R.P. Kapur vs Pratap Singh Kairon and Others

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

Court: supreme-court

Case Number: Civil Appeal No. 75 of 1963

Decision Date: 09/08/1961

Coram: M. Hidayatullah, S.K. Das, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

In this case the Supreme Court recorded that the petitioner, R. P. Kapur, had entered the Indian Civil Service in 1938 and, after serving in various capacities, had been employed by the Punjab Government from 1948 onward. On 26 May 1961 the Punjab Government, invoking section 2 of the Public Servants (Inquiries) Act, 1850, initiated a formal and public inquiry against him. The petitioner challenged the validity of the order by filing a petition under article 226 of the Constitution in the Punjab High Court, but that petition was dismissed. He thereafter obtained special leave to appeal before this Court. During the hearing of the appeal, the Court was asked to consider whether the Government of the State of Punjab possessed the competence to order such an inquiry under the cited statutory provision. The Court observed that section 2 imposes three conditions that must be satisfied before a formal inquiry may be ordered. The first condition requires that the Government be of opinion that there are good grounds for making the inquiry. The second condition demands that the inquiry be directed against a servant who is in the service of that Government. The third condition stipulates that the person under inquiry must not be removable from his appointment without the sanction of that Government. The Court found that the first two conditions were satisfied in the present circumstances. Regarding the third condition, the Court referred to a previous larger Bench decision that interpreted the phrase “not removable from his appointment without the sanction of the Government.” The majority, consisting of Acting Chief Justice Das, Justice Gajendragadkar, Justice Sarkar and Justice Hidayatullah, held that the third condition was also met in this case, thereby allowing the Punjab Government to proceed with the inquiry.

The majority explained that section 23 of the Act is the key provision for determining which Government is entitled to hold an inquiry. When an officer is in the service of a particular Government and is also employed under that Government, the position is clear and the inquiry may be ordered by that Government. The Court further noted that the expression “in the service of that Government” used in section 2 is equivalent to “employed under that Government” in the context in which it occurs. The dissenting judges, namely Justice Wanchoo, Justice Das Gupta and Justice Ayyangar, expressed a different view on the interpretation of the statutory language. The judgment concluded with a discussion of the meaning of the word “appointment,” a point that was left open for further consideration.

In the present case the Court observed that officers of the Central Government who are deputed to a State, and officers of a State who are deputed to the Central Government, are while on such deputation “employed under” the Government to which they are deputed. The Court explained that if the words “employed under” in section 2 were to be read as meaning merely “in the service of”, then the provision of section 23 of the Public Servants (Inquiries) Act, 1850 would become unnecessary. The Court further noted that where an officer remains in the service of the Central Government and continues to serve with the Central Government, a State Government could not possibly hold an inquiry against that officer; similarly, where an officer is in the service of a State Government and continues to serve with that State Government, the Central Government would have no jurisdiction to hold an inquiry. The Court therefore held that a difficulty regarding jurisdiction arises only when there is an exchange of officers between the two Governments, and the test to be applied is the identity of the Government under which the officer is employed at the material time. In this regard the expression “in the service of that Government” in section 2 is to be read as equivalent to “employed under that Government” for the purpose of that provision. The Court further clarified that the word “appointment” in section 2 can refer only to a post, station or office and not to the whole service of the officer. Accordingly removal of an officer means the loss of a post, station or office rather than the loss of the entire service. Section 2 is therefore intended to apply only to an officer whose post, station or office can be taken away only by the order of the appropriate Government and not by any lesser authority. In this sense the Court found that the action of the Punjab Government was clearly within its powers. The key principle supplied by section 23 must be read into section 2 and the provision must then be construed accordingly. The Court warned that construing the Act in the manner suggested by the appellant would lead to the absurd result that for Indian Civil Service officers or similar officers serving with State Governments there could be no inquiry by the Central Government because they are employed under the State Governments, and likewise no inquiry by the State Governments because they are not removable from service in the limited sense by those State Governments. The same difficulty would arise with respect to State employees serving with the Central Government or with a State Government other than their own. The Court recorded that Justice Sarkar, while doubting the correctness of the view expressed in Sardar Kapur Singh v. Union of India [1960] 2 S.C.R. 569 as to the meaning of the word “Government” in section 2 of the Act, could not dispute that view because the reference was based upon it. Finally, Justices Wanchoo, Das Gupta and Ayyangar held that the Government of Punjab is not the appropriate Government vested with the power to direct an inquiry under the Public Servants (Injuries) Act, 1850 against the appellant. They stated that the terms of section 23 must be read into each of the three occurrences of the expression “the Government” in section 2. Accordingly, when “the Government” occurs the first time in section 2 it refers only to the State of Punjab in which the appellant is employed.

In the judgment, the Court explained that the phrase “the Government” occurring for the second time in Section 2 of the Act refers to the Punjab Government. Regarding the third occurrence of the expression “the Government” in the words “not removable from his appointment without the sanction of the Government,” the Court held that the phrase must be understood to mean the authority that has the power to terminate the officer’s employment. The Court observed that the State of Punjab does not possess the power to remove the appellant from his appointment; consequently, the third condition of the statutory provision is not fulfilled. The Court reiterated that the Act of 1850 has always required that an officer against whom proceedings are instituted be subject to the disciplinary control of the Government that initiates the enquiry and that this Government must also have the competence to impose removal as a punishment. This principle remained intact after the amendment of 1897, which merely gave the Governor‑General an overriding authority to commence proceedings in all cases, irrespective of whether the officer served a local or central government. The Court therefore concluded that the Adaptation Order made under the Government of India Act, 1935, could not have altered this essential feature by granting a provincial government the power to start an inquiry when it lacked the power to remove the officer. The Court cited several authorities in support of this view, including Sardar Kapur Singh v. Union of India, [1960] 2 S.C.R. 569; Imperatrix v. Bhagwan Devraj, I.L.R. 4 Bom. 357; Angelo v. Kandan Manjhi, 41 Criminal Law Journal 221; Herron v. Rathmines, [1892] A.C. 498; Assam Railways and Trading Co. Ltd. v. Inland Revenue Commissioners, [1935] A.C. 445; Millar v. Taylor, (1769) 4 Burr. 2303; and R. v. Hertford College, (1878) 3 Q.B.D. 693.

The Court then recorded the procedural posture of the appeal. This was a civil appeal, numbered 75 of 1963, filed by special leave after the appellant’s petition before the Punjab High Court was dismissed on 9 August 1961. The appellant, R. P. Kapur, had been appointed to the Indian Civil Service around 1938, continued his service after independence, and had been employed by the Government of Punjab since 1948. On 26 May 1961, an order issued in the name of the Governor of Punjab directed that an inquiry be conducted against the appellant under the Public Servants (Inquiries) Act, 1850. The appellant challenged the legality of that order by filing a petition under Article 226 of the Constitution in the Punjab High Court; after the dismissal of that petition, he obtained special leave and brought the present appeal before this Court. The appellant appeared in person, while counsel for the respondents were listed. The order of reference was delivered by Justice Ayyangar, setting out the factual background and the questions for determination in this appeal.

The matter was heard by the Court during the second week of February 1963, and the judgment was reserved on 13 February of that year. Numerous questions of law and fact were presented in the appeal, and the Court indicated that these issues would be addressed in the forthcoming judgment. However, one particular issue emerged from the facts of the case that was not fully argued at the time of hearing. This issue concerned the proper construction and legal effect of section 2 of the Public Servants (Inquiries) Act, 1850, which presently reads: “Whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the Government not removable from his appointment without the sanction of the Government, it may cause the substance of the imputations to be drawn into distinct articles of charge, and may order a formal and public inquiry to be made into the truth thereof.” The Court sought to determine whether the Government of the State of Punjab possessed the competence to issue the impugned order against the appellant under the terms of this provision. For convenience, the question may be expressed in the following manner: Section 2 imposes three conditions that must be satisfied before a formal and public inquiry can be directed to examine the truth of any alleged misconduct. The first condition requires that the Government be of the opinion that good grounds exist for such an inquiry. Full arguments on whether this condition had been met were heard, and the Court considered further discussion unnecessary at this stage. The second condition stipulates that the inquiry may be directed by the Government only against a person who is in the service of that Government. This condition was plainly satisfied, no argument was raised against it, and the Court’s earlier decision in Sardar Kapur Singh v. The Union of India (1) provides a complete answer to any claim that this condition was not fulfilled in the present case. The third and final condition requires that the person be “removable from his appointment by or with the sanction of that Government.” The Court restated, in positive terms, what the section expresses in negative terms. One possible construction of this provision is that the officer against whom the inquiry is directed must be capable of being dismissed or removed from service by the Government that is authorised to order the inquiry. An alternative interpretation might limit the condition of “removability” to refer only to removal from the particular office the officer presently occupies. The Court did not express an opinion as to which construction is correct; it merely observed that the former interpretation represents one plausible reading of the provision.

