Patna High Court
Bankim Chandra Mukherji vs State Of Bihar on 10 April, 1956
Equivalent citations: AIR1956PAT384, AIR 1956 PATNA 384
JUDGMENT Imam J. 1. This is an application under Article 226 of the Constitution of India for issuing a writ in the nature of a writ of certiorari or any other appropriate writ, with a prayer that this Court should direct the opposite party to revoke the order dismissing the petitioner on 31-10-1949, based on the report of the Commissioner, and to further direct that the petitioner be treated as continuing as a member of the Bihar Civil Service. 2. The case of the petitioner, Sri Bankim Chandra Mukherji, is that he joined the service of the Government of Bihar and Orissa in 1922 as a Sub Deputy Collector and that in 1930 he was promoted to the rank of Deputy Collector on account of his efficiency; that in 1932," the petitioner was specially appointed to the post of inspector of Mica Accounts under the Bihar and Orrissa Mica Act of 1930, and was stationed at Kodarma in the district of Hazaribagh; that for his good work, the Government awarded him a sanad and also conferred the title of Rai Saheb on him; that the petitioner had the misfortune of coming in conflict with Sri K. B. Sahay, an influential Congress leader in the district of Hazaribagh, concerning the administration of the Mica Act and also with regard to the prosecution of a wealthy mica dealer; it is alleged that the "Searchlight" had severely criticised the petitioner's administration under the Act and that the paper had done so at the instance of Sri K. B. Sahay; that ultimately the allegations made by the 'Searchlight' were withdrawn and the paper apologised to the petitioner; it is further alleged that when the Congress took office for the first time in 1937, the petitioner was removed from the post of the Inspector of Mica Accounts and was transferred to Gaya, though every effort was made for the postponement of the transfer through the recommendation of the Deputy Commissioner which recommendation was rejected by the Government; that in 1939, the petitioner was appointed Subdivisional Officer at Gaya, and whilst he was there, war broke out, and in 1940, the petitioner's services were requisitioned by the Government of India for employment as Additional Mica Inspector under the Government of India in order to control the export of mica; that in July 1943, the petitioner was posted to Araria as Subdivisional Officer and was there as such till September, 1946; that on account of the petitioner's good record, he was promoted to the rank of Additional District Magistrate in 1946; that whilst the petitioner was at Araria as Subdivisional Officer, he had to take stern measures for checking blackmarketing and profiteering and remedying the affairs of three public institutions, namely, the Araria High English School, the Co-operative Bank and the Girls' School; that due to the stern measures, the petitioner incurred bitter hostility of a group of businessmen and some lawyers; that some of these businessmen combined against the petitioner to humiliate and punish him for the steps which he had taken against them; that some of these businessmen became principal witnesses against the petitioner in the enquiry against the petitioner that was held by the Commissioner subsequently; that in the middle of 1945, in consequence of the conspiracy hatched against the petitioner petitions were filed before the Provincial Government making allegations against the petitioner's honesty and integrity; that under the orders of the Government, the District Magistrate was directed to hold an enquiry into the allegations, and these allegations were found to be false, and the District Magistrate was directed to take action against the mischief mongers; that after the Congress had come into office in April, 1946, the petitioner's enemies approached the Government and renewed their allegations against the petitioner, and the petitioner was again subjected to the same kind of unfair treatment as in 1937 and 1938; that the Congress Government in spite of the result of the enquiry held during the term of the previous Government took no action against the mischief-mongers, and that on the basis of the allegations made by the enemies of the petitioner with the backing of the C. I. D. officer, Mr. K. N. Mishra, an enquiry was further held against the petitioner, and that also failed and no action was taken against the petitioner; that the Anti-Corruption Department secured the Government's permission to resume the enquiry and submitted a report to the Government against the petitioner towards the end of 1947 on the basis of materials gathered by Rameshwar Singh, who was then an officiating D. S. P. and who was himself tried on a charge of bribery shortly before his recruitment to the Anti-Corruption Department; that on receipt of the report of the Anti-Corruption Department, the Government suspended the petitioner in February, 1948, without calling for any explanation from him and resolved to hold an enquiry under the Public Servants (Enquiries) Act, 1850 ; that on the petitioner having pointed out the irregularity and impropriety of these orders to the Chief Secretary, the Chief Minister recalled the orders suspending the petitioner and directed that instead of the proposed enquiry the petitioner should be called upon to meet the allegations etc.; it is alleged that whilst the petitioner awaited the receipt of a copy of the report of the Anti-Corruption Department for submitting his explanation, the petitioner received an order from the Government to the effect that the enquiry under the Public Servants (Enquiries) Act, 1850, as previously contemplated would be held at Patna before Sri H. P. Sinha, appointed as Commissioner; that the enquiry was held by Sri H. P. Sinha who reported to the Government against the petitioner; that the recommendations of the Commissioner were accepted by the Government and the petitioner was dismissed by the order of Government on 31-10-1849; that the petitioner preferred an appeal to the Governor of Bihar in May, 1950, through the Government under Section 241, Government of India Act, 1935, read with Article 313, of the Constitution of India, but in spite of several reminders having been sent to the authorities concerned, the. result of the appeal was never conveyed to the petitioner; that under the letter dated 15-4-1953, from the Secretary to the Governor of Bihar, the petitioner had been advised that the matter had been forwarded to the Chief Secretary to the Government of Bihar for disposal to whom any further correspondence on the subject should be addressed. 3. It is the petitioner's case further that the enquiry held by the Commissioner was attended with serious illegalities and irregularities regarding the procedure followed as also with regard to the substantive rights of the petitioner; that the provisions of the Indian Evidence Act regarding the proof of documents had not been complied with; that having called for documents at the cost of the petitioner, the learned Commissioner denied opportunities to the petitioner to prove such documents in the manner prescribed by the Evidence Act arid refused to consider them in exculpation of the charges against the petitioner, although such documents were very relevant for the purpose of the defence of the petitioner; that the Commissioner had not given adequate opportunities to the petitioner to defend himself, inasmuch as the Commissioner refused to call for certain" material documents in support of the defence of the petitioner; that so far as the findings of the Commissioner regarding charges III, V(a) and (c) were concerned, they were not based on evidence, inasmuch as the findings were based on the tainted and uncorroborated testimony of only one witness; that the commissioner had, suggested to the petitioner, though an accused, that he should be examined on oath, and he was, therefore, examined on oath and thereafter he had to withstand the test of cross-examination by the prosecution in a manner unknown to the system of Indian Jurisprudence and also against the provisions of the Public Servants (Enquiries) Act, 1850; that the Commissioner was prejudicial to the petitioner as would appear from his report; that some of the findings of the Commissioner were based on unproved documents which were inadmissible in law and some had no bearing on the charge V(b); that the findings of the Commissioner under charges V(b) and V(c) are vitiated as they are based on hearsay evidence, that the findings of the Commissioner under charges Kb) and (c) as well as under charges V(a), V(b) and V(c) cannot be sustained as they are based on 'ex parte' evidence given by the prosecution ignoring the evidence led in defence by the petitioner and the admission of some of the prosecution witnesses in cross-examination; that the findings of the Commissioner with respect to charges I(a) to I(h), II(a), II(b), III, V as also V(b) are based on no evidence, oral or documentary; that the report made by the Commissioner, ignoring the material facts and circumstances and credence being placed on illegal, unreliable and tainted prosecution evidence, is vitiated by reason of non-consideration of material evidence apparent on the face of the record; that the opposite party failed to consider the objections raised by the petitioner and also did not apply their judicial mind before accepting the report and making the order complained of; that the petitioner preferred an appeal which has not been disposed of and that having regard to the reply received from the Secretary to the Governor, there is no chance of the appeal being disposed of by the appellate authority. 4. In a separate petition, the petitioner further alleged as follows : That his dismissal from the service dated 31-10-1949, was communicated to him by Memo No. 8726A by the Under Secretary to the Government; that the signature of the Under Secretary on the aforesaid memo of communication bears date 26-10-1949; that the entire resolution of the Government about his dismissal as well as the memo of communication were typed by Sri R. P. Sinha on 25-10-1949; that although apparently the order of dismissal was passed by the Government by a resolution on 31-10-1949, it does not appear how the said order could be typed on 25-10-1949, and the memo of communication of the said order to the petitioner could be signed by the Under Secretary on 26-10-1949, when on those dales the order in question could not be in existence at all; that the only conclusion that could be made is that the order of dismissal in question was already passed by the Secretary concerned on or before 25-10-1949, and not by the authority competent to pass it, and therefore, obviously before the order was actually passed, the Provincial Government did not apply their mind to the report and findings of the Commissioner as stated in the resolution dated 31-10-1949; hence the dismissal order was without jurisdiction; that the resolution dated 31-10-1949, makes no mention of the fact that the Provincial Government considered the representation made by the petitioner in his show cause petition against the proposed punishment of dismissal; that in these circumstances, it is clear that the spirit of the mandatory provisions of Section 240(3), Government of India Act, 1935, has been violated, and that the order of dismissal is also for that reason illegal and without jurisdiction. 