Jagannath Prasad Sharma vs State Of Uttar Pradesh And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 490 of 1957

Decision Date: 6 March 1961

Coram: J.C. Shah, S.K. Das, M. Hidayatullah, K.C. Das Gupta, N. Rajagopala Ayyangar

In the case titled Jagannath Prasad Sharma versus State of Uttar Pradesh and others, the judgment was rendered on 6 March 1961 by the Supreme Court of India. The judgment was authored by Justice J.C. Shah, and the bench comprised Justices J.C. Shah, S.K. Das, M. Hidayatullah, K.C. Das Gupta and N. Rajagopala Ayyangar. The petitioner was Jagannath Prasad Sharma and the respondents were the State of Uttar Pradesh together with other parties. The citation for the decision is reported as 1961 AIR 1245 and 1962 SCR (1) 151, with further citator references R 1963 SC 779 (8) and F 1965 SC 1103 (15). The matter concerned the statutory framework governing disciplinary proceedings against public servants, specifically the existence of two parallel sets of rules and the question of whether a discriminatory selection of one rule could be justified, as well as the extent of the Governor’s authority to dismiss a police officer under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, the Uttar Pradesh Police Regulations, and Section 7 of the Police Act, 1861, in light of Article 14 of the Constitution of India.

The factual background revealed that the appellant, a police officer, faced allegations of immorality, corruption and gross dereliction of duty. Following an initial enquiry, the Governor of Uttar Pradesh invoked Section 4 of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 and referred the matter to a disciplinary Tribunal. On 4 February 1950, the Tribunal recommended dismissal of the appellant from his service. Subsequent to that recommendation, the Governor issued a notice to the appellant requiring him to show cause why dismissal should not be imposed. After evaluating the appellant’s response, the Governor dismissed him effective 5 December 1950.

The appellant contested the dismissal on two principal grounds. First, he argued that the Governor lacked authority under Section 7 of the Police Act and the accompanying Uttar Pradesh Police Regulations to dismiss a police officer. Second, he maintained that the Tribunal’s enquiry violated Article 14 of the Constitution because, among the two parallel disciplinary procedures available—those under the Tribunal Rules and those under the Police Regulations—the Governor had selected the procedure that was prejudicial to the appellant.

The Court, by a majority judgment of Justices Das, Hidayatullah, Shah and Ayyangar, held that both the Tribunal’s enquiry and the Governor’s dismissal order were lawful and valid. The Court explained that Paragraph 479(a) of the Uttar Pradesh Police Regulations, which is framed under Section 7 of the Police Act, expressly confers upon the Governor the power to dismiss a police officer. Similarly, the Tribunal Rules, enacted on the basis of the various powers vested in the Governor, including the authority derived from Section 7 of the Police Act, also empower the Governor to dismiss a police officer. The Court further observed that, by virtue of Article 313 of the Constitution, these statutory provisions continued to operate notwithstanding the commencement of the Constitution. Moreover, the authority granted to the Inspector‑General of Police and subordinate officers under Section 7 of the Police Act was not exclusive; it remained subject to the overall control exercised by the Government of India Act, 1935, and the Constitution, which stipulate that the tenure of all civil servants of a province or state is held at the pleasure of the Governor. Accordingly, the procedure adopted did not constitute a breach of Article 14.

The Court observed that when the proceedings against the appellant were initiated, two different enquiry procedures were available for the authorities to choose from. However, the Governor’s order that referred the case to a Tribunal under the Tribunal Rules had been issued before the Constitution came into force, and therefore Article 14 of the Constitution could not be applied to that order even if the order were discriminatory. The Court noted that the procedure described in the Police Regulations was substantially the same as the procedure laid down in the Tribunal Rules. Consequently, by continuing the enquiry after the Constitution took effect under the Tribunal Rules rather than under the Police Regulations, the authorities did not adopt a more onerous or prejudicial procedure against the appellant.

The Court further held that the distinction that an order made by a police authority under the Police Regulations was appealable, while an order issued by the Governor under the Tribunal Rules was not appealable, did not amount to discrimination within the meaning of Article 14. The Tribunal Rules, the Court explained, already provided a reasonable opportunity to a public servant to deny guilt, to defend himself, and to make a representation against the proposed punishment. The mere existence of two parallel procedures was not discriminatory unless it could be shown that one set of procedures was more burdensome than the other.

In supporting its analysis, the Court referred to the decisions in Syed Qasim Rozvi v. State of Hyderabad [1953] S.C.R. 589 and Lakshmidas Kewalram Abuja v. State of Bombay [1952] S.C.R. 710, which were applied, and also cited Khem Chand v. Union of India and others [1954] S.C.R. 1080 and Sardar Kapur Singh v. Union of India (1960) 2 S.C.R. 569. It distinguished the case of State of Orissa v. Dhirendranath Das (A.I.R. 1961 S.C. 1715). The Court noted that, according to Justice Das Gupta, the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules 1947 were struck down as violative of Article 14. The absence of a right of appeal under the Tribunal Rules, while a right of appeal existed under the Police Regulations, created unequal treatment for police officers prosecuted under the two different procedures. Moreover, the Court observed that no guiding principle existed for the Government to decide which of the two procedures should be applied in a particular case.

