TMI Blog1955 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed on the Original Side of the High Court under article 226 of the Constitution against the Hon'ble 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 dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 96B(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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 its ministerial officers . It is this power and authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as follows: 229. (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etency 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 consultation 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 terminolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 conditions 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 Majest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability 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 delivere ..... 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