Jagjit Singh vs State of Hyderabad and Another

Srinivasachari, J.—This writ petition is on behalf of one Jagjit Singh who was a Circle Inspector of Police at Yadgir. The allegation in. the petition is that on 17-11-1950 the Petitioner received a copy of a wireless message sent by the District Superintendent of Police to the Dy. Superintendent of Police, Yadgir, informing the latter that the Petitioner had been placed under suspension with effect from the forenoon of 11-11-1950 and therein it was stated that the Petitioner should be called upon to handover charge of his office to the Sub-Inspector of Police, Yadgir, immediately and to remain at Yadgir until further orders. It is stated that after this, on 7-12-1950 the Petitioner received a notice from the Chairman, Hyderabad Public Servants'' Tribunal of Enquiry, calling upon him to appear on 27-12-1950 to answer live charges that had been framed against him.

The enquiry before the Chairman of the Tribunal commenced on 7-3-1951 and as many as 18 witnesses were examined in support of the charges. The Petitioner denied all the charge''s against him. Finally on 9-7-1951 the Chairman of the said Tribunal held that charges 2 to 5 were not proved or established beyond reasonable doubt but in so far as charge No. 1 was concerned he held that to have been established. On the basis of this finding the Chairman recommended the dismissal of the Petitioner from service. Thereafter the State of Hyderabad served a notice on the Petitioner on 18-8-1951 calling upon the Petitioner to show cause why the punishment recommended by the Tribunal be not enforced.

The Petitioner submitted a representation to the State showing cause against the proposed action of the State. The State having considered the representation passed an order on 9-2-1952 dismissing the Petitioner from service. The Petitioner has, on these allegations, filed this application for the issue of a writ of certiorari against the State praying that the proceedings, the enquiry and the findings of the Chairman of the Hyderabad Public Servants'' Tribunal be quashed and further that a writ of mandamus be issued directing the reinstatement of the Petitioner and further for granting such other relief as to this Court may seem fit. Notice was issued both to the Chairman of the Tribunal and to the State of Hyderabad and counters have been filed by both of them.

The main contention of the learned Counsel nor the Petitioner is that the Hyderabad Public Servants (Tribunal of Enquiry) Act of 1950 is invalid inasmuch as it offends Article 14 of the Constitution of India. The learned Counsel sought to make out that the provisions in the aforesaid Act discriminated between one person and another in the matter of trial. It was urged that Rule 4(1) of the impugned Act gave an unfettered discretion to the State to pick out any public servant charged with the offence of taking bribe and to delegate the enquiry relating to the charge, to this Tribunal and to send other cases of bribery to the ordinary criminal Court''s if it so chose. It was stated that by reason of the Petitioner having had to face the enquiry before this Tribunal he had been placed in a more disadvantageous position, and had been deprived of many of the facilities and privileges that he would otherwise have enjoyed if he took his trial before the ordinary criminal Courts under the Criminal Procedure Code. This, it was contended, amounted to a violation of the principle of equal protection of the laws and hence this Act was violative of Article 14 of the Constitution.

The points of discrimination which were urged before us were:

(a) that before the charges were communicated to the Petitioner certain preliminary enquiry took place before the Chairman which was conducted behind the back of the Petitioner. It was urged that if the Petitioner was taking his trial before a criminal Court he would have had the advantage of cross-examining the witnesses during the preliminary enquiry and again cross-examine them after the charge has been framed;

(b) that the Petitioner had not the right to engage a counsel of his choice as he would have had if he were before a criminal Court;

(c) that the burden of proof had been laid upon him as against the established conception of the criminal law that the burden of proof was always on the prosecution; and

(d) that the Petitioner was denied the right to apply for transfer, to move the High Court in revision and to file an appeal.

These privileges that the Petitioner would have enjoyed if the matter had been before a criminal Court were denied to him. It was also urged that the Chairman did not convict the accused on the original charge but on an amended charge without having given an opportunity to the Petitioner to meet the charge.

It would appear that the Chairman of the Tribunal amended the charge on 19-6-1951 and convicted the accused on the amended charge. A grievance was made that the Petitioner has not been given the right to examine the witnesses that were summoned and, therefore, he did not have a fair trial.

