S.A. Venkataraman vs The Union of India and Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 72 of 1954

Decision Date: 30 March, 1954

Coram: B.K. Mukherjea, Natwarlal H. Bhagwati, B. Jagannadhadas

S.A. Venkataraman filed a petition against the Union of India and another respondent, and the case was decided on 30 March 1954 by the Supreme Court of India. The judgment was authored by Justice B.K. Mukherjea, and the bench also included Justices Natwarlal H. Bhagwati and B. Jagannadhadas. The official citation of the decision is 1954 AIR 375 and 1954 SCR 1150, with additional citator references recorded in subsequent reports. The principal issue concerned whether an inquiry conducted under the Public Servants (Inquiries) Act, 1850 could be regarded as a prosecution and punishment within the meaning of article 20 (2) of the Constitution of India. The Court held that such an inquiry, even though it was formal and public, does not constitute prosecution or punishment for an offence as contemplated by article 20 (2). The judgment referred to earlier authorities including Maqbool Hussain v. The State of Bombay, Willis on Constitutional Law, Shenton v. Smith, Venkata Rao v. The Secretary of State for India, and section 240 (3) of the Government of India Act, 1935, to support this conclusion.

The petition was presented under article 32 of the Constitution for the issuance of a writ of certiorari, seeking the production of records of certain criminal proceedings that had been initiated against the petitioner by the Special Judge of the Sessions Court in Delhi, and also requesting that those proceedings be set aside on the ground that they were beyond the jurisdiction of the court and violated the petitioner’s fundamental right under article 20 (2). The petitioner had been a member of the Indian Civil Service and, up to recently, served as Secretary to the Ministry of Commerce and Industries in the Government of India. Allegations of misconduct against the petitioner, arising from his various official posts, were brought to the attention of the Central Government. Satisfied that there were prima facie grounds for an investigation, the Government ordered a formal and public inquiry into the truth of the allegations, invoking the provisions of the Public Servants (Inquiries) Act, 1850. The allegations were formulated as specific charges, and a senior legal officer of the Government was appointed to conduct the inquiry and report the findings. Counsel for the petitioner appeared on behalf of the petitioner, while counsel for the respondent, including representatives of the Attorney‑General and the Solicitor‑General of India, represented the Union of India. The judgment was delivered by Justice Mukherjea.

Arthur Trevor Harries, who had previously served as the Chief Justice of the Calcutta High Court, was appointed as Commissioner under section three of the Public Servants (Inquiries) Act to conduct the inquiry ordered by the Central Government. In his capacity as Commissioner, he was required to investigate the charges that had been formulated against the petitioner and to report his opinion to the Government regarding the various articles of charge. The Government’s order directing that the inquiry be held was dated twenty‑first February, nineteen fifty‑three. The charges against the petitioner were organized under six main headings, each containing several sub‑charges. The first charge asserted that the petitioner had engaged in misconduct by showing undue favour to Messrs Millars Timber and Trading Company Limited in the issuance of import and export licences. It alleged that, while performing his duties as a public servant, the petitioner abused his position by accepting illegal gratification or valuable things in connection with licences that he recommended or was to recommend. The second charge alleged that the petitioner had accepted or obtained valuable items for himself and for members of his family without paying for them, on various occasions, from the same Millars company, in return for recommending their applications for import licences and export permits. The fourth and fifth charges were of a similar nature to the first and second charges, but they related to the petitioner’s dealings with another firm known as Sunder Das Saw Mills. The inquiry was conducted in accordance with the procedures laid down in the Public Servants (Inquiries) Act. The charges were read out to the petitioner, and his plea of “not guilty” was formally recorded. Evidence was presented by both the prosecution and the defence, and witnesses on both sides were examined on oath, cross‑examined, and re‑examined in the normal manner. After considering the evidence, the Commissioner found that four of the charges, each under its respective sub‑headings, were proved against the petitioner and he submitted a report to that effect on fourth May, nineteen fifty‑three. By a letter dated fifteenth May, nineteen fifty‑three, the Government informed the petitioner that, after careful consideration of the Commissioner’s report, the President accepted the Commissioner’s opinion. The Government indicated that, based on the findings on the various charges, the provisional view was that the petitioner should be dismissed. The letter also provided the petitioner, in accordance with article three‑eleven, clause two of the Constitution, an opportunity to show cause against the proposed action and stated that any representation he might make would be considered before a final order was passed. The petitioner made a representation, which was examined by the Government, and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal. The dismissal order was issued on seventeenth September, nineteen fifty‑three. Subsequently, on twenty‑third February, nineteen fifty‑four, the police submitted a charge‑sheet against the petitioner before the Special Judge of the Sessions Court in Delhi, charging him with offences under sections one‑sixty‑one and one‑sixty‑five of the Indian Penal Code and section five, clause two of the Prevention of Corruption Act, and summons were issued directing the petitioner to appear before the court on eleventh March, nineteen fifty‑four.

