PETITIONER:
PRADYAT KUMAR BOSE
Vs.
RESPONDENT:
THE HON’BLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT.
DATE OF JUDGMENT:
23/12/1955
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
BOSE, VIVIAN
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION:
1956 AIR 285 1955 SCR (2)1331
ACT:
Calcutta High Court-Letters Patent 1865 as amended in
1919–Clause 8 read with clause 4–Chief Justice–Power of
appointment–Whether includes power of dismissal–Delegation
of enquiry into charges by Chief Justice to another
Judge–Competency thereof–Power to appoint or dismiss an
officer–Whether on administrative power Dismissal of an
official by Chief Justice–Whether prior consultation of
public service Commission necessary–Constitution of India,
Arts. 229, 313, 320(3) and 367(1)–General Clauses Act, 1897
(Act X of 1897), s. 16.
HEADNOTE:
The appellant was appointed in March 1948 by the Chief
Justice of the Calcutta High Court as Registrar and
Accountant-General of the High Court on its original side
and confirmed therein in November 1948. He was dismissed
from that post with effect from 1st September 1951 by the
Chief Justice by his order dated 3rd September 1951. There
were various charges against the appellant and Mr. Justice
Das Gupta was deputed by the Chief Justice to make an
enquiry and submit a report. Mr. Justice Das Gupta made a
full enquiry and submitted a report in which he exonerated
the appellant in respect of some of the charges but found
him guilty in respect of other charges. His conclusion was
that the appellant must be held guilty of misconduct and
dishonest conduct and that he was unfit to hold the office
of Registrar of the Original Side of the Calcutta High
Court. The Chief Justice issued notice to the appellant
intimating that he agreed with the report and asked him to
show cause why he should not be dismissed from his post.
After be was given an opportunity to show cause, the
appellant was dismissed by an order of the Chief Justice.
The appellant’s petition to the Governor for the
cancellation of the above order was dismissed. Subsequently
his application for review to the Chief Justice of the prior
order of dismissal and a writ petition under Art. 226 of the
Constitution filed in the High Court in respect of his
dismissal were also dismissed one after the other. The
appellant obtained leave to appeal to the Supreme Court.
The three main points for consideration by the Supreme Court
were:
1. Whether the Chief Justice of the High Court had no
power to dismiss the appellant;
2. Even if the Chief Justice had such power whether be
could not delegate the enquiry into the charges to another
Judge but should have made the enquiry himself; and
168
1332
3. Whether the order of dismissal by the Chief Justice
could have been passed without previous consultation with
the Public Services Commission as provided by Art. 320 of
the Constitution.
Held (1) that the Chief Justice was competent to dismiss
the appellant because both by virtue of the provisions of
clause 8 of the Letters Patent of the Calcutta High Court
read with clause 4 of the same as well as Arts. 229(1), 313
and 367(1) of the Constitution read with s. 16 of the
General Clauses Act, the power of appointment includes the
power of dismissal;
(2) the objection to the validity of dismissal on the
ground that the delegation of enquiry amounted to a
delegation of power is without substance because the
exercise of power to appoint or dismiss an officer is the
exercise not of a judicial power but of an administrative
power and it is well settled that a statutory functionary
exercising such a power cannot be said to have delegated his
function merely because he has deputed a responsible and
competent official to enquire and report; and
(3) it was not necessary to have the previous consultation
with the Public Service Commission for the dismissal of the
appellant by the Chief Justice because Art. 320(3) of the
Constitution taken as a whole is inconsistent with Art. 229
of the Constitution and also because the language thereof is
not applicable to the High Court Staff.
North-West Frontier Province v. Suraj Narain Anand ([1948]
L.R. 75 I.A. 343), Barnard v. National Dock Labour Board,
([1953] 2 Q.B. 18, 40), Board of Education v. Bice ([1911]
A.C. 179), and Local Government Board v. Arlidge ([1915]
A.C. 120), referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 245 and
202 of 1953.
Appeal under Article 132(1) of the Constitution of India
from the judgment and order dated the 27th January 1953 of
the Calcutta High Court in Matter No. 139 of 1952.
Ranadeb Chaudhry, Anil Kumar Das Gupta and Sukumar Ghose,
for the appellant.
S.M. Bose, Advocate-General,’ for West Bengal (B. Sen
and P. K. Bose, with him) for the respondent.
1955. December 23. The Judgment of the Court was
delivered by
JAGANNADHADAS J.-This is an appeal by leave of the High
Court of Calcutta under article 132(1) of the Constitution.
The appellant before us was the
1333
Registrar and Accountant-General of the High Court at
Calcutta on its Original Side. He was appointed to the post
by the Chief Justice of the High Court on the 4th March,
1948 and confirmed therein on the 15th of November, 1948.