5. A counter-affidavit on behalf of the State of Bihar was filed in answer to the allegations made by the petitioner in his petitions. The affidavit is sworn to by the Registrar of the Appointment Department to the Government of Bihar, namely, Mr. Mohammad Zafar Alaim. This petition denies the fact that there was any conflict between Sri K. B. Sahay and the petitioner, as alleged by the petitioner, and as regards the removal of the petitioner from the post of Inspector of Mica Accounts, it Is said that the petitioner himself sought reversion to the general line. As regards the allegation of the petitioner that there was a conspiracy hatched against him, the deponent refers to the finding of the Commissioner on the point which is to the effect that no satisfactory evidence had been produced to prove this. So far as the allegations of the petitioner that the mischief-mongers were not proceeded against and that the Congress Government had treated him unfairly in 1937-38 and also in 1946 are concerned, it is stated that these insinuations are without any foundation whatsoever, and it is apparent from the report of the Commissioner that these allegations were not substantiated. The deponent also denies that there was any political backing behind the allegations as alleged by the petitioner. So far as the allegation that Sri K. N. Mishra reported that there was no basis for the charges against the petitioner is concerned, it is absolutely untrue. The allegation of the petitioner that an enquiry by the Anti-Corruption Department was held at the instance of the enemies of the petitioner is not correct, and that what really happened was that the enquiry by the Anti-Corruption Department was ordered by the Chief Secretary upon the report of Sri M. N. Pandey. So far as the allegations against Sri Rameshwar Singh are concerned, it was found by the Commissioner that the evidence collected by him could be relied upon and was acceptable. The deponent has denied the fact that the Commissioner declined even to accept a registered cover praying for adjournment of the case, as there is nothing in the proceeding of the Commissioner to indicate that such a cover reached the Commissioner and he declined to accept it. Some other allegations also made by the petitioner have been denied by the deponent, and it is not necessary to refer to them all. The deponent further says that there was no violation of the provisions of the Public Servants (Enquiries) Act, as alleged by the petitioner. Documents having been admitted into evidence without objection and on the examination and scrutiny of the defence or with their consent or on admission as mentioned in the list of documents, original or supplementary, no prejudice has been caused to the defence by the admission of such documents. Further these documents were either copies of notifications of the Government of Bihar or the Government of India of the departments to the District Magistrates or the Subdivisional Officers, and all of which were obviously known to the petitioner and were marked on admission or without objection. That the allegations of the petitioner in paras 5 to 9 of the supplementary petition are the result of a misapprehension on the part of the petitioner, and that the fact is that the dismissal of the petitioner from service was considered at a meeting of the Council of Ministers held on 11-10-1949, and it was approved on that very date. This was communicated under memo No. 8321-A, dated 14-10-1949, to the Appointment Department, where the formal resolution of dismissal was drawn up thereafter and finally typed on 25-10-1949, and signed by the Under Secretary on 26-10-1949, and despatched to the officer or person concerned on 31-10-1949, which was the date of issue. That memo, bears the number as it was on 31-10-1949. The petitioner erroneously had taken the date of issue to be the date on which the order of dismissal was passed, and thus the allegations of the petitioners in paras 5 to 9 of the supplementary. petition are due to misapprehension. The deponent further alleges that the order of dismissal was not, and could not be, passed by the Secretary, be it on or before 24-10-1949, but was passed by the Council of Ministers on 11-10-1949, as an authority, competent to pass such an order. Thus, the State Government did apply their mind to the report and the finding of the Commissioner and disposed of the matter finally on 11-10-1949, and it cannot be said that the spirit of the mandatory provisions of Section 240(3), Government of India Act, 1935, has been violated. It is further alleged by the deponent that no appeal lies from the order passed by the Governor dismissing the petitioner from service, and therefore, no action was called for; that the petitioner took no further steps after the order of dismissal as far back as 1949 until of course this petition under Article 226 of the Constitution; that the allegation of the petitioner that there had been irregularities and illegalities as to the procedure under the Public Servants (Enquiries) Act, or as to the substantive rights will appear to be entirely baseless upon a mere perusal of the record of the Commissioner; that the Indian Evidence Act is not applicable to a proceeding before the Commissioner under the Public Servants (Enquiries) Act; that the documents referred to in sub-para (a) of para 28 of the original petition were marked without objection from the petitioner and that the custody and seizure of the books were proved and the entries therein used as evidence. As regards the allegation of the petitioner that the Commissioner denied opportunities to the petitioner to prove the documents mentioned in annexure 'X', it is stated that this is not so. What the Commissioner did was that he had called for the documents at the risk of the petitioner; that the allegation of the petitioner that the Commissioner arbitrarily refused to call for certain documents and thereby denied him adequate opportunity to defend himself is entirely untrue. From the order sheet dated 9-7-1948, it would appear that the Commissioner had specifically stated that if any particular document was to be produced, a copy of the same was to be filed, but no step was taken by the petitioner, and he cannot, therefore, complain of non-coming of documents. The allegation of the petitioner that charges III and V(a) and (c) are based on no evidence or on tainted evidence is not true, as the Commissioner has given adequate reasons for the findings arrived at by him regarding these charges. The allegation of the petitioner that he was examined at the suggestion of the Commissioner is not correct. The fact is that the petitioner did examine himself as a defence witness, and therefore, he was subjected to cross-examination under the Public Servants (Enquiries) Act. It is also alleged by the deponent that hearsay evidence is not excluded under the Public Servants (Enquiries) Act, and the allegation that the evidence on behalf of the defence has not been considered is entirely false. The allegation, therefore, that the finding of the Commissioner is based on 'ex parte' evidence is thus untrue. 6. The petitioner put in a petition by way of a rejoinder to the allegations made by Mr. Alam. The petitioner states that he does not admit at all the statements made by Mr. Alam. The petitioner prays that in the interest of justice the opposite party and Mr. Alam should be directed to produce in Court the materials upon which and the records on which the statements of the said counter-affidavit have been made and from which the information is claimed therein to have been derived. It is also prayed that in view of the statements made by Mr. Alam in the counter-affidavit, it is desirable and necessary in the interest of justice to call for certain material documents which have been described in the affidavit in paras 3 and 12, namely, interpellation in the Legislative Council, the service record (Character Roll) of the petitioner, the service record (Character Roll) of Sri Bikramjit Singh who was D. S. P. at Araria in 1245-46, particularly the report of Mr. Lee, the then S. P. of Purnea. As regards para 16 of the counter-affidavit, all that the petitioner has to say in his petition is that they are vague statements. Paragraph 16 is on the point of certain documents having been taken into evidence, without proof, and the deponent Mr. Alam says that they were taken without objection. It will be noticed that this is not denied, but all that is said is that the statements are vague. The petitioner further says that the statement of Mr. Alam that the petitioner was not denied-opportunities to bring the documents mentioned in annexure 'X' is wrong. He further says that Mr. Alam has deliberately misstated on the point of the petitioner being examined as a defence witness; but what actually happened was that he was called upon by the Commissioner to come to the witness-box and make a deposition. In other words, he was examined at the instance of the Commissioner. 7. The petitioner has also filed another petition in which he says that on 8-5-1950, he personally filed his appeal before the Chief Secretary to the Government of Bihar for being sent to the Governor of Bihar under Rule 63 of the Civil Services (Classification, Control and Appeal) Rules; that the petitioner has not received any information as regards the appeal; that the petitioner has reasons to believe that the appeal has not been forwarded to the Governor of Bihar; that the petitioner had sent several reminders to the Secretary to the Governor of Bihar and the Chief Secretary to the Government of Bihar, and finally on 5-4-1953, the petitioner sent another reminder to the Secretary to the Governor of Eihar, forwarding a copy of the same to the Chief Secretary, and that the petitioner received the following reply from the Secretariat of the Governor of Bihar : "Governor's Secretary, Bihar No, 1184 G. S. P. O. Bihar Governor's Camp, dated the 15th April 53, Dear Sir, I am desired to acknowledge receipt of your petition dated 5-4-53, and to inform you that it has been forwarded to the Chief Secretary to Government, Bihar for disposal to whom any further correspondence on the subject should be addressed, Yours faithfully, Sd/- A. Bose. For Secretary to the Governor, Bihar." It is alleged chat from this letter it is clear that the appeal of the petitioner has not been sent by the Chief Secretary to the Governor of Bihar, but only the petition dated 5-4-53 has been sent by the Chief Secretary. It is also complained that the State Government had committed a breach of the first proviso to Rule 61 of the Civil Services (Classification, Control and Appeal) Rules in not informing the petitioner that his appeal has been withheld and in not giving reasons for the same. The following relief in the alternative was prayed for : "It is further and in the alternative prayed that an appropriate writ, order or direction may be issued on the State of Bihar directing them to forward the appeal to the Governor of Bihar and a further writ may be issued on the Governor of Bihar to dispose of the appeal in accordance with law". 