The police filed a charge‑sheet before the Special Judge of the Sessions Court in Delhi, alleging that the petitioner had committed offences punishable under sections 161 and 165 of the Indian Penal Code and under section 5(2) of the Prevention of Corruption Act; following that filing, the learned judge issued summons directing the petitioner to appear before his court on 11 March 1954. The petitioner has challenged the legality of these proceedings in the present writ petition, contending that the proceedings lack jurisdiction because they constitute a fresh prosecution for offences for which he has already been prosecuted and punished, thereby falling within the prohibition contained in article 20(2) of the Constitution. The sole question for consideration is whether, in the circumstances of this case, the petitioner’s fundamental right under article 20(2) has been infringed, a breach that would warrant the issuance of a writ for its enforcement. The scope and meaning of the guarantee embodied in article 20(2) were exhaustively explained by this Court in Maqbool Hussain v. State of Bombay. The principle underlying the clause is rooted in the well‑established rule of English law expressed in the maxim “Nemo debet bis vexari” – that a man must not be placed twice in peril for the same offence. Under English law, a person indicted a second time for the same offence may raise as an absolute defence his prior acquittal or conviction, technically termed the pleas of “autrefois acquit” or “autrefois convict”. A comparable protection appears in the Fifth Amendment to the Federal Constitution of the United States, which provides that no person shall be subjected for the same offence to be put twice in jeopardy of life or limb. Indian legislation has recognised this principle, incorporating it in section 26 of the General Clauses Act and in section 403 of the Code of Criminal Procedure. Nevertheless, the guarantee afforded by article 20(2) of our Constitution is considerably narrower than the common‑law rule in England or the American doctrine of double jeopardy, as this Court observed in the aforementioned case. Notably, article 20(2) does not contain the principle of “autrefois acquit”. It appears that the framers of our Constitution did not deem it necessary to elevate that portion of the common‑law rule to the status of a fundamental right immune from legislative amendment, leaving its regulation to the general law of the land. Consequently, for a citizen to invoke the protection of clause 2 of article 20, both prosecution and punishment for the same offence must have occurred.

In order to invoke the protection afforded by clause (2) of article 20 of the Constitution, the Court explained that it was necessary that both prosecution and punishment had occurred with respect to the same offence. The terms “prosecuted” and “punished” were to be understood not in a narrow or technical sense but in the broader sense of having been prosecuted or punished. Both elements had to be present simultaneously for the constitutional safeguard to be triggered. The Court noted that the American constitutional regime dealt with a different issue; there the prohibition was aimed not at a second punishment but at the danger to a person when a valid indictment was filed before a competent court, followed by proper arraignment, plea and lawful empaneling of a jury. Under that system a verdict was not required for the protection to arise. The Court then referred to its earlier decision in Maqbool Hussain’s case, observing that the language of article 20 and the specific words used indicated that the proceedings concerning prosecution and punishment must be of a criminal nature, conducted before a court of law or a judicial tribunal. They could not be before a body that merely conducted a departmental or administrative inquiry, even if such a body was created by statute, because such a body was not mandated to try a matter judicially on legal evidence. In the Maqbool Hussain case the proceedings had been instituted under the Sea Customs Act before a customs authority that ordered the confiscation of goods. The Court held that those proceedings did not constitute “prosecution,” nor was the confiscation order a “punishment” within the meaning of article 20(2), since the customs authority was not a court or judicial tribunal but an administrative officer exercising revenue powers.