He was dismissed therefrom with effect from the 1st
September, 1951, by an order of the Chief Justice dated the
3rd September, 1951. There were various charges against him
and Mr. Justice Das Gupta was deputed by order of the Chief
Justice dated the 28th May, 1651, to make an’ enquiry and
submit a report. Mr. Justice Das Gupta made a full enquiry
and submitted his report on the 11th August, 1951, in which
he exonerated the appellant in respect of some of the
charges but found him guilty in respect of the other
charges. The learned Judge expressed his conclusion as
follows:
“Mr. Bose (the appellant) must be held to be guilty of
misconduct and dishonest conduct and (that) he is unfit to
hold the office of Registrar of the Original Side of this
Court”.
The Chief Justice issued to the appellant a notice on the
16th August, 1951, intimating that be agreed with the report
after careful consideration thereof and asking him to show
cause why he should Dot be dismissed from his post. The
appellant was given a hearing by the Chief Justice on the
31st August, 1951. The order dated the 3rd September, 1951,
of the Chief Justice dismissing the appellant from his
office, a copy of which was served on him, runs as follows:
“A full and thorough enquiry was held by Mr. Justice K. C.
Das Gupta into the charges made against Sri P. K. Bose the
Registrar of the Original Side of this Court. Sri P. K.
Bose was represented by eminent Counsel and every
opportunity was given to him to meet the charges and put
forward his explanation and defence. The learned Judge
however in a full and very carefully considered report found
Sri P. K. Bose guilty of serious charges involving moral
turpitude and dishonesty and further -he was of opinion that
Sri P. K. Bose was by reason thereof unfit to hold the said
office of Registrar.
I considered this report and the evidence most
1334
anxiously and found myself in entire agreement with the
learned Judge. Sri P. K. Bose was, in my view, clearly
guilty of the matter comprised in the charges specified by’
Mr. Justice K. C. Das Gupta. I considered that prima facie
the conduct of Sri P. K. Bose warranted dismissal and I
therefore gave him notice under article 311(2) of the
Constitution of India to show cause against the action
proposed against him, namely, dismissal.
On the 31st august, 1951, Sri P.K. Bose showed cause
before me and I heard Sri Sachin Chaudhuri his counsel and
Sri P. K. Bose personally. In all the circumstances this is
not a case in which I can properly show any leniency. Sri
P. K. Bose has abused the trust and confidence reposed in
him and has been found guilty of serious malpractices and
dishonesty. Conduct such as this of an officer of the
status of the Registrar of the Original Side of this Court
is unpardonable and must be dealt with severely. I there-
fore dismiss Sri P. K. Bose from his office as Registrar of
the Original Side of the Court, the dismissal to take effect
from the 1st September, 1951.
Let a copy of this order be served on Sri P. K. Bose”.
On the 25th January, 1952, the appellant submitted a
petition to the Governor of West Bengal for cancellation of
the above order. He received intimation dated the 9th July,
1952, that the “Governor declines to interfere on his
behalf”. Thereupon he filed an application to the Chief
Justice for review of the prior order of dismissal. It may
be mentioned that it was Chief Justice, Sir Arthur Trevor
Harries, who had initiated the proceedings against the
appellant and passed the order of dismissal. He retired in
June, 1952. The application for review was made to the
successor Chief Justice, Shri P. B. Chakravarti, on the 11th
September, 1952. This application was rejected on the 16th
September, 1952. Thereafter on the 24th November, 1952,
i.e., more than an year after the order of dismissal, a writ
application was filed on the Original Side of the High Court
under article 226 of the Constitution against the Hon’ble
1335
the Chief Justice of the High Court “for calling upon him to
bring up the records of the proceedings relating to his
dismissal in order that justice may be done by quashing or
otherwise dealing with the said proceedings and the said
order dated the 3rd September, 1951, purporting to terminate
his services and for directions being given to the Chief
Justice to desist from giving effect to or acting in any
manner under the said order”. On the presentation of the
application the learned Judge on the Original Side, Mr.
Justice Bose, issued a rule nisi calling upon the Hon’ble
the Chief Justice to show cause why an order in the nature
of a writ as asked for should not be made. This order was
duly served and on its return the learned Judge made an
order referring the hearing of the application to a Special
Bench of three Judges as per the rules of the Court.
Accordingly the petition was, under the directions of the
Chief Justice, heard by three learned Judges of the High
Court, who after elaborate hearing and consideration of the
points urged on behalf of the appellant dismissed the
application. Leave to appeal to this Court was, however,
granted by them under article 132(1) on the ground that the
case involves substantial questions of law relating to
interpretation of the Constitution.
