judgement:
N: Criminal Appeals Nos.
227 and 228 of 1960.
Appeals by special leave from the judgments and orders dated September 16, and AugUst 26, 1960 of the Allahabad High Court in Criminal Misc.
Case No. 1519 of 1960.
N.C. Chatterjee, D.P. Singh and M.I. Khowaja, for the appellants.
C.P. Lal, for the respondent No. 1.
October 9, 1963.
The Judgment of the Court was delivered by HIDAYATULLAH J.
This judgment will govern the disposal of Criminal Appeals Nos. 227 and 228 of 1960.
In both these appeals the appellant is one Mohammad Ikram Hussain an Advocate of the Allahabad High Court residing in 49, Zero Road, Allahabad.
The second respondent in these appeals is one Mahesh Prashad, a resident of 4, Gujrati Mohalla Allahabad City but who has not appeared in this Court.
The other two respondents are the State of U.P. on whose behalf a belated appearance was made by Mr. C.P. Lal, Advocate and the Station House Officer, Kotwalli, Allahabad who was not represented at the hearing.
The two appeals are in a sense connected and impugn two orders of the High Court of Allahabad made respectively on August 26, 1960 and September 16, 1960.
They were passed in a proceeding initiated by Mahesh under section 491, Criminal Procedure Code and article 226 of the Constitution for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant and for delivery of the said Kaniz Fatima to him.
The first order was made by the High Court overruling the objections of the appellant, directing him to bring before the Court the said Kaniz Fatima alleged to be held in unlawful confinement.
By that order the High Court gave the appellant 10 days ' time to obey the direction.
As the direction was not complied with and Kaniz Fatima was not brought 89 into the Court, the High Court passed the second order committing the appellant for contempt and sentencing him to simple imprisonment for 3 months and to pay the costs.
The High Court was moved for a certificate but declined it by its Order dated October 14, 1960.
The present appeals have been filed by special leave granted by this Court.
On July 28, 1960, Mahesh Prashad filed a petition in the High Court of Allahabad against the Station House Officer, Kotwali Allahabad and Ikram Hussain, the appellant.
This petition purported to be under section 491, Criminal Procedure Code and article 226 of the Constitution.
Mahesh Prashad stated therein that sometime in October 1959 he made the acquaintance of Kaniz Fatima, the daughter of the appellant and a marriage between them took place on December 25, 1959 according to Vedic rites after Kaniz Fatima had embraced Hinduism.
Mahesh stated that they used to meet clandestinely and Kaniz Fatima became pregnant.
She left home in early June 1960 and went to live with him at his house No. 4, Gujrati Mohalla, Allahabad but on June 23, 1960, the Station House Officer, Kotwali Allahabad searched the house and arrested Mahesh and took away Kaniz Fatima in spite of protests on her part as also on his.
Mahesh further stated that he was 23 years of age and that Kaniz Fatima 's age, according to the record of the Allahabad municipality was 21 years and according to the medical examination at Dufferin hospital immediately after she was taken away from his house, 19 years.
He further stated mat a prosecution was started against him under sections 363, 366, 368 and 376, Indian Penal Code and that, after he was released on bail on July 15, 1960, he searched for his wife but could not find her and learnt that the appellant was keeping her confined against her wishes at Jaunpur.
He asked for a writ for the production of Kaniz Fatima in Court and for her release and swore an affidavit in support of his petition.
In answer to the notice which was issued by the High Court on July 29, 1960, the Station House Officer, and the appellant appeared before 90 the High Court and put in their affidavits.
Before we deal with those affidavits in detail we shall set down the version of the appellant in regard to the disappearance of Kaniz Fatima.
Kaniz Fatima according to the appellant was a student at the Hamidia Girls College, Allahabad, where she had enrolled herself in July 1958.
She appeared for the High School Examination of 1959 but was unsuccessful.
The result was announced about the 17th June 1960 and on June 20, 1960 Kaniz Fatima disappeared.
The appellant then filed a report in the police station house to the following effect: "To The Dy.
Superintendent Police, Allahabad.
Sir, My daughter Kaniz Fatima alias Sheela, aged about 15 years, medium fair complexion, thin body appeared in the High School Examination of 1960 from Hamidia Girls Inter College.
Unfortunately she failed in the examination.
She became very despondent.
Yesterday, the 20th of June 1960 at about 5 o 'clock in the morning she disappeared from the house and has not returned home tilt this time.
I was not in Allahabad yesterday.
I hope, she will be traced and restored to me, I shall be obliged.
Yours faithfully, Sd/ Mohd.