8. From what has been stated above, it is quite clear that before the Constitution of India came into force, the petitioner was dismissed after an enquiry held by the Commissioner. The point for consideration is whether Article 226 of the Constitution has any application to the dismissal order which was passed prior to the coming into force of the Constitution of India; in other words, whether Article 226 has retrospective effect to matters prior to the coming into force of the Constitution of India; it was submitted that Article 226 being remedial in nature and therefore conferring a procedural right, on the Indian citizen, this Article has retrospective effect, and therefore, it was open to the petitioner to file this application under Article 226. For this purpose we were referred to 'Hindustan Motors Ltd. v. Union of India', 1954 Cal. 151 (AIR V 41) (A). In that case it was observed : "That the Constitution is not retrospective in operation only means that in absence of an express provision, rights created or principles introduced for the first time by the Constitution itself cannot be claimed in respect of or applied to facts, situated in time before the Constitution, when rights and liabilities arising out of such facts fall to be adjudged. That principle cannot apply to a mere procedural provision made by the Constitution, unless such provision itself involves substantive rights. Article 226 merely enables High Courts to exercise their powers of revision and correction in a new form and in a new type of proceeding and so far as Calcutta High Court is concerned, the power is not even a wholly new power as regards matters arising within the ordinary, original, civil jurisdiction. The Article has created no substantive right, but only provided a new form of remedy through the High Courts which might well have been done .fay an Act of the appropriate legislature or legislatures. It follows that where the right asserted or the liability denied, is one under the ordinary laws of the country and not one arising out of the Constitution, and an assertion or denial has taken place after the Constitution has come into force, it cannot be said that the application of Article 223 is excluded by the fact that such right or liability originated before the commencement of the Constitution. The demand made was one under the Sea Customs Act and the accrual of the right on which it was based or the ground on which it was challenged depended in no way on the Constitution. The demand was sought to be enforced after the Constitution had come into force and when the applicant which was resisting it, invoked Article 226 for protection and relief and asked the basis of the demand to be examined, it was not asking for application of the Constitution with retrospective effect or even if it was, the application of anything more than mere procedure was not involved. At least, so far as the applicant was asking for a direction on the customs authorities to forbear from giving effect to the Demand Notices, it was not at all asking for an application of Article 226 with retrospective effect. Further there being an assertion of a claim after the Constitution and the claim being not one under a right created for the first time by the Constitution itself, but being one under some other Pre-existing law, Article 226 empowered the High Court to deal with it by means of appropriate writs or directions although the claim might have originated before the commencement of the Constitution." The Assam High Court followed this decision as would appear from 'Hiranmoy Bhattacharjee v. State of Assam', 1954 Assam 224 (AIR V 41)_ (PB) (B). Sarjoo Prosad, C. J. has. in effect, observed as follows : "That the Constitution is not retrospective in operation, only means that rights created or principles introduced for the first time by the Constitution itself could not be claimed in respect of facts or circumstances existing prior to the Constitution, and on the basis of which the rights and liabilities of the parties had to be adjudged, but that will have no application to a procedural provision made by the Constitution. Where the case of the petitioner is that he was illegally discharged from service, in-asmuch as the Government did not follow the law then in force, that the order of discharge had not become final, in the sense that he could still challenge the order of discharge under the ordinary laws and his right to file a suit for declaration under the ordinary law, that he still continued in service, was not barred at the time, he can avail himself of the new and speedier remedy under Article 226, which had come into force in the meantime. The remedy under Article 226 of the Constitution is available to the petitioner against an illegal act or order which happened before the Constitution, where the petitioner does not claim that any substantive right created for the first time by the Constitution has been violated, but what he does claim is that the order challenged could not have been passed even under the existing laws and rules governing the conditions of service of the petitioner, which laws and rules as they existed prior to the Constitution are not questioned by the petitioner on any such ground of inconsistency with the fundamental rights guaranteed to him under the Constitution." Ram Labhaya J. observed in that case as follows : "Where the basis of the proceeding under Article 228 is an infringement of a fundamental right, Article 226 has no retrospective operation. The reason is obvious. There were no fundamental rights before the Constitution came into force. Contravention of fundamental rights may be cured if that takes place after the commencement of the Constitution. But the enforcement of fundamental rights does exhaust the scope of Article 226. It could be utilised for other purposes as well. 'Other purposes' have been held to include enforcement of legal rights, not necessarily fundamental. Now in regard to the enforcement of the fundamental rights, the Article has admittedly no retrospective effect. The fundamental rights did not exist before 26-1-50. In regard to other rights, it requires that there should be a claim under some pre-existing law and there should be an assertion of that claim under that pre-existing law after the Constitution came into force. These conditions would not be satisfied if matters have been finally determined under the laws which were in force immediately before the Constitution or they constitute the subject-matter of pending judicial proceedings. Where a person has a claim under pre-existing law and decides to enforce it by invoking the extraordinary jurisdiction of the High Court under Article 226 for the first time after the Constitution. comes into force, there would be no impediment in his way. The pursuit of the remedy under these circumstances would not touch existing rights. If it does not, the remedy may be pursued without objection, Article 226 not being part of the substantive law". Sarjoo Prosad C. J. also observed to the following effect : "Where the petitioner was discharged from service before the Constitution, and the order of discharge was void under the then existing law, the petitioner should be deemed to be in service and the wrongful act of the respondent in not employing him and compelling him to retire on pension is a sort of continuing wrong, for which he is entitled to seek his remedy under the Constitution, which had in the meanwhile come into force. High prerogative writs are issued for the protection of the rights of individuals and to check excess or abuse of powers, and where the foundation of the writ prayed for is a complaint against an ultra vires order, it is difficult to say that the cause of action does not survive when the Constitution came into force. The mischievous effect of the illegal order gives a sort of a continuing cause of action". 9. It appears that the decision of the Assam High Court is one on all fours with the facts of this application. In this case the petitioner was in service prior to the Constitution and was discharged. He could have brought a suit against the State for wrongful dismissal. He, however, did not do so, and when the application was filed, his right to sue was not barred by law. There is no question, so far as the application is concerned, of creation of a new right which did not exist prior to the coming of the Constitution. It appears, therefore, that Article 223 being remedial and therefore procedural, Will have retrospective effect so long as the right of the petitioner is covered under the phrase "for other purpose". 10. The next case referred to is 'Hiralal Chunnilal Siriah v. The State of Madhya Pradesh', 1954 Nag 258 (AIR V 41) (C). In that case it was observed that "though the impugned order was passed prior to the commencement of the Constitution, if it interferes with a right 'in praesenti' of the applicant and the order is in the eye of law no more than a piece of waste paper, the High Court can exercise its power under Article 226". The Nagpur case also concerns with an order of dismissal passed prior to the commencement of the Constitution. 