The main points that have been urged by the appellant before
us, as before the High Court, are that-
(1)the Chief Justice of the High Court had no power under
the law to dismiss him;
(2)even if he had the power, he could not delegate the
enquiry into the charges, to another Judge but should have
enquired into the same himself; and
(3)in any case the order of dismissal could not have been
passed in the absence of previous consultation with the
Public Service Commission of the State as provided under
article 320 of the Constitution. On behalf of the
respondent, i.e., the Hon’ble the Chief Justice of the High
Court at Calcutta, the learned Advocate-General of West
Bengal has
1336
appeared before us. In addition to controverting the
correctness of the above contentions raised on behalf of the
appellant, he strongly urged that-
(1)no writ could issue from the High Court against its own
Chief Justice;
(2)the order of the Chief Justice, the validity of which is
being challenged, is a purely administrative order against
which no application for writ is maintainable; and
(3)this was not a case in which having regard to all the
circumstances, any application by way of a writ should have
been entertained.
The points urged on behalf of the appellant may first be
taken up. The most important out of them is the one
relating to the authority of the Chief Justice to pass the
order of dismissal as against the appellant.
It is beyond dispute that the Chief Justice is the authority
for appointing the appellant. It was in fact the Chief
Justice who appointed the appellant and confirmed him. But
it is strongly urged that he had not the power to dismiss.
This argument is based on the assumption that the appellant
falls within the category of public servants who are
governed by the Civil Services (Classification, Control and
Appeal) Rules, (hereinafter referred to as the Civil
Services Rules) of the year 1930 as amended from time to
time and that the said rules continue to apply, to an
officer holding the post which he did, even after the
Government of India Act, 1935, and later the Constitution of
India of 1950 successively came into force. I the argument
recognises the fact that dismissal is a matter which falls
within conditions of service of a public servant as held by
the Privy Council in North-West Frontier Province v. Suraj
Narain Anand(1) and that the power of making rules relating
to conditions of service of the staff of the High Courts is
vested in the Chief Justice of the Court under section
242(4) taken with section 241 of the Government of India
Act, 1935, as also under article 229(2) of the Constitution
of India, 1950. But
(1) [1948] L.R. 75 I.A. 843.
1337
it is said that no such rules have been framed by the Chief
Justice, and that therefore by virtue of section 276 of the
Government of India Act, 1935, and article 313 of the
Constitution, the Civil Services Rules continued to apply to
him, It is necessary to examine the correctness of these
assumptions.
The Civil Services Rules were framed by the Secretary of
State in Council under powers vested in him by section 96-
B(2) of the Government of India Act, 1915, as amended in
1919. These rules were framed on the 19th June, 1930, and
published on the 21st June, 1930. It is desirable therefore
to consider the position relating to the staff of the High
Courts before that date. It is not disputed that the said
position was governed by the Letters Patent of the High
Court. Clause 8 of the Letters Patent of 1865 as amended in
1919, which continues to be operative, as also clause 4
thereof, are relevant for the present purpose. They are as
follows:
“8. We do hereby authorize and empower the Chief Justice of
the said High Court of Judicature at Fort William in Bengal,
from time to time, as occasion may require, and subject to
any rules and restrictions which may be prescribed by the
Governor-General in Council, to appoint so many and such
clerks and other ministerial officers as shall be found
necessary for the administration of justice, and the due
execution of all the powers and authorities granted and
committed to the said High Court by these Our Letters
Patent. And it is Our further will and pleasure and We do
hereby for Us, Our heirs and successors give grant, direct,
and appoint, that all and every the officers and clerks to
be appointed as aforesaid shall have and receive
respectively such reasonable salaries as the Chief Justice
shall, from time to time, appoint for each office and place
respectively, and as the Governor-General in Council shall
approve of. Provided always, and it is Our will and
pleasure, that all and every the officers and clerks to be
appointed as aforesaid shall be resident within the limits
of the jurisdiction of the said Court, so long as they shall
hold their respective offices; but
1338
this proviso shall not interfere with or prejudice the right
of any officer or clerk to avail himself of leave of absence
under any rules prescribed by the Governor-General in
Council, and to absent himself from the said limits during
the term of such leave, in accordance with the said rules”.
“4. We do hereby appoint and ordain, that every clerk and
ministerial officer of the said High Court of Judicature at
Fort William in Bengal, appointed by virtue of the said
Letters Patent of the Fourteenth of May, One thousand eight
hundred and sixty-two, shall continue to hold and enjoy his
office and employment, with the salary thereunto annexed,
until he be removed from such office and employment; and he
shall be subject to the like power of removal, regulations,
and provisions if he were appointed by virtue of
these Letters Patent”.
It will be noticed that clause 8 specifically vests in the
Chief Justice the power of appointment, but makes no mention
of the power of removal or of making regulations or
provisions. But it is obvious from the last portion of
clause 4 that such power was taken to be implicit under
clause 8 and presumably as arising from the power of
appointment.