In the judgment’s procedural history, the appeal arose in Civil Appeal No. 490 of 1957, challenging the judgment and decree dated 22 March 1954 of the Allahabad High Court in Civil Miscellaneous Writ No. 7854 of 1951. Counsel for the appellant included G. S. Pathak and others, while counsel for respondents 1 and 3 comprised C. B. Agarwala, G. C. Mathur and C. P. Lal. The judgment dated 6 March 1961 was delivered by Justices S. K. Das, M. Hidayatullah, J. C. Shah and N. Rajagopala Ayyangar, with a separate opinion by Justice J. C. Shah and another by Justice K. C. Das Gupta. The factual background noted that the appellant had joined the United Provinces police force in 1918, was appointed Sub‑Inspector, later promoted to Inspector, and in 1946 was transferred to the Anti‑corruption department.

In 1947 the appellant, who had already been transferred to the Anti‑corruption department, received an appointment that kept his substantive rank of Inspector while giving him the officiating rank of Deputy Superintendent of Police. Soon after this promotion, the Chief Minister together with the Inspector‑General of Police of Uttar Pradesh received complaints alleging that the appellant had engaged in immoral conduct, corruption and a gross neglect of his official duties. The Inspector‑General then conducted a preliminary confidential enquiry and concluded that there existed a prima facie case against the appellant. On that basis he ordered that a formal enquiry be instituted against the appellant, restored the appellant to his substantive rank of Inspector and placed him under suspension. The formal enquiry was conducted by the Superintendent of Police of the Anti‑corruption department. After completing the enquiry, the Superintendent prepared a report which was sent to the Government of Uttar Pradesh. Acting under rule 4 of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947—hereinafter referred to as the Tribunal Rules—the Governor referred the matter to a Tribunal constituted under rule 3 of those Rules to investigate the charges of corruption, personal immorality and failure to discharge duties properly. The Tribunal framed three specific charges against the appellant, examined the evidence in detail and, on 4 February 1950, recommended that the appellant be dismissed from service. Following this recommendation the Governor issued a notice requiring the appellant to show cause why he should not be dismissed. After considering the appellant’s explanation, the Governor issued an order dismissing the appellant from the police force with effect from 5 December 1950.

The appellant subsequently filed a petition in the High Court of Judicature at Allahabad under article 226 of the Constitution, seeking a writ of certiorari to quash the Tribunal proceedings and a writ of mandamus directing the State of Uttar Pradesh to conduct an enquiry under section 55 of the Civil Services (Classification, Control and Appeal) Rules. In support of his petition, the appellant advanced three separate contentions. First, he argued that the dismissal order was unauthorised because the Governor did not possess power under section 7 of the Police Act and the regulations made thereunder to pass such an order. Second, he contended that even assuming the Governor had dismissal power, the mode of enquiry chosen by the authorities was prejudicial to him, rendering the Tribunal’s proceedings void on the ground that the equal‑protection clause of the Constitution had been violated. Third, he claimed that the Tribunal’s proceedings were tainted by patent irregularities that led to an erroneous finding of guilt. To evaluate the first two contentions, it was necessary to set out briefly the substantive and procedural legal provisions then in force that governed the tenure of police officers in the State of Uttar Pradesh, as these provisions were directly relevant to the appellant’s position.

The appellant had been admitted to the police force that was created under Act V of 1861. Under section 3 of that Act, the authority of superintendence over an entire general police district was placed in the State Government to which the district was subordinate, and the Act expressly prohibited any person, officer or court from being empowered by the State Government to supersede or control any police functionary except where the Act itself authorized such power. Section 4 of the Act then vested the administration of the police throughout a general police district in the Inspector‑General of Police. Section 7 of the Act provided, subject to the safeguards of Article 311 of the Constitution and to any rules that the State Government might frame from time to time under the Act, that the Inspector‑General, Deputy Inspectors‑General, Assistant Inspectors‑General and District Superintendents of Police were authorized to dismiss, suspend or reduce any police officer of subordinate rank whom they considered remiss or negligent in the performance of his duties, or unfit for such duties, and they could also impose any of the punishments listed in the statute on a subordinate‑rank officer who performed his duties carelessly, negligently, or who by his own conduct rendered himself unfit for the discharge of those duties. Section 46, sub‑section (2), empowered the State Government to make rules to give effect to the provisions of the Act and also gave it the authority to amend, add to or repeal any such rules. Accordingly, the Government of Uttar Pradesh framed a set of rules known as the Police Regulations under the Indian Police Act. Chapter 32 of those Regulations, covering Regulations 477 to 507, dealt with departmental punishment and criminal prosecution of police officers, while Chapter 33, containing Regulations 508 to 516, dealt with matters of appeals, revisions and petitions. Regulation 477 stipulated that no officer appointed under section 2 of the Police Act could be punished by an executive order except in the manner prescribed in that chapter. Regulation 478A provided that the punishment of dismissal, removal from the force or reduction, as defined in Regulation 482, could be imposed only after the completion of departmental proceedings. Regulation 479, clause (a), reserved “full power” to the Governor to punish all police officers, whereas clause (b) authorized the Inspector‑General to punish Inspectors and police officers of lower ranks. Regulation 489 set out the procedure for departmental trials of police officers, and Regulation 490 required that such departmental trials be conducted in accordance with the rules detailed therein. The various clauses of Regulation 490 laid down provisions concerning the admission of oral and documentary evidence, the framing of charges, the explanation by the delinquent police officer, the recording of statements of defence witnesses, the recording of findings by the Superintendent of Police, and the preparation of a report by the enquiry officer if he was of the opinion that the delinquent officer should be dismissed or removed from the force. Clause 9 of Regulation 490 further provided that a police officer could not be represented by counsel in any proceeding instituted against him.