The Court then turned to the facts of the present matter and observed that they were different, requiring a determination of whether the petitioner had satisfied all the conditions necessary to claim the protection of article 20(2). The petitioner was currently facing charges under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. For the purpose of analysis, the Court assumed that the allegations underlying these charges were substantially the same as those that had formed the subject matter of an earlier inquiry conducted under the Public Servants (Inquiries) Act of 1850. The issue, therefore, narrowed to the question of whether the petitioner had already been (1) prosecuted and (2) punished for the same offences. Counsel for the petitioner argued that his client had indeed been prosecuted for those identical offences before the Commissioner appointed under Act XXXVII of 1850. It was submitted that this earlier proceeding was not a mere departmental inquiry as in Maqbool Hussain’s case, but rather a genuine judicial tribunal. The Commissioner, according to the counsel, was required to adjudicate the charges judicially, based on evidence recorded under oath, thereby functioning as a court with powers to summon witnesses, compel document production and punish for contempt, although the Commissioner himself could not impose a penalty and merely forwarded his report to the Government, which later imposed dismissal as a penalty under section 22 of the Act.

The Commissioner possessed legal authority to administer oaths to witnesses who appeared before him during the enquiry, as granted by the relevant statute. The prosecution was conducted by a prosecutor appointed under the Act, who read the charges to the accused, recorded his plea, and then proceeded with the trial. Witnesses for both the prosecution and the defence were examined on oath, and each witness was subsequently cross‑examined and, where necessary, re‑examined. In the course of the enquiry the Commissioner exercised all powers normally possessed by a court, including the power to summon witnesses, compel the production of relevant documents, and punish individuals for contempt of the enquiry. When the enquiry concluded, the Commissioner recorded findings against the petitioner on certain charges, but he lacked authority to impose any penalty and was required merely to forward his report to the Government. Pursuant to section 22 of the Act, the Government retained the power to pass orders it deemed appropriate, and exercising that power the President imposed on the petitioner the penalty of dismissal. (1) [1953] S.C. R. 7o3. Counsel argued that, for the purpose of article 20(2) of the Constitution, it is irrelevant that the prosecution and the punishment were carried out by two different authorities. According to that argument, the petitioner had already been both prosecuted and punished, and the present proceedings sought to subject him to prosecution again on the same charges, thereby violating article 20(2). The issues raised were acknowledged as important by the Court, and it was determined that they required careful and thorough examination before any determination could be made. It is true that the Commissioner appointed under Act XXXVII of 1850 possessed certain court‑like powers, notably the ability to summon witnesses and compel document production. He was also required to prepare a report based on evidence taken under oath and tested by cross‑examination. However, the Court noted that these facts alone do not automatically establish that an enquiry conducted under Act XXXVII of 1850 amounts to a prosecution. Nor does it necessarily constitute a clear punishment for an offence as contemplated by article 20(2) of the Constitution. To reach a proper decision, the Court stated that it must examine the entire background of the statutory provisions governing enquiries into the conduct of public servants. It must also determine the precise scope and purpose of such enquiries as envisaged by Act XXXVII of 1850 and the consequent outcomes they produce. The Court recalled a principle of English law that, unless a statute provides otherwise, all public officers and Crown servants hold their positions at the pleasure of the Crown and may be removed without cause. Furthermore, even where a public servant believes his dismissal to be unjust, the traditional remedy is not a civil suit but an appeal of an official or political nature. The Court observed that this principle had been applied in India since the beginning of British rule, and that employees of the East India Company were likewise subject to the same rule.

It was observed that the principle cited in Shenton v. Smith (1895) A.C. 229 also applied to the situation under discussion. The Court reminded that the Public Servants (Inquiries) Act was enacted in 1850 while the East India Company still exercised authority in India. The preamble of that Act expressly stated that its purpose was to regulate inquiries into the conduct of public servants, and not to provide a mechanism for removal from service without governmental sanction. Accordingly, the Act made such inquiries optional for the Government and expressly preserved the Government’s power to dismiss its servants at pleasure. This preservation of dismissional authority was confirmed by section 25 of the Act, which declared that nothing in the statute should be construed as limiting the Government’s authority to suspend or remove any public servant for any cause without conducting an inquiry under the Act.