Before considering the contentions raised by the learned Counsel for the Petitioner in this case, it would be desirable to dispose of the preliminary objection raised by the Government Advocate that the proceedings before the Tribunal and the order passed thereon were in the nature of administrative proceedings and as such were not amenable to the Certiorari Jurisdiction of the High Court. The learned Government Advocate in support of this contention relied upon a decision of the Madhya Bharat High Court in the case of--Lilawati v. State of Madhya Bharat reported in AIR 1952 Mad 105 (A). We may straightway say that it is now well settled that where the decision affects the right of a party and where the Statute prescribes that the authority should hear the objections of a party, institute an enquiry, make an investigation and come to a conclusion after taking into consideration all the facts and circumstances of the case, it would be regarded as a quasi-judicial proceeding and if it is regarded as such, then it is certainly amenable to the Certiorari Jurisdiction of the High Court.

A perusal of the Madhya Bharat Civil Service (Punishment and Appeal) Rules of 1950 under which the proceedings started (in the case which came up before the Madhya Bharat High Court) would show that there was no obligation on the part of the State to make an enquiry into the allegations against the civil servant, but it was only optional; therefore, the learned Judges of the Madhya Bharat High Court held that inasmuch as the duty to institute an enquiry was not obligatory but only optional, any enquiry that might have been held could not be regarded necessarily as a quasi-judicial act; and that a judicial act does not necessarily mean the act of a Judge or legal Tribunal sitting for the determination of matters of law. It denotes an act done by a competent authority upon consideration of the facts and circumstances placed before it and imposing a liability affecting the rights of parties, (b) It was also urged by the Government Advocate in further support of the argument that no application for the issue of a writ of certiorari could lie in a case like this, because the Tribunal was only a fact-finding Committee as it were, which made recommendations to the Government and it was open to the Government either to accept or reject them. Therefore, where the order was not operative, no writ of certiorari would lie.

We do not find any force in this argument also for, the mere fact that the order of the Tribunal becomes enforceable only after the Government approves of the same would not make the order the less a quasi-judicial order to be corrected if need be by a writ of certiorari. As was observed by Mahajan J. in the case of-- The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, at P-198 (B).

the fact that the Government has to make a declaration after the decision of the Tribunal is not in any way inconsistent with the view that the Tribunal acts judicially.

The fact that the Tribunal''s order is only of a recommendatory nature would not take it away from the category of a quasi-judicial order. For these reasons, we hold that the preliminary objection of the Government Advocate has no force.

Coming to the merits of the application, as has been observed above, the Petitioner was in the civil service of the State holding the post of an Inspector of Police. The Constitution lays down that persons who are members of the defence Service or of the civil service of the Union of India or ox any State would be deemed to be holding their office during the pleasure of the President or of the Governor or Rajpramukh as the ease may be. But the Constitution has imposed two safeguards in Article 311(a) that such officer shall not be removed or dismissed from service by an authority who is subordinate to the authority who appointed him and (b) that he should be given an opportunity to show cause against the action intended to be taken. The Petitioner before us has made no complaint that any of the provisions mentioned in Article 311 of the Constitution have been violated. Here the Petitioner seeks to attack and impeach the constitutionality of Act 23 of 1950 which came into force on 17-6-1950 only on the ground that it violates Article 14 of the Constitution.

He contended that this enactment is hit by Article 14 of the Constitution because it denied equal protection of the laws in that the procedure adopted for the trial of persons under the impugned Act was very much more disadvantageous than the procedure adopted in a trial under the Criminal Procedure Code. Further a number of privileges which a person taking his trial before the ordinary Court would get were denied to the person tried under the impugned Act. The learned Counsel for the Petitioner invited our attention to the series of decisions of the Supreme Court commencing from the case of-- The State of West Bengal Vs. Anwar Ali Sarkar, and ending with the case of- Syed Qasim Razvi Vs. The State of Hyderabad and Others, , wherein the validity of trials before Special Courts constituted for special purposes came up for consideration before the Supreme Court. It may be observed that the Tribunal in this case has not all the attributes of a special Court. A special Court, for example, could impose punishment, and pass sentences while the Tribunal is not competent to do so. Therefore, it would not be correct to regard the Tribunal as a Special Court in the sense that it was a parallel Court co-existing with the ordinary Courts. A special Court can under no circumstances be regarded as being akin to a Tribunal constituted under Act 23 of 1950. With this preface we proceed to consider the force of the arguments advanced by the Counsel for the Petitioner.