In this case, the Court explained that under Regulation 508 each police officer against whom a dismissal or removal order is issued may file a single appeal against that order to the authority specified for such purpose. However, no right of appeal exists against an order issued by the Governor exercising the power reserved to him by Regulation 479 cl. (a). The Court then traced the historical statutory framework governing tenure of civil officers. Section 96B of the Government of India Act, 1915 provided that the tenure of all civil officers, including police officers, was at the pleasure of the Sovereign. Under sub.s. (2) of that section, local governments were authorised to frame classification rules. The later Government of India Act, 1935 dealt with civil services in chapter 2 of Part X, and its section 240(1) reproduced the earlier provision, holding that all members of the civil service served at the pleasure of the Sovereign. Moreover, sections 240(1) clauses (2) and (3) granted civil servants a two‑fold protection: they could not be dismissed by any authority subordinate to the appointing authority, and they could not be dismissed or demoted without first being given a reasonable opportunity to show cause. The Court noted that these protective provisions were not extended to police officers, because a special provision was made in section 243 of the 1935 Act. Section 243 declared that, notwithstanding the preceding provisions, the conditions of service of the subordinate ranks of the various police forces in India would be determined by the respective police Acts. Consequently, the service conditions of subordinate police ranks were governed only by rules made under sections 7 and 46(2) of the Police Act. The Court then turned to the constitutional regime. With the adoption of the Constitution of India on 26 January 1950, the earlier distinction between police officers and other civil servants regarding constitutional protection was removed. Articles 309 and 310 of the Constitution now govern recruitment, conditions of service, and tenure of all persons serving the Union or a State. Article 311 extends the protection originally contained in clauses (2) and (3) of section 240 of the Government of India Act to members of the police force. Article 309 makes the conditions of service of public servants subject to constitutional provisions and to statutes enacted by the appropriate legislature, while Article 310 provides that, except where the Constitution itself prescribes a specific mode of dismissal—such as for judges of the Supreme Court and High Courts—public servants hold office at the pleasure of the appointing authority.

All civil servants who hold office under the Union of India, including those appointed to the High Courts, the Comptroller and Auditor‑General of India and the Chief Election Commissioner, hold their offices during the pleasure of the President. Likewise, all civil servants who hold office under a State hold their offices during the pleasure of the Governor. By virtue of Article 313 of the Constitution, until a new provision is enacted, every law that was in force immediately before the Constitution and that applies to any public service continuing under the Union or a State remains in force to the extent that it is consistent with the Constitution. Consequently, the authority of police functionaries to dismiss police officers was preserved after the Constitution came into effect.

On 4 November 1947, the Governor of Uttar Pradesh, exercising the powers conferred inter alia by section 7 of the Police Act, issued the Tribunal Rules. Rule 1, clause (3), provides that these rules apply to “all Government servants under the rule‑making control of the Governor” and that they govern any acts, omissions or conduct that occurred before the commencement date of the rules as well as conduct occurring thereafter. Clause (e) of Rule 2 defines “corruption”, clause (d) defines “failure to discharge duties properly” and clause (e) defines “personal immorality”. Rule 4 empowers the Governor to refer, to a Tribunal constituted under Rule 3, cases concerning an individual Government servant, a class of servants or servants in a particular area, but only in respect of matters involving (a) corruption, (b) failure to discharge duties properly, (c) irremediable general inefficiency in a public servant who has served for more than ten years, and (d) personal immorality. By clause (2), the Governor may also, on his own request, refer the case of a gazetted Government servant to the Tribunal for any of the matters listed in sub‑clause (1).

Rule 7 mandates that the Tribunal’s proceedings be conducted in camera, and it specifies that neither the prosecution nor the defence may be represented by counsel. Rule 8 prescribes the procedural steps that the Tribunal must follow, while Rule 9 deals with the maintenance of the Tribunal’s record. Rule 10 states that the Governor is not bound to consult the Public Service Commission on the Tribunal’s recommendations and may issue an order of punishment in the terms recommended by the Tribunal, although the Governor may, for sufficient reasons, impose a lesser punishment. Rule 12 clarifies that nothing in the Tribunal Rules shall be deemed to affect the conduct of disciplinary proceedings in cases other than those specifically covered by the Tribunal Rules. Rule 13 authorises the Governor to delegate the power to refer cases involving gazetted officers, to district heads and to pass orders of punishment under Rule 10 to heads of departments.

The enquiry against the appellant was initiated before the Constitution came into force, but the enquiry continued after the Constitution’s commencement, and the order dismissing the appellant from the police force was finally issued in December 1950.