If that construction were correct, it would follow that the appellant, who could be dismissed or removed from service only by the Government of India, would not fall within the words “removable from his appointment by or with the sanction of that Government.” Consequently, he would not be a public servant against whom the State Government of the Punjab could initiate the proceedings contemplated by section 2 of the Public Servants (Inquiries) Act, 1850. During the arguments, a question was raised as to whether the third condition previously mentioned had been satisfied. The parties assumed that this point had already been considered and decided by this Court in its earlier decision in Sardar Kapur Singh v. The Union of India (1). On closer examination, however, the Court observed that the third condition had not been expressly addressed in that earlier judgment. When the first ground presented by counsel on page 576 of the report is read, it states: “That the inquiry could not be directed by the Punjab Government as the appellant was a member of the Indian Civil Service and was not employed under the Government of East Punjab.” This ground corresponds to the second condition discussed earlier and was answered by reference to section 23 of the Public Servants (Inquiries) Act, 1850. The third condition, which the Court had previously formulated, does not appear to have been the subject of an express consideration or decision in that case. Nevertheless, because the earlier decision proceeds on the basis that all the requirements of section 2 of the Act were satisfied, the Court considered it inappropriate to reopen arguments on that aspect at this stage. Recognising that the point is of considerable importance and that its resolution is essential for disposing of the present appeal, the Court proposed to place the matter before the Hon’ble Chief Justice for a reference to a larger Bench for consideration of the meaning of the words “not removable from his appointment without the sanction of the Government” occurring in section 2 of the Public Servants (Inquiries) Act, 1850. The opinions of the Court were then delivered by Justice Hayatullah, speaking on behalf of Acting Chief Justice S. K. Das, Justice P. B. Gajendragadkar and himself. The Court noted that the appellant, Mr R. Kapur, had joined the Indian Civil Service in 1938, served in various capacities, and was employed under the Punjab Government from 1948. An inquiry was initiated against him by the Punjab Government on 26 May 1961 under section 2 of the Act. He filed a petition in the High Court of Punjab under Article 226 of the Constitution challenging the order, but the petition was dismissed. He has now appealed to this Court by special leave, and during the hearing of the present appeal, an earlier Bench had already raised the question of whether the Punjab Government was competent to order the inquiry under section 2 of the Act.

The issue that arose before the earlier Bench was whether the Government of the State of Punjab possessed the authority to order an inquiry against the appellant under section two of the Public Servants (Inquiries) Act. That Bench referred the question to the larger Bench for an explanation of the meaning of certain words contained in section two of the Act. In the Order of Reference, the Bench observed that section two imposes three conditions that must be satisfied before a formal public inquiry may be ordered. The first condition requires that the Government hold a view that there exist good grounds for instituting such an inquiry. The second condition stipulates that the Government may direct the inquiry against a person who is in the service of that Government. The third condition provides that the person must not be removable from his appointment without the sanction of the Government. The Order states that the earlier Bench had already heard full arguments concerning the first condition and that a decision on that aspect of the case would be delivered in due course. Regarding the second condition, the Order notes that the Bench considered it satisfied, relying on an earlier decision of this Court reported in Sardar Kapur Singh v. Union of India. Consequently, the Bench expressed no difficulty with the first two conditions required for the operation of section two. However, the Bench indicated that the words forming the third condition are capable of more than one construction. The Order of Reference outlined two possible interpretations. One construction would mean that the officer against whom the inquiry is directed must be capable of being dismissed or removed from service by the Government that is authorized to direct the inquiry. An alternative interpretation would limit “removability” to the removal from the specific office that the officer presently holds. The Order further explained that if the first construction were applied, then, because the appellant could be removed only by the Government of India, i.e., the President, the Punjab Government would lack the power to commence the present proceedings. It was observed that in the earlier case of Kapur Singh, only the second condition had been examined, with section twenty‑three of the Act being applied, while the third condition had been overlooked. The Order therefore concluded that, since the earlier decision proceeded on the basis that all the requirements of section two were satisfied, it would not be appropriate to rehear arguments on that particular aspect of the provision. Accordingly, the Bench referred for determination the precise meaning of the phrase “not removable from his appointment without the sanction of the Government” as it appears in section two of the Inquiries Act, limiting the inquiry to the preamble and sections two and twenty‑three of that Act.

The judgment examined the Public Servants (Inquiries) Act, 1850, as it stood at the relevant times. The original enactment of 1850 was first altered in 1897 by the Public Servants (Inquiries) Act, 1897 (I of 1897). That amendment supplied the short title now used for the legislation and introduced several substantive changes. Subsequent legislative activity recast section 23 of the Act, and the Government of India (Adaptation of Indian Laws) Order, 1937, made further formal textual adaptations, inserting a new provision in place of the former section 23. In addition, the Adaptation of Laws Order, 1950, effected only formal adaptations without substantive alteration. The Court therefore set out the relevant portions of the Inquiries Act as they had appeared at different stages, beginning with the original 1850 text, to trace the evolution of the statutory language governing inquiries into the conduct of public servants.

In its 1850 form, the Act provided for the regulation of inquiries into the behaviour of public servants. The preamble declared it expedient to amend the law so that inquiries concerning public servants who could not be removed from office without the sanction of the Government would be uniform across the territories administered by the East India Company. Section 2 required that whenever the Government considered a public enquiry necessary, distinct articles of charge must be drawn up. The text stated that if the Government was of the opinion that there were good grounds for a formal public inquiry into any allegation of misbehaviour by a person serving the East India Company, and that person could not be removed without the Government’s sanction, then the substance of the allegation must be set out in separate articles of charge and a formal public inquiry must be ordered. Clause 23, as originally drafted, defined “Government” to mean the Governor‑General in Council, the Governor or Deputy Governor of the Presidency of Fort William in Bengal, the Governor‑in‑Council of the Presidencies of Fort St. George and Bombay, and the Lieutenant‑Governor of the North‑Western Provinces of Bengal, whose sanction was necessary for removal of the accused.

The 1897 amendment altered the Act in three distinct ways. First, the preamble substituted the word “India” for the phrase “the East India Company.” Second, the marginal note to section 2 was changed to read “Articles of charge to be drawn out for public inquiry into conduct of certain public servants,” although the substantive language of the section remained unchanged. Third, section 23 was replaced with a new provision stating that the powers of the Government under the Act could be exercised by the Governor‑General in Council in all cases, and, where the accused could be removed by the local Government, those powers could also be exercised by the local Government. The Government of India (Adaptation of Indian Laws) Order, 1937, subsequently replaced this version of section 23 with a new definition, further modifying the statutory framework governing the exercise of Governmental powers in public inquiries.

In the Act, the term “Government” is defined to mean the Central Government when the person concerned is employed by that Government, and the Provincial or State Government when the person is employed by that authority. The amendment also replaced the word “shall” with the word “may” in two places in section two. After the adaptations made in 1950, the provisions of the Act can be set out as follows: “The Public Servants (Inquiries) Act, 1850 (37 of 1850), dated 1 November 1850, for regulating inquiries into the behaviour of public servants. Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants who are not removable from their appointments without the sanction of Government and to make the same uniform throughout India, it is enacted as follows: (1) Whenever the Government is of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the Government, nor removable from his appointment without the sanction of the Government, it may cause the substance of the imputations to be drawn into distinct articles of charge, and may order a formal and public inquiry to be made into the truth thereof. (2) In this Act, ‘the Government’ means the Central Government in the case of persons employed under that Government and the State Government in the case of persons employed under that Government.” The preamble makes clear that since 1850 the intention was to have a uniform statute for regulating inquiries into the conduct of public servants who could not be removed without the Government’s sanction, and that the inquiry could be ordered either by the Central Government or by the Governments of the Presidencies, later the Provinces, and now the States, with sections two and twenty‑three indicating which Government was responsible. Throughout the history of the Inquiries Act, from its inception to the present, the key to determining which Government should act has been contained within the Act itself, without needing reference to other statutes. The specific issue that arises in this case is whether the words “removable” from his “appointment” refer to removal from service altogether or merely removal from the particular office or post held by the officer. The resolution of this question must depend principally on the language of the Act and on the relationship between sections two and twenty‑three, aided as far as possible by any external sources of construction. It is noted that the Inquiries Act was not the first legislation of its kind; earlier statutes in the Presidencies also provided for inquiries into the conduct of public servants. The argument presented is that the terms “remove” and “removable” have acquired a specialised meaning, frequently used in statutes dealing with disciplinary actions that result in termination of service, and that they have been applied in the Inquiries Act in this restricted sense. Consequently, the interpretation of these words must consider their historical usage and the context provided by preceding enactments.

