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PETITIONER: UNlON OF lNDlA & OTHERS

       Vs.

RESPONDENT: SRIPATI RANJAN BISWAS AND ANOTHER

DATE OF JUDGMENT07/08/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 1755            1976 SCR  (1) 268  1975 SCC  (4) 699

ACT:      Central  Services  (Classification  Control  &  Appeal) Rules 1957-r. 23(2) Appeal to the President of India against all order  of dismissal  from service-Dismmisal of appeal by the Minister-If proper and legal.

HEADNOTE:      The respondent  was dismissed  from government service. His appeal  to the President against his dismissal was heard by  the  Minister  in  the  Ministry  of  Finance,  and  was rejected. A  single judge  of the  High Court  dismissed his writ petition  under Art.  226 of  the Constitution  but the division bench  quashed the order of dismissal, holding that the functions  and duties  of the  President as an appellate authority under  the Central Civil Services (Classification, Control and  Appeal)  Rules  1957,  were  not  part  of  the business of  the Government  of India  nor were they part of the President’s duty under the Constitution. It further held that the Minister had no right to deal with the appeal which had been preferred to the President of India under the Rules      On appeal  it was  contended  in  this  Court  for  the respondent that  hearing appeal  under a  statutory  rule  a quasi-judicial act  and it  could not  be delegated  by  the President to the Minister Allowing the appeal, ^      HELD: (a)  There  is  no  constitutional  infirmity  in impugned order  Disposal of the appeal by the Minister under r. 23(2)(b)  of the  Rules is a proper and legal disposal of the   appeal to the President who has acted on the advice of tho Minister  is confirming  the impugned order of dismissal No question  of delegation  is involved  in  such  a  matter [272A]      (b) When  the Constitution  conclusively contemplates a constitutional President  it is  not permissible  nor is not even intended  to invest upon the President a different role of ruling  monarch. any reference to the President under any rule made  under tho  Constitution  must  needs  be  to  the President as  the constitutional  head as  envisaged in  the Constitution acting  with the  aid and advice of tho Council of Ministers.[271H]      In the  present case the question relates to the domain

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of appointment  or dismissal  of Government  Servant. Such a question falls within the ambit of purely executive function of the  President in the case of the Union Government of the Governor in  the  case  of  State.  Such  a  function  being ultimately  an  ultimately  an  executive  function  of  the President, the  fact  that    final  order  is  preceded  or accompanied by a quasi-judicial inquiry held by the Minister did not  affect  the  character  of  the  exercise  of  that function by the President. [271A-B]      Samsher singh  v. State  of Punjab  and Another, A.I.R. 1974 S.C. 2192, followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No 556 of 1975.      Appeal by  special leave  from the  judgment and  order dated the 13th: December, 1973 of the Calcutta High Court in Appeal  from  original  order  No.  683  of  1971  (Mandamus Appeal).      L. N.  Sinha, Solicitor  General, P.P.  Rao and  Girish Chandra for the appellants 269      A.  K.   Sell  and   Prodyot  Kumar   Chakravarty,  for respondent No.      The Judgment of the Court was delivered by      GOSWAMI, J.-This  appeal by  special leave  is directed against the  judgement of  the Division  Bench of  the  High Court  of  Calcutta  of  December  13,  1973  reversing  the judgment of  the learned  single Judge who had earlier found no infirmity in the impugned order of dismissal of the first respondent (hereinafter to be described as the respondent).      The respondent  was a  confirmed Appraiser  with  about eleven years; service ill the Customs Department in Class II of Gazetted officers. On December 1961, he was suspended and a chargesheet  was served  upon him.  The charges related to firstly taking illegal gratifications secondly possession of assests disproportionate to his disclosed income and thirdly purchase  of   a  plot  of  land  without  sanction  of  the appropriate authority.  The respondent  was Found  guilty in the course of a departmental enquiry of the second and third charges and  was exonerated with regard to the first charge. A second  notice was  served upon  him on December 17, 1962, affording an  opportunity to show cause why he should not be dismissed from  service. Thereupon  the respondent preferred an application  under article 226 of the constitution in the High Court  challenging the  show cause notice as obtained a Rule. Thus  rule was  disposed of by the High Court quashing third charge  and the  Collector of  Customs was directed to reconsider the  appropriate penalty  to be  imposed  on  the surviving second  charge. On February 37 1964, the collector of Customs  passed an order dismissing the respondent basing on the  second charge. The respondent preferred an appeal to the President  of India  under rule  23(2)(b) of the Central Civil Services  (Classification, Control  and Appeal)  Rules 1957 (briefly  the rules). After consulting the Union Public Service Commission  under  rule  30(2)  of  the  Rules,  the President of India rejected the respondents appeal.      On November  25 1966,  the respondent  filed a petition under  article  226  the  Constitution  in  the  High  Court challenging the  validity of  the dismissal order as well as the appellate  order of  the President.  The learned  single Judge allowed  the writ  petition on August 29 1967? holding that the  appellate authority  decided  the  appeal  without