In this case, the Court noted that Police Regulation 479(a) conferred upon the Governor the authority to dismiss a police officer. The Tribunal Rules had been framed by exercising various powers that were vested in the Governor, including the power provided by section 7 of the Police Act. Under those Tribunal Rules, the Governor was authorized to issue appropriate orders concerning police officers. By virtue of Article 313 of the Constitution, the Police Regulations and the Tribunal Rules continued to operate after the Constitution came into force, to the extent that they were not inconsistent with constitutional provisions. The authority granted to the Inspector‑General of Police and his subordinates by section 7 of the Police Act was not an exclusive authority. That authority remained subject to the Government of India Act, 1935 and to the Constitution, which declared that the tenure of all civil servants of a Province was held at the pleasure of the Governor of that Province. Consequently, the argument that the Governor possessed no power to dismiss the appellant from service and that such power could be exercised only by the Inspector‑General of Police or by officers named in section 7 of the Police Act was held to be without merit. However, it was contended that the enquiry conducted by the Tribunal against the appellant and the order that followed deprived the appellant of equal protection of the laws, thereby rendering the actions void for violating Article 14 of the Constitution. The Court observed that when proceedings were initiated against the appellant for alleged misdemeanors, the authorities had two distinct procedures available for conducting an enquiry. The police authority could have directed an enquiry under the Police Regulations pursuant to the procedure laid down in Regulation 490, and the Governor also had the option to direct an enquiry against the appellant. Because the charges against the appellant fell within rule 4 of the Tribunal Rules, the applicable procedure for the enquiry was the one prescribed by rule 8 of the Tribunal Rules. It was submitted that the simultaneous existence of these two sets of rules, both governing enquiries against police officers and both available for use at the discretion of the authorities for charges described in rule 4 of the Tribunal Rules, amounted to discrimination when the authorities selected the Tribunal Rules for the enquiry, thereby denying the appellant the guarantee of equal protection of the laws. The argument that an enquiry could have been conducted under the procedure set out in Regulation 490 of the Police Regulations is supported by rules 1(3), 4 and 12 of the Tribunal Rules. Rule 1 sub‑paragraph (3) states that the Tribunal Rules apply to all government servants under the rule‑making control of the Governor. Rule 4 authorizes the Governor to refer cases to the Tribunal, but does not obligate him to do so. Rule 12 provides that nothing in the Tribunal Rules is intended to affect the conduct of disciplinary proceedings in cases other than those specifically covered by the Rules.

The Court observed that the Governor’s order directing an enquiry against the appellant had been issued before the Constitution came into force, and that Article 14 of the Constitution did not operate retrospectively; consequently it could not invalidate transactions, even if those transactions were manifestly discriminatory, that had been completed prior to the commencement of the Constitution. The Court then referred to the decision in Syed Qasim Razvi v. The State of Hyderabad (1), where it had been asked to determine whether a trial that had begun before the Constitution, under the Special Tribunal Regulation issued by the Military Governor of Hyderabad State, became invalid after the Constitution on the ground of Article 14. Mukherjea J., speaking for the majority, explained that the judgment in [1953] S.C.R. 589 was not intended to erase the entire operation of laws that were inconsistent with the Constitution or to delete them from the statute book, because doing so would give those laws a retrospective effect that they did not possess. He held that such laws remained valid for all transactions that occurred before the Constitution and for the enforcement of rights and liabilities that had accrued before the Constitution’s advent. Applying this principle, the Court held that the order of the Military Governor referring the case to the Special Tribunal could not be set aside; therefore the Special Tribunal was deemed to have taken proper cognizance of the matter, and its proceedings that had taken place up to the moment the Constitution came into force were to be regarded as valid. In a similar vein, Das J. in Lachhmandas Kewalram Ahuja v. The State of Bombay (1) considered the validity of proceedings before a Special Judge that had been conducted before the Constitution and observed that, because the Act had been wholly valid before the Constitution’s commencement, the portion of the proceedings before the Special Judge that had been governed by that special procedure could not be questioned, however discriminatory it might have appeared. The Court therefore concluded that the authorities’ choice of one of two alternative procedures at a time when Article 14 was not yet in operation did not give the appellant any ground to challenge the validity of the enquiry on the basis of denial of equal protection of the laws. The Court further quoted Mukherjea J. at page 606 of the Syed Qasim Razvi case (2), stating that in situations where a trial began before the Constitution and part of that trial could not be attacked as unlawful, the validity of the remaining part depended on whether the accused had been deprived of equal protection in procedural matters. Accordingly, the Court said that the first task was to determine whether the discriminatory or unequal provisions of law could be severed from the rest of the law and whether, without those provisions, a fair measure of procedural equality could still be afforded to the accused. The second task, the Court noted, was to examine whether the procedure actually followed was based on the discriminatory provisions. Only if the accused had actually been subjected to discrimination could a complaint on that ground be entertained.

The Court observed that a mere threat or possibility of unequal treatment does not satisfy the requirement for a claim of discrimination. Only when the accused has actually suffered discrimination may a complaint be entertained. The Court further explained that the failure to provide the accused with a trial conducted according to normal procedural standards at a later stage may arise for two reasons. First, the discriminatory provisions may be so integrated with the remainder of the statute that they cannot be separated, leaving the court with no alternative but to apply the discriminatory procedure. Second, an action taken at an earlier stage, although not invalid at that time, may later prevent the adoption of a different, non‑discriminatory procedure. Consequently, the proceedings of the Tribunal that took place before the Constitution came into force are not subject to challenge, except to the limited extent outlined by Mukherjea J. The matter before the Court was whether the procedure adopted by the Tribunal after the Constitution had become operative was discriminatory and whether it operated to the detriment of the appellant. Regulation 490 of the Police Regulations prescribes the method to be followed in an enquiry conducted by police officials, while rules 8 and 9 of the Tribunal Rules lay down the procedure for the Tribunal. The Court found no substantial difference between the two procedural schemes. It characterized the enquiry as inherently quasi‑judicial and held that, because of the nature of the enquiry, the body conducting it must approach the materials before it in a judicial manner.