The Court observed that the terms “remove” and “removable” have acquired a specialized meaning in statutes that deal with disciplinary actions against public servants, and that this specialised meaning has been applied in the Inquiries Act to refer specifically to the termination of service. Counsel presented examples from both historic and current statutes and rules to demonstrate that the words have been employed in this restricted sense, arguing that, when viewed historically, “remove” should be understood as an action that results in loss of service. The argument also relied heavily on the historical development of such enactments and on the phrasing used in them, even though many of those earlier phrases were not the ones now subject to interpretation. The Court then gave a brief overview of the legislative history. The Inquiries Act of 1850 replaced three separate statutes that operated respectively in Bengal, Madras and Bombay—namely Regulation 26 of 1839 (Bengal), Act XIII of 1843 (Madras) and Act VI of 1838 (Bombay). Those three measures followed an identical pattern and employed almost the same language. Even those three statutes were not the first of their kind; they themselves had replaced earlier legislative measures. In those earlier statutes the language differed. For example, Regulation 13 of 1793 (Bengal) spoke of an “offender incapable of serving Government in any capacity”, Regulation V of 1803 used the phrase “remove from his service”, and Regulation 8 of 1806 employed the expressions “to be continued in the employment of the Company” and “dismission from office”. Although the emphasis in those older enactments was largely on termination of service, the power to remove was exercised centrally. When the three Presidencies each had their own legislative measures, those measures applied to covenanted servants of the Company, who could be dismissed only by the Court of Directors. The provisions required the Courts to refer cases of officers “not removable without sanction of Government” to the Governor whenever a formal inquiry into an accusation of official misconduct was necessary. However, those Acts were framed separately for each Presidency and did not define a method, either expressly or by implication, for distinguishing between the Central Government and the Governments of the Presidencies, nor did they indicate which Government should order an inquiry. That distinction first appeared in the Inquiries Act of 1850, and the earlier enactments therefore did not assist in interpreting its terms because the 1850 Act contained its own internal key, making extraneous aid unnecessary. Although some earlier Acts occasionally used the word “remove” to denote removal from service, it is noteworthy that Section 30 of the Government of India Act 1858 (21 and 22 Vict. Ch. 106) employed the word “removed” not only in connection with termination of service but also with “stations” and “offices”, indicating a broader usage.

It was shown that the term “remove” was not limited to the rigid sense that some might assume. The word had repeatedly been employed in statutes and rules to signify termination of service, yet that was not its sole meaning. In the Government of India Act, 1858, the term was employed in a modified sense, demonstrating that nothing in the legislation fixed a single definition or stripped the word of its various nuanced meanings. The Court’s task was therefore not to impose a preconceived meaning on the Inquiries Act and then interpret it accordingly, but to determine which meaning naturally arose from a proper reading of the whole Act. The original Inquiries Act, together with its subsequent amendments, was intended to split the power of inquiry between the Central Government and the local Governments, and the word “remove” by itself, which might have carried a narrow meaning, was never used in an isolated fashion. Instead, it was first qualified by the words “from office” and later by the words “from his appointment.” Section 30 provides a detailed illustration: “All Appointments to Offices, Commands, and Employment in India and all Promotions, which by Law or under any Regulation, Usage, or Custom, are now made by any Authority in India, shall continue to be made in India by the like Authority, and subject to the Qualifications, Conditions, and Restrictions now affecting such Appointments respectively; but the Secretary of State in Council shall have the like Power to make Regulations for the Division and Distribution of Patronage and Power of Nomination among the several Authorities in India, and the like Power of restoring to their Stations, Offices, or Employments, Officers and Servants suspended or removed by any Authority in India as might have been exercised by the said Court of Directors, with the Approbation of the Commissioners for the said Affairs of India, if this Act had not been passed.” Consequently, the word “remove” could not be defined in isolation; it required the qualifying words that accompanied it.

The Court therefore sought to ascertain the meaning not of the single word “remove” but of the complete phrases “remove from office” and “remove from appointments.” These expressions were never intended to mean “remove from service,” and it would be unreasonable to imagine that legislators failed to consider the intended sense. Because a different phrase was employed and a definitional key was supplied, the phrase “removable from his appointment” found in the second section of the Inquiries Act had to be interpreted with the assistance of that key. The same expression appeared in the preamble and was to be given the identical meaning. The key supplied by section 23 merely defines the term “the Government” wherever it occurs in the Act. In both the preamble and section 25, the word “Government” appears without the definite article, referring generally to either the Central Government or a State Government without attempting to draw a distinction between them, as explained in the preceding discussion.

In interpreting the statute, the Court explained that whenever the expression “the Government” appears in the relevant provisions, the purpose is to differentiate among the various governments and to apply only the government that satisfies the definition provided in section 23. Section 23 defines “the Government” for the purposes of the Inquiries Act as the Central Government when the public officer involved is employed under the Central Government, and as the State Government when the officer is employed under the State Government. Accordingly, the Act creates a clear bifurcation of all officers who could be subject to an inquiry, placing them into two distinct classes based on the jurisdiction under which they are employed at the moment the inquiry is initiated. This classification is based not on the notion of “service” but on the notion of “employment,” because the statutory language uses the phrase “employed under” rather than the stronger expressions “in the service of” or “in the employment of.” It is a well‑known fact that officers who belong to the service of the Central Government may be deputed to a State, and conversely, officers of a State may be deputed to the Centre; while serving on such deputations they are regarded as “employed under” the government to which they have been assigned. If the phrase “employed under” were intended to mean merely “in the service of,” the definition in section 23 would become redundant. For example, an officer who is in the service of the Central Government and continues to serve with the Central Government cannot be subjected to an inquiry by a State Government, and similarly an officer who is in the service of a State Government and serves with that State cannot be investigated by the Central Government. Only when officers are exchanged between governments does a question arise as to which government has the authority to conduct the inquiry, and the test supplied by the definition is that the inquiry falls to the government under which the officer is employed at that time. The Court noted that in the earlier decision of Sardar Kapur Singh, it was held that the officer was “employed under” the Government of Punjab, and no argument was raised in the present case that the appellant was not likewise employed under the Punjab Government. The Court further referred to Point 2 of the Order of Reference, which states that “the inquiry can be directed under that section (section 2) against a person in the service of that Government.” The phrase “in the service of that Government” was understood to be synonymous with “employed under that Government.” The Order of Reference also observed that the condition was satisfied, no dispute was raised concerning it, and the decision in Sardar Kapur Singh v. Union of India provided a complete answer to any claim that the condition was unmet. Consequently, the Court concluded that the definition in section 23 applies to the appellant’s situation, meaning that the government under which the appellant is employed is the very government that holds the inquiry. This conclusion is supported not only by the earlier Supreme Court decision but also by the explicit wording in the Reference.

The Court indicated that it must now read the key and its answer into section two of the Act. That provision employed the expression “the Government” three separate times, and the Court explained that each occurrence should be interpreted as referring to the Government under which the officer was employed. If the provision were paraphrased after this reading, it would state that whenever a Government, under which an officer was employed, considered that there were sufficient grounds for initiating a formal and public inquiry, the truth of any allegation of misbehaviour made against an officer serving in the service of that same Government could be examined. The Court further observed that the officer could not be removed from his appointment without the sanction of the Government under which he was employed, and that the substance of the allegations could be framed as distinct charges and subjected to a formal public inquiry.

The Court held that the definition must operate in each of the three places where “the Government” appears. In the expanded reading, the words “in the service of” within the phrase “in the service of the Government under which he is employed,” or the original phrase “in the service of the Government,” were to be understood to mean “while serving with” rather than conveying the notion of “employment by.” Consequently, the term “appointment” could be taken to signify a post, station, or office, and not the entire service as a whole. Removal, therefore, signified the loss of a post, station, or office, not the loss of service altogether. Section two was intended to apply only to an officer whose post could be lost solely by the orders of the appropriate Government and not by any lesser authority. In that sense, the action taken by the Punjab Government was clearly within its authority.