Ikram Hussain, 49, Zero Road, Allahabad.
" The police caused a searched to be made at the house of Mahesh on the evening of June 23, 1960 and found Kaniz Fatima in that house.
Kaniz Fatima then made a statement to the police which is Annexure 'B ' to the special leave petition No. 882 of 1960 in Criminal Appeal No. 227 of 1960.
In that statement Kaniz Fatima stated that she had appeared for the High 91 School Examination from Hamidia College, Allahabad and the result was out on June 17, 1960.
As she had failed in the examination she was very depressed and as her parents used to make sarcastic remarks she decided to leave the house and go to her aunt Sardar Begum in Rani Mandi.
Accordingly she left in the early hours of the morning but lost her way as she was a Parda girl and had no money even to hire a rickshaw.
On the way she met two men Mahesh and Sudama who offered to show her the way to Rani Mandi but instead took her to the house in Gujrati Mohalla from where she was recovered.
She alleged that they criminally assaulted her and kept her confined against her will.
She gave her age as about 15 years or 16 years but stated that she did not know the age entered in the college register.
On the next day another statement of Kaniz Fatima was recorded by the police and it is Annexure 'E ' to the petition above mentioned.
By this statement she expressed a desire to live with her father, the appellant, and the police handed her over to the appellant taking from him a 'Sapurdaginama ' (Annexure H) containing an undertaking that he would produce the said Kaniz Fatima whenever required by the police or the Court in connection with the case against Mahesh Prashad and.
others.
It is thus that the appellant got back his daughter Kaniz Fatima while Mahesh Prashad was arrested and charged with abduction and rape but was released on bail on or about July 15, 1960.
On July 28, 1960, he filed this petition for a writ of habeas corpus.
We need not concern ourselves with the affidavit of the Station Officer, Kotwali, Allahabad.
His position was quite clear.
He had handed over the girl to her father after taking a statement from her.
The appellant made a return on affidavit supporting it by an affidavit of one Ram Nath.
The appellant 's return stated the facts already narrated by us in regard to the disappearance of Kaniz Fatima and her recovery from No. 4, Gujrati Mohalla, Allahabad, He stated further that Kaniz Fatima was not with him, having disappeared for a second time in the circumstances 92 now to be narrated.
The appellant stated that Kaniz Fatima was very dejected over what had happened to her and was sent to his brother in law, Syed lqtedar Hussain, 51, Sabzi Mandi, Allahabad and his wife Mst.
Shabbiri Begum, the sister of Kaniz Fatima 's mother.
This was on July 8, 1960.
The appellant and his wife used to go to see Kaniz Fatima at that house which was less than half a mile from their house.
On July 20, 1960, Iqtedar Hussain and Shabbiri Begum informed him that Kaniz Fatima had disappeared.
He felt very dejected and his son Imdad Hussain and Iqtedar Hussain searched for the girl at the houses of all their relatives in Allahabad and also at Faizabad.
The appellant stated that he did not report to the police because of the scandal and humiliation.
He expressed his inability to bring the girl.
He stated that the allegations about the con.
version of Kaniz Fatima, her marriage and pregnancy were entirely false.
He contended that no marriage could take place because Mahesh was already married with a wife living.
The affidavit of Ram Nath was earlier filed in support of the last allegation.
The appellant now filed an affidavit by Iqtedar Hussain in support of his affidavit about the second disappearance of Kaniz Fatima.
Mahesh Prashad thereupon filed an affidavit in rejoinder by which he reiterated that he was married to Mst.
Ram Rati but alleged that he had divorced her according to the custom of the caste and that Ram Rati had remarried and was living with her husband.
He alleged that his marriage with Kaniz Fatima had taken place in the presence of respectable persons of the locality and that the story of the disappearance of Kaniz Fatima was false and she was illegally and improperly being detained against her wish by the appellant.
On this material the High Court passed the first order on August 26, 1960.
From that order it appears that the High Court did not enter into any question of fact except the age of Kaniz Fatima.
The High Court held that if Kaniz Fatima was a minor no 93 habeas corpus application would lie because the father would be the guardian but if Kaniz Fatima was major then the application was competent and Kaniz Fatima was the best person to judge for herself where she would live.
The learned Judges were of the opinion that the issue whether Mahesh and Kaniz Fatima were married was not at all relevant.
The age of Kaniz Fatima was taken by the learned Judges to be 19 years in view of the result of the medical examination and holding that she was major the learned Judges addressed themselves to what they described as the main question: Whether the appellant had Kaniz Fatima in his control ? In this connection the learned Judges referred to the undertaking given by the appellant to the police to produce Kaniz Fatima whenever required and observed that it was his duty to keep a watch on her movements.