The Court noted that Regulation 490 requires oral evidence to be direct, yet rule 8 of the Tribunal Rules directs the Tribunal to act in accordance with principles of equity and natural justice and frees it from strict adherence to formal procedural rules of evidence. While it was contended that the Tribunal could admit hearsay on the record whereas the Police Regulations barred such evidence, the Court rejected any implication that a distinction of this sort was intended. Even though the Tribunal is not bound by formal evidentiary rules, it cannot rely on evidence that is purely hearsay, as doing so would contravene the standards of equity and natural justice applicable to an enquiry of this nature. The Court further observed that the provisions governing the maintenance of the record and the summoning of a delinquent public servant to provide an explanation are substantially identical under Regulation 490 and rule 8 of the Tribunal Rules. It was submitted that the Tribunal Rules diverge from the Police Regulations on several important points, thereby rendering them prejudicial to the person against whom an enquiry is held. Specifically, the submissions argued that the Tribunal Rules do not provide a right of appeal as the Police Regulations do, that the Governor is bound to act according to the Tribunal’s recommendations, and that …

Under the Tribunal Rules, even if the complexity of a case under enquiry justifies the appointment of counsel to assist the person charged, assistance by counsel may not be permitted at the enquiry. The petitioners contended that this restriction, together with other variations, makes the Tribunal Rules both discriminatory and prejudicial to the person against whom enquiry is held. The Court declined to accept that contention. It observed that the Tribunal Rules and the Police Regulations, insofar as they relate to enquiries of police officers, are promulgated under section 7 of the Police Act, and neither the Tribunal Rules nor the Police Regulations provide an appeal against an order of dismissal or reduction in rank that the Governor may pass. The fact that an order made by a police authority is appealable whereas an order passed by the Governor is not does not, by itself, constitute a ground for challenging the validity of the Tribunal Rules. In both situations the final order rests with the Governor, who must decide the matter himself. The principle of equal protection of the laws does not require identical treatment of all persons without distinction; it merely guarantees that the same law be applied alike and without discrimination to all persons similarly situated. The Legislature retains the power to draw a distinction between persons or transactions when a real difference exists, and that power is not withdrawn by the equal‑protection clause. Accordingly, providing a right of appeal against orders of police authorities while providing no such right for orders of the Governor does not amount to discrimination invoking article 14. The Court further noted that rule 10 of the Tribunal Rules obliges the Governor to pass a punishment order in terms recommended by the Tribunal, whereas no comparable obligation is cast upon the police authority, which may dismiss a police officer when an enquiry is held under regulation 490 of the Police Regulations. To the extent that rule 10 requires the Governor to accept the Tribunal’s recommendation, the rule may be inconsistent with the Constitution because every police officer holds office at the pleasure of the Governor and, under article 311(2), is entitled to a reasonable opportunity to show cause to the Governor before any adverse action is taken. However, the Court held that any partial invalidity of rule 10 does not affect the remaining provisions; the portion of the rule that requires the Governor to accept the Tribunal’s finding of guilt is clearly severable. In the present case, the Governor exercised independent judgment and passed an order of dismissal without merely acting on the Tribunal’s recommendation. Thus, the difference between the two sets of rules on the matter under consideration does not alter the outcome.

In this case the Court observed that the distinction between the procedural rules governing the enquiring bodies and the substantive guarantee of a reasonable opportunity under article 311 of the Constitution was crucial. The Court noted that both the Police Regulations and the Tribunal Rules denied a police officer the right to be represented by counsel. Under clause nine of Regulation 490 of the Police Regulations an accused police officer could not be represented by counsel in any proceeding instituted under those regulations, and rule seven of the Tribunal Rules likewise provided that neither the prosecution nor the defence could be represented by counsel. Consequently, the two sets of rules were alike in denying counsel to the officer. The Court further held that the procedure prescribed in the Police Regulations was substantially the same as the procedure prescribed by the Tribunal Rules, and that the continuation of the enquiry under the Tribunal Rules after the Constitution came into force did not create a more onerous or prejudicial procedure for the appellant. The Governor had appointed the Tribunal to conduct the enquiry before the Constitution became operative, but the order of dismissal was issued after the Constitution was in force. Accordingly, the appellant was entitled to the protection afforded by article 311(2) of the Constitution. The Court emphasized that, since the Constitution’s enactment, the previous distinction between members of the police force and other civil servants under sections 240, 241 and 243 of the Government of India Act had ceased, and all civil servants, including police officers, were entitled to the safeguards of article 311(2). The content of that guarantee had been explained by this Court in Khem Chand v. The Union of India (1). In that decision the Court summed up the reasonable opportunity envisaged by the provision as comprising three elements: (a) an opportunity to deny guilt and to prove innocence, which required that the officer be informed of the charges and the basis for them; (b) an opportunity to defend himself by cross‑examining witnesses produced against him and by presenting his own witnesses; and (c) an opportunity to make a representation as to why the proposed punishment should not be imposed, after the competent authority had considered the gravity of the charges and communicated its tentative punishment to the servant. The Court applied this three‑fold analysis to the present appellant, who, being charged with a misdemeanor, was afforded under the Tribunal Rules the same opportunities to contest the charges, to cross‑examine and adduce witnesses, and to make a representation against the imposition of punishment.

