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TMI Blog1958 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Discipline and Appeal) Rules, 1955, (herein. after called the Rules), framed under s. 3 of the Act. He was thereafter -placed under suspension under r. 7 of the Rules pending disciplinary proceedings against him, and Shri K. L. Bhudiraja S. was appointed enquiry officer to hold the departmental enquiry against him. Notice was issued to him by the Enquiry Officer in July 1958. He thereupon immediately made an application under Art. 226 of the Constitution before the Punjab High Court challenging the constitutionality of the Act and the legality of the enquiry against him. The application was dismissed on July 30, 1958, and his application for a certificate to appeal to this Court was dismissed next day. Thereupon he came to this Court and was granted special leave. Shri Chatterjee appearing for the appellant has raised the following six points in support of the appeal : (1), The amendment made by the President in Art. 312 of the Constitution by virtue of his power under Art. 392 by the Constitution (Removal of Difficulties) Order No. II of 26th January, 1950, was in excess of the power conferred on him under Art. 392; (2)It was not within the competence of the provisional Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 26, 1950, by which among other adaptations, he made an adaptation in Art. 312 also, to this effect:- "In clause (1), omit 'if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do". This order was to come into force at once and was to continue until both Houses of Parliament had been duly constituted and summoned to meet for the first session under the provisions of the Constitution. After removal of the omitted words, Art. 312 read as follows:- " (1) Notwithstanding anything in Part XI, Parliament may by law provide for the creation of one or more all-India services common to the Union and the States, and subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. (2)The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article." It is urged that though the President undoubtedly had power to make adaptations, he excee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in another. It was left to him to consider whether the adaptation should be by way of modification, addition or omission; and if he thought it necessary or expedient with respect to a particular Article that adaptation should be by way of omission it cannot be said that he had exceeded his power. We are, therefore, of opinion that the Act cannot be declared unconstitutional on the ground that the President had exceeded his power under Art. 392 and that if he had not done so a resolution of the provisional Parliament would have been necessary with the requisite majority before any law could be undertaken to regulate the recruitment and the conditions of service of an all-India service. Once it is held that the adaptation made by the President in Art. 312 was within his power, there is very little left in the other two points raised by Mr. Chatterjee. It is said that the provisional Parliament was not competent to pass the Act in 1951, because the condition precedent for passing such a law had not been, as required by Art. 312, complied with. This means in other words that a resolution with the requisite majority had Dot been passed by the provisional Parliament; but this conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits. In this case s. 3 of the Act lays down that the Central Government may, after consultation with the Governments of the States concerned, make rules for the regulation of recruitment and conditions of service of persons appointed to an all-India service. It also lays down that all rules made under this section shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so said. Mr. Chatterjee contends that no delegation whatsoever was possible under Art. 312 and that the Constitution required that Parliament should itself frame the entire law relating to the regulation of recruitment and the conditions of service of all-India services. We have, therefore, to see whether there is anything in the words of Art. 312 which takes away the usual power of delegation, which ordinarily resides in the legislature. Stress in this connection has been laid on the words " Parliament may by law provide " appearing in Art. 312. It is urged that these words should be read to mean that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of service of all-India services should all be enacted as statute law and nothing should be delegated to the executive authorities. In the circumstances we are of opinion that the words used in Art. 312 in the context in which they have been used do not ex- clude the delegation of power to frame rules for regulation of recruitment and the conditions of service of -India services. We cannot read Art. 312 as laying down a mandate prohibiting Parliament from delegating authority to the Central Government to frame rules for the recruitment and the conditions of service of all-India services. We, therefore, reject this contention. The argument in this connection is that even if delegation is possible, there was excessive delegation in this case, and, therefore, the Act should be struck down. The Act is a short, Act of four sections. The first section deals with the short title, the second section defines the expression " all-India Service ", and the third section gives power to the Central Government to frame rules for regulation of recruitment and ,the conditions of service after consultation with the Governments of the States concerned, and lays down that all rules so framed shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governing the recruitment and the conditions of service of the two all-India services. The section certainly lays down that the rules already in force shall be taken to be rules under the Act; but that was necessary in order to enable the Central Government under s. 3 to add to, alter, vary and amend those rules. There is no doubt, however, that s. 4 did lay down that the existing rules will govern the two all-India services in the matter of regulation of recruitment and conditions of service, and in so far as it did so it determined the legislative policy and set up a standard for the Central Government to follow and formally enacted it into a binding rule of conduct. Further, by s. 3 the Central Government was given the power to frame rules in future which may have the effect of adding to, altering, varying or amending the rules accepted under s. 4 as binding. Seeing that the rules would govern the all-India services common to the Central Government and the State Government provision was made by s. 3 that rules should be framed only after consulting the State Governments. At the same time Parliament took care to see that these rules were laid on the table of Parliament for fourt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enquiry is by the Government under whom such officer was serving at the time of commission of such act or omission which renders him liable to punishment. Rule 2(b) defines ,Government", and the third clause thereof lays down that in the case of a member of service serving in connection with the affairs of a State, the Government would be the Government of that State. The appellant was serving in connection with the affairs of the State of Punjab, and in his case therefore the Government for the purpose of r. 5 which provides procedure for imposing penalties would be the Punjab Government. It is the Punjab Government, therefore, which could take the steps provided in r. 5. Rules 5(1) to 5(8) provide the procedure for such enquiries and the word " government " used in these sub-rules means in the present case, the Punjab Government, for the appellant was-serving in connection with the affairs of the State of Punjab. Rule 5(9) provides for what is to happen after the enquiry is over, and it lays down that after the enquiry has been completed and after the punishing authority has arrived at a provisional conclusion in regard to the penalty to be imposed, if the penalty proposed is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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