Finding that there was no date mentioned in the affidavit regarding her second disappearance they ordered a fresh affidavit to be filed.
That affidavit was filed on the 11 th August 1960 and was supported by the affidavit of Iqtedar Hussain of the same date.
We have referred to the contents of these documents.
The learned Judges pointed out that the appellant 's conduct was somewhat strange because he had neither reported the second disappearance of Kaniz Fatima to the police nor informed the Magistrate in whose Court the criminal case was pending about it.
They were of opinion that it was also very unlikely that Kaniz Fatima who had brought such troubles on her head by running away from home would leave the house for the second time without the connivance or aid of someone, and they concluded that person could be none other than her father.
They took into consideration that the appellant had denied the fact of marriage and conversion to Hinduism on the basis of personal knowledge when this could only be on information received from Kaniz Fatima and had further sworn an affidavit about the state of mind of Kaniz Fatima immediately before her second disappearance which he could not have known unless he was present personally.
Holding, therefore, that 94 Kaniz Fatima was not minor and the petition could be proceeded with, they made an order for the production of Kaniz Fatima in Court.
The appellant did not produce the girl in obedience to the direction of the High Court and the second order was passed committing him for contempt and sentencing him as stated already.
In these appeals both these orders are challenged.
Against the first order it is contended that the High Court was in error in ordering the production of Kaniz Fatima, acting on the affidavits of Mahesh which were patently false.
Against the second order, it is contended that it was impossible for the appellant to carry out the Court 's order because Kaniz Fatima was not with him and her whereabouts were not known to him and that the committal for contempt and the punishment imposed were unjustified.
Lastly, it was urged that the sentence was too heavy.
From what we have stated above it will appear that the action of the Court is questioned on two connected but in essence entirely separate matters.
The disobedience of the order of the Court entailing punishment for contempt is a very different matter from the action taken in the habeas corpus petition.
The order of commitment for contempt presents no difficulty.
Even if the direction was inexpedient, an order had been made for bringing Kaniz Fatima before the Court and it had to be complied with unless the appellant could plead and prove his inability to comply with it.
The question whether the Court ought, on the materials present before it, to have called upon the appellant to bring Kaniz Fatima in Court is something which does not enter into the obedience of the order made.
A direction given by the High Court in a proceeding for a writ.
of habeas corpus for the production of the body of a person has to be carried out and if disobeyed the contemner is punishable by attachment and imprisonment.
A valid excuse will, however, be that it is impossible to obey the order.
95 We have heard Mr. N.C. Chatterjee in support of the contention that the appellant did not know the whereabouts of Kaniz Fatima and was unable to comply with the orders of the High Court.
We are not satisfied that the appellant could not have brought Kaniz Fatima before the Court.
His conduct belies his assertion that he did not know where Kaniz Fatima was.
When Kaniz Fatima disappeared for ' the first time the appellant lost no time in making a report to the police and the efficiency of the police was demonstrated by the discovery of Kaniz Fatima within two days.
If Kaniz Fatima disappeared a second time the appellant, unless he knew where she had gone, should logically have enlisted the support of the police immediately.
There would, of course, be no point in reporting to the police if the whereabouts were to be kept secret because the police might have found Kaniz Fatima thus proving the report to be false.
If Kaniz Fatima disappeared in mysterious circumstances it should have occurred to the appellant that perhaps Mahesh and Sudama whom she had charged with abduction and rape might have had a hand in her second disappearance and then what better move was open to the appellant than to go to the police? It is not his ease that he got disgusted and let Kaniz Fatima go her own way.
He started a search for her on his own and his son and brother visited the houses of relatives in Allahabad and his son went to Faizabad to make enquiries there.
It is clear that, on his own showing, he was anxious to find Kaniz Fatima and spared no efforts to find her but he did not enlist the support of the police.
This as stated already was very surprising because on the first occasion the police had found Kaniz Fatima almost at once and restored her to him.
The conclusion is inescapable that he avoided the police this time.
Again the High Court is right in thinking that Kaniz Fatima who had a harrowing experience would not venture out a second time.
Kaniz Fatima had stated that she had got lost when she left the house on the first occasion and that she did not know her way in the town as she had always travelled in 96 a closed rickshaw.
It would be very unlikely that she would venture out a second time.
It is not suggested that she left the house to do away with herself or to go away on her own.
These possibilities have not been canvassed before us.
