AYYANGAR, J.: - (1.) ORDER OF REFERENCE
(2.) The following Order of the court (S. K. Das, A. N. Sarkar. K.N.WANCHOO, K. C. Das Gupta and N. Rajagopala Ayyangar JJ.) was delivered by The appellant, R. P. Kapur, was appointed to the Indian Civil Service in or about 1938. He continued in the service after independence and has since 1948, been in the service of the government of the Punjab. While so, on 26/05/1961 an order was made in the name of the governor of Punjab directing an inquiry against the appellant under the Public Servants (Inquiries) Act, 1850. The appellant challenged the validity of this order in a petition that he filed to the High court of Punjab under Art. 226 of the Constitution and when that was dismissed he has preferred this appeal with the special leave of this court. This appeal was heard by us in the second week of February, 1963 and judgment was reserved on the 13th of that month. Several points of law and fact were canvassed in the appeal and those will be dealt within the judgment to be pronounced. There was one point, however, which did arise on the case but was not fully argued and that related to the proper construction and legal effect of S. 2 of the Public Servants (Inquiries) Act, 1850 which, as it now stands, reads: "Whenever the government shall he 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 question we are referring to is whether the government of the State of the Punjab was competent to make the impugned Order against the appellant under this provision on its terms. That question might be formulated in these terms : under S. 2 there are three conditions which have to be satisfied before a formal and public inquiry might be directed to be made into the truth of the imputations of misbehaviour. They are: (1) The government should be of opinion that there are good grounds for making such a formal and public inquiry. We have heard full arguments on the question as to whether this condition has or has not been satisfied and it is not necessary to say anything more 298 about it now. (2) The inquiry can be directed under S. 2 by the government only against a person in the service of that government. It is obvious that this condition is satisfied and there was no argument raised in regard to it and the decision of this court in Sardar Kapur Singh v. Union of India, 1960-2 S C R 569: (A I R 1960 S C 483) furnishes a compete answer to any contention that this condition is not satisfied in the present case. (3) The third and the last condition is that the person is "removable from his appointment by or with the sanction of that government". We are staling here in positive terms what occurs in the section in negative terms. One possible construction or this provision would be that the officer against whom the inquiry is being directed should be capable of being dismissed or removed from service by that government which is authorised to direct the inquiry. Another interpretation might be that the condition of "removavility" only relates to removabilitty from the office which the officer holds for the time being. We are not expressing any opinion as to which of these is the correct view that could be taken of this provision, but we are merely pointing out that the former is one possible construction. If that construction, however, be right it would be apparent that the appellant who could not be dismissed or removed from service except by the government of India, would not fall within those words and consequently he would not be a public servant against whom the State government of the Punjab could initiate these proceedings. During the course of the arguments a query was raised as to Whether the third condition we have mentioned earlier was satisfied or not but it was assumed that this point had been considered and decided by this court in its decision in 1960-2 SCR 569 : (AIR 1960 S C 483). On further examination, however, it appears to us that this particular point about the third condition was not the subject of express consideration by this court on that occasion, for when one looks at the first of the grounds urged by counsel which if set out on p. 576 of the report (S C R) : it reads : "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." As would be seen, this Is the second point which we have set out earlier and this was answered by reference to S. 23 of the Public Servants (Inquiries) Act, 1950, but the third point which we have formulated earliar does not appear to have been the subject of express consideration or decision in that case. Since, however, that decision states and process on the basis of all the requirements of S. 2 of the Act having been satisfied, we feel it would not be proper for us to hear arguments on this aspect of the provision. The point is an important one and its decision is vital for disposing of this appeal. We, therefore, propose to place the case before the Hon'ble the chief justice for a reference being made to a larger bench for considering the question as to the meaning of the words "not removable from his appointment without the sanction of the government" occurring in S. 2 of the Public Servants (Inquiries) Act, 1850. OPINIONS The following opinions of the court were delivered by HIDAYATULLAH, J.: The appellant, Mr. R. P. Kapur, joined the Indian Civil Service in 1938, and after serving in other capacities was employed under the Punjab government since 1948. On 26/05/1961, an inquiry was Started against him by the Punjab government under S. 2 of the Public Servants (Inquiries) Act. 1850. He filed a petition in the High court of Punjab under Art. 226 of the Constitution impugning the validity of the order of the Punjab government, but his petition was dismissed. He has now appealed by special leave. During the hearing of the present appeal on an earlier occasion before another bench, a question arose whether the government of the State of Punjab was competent to order the inquiry against the appellant under S. 2 of the Inquiries Act. The bench made this reference for the elucidation of the meaning of certain words In S. 2 of the Inquiries Act* which has been placed before this bench.
(3.) IN the Older of Reference, It Is observed that S. 2 requires three conditions to be satisfied before a formal and public inquiry can be ordered, and they are: (1) The government should be of opinion that there are good grounds for making such a formal and public inquiry; (2) The inquiry can be directed under that section by the government against a person in the service of that government; (3) The person should not be removable from his appointment without the sanction of that government. The Order of Reference states that the earlier bench has heard full arguments 299 in regard to the first condition and the decision on that part of the case will be given In due course. Next, it states that the bench considers that the second condition is satisfied as held in an earlier decision of this court reported in 1960-2 SCR 569: (AIR 1960 S C 493). The bench apparently feels no difficulty about the first two conditions requisite for the application of the section. The Beach, however, is of the view that the words of S. 2 reproduced in the third condition are susceptible of different meanings. The Order of Reference states: "One possible construction...would be that the Officer against whom the inquiry is being directed should be capable of being dismissed or removed from service by that government which is authorized to direct the inquiry. Another interpretation might be that the condition of 'removability' only relates to removability from office which the officer holds for the time being." ;