The Court warned that construing the Act in the opposite manner would create an absurd result: officers of the Indian Civil Service or other officers serving with State Governments could not be investigated by the Central Government because they were employed under the State, and similarly the State Governments could not investigate officers employed by the Central Government. To allow an inquiry by the “other” Government would require discarding section twenty‑three as a key and overturning the interpretation given by this Court in the earlier Sardar Kapur Singh case. The Court concluded that the third condition in section two was likewise satisfied in the present matter, and it expressed agreement with the view articulated by the learned brother Hidayatullah in the Order of Reference, noting that the reference was based on the interpretation advanced in Sardar Kapur Singh v. Union of India.

In considering the meaning of the word “Government” in the expression “in the service of the Government” that appears in section 2 of the Public Servants (Inquiries) Act, 1850, the Court observed that one interpretation holds the term to refer to the Government under which the officer is actually holding office at the moment the order for inquiry is issued. The Judge expressed some doubt about the correctness of that view, suggesting that it could also be argued that “Government” denotes the Government which originally appointed the officer and whose servant he continues to be, even though his services might presently be entrusted to another authority. The Judge noted that if the latter view were accepted, many of the difficulties that had arisen in the present case would disappear, and the answer to the reference would have been different from the one now being adopted. However, the Court also observed that the question of whether the earlier decision in Sardar Kapur Singh’s case is right or wrong does not arise for consideration in the present reference, and for the purpose of this reference that decision must be treated as correct. Accordingly, the Court found the interpretation advanced by Justice Hidayatullah to be the more persuasive and agreed with that position.

Justice Ayyangar, speaking for himself and for two other judges, turned to the central issue contained in the reference, namely the proper construction of section 2 of the Act, and in particular the phrase “any person in the service of the Government not removable from his appointment without the sanction of the Government.” The reference had been framed by a short order of the referring bench, which set out the factual backdrop and asked whether the third condition in the reference—that the Government of Punjab is the appropriate Government vested with the power to direct an inquiry under the Act against the appellant—was satisfied. The order also presented two alternative constructions of the expression “not removable from appointment,” and the Court was required to determine which construction was correct. The respondent‑State, through counsel Mr Setalvad, submitted that the word “removable” should be understood in its ordinary sense of a transfer from one post to another, thereby allowing a power to impose a punishment such as reduction in rank. In contrast, the appellant, who argued his case in person, contended that “removable” in the context of a punitive measure should be read as “removal” as defined in the Service Rules, meaning a complete dismissal from office. The Court was therefore tasked with assessing these rival interpretations and determining the proper meaning of the statutory provision.

In this case the Court needed to decide which of the two proposed meanings of the word “removable” was correct. One meaning, advanced by counsel for the State, described “removable” as the authority to transfer an officer from one post to another, effectively a reduction in rank and therefore a form of punishment. The other meaning, argued by the appellant who presented his own case, described “removable” as the complete dismissal of the officer from his position, a termination of his service. Before analysing these competing constructions, the Court found it useful to clarify the ground on which the parties stood. The submissions made for the respondents did not contend that section 2 of the Act did not contain an independent statutory requirement that the Government ordering an inquiry must also possess the power to remove the officer from his appointment, irrespective of what meaning might be attached to the term “removable”. Nor did the respondents argue that the statute could be read to make it sufficient merely that the officer was employed by that Government, thereby turning the “third condition” into a mere explanation or incident of the “second condition”, namely that the officer was in the service of the Government. The Court noted that two words in the relevant portion of section 2 required proper interpretation: “removable” and “appointment”. The Court therefore resolved to examine first the word “removable” and subsequently the word “appointment”. The term “removable” has been part of the Act since its first enactment in 1850 and appears not only in section 2, which is the focus of the present dispute, but also in other provisions. The Court considered that the historical development of legislation dealing with inquiries against public servants shed considerable light on the meaning of this term and therefore a brief reference to that history was appropriate. The Court also acknowledged that the Act had undergone several legislative amendments of relevance to the present question, and that those changes would be addressed later in the judgment. When the Act was originally enacted in 1850, its preamble read: “Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable without the sanction of Government and to make the same uniform throughout the territories under the Government of the East India Company, it is enacted as follows.” This preamble indicated that the purpose of the Act was to provide a mechanism for instituting inquiries into the conduct of those public servants who could not be removed without the sanction of the Government. Section 2, as originally framed, provided: “2. Whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the East India Company not removable from his office without the sanction of the same Government, it shall cause the substance of the imputations to be drawn into distinct Articles of Charge, and shall order a format public inquiry to be made into the truth thereof.” The term “Government” was defined in section 23 of the original enactment, which read: “The

In this provision the term “Government” was defined to mean the Governor‑General in Council, the Governor or Deputy Governor of the Presidency of Fort William in Bengal, the Governor‑in‑Council of the Presidencies of Fort St George and Bombay respectively, and the Lieutenant‑Governor of the North‑Western Provinces of Bengal whose sanction was required for the removal of the person accused. The Court noted that the other sections, namely sections 3 through 22 together with sections 24 and 25, remained in the same form as they are presently, and that the Court would defer consideration of their relevance to the interpretation of the expressions used in section 2 until after certain other matters had been examined. The difficulty raised by the reference concerned the fact that, under the definition of “Government” in section 23 of the Act as it now stands, the Government competent to “remove” an officer in the sense of dismissing him from service is not always the Government under which the officer is serving. In particular, members of the All‑India Services are appointed by the Union Government and can be removed only by that appointing Government, although they are allocated to the States and serve under State Governments. The Court observed that this circumstance should not obscure or divert the proper interpretation of the relevant provisions and, in its opinion, a correct appreciation of the situation required a historical tracing of the provisions relating to inquiries against public servants of the type covered by the Act. The Court further explained that the Act of 1950 was the first uniform law applicable throughout the territories of the East India Company, but that it would be both interesting and useful to look beyond and before it in order to understand not only the phrasing employed but also the actual import of the expressions used. Accordingly, the Court recounted that the Act of 1850 repealed three enactments that had been in force in each of the three presidencies of Bengal, Madras and Bombay—namely Regulation 26 of 1839 in Bengal, Act XIII of 1843 in Madras and Act VI of 1838 in Bombay—consolidated their provisions and re‑enacted a law intended to apply to the entirety of the territories administered by the East India Company. The Court observed that it was not necessary to refer to each of these three pieces of legislation individually because they followed a very similar pattern, using almost identical language to that employed in the Regulation that was then in force in Bengal. The earliest of the Bengal Regulations was Regulation 13 of 1793, which underwent several amendments, was eventually consolidated into Regulation 26 of 1839 and was subsequently repealed by the Act of 1950. The preamble to Regulation 13 of 1793 stated that it was made for enacting rules for the appointment of ministerial officers of the civil and criminal courts of judicature and for regulating their duties, including provisions for receiving or charging any acts of corruption and extortion that might be preferred against them. Sub‑section (1) of section 9 of this Regulation enacted that the ministerial officers of the civil and

The legislation declared that ministerial officers serving in criminal courts were subject to the authority of the court to which those criminal courts were attached for any acts of corruption or extortion, and it empowered those courts to receive any charges that might be brought against the officers. In a similar manner, the second sub‑section granted the Sadar Diwani Adalat and the Nizamat Adalat comparable jurisdiction, allowing those higher courts to entertain charges of corruption or extortion made against ministerial officers of a Provincial Court of Appeal or of a circuit court. Detailed provisions were also included concerning the procedure for conducting inquiries and trials of such charges. When an offence was finally proved, section eleven stipulated that the court rendering the final decree must forward a copy of that decree to the Governor‑General in Council. The Governor‑General in Council, in addition to imposing the penalties or punishments specified in the decree, retained the discretion to declare the offender incapable of serving the Government in any capacity if the council deemed such a step appropriate.