11. We were also referred to a case of the Rajasthan High Court, namely, 'Jaisingh v. Tahsildar, Neemka Thana', 1954 Raj 200 (AiR V 41) (D). At page 203 of the report it is observed as follows : "It is urged that provisions of the Constitution of India cannot be applied retrospectively, and therefore we should not now interiere. The answer to this is simple. If the order was valid when it was passed, it would certainly not be open to us to hold today that it is invalid by a retrospective application of the provisions of the Constitution. But if the order was invalid even when it was passed and is being enforced in part now, it is in our opinion, open to us to hold it invalid on an application under Article 226". In 'Manohar Lal v. Custodian, Rajasthan, Jodhpur', 1953 Raj 185 (187) (AIR V 40) (E), it has been observed as follows : "The next point which has been raised by the opposite side in this case is that the order of the Custodian in these proceedings had been passed much before the Constitution of India came into force, and as the provisions of the Constitution are not retrospective, no relief should be granted to the petitioner under Article 226 of the Constitution of India." Then a reference has been made to a number of rulings and then it has been observed : "In view of the observations of their Lordships referred to above, anything which was legal before the coming into force of the Constitution cannot now be considered to be illegal because the provisions of the Constitution are not retrospective. In other words, any action taken by the Custodian before the coming into force of the Constitution of India, if it had been legal and in accordance with law then in force, could not have been regarded as illegal now, simply because it is contrary to the provisions of the Constitution. As has been discussed above, the action of the Custodian in the present case was not in accordance with law as it stood at that time, and 'Janardhan Reddy v. State of Hyderabad, 1951 SC 217 (AIR V 38) (E 1), cannot, therefore, help the case of the opposite party. Anything which was illegal before the coming into force of the Constitution remains illegal, and a person, who is aggrieved against such an illegal act, cannot be deprived of his remedy under Article 226 of the Constitution. Illegalities committed before the coming into force of the Constitution cannot be allowed to continue because of the coming into force of the Constitution. The argument of the opposite side could have had weight only if they had been able to show that the action taken by the Custodian before the com ing into force of the Constitution was in accord ance with law, as it stood at that time. But the fact is otherwise. The action of recovery of debt due to an evacuee as arrears of land revenue was not in accordance with the provisions of the Matsya law under which that action had been taken. This argument is, therefore, of no avail to the opposite side". It is thus clear that if the order passed prior to the Constitution was invalid, then the aggrieved party can move the Court under Article 226 to remedy the illegality. In other words, Article 226 has, in these circumstances, retrospective effect. 12. We have been referred to two other cases also 'Harendranath Sharma v. State of Madhya Bharat', 1950 Madh B 46 (AIR. V37) (P) & 'Jeshingbhai Iswarlal v. Emperor', 1950 Bom 363 (AIR V 37) (FB) (G). In '1950 Madh. B. 46 (51) (AIR V 37) (F), it has been observed as follows : "As to the question of the retrospective operation of Article 226 I think it does not at all arise in this case. The cause of action of the present petition is the order of 4-7-1949. It has not been shown by the learned Advocate General in what manner this cause of action in favour of the petitioner did not survive on 26-1-1950 when the Indian Constitution came into force. The petition is a complaint of ultra vires which is the foundation of the writ prayed for. Unless there is express provision to the contrary an ultra vires order may be a cause of action at any time after the making of it and no rights can be acquired under it for it is void ab initio. I am, therefore, unable to agree With contention on behalf of the State that the petitioner is not entitled to move this Court under Article 226 to test the vires of the order passed on 4-7-1949, i.e. before the Constitution of India came into force". In '1950 Bom 363 (AIR V 37) (FB) (G)', it has been observed as follows : "The saving, of an order made prior to the commencement of the Constitution under Section 6, General Clauses Act, does not mean that the State is entitled, after 26-1-1950, to deprive a citizen of a fundamental right which is guaranteed to him. Therefore, even though the order may have been saved by Section 6, if the order is in violation of the fundamental rights, which have come into existence after 26-1-1950, the Court is entitled to interfere. In such a case, there is no question of applying Section 6, General Clauses Act". It is thus clear from all the above decisions of the Various High Courts that so far as those rights which are not fundamental rights created by the Constitution are concerned, Article 226 can have retrospective effect if those rights have been violated. In this application, it is clear that the petitioner had the right to bring a suit against the State for wrongful dismissal prior to the coming into force of the Constitution of India, and that that right had not become extinguished by passage of time, and that being so, Article 226 of the Constitution would have retrospective effect on the facts of this case. 13. From the petitioner's petition as well as the counter-affidavit filed by Mr. Alam, it is more than clear that on fundamental facts there is considerable amount of disagreement and unless there be some very special reasons, it is not open to us, to take evidence for the purpose of coming to any findings on these facts. Learned counsel for the petitioner took us through the report of the learned Commissioner and pointed out passages in the report showing that the learned Commissioner had acted on materials that were not evidence at all, e.g., under charge V(b), the learned. Commissioner has observed as follows : "The prosecution cannot be expected to know exactly what sum was actually paid to Mr. Mukharji for the dropping of the case, especially when no one of the firm of Indrachand Sohan Lal is coming forward to give evidence. So the sum of Rs. 5,000/-as mentioned in the charge may be based on mere hearsay. But there can be no doubt that there are certain circumstances which made the conduct of Mr. Mukharji highly suspicious and give support to the case of the prosecution that the case against Indrachand was allowed to be dropped on receiving bribe, whatever may be the actual amount of it". The learned Commissioner has also observed: "Of course there is no direct evidence on this point but the evidence of P. W. 14 that during the pendency of the case Indrachand had taunted him that he (the witness) was unnecessarily taking trouble as he had settled the matter with the S.D.O. goes to support the claim of the prosecution that the case was allowed to be dropped on receiving bribe. The page on which the order dropping the prosecution had been typed looks rather very fresh from the other pages of the report and this goes to show that the order in question was typed subsequently when the record was going to be introduced in the office and not when the case dealt with in its ordinary course". The learned Commissioner has finally observed : "So the claim of the prosecution that the case against Indrachand was dropped and the record of the case was made to disappear by Mr. Mukherji on receiving bribe has been substantially established, though there is no satisfactory evidence as regards the amount actually paid to him". It is quite obvious that the learned Commissioner was fully aware that the evidence was not fully atisfactory as regards the amount actually paid to him and he does not admit that the charge may be based in hearsay evidence. I shall now refer to the report of the learned Commissioner concerning charge V(a). Charge V(a) is as follows: "That in February 1945, Mr. B. C. Mukherji demanded Rs. 1000/- and ultimately extorted Rs. 500/- as bribe from Bhanwar Lal of Forbeshganj to save the latten's father-in-law, Kumanchand, from conviction as one accused in complaint case No. 73/11 of 1944 of Araria". From the report it appears that there is the evidence of P. W. 5 which shows that Mr. Mukherji had demanded Rs. 1000 with a view to allow Kuman Chand to let go only with a nominal punishment, but Bhanwar Lal was able to pay only Rs. 500. Mr. Mukherji accepted this sum and demanded payment of the balance by keeping the case pending, and when no payment was made he delivered judgment convicting Kuman Chand. It appears from the report that Kuman Chand after his conviction had appealed to the Sessions Judge, and being unsuccessful he filed a revision petition before the High Court. The learned Commissioner observes: "This leaves no doubt that he was in a position to contest the case and had a mind to contest it. But the record of the case makes strange disclosures and goes to support the evidence of P. W. 5 that in fact Rs. 500/- was paid by him to Mr. Mukherji". The learned Commissioner discusses other circumstances and finally comes to the conclusion that there is no doubt that the passing of the order in the case postponed from time to time as Mr. Mukherji was awaiting for the balance of Rs. 500/-to be paid to him as deposed to by P. W. 5. It is quite obvious that we are not sitting in appeal so far as the report of the learned Commissioner is concerned. I have merely cited those portions of the report to show that there are materials for the finding arrived at by the Commissioner, and it is wrong to say, therefore, that there is no legal evidence on the record for some of the charges at any rate. It is true that certain documents, such as, Exs. CXL, CXL(a), CXLI, CXLI(a), etc. etc. were not proved, but from the counter-affidavit it appears as follows: "The documents referred to in sub-para (a) were marked as exhibits for the prosecution without objection from the petitioner. The custody and seizure of the books were proved and the entries therein used as evidence". In para 16 of the counter-affidavit, it is stated: "Documents having been admitted into evidence without objection and on the examination and scrutiny of the defence or with their consent or on admission, as mentioned in the list of documents etc. etc." It appears, therefore, from the counter-affidavit that a number of documents were admitted into evidence without objection, and the petitioner now cannot say that the learned Commissioner was wrong in taking into consideration those documents. It was pointed out to us that Charge III was not proved at all. Charge III is as follows : "That Mr. B. C. Mukherji, S.D.O., Araria, collected the following sums of money from the persons noted below and on dates noted against each, on, various corrupt pretences without maintaining account of the collections or depositing them in the treasury or any bank, these amounts being obviously misappropriated by him." Then the charge mentions the different amounts taken and from whom. Dealing with this charge, the learned Commissioner has taken into consideration certain documents, such as, account book containing entry (Ex. 69a), account book of Karnidan Fatehchand (Ex. CXLV) as well as Ext, CXLA and Ex. CXLIV and other account books. Apart from this, there is also the evidence of some witnesses; for example, P. W. 11, Hazarimal Agarwal, who belongs to the firm of Malhu Ram Ganga Prasad of Forbeshganj has said that the account books of his firm had been seized by Mr. Mukherji, and in order to get them back he had to pay Rs. 900 ostensible subscription to war-fund, but he did not get a receipt. The account book of his firm had been produced and Ex. 69. dated 23-8-1943, shows that Rs. 900/- was paid as claimed by him. The entry is "War Fund chanda diya Nagdi S.D.O. Saheb ko". It also appears from the report that the definite evidence is that Rs. 900/- was paid by P. W. 11 to Mr. Mukherji. P. W. 18, Jagdish Prasad, is the Manager of the firm of Mandan Lal Mulchand of Forbeshganj while P. W. 19, Lakshmi Narain, is the proprietor of that firm. Their evidence, according to the report, is that their account books were taken away by Mr. Mukherji and they had to pay Rs. 1000 to get them back and that they did not get any receipt. In these circumstances, even so far as this charge is concerned, it cannot be said that there is no evidence at all in support of the charge since there are prosecution witnesses whom I have referred to above. So far as the documents are concerned, I have already said that they were taken, into consideration without objection according to Mr. Alam. There is of course counter-statement. From the record there does not seem to be any petition filed objecting to the taking of these documents into evidence. If really these documents had not been taken into consideration without objection, then one would have thought that on behalf of the petitioner petitions would have been filed objecting to the taking of such evidence without proper proof. It is quite impossible to deal with every aspect of the report. Sufficient has been pointed, in my opinion, to show that there were materials on the record for the learned Commissioner to come to the conclusion that he did. The report has to be taken as a whole, and even if it be assumed that there were few irregularities here and there, that would not make the entire report of the learned Commissioner unworthy of accepance by the authorities concerned. 