in the matter of ordering an inquiry under the Act. The allegations on which this submission is based have been set out substantially in the opening part of the judgment. As these were denied by the respondents, they were sought to be substantiated not only by the facts alleged in the petition but also by certain observations contained in the judgments of their Lordships of the Supreme Court arising out of petitions for transfer and other petitions intituted by the petitioner in the Supreme Court. In Transfer Petition No. 19 of 1960, disposed of on 16th December, 1960, the petitioner had made specific allegations of hostility of the Chief Minister. The cases were transferred to the District Magistrate, Saharanpur, in the State of Uttar Pradesh with the following observations:—
“On a consideration of the entire material placed before us, we have come to the conclusion that the petitioners have reasonable apprehension that they will not have a fair trial in the subordinate Courts in the State of Punjab and that it is expedient in the interests of justice that the aforesaid four cases should be transferred from the Courts where they were now pending to a Criminal Court subordinate to the Allahabad High Court.”
18. But, as the learned Advocate-General points out, no finding was given nor any observation was made which would show that the Chief Minister was in fact inimical or hostile to the petitioner. In the transfer petition all that had to be seen was whether there was a reasonable apprehension in the mind of the petitioner that he would not get justice in the subordinate Courts in the State of Punjab. Indeed, this was specifically stated by their Lordships at page 3 of the unreported judgment and it was made clear that—
“Any observations that we make in the course of the judgment are not intended to express our final opinion on any question of fact involved in the various proceedings or to make any aspersions against the conduct or the character of any person that figures in these procedings.”
19. In R.P Kapur v. Sardar Partafi Singh Kairon . A.I.R 1961 S.C 1117., it was observed that in view of the allegations made against him, the Chief Minister owed a duty to the Court to file an affidavit stating the correct position regard-the allegations so far as he remembered it. Apart from the other cases, first information report No. 39 of 1959 instituted on the complaint of Dhingra also figured in that case. The learned counsel for the petitioners had submitted inter alia to the Supreme Court that even if the procedure adopted was warranted by law, it was a departure from the normal procedure and had been adopted with “an evil eye and unequal hand” so as to put the petitioners to harassment and persecution. The learned Advocate-General points out that the allegations of the petitioner against the Chief Minister relating to mala fides were rejected by their Lordships in these words at page 1120:
“We do not think that petitioner No. 1 has been able to advance his case any further in spite of the fact that the Chief Minister has made no affidavit a matter to which we shall advert later. * * *
We have, therefore, come to the conclusion that the petitioners have not established what they have alleged, namely, that R.P Kapur, one of the petitioners, had incurred the displeasure of the Chief Minister by reason of what happened in the Grewal case and the Sangrur case. Whether there were other reasons, administrative or otherwise, for the displeasure of the Chief Minister is a matter which is not germane to the present case.”
20. The learned Advocate-General submits that these observations are sufficiently clear for the purpose of dispelling the cloud of mala fides that has been sought to be raised by the petitioner. He has also contended that the question of mala fides is irrelevant when an inquiry has been ordered under the Act which is meant to afford a proper and reasonable opportunity to a Government servant to clear his position and refute the charges that have been preferred against him. According to him, the question of hostility or strained relations between the Chief Minister and the petitioner is not pertinent for the purpose of deciding the validity and legality of the impugned orders for the simple reason that it is not the Chief Minister or the Governor who would be competent to pass the final orders against the petitioner and it is the President alone who can impose penalty on him. All that will happen is that the report of the Inquiry Commissioner will be submitted to the President and thereafter a proper show-cause notice will be issued, if any punishment is proposed to be inflicted on the petitioner. Then the final orders will be made by the President after consultation with the Union Public Service Commission. Thus the petitioner can possibly have no justification for raising the question of mala fides on the part of the respondents. The petitioner has drawn our attention to section 22 of the Act, according to which the Government is empowered to refer the report of the Commissioner to some other authority to which the person accused is subordinate for its opinion on the case and to prefer additional articles of charges later on which will have to be inquired into in the same manner as the original charges. It is vehemently urged that the consistent course that has been followed so far of a number of criminal cases having been started against the petitioner coupled with the fact that no final orders have been made by the Magistrates under section 173 of the Criminal Procedure Code in respect of the two first information reports in spite of lapse of so much time would justify an inference that the petitioner will be subjected to further harassment and the report of the Inquiry Commissioner will not be treated as final. After giving the matter full consideration we are of the view that the impugned orders cannot be struck down as having been inspired by improper and mala fide considerations. It is significant that the senior most puisne Judge of this Court has been appointed as the Commission of Inquiry and the petitioner himself stated categorically while arguing his own case that he had the fullest confidence in the impartiality and integrity of the Inquiry Commissioner. After his report is submitted, whatever action is to be taken at the stage of determination of tentative punishment, if any is proposed to he inflicted, it will be done by the President and the final orders will also be made by the President, and all this will have to be done after consultation with the Union Public Service Commission in accordance with the provisions contained in Article 320(3)(c). No criminal prosecution on the charges in question is pending against the petitioner in any competent Court nor indeed any Court could take cognisance of the offences disclosed in the two first information reports in question without the sanction of the Government of India which has admittedly not yet been granted. Actually the petitioner is going to be given an opportunity before a completely impartial Commissioner to clear the charges that have been preferred against him. All this constitutes a complete guarantee that the inquiry has been ordered not with any ulterior motives but with the object of inquiring into the charges made against the petitioner, and this has been done in accordance with the relevant statutory provisions. In the result, this petition fails and it is dismissed. Parties are left to bear their own costs.
21. G.D Khosla, C.J:— I agree.
22. Petition dismissed.