The judgment further noted that, although many regulations were enacted between 1793 and the consolidating Regulation 26 of 1839, a few of those earlier enactments are worth mentioning because they contain language that parallels the wording used in the Act now before the Court. For example, section eight of Regulation V of 1803 vested the Sadar Diwani Adalat with jurisdiction to try appeals arising from decisions of the Provincial Court of Appeal, and it provided that any person who charged a judge of a zillah court or of the provincial court of appeal before the Sudder Dewanny Adalat with corruption in violation of his oath could have the charge received by that court. If the charge was established, the Governor‑General in Council was authorized either to remove the judge from his office, to suspend him from the Honourable Company’s service, or to pass any other order deemed appropriate. The judgment especially highlighted the use of the word “remove” in that provision. The discussion then turned to Regulation 8 of 1806, whose preamble, after referring to earlier statutes concerning collectors of revenue, commercial residents, agents, salt agents, customs collectors, mint and assay masters and their assistants, declared those officials amenable to the zillah or city court of Dewanny Adalat within the jurisdiction where they resided or carried out public business, for any acts done in their official capacity contrary to any regulation. The preamble further recited various parliamentary enactments dealing with the prosecution of Company officers who breached trust or embezzled public monies, and it explained that the purpose of these provisions was to enable the Government to decide whether such officers should continue in the Company’s employment and, where necessary, to apply the appropriate legal measures.

The judgment explained that the provisions of the law could be enforced through a public prosecution instituted in the Supreme Court of Judicature. Accordingly, the Regulation set out a series of rules. Section 2 of the Regulation stated that European public officers who were liable to the jurisdiction of a zillah or city court could be proceeded against in accordance with Section 4. Section 4 provided that whenever a complaint or an accusation of corruption, embezzlement of public money or stores, gross fraud upon the Company, breach of public trust, or any other high misdemeanor that fell within the statutes mentioned in the preamble, or that could be indicted as a misdemeanor in the Supreme Court of Judicature under any existing statute, or even if not indictable but amounting to a serious breach of duty or trust that could justify dismissal from office, such a complaint could be presented against any officer listed in Section 2. The complaint could be filed in any zillah, city, or provincial court authorized by the regulations, or before the Sudder Dewanny Adawlut. The judge or judges of the court receiving the complaint were required to send a copy of the plaint or charge, together with an English translation, to the Governor‑General in Council for information and further orders.

Sections 5 through 17 of the Regulation introduced procedural provisions similar to those found in sections 3 to 22 of the Act. Section 17 specifically provided that, after reviewing the report and proceedings submitted under the preceding section, the Governor‑General in Council would issue whatever final orders he deemed just and proper. If the Council considered that the accused should stand trial by a public prosecution in the Supreme Court of Judicature, it would direct the Government law officers to give effect to that decision. The Court observed that the phrase “final order as may appear to him to be just and proper” inevitably included the dismissal referred to in Section 4. The judgment also referred to Section 19, which contained a saving clause comparable to section 25 of the Act. That clause declared that nothing in the Regulation should be interpreted as preventing the Governor‑General in Council from ordering a public prosecution in the Supreme Court of Judicature whenever it seemed expedient, without requiring the special inquiry prescribed elsewhere. Moreover, the clause affirmed that any resolution or order issued under the Regulation would not deprive individuals of their right to approach the Supreme Court in the manner prescribed by law. Finally, the Court noted that Section 5 of Regulation 10 of 1806 incorporated the then‑existing provisions applicable to judges and other officials under the Regulations of 1793.

The Court observed that Regulation 4 of 1803 and Regulation 8 of 1806 were made applicable to charges of the same nature against any covenanted servant of the Company who was employed in the judicial department. Subsequently, Regulation 26 of 1839 repealed portions of the earlier regulations and consolidated the law concerning the mode of inquiry, especially those parts of the regulations that required a security to be furnished by persons who preferred charges against officers. Section 2 of Regulation 26 of 1839, which corresponded to section 2 of the Act, provided that “If the Court of Sadar Dewani and Nizamut Adawlut, either of the Sudder Boards of Revenue, or the Board of Customs, Salt and Opium, shall be of opinion that substantial grounds exist for making a regular and formal inquiry into the truth of any imputation of Official misconduct affecting any officer… not removable without the sanction of Government, they shall submit the documents on which their opinion may be founded, together with a statement of the charges reduced to distinct articles which they may propose to be made the subject of a regular investigation, to the Governor of Bengal…”. In other words, where the officer could be removed by the courts and authorities mentioned earlier in the section, those bodies could themselves take action; however, in the case of an officer who could not be removed except by the Government, a reference to the Government was required. Section 9 enacted that if the Governor agreed with the board or authority making the reference that there was a prima facie case for inquiry, he shall appoint a commissioner. Section 20 further provided that the Governor would “pass such decision as he deems most just” and, if he deemed it proper, may order the accused to be brought to trial. Section 20 also contained a saving clause of the same type as that found in section 25, which is contained in section 21 of the Regulation.

The Court noted that the same language extracted from section 2 of the Bengal Regulation 26 of 1839 appeared in Act 13 of 1843, which was then in force in the Presidency of Madras. That section read: “2. In case of imputation of official misconduct of an officer subject to Sudr and Fouidaree Adawlut or Board of Revenue, and not removable without sanction of Government, such Courts or Board may submit documents, & C., and charges, to the Governor in Council for his consideration”. Section 20, dealing with the power of the Governor in Council, was framed in the same terms as section 19 of the Act applicable to Bengal, which the Court had already extracted. This examination led the Court irresistibly to the conclusion that the word “remove” used in the legislation preceding the Act of 1850 functioned as a synonym for “termination of service”, although a variety of phraseology was employed to convey the same idea. Examples included “declare the offender incapable of serving Government” in section 11 of Bengal Regulation 13 of 1793; “remove” in Bengal Regulation 8 of 1803; “Judge whether such officer deserved any longer to be continued in the employment of the Company” and “subject the party to dismissal from office” in Bengal Regulation 8 of 1806; and “not removable without sanction of Government” in Regulation 26 of 1839.

Regulation 8 of 1803, together with the wording “Judge whether such officer deserved any longer to be continued in the employment of the Company” and “subject the party to dismissal from office” found in Bengal Regulation 8 of 1806, and the phrase “not removable without sanction of Government” in Regulation 26 of 1839, were all examined to determine the meaning of “removable” in section 2 of the 1850 Act. The Court found it appropriate to consider certain parliamentary statutes of the same period that also illuminate the issue. The Charter Act of 1833 (3 and 4 Will. IV, Ch. 85), which governed the status and powers of the East India Company and the Government of India, contains section 74 stating that His Majesty, by a writing under his sign manual and countersigned by the President of the Board of Commissioners, may remove or dismiss any person holding any civil or military office, employment or commission under the Company in India. Section 75 further provides that the Court of Directors may at any time remove or dismiss any such officer or servant at its pleasure, subject to the condition that any servant appointed by His Majesty shall not be dismissed or removed without His Majesty’s approval. This historical background establishes two points: first, that in these statutes the term “remove” was used to mean termination of employment or dismissal from the Company’s service; and second, that the Governor’s authority to commence an inquiry was conditioned on his power to effect such “removal,” i.e., dismissal of the officer. It is worth noting that the enactments numbered XXVI of 1839, XIII of 1843 and VI of 1838 were each limited to a single Presidency, and therefore did not require a definition of “Government” as was later needed when the statutes were consolidated in the 1850 Act. The foregoing analysis therefore exhausts the pre‑1850 legislative materials that shed light on the terminology employed in the later Act. For completeness, the Court also referred to statutes enacted shortly after the 1850 legislation. The Government of India Act of 1858 (21 and 22 Vict., Ch. 106) contained section 30, which dealt with patronage concerning appointments in India and empowered the Secretary of State in Council to make regulations for the division and distribution of patronage and nomination powers among the various Indian authorities, as well as to restore officers and servants to their former positions, offices or employments.

The Court observed that it would be inappropriate to rely on later Parliamentary enactments because those statutes were passed at a time when, under the Service Rules, the term “removal” had acquired a specific technical meaning. That meaning denoted a termination of employment that fell short of a full dismissal, and consequently it did not attract the penal consequences that would otherwise bar a person from being re‑employed in Government service. In order to ascertain the meaning of the word as it stood in the Act of 1850, the Court considered it necessary to refer to a similar provision contained in section 466 of the Criminal Procedure Code of 1872. That section, which preceded section 197 of the Code of Criminal Procedure of 1898, provided: “A complaint of an offence committed by a public servant in his capacity as such public servant, of which … any public servant not removable from his office without the sanction of the Government is accused as such public servant, shall not be entertained against such public servant, except with the sanction or under the direction of the Local Government, or of some officer empowered by the Local Government.”

