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PATNA HIGH COURT
V.Ramaswami and Choudhary JJ.
Gurudeva Narayan Srivastava
Versus
State Of Bihar
Miscellaneous Judicial Case No. 242 of 1953 ;
Decided On : OCTOBER 19, 1954
PUBLIC SERVANTS (INQUIRIES) ACT, 1850 - DISQUALIFICATION OF COMMISSIONER - BIAS - INTEREST - FAIR ENQUIRY - SUSPENSION - POWER OF GOVERNMENT - AD INTERIM SUSPENSION - IMPLIED TERM IN CONTRACT OF SERVICE.
Fact of the Case:
The petitioner, an Executive Engineer, was suspended from service and an inquiry was initiated against him under the Public Servants (Inquiries) Act, 1850. The petitioner challenged the proceedings on the ground that the Commissioner appointed to conduct the inquiry was disqualified by interest and that the inquiry was not fair. The petitioner also challenged the order of suspension as being ultra vires and without jurisdiction.
Finding of the Court:
The court held that the Commissioner was not disqualified by interest and that the inquiry was fair. The court also held that the order of suspension was not ultra vires and that the Government had the power to suspend an officer pending an inquiry.
Issues: 1. Whether the Commissioner was disqualified by interest from conducting the inquiry. 2. Whether the inquiry was fair. 3. Whether the order of suspension was ultra vires and without jurisdiction.
Ratio Decidendi: 1. The court held that the Commissioner was not disqualified by interest because there was no real likelihood of bias on his part. The court noted that the Commissioner had not seen any file in the office regarding the case against the petitioner and that he had not seen any advice or any note of his predecessor-in-office in this connection. The court also noted that the prosecution against the petitioner was started not by the Law Secretary but by a different department of the Government. 2. The court held that the inquiry was fair because the Commissioner had permitted the petitioner to inspect the note-book and also to inspect the file relating to the purchase of motor-boats. The court also noted that the petitioner did not press his request on these points. 3. The court held that the order of suspension was not ultra vires and that the Government had the power to suspend an officer pending an inquiry. The court drew a distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting. The court held that the suspension in the latter sense is always an implied term in every contract of service.
Final Decision: The court dismissed the petition with costs.
Ramaswami, J.
1. In this case the petitioner Gurudeva Narayan Srivastava has moved this Court for the grant of a writ in the nature of certiorari under Article 226 of the Constitution for the purpose of quashing the proceedings drawn up against the petitioner and conducted by Mr. K.K. Banerji (as he then was) under the Public Servants (Inquiries) Act, 1850. The petitioner has also prayed for a writ in the nature of certiorari to quash the order of the Government dated 6-5-1952 suspending the petitioner from the office of Executive Engineer, Public Works Department Division, Saharsa.
2. The petitioner was appointed as an Assistant Engineer in the Bihar Engineering Service on 15-12-1948. In March 1949 the petitioner was posted as Assistant Engineer, Ganga Bridge Investigation Division. The petitioner was promoted to the rank of Executive Engineer in March 1950 and he was posted as Executive Engineer, Ganga Bridge Investigation Commission. He was subsequently transferred as Executive Engineer of the Public Works Department Division at Saharsa. On 6-5-1952 the Government of Bihar passed an order suspending the petitioner alleging that he had taken illegal gratification in the course of his official work. On 21-7-1952 the Government of Bihar appointed Mr. K.K. Banerji as Commissioner under Sec.3 of Act 37 of 1850 to enquire into the charges made against the petitioner. Mr. K. K. Banerji gave notice to the petitioner of his appointment. On 15-8-1952 the petitioner objected that Mr. K.K. Banerji should not hold the enquiry. The ground taken by the petitioner was that Mr. K.K. Banerji was Law Secretary and Legal Remembrancer to the Government of Bihar and therefore was not competent to hold judicial inquiry into the charges levelled against the petitioner. The petitioner also pointed out that Mr. K. K. Banerji had appointed Mr. K.P. Verma Advocate, as a junior counsel to Mr. S.K. Mitra who had been nominated by the Government to conduct the prosecution. Mr. Banerji rejected the petition of objection on the ground that he had been District & Sessions Judge of Patna till 12-7-1952 on which date he took charge as Law Secretary to the Government of Bihar. Mr. Banerji also observed that he had not advised the Government on any matter regarding the case against the petitioner and had not even seen the file regarding the petitioner in his office. The appointment of Mr. K.P. Verma as a junior counsel was a formal matter and Mr. Banerji had sanctioned the engagement of Mr. K.P. Varma at the instance of the Government Advocate, Mr. S.K. Mitra, who had requested that Mr. K.P. Verma should be appointed to assist him. Mr. Banerji therefore rejected the petition of objection and continued the enquiry against the petitioner. On 9-12-1952 Mr. Banerji submitted his report to the Government stating that in his opinion the charges of corruption and illegal gratification brought against the petitioner had been established.
3. In support of this application Mr. Baldeva Sahai put forward the argument that Mr. K.K. Banerji had no jurisdiction to conduct the enquiry against the petitioner and the proceedings and the report made by Mr. K.K. Banerji should be quashed on this ground. The contention of the learned counsel was that Mr. Banerji was disqualified by interest and that there was real likelihood of bias on the part of Mr. Banerji. The point taken by the learned counsel was that Mr. Banerji was acting as law Secretary and Legal Remembrancer during the period he was holding the enquiry and since the Government was prosecutor there was real likelihood of bias on the part of the Commissioner. Counsel further pointed out that on 28-7-1952 Mr. Banerji had in his capacity as Law Secretary sanctioned the appointment of Mr. K.P. Verma as a junior counsel to assist the Government Advocate in conducting the enquiry against the petitioner. The contention of petitioner, therefore, is that Mr. Banerji was disqualified by interest and that he should not have
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