Of the two alternatives which might have suggested themselves namely that she had left the house to go to some relative or was taken away by Mahesh and Sudama, neither came in the way of making a report to the police.
But if the appellant knew where Kaniz Fatima had gone and was not anxious that her whereabouts should be discovered the report to the police would not be made.
The excuse that the appellant was saving himself from scandal and humiliation cannot appeal to anyone because there was enough of scandal and humiliation already and little could be added to it.
The High Court 's conclusion that the appellant was harbouring Kaniz Fatima and keeping her hidden was impeccable.
In these circumstances, we are of opinion that when the Court did make an order for the production of Kaniz Fatima even if another court would have taken some other steps it had to be carried out unless it was impossible for the appellant to comply with it.
In our opinion the High Court 's commitment for contempt was justified because the High Court rightly reached the conclusion that the appellant having the knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court.
In so far as the offence of contempt is concerned there was a manifest disobedience of the order and the High Court could punish it brevi manu by ordering the appellant to be detained in prison.
The High Court 's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record.
The learned Judges were perhaps in error in describing it as contempt in facie curiae.
That is contempt of a different sort.
This was contempt by disobedience of an order of the High Court which is sometimes a civil contempt 97 punishable under the Code of Civil Procedure and sometimes a criminal contempt punishable by imprisonment.
The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the term for which a person can be imprisoned to six months simple imprisonment.
The High Court was justified in punishing this contempt.
In view of the grossness of the contempt it cannot be said that the punishment of three months simple imprisonment was excessive.
We therefore decline to interfere with the order of September 16, 1960.
Criminal Appeal No. 227 of 1960 against that order is dismissed.
The first order by which Kaniz Fatima was ordered to be brought into Court was questioned on the ground of want of jurisdiction and for irregularity in the exercise of that jurisdiction.
The High Court acted with jurisdiction.
The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention.
At Common Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was wrongfully detained by anyone from him without her consent.
What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy.
There was also no material irregularity vitiating the order for inexpediency is not the same thing as irregularity and all that has been pointed out is that the High Court acted without sufficient enquiry and deliberation.
We shall say something about this because this criticism is perhaps justified.
Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used.
Then there is the remedy of a civil suit for restitution of conjugal rights.
Husbands take re 1 SCI/64 7 98 course to the latter when the detention does not amount to an offence and to the former if it does.
In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established.
This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case.
It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ.
In the present case the police had before them a report by the appellant that Kaniz Fatima had not returned home and on search the police found her in a house where she normally would not be found unless she went there herself or was carried there against her will.
The police arrested Mahesh in the house and examined Kaniz Fatima and her statement was as follows: " . . . . .
I had sat for the High School Examination from the Hamidia College, Allahabad this year i.e. 1960.
The result was out on the 17th of June 1960.
I failed in the examination, I felt much depressed, as it was at my instance that my parents had sent me to study in the school.
On my having failed, my parents often passed sarcastic remarks at me.
I felt much grieved and made up my mind to leave the house and move away for some time to the house of my aunt (mother 's sister) named Sardar Begum, who was married to Shri Ziarat Hussain and was living at Rani Mandi.
Therefore, I left my house for Rani Mandi in the very early hours as I had been to Rani Mandi on the screened rickshaw from my house several times, therefore, I thought that I would find out my way.
As I had left the house without the knowledge of my parents, hence I had no money with me even to hire a rickshaw to go to Rani Mandi.
I was proceeding for Rani Mandi when I lost the way and when I could not find the way 99 to Rani Mandi even after covering a long distance, these two men Mahesh and Sudama met me in the way.
1 inquired from them about the way.
Thereupon Mahesh told me that they would lead me to Rani Mandi.
Having pretended to take me to Rani Mandi Mahesh fraudulently took me to that house in Gujrati Mohalla from where I have been recovered.
In addition to Mahesh, his companion Sudama was also there.
Being pushed in, I was thrust in the house from where I have been recovered.
Since then, I have been kept in concealment in that house against my will up to this day.
They have committed the bad act with me by force.
My age is about 15 or 16 years.
1 don 't know my age in the college register.
" Later Kaniz Fatima stated in writing that she wanted to return to the appellant.
Kaniz Fatima had described her age as 15 or 16 years and in view of her allegation that she was compelled to sexual intercourse and brought to the house by a trick, offences under sections 363,366 or 368, Indian Penal Code, depending on her age, and section 376, Indian Penal Code were alleged against Mahesh.
If Kaniz Fatima was below 18 years of age there would be an offence under section 368, Indian Penal Code at the very least unless she was married to Mahesh because Mahesh admitted that he had sexual intercourse with her.