After the Crown assumed direct control of the Government of India, the English common‑law rule continued unchanged until the Government of India Act was amended in 1919 to introduce section 96B. Sub‑section (1) of that provision provided that every person in the civil service of the Crown in India held office during His Majesty’s pleasure, could be employed as required by a proper authority, but could not be dismissed by any authority subordinate to the one that appointed him. Thus the amendment imposed a limitation on the unfettered power of the Government to dismiss servants at pleasure, by prohibiting dismissal by a subordinate authority. The opening words of the section also made the exercise of dismissal subject to the rules made under the Act. Pursuant to section 96B(2), the Civil Service (Classification, Control and Appeal) Rules were framed and continue to operate, with later amendments. Part XII of those rules deals with conduct and discipline of civil servants, and rule 49 therein provides that, for good and sufficient reasons, penalties prescribed in the various clauses of the rule may be imposed on members of the services covered by clauses (1) to (5) of rule 14. The penalties listed include censure, withholding of increment, dismissal, reduction in rank and removal. Rule 55, located in the same chapter, sets out the procedure that must be followed before an order of dismissal, removal or reduction in rank is made against any service member. No such order may be issued unless the person concerned has been given written notice of the grounds for the proposed action and has been afforded an adequate opportunity to respond.

In this case, the Court explained that before a civil servant could be dismissed, an inquiry into his conduct had to be conducted. Such an inquiry could be carried out either pursuant to the provisions of the Public Servants (Inquiries) Act of 1850 or in a less formal and less public manner as provided for in the Civil Service Rules themselves. The Court noted that the Rules did not possess statutory force, and the Privy Council had held that when an officer was dismissed without compliance with those Rules, the officer had no cause of action against the Crown. In effect, because the Rules were not incorporated into any statute, they did not legally restrain the Crown’s power to dismiss its servants at pleasure. The Court observed that this situation changed partially with the Government of India Act, 1935. In addition to the restriction in section 96‑B(1) of the Government of India Act, 1919, which barred a civil servant’s dismissal by an authority subordinate to the appointing authority, the 1935 Act introduced a further statutory provision—section 240(3)—stating that a civil servant could not be dismissed or reduced in rank unless the person concerned was given a reasonable opportunity to show cause against the proposed action. The Court further pointed out that Article 311(2) of the present Constitution added the word “removal” after “dismissal” and before “reduction in rank”. Consequently, for all three categories covered by rule 55 of the Civil Services Rules, a civil servant now possessed a constitutional right to a reasonable opportunity to show cause before any adverse action could be taken against him. The Court clarified that, as the law presently stands, the sole purpose of an inquiry under Act XXXVII of 1850 is to enable the Government to reach a definitive conclusion regarding a public servant’s misbehaviour and thereby determine the appropriate punishment to be imposed, but only after the servant has been given a reasonable opportunity to show cause as mandated by Article 311(2). The Court stressed that such an inquiry under the 1850 Act was not mandatory; the Government was free to employ any other method it deemed suitable, and the Act served merely as a matter of convenience. Against this background, the Court said it must examine the substantive provisions of the Public Servants (Inquiries) Act of 1850 to assess whether the nature and result of an inquiry contemplated by that Act could be characterized as prosecution and punishment for a criminal offence. Finally, the Court observed that the terms “prosecution” and “punishment” do not have a fixed meaning and may be interpreted in either a broader or a narrower sense.

In article 20(2) of the Constitution, both the terms “prosecution” and “punishment” are linked expressly to an “offence”, and the word “offence” must be understood in the sense given by the General Clauses Act, that is, an act or omission made punishable by any law that is in force at the relevant time. Consequently, any reference to prosecution must relate to the law that creates the offence, and any reference to punishment must correspond to the penalty prescribed by that same law. The acts that the petitioner is alleged to have committed in the present matter, and on the basis of which charges have been framed against him, fall within the definition of “offences” set out in sections 161 and 165 of the Indian Penal Code as well as in section 5(2) of the Prevention of Corruption Act. The Public Servants (Inquiries) Act, however, does not itself create any offence nor does it provide any punishment for any conduct. Rule 49 of the Civil Services Rules, which has been mentioned earlier, merely provides for the imposition of certain penalties on public servants where there are “good and sufficient reasons”. That rule does not refer to any specific offence and, accordingly, it cannot by its terms create any offence. The purpose of the rule is to enable the Government to determine whether good and sufficient reasons exist, within the meaning of Rule 49, for imposing disciplinary penalties such as removal, dismissal or reduction in rank upon a public servant, and to permit the Government to direct an inquiry under Act XXXVII of 1850 where it deems such an inquiry necessary.