The Court noted that the judicial construction of the word “remove” in both section 466 and its successor, section 197 of the 1898 Code, has been uniform. For this reason the Court found it sufficient to cite an early decision of Justices West and Pinhey of the Bombay High Court reported in Imperatrix v. Bhagwan Devraj (1). In that case a police patel had been prosecuted for an offence alleged to have been committed in the discharge of his official duties. The patel contended that he could not be “removed” without the sanction of the Government; the Sessions Judge accepted that contention and set aside the conviction and sentence. The Crown counsel, who had filed the appeal, argued that sanction was required only in the case of a public servant “who is not removable from his office without the sanction of the Government.” The counsel further submitted that a police patel was not such a person because a patel could be dismissed by a first‑class Magistrate, subject to the sanction of the Police Commissioner. The Court agreed with that view and observed: “It appears that a patel may be dismissed on proof of misconduct, by a Magistrate (First class), subject to the sanction of the Police Commissioner. Section 466 of the Code of Criminal Procedure, therefore, does not apply to the case.” The Court also mentioned that Chief Justice Harries had taken an identical approach to section 197 of the 1898 Code in the decision reported as Angelo v. Kandan Manibi (1). At page 225 of that report, the learned Chief Justice equated the term “removal” with the term “dismissal,” reinforcing the uniform interpretation that “removal” signifies a termination of employment comparable to dismissal.

In this case the Court explained that Capt. Angelo was unquestionably a public servant and, in its view, he occupied a position that could not be terminated except with the sanction of the Local Government. The Court further observed that because his appointment could be made only with the sanction of the Provincial Government, any dismissal of Capt. Angelo would likewise require such sanction. The Court noted that it was not turning to other authorities for the meaning of the term “remove” in section 197 of the Criminal Procedure Code 1898 because all existing decisions treat “remove” as synonymous with the termination of employment, effectively meaning dismissal, and have never interpreted the term to denote a reduction in rank or a punitive transfer to a lower post. Consequently, the Court held that, had the Act of 1850 remained unchanged, the term “remove” would have been understood solely as removal in the sense provided by the Service Rules, that is, as a form of punishment.

The Court next turned to the statutory amendments made in 1897 by Act I of 1897 and set out to examine their effect. It first pointed out that by 1897 the British Crown had assumed all powers that earlier belonged to the East India Company, and that the original 1850 Act, in its preamble and section 2, referred to the “Service of the Company.” Because of this change in sovereign authority, the statute required amendment to bring its language into conformity with the new constitutional situation. The Court therefore proceeded to consider each amendment introduced by the 1897 Act to determine whether any material alteration had resulted for the present issue. The amended preamble, as quoted by the Court, read: “For regulating inquiries into the behaviour of Public Servants not removable from their appointment without the sanction of Government and to make the same uniform throughout the territories under the Government of India, it is enacted as follows.” The Court observed that the original words “not removable without the sanction of Government” had been replaced by the words “not removable from their appointment without the sanction of Government.” Counsel for the respondent argued that this insertion of the phrase “from their appointment” created a significant distinction. The Court indicated that this distinction would be addressed later, noting that a similar change appears in section 2 and that both alterations should be considered together. Section 2, as amended, provided: “Whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of Government not removable from his appointment without the sanction of the Government, it shall cause the substance of the imputations to be drawn into distinct Articles of Charge, and shall order a formal public inquiry to be made into the truth thereof.”

The amendment to Section 2 provides that when the Government is of the opinion that there are good grounds for a formal public inquiry into an imputation of misbehaviour by a person in the service who is not removable from his appointment without the sanction of the Government, the Government shall cause the substance of the imputations to be drawn into distinct Articles of Charge and shall order a formal public inquiry to be made into the truth thereof. In addition, the amendment made to Section 23 must be taken into account. The amended Section 23 reads: “The powers of the Government under this Act may in all cases be exercised by the Governor‑General in Council, and when the person accused can be removed from his appointment by the Local Government, those powers may also be exercised by the Local Government.” Two points arise for consideration in relation to the changes introduced in the preamble, Section 2 and Section 23. First, it must be examined whether any difference exists between the wording “an officer not removable without the sanction of Government” and the wording “not removable from his appointment without the sanction of Government” as appearing in Section 23. Second, it must be examined whether any difference exists between the expression “removable from his office” used in Section 2 as it stood in 1850 and the expression “removable from his appointment without the sanction of Government” introduced by the amending Act of 1897. These questions may be considered together. To begin, the Act as originally enacted employed the phrase “Public servants not removable without the sanction of Government” in the preamble, the phrase “person in the service of the East India Company not removable from his office without the sanction of the same Government” in Section 2, and the phrase “Government whose sanction is necessary for the removal of the person accused” in Section 23. It is evident that the term “removal” in all three places refers to removal from office, and although the word “office” does not appear in the preamble or in Section 23, the contextual omission is immaterial. After the amendment, the three relevant passages read “not removable from their appointment without the sanction of Government” in the preamble, “not removable from his appointment without the sanction of the Government” in Section 2, and, in a positive form, “when the person accused can be removed from his appointment by the Local Government” in Section 23. The only material variation introduced by the amendment is the substitution of the word “office” with the word “appointment”. The question therefore is whether any distinction exists between removal of a person from “his appointment” and removal from the office which that person holds, the meaning of the word “removable” remaining the same.

There can be no serious controversy that, although Service Rules may draw a distinction between appointments to a Service and appointments to a post, the expression “office which a person hold” is equivalent to the office to which he is appointed. If a person is appointed to an office there can be no distinction between a removal from his ‘appointment and

In this case, the Court observed that the expression “a removal from his office” and “a removal from his appointment” convey the same meaning, and therefore the conclusion that the 1897 Act did not introduce any substantive alteration to the law as it stood in 1850 was unavoidable. The only material effect of the 1897 amendment was the omission of the words “East India Company” and “the Company's Servants,” which merely aligned the terminology with the nomenclature of the Government after the Government of India Acts of 1858 and 1861. The Court acknowledged that a minor change resulted from the amendment to section 23, which conferred a superior power on the Governor‑General to initiate proceedings; however, the Court regarded that change as irrelevant for the present purpose. The next significant amendment to the Act was effected by the adaptation order of 1937, issued under the Government of India Act, 1935, to bring the provision of the Act into conformity with the constitutional changes brought about by that Parliamentary statute. Before addressing the 1937 adaptation order, the Court deemed it necessary to briefly consider the vigorous arguments presented by counsel for the petitioner, Mr Setalvad, who contended that the amendments made by the 1897 Act were intended to bring about a change in the law. According to his submission, Bill No 20 of 1896 was introduced in the Council of the Governor‑General of India on 20 September 1896 for the purpose of amending Act 37 of 1850. As originally drafted and as published in the Gazette, the only material alteration in the preamble was the removal of the words “East India Company” and their substitution with the word “India.” In section 2, the original bill proposed to replace the phrase “any person in the service of the East India Company not removable from his office without the sanction of the same Government” with “any person in the service of Government not removable from his office without the sanction of the Government.” Had that amendment been adopted, the relevant words would have read: “Imputation of misbehaviour by any person in the service of Government ……” For section 23, the words originally proposed were: “the powers of Government under this Act may in all cases be exercised by the Governor‑General in Council and when the person accused can be removed by a Local Government those powers may also be exercised by the Local Government.” In the statement of objects and reasons, the purpose of the amendment embodied in the bill was described as the clarification of obscure language, bringing it “in accord with the present state of facts,” removing doubts that might arise from the construction of section 23, and declaring the authority by which the powers of Government may be exercised. The Court noted that, by the date of the bill, there was no longer any official bearing the title Deputy Governor of the Presidency of Fort William or Lieutenant‑Governor of the NorthWestern Provinces, and consequently the Act as then framed referred to a situation that had ceased to be relevant. Counsel then drew the Court’s attention to the fact that …