In these circumstances, with a prosecution pending against Mahesh the learned Judges might well have satisfied themselves first about the factum of marriage and the age of the girl with more circumspection.
A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course.
Though a writ of right, it is not a writ of course especially when a man seeks the assistance of the Court to regain the custody of a woman.
Before a Court accedes to this request it must satisfy itself at least prirna facie that the person claiming the writ is in fact the husband and further whether valid marriage between him and the woman could at all have taken place.
100 In the present case Kaniz Fatima was stated to be under the age of 18.
There were two certified copies from school registers which showed that on June 20, 1960 she was under 17 years of age.
There were also the affidavit of the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age.
These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam.
As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age.
They relied upon what was said to have been mentioned in a report of the Doctor who examined Kaniz Fatima, though that report was not before them.
Reference to it was made in the affidavits of Mahesh and the Sub Inspector which were both hearsay and not admissible under the Evidence Act in proof of the contents of a document.
The primary documentary evidence ought to have been summoned.
The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it.
With regard to the marriage, the learned Judges referred to the denial by the appellant on personal knowledge that conversion to Hinduism or marriage had taken place but they did not look into the affidavits of Mahesh himself on the subject.
These affidavits create some doubt.
Mahesh stated that he first met Kaniz Fatima on the 25th October, 1959 and that they fell in love with each other and decided to marry but "there were hurdles in their way" and marriage with the "consent of their respective parents became impossible".
Ram Nath 's affidavit (part of which even Mahesh accepted) showed that Mahesh 's father was dead and his mother had remarried.
There would have been very little difficulty with regard to his parents, if there were any.
The question of the consent of the parents of Kaniz Fatima never arose.
The marriage surprisingly enough was said to have taken place two months after the first meeting and the date mentioned was Dec. 25, 1959.
The 101 affidavit of the appellant was that 25th December, 1959 was a holiday and Kaniz Fatima was with him and that no conversion or marriage had taken place that day.
The appellant 's affidavit on personal knowledge that no marriage had taken place was therefore a proper affidavit.
It could not be stated that he could not swear to such a fact on personal knowledge.
The affidavits of Mahesh filed from time to time showed contradictions which apparently went unnoticed.
In his first affidavit filed with the petition he stated that Kaniz Fatima and he had decided to get married "secretly" and that the marriage was done without the knowledge of the parents of either party to the marriage and that he and Kaniz Fatima met after marriage "only clandestinely".
In another affidavit he stated that the marriage took place "at the residence of the applicant amidst the respectable persons of the Mohalla and the community" which could hardly be called a 'secret ' marriage.
In the same affidavit he also stated that since marriage Kaniz Fatima and he "were living together and cohabited in the aforesaid premises" and that it was only "after the lapse of four months" that Kaniz Fatima was taken away from his house.
His exact words have been reproduced from his affidavits.
This contradiction was pointed out in the affidavits of the appellant but the learned Judges declined to go into it because they were of opinion that the question of marriage and other questions arising therefrom were irrelevant.
The learned Judges did not see that even the eligibility of Mahesh to marry Kaniz Fatima was called in question because it was alleged on affidavit that he had a wife already living.
Under sections 5 and 11 of the Hindu Marriage Act (XXV of 1955) a second marriage, with a previous married wife living, is null and void.
Mahesh admitted that he was previously married but he stated that he had divorced his wife according to the custom of the caste and that his former wife married another person and was living with him.
The learned Judges referred to these facts and merely stated that as he was a Kori or Kachhi, divorce was possible but did not try to 102 ascertain whether divorce as alleged had taken place or not.
These were some of the circumstances which remained undetermined when the Court ordered the production of the girl in Court.
There is no doubt that the proceeding is a discretionary one.
Whether the Court feels satisfied with one affidavit or with another is a matter mainly of its opinion and conviction.
The learned Judges must have felt impressed by the affidavit of Mahesh, because there was nothing else before them in support of his version.
They did not ask him to produce affidavits from the respectable persons of the "Mohalla and community" before whom the marriage and conversion was said to have taken place or even to produce the photograph which he asserted was taken of Kaniz Fatima and himself by a photographer, Inspite of this if they ordered the production of Kaniz Fatima they acted with jurisdiction.
Even if some other person may consider the order inexpedient, the order had to be carried out unless it was impossible for the appellant to comply with it.
For his refusal to comply with it he has been punished and we need express no sympathy with him but we cannot help expressing a sense of doubt about the truth of some of the statements of Mahesh in his affidavits.
In our opinion the writ nisi in this case for the production of Kaniz Fatima should have been preceded by some more enquiry.