It is now well settled by the series of the judicial pronouncements of the Supreme Court that the equal protection clause in the Constitution does not prohibit a rational classification. Equal protection includes no doubt equal access to Courts, but it does not necessarily mean same remedies in all Courts. It means equality of treatment for a set of persons similarly placed. The complexity of modern life, the existence of social, economic and political life and diverse other considerations have necessitated the creation of Tribunals to decide administrative and quasi-judicial issues. A reasonable classification is not only permitted but is necessary if Society should progress. The Supreme Court has always regarded the principle enunciated by wills as a well accepted principle viz. If any state of facts can reasonably be conceived to sustain a classification the existence of that stall: of facts must be assumed-- Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, and... Kedar Nath Bajoria Vs. The State of West Bengal, . The Government Servants are a class by themselves and their cases which relate to dereliction of duty, or charge of corruption, insubordination etc., could not be treated just in the same manner as any other person committing an offence u/s Mil of the Penal Code. No doubt it would be bad law if the Government selected arbitrarily one individual and visited a penalty which was not imposed upon others of the same class and guilty of like delinquency. As was observed by the Supreme Court in-- Mangan Lal Deoshi Vs. Mohammad Moinul Haque and Others, ,

if a law deals equally with the members of, a well defined class, it is not obnoxious and] it is not open to the charge of denial of equal protection.

There can be no doubt that ordinarily the cases of Government servants who are found to be corrupt are dealt with administratively and are sent not to the ordinary Courts but to the Tribunal. What is prohibited under the Equal Protection Clause is discrimination between persons who are included in the same group. It could not be said that the case of the Petitioner has been singled out and sent to the Tribunal. Apart from anything else the question as to whether a particular enactment providing a procedure somewhat different from the ordinary procedure is or is not discriminatory would have to be determined on the particular facts and circumstances of the case. There could be no omnibus rule. The distinguishing features which were brought to our notice do not appear to us to be so material as to lead us to the conclusion that the Act was palpably discriminatory.

The first point of distinction urged was that the Petitioner would be entitled to engage a counsel of his choice if he were taking his trial before a criminal Court whereas here before the Tribunal it was only left to the sweet will and pleasure of the Tribunal to allow him to engage a lawyer for himself. In so far as this point is concerned we may point out straightway that there is no general right to be represented by an advocate, it is only conferred by Statute, for example u/s 340, Code of Criminal Procedure or under Order 3, Rule 1, CPC We are in agreement with the view held by the Bombay High Court in the case of-- Mulchand Gulabchand Vs. Mukund Shivram Bhide and Another, , that the right to appear by an advocate is, if at all, a procedural right and not a substantive right and, therefore, there can be no question of infringement of any fundamental right whatsoever. In the petition, however, and the grounds raised, one of the grounds raised was that the provision in the impugned Act that a lawyer could appear only when permitted by the Chairman of the Tribunal was against Article 19(g) of the Constitution in that it placed a restraint on the right of a, lawyer to practice his profession. There is no absolute right to be an advocate. The privilege to practise is conditioned by limitations circumscribed by the provisions of any Special Law. This point no doubt was not pressed at the stage of the arguments.

It was urged that as against all established canons the burden of proof was thrown upon the Petitioner while if he had been prosecuted before a criminal Court it would have been laid upon the prosecution. In this connection the Learned Counsel referred to Section 7 of the Act, Act 23 of 1950. What Section 7 says is that where there is an allegation of misconduct in the nature of corruption against a public servant evidence may be tendered of the fact that he or somebody on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account and in such cases it would be for the Government servant to give a proper explanation failing which the accused person would be held guilty of misconduct.