It may be mentioned that under clause 10 of the Charter of
the Supreme Court of Calcutta issued in 1774, the said Court
also was in specific terms “authorized and empowered from
time to time, as occasion may require, to appoint so many
and such clerks and other ministerial officers as shall be
found necessary for the administration of justice”. The
power of removal or of taking other disciplinary action as
regards such appointees was not in terms granted. But there
is historical evidence to show that the power of appointment
conferred under the Charter was always understood as
comprising the above powers. Sir Charles Wood, the then
Secretary of State for India in paragraph 10 of his dispatch
to the Governor-General dated the 17th May, 1862, (on the
formation of the new High Courts) stated as follows:
“The Supreme Court exercises an authority entirely
independent of the Government in respect of
1339
its ministerial officers”.
It is this power and authority along with other judicial
power and authority that was succeeded to by the High Courts
(on their formation in supersession of the Supreme and Sadar
Courts) by virtue of section 9 of the Indian High Courts
Act, in the following terms.
“Each of the High Courts to be established under the Act
shall have and exercise all jurisdiction and every power
and authority whatsoever in any manner vested in any of the
Courts ……………. abolished under this Act ……..”
Thus it is clear that both under the Charter of the Supreme
Court as well as under the Letters Patent of the High Court,
the power of appointment was throughout understood as
vesting in the High Court or the Chief Justice, the complete
administrative and disciplinary control over its staff,
including the power of dismissal.
There can be no doubt that this position continued at least
until the Government of India Act, 1915. Now, section 106
of the Government of India Act, 1915, in terms continued the
above by providing that the jurisdiction of the High Court
would “include all such powers and authority over and in
relation to the administration of justice including power to
appoint clerks and other ministerial officers of the Court
as are vested in them by Letters Patent”. It follows that
the position continued to be the same even under the
Government of India Act, 1915, at any rate up to 1930, when
the Civil Services Rules came into operation. All the
powers under the Letters Patent were, however, subject to
alteration by competent legislative authority by virtue of
clause 44 of the Letters Patent. Clause 8 of the Letters
Patent itself provided that the power of appointment of the
Chief Justice was to be “subject to rules and restrictions
which may be prescribed by the Governor-General in Council”.
Now, the Civil Services Rules were made by the Secretary of
State in Council under section 96-B of the Government of
India Act, 1915. It is the case of the appellant that
though the
169
1340
Civil Services Rules framed by virtue of delegated power
under the Act could not override the specific power of
appointment vested in the Chief Justice by virtue of section
106 thereof, they would override the alleged implications of
that power such as the power of dismissal and power to frame
rules relating to conditions of service in so far as they
are specifically provided for under the Civil Services
Rules. It is further urged that the said situation
continues up to date by virtue of section 276 of the
Government of India Act, 1935 and article 313 of the
Constitution, Now, the appellant is a person who was
appointed in 1948 and dismissed in 1951. It is, therefore,
desirable in the first instance to examine the situation
under the Government of India Act, 1935 and under the
Constitution of 1950 on the assumption that the Civil
Services Rules made a change in the prior situation so far
as the High Court staff is concerned and applied thereto
between 1930 and 1935.
Under the Government of India Act, 1935, the position
relating to the Civil Services of the Crown in India is
contained in a number of general provisions in Chapter 11 of
Part X thereof Section 240(1) reiterates what was first
statutorily declared by section 96-B of the 1915 Act, viz.,
that except as expressly provided by the Act every, person
who is a member of a civil service of the Crown in India, or
holds any civil post under the Crown in India, holds office
during His Majesty’s pleasure. Section 241 provides for the
recruitment and conditions of service of such persons and
prescribes the various authorities who can make the
appointments and frame the rules relating to conditions of
service. Section 242(4), in so far as it is relevant for
the present purpose, provides that section 241 in its
application to appointments to and to persons serving on the
staff attached to a High Court shall have effect as if, in
the case of a High Court, for any reference to the Governor
in paragraph (b) of section (1), in paragraph (a) of sub-
section (2) and in sub-section (5), there was substituted a
reference to the Chief Justice of the Court. Making the
necessary substitutions as prescribed
1341
above, the statutory provisions in the Government of India
Act, 1935, relating to recruitment and conditions of service
of the staff of the High Court may be read as follows:
“(1) Appointments to the Civil Services and civil posts
under the Crown in India in relation to the staff attached
to the High Court shall be made by the Chief Justice or such
person as he may direct.
(2)The conditions of service of persons serving. His
Majesty in relation to the staff attached to the High Court
shall be made by the Chief Justice of the High Court or by
some person or persons authorised by him to make the rules
for the purpose.