It is wrong to think that in habeas corpus proceedings the court is prohibited from ordering an inquiry into a fact.
All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received, if the Court requires it.
No such absolute rule was brought to our notice.
It may be that further evidence would have borne 'out what Mahesh stated and then the order could always be passed for the production of Kaniz Fatima; but if the evidence did not bear out what Mahesh alleged then the order which the appellant disobeyed and for which he has to suffer 103 imprisonment would never have been passed.
The learned Judges failed to notice that Mahesh 's affidavit was that she was pregnant 'for 6 months and not as they state that she ran away early in June 1960 because she became pregnant.
It would be difficult to hide such an advanced pregnancy till June 20, 1960 when she, left the house.
It remains to mention that Mahesh made several other wild assertions which he swore on personal knowledge of whom a few are quoted here as illustrations: ". . . .
They in fact want to marry the deponent 's wife to some person belonging to their own community and religious order, knowing it full well that the deponent has legally wedded Smt.
Kaniz Fatima and both of them were living together as husband and wife." "That the parents of the deponents wife wish to procure abortion of the conception which she is presently carrying and thereby cause criminal mischief to the deponent 's married life and happiness and marry her again to some other person of their caste and community and religious order.
" "That the deponent further apprehends that the police of police station Kotwali in league with the parents of the deponent 's wife are detaining her against her wishes, illegally and forcefully with a view to use her for immoral and criminal inter course and purpose.
" These statements some of which could not be true to his personal knowledge went without comment.
The aftermath may now be mentioned.
Mahesh did not appear in this Court.
The notice issued by the Supreme Court to Mahesh was returned with the endorsement that he had left the house without leaving an address behind.
As a result of these proceedings, we were informed the police dropped the criminal case.
The petition for habeas corpus was not renewed or pressed again in the High Court.
Mahesh apparently ceased to take any interest in this case, his wife 104 and his child for whose safety he was so solicitous.
Mahesh saved himself from penal consequences if his act in any way had amounted to a crime, and the appellant in trying to save his daughter from him overreached himself and suffered penalty under the law.
The High Court relied upon certain cases and Mr. N.C. Chatterjee attempted to distinguish them.
The cases referred to by Mr. Chatterjee were The Queen vs Barnardo(1), The Queen vs Barnardo(2), and Thomas John Barnardo vs Mary Ford(3).
We do not consider it necessary to refer to them because the principles on which a person is released from private detention and custody are well settled and also well known.
The High Court can always order the production of the body of a person illegally detained and can punish disobedience of its order by attachment and commitment.
There is neither doubt nor complexity in this proposition, once it is held that the disobedience was wailful.
We pass no order in the other appeal but we hope that if Mahesh renews the petition, the High Court will put him to strict proof of his allegations regarding the age, the conversion of Kaniz Fatima and his marriage with her and his lack of interest in her welfare for over three years before ordering a second time that Kaniz Fatima be brought into Court.
No. 227 of 1960.
Dismissed.
No. 228 of 1960.
No orders passed (1) 23 Q.B.D., p.305.
(2) 24 Q.B.D., p.283.

summary/full:
Proceedings under section 491 of the Code of Criminal Procedure and article 226 of the Constitution of India were started by one Mahesh for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant, her father and for delivery of the said Kaniz Fatima to him.
On August 26, 1960, the High Court passed an order by which the objections of the appellant were overruled and he was directed to bring before the Court Kaniz Fatima alleged to be held in unlawful confinement.
The appellant was given ten days time to obey the direction.
As the direction was not complied with and Kaniz Fatima was not produced in Court 87 the High Court passed another order on September 16, 1960 by which the appellant was committed for contempt and sentenced to simple imprisonment for three months and to pay the costs.
The appellant came to this Court by special leave against the orders of the High Court.
Held: The order of the High Court committing the appellant for contempt was justified because the High Court rightly reached the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court.
In so far as the offence of contempt was concerned, there was manifest disobedience of the order and the High Court could punish by ordering the appellant to be detained in prison.
(ii) A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention.
At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent.
Hence the order of the High Court was not without jurisdiction.
However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law.
In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used.
There is also the remedy of a civil suit for restitution of conjugal rights.
In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established.
This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case.
That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ.
A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course.
Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman.
Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.
(iii) The writ nisi for the production of Kaniz Fatima should have been preceded by some more inquiry.
It is wrong to think that in habeas corpus proceedings the Court is prohibited from ordering an inquiry into a fact.
All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received if the court requires it.