The Court observed that the Government of Madras had lodged a formal objection to the proposed amendment, contending that the amendment in its original wording would interfere with the powers that the Madras Government was then exercising over certain officials, particularly Indian Civil Service officers who were serving under its authority. The Madras Government argued that, in order to allay its concerns about the effect of the originally proposed changes, the phrase “removable from his appointment” had been inserted in the places where the present text now contains those words. Counsel for the appellant pointed to the report of the Select Committee, noting that the committee’s report recorded the representations made by the Government of Madras on this matter. Relying on those facts, counsel urged the Court to conclude that the substitution of the words “from his appointment” for the words “from his office” was intended to empower the Local Government to exercise jurisdiction under the Act against officers of the same class as the present appellant. The Court, however, held that such material could not be taken into account for the purpose of construing the provision, because, as previously indicated, the language of the provision is absolutely clear. In support of this approach, the Court cited the decision in Herron v. Rathmines, where Lord Halsbury, L.C., declared that an Act cannot be interpreted by reference to the Bill or to its original form, quoting Lord Fitzgibbon’s language. The Court also referred to Lord Wright’s observation in Assam Railways and Trading Co. Ltd v. Inland Revenue Commissioners, which held that the language spoken by a Minister of the Crown during the parliamentary passage of a measure, and the subsequent report of commissioners, are inadmissible as evidence of legislative intent because there is no guarantee that the recommendations were adopted. Further, the Court quoted Willes, J., in Millar v. Taylor, emphasizing that the sense and meaning of an Act must be derived from the words of the law as enacted, not from the history of amendments it underwent while in the House. The Court noted that the alterations made to the Bill during its Committee stage are “wisely inadmissible to explain it,” referencing R. v. Hertford College. It warned that it would be incorrect to assume that every change in wording introduced by amendment necessarily alters the substantive content or meaning of a provision; such changes may merely be intended to clarify the existing meaning. To illustrate this principle, the Court examined the phrase “Governor whose sanction is necessary for the removal of the person accused” found in section 23 of the 1850 Act. The term “removal” is ambiguous because it could denote either removal from appointment or the physical removal of a person. The Court held that the latter interpretation is plainly untenable, and therefore the additional words “removal from his appointment” merely serve to clarify the meaning already intended by the term “removal” and do not create a new or different substantive effect.

In this case, the Court observed that the amendment merely clarified the meaning of the word “removal” and did not change it. The Court further held that it could not be said that a difference was drawn between the terms “office” and “appointment,” nor that replacing the word “office” with “appointment” in section 2 created a substantial change in the meaning of the word “remove.” The word “remove” occurs not only in section 2 but also in the preamble, in section 23 and in section 25, and it remains in the same form as when it was originally enacted. The Court cited earlier authorities, namely (1) [1935] A.C. 445, 458; (2) (1769) 4 Burr. 2303, 2332; and (3) [1878] 3 Q.B.D. 693, 707, to support this point. Section 25, as it currently reads, states: “25. Nothing in this Act shall be construed to affect the authority of Government for suspending or removing any public servant for any cause without any inquiry under this Act.” The Court explained that it was impossible to interpret “removal” in sections 2 and 23 as a power to demote an officer in rank, while giving the same word in section 25 a different meaning of removal from service, i.e., termination of employment. The Court noted that section 25 had never been amended and that the word “remove” continued to convey the idea of termination of employment exactly as it did when the Act was first enacted, a meaning that remained undisputed at the time of the hearing. Because the language was clear, the Court held that the Select Committee’s report, even if it might be considered a proper aid in some exceptional cases, was entirely irrelevant to the matter before it.

The Court then addressed the argument that a communication from the Government of Madras to the Government of India, which indicated that the Madras Government had been using the provisions of the enactment and its powers under section 2 even in cases involving Indian Civil Service officers who could not be removed by the Governments in India, should be treated as a “contemporaneous exposition” or an “executive interpretation” of the statute and therefore as a guide to interpretation. The Court found this argument without merit. It observed that, based on the material presented, it was the Government of Madras alone that had alerted the Government of India that the power of a local government to institute inquiries against Indian Civil Service officers would be affected if the amendments proposed in the original Bill were passed. Consequently, no other local government in India had raised a similar concern, and they continued to operate on the understanding that they lacked the authority to institute inquiries against such officers. In other words, every local government except Madras interpreted “removal” as removal under the Service Rules, meaning termination of employment, and the Madras Government did not possess that power over officers recruited by the Secretary of State. The Court concluded that the so‑called contemporaneous exposition had no bearing on the construction of the statute in this case.

In this case the Court observed that officers recruited by the Secretary of State were beyond the power of the local authority to inquire into, and therefore that authority could not exercise such power. Consequently, if contemporary exposition were to be treated as a reliable guide, the conclusion should be opposite to the one advanced by the counsel for the respondent. Moreover, the communication from the Madras Government to the Government of India, which the Court had examined, mentioned only a single instance, and the Court found that a solitary example could not provide a foundation for an argument based on “contemporaneous exposition”. The Court further explained that contemporaneous exposition is useful only when the views or actions it reflects can be tested in courts and when there is a general acquiescence to the course adopted by the executive authority. Since no such testing or acquiescence existed in the present matter, the Court saw no basis for relying on that line of argument. Accordingly, the Court held that it must construe the statutory provision as it stands after the amendment by comparing it with its earlier form, and it was evident that the amendments were merely clarificatory, intended to align the provisions with the circumstances of the time, without effecting any fundamental change in the position of government servants or in the powers of local governments over them. Before dismissing the submission concerning the evidentiary value of the objections raised by the Madras Government to the originally proposed amendments, the Court found it necessary to address one point. The Madras Government had maintained that, under the original version of the Act, it possessed the power to order inquiries against Indian Civil Service officers serving in that Presidency; if that view were correct, the amendment would have no material impact. The Court, however, did not understand the respondent’s counsel to be suggesting that the terms “removal of the accused person” and “removal from office” in the original Act could be interpreted to mean anything other than termination of employment. For this reason, the argument relying on an executive interpretation of the amending clause was rejected. The Court also considered whether the 1897 changes altered the meaning of the word “removable” from signifying termination of employment to implying merely a reduction in rank. On a proper construction of the Act as amended in 1897, the Court found no indication of such a change. Finally, the Court noted that references to the state of the law before amendment and the evils a legislation sought to remedy are legitimate tools for statutory interpretation, but such an inquiry was irrelevant here because the respondent’s contention was not that the amendment sought to remedy a difficulty but that it intended to preserve the pre‑existing understanding of the law.

In the present dispute the respondent argued that the amendment was not intended to overcome any difficulty but merely to preserve the law in the sense in which it had always been understood. If that argument were accepted, the alteration in wording would be irrelevant. Accordingly the Court examined the earlier law and found that the earlier position was not consistent with the construction advanced by the respondent. The Court then turned to the amendment made to section 23 by the Adaptation Order issued under the Government of India Act 1935. After amendment the section read: “In this Act the ‘Government’ means the Central Government in the case of persons employed under that Government and the Provincial Government in the case of persons employed under that Government.” The Court emphasized that the adaptation was made under the authority granted by section 293 of the Government of India Act 1935, which empowered His Majesty by Order in Council to declare that any law in force in British India “shall have effect subject to such adaptations and modifications as appear to be necessary or expedient for bringing the provisions of that law into accord with the provisions of this Act,” and, more specifically, to bring such law “into accord with the provisions thereof which re‑constitute under different names Governments and authorities in India and prescribe the distribution of legislative and executive powers between the Federation and the Provinces.” The purpose of drawing this attention was to show that the clear intention of the adaptation was not to change the substance of the law but solely to align it with the changed circumstances and terminology introduced by the constitutional reforms of the Government of India Act 1935. In this context the Court found it necessary to refer to certain provisions of the Government of India Act 1935 because they illuminate the actual amendments carried out in section 23. It was recalled that section 96(B) of the Government of India Act 1915, as amended in 1919, contained a constitutional guarantee that “no person shall be dismissed by an authority subordinate to that by which he was appointed,” thereby protecting a person appointed by the Secretary of State from dismissal by any subordinate authority in India. The same protection re‑appeared in section 240(2) of the Government of India Act 1935, which provided: “No such person as aforesaid (a member of the Civil Service of the Crown in India) shall be dismissed from service by any authority subordinate to that by which he was appointed.” The term “dismissal” was defined by section 277 to include “references to dismissal from His Majesty’s Service” and therefore also covered removal from His Majesty’s service. Consequently, neither the Governor‑General nor the Governor possessed any authority to remove persons who had been appointed by the Secretary of State. Section 241 then enacted that “appointments to the Civil Service and Civil posts under the Crown in India shall,” (the provision continues in the next portion of the judgment).