Provided that-
(a)the Governor may in his discretion require that in such
cases as he may in his discretion direct no person not
already attached to the court shall be appointed to any
office connected with the Court save after consultation with
the Provincial Public Service Commission;
(b)rules made under sub-section (2) by a Chief Justice
shall,, so far as they relate to salaries, allowances, leave
or pensions, require the approval of the Governor”.
These sections, while keeping intact the power of ap-
pointment of the members of the staff of the High Court with
the Chief Justice as contained in the Letters Patent,
provide, statutorily for the first time and in express terms
what was implicit in clause 8 of the Letters Patent, viz.,
that the power to regulate and frame rules relating to
conditions of service governing such staff is also vested in
the Chief Justice subject however to two limitations
indicated by the provisos mentioned above. The
corresponding provisions in the present Constitution
relating to the powers of the Chief Justice in relation to
the recruitment and service conditions of the staff of the
High Court are almost identical and are contained in article
229. They are as follows:
“229. (1) Appointments of officers and servants of a High
Court shall be made by the Chief Justice of
1342
the Court or such other Judge or officer of the Court as he
may direct:
Provided that the Governor of the State in which the High
Court has its principal seat may by rule require that in
such cases as may be specified in the rule no person not
already attached to the Court shall be appointed to any
office connected with the Court save after consultation with
the State Public Service Commission.
(2)Subject to the provisions of any law made by the
Legislature of the State, the conditions of service of
officers and servants of a High Court shall be such as may
be prescribed by rules made by the Chief Justice of the
Court or by some other Judge or officer of the Court
authorised by the Chief Justice to make rules for the
purpose:
Provided that the rules made under this clause, shall, so
far as they relate to salaries, allowances, leave or
pensions, require the approval of the Governor of the State
in which the Court has its principal seat”.
It does not appear from the record that any rules have
been made by the Chief Justice of the Calcutta High Court,
at any rate, in so far as they may be applicable to the
Registrar of the Original Side of the High Court. On the
assumption, therefore, that the Civil Services Rules applied
to the case of a person in his position between 1930 and
1935, it has got to be seen whether they continue to be so
applicable. The relevant provisions in this behalf are
section 276 of the Government of India Act, 1935, and
article 313 of the Constitution. They are as follows:
“Section 276: Until other provision is made under the
appropriate provisions of this Part of this Act, any rules
made under the Government of India Act relating to the Civil
Services of, or civil-posts under, the Crown in India which
were in force immediately before the commencement of Part
III of this Act, shall, notwithstanding the repeal of that
Act, continue in force so far as consistent with this Act,
and shall be deemed to be rules made under the appropriate
provisions of this Act”.
1343
“Article 313: Until other provision is made in this behalf
under this Constitution, all the laws in force immediately
before the commencement of this Constitution and applicable
to any public service or any post which continues to exist
after the commencement of this Constitution, as an all India
service or as service or post under the Union or a State
shall continue in force so far as consistent with the provi-
sions of this Constitution”.
Now, it has to be observed that the continuance, under
section 276 of the Government of India Act, 1935, of the
Civil Services Rules, could only be in so far as such
continuance may be consistent with the new Act. Further in
their application to the High Court staff, the rules are to
be deemed to be rules made under the appropriate provisions
of the Act. The rules, therefore, must be deemed to be
rules made by the Chief Justice consistently with the scheme
and the provisions of the Act relating to the High Court
staff which specifically vest in him the powers of
appointment and of the regulation of conditions of service
including the power of dismissal. Such continuance,
therefore, can only operate by a process of adaptation
implicitly Authorised by the very terms of section 276. It
would follow that, in their continued application to the
High Court staff, the word “Governor” has to be read as
substituted by the word “Chief Justice” wherever necessary
in the same way as section 242(4) of the Act requires the
provisions of section 241 to be read as though any reference
to the Governor therein is substituted by a reference to the
Chief Justice of the High Court. The continued application
of the Civil Services Rules without such adaptation would
result in the anomalous position, that although the 1935 Act
specifically vests in the Chief Justice the power of
appointment and of framing rules regulating conditions of
service including the power of dismissal and hence thereby
indicates the Chief Justice as the authority having the
power to exercise disciplinary control, be has no such
disciplinary control merely because he did not choose to
make any fresh rules and was content with the continued
appli-
1344
cation of the old rules. Now, the relevant provision in the
Civil Services Rules which deals with disciplinary action
including dismissal is rule 52 thereof. That rule shows
that “the Governor-General in Council or Local Government of
a Governor’s Province may impose any of the penalties
specified in rule 49 (which includes dismissal) on any
person included in any of the classes I to 5 specified in
rule 14 who is serving under the administrative control of
the Governor-General in Council or the Local Government, as
the case may be”. This rule, if it originally applied to
the High Court staff, must after 1935 be read by
substituting “Chief Justice” in the place of “the Local
Government” wherever it occurs therein and making other
consequential alterations. Thus read, there can be no doubt
that as from the commencement of the Government of India
Act, 1935, the power of dismissal of a member of the High
Court staff including, a person in the position of the
appellant, -Would vest in the Chief Justice. This would be
so even apart from the normal implication of the power of
appointment specifically recognised under the Act. It
follows that even on the assumption that Civil Services
Rules applied between 1930 and 1935 to the High Court staff
their continuance after 1935 makes a change in the
dismissing authority and the power of dismissal is vested in
the Chief Justice. That being the correct position prior to
1950, the Constitution has made no change in this respect
and article 313 would also continue rule 52 of the Civil
Services Rules as above adapted. It would, therefore,
follow that, at any rate, from the time of passing of the
Government of India Act, 1935, as also under the Constitu-
tion, the power of dismissal vests in the Chief Justice
notwithstanding that no specific rules have been made in
this behalf by the Chief Justice.