The Court further explained that the Tribunal Rules indeed provided the police officer who faced an enquiry with the three branches of opportunity identified in Khem Chand’s case. First, the officer could deny his guilt and strive to establish his innocence; second, he could defend himself by cross‑examining the prosecution’s witnesses and by calling his own witnesses in support of his defence; and third, he could make a representation as to why the contemplated punishment should not be inflicted. These opportunities were available because the Tribunal Rules required the competent authority, after the enquiry, to consider the gravity of the proved charges, to tentatively propose one of the three punishments, and to communicate that proposal to the government servant, thereby giving the servant a chance to be heard. The Court concluded that no denial of the constitutional guarantee of a reasonable opportunity had occurred, and that the procedure followed did not constitute discrimination against the appellant in violation of article 4 of the Constitution.

The Court explained that the discrimination prohibited by Article 4 means treating a person in a prejudicial manner compared with another person who is similarly situated, by applying a substantive or procedural law that differs from the one applicable to that other person. In the decision of Sardar Kapur Singh v. The Union of India (1), the Court held that directing an enquiry against a member of the Indian Civil Service who was charged with a misdemeanor under the Public Servants (Inquiries) Act, 1850, rather than under rule 55 of the Civil Services (Classification, Control and Appeal) Rules, did not constitute discrimination where there was no substantial difference between the material provisions of the two statutes. The Court observed at page 581: “Does the holding of an enquiry against a public servant under the Public Servants (Inquiries) Act, 1850 violate the equal protection clause of the Constitution? The appellant submits that the Government is invested with authority to direct an enquiry in one of two alternative modes and by directing an enquiry under the Public Servants (Inquiries) Act which Act it is submitted contains more stringent provisions when against another public servant similarly circumstances an enquiry under r. 55 may be directed, Art. 14 of the Constitution is infringed.” After considering the special protection given to (1) [1958] S.C.R. 1080. 1096. (2) [1960] 2 S.C.R. 569. members of the Indian Civil Service and the essential character of the procedure for making enquiries under the Public Servants (Inquiries) Act, 1850, the Court noted at page 584: “The primary constitutional guarantee, a member of the Indian Civil Service is entitled to is one of’. being afforded a reasonable opportunity of the content set out earlier, in an enquiry in exercise of powers conferred by either the Public Servants (Inquiries) Act or r. 55 of the Civil Services (Classification, Control and Appeal) Rules, and disorimination is not practised merely because resort is had to one of two alternative sources of authority, unless it is shown that the procedure adopted operated to the prejudice of the public servant concerned. In the case before us, the enquiry held against the appellant is not in manner different from the manner in which an enquiry may be. held consistently with the procedure prescribed by r. 55, and therefore on a plea of inequality before the law, the enquiry held by the Enquiry Commissioner is not liable to be declared void because it was held in a manner though permissible in law, not in the man. ner, the appellant says, it might have been held.” In Syed Qasim Razvi’s case (1), the Court held that if the substance of the special procedure followed after the Constitution in an enquiry or trial that commenced before the Constitution is the same as that of a trial conducted under the normal procedure, a plea of discrimination that seeks to invalidate the trial must fail.

In the precedent involving the State of Orissa and Dhirendranath Das, the Court examined the case of a lower Division Assistant employed in the Secretariat of the Orissa Government who was found guilty of a misdemeanor by a Tribunal constituted under rules framed by the Government of Orissa after an enquiry was conducted for that purpose. The Tribunal ordered the officer’s dismissal from service. The officer subsequently filed a petition under article 226 of the Constitution seeking a writ declaring the dismissal order illegal. The Orissa High Court observed that, at the time the enquiry was directed against the petitioner, two distinct sets of rules were concurrently operative: the Tribunal Rules and the Bihar and Orissa Subordinate Services Discipline and Appeal Rules. The High Court held that the Government of Orissa was free to select either set of rules for conducting an enquiry against any public servant facing a charge of misdemeanor, but that the deliberate preference for one set of rules over the other amounted to a violation of the equality guarantee guaranteed by article 14 of the Constitution. Consequently, the High Court declared the dismissal order inoperative and directed that the disciplinary proceedings be restored to the stage they had reached before the matter was referred to the Tribunal. The State of Orissa appealed this judgment to this Court. During the hearing, the relevant rules were neither incorporated into the paper‑book prepared for the proceedings nor produced by counsel for the State for the Court’s consideration. Counsel for the State conceded that the adoption of the procedure prescribed by the Tribunal Rules, in preference to the procedure under the Service Rules, would give rise to discrimination because the two sets of rules provided substantially different levels of protection to public servants. The sole ground advanced in support of the appeal was the contention that the Service Rules were not in operation at the material time when the enquiry was directed, and therefore no discrimination was practiced. However, that argument introduced questions that had never before been examined, and the Court declined to permit counsel to raise them. The Court noted that if both sets of rules were operative at the relevant time and the Governor ordered an enquiry under the Tribunal Rules, which are “more drastic” and prejudicial to the respondent’s interests, a clear case of discrimination arises, rendering the order of enquiry and subsequent proceedings liable to be struck down as infringing article 14. Before this Court, counsel for the appellants produced a printed copy of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951, issued by the Government of Orissa, and a perusal of those rules suggests that, subject to minor differences, they are substantially similar to the Tribunal Rules framed by the State of Uttar Pradesh.