14. It was submitted by learned counsel for the petitioner that the Provincial Government did not apply their mind to the report and findings of the Commissioner as stated in the resolution dated 31-10-1949. This is based on the following grounds; that the order of dismissal from service dated 31-10-1949 was communicated to the petitioner by Memo No. 8726A by the Under Secretary; that this resolution of the Government as Well as the memo of communication is dated 25-10-1949; and that though the order of dismissal by Government resolution is dated 31-10-1949, it seems extraordinary how the order could have been typed on 25-10-1949, and that the memo of communication of the said order could have been conveyed to the petitioner signed by the Under Secretary on 26-10-1949. Mr. Alam in his counter-affidavit has explained this quite clearly in para 18 which I have already pointed out earlier when referring to his counter-affidavit. From this it is perfectly clear to my mind that there is nothing to show that the authorities concerned did not apply their mind to the report which had been, submitted by the learned Commissioner. In my opinion, there is no substance in this point whatsoever. 15. It was next submitted that the appeal of the petitioner to the Governor was never sent and the result of that appeal was never communicated to the petitioner. This, however, is not correct, for it is clear from the letter of Mr. L.P. Singh Chief Secretary to Government, that His Excellency, the Governor of Bihar, having given his most anxious consideration to the report and finding accepts the conclusions of the Commissioner and accordingly directs that Mr. Bankim Chandra Mukherji be dismissed from the service of Government with effect from the date of this order. His Excellency the Governor obviously had the papers before him, and he considered the report of the learnend Commissioner. There is nothing to show that the petitioner's application on appeal to His Excellency the Governor was not considered by him & that His Excellency the Governor after considering the report and the findings of the learned Commissioner was not satisfied that the petitioner should be dismissed. It cannot, therefore, be said that the matter was not considered by His Excellency the Governor. The question, however, of appeal to His Excellency the Governor can hardly arise in view of the fact that it was by the order of the Governor that Mr. Bankim Chandra Mukherji, the petitioner, was dismissed. It is not the case of the Government having dismissed the petitioner and thus an appeal lay to His Excellency the Governor from the order of the Government. There is no provision. as far as I am aware, for an appeal from the order of the Governor dismissing the petitioner. It is true that Section 241(3) (b) (iii), Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, states that every such person as aforesaid shall have the same rights of appeal to the same authorities from any order which terminates his appointment otherwise than upon his reaching the age fixed for superannuation, etc. The words "every such person" cover the petitioner. Prior to the Government of India Act, 1935, being adapted by the India (Provisional Constitution) Order, 1947, the Governor was one entity and the Government was another entity. The Governor under the Government of India Act. 1935, prior to adaptation, for certain purposes acted on the advice of the Ministers and for certain purposes exercise his own individual judgment or acted according to his discretion, and after adaptation, however, the Governor acts on the advice of his Ministers, and the discretionary power of the Governor as well the power to act according to his individual judgment have been taken away, and it is the Governor, therefore, alone that can dismiss a person, such as, the petitioner. It is thus clear that though Section 241(3) (b), Government of India Act, 1935, has given a right of appeal, it does not mean that there should be an appeal to the Governor from an order which was in form passed by the Governor himself. 16. Apart from all these considerations the fact is that the Governor dismissed the petitioner. The question, therefore, is, has this Court any power to issue a writ against the Government himself? For this purpose a reference must be made to Article 361 of the Constitution of India. Article 361(1) of the Constitution is as follows: "361(1) The President, or the Governor or Raj Pramukh of a State, shall not be answerable to any Court for the extrc:se and performance of the powers and duties of his office or for any act done or purporting to be done by him In the exercise and performance of those powers and duties. Provided that the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61. Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State." It is quite clear that the Governor when he dismissed the petitioner, he was doing so in his official capacity; in other words, in the exercise and performance of the powers and duties of his office. Under Section 306(1), Government of India Act, 1935, it is provided that "no proceedings whatsoever shall lie in, and no process whatsoever shall issue from any Court in India etc., etc. It is thus clear that it is not open to this Court to issue a writ under Article 223 of the Constitution of India, so far as the Governor of a State is con cerned. In my opinion, therefore, the application of the petitioner must be rejected with costs. Hear ing fee Rs. 150/- only. Das, C.J.
17. There are a good many disputed facts in this case, particularly with regard to what transpired before the Commissioner appointed under the Public Servants (Inquiries) Act, 1850. Some of those facts have been stated by my learned brother in the judgment which he proposes to deliver and which I have had the advantage of reading. I do not wish to repeat them all.
18. To appreciate the points which have been urged before us on behalf of the petitioner, it is necessary to state, first, some of the undisputed facts; I shall then refer to such of the disputed facts as have a bearing on the points urged before us. The undisputed facts are these. The petitioner joined the service of the then Government of Bihar and Orissa in 1922 as a Sub Deputy Magistrate and Collector. He was promoted to the rank of a Deputy Collector in 1930.
In 1932 he was appointed Inspector of Mica Accounts to administer the newly enacted Bihar and Orissa Mica Act of 1930, with headquarters at Kodrama in the district of Hazaribagh. In 1937 the petitioner was transferred to Gaya. He was appointed Sub-divisional officer of Gaya in 1939, and in 1940 after the outbreak of the second world war, the petitioner's services were requisitioned by the Government of India for employment as Additional Mica Inspector.
In June, 1942, he was appointed Sub-divisional Officer at Hazaribagh. In July, 1943, the petitioner was posted as Sub-divisional Officer at Araria in the district of Purnea and he held that office till September, 1946, with two short breaks when the petitioner went on leave. While the petitioner was Sub-divisional Officer of Araria, certain enquiries were made into the conduct of the petitioner.
It is unnecessary to state the details of those enquiries, because I do not think that they are quite relevant for our present purpose. It is sufficient to state that sometime in the middle of 1946 the Anti-Corruption Department of the State Government made certain enquiries into the conduct of the petitioner. As a result of a report submitted by the Anti-Corruption Department, the State Government decided on a formal and public enquiry into the truth of certain imputations of misbehaviour by the petitioner, under the provisions of the Public Servants (Inquiries) Act, 1850.
By an order dated 30-3-1948, the Governor of Bihar appointed Mr. Hargovind Prasad Singh, District and Sessions Judge, Shahabad, to hold the enquiry. Contain Articles of Charges were framed against the petitioner and they were marked I to VI. Under the Article of charge marked I there were several items marked (a), (b), (c), (d), (e), (f), (g) and (h). Similarly, under Article II there were two items; under Article III there were seven items ; Art. IV consisted of a single item; Article V consisted of four items marked (a), (b), (e) and (d); Article VI consisted of a single item. The enquiry commenced on 12-6-1948, on which date an adjournment was given till 5-7-1948.
On 5th July the enquiry commenced and the charges were read over to the petitioner. Thereafter, the examination of witnesses commenced and the enquiry concluded on 17-11-1948. The learned Commissioner submitted his report on 24-11-1948. The Commissioner found that all the eight charges under Article I; both the charges under Article II; all the items under Article III, except item no. 4; all the charges under Article IV and all the charges under Article V, except Item No. (d), were proved against the petitioner. On 31-1-1949, the following order was passed by the State Government: --
"No. 683 A. The Commissioner appointed in Government Order No. 463 P (AC) dated 30-3-1948, under the Public Servants (Inquiries) Act, 1830 (Act 37 of 1850) to enquire into allegations of corruption and bribery brought against Mr. B. O. Mukherji, Deputy Magistrate and Deputy Collector, now under suspension, has found that almost all the charges framed against him have been satisfactorily proved. His Excellency the Governor of Bihar has therefore provisionally arrived at the conclusion that the only punishment that should, in the circumstances of the case, be imposed on Mr. Mukherji is dismissal from service. Under Sub-section (3) of Section 240, Government of India Act, 1935, as adapted, he is therefore directed to show cause by 25-2-1949, why the punishment referred to above should not be awarded to him.