It must be mentioned, at this stage, that so far as the
power of dismissal is concerned, the position under the
Constitution of 1950 is not open to any argument or doubt.
Article 229(1) which in terms vests the power of appointment
in the Chief Justice is equally effective to vest in him the
power of dis-
1345
missal. This results from section 16 of the General Clauses
Act which by virtue of article 367(1) of the Constitution
applies to the construction of the word “appointment” in
article 229(1). Section 16 of the General Clauses Act
clearly provides that the power of “appointment” includes
the power “to suspend or dismiss”.
In view of the clear conclusion we have arrived at as
above, we do not consider it necessary to deal with the
arguments addressed to us on both sides as to the
applicability or otherwise of the Civil Services Rules to
the High Court staff, including a person in the position of
the appellant, and we express no opinion thereon. The main
contention, therefore, of the appellant as to the competency
of the Chief Justice to pass the order of dismissal against
him fails.
The further subordinate objections that have been raised
remain to be considered. The first objection that has been
urged is that even if the Chief Justice had the power to
dismiss, he was not, in exercise of that power, competent to
delegate to another Judge the enquiry into the charges but
should have made the enquiry himself. This contention
proceeds on a misapprehension of the nature of the power.
As pointed out in Barnard v. National Dock Labour Board(1)
at page 40, it is true that ”no judicial tribunal can
delegate its functions unless it is enabled to do so
expressly or by necessary implication”. But the exercise of
the power to appoint or dismiss an officer is the exercise
not of a judicial power but of an administrative power. It
is nonetheless so, by reason of the fact that an opportunity
to show cause and an enquiry simulating judicial standards
have to precede the exercise thereof It is well-recognised
that a statutory functionary exercising such a power cannot
be said to have delegated his functions merely by deputing a
responsible and competent official to enquire and report.
That is the ordinary mode of exercise of any administrative
power. What cannot be delegated except where the law
specifically so provides-is the ultimate responsibility for
the exercise
(1) [1953] 2 Q.B. 18, 40.
1846
of such power. As pointed out by the House of Lords in
Board of Education v. Rice(1), a functionary who has to
decide an administrative matter, of the nature involved in
this case, can obtain the material on which he is to act in
such manner as may be feasible and convenient, provided only
the affected party “has a fair opportunity to correct or
contradict any relevant and prejudicial material”. The
following passage from the speech of Lord Chancellor in
Local Government Board V. Arlidge (2) is apposite and in-
structive.
“My Lords, I concur in this view of the position of an
administrative body to which the decision of a question in
dispute between parties has been entrusted. The result of
its enquiry must, as I have said, be taken, in the absence
of directions in the statute to the contrary, to be intended
to be reached by its ordinary procedure. In the case of the
Local Government Board it is not doubtful what this pro-
cedure is. The Minister at the head of the Board is
directly responsible to Parliament like other Ministers. He
is responsible not only for what he himself does but for all
that is done in his department. The volume of work
entrusted to him is very great and he cannot do the great
bulk of it himself. He is expected to obtain his materials
vicariously through his officials, and he has discharged his
duty if he sees that they obtain these materials for him
properly. To try to extend his duty beyond this and to
insist that he and other members of the Board should do
everything personally would be to impair his efficiency.
Unlike a Judge in a Court he is not only at liberty but is
compelled to rely on the assistance of his staff”.
In view of the above clear statement of the law the
objection to the validity of the dismissal on the ground
that the delegation of the enquiry amounts to the delegation
of the power itself is without any substance and must be
rejected.
The second objection that has been taken is that even if the
power of dismissal is vested in the Chief Justice, the
appellant was entitled to the protection
(1) [1911] A.C. 179, 182.
(2) [1915] A.C. 120,133.