This does not offend any established principle of law for the reason that the fact as to how the person came to be in possession of property out of all proportion to the admitted income of the Government servant was a matter entirely within the personal knowledge of the Government servant and therefore the burden of proving the same is rightly laid upon him to show how he had happened to come by so much property. Initially, however, the State leads evidence to show that he is in possession of property not commensurate with the savings that he could make and asks the Court to draw an inference that he has come into possession of the property by receiving illegal gratification and then the onus shifts on to the Government servant. Therefore there is nothing wrong in throwing the onus on the Government servant. This is only in consonance with Section 106, Evidence Act. This objection cannot be regarded as being of any substance.

Two other objections were raised viz., that there was no right of transfer and no right of revision. These matters have been dealt with already by the Supreme Court in Syed Qasim Razvi Vs. The State of Hyderabad and Others, . Their Lordships clearly state that the absence of the right of transfer in such cases is an incident of the establishment of the Special Court. Likewise where enquiry is entrusted to a particular Tribunal no question of transfer can arise. To quote the words of their Lordships:

When a Special Court is validly set up to try a particular case a transfer of that case to some other Court cannot normally be contemplated.

Syed Qasim Razvi Vs. The State of Hyderabad and Others, at P. 163 (D). The want of the power of revision is of no great moment for the reason that if there is any dereliction of duty on the part of the Tribunal the High Court would be able to exercise its powers under Article 227 of the Constitution and if there is any error committed by the Tribunal the Petitioner would be at liberty to come by way of writ or by invoking the powers of the High Court and the High Court could, rectify the error. Therefore, it cannot be said that there has been any prejudice to the Petitioner.

As regards procedural law according to Cooley, it is open to the Legislature to abolish Courts, create new ones...and it may prescribe different modes of procedure in its discretion--Cooley''s Constitutional Limitations, Vol. I page 552. If the differences are not material it could not be said that there has been any discrimination in the proper sense of the term. Likewise it was argued that there was'' no right of appeal under the Act. We find from the record that the Petitioner had filed an appeal to the Chief Minister which might be regarded as an application for reviewing the order of the Government and, therefore, there can be no grievance on that account because he did have recourse to the higher authority. Our attention was invited to two decisions of the Calcutta High Court reported in-- Ram Kissen Chandgothia and Others Vs. The State, , and- J.K. Gupta and Others Vs. The State, . Their Lordships of the Supreme Court in Kedar Nath Bajoria Vs. The State of West Bengal, did not agree with the view held by the Calcutta High Court in the cases referred to above.

The learned Counsel argued with force that the Tribunal had no jurisdiction to amend the charge and secondly that after the charge was amended no sufficient opportunity was given to him to meet the case. It would appear from the record that the charges were framed originally by the Tribunal itself by the predecessor of the present Chairman. The powers of a Court or Tribunal to amend a charge are very clear. So long as the amendment does not prejudice the accused, the amendment is valid. It would appear from the record that after the charge was amended the Petitioner was given an opportunity to object and produce further evidence if need be. He filed a written objection and examined defence witnesses as well. There has therefore been no prejudice to the accused and he has not been put to any unfair disadvantage. The objection on this ground therefore ceases to have any force.

We are, therefore, of opinion that the cases of Government Servants is a class by itself and this classification is based upon an intelligible principle having a reasonable relation to the object which it is sought to attain. The Tribunal in this case cannot convict the accused but it can only, after investigation, make recommendations to the Government. The Government considers the recommendations of the Tribunals and passes orders. Unless there is shown to be an element of intentional or purposeful discrimination. It cannot be said that there has been a denial of the equal protection of the laws. In this connection we would refer to the case of--Snowden v. Hughes reported in (1943) 321 US 1 (J). As was observed by the Supreme Court in Kedar Nath Bajoria Vs. The State of West Bengal, , the discrimination ought not to be without reason and if the discrimination is with reason then it cannot be regarded as violative of Article 14 of the Constitution. For the above reasons we are of opinion that no case has been made out for the issue of a writ of certiorari or for the issue of a writ of mandamus. A writ of mandamus as is well known would be issued only when there is a legal right in the Petitioner and a statutory obligation imposed on the State to do a particular act. The State could not be called upon to reinstate the Petitioner. This writ petition fails and is, therefore dismissed with costs. Advocate''s fee Rs. 100/-.