After Part III of the Act came into force on 1 April 1937, the statute provided that appointments of servants of the Federation and of posts that were connected with the affairs of the Federation were to be made by the Governor‑General, whereas appointments of servants or posts that were connected with the affairs of the Provinces were to be made by the Governor. Sub‑section (2) further empowered the Governor‑General to frame rules for persons serving in connection with the affairs of the Federation and gave the Governor similar authority to make rules for persons serving in connection with the affairs of a Province. Sub‑section (3) contained certain provisos, but those provisos were held to be irrelevant for the purpose of the present discussion.

The judgment then referred to section 270, which set out the pattern of distribution of officers between the Centre and the Provinces and used wording that was later reflected in the amended section 23 of the Act. Section 270(1) dealt with indemnity for past acts and provided that no civil or criminal proceedings could be instituted against any person for any act done or purported to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent of the Governor‑General in his discretion where the person had been employed in connection with the affairs of the Government of India or the affairs of Burma, and except with the consent of the Governor of the Province in his discretion where the person had been employed in connection with the affairs of that Province. The Court highlighted this provision to show that, when the Government of India Act 1935 introduced a quasi‑federal structure, it deliberately distinguished between civil servants of the Crown who were employed in the affairs of the Federation and those who were employed in the affairs of the Provinces. This distinction was incorporated into the amendments made to section 23, demonstrating that the amendment was intended merely to bring section 23 into conformity with the constitutional scheme just described.

The Court then turned to consider the impact of the amendment to section 23 on the identity of the Government that could exercise power under section 2. It observed that, prior to the Adaptation Order of 1937, which introduced the concept of “employment under Government” (as contrasted with “officers removable from their appointments by that Government”), the criteria for determining which Government could act under section 2 were essentially twofold. First, the officer in question had to be “removable” from his appointment by the Government that was initiating the inquiry. Second, that Government had to be satisfied that it was necessary to commence the inquiry. The Court noted that this analysis applied notwithstanding the wording of section 2, which now contains the expression “The Government” three times.

The Court observed that the phrase “the Government” appears three times in section 2 of the Act as it stands now. The power of the Government to remove an officer was the condition set out in section 23 for identifying the Government. After the 1937 amendment, although the condition in section 2 that only the Government could initiate an inquiry remained unchanged, a new concept was introduced in section 23. That concept required that the Government referred to must be the Provincial or Central Government under which the officer was employed. Consequently, when this definition was incorporated into the operative provision of section 2, the effect was that instead of two conditions needing satisfaction before an inquiry could be started, three conditions now had to be met. This was because servants employed by a Government were not automatically “removable” by that Government, the Constitution having guaranteed certain service protections. The Court noted that this circumstance created difficulty in interpreting section 2, since the definition in section 23 applied to every occurrence of the expression “the Government” within the Act. Accordingly, the terms of section 23 must be read into each of the three places where the word “the Government” occurs in section 2. The Court referred to its earlier decision in Kapur Singh v. The Union of India, which held that an Indian Civil Services officer allotted to a State and appointed to a post in that State is considered to be “in the employ of that State” for the purposes of section 23. Therefore, the first occurrence of “the Government” in section 2 would, by virtue of the definition, refer only to the State of Punjab, the State in which the appellant is employed. The same interpretation applies to the second occurrence of “the Government,” which appears in the phrase describing “misbehaviour by a person in the service of the Government.” The Court then turned to the words “not removable from his appointment without the sanction of the Government.” The only reasonable meaning that could be attached to these words, given the Court’s earlier discussion of “removable,” is that it is that Government which has the competence to terminate the officer’s employment. It is a matter of common ground that the State of Punjab does not possess the authority to remove the appellant from his appointment. In these circumstances the Court considered whether the definition in section 23 of the words “the Government” could be used by the respondent to argue that, because the appellant is employed under that State, the last condition is also satisfied. The Court expressed a clear opinion that such a construction could not be accepted. The condition that the officer against whom proceedings are taken must be one who is amenable to the disciplinary control of the Government that initiates the inquiry and that the Government must have the power to inflict the punishment of removal remains the essential requirement.

In this case, the Court observed that the fundamental purpose of the Act of 1850 has always been to place officers who are subject to the disciplinary control of the Government that initiates an inquiry within the power of that Government to impose the penalty of removal. The amendment introduced in 1897 preserved this essential feature, although it granted the Governor‑General an overriding authority to commence proceedings regardless of whether the officer was serving a local or the Central Government. Consequently, it could not be logically held that a subsequent adaptation made to align the Act with the Government of India Act, 1935 fundamentally altered this basic principle by giving a Provincial Government the ability to start an inquiry when that Government did not possess the power to remove the officer from service. The Court noted that the preamble of the Act still reads, “To enact a law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government,” without inserting the definite article “the” before the word Government. Because of this, the definition of “the Government” found in section 23 of the present Act cannot be read into the preamble. The result, the Court explained, is that the word “Government” as employed in the preamble retains the meaning it had when the Act was first enacted in 1850, namely the authority of the Governor‑General, Governor, Lieutenant‑Governor, etc., whose sanction was required for removal of the accused officer. When expressed in terms consistent with post‑Constitution language, this would translate to “not removable from his appointment except with the sanction of the Union Government or the State Government, as appropriate.” Accordingly, if the preamble and the operative provisions are to be interpreted harmoniously, the Court reasoned that a condition for invoking the power to institute an inquiry under section 2 must be that the officer be one over whom the Government that initiates the proceedings has disciplinary authority that extends to removal from service. The Court rejected the respondent’s suggestion that an anomalous situation could be avoided by a broader construction of the word “Government.” It further explained that, for officers of the All‑India Services, including the Indian Civil Service, who are employed in a State but not under the Central Government, interpreting “Government” to mean only the entity with removal power would mean that neither the State Government nor the Union Government would have authority to exercise power under section 2. The Court therefore affirmed that the proper construction requires the removal power to reside with the initiating Government, and any alternative reading would be inconsistent with the historical purpose and textual scheme of the legislation.

The Court observed that, according to section 2, the State Government possessed authority to exercise the power only over officers belonging to the Provincial Services, while the Central Government could exercise the same power solely in respect of officers of the All India Services who were employed under the Union Government. The petitioners had submitted that the apparent inconsistency could be removed by interpreting the term “removable” as denoting merely a reduction in rank, rather than as meaning termination of employment. The Court rejected this suggestion, stating that both historical usage and ordinary construction of the word “removable” in the relevant statutory provisions and service rules indicated that it signified a penalty involving the termination of the officer’s appointment.

The Court further explained that, because “removable” must be given its ordinary meaning of termination, the inconsistency could not be dispensed with by importing the definition of “the Government” from section 23 into the third occurrence of the word in section 2. Such a construction would be incongruous and would lead to absurd results, since it would imply that the employing Government could be treated as the authority to order an inquiry even when that Government lacked the power to terminate the officer’s service. The Court emphasized that ignoring the phrase “not removable from his appointment without the sanction of the Government” would strip the clause of its essential content, for the power to remove an officer was the decisive factor for determining which Government could order an inquiry from the year 1850 through 1937.

Moreover, the Court held that the mere fact that, for a particular class of officers, neither the Union nor the State Government possessed the power to order an inquiry did not justify adopting a forced or impossible construction of the statute. The Court found no practical inconvenience in the interpretation it favored. It noted that a parallel provision existed for conducting inquiries into misconduct of officers of the All India Services under the All India Services (Discipline & Appeal) Rules, 1955, a proceeding that could be initiated by the State Government when the officer was in State employment. Additionally, an officer of the All India Services could be transferred to the Union Government, after which proceedings under the Act could be lawfully launched against him, a situation for which precedent was already recorded. Consequently, the Court concluded that the alleged anomaly did not warrant a forced construction of section 2.

In this case the Court observed that the difficulty that arose from a definition contained in section 23, which does not fit perfectly into the provisions of section 2 of the Act, cannot be used as a reason to force a strained or unnatural construction of section 2 by interpreting the word “removal” in a way that is not natural. The Court explained that it had asked counsel Mr. Setalvad whether any Service Rule dating from about 1850 up to the present day employed the expression “removal of an officer from his appointment” to mean a reduction in rank, distinguishing it from the termination of his employment. Mr. Setalvad fairly admitted that he could not point to any such rule. Consequently, the Court answered the reference by holding that the word “removable” in the passage must be understood to mean removal from the officer’s appointment in the sense of terminating that appointment. The Court further noted that this meaning corresponds to penalty number six in Rule 3 of the All India Services (Discipline & Appeal) Rules, 1955, where the expression is expanded to signify “removal from the service which shall not disqualify for future employment”. The Court therefore concluded that the reference was answered in this manner.