A Commissioner appointed under the Public Servants (Inquiries) Act has no duty to investigate any offence that is punishable under the Indian Penal Code or under the Prevention of Corruption Act, and he possesses absolutely no jurisdiction to conduct such an investigation. The subject‑matter of the Commissioner’s inquiry is limited to ascertaining the truth or falsity of the allegation of misbehaviour made against a public servant, and the enquiry is confined to the specific instances of alleged misbehaviour that are articulated in the articles of charge. Disciplinary action, if any, may be taken by the Government only after it is satisfied that such misbehaviour has occurred. The mere fact that the word “prosecution” appears in the language of the Act does not transform the proceeding before the Commissioner into a criminal prosecution for an offence. The Commissioner is required to form his opinion on the basis of legal evidence, and for that purpose he is empowered to summon witnesses, administer oaths to them, and compel the production of relevant documents. Although these powers resemble certain aspects of a judicial tribunal, they do not make the proceeding anything more than a factual‑finding enquiry. This conclusion is firmly supported by sections 21 and 22 of the Act. At the conclusion of the enquiry the Commissioner must submit a report to the Government stating his findings on each charge. Such a report is merely an expression of opinion; it lacks the finality and authoritativeness that are essential characteristics of a judicial pronouncement, and the opinion expressed therein is not binding on the Government. Under section 22, after receiving the Commissioner’s report, the Government may, if it wishes, call upon the Commissioner to take further evidence or to give further explanation of his opinion.

After receiving the Commissioner’s report, the Government could require the Commissioner to obtain additional evidence or to clarify his opinion further. When a Special Commissioner was appointed, his report might be sent to the court or to another authority that was senior to the officer concerned, so that further advice could be obtained. After considering the views of the various authorities and persons, the Government was required to make a final decision about what action, if any, should be taken. The Court observed that neither section 21 nor section 22 of the Public Servants (Inquiries) Act contained any provision relating to punishment. The Act did not give the Commissioner any power, even an opinion, to impose a penalty of punishment, and section 22 only contemplated orders that the Government could issue in its capacity as employer of its servants. As had already been explained, an order dismissing a servant could not be treated as a punishment for an offence punishable under any provision of the Indian Penal Code or the Prevention of Corruption Act. The Court cited an analogous situation involving a member of the Bar whose name was removed from the roll on the ground of professional misconduct, an action taken under the disciplinary jurisdiction of the appropriate authority. Although such professional misconduct might also constitute a criminal offence, the petitioner’s contention, if accepted, would mean that the individual could not be prosecuted for the same conduct, because the authority that removed him was not a court competent to try a criminal charge and the removal was a disciplinary measure, not a criminal punishment.

The Court then stated its view that an enquiry conducted under the Public Servants (Inquiries) Act of 1850 did not involve any investigation of an offence as defined by any law then in force, nor did it involve the imposition of any punishment prescribed by law for such an offence. The learned Attorney General had raised the point that the test for the protection under article 20(2) of the Constitution was whether a person had been tried and punished for the same offence, not merely the same act, and he argued that the offences in the present case were distinct even though they might arise from the same conduct. In the Court’s opinion this question did not arise for consideration. Likewise, the Court found it unnecessary to express an opinion on the petitioner’s submission that, for article 20(2) to apply, the punishment must be imposed by the same authority before which the prosecution was conducted. Consequently, the Court held that the petition failed and dismissed it. The judgment concluded with the statement that the petition was dismissed. The appendix then recorded the proceedings of the Supreme Court sitting on 5 November 1954, listing the judges Mehr Chand Mahajan C.J., Bijon Kumar, Mukherjee, S.R. Das, Vivian Bose, N.H. Bhagwati, B. Jagannadhadas, T.L. Vemkatarrama Ayyar, and noted that Chief Justice Mehr Chand Mahajan opened the morning meeting on a very sad occasion.