1347
of article 320(3)(c) of the Constitution. It is urged that
the dismissal in the absence of consultation with the Public
Service Commission of the State was invalid. There can be
no doubt that members of the staff in other Government
departments of the Union or the State are normally entitled
to the protection of the three constitutional safeguards
provided in articles 311(1), 311(2) and 320(3) (c). Article
320(3) (e) so far as it is relevant for the present purpose,
runs as follows:
“The Union Public Service Commission or the State Public
Service Commission, as the case may be, shall be consulted
on all disciplinary matters affecting a person serving under
the Government of India or the Government of a State in a
civil capacity, including memorials or petitions relating to
such matters”.
The phrase “all disciplinary matters affecting a person”
is sufficiently comprehensive to include any kind of
disciplinary action proposed to be taken in respect of a
particular person. The question for consideration,
therefore, is whether a person belonging to the staff of a
High Court is within the scope of the phrase (Ca person
serving under the Government of India or the Government of a
State in a civil capacity”. The learned Judges of the High
Court were of the opinion that article 320(3) can have no
application to the present case. In their view the
provisions of article 320(3) would be inconsistent with the
power vested in the Chief Justice of a High Court under
article 229, as regards the appointment of officers and ser-
vants of a High Court and hence also of dismissal or removal
and as regards the framing of rules prescribing conditions
of service of such officers or servants. They also point
out that the proviso to article 229(1) indicates the
requirement that the State Public Service Commission should
be consulted only in respect of the specific cases of future
appointments and that too if the Governor of the State so
requires by rule. They take this and the fact that under
the Constitution the provisions relating to High Court staff
are taken out of Part XIV relating to the services, as
imply-
170
1348
ing, that in the exercise of the powers vested in the Chief
Justice under article 229, consultation with the State
Public Service Commission in respect of any other matter
must be taken to have been excluded. This reasoning is not
without force. Undoubtedly there is much to be said for the
view that article 320(3) taken as a whole is inconsistent
with article 229. But it is possible to treat the
requirement of prior consultation under article 320(3) (c)
which relates to disciplinary action against individual
Government employees and which is in the nature of an
important constitutional safeguard for individual government
employees as standing on a somewhat different footing from
that under article 320(3) (a) or (b), which relate to
general matters relating to recruitments, appointments, etc.
Prior consultation in respect of individual cases may not be
considered necessarily inconsistent with the actual exercise
of the overriding power of the Chief Justice in such cases.
While, therefore, recognising the force of the view taken by
the High Court, it appears desirable to consider the
requirement under article 320(3)(c) taken by itself with
reference to the actual terms thereof, in view of the
importance of this provision as a constitutional safeguard
in cases to which it applies.
A scrutiny of the provisions in Chapter I of Part XIV of
the Constitution relating to the services shows that the
various articles in this Chapter designate the services to
which the articles relate by a variety of terminology.
Under article 309, the appropriate Legislature is vested
with the power to regulate recruitment and conditions of
service “of persons appointed to public services and posts
in connection with the affairs of the Union or of any
State”. Under article 310 “every person who is a member of
a civil service of the Union or holds any civil, post under
a State” holds office during the pleasure of the President
or, as the case may be, of the Governor or of the Rajpramukh
of the State. Under article 311 the two constitutional
safeguards, viz., (1) of not being liable to be dismissed or
removed or reduced in rank until he has been given a
reasonable opportunity
1349
of showing cause against the action proposed to be taken in
regard to him, and (2) of not being liable to be dismissed
or removed by ail authority subordinate to that by which he
was appointed, are available to “a person who is a member of
a civil service of the Union or of a civil service of a
State, or holds a civil post under the Union or a State”.
Under article 320(3)(c) however, the requirement of con-
sultation with the appropriate Public Service Commission on
disciplinary matters is available to “a person serving under
the Government of India or the Government of a State in a
civil capacity”. A close scrutiny of the terminology so
used shows a marked departure in the language of article 320
(3) (c) from that in articles 310 and 311. Officers and
members of the staff attached to a High Court clearly fall
within the scope of the phrase “persons appointed to public
services and posts in connection with the affairs of the
State” and also of the phrase “a person who is a member of a
civil service of a State” as used in articles 3lO and 311.
The salaries of these persons are paid out of the State
funds as appears from article 229(3) which provides that the
administrative expenses of a High Court including all
salaries, allowances and pensions payable to or in respect
of officers and servants of the High Court, are chargeable
upon the Consolidated Fund of a State. The item relating to
such administrative expenses has to form part of the annual
financial statement to be presented to the State Legislative
Assembly under article 202 and estimates thereof can form
the subject matter of the discussion in the Legislature
under article 203(1). They must, therefore, be taken “to
hold posts in connection with the affairs of the State and
to be members of the civil service of the State”. But can
it be said that members of the High Court staff are “persons
serving under the Government of a State in a civil capacity”
which is the phrase used in article 320(3) (c). The use of
different terminology in the various articles was not likely
to have been accidental. It is to be noticed that even
article 320 in its various clauses uses different phrases.