The Queen vs Barnardo, ; The Queen vs Barnardo, and Thomas, John Barnardo v, Mary Ford, , referred to. 88


judgement:
Appeal No. 472 of 1962.
Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958.
R.K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants.
S.V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent.
October 23, 1963.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court.
The appellant was in the service of the Union of India.
He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954.
The appointment was temporary and his services were liable to be terminated on one month 's notice on either side.
He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954.
He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954.
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him.
He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him.
Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him.
The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954.
While he was at Bombay he received the notice terminating his services.
He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him.
He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside.
It was further contended that if r. 5 applied to him, it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory.
The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service.
There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give.
The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13, 1954.
It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated.
It was admitted that the memo.
dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should not be taken against him.
It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive.
But as the appellant 's work was not found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement.
As his work and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee.
On these pleadings three main questions arose for decision before the trial court, namely, (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply, to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by article 16 of the Constitution, and (iii) even if the appellant was a temporary government servant, whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case.
The trial court held on all these points against the appellant and dismissed the stilt.
The appellant then went in appeal to the High Court.
The High Court agreed with the trial court and dismissed the appeal.
The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.
195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him.
If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision.
Rule 3 of the Rules, which falls for consideration in this connection, is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time.
" The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3, a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses.
It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl.
The appellant thus reads the word "or" between the two sub clauses.
On the other hand, the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service.
In this connection our attention was drawn to two cases of this Court in which this rule was mentioned.
In Parshotam Lal Dhingra vs Union of India,(1) this Court, when referring to r. 3 at p. 858, used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses.
Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses.
We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration.
The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307, this Court used the word "and" between the two subclauses.
That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager, Government of India Press, New Delhi, 1959, contains the word "and" between the two sub clauses in r. 3.
That also in our opinion is not conclusive in favour of the respondent, because it is not disputed before us that in the Government gazette where the Rules were first published, neither the word "and" nor the word "or" appears between the two sub clauses of r. 3.
This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us.
The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively.
We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct.
The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom.
45. 197 who had come to India on account of the Partition.
This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service.
Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent.
Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date.
" R, de 3 therefore must be read with r. 2(b) which defines "quasi permanent service".
Under r. 2(b), quasi permanent service begins from the date on which a declaration is issued under r. 3.
It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3, for that is the sine quo non for the commencement of quasi permanent service.
Without such a declaration quasi permanent service cannot begin.
If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service, if only the first sub clause has been fulfilled, viz., that he has been in continuous government service for more than three years, there will be complete irreconcilability between r. 2(b) and the first clause of r. 3.
Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect.
It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively.
198 We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3.
The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service.
This will in our opinion also be clear from the scheme of the Rules following r. 3.
Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect.
" This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued.
Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service.
" Now under the definition of r. 2(b), quasi permanent service begins with a declaration issued under sub cl.
(1)of r. 3.
Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made.
This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service.
Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service.
This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3.
Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post.
Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made.
Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances.
This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service.
This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee.
Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension.
Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi permanent employee.
The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee.
Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl.
(1) but will get none of the advantages mentioned above.
We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub cl.
(ii)of r. 3.
It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub cl.
(ii) of r. 3 has ever been made in his case.
He cannot therefore claim to be in quasi permanent service.
It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service.
If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of article 311.
As he is not entitled to the benefit of r. 6, he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service.
The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954.
The rule that applies to a temporary government servant is r. 5 which lays down that "(a) the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned.
This rule is being attacked on the ground that it is hit by article 16, which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
We have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity.
These Rules show that there are two classes of employees namely, (i) permanent employees, and(ii) temporary employees, the latter being divided into two sub clauses (a) quasi permanent, and (b) temporary.
It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate.
There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees.
Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees.
It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service.
We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service.
We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service.
But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16.
The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances.
In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service.
We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16.
The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail.
It is next urged that even if r. 5 is good, the order by which the appellant 's services were dispensed with was bad, because it was discriminatory.
In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had.
We are of opinion that there is no force in this contention.
This is not a case where services of a temporary employee are being retrenched because of the abolition of a post.
In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office.
In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination.
The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory.
We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground.
that his conduct is not satisfactory there can in our opinion be no question of any discrimination.
It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is.
Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct.
A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory.
We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner.
We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution, even though he was a temporary government servant.
It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India(").
But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1), namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished.
Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant.
It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case.
Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants.
It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily.
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end.
In that case there is nothing further to be said and his services terminate when the post comes to an end.
Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end.
But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work.
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure.
This dissatisfaction with the work and,/or conduct of a temporary servant (1) ; 205 may arise on complaint against him.