A copy of the Commissioner's report is appended to this order.
Sd/- D. P. Singh, Patna, Chief Secretary to Government." The 31st January, 1949.
A copy of the order was sent to the petitioner. The petitioner showed cause against the punishment proposed to be awarded. Then, on 31-10-1949, Resolution No. 8726A was published by the State Government, in which the State Government referred to the report of the Commissioner, dated 24-11-1948, and the imputations of misbehaviour which had been proved against the petitioner as a result of the enquiry held by the Commissioner.
I may state here that the imputations referred mostly to orders passed by the petitioner against Government instructions in the matter of supply and transport of cloth, etc. to Nepal from Araria; allegations of bribery and corrupt practice in the matter of issue of permits etc; allegations of illegal gratification and bribery from merchants and businessmen in Araria. The resolution concluded as follows :
"His Excellency, the Governor of Bihar, having given his most anxious consideration to the report and findings, accepts the conclusions of the Commissioner and accordingly. directs that Mr. Bankim Chandra Mukherji be dismissed from the service of Government with effect from the date of this order."
This order was communicated to the petitioner by a memorandum bearing the same date. In his original petition the petitioner said that in May, 1950, he preferred an appeal to the Governor of Bihar under Section 241, Government of India Act, 1935. The petitioner got no information of what happened to the appeal, though he sent many reminders, till he was informed on 15-4-1953, by the Secretary to the Governor that his appeal had been forwarded to the Chief Secretary to the Government or Bihar for disposal.
The petitioner thereafter moved this Court in May 1953, for a writ under Article 226 of the Constitution for an appropriate order to the opposite party for quashing the order of dismissal dated 31-10-1949, and for treating the petitioner as continuing In the Bihar Civil Service.
19. It is clear from what I have stated above that the order of dismissal of the petitioner was passed on a date prior to the coming into force of the Constitution of India. Therefore, the first question which his arisen for consideration in this case is if the petitioner is entitled to the remedy provided by Article 226 of the Constitution in respect of a dismissal order passed before the coming into force of the Constitution of India, provided the petitioner is able to establish that the order of dismissal which was passed against Him on 31-10-1949, was invalid and without jurisdiction even according to the legal position as it obtained on that date. This question has been, considered by my learned brother at some length. and he has referred to the relevant authorities on it.
I am in entire agreement with my learned brother on this question. It is, I think, well settled that though the impugned order was passed prior to the commencement of the Constitution, it inteneres with the right 'in praesenti' of the petitioner; and if the petitioner is able to establish that in the eye of law the impugned order was no more than a piece of waste paper, he can, I think, ask this Court to exercise its power under Article 226 of the Constitution. If I may say so with respect, Chakravartti C. J. rightly observed in Hindustan Motors, Ltd v. Union of India, 1954 Cal 151 (154) (AIR V 41) (Gl):
"That the Constitution is not retrospective in operation only means that, in the absence of an express provision, rights created or principles introduced for the first time by the Constitution itself cannot be claimed in respect of or applied to facts, situated in time before the Constitution when, rights and liabilities arising out of such facts fall to be adjudged. That principle cannot apply to a mere procedural provision made by the Constitution, unless such provision itself provides substantive rights.
Article 223 merely enables High Courts to exercise their powers of revision and correction in a new form and in a new type of proceeding The Article has created no substantive right, but only provided a new form of remedy through, the High Courts, which might well have been done by an Act of the appropriate legislature."
The general principle is that alterations in procedure are retrospective, unless there is some good reason against it. If, therefore, the petitioner is able to establish that the order of dismissal dated 31-10-1949, was an order which was without jurisdiction at the time when it was passed, the petitioner can ask this Court to exercise its power under Article 226 of the Constitution.
20. While I concede that the existence of an alterative remedy by way of suit is not an absolute bar to a writ application under Article 226 of the Constitution, it is, I think, equally well settled that controversial questions of fact cannot ordinarily be gone into by the High Court on a writ application. The High Court does not sit in appeal over the Commissioner appointed under the Public Servants (Inquiries) Act, 1850, and I do not think that it is open to this Court to go into the evidence recorded by the learned Commissioner and determine whether the findings arrived at by the learned Commissioner are correct or not. Nor does the High Court hear appeals in respect of orders passed by the State Government.
The consistent practice of this Court, at least, has been that where the facts are undisputed, or where the facts can be satisfactorily determined on affidavits, the High Court exercises its jurisdiction under Article 226 if the undisputed facts, or the facts determined, attract the exercise of such jurisdiction. I have made these observations at the very beginning, because learned counsel for the petitioner has argued the case, if I may say so without meaning any disrespect, as though we are sitting in appeal over the learned Commissioner.
Learned Counsel has given us extracts of the depositions recorded by the learned Commissioner. He has also taken us through the findings of the learned Commissioner in order to establish some of the points which he has tried to make before us. I shall come to these details at a later stage.
All that I wish to emphasise here is that on. a writ application under Article 226 of the Constitution, we do not proceed in the manner in which a suit is ordinarily tried or in which an appeal is heard where disputed facts are investigated in the light of the evidence in the record. In a case where an investigation of that nature is necessary, the more appropriate remedy is by a suit.
21. Therefore, the principal question for decision in the present case is if on the undisputed facts or on the facts determined on the basis of the affidavits filed before us, it can be held that the order of dismissal passed against the petitioner on 31-10-1949, was invalid and without jurisdiction. This is the principal question for consideration in the present case with reference to the relevant provisions of the Government of India Act, 1935, as amended or adapted after the Indian Independence Act, 1947.
Two of the provisions of the Government of India Act, 1935, will fall for our consideration, namely, Sections 240 and 241. Sub-section (1) of Section 240 says in effect that except as expressly provided by the Act, every person who holds any civil post in India holds office during his Majesty's pleasure. Sub-section (3) of Section 240 says that no such person shall be dismissed until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
Sub-section (3) of Section 241 is relevant in the present case so far as it relates to the right of appeal of a civil servant who has been punished, and I shall refer to that sub-section when dealing with the question of the appeal preferred by the petitioner.
22. So far as Sub-section (3) of Section 240, Government of India Act, 1935, is concerned, there has been no violation of the provisions of that Sub-section in the present case. The petitioner was given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him; the petitioner did show cause and thereafter, the State Government passed the impugned order.
The main argument of learned counsel for the petitioner lias been that the procedure which the Commissioner followed was not in strict accordance with the provisions of the Public Servants (Inquiries) Act, read with the provisions of the Indian Evidence Act and the principles of natural justice; therefore, the petitioner had no real, nor a reasonable, opportunity of showing that he was. not guilty of the allegations made against him.
The State Government acted on the report of the Commissioner and inasmuch as the report of the Commissioner was not in accordance with the provisions of the Public Servants (Inquiries) Act, read with the provisions of the Indian Evidence Act and the principles of natural justice, the argument of learned counsel for the petitioner is that the order of the State Government was also bad and without jurisdiction.
It was specifically contended (1) that the Commissioner admitted in evidence a large number of documents in disregard of the provisions of the Indian Evidence Act as to proof of documents; (2) the Commissioner denied an opportunity to the petitioner to prove such documents as the petitioner had called for and also denied the petitioner a reasonable opportunity of defending himself by calling for certain documents; (3) the findings of the Commissioner in respect of Charges III, V (a) and (c) were based on no legal evidence; (4) the petitioner was examined as a witness, though he occupied the position of an accused person and could not be legally examined on oath; (5) some of the findings of the Commissioner were based on unproved documents which were inadmissible In evidence; (6) some of the findings of the Commissioner were based on hearsay evidence; and (7) some of the findings of the Commissioner were based on the uncorroborated and tainted testimony of only one witness.
Learned Counsel for the petitioner marked certain findings of the Commissioner as E(1), E(2), E(3) and E(4) in support of the contentions referred to above. A detailed statement of these contentions would be found in para 28 of the petition.
23. Before I proceed to consider the aforesaid contentions, it is, I think, convenient at this stage to refer to two recent decisions of the Supreme Court which have explained the position of civil servants in India with reference to the relevant provisions of the Constitution and earlier Govt. of India Acts. One of the decisions is the State of Bihar v. Abdul Majid, 1954 SC 245 (AIR V 41) (H) That decision deals with the right of a public-servant to sue for arrears of salary.
It was observed in that decision that the rule that a civil servant holds office at the pleasure of the Crown has its origin in the Latin phrase "durante bene placito", meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at anytime without cause assigned; and the true scope and effect of this expression is that even if a special contract has been made with a civil servant, the Crown is not bound thereby; but this rule of English law was not fully adopted in Section 240, and Section 240 itself places restrictions and limitations on the exercise of that pleasure, and those restrictions must be given effect to because they are imperative and mandatory.