Article 320(1) refers to “appoint-
1350
ments to the services of the Union and the services of the
State” and the proviso to article 320(3) refers to “services
and posts in connection with the affairs of the Union and to
services and posts in connection with the affairs of the
State”. It appears, therefore, not unlikely that in using
somewhat different phraseology, the intention was to
demarcate the staff of the High Courts from the other civil
services of the Union or the State. The phrase “persons
serving under the Government of India or the Government of a
State” seems to have reference to such persons in respect of
whom the administrative control is vested in the respective
executive Governments functioning in the name of the
President or of the Governor or of a Rajpramukh. The
officers and staff of the High Court cannot be said to fall
within the scope of the above phrase because in respect of
them the administrative control is clearly vested in the
Chief Justice, who under the Constitution, has the power of
appointment and removal and of making rules for the con-
ditions of services. Articles 53, 77, 154 and 166 of the
Constitution show that while the executive power of the
Union or the State is vested, respectively, in the President
or the Governor and that executive action is to be taken in
their respective names, such action is the action of the
Government of India or the Government of a State. But the
administrative action of the Chief Justice is outside the
scope of these articles. It appears therefore that in using
the phrase “Government of India and Government of a State”
in article 320(3) (c), the Constitution had in view the
above mentioned demarcation. A close comparison of the
terminology used in the corresponding provisions of the
Government of India Act of 1935 also seems to confirm this
demarcation. Section 290 (1) of the said Act refers to
“every person who is a member of a civil service of the
Crown in India or holds any civil post under the Crown in
India” while section 266(3)(c) relates to “a person serving
His Majesty in a civil capacity in India”. A perusal of the
main paragraph of sub-section (3) of section 266 clearly
shows that it has reference to three cate-
1351
gories of services (1) Secretary of States services, (2)
Federal services under the Governor-General, and (3)
Provincial Services under the Governor. In the context of
this section, the comprehensive phrase “serving His Majesty”
seems to have been used as comprising only the above three
services and should be exclusive of the staff of the High
Court. The fact that different phrases have been used in
the relevant sections of the Government of India Act and the
Constitution,,, relating to the constitutional safeguards in
this behalf appears to be meant to emphasise the
differentiation of the services of the High Court from other
services, and to place the matter beyond any doubt as
regards the non-applicability thereto of this constitutional
protection. It may be noticed that while the constitutional
safeguards under article 311 are available to every person
in the civil service, the safeguard in article 320(3)(c) is
one capable of being taken away by regulations to be made by
the President or Governor. The Constitution itself appears,
therefore, to have classed this safeguard on a different
footing. This may well have been intended not to apply to
the High Courts. Therefore both on the ground that article
320(3)(c) would be contrary to the implication of article
229 and on the ground that the language thereof is not
applicable to the High Court staff, we are of the opinion
that for the dismissal of the appellant by the -Chief
Justice, prior consultation with the Public Service
Commission was not necessary. We accordingly hold that the
appellant was not entitled to the protection under article
320(3)(c). It follows that none of the three contentions
raised on behalf of the appellant, i.e., (1) as to the power
of the Chief Justice to dismiss him, (2) as to his
competence to delegate the enquiry to Mr. Justice Das Gupta,
and (3) as to his obligation to consult the State Public
Service Commission, have been substantiated. This
application must accordingly fail on the merits.
This would be enough to dispose of the case against the
appellant. The learned Judges of the High Court have also
dealt at some length with the question as
1352
to the maintainability of an application for a writ in a
case of this kind and of the availability of any remedy by
way of a writ against the action of the Chief Justice,
whether administrative or judicial. Arguments in this
behalf have also been strongly urged before us by the
learned Advocate-General of West Bengal. In the view,
however, that we have taken as to the contentions raised
before us regarding the validity of the order of dismissal,
we do not feel called upon to enter into the discussion
relating to the availability of the writ. We express no
opinion on the questions so raised. We consider it,
however, desirable to say that our view that the exercise of
power of dismissal of a civil servant is the exercise of
administrative power may not necessarily preclude the
availability of remedy under article 226 of the Constitution
in an appropriate case. That is a question on which we
express no opinion one way or the other in this case.
In the result the appeal must be dismissed with costs.
Along with this appeal, the appellant filed an application
to this Court for leave under article 136 to appeal against
the orders dated the 3rd September, 1951, and 16th
September, 1952, dismissing him from service and declining
to review it. In view of our judgment just delivered, that
application must also be rejected.