In the present matter, the Court observed that, except for a few insignificant variations, the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 published by the Government of Orissa are essentially identical to the Tribunal Rules framed by the State of Uttar Pradesh. The Court noted that it has not received a copy of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935, and therefore could not compare those provisions. The Court further held that the decision in The State of Orissa v. Dhirendranath Das does not apply to the present case because, in that earlier case, the High Court’s order was challenged on the narrow ground that the High Court had wrongly assumed the simultaneous operation of two sets of rules and that the Executive Government could choose either set for conducting an enquiry against a delinquent public servant. That contention was rejected and the High Court’s judgment was affirmed, rendering the earlier precedent inapplicable here. The Court expressed the view that the allegation of discrimination stemming from the continuation of the enquiry under the Tribunal Rules after the Constitution became operative lacks any substantive basis. The appeal before this Court is filed under a certificate granted pursuant to Article 132 of the Constitution. By clause (3) of that article, the appellant may approach this Court only on the basis that the High Court erred on a substantial question concerning the interpretation of the Constitution, and the Court may grant leave to appeal solely on that ground. The appellant’s counsel challenged the regularity of the Tribunal’s proceedings, but the Court was satisfied, after hearing counsel, that the Tribunal’s process had not been affected by any serious irregularity and that the appellant had not been denied the protection guaranteed by Article 311. The Court then turned to the specific contentions raised in support of the plea. It was first argued that the appellant was not allowed to be represented by a lawyer at the Tribunal enquiry, while the State Government was represented by counsel. The appellant’s affidavit, paragraph 14, claimed that the prosecution was conducted by Jwala Prasad, Deputy Superintendent of Police and Legal Advisor to the Anti‑corruption Department, and that the Tribunal was informed that proceeding in that manner violated the Tribunal Rules as well as the principles of equity and natural justice because the appellant was denied counsel. In response, Hari Shankar Sharma, Deputy Superintendent of Police, filed an affidavit denying that Jwala Prasad had conducted the prosecution before the Tribunal. He explained that the Tribunal had required the presence of Sri Krishna, who made enquiries, but when Sri Krishna could not remain present, Jwala Prasad attended the Tribunal sitting on a single day in his capacity as Deputy Superintendent of Police, CID, without taking part in the proceedings. According to Sharma’s affidavit, the examination of witnesses and cross‑examination were carried out entirely by the members of the Tribunal and the appellant.

The Court observed that Jwala Prasad, although a practising lawyer, was not permitted to appear before the Tribunal as counsel, and the affidavit of Hari Shankar Sharma makes clear that he did not take part in the examination of witnesses or in any cross‑examination. It was submitted that the appellant’s explanatory statement had not been considered because the Governor felt bound by the Tribunal’s recommendations. However, paragraph 25 of Hari Shankar Sharma’s affidavit records that the appellant’s explanation was forwarded to the Government by the Inspector‑General of Police, that the Governor examined that explanation, and that the Governor concluded that the appellant had failed to clear his conduct. Accordingly, relying on rule 10(1) of the Tribunal Rules, the Governor ordered the appellant’s dismissal after evaluating the merits of his defence. Further, it was contended that the appellant’s application to summon defence witnesses and to call for certain records had been ignored, causing prejudice. In paragraph 15 of the appellant’s affidavit, he states that the Tribunal declined to call for particular records and also refused his request to summon certain defence witnesses. In response, Hari Shankar Sharma explained that the appellant had initially listed a long series of defence witnesses, that the Tribunal asked him to narrow the list to those whose testimony he considered relevant, and that the appellant reduced the list accordingly; all the witnesses from the reduced list were then summoned. Another contention was that the assessor required under the Rules to assist the Tribunal was absent from the hearing, rendering the enquiry invalid. The appellant’s affidavit, paragraph 16, alleges that assessor S. N. Agha was absent on many days when evidence was recorded. Hari Shankar Sharma replied that while Agha could not attend on certain dates due to unavoidable circumstances, the appellant was specifically asked whether he objected to the recording of evidence in Agha’s absence. The appellant expressed no objection, and the proceedings continued with his written consent. Sharma further stated that the assessor was informed of the proceedings that took place on the days of his absence. The Court noted that the statements in Hari Shankar Sharma’s affidavit were not contested by the appellant. After reviewing the material placed on record, the Court found no substance to support any of the appellant’s pleas concerning the regularity of the Tribunal’s proceedings. It was also observed that, although the appellant had raised the issue of procedural irregularity before the High Court, no specific arguments in support of that claim appear to have been advanced.