It was observed that whenever there was a breach of the restrictions imposed by the statute by the Government or the Crown, the matter was justiciable, and the party aggrieved was entitled to suitable relief at the hands of the Court. The question was further examined by their Lordships of the Supreme Court in' -- 'Venkataraman v. Union of India', 1954 SC 375 (AIR V 41) (I). His Lordship Mukherjea, J. made the following observations:
"It is a well established principle of law that, except where it is otherwise provided by a statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown. Their services can be terminated without assigning any reason and even if any public servant considers that he has been unjustly dismissed, his remedy is not by way of a law suit but by an appeal of an official or political character -- vide Shenton v. Smith, 1895 AC 229 (J). This principle of law was applied in India ever since the advent of British rule in this country and the servants in the employ of the East India Company also came within the purview of this rule.
24. It is to be remembered that it was during the period of the East India Company that the Public 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 removable 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 of the Government to dismiss its servants at pleasure, and this was expressly provided by Section 25 of the Act, the wording of which is as follows: --
"Nothing in this Act shall be construed to affect the authority of the Government to suspending or removing any public servant for any cause without an 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 96B 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 made thereunder, every person in the civil service of 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 subordinate to that by which he was appointed...."
25. 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 to that by which he was appointed.
The section by its opening words also makes the exercise of the power subject to the rules made under the Act and it was in pursuance of the provision of Section 96-B(2) that the Civil Services (Classification, Control and Appeal) Rules were framed which with the later amendments are in force even now. Part XII of these rules deals 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 service comprised in Clauses 1 to 5 in Rule 14.
26. 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 eonduct 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.
27. These rules have no statutory force and it was held by the Privy Council that when an officer was dismissed from service without complying with the provisions of these rules, he had no right of action against the Crown --vide Venkata Rao v. Secretary of State, 1937 PC 31 (AIR V 24) (K). In other words, the rules, which were not incorporated in a state, did not impose any legal restriction upon the right of the Crown to dismiss its servants at pleasure.
28. The position was altered to some extent in the Government of India Act, 1935, and in addition to the restriction imposed by Section 96-B(1) of the Government 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--vide Section 240 (3), Government of India Act, 1935, that a Civil servant could not be dismissed or reduced in rank unless the person concerned was given a reasonable opportunity of showing cause against the action proposed to be taken against him.
Article 311(2) of the present Constitution has further added the word 'removal' after 'dismissal' and before 'reduction in rank' and thus in all the three cases, which are covered by Rule 55 of the Civil Services Rules, a Civil servant has now a constitutional right to claim a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
29. AS the law stands at present, the only purpose for which an enquiry under Act 37 of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally 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 & it is quite open to the Government to adopt any other method if it so chooses. It is a matter of convenience merely and nothing else.
30. Let me now consider, in the light of the observations quoted above, if the dismissal order passed against the petitioner in October, 1949, was invalid and without jurisdiction. In my opinion, there was no violation of the provisions of Section 240, Government of India Act, 1935, and the petitioner had an opportunity of defending himself in the enquiry held against him under the provisions of the Public Servants (Inquiries) Act, 1850.
I am further of the opinion, on reading the affidavits filed on behalf of both parties, that the enquiry held against the petitioner substantially complied with the provisions of the Public Servants (Inquiries) Act and there was no such departure from or violation of the principles of natural justice as would amount to a denial of justice to the petitioner. The question has been mooted before us as to whether the Commissioner was a Court and if the Commissioner was bound by the rules of evidence embodied in the Indians Evidence Act.
Learned Counsel for the petitioner relied on the decision in Kapur singh v. Jagat Narain, 1951 Pun 49 (AIR V 38) (L) where it was held that a Commissioner appointed to hold an enquiry under the Public Servants (Inquiries) Act, 1850, was a Court within the meaning of Section 9, Contempt of Courts Act. In that decision a reference was also made to Section 3, Evidence Act which defined a Court as including all persons, except arbitrators, legally authorised to take evidence. There is no doubt that under the provisions of the Public Servants (Inquiries) Act, 1850, the Commissioner was legally authorised to take evidence.
The aforesaid decision of the Pubjab High Court was considered by the Supreme Court in Brajnandan Sinha v. Jyoti Narain, 1956 SC 66 ( (S) AIR V 43) (M). Their Lordships overruled the decision of the Punjab High Court and held that a Commissioner appointed under Public Servants (Inquiries) Act, 1850, was not a Court within the meaning of the Contempt of Courts Act, 1952.
It was pointed out that a Commissioner appointed under the Public Servants (Inquiries) Act, 1850, though he has been given the power to summon witnesses and administer oaths to them and also to compel production of relevant documents, was not a Court; because the report of the Commissioner or his findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritive and lacked finality. The question before us is somewhat more limited than the question which their Lordships had to consider.
Trie question before us is if the Commissioner was a Court within the meaning of the Indian Evidence Act, and whether he was to be guided by the rules embodied in the Indian Evidence Act. I am prepared to proceed in this case on the assumption that the Commissioner was a Court within the meaning of Section 3 of the Indian Evidence Act and that the proceeding before the Commissioner was a judicial proceeding, though for a limited purpose, and the Commissioner was, therefore, bound to observe the rules of evidence as embodied in the Indian Evidence Act.
The question then is if any of the findings of the Commissioner are vitiated for the reasons mentioned by learned counsel for the petitioner. I now proceed to consider the various contentions urged on behalf of the petitioner. First, as to the examination of the petitioner as a witness. In his original petition the petitioner stated that he was examined as a witness on oath at the suggestion of the learned Commissioner.
In the counter-affidavit filed on behalf of the State of Bihar it was stated that the petitioner chose to examine himself as a defence witness. I have examined the order-sheet of the learned Commissioner and I find nothing therein which would suggest that the petitioner was examined as a witness at the suggestion of the Commissioner. It appears from the order-sheet that nine witnesses were examined on behalf of the petitioner and then the petitioner filed a supplementary defence and was then examined as defence witness 10. It is true that the Public Servants (Inquiries) Act mentions the public servant against whom the enquiry is held as an accused person.
Section 13, Public Servants (Inquiries) Act lays down that the oral and documentary evidence for the prosecution shall be exhibited first and the witnesses shall be examined by or on behalf of the prosecutor and may be examined by or on behalf of the accused. Section 15 lays down that when the case for the 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 a copy shall be given at the same time to the prosecutor.
Section 16 lays down that the evidence for the defence shall then be exhibited and the witnesses shall be examined, who shall be liable to cross-examination and re-examination and to examination by the Commissioner according to the like rules as the witnesses for the prosecution. None of the provisions of the Public Servants (Inquiries) Act, 1850, say anything as to whether the accused person can examine himself as a witness or not.
Our attention was also drawn to Section 5, Indian Oaths Act. That section states, inter alia, that oaths or affirmations shall be made by all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or receive evidence. The section then states :
"Nothing herein contained shall render it lawful to administer, in a criminal proceedings, an oath or affirmation to the accused person....".
I have great doubt if the proceeding before the Commissioner was a criminal proceeding within the meaning of Section 5, Indian Oaths Act. The Commissioner could not punish the petitioner. The Commissioner was really a fact rinding body and had to submit his report to the State Government. It is no doubt true that the Commissioner had no investigate into the imputations made, and in the investigation he had to follow the procedure laid down in the Public Servants (Inquiries) Act, 1850.
I am also of the view that in submitting his report the Commissioner had to proceed on legal evidence, that is evidence taken in accordance with the rules of evidence embodied in the Indian Evidence Act. I do not, however, think that there was any violation of the provisions of the Public Servants (Inquiries) Act, 1850, when the petitioner came and was examined as defence witness 10; nor do I think that the provisions of Section 5, Indian Oaths Act were violated.
31. I have examined the findings of the Commissioner marked E(l), E(2), E(3) and E(4), with reference to the various contentions urged by the learned counsel for the petitioner in para 28 of the petition. I may state here that some of the statements made in para 28 of the petition have been controverted in the affidavit filed on behalf of the State of Bihar (vide para 21 of the counter-affidavit).
With regard to the documents which were alleged to have been exhibited without formal proof, the statement in the counter-affidavit is that those documents were marked as exhibits for the prosecution without any objection from the petitioner, the custody and seizure of the books having been proved by the prosecution. I have also examined the order-sheet of the learned Commissioner and I find that the petitioner was given an opportunity of inspecting and examining all the documents filed on behalf of the prosecution. His lawyer did inspect some of the documents in question.
Thereafter the petitioner's lawyer, for some reason or other, did not inspect the other documents, though an opportunity was given. The entire order-sheet of the Commissioner shows that delaying tactics were followed. I am unable, however, to accept the argument that the petitioner did not have a reasonale opportunity of metting the case presented against him.