In this sitting the Court observed the loss of the late Justice Ghulam Hasan, who collapsed suddenly at approximately one o’clock in the morning on the day of the hearing. The Court noted that during the author’s recent trip from Delhi to Patiala, undertaken to visit the High Court of Patiala and East Punjab States Union, Justice Hasan had become ill and was absent from Court on the preceding Monday. Upon the author’s return, an inquiry was made of Justice Hasan, who reported a slight congestion of the lungs but assured that he felt much better and anticipated attending Court on the forthcoming Friday. The author personally saw Justice Hasan on Wednesday evening; at that time he appeared cheerful, seemed in good health, and reiterated his expectation of being present on Friday, or failing that, on the following Monday. On Thursday morning his condition was reported to have improved further, yet later that evening he complained of discomfort and was taken to a hospital, where he collapsed suddenly. This brief account, the Court said, marked the abrupt end of a distinguished career on the Bench and at the Bar of a devoted and patriotic Indian citizen. Justice Ghulam Hasan was born on 3 July 1891. After a distinguished university education and an equally distinguished practice at the Bar, he was elevated to the Bench of the Oudh Chief Court in 1940 and became its Chief Judge in 1946. Following the merger of the two High Courts in the United Provinces, he was appointed Senior Judge of the Allahabad High Court in 1948. Upon retiring from the High Court he served as a member of the Labour Appellate Tribunal, and on 8 September 1952 he was appointed a Judge of this Supreme Court. Prior to his judicial appointment he had served for two years as a Member of the Uttar Pradesh Legislative Assembly. Since 1942 he had also acted as Chairman of the Executive Committee of the Red Cross and St John Ambulance Association, Uttar Pradesh Branch, and in 1947 he was honoured with the Knighthood of the Order of St John in recognition of his humanitarian services. He was actively interested in education, serving as a member of the Court of Aligarh University and of its Executive Committee. His social and cultural pursuits were widely known and need not be detailed further. As both a member of the Bar and of the Bench, Justice Ghulam Hasan distinguished himself by immense learning, detachment, and high judicial integrity. He consistently treated members of the Bar and his colleagues with courtesy and patience, qualities that were plainly evident in his demeanor. His thorough grasp of facts, deep knowledge of law, and swift perception of the essential points in cases greatly assisted the Court in resolving the many complex questions that arose before it. He possessed an unusually steady and gentle temperament, and his simple, unaffected manner attracted friends across all spheres of life.

The Court observed that the deceased would be very much missed not only by the author and his colleagues in the Court but also in the social life of the city, which would be distinctly poorer for his loss. The Court stated that an esteemed colleague and a learned, just and upright Judge had been lost, and that the nation had also lost a patriotic and great citizen. It noted that the deceased left behind his widow, a son and a daughter. The Court expressed that all mourned his loss together with the members of his family and offered condolence to them, and it was confident that gentlemen of the Bar would wish to associate themselves with the Bench in conveying an expression of heartfelt sympathy and condolence to the bereaved family. The Court prayed that his soul might rest in peace. Accordingly, the Court ordered that the Court would remain closed on that day as a mark of respect to the deceased.

In a written submission, M. C. Setalvad, Attorney‑General for India, addressed the Lords and conveyed that the Bar respectfully associated itself with deep regret at the Lords’ expression of grief and sympathy. He recalled that about three years earlier the Court had assembled to mourn the death of its first Chief Justice, and that the hand of fate had now struck with equal suddenness on this occasion. He further noted that a little over two years previously the deceased had become a member of the Court, and that his affable personality, geniality and uniform courtesy had made a deep impression on all who came into contact with him. The Bar, he said, would never forget the keen practical sense which the deceased brought to bear on all questions that came before him, the patience with which he heard them, and the invariable kindness he showed to those appearing before the Court. The Bar tendered its deep and heartfelt sympathy to those near and dear to him in their great, sudden and irreparable loss.