In such cases two courses are open to government.
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct.
Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of article 311(2).
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work.
In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered.
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him.
An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice.
This is what is known as a formal departmental enquiry into the conduct of a public servant.
In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him.
He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so.
After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned.
The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted 206 on the public servant concerned.
It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him.
This procedure is required by article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank.
The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh.
Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused.
Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason.
Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant.
Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right.
In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired, and after considering his explanation he was compulsorily retired under the relevant service rule.
It was held in that case that this did not amount to punishment within the meaning of article 311(2), even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired.
As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts.
The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2).
Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service.
Let us now turn to the facts of this case.
On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India.
By that memorandum he was informed about four matters and his explanation was called in that connection.
The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice.
The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made.
Instances of these were also brought to his notice.
The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken.
The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director.
He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should not be taken against him.
The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him.
Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him.
It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him.
But though this may appear to be so, what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it.
It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant, though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive.
In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant.
This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further.
It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence.
It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped.
That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad.
The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement.
The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay.
On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5.
We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory.
The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case("), the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated.
In Shyamlal 's case(1) also at one stage, the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry.
This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory.
The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2).
We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does not amount to infliction of the penalty of dismissal or removal.
It remains now to consider certain cases on which reliance was placed on either side.
Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3).
In that case Madan Gopal was a temporary government servant.
A charge sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases.
He was also asked to explain why disciplinary action should not be taken against him.
He was further asked to state if he wanted to be heard in person and also to put forth any defence.
It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum.
Further the charge sheet in Madan Gopal 's case(,) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose.
Further in Madan Gopal 's case(,) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner.
The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately.
On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer.
The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice.
Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did not use the word "dismiss" or "remove" in his order.
In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry, article 311(2) should have been complied with.
The facts of that case in our opinion are very different from the facts in the present case.
(1) [1963] 3 S.C.R. 716.
(2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29, 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer.
Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped.
The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services.
On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal.
The next case is The State of Bihar vs Gopi Kishore Prasad(1).
That was a case of a probationer and this Court laid down five propositions therein.
It is the third proposition therein on which strong reliance has been placed on behalf of the appellant.
It is in these terms : "But, if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career.
In such a case he is entitled to the protection of article 311(2) of the Constitution.
" it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689.
214 stand more or less on the same footing the protection of article 311(2) would be available.
We are of opinion that this is reading much more in the proposition then was ever intended by this Court.
In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified.
The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged.
His explanation was then considered and the Government finally decided to discharge him.
The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that.
In those circumstances this Court held that as government had purported to take action under article 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned.
The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311.
All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.
Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R, 215 vs Ram Narayan Das,(1) which was also a case of a probationer.
In Ram Narayan Das 's case,(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him.
This Court in Ram Narayan Das 's case(1) referred to the rules, which provided that " where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1.
Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed," which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein.
The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct.
The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination.
In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689.
216 removal.
The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied.
It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances.
The appeal therefore fails and is hereby dismissed.
In the circumstances we pass no order as to costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month 's notice on either side.
He was appointed in June 1949.
On August 1954 he was informed that his services would be terminated from September 1954.
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him.
Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him.
Certain preliminary enquiries were held against him but he was not heard therein.
No regular departmental enquiry however followed and the proceedings were dropped.
Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified.
He prayed in the suit for a declaration that the termination of his service was illegal.
He also claimed arrears of salary.
The trial Court dismissed the suit and he appealed to the High Court 191 without success.
The present appeal was filed on a certificate granted by the High Court.
The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 did not apply to him.
Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16.
It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution.
: (i) Sub cls.
(1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service.
The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl.
(2) of r. 3.
This being the position, since no declaration has been made in his case, the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service.
Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service.
B.M. Pandit vs Union of India, A.I.R. 1962 Bom.
45, Purshottarn Lal Dhingra vs Union of India, ; and K.S. Srinivasan vs Union of India, ; , distinguished.
(ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16.
The classification of Government servants into permanent, quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory.
(iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease, on the ground that his conduct is not satisfactory there cannot be any question of any discrimination.
The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected.
(iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants, if the Government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank.
purshottam Lal Dhingra vs Union of India, ; Held, that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2).
Such a preliminary enquiry may even be held ex parte.
It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311.
Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India, ; , explained.
Held, that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him.
Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action, it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory.
Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689.
State of Orissa vs Ram Narayan Das, ; and, Jagdish Mitter vs Union of India, A.I.R. distinguished.