If formal proof was waived and some of the documents were taken in evidence when their pro per custody was proved, I do not think that there was any such violation of the rules of evidence as would justify us to hold that the enquiry was not in conformity with the provisions of the Public Ser vants (Inquiries) Act, 1850, or that the report of the Commissioner was bad.
With regard to the point that the petitioner was not given any opportunity of proving certain documents or that certain documents were not called for at the request of the petitioner, the order-sheet of the Commissioner shows that the Commissioner held that some of the documents called for by the petitioner were irrelevant; with regard to other documents the Commissioner gave the petitioner an opportunity of calling for some documents at his own risk; and with regard to other documents, the Commissioner asked the petitioner to file the copies first.
It is impossible for us to investigate these details of disputed facts on a writ application. It is, sufficient to state that on a perusal of the affidavits and the order-sheet of the Commissioner, I am satisfied that there was substantial compliance with the provisions of the Public Servants (Inquiries) Act, 1850, and the rules of evidence as embodied in the Indian Evidence Act.
With regard to the point that some of the findings of the Commissioner were based on no evidence or based on the uncorroborated testimony of one witness, I do not find that any finding of the Commissioner was really based on no evidence; there is no rule of law that the uncorroborated testimony of one witness cannot be accepted. If there is any such rule, it is a rule of prudence, and whether that rule should be adopted or not will depend on the circumstances of each case.
It has been stated that the findings marked E(1) were based on no evidence, because they were based on unproved documents which were inadmissible, in law. I may give one or two examples to show why I do not accept this contention as correct. With regard to charge No. 1(h), the learned Commissioner pointed out that there were some instances where cloth and other articles were ordered to be detained but were released on the same day or soon afterwards without any apparent reason. The learned Commissioner then said :
"I have no doubt that these detentions were being made with the sole object of causing harassments to the merchants with a view to compel them to make payments. This is already borne out by the account books produced by the prosecution of the Nepal merchants in respect of their transaction in salt. They show that the merchants had to make payments to the S. D. O. and others for getting the consignments of salt".
The books of the Nepal merchants were exhibited in the case on formal proof being waived when their custody was proved. The learned Commissioner drew certain inferences from the entries in those books. It was open to the learned Commissioner to draw those inferences, and I do not think that it can be said that the finding of the Commissioner was based on no evidence whatsoever.
Similar is the position with regard to the other findings marked E(2), E(3) and E(4). It should be obvious that it is impossible for us to re-examine the entire evidence given before the Commissioner and check up whether each and every finding is justified by the evidence in the record. That would really be the work of an appellate Court. I have considered the findings of the Commissioner on the basis of the affidavits filed on behalf of both parties, and I am unable to accept the contentions (1) that the findings are based on no evidence, or (2) that the findings are based on hearsay evidence.
32. In my opinion, there are no reasons to think that the petitioner did not have a full opportunity of meeting the case presented against him or that the petitioner was not given a reasonable opportunity of producing such evidence as he wished to produce. Therefore, the enquiry held against the petitioner under the Public Servants (Inquiries) Act cannot be held to be bad for any of the reasons, given by learned Counsel for the petitioner.
It was open to the State Government to act on the report of the Commissioner and the State-Government gave an opportunity to the petitioner to show cause against the action proposed to be taken against him, in accordance with Sub-section (3) of Section 240, Government of India Act, 1935. That being the position, the order of dismissal passed against the petitioner in October, 1949, cannot be held to be without jurisdiction.
33. The second point urged before us relates to the right of appeal. The petitioner said that he had filed an appeal to the Governor in May, 1950, against the order of dismissal. This, the petitioner said, he did in pursuance of his right under Section 241, Government of India Act, 1935. The grievance of the petitioner is that that appeal was never heard and on 15-4-1953, the petitioner was told by the Secretary to the Governor that his appeal had been forwarded to the Chief Secretary for disposal.
In the counter-affidavit filed on behalf of the State Government it was stated in para. 19 that no appeal lay from the order passed by the Governor dismissing the petitioner from service and, therefore, no further action was taken on the so-called appeal Sub-section (3) of Section 241, Government of India Act, 1935, says in effect that a person who before the commencement of Part III of the Act was serving in a civil capacity in India shall have the same rights of appeal to the same authorities from any order which punishes him or terminates his appointment otherwise than upon his reaching the age fixed for superannuation.
Clause (c) of Sub-section (3) of Section 241, Government of India Act, 1935, says, inter alia, that every person serving in a civil capacity in India shall have at least one appeal against an order punishing him or terminating his service, provided the order, is not an order of a Governor-General or a Governor. The question, therefore, boils down to this: Did the petitioner have a right of appeal to the Governor from the order of dismissal passed against him?
It is to be noted that the order of dismissal passed against the petitioner was an order passed by the Governor. The constitutional position underwent a change after the Independence Act, 1947. Before the Independence Act, 1947, the Governor had individual judgment and his discretion, and in certain matters he was entitled to go contrary to the advice given by the Ministers or even without taking their advice. Under the Independence Act. the Governor became a constitutional Governor and all his acts must be taken with the aid and advice of his Ministers. Before the Independence Act, the meaning given to the expression "Provincial Government" under the General Clauses Act was "In a Governor's Province, the Governor act ing or not acting in his discretion and exercising or not exercising his individual judgment according to the provision in that behalf made by and under the said Act".
After India became independent, the India (Adaptation of Existing Indian Laws) Order, 1947, was passed and the following definition for "Provincial Government" was substituted :
"As respects anything done or to be done after the establishment of the Dominion of India shall mean in the Governor's Province the Governor".
It is difficult to understand how there can be an appeal to the Governor from an order which in legal form is the Governor's order. Learned counsel for the petitioner has referred us to various rules in the Civil Services (Classification, Control and Appeal) Rules. He has particularly referred to Rules 56, 57, 58, 63 and 64. Rule 56 merely states that there is a right of appeal as provided, hereinafter by the rules.
Sub-rule (5) of Rule 57 states, inter alia, that a member of a Provincial Service may appeal to the Governor from an order passed by the Local Government. It is obvious, however, that the sub-rule contemplated a distinction between the Governor and the Provincial Government.
With the change of the constitutional position after the Independence Act, 1947, the order passed by the Provincial Government is in form the order of the Governor. There can, therefore, be no appeal from an order of the Governor to the Governor, and I do not think, that Sub-rule (5) of Rule 57 or Rule 63 or Rule 64 helps the petitioner in any way. It is also doubtful if a contravention of the rules will give this Court jurisdiction to issue a writ, so long as there was no contravention of the provisions of the Government of India Act ((see Dr. M. Krishnamoorthy v. The State of Madras, 1951 Mad 882 (AIR V 38) (N).
34. The Question of the immunity of the Governor under Section 306 of the Government of India Act, 1935, and Article 361 of the Constitution of India was also mooted before us. In my opinion, that question does not really arise in the present case. In the present case, the order of dismissal was passed by the Governor and no appeal lay to the Governor from his own order.
In my opinion, it is a mistake to read Section 306, government of India Act, 1935, as giving an immunity not only to the Governor but to the Provincial Government also; these were two different concepts and the immunity to the Governor was a personal immunity extending both to his private and public acts. There was no immunity to the Provincial Government.
If, therefore, the petitioner could satisfy us that the order of dismissal passed against him in October, 1949, was without jurisdiction, it would have been open to us to give relief to the petitioner, even though the order was in form the order of the Governor. In one sense the Governor was really a part of the Provincial Government acting on the advice of his Ministers. I do not think that any question of personal immunity of the Governor arises in such a case,
35. If, however, the argument of learned counsel for the petitioner is correct and the Governor is to be taken as a separate entity from the Provincial Government, then the question of immunity may arise, and I do not thing that this Court can issue a writ to the "Governor directing him to hear the appeal of the petitioner. It is, I think, unnecessary to labour this point any further.
I am satisfied that in this case the order in legal form is the order of the Governor acting on the advice of his Ministers and no appeal lay to the Governor from such an order. I have come to the conclusion that there was no violation of Sub-section (3) of Section 241, Government of India Act, 1935.
36. A further point which was taken before us related to the date of the order of dismissal, namely, 31-10-1949. That point has been elaborately dealt with by my learned brother and I do not think that I can usefully add anything to what my learned brother has said.
37. For the reasons given above, I entirely agree with my learned brother that the application of the petitioner must be dismissed with costs.
38. Before I conclude I must say a few words about the delay in delivering this Judgment, for which I alone am responsible. I was in the midst of two important enquiries with regard to the disturbances at Patna and Nawadah from the month of August last and then I fell ill for some time. That is the reason why the judgment in this case could not be prepared by me at an earlier date.