In this case, the Court observed that the judgment of the High Court, although fairly detailed, did not identify any specific ground on which the appellant’s contention could be sustained. Consequently, the appeal was dismissed and costs were awarded against the appellant. Justice Das Gupta then noted that he had reviewed the judgment prepared by Justice Shah. While he concurred with the conclusions reached on all points except the principal issue, he could not agree with the conclusion that the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, are void for violating Article 14 of the Constitution merely because those rules do not provide for an appeal against a decision of the Governor made under Rule 10. He stated that the factual background had already been fully set out by his colleague and therefore need not be repeated, particularly because the specific facts of the present case were irrelevant to the determination of the legal question of whether Article 14 is infringed by the provisions of the Tribunal Rules. Justice Das Gupta proceeded to summarize the operative provisions of the Rules. Under the Rules, the Governor is authorized to refer a case to the Tribunal, which is constituted in accordance with Rule 3, for cases concerning an individual government servant, a class of government servants, or government servants in a particular area, but only when the matters involve (a) corruption; (b) failure to discharge duties properly; (c) irremediable general inefficiency in a public servant who has more than ten years of service; or (d) personal immorality. Clause 3 of Rule 1 provides that these Rules apply to all government servants who fall under the rule‑making authority of the Governor. It was not contested that the Rules extend to every member of the Uttar Pradesh police service and that the Governor may refer to the Tribunal any case involving a police officer concerning any of the matters listed in clause (1) of Rule 4. It was also undisputed that if the Governor does not make such a reference, the same case involving a police officer may be investigated under the Uttar Pradesh Police Regulations. The Court explained that the simultaneous operation of the Police Regulations and the Tribunal Rules creates a situation where two police officers of identical rank and posting could face disciplinary action for the same alleged misconduct, but one officer could be dealt with under the Tribunal Rules while the other could be dealt with under the Police Regulations. When an inquiry is conducted under the Tribunal Rules, the Tribunal is required to record the charges, the explanations offered, its own findings, and the views of the assessor, and, if it is satisfied that punishment should be imposed, to make recommendations regarding the appropriate punishment. Under Rule 10, the Governor then makes the final decision, and there is no right of appeal against the order issued by the Governor. Where

The Court observed that when disciplinary action was taken under the Police Regulations procedure, a police officer against whom an order of dismissal, removal, suspension or reduction was passed possessed a right of appeal to the authority prescribed in Regulation 508. It then considered whether the existence of such a right of appeal under the Police Regulations, coupled with the absence of any right of appeal against the Governor’s decision under the Tribunal Rules procedure, amounted to unequal treatment. On behalf of the respondent, it was contended that no inequality existed because, in one instance, the order was made by the Governor and was non‑appealable, whereas in the other instance the order was made by a police functionary and was appealable. The respondent’s argument was framed on the basis that only if an order made by the Governor under the Police Regulations were appealable while the Governor’s order under the Tribunal Rules were not, could a claim of unequal treatment arise. The Court, however, held that this argument overlooked the practical realities of the situation. The real issue, it said, required examination of a hypothetical scenario: assume two police officers, A and B, holding the same rank and post, where A was proceeded against under the Tribunal Rules on a charge of corruption and B was proceeded against on a similar charge under the Police Regulations procedure. If the Tribunal found A guilty and recommended dismissal, the Governor would issue a dismissal order that could not be appealed. In B’s case, if the punishing authority also ordered dismissal, B would retain a right of appeal under Regulation 508. The Court pointed out that B therefore had a chance that an appellate authority might alter the finding of guilt or the severity of the punishment, whereas A had no such opportunity. It noted that it would be of little consolation to A that the order came from a higher authority such as the Governor, and that A could legitimately complain that a real difference existed between his treatment and B’s because of B’s right of appeal. The Court concluded that, unless the right of appeal were merely nominal, there was a legitimate basis for such a complaint, and that a right of appeal could not be regarded as a right without substance, since an appellate authority always had the possibility of reaching a different conclusion on facts, law, or the quantum of punishment.

The judgment explained that the possibility of altering the quantum of punishment is a critical element of an appeal, because the appellate authority may reassess the facts or the law applied by the authority whose decision is under review. Consequently, when the right of appeal is withdrawn, that opportunity is lost. The Court held that the lack of a right of appeal under Rule 10 of the Tribunal Rules, while the Police Regulations expressly provide a right of appeal to a police officer, creates unequal treatment in a material respect between an officer disciplined under the Tribunal Rules and an officer disciplined under the Police Regulations procedure. The Court further observed that no guiding principle could be identified to justify the Government’s discretion to select some officers for proceedings under the Tribunal Rules and to substitute the Police Regulations procedure for other officers facing similar circumstances. On this basis, the Court concluded that the provision in the Tribunal Rules which bars any appeal against the Governor’s decision exceeds constitutional limits because it contravenes Article 14 of the Constitution.

The judgment referred to a comparable issue previously examined by the Court in Civil Appeal No. 103 of 1959 (State of Orissa v. Dhirendranath Das). In that earlier case, the Court compared the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 of the Orissa Government, which had been applied to dismiss Dhirendranath Das, with the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935. The Court had held that the latter Rules provided a right of appeal to the authority immediately superior to the punishing authority, whereas the Tribunal Rules offered no such avenue against its findings and recommendations. The earlier judgment emphasized that the executive’s discretion to select one procedural regime over another, without any rational relation to the purpose of the inquiry, violated the principle of equality enshrined in Article 14.

The present judgment found no reason to depart from the earlier view. It affirmed that the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 are likewise inconsistent with Article 14. Accordingly, the Court allowed the appeal, set aside the dismissal order issued against the appellant, and ordered that the appeal be dismissed with costs in accordance with the majority opinion of the Court.