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considering whether  the drastic punishment of dismissal was excessive or  not in  violation of  the provisions  of  rule 30(2)(c).  The  learned  Judge,  however,  gave  liberty  to proceed with  the appeal  afresh. Thereafter the Minister in the Ministry  of Finance,  Government of  India,  heard  the appeal on March 28, 1969. Ultimately the respondent’s appeal to the  resident of India was rejected on April 25, 1969 and the Under  Secretary to  the  Government  of  India  in  the Finance Ministry  communicated the  order in the name of the President on  May 9,  1969. The  communication  was  in  the following terms:-           I am  directed to  refer to your letter dated 2-4-      1968 and  5-6-1969, containing  your further submission      ill reply  to  the  notice  issued  to  you  vide  this      Ministry’s No. 270      Ad.-II, dated  23-2-1968, and to say that the President      has carefully  considered the  further submissions made      by you  in consultation  with the  Union Public Service      Commission. The  arguments advanced  by you at the time      of the  hearing granted  to you  by Shri  P. C.  Sethi,      Minister in  the Ministry  of Finance, on behalf of the      President  on   28-3-1969  have   also  been  carefully      considered by  him. Upon consideration of all the facts      and circumstances of the case the President has decided      that the  penalty of  dismissal from service imposed on      you by  the Disciplinary Authority (viz.) the Collector      of Customs,  Calcutta is  not excessive  or severe  and      that your  appeal should  be  rejected.  The  President      hereby orders  accordingly. A  copy of  the  U.P.S.C.’s      letter No. F.3/56b 68-SI dated 26-10-1968 and a copy of      the order  passed by  the Minister  on  behalf  of  the      President are enclosed herewith".      The  respondent   in  a   third  round   of  litigation challenged the  above order  in the High Court under article 226 of  the Constitution. The learned single Judge dismissed the same  but in  appeal against  that judgment the Division Bench set  aside the  order of  the learned single Judge and quashed the  aforesaid order  of May  9,  1969.  Hence  this appeal by the Union of India.      The High  Court held  that, the powers and duties which the President  is  required  to  exercise  as  an  appellate authority  under   rule  23(2)(b)   of  the  Rules  are  not constitutional duties  imposed upon  the President under the Constitution. According  to the High Court the functions and duties of  the President as an appellate authority under the said Rules  are not  part of  business of  the Government of India nor  are they part of the President’s duties under the Constitution.  The   High  Court,  therefore,  came  to  the conclusion that  the Minister  had no right to deal with the appeal which  had been  preferred to  the President of India under the said Rules.      The above  question is  squarely covered  by  a  recent decision of  this Court  in Samsher Singh v. State of Punjab and Another(1).  Even so,  Mr. A. K. Sen appearing on behalf of the  respondent submits that there is still an area which has not  been covered  by the said decision. Mr. Sen submits that hearing of an appeal under a statutory rule, as in this case, it  is a quasi- judicial act and, therefore, it cannot be delegated  by the  President  to  the  Minister.  It  is, however, clear  that in  Samsher Singh’s  case the  question related to the termination of service of a subordinate Judge under rule  9 of  the Punjab  Civil Services (Punishment and Appeal) Rules,  1952 and  that of  another  officer  in  the Punjab Civil  Service (Judicial  Branch) under  rule 7(3) in

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Part of  the Punjab  Civil Services  (Judicial Branch) Rules 1951 as  amended from  time to  time It is not disputed that the above  two Rules  under which the termination took place are statutory Rules. 271      The question  which is raised in this appeal relates to the domain  of appointment  or  dismissal  of  a  Government servant. Such  a question falls within the ambit of a purely executive function of the President in the case of the Union Government and  of the  Governor in  the case of a State. In the present  case, such  a function  being  ultimately  Lull executive function of the President, the fact that the final order is  pre  ceded  or  accompanied  by  a  quasi-Judicial enquiry held  by the  Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing  in principle  which can be distinguished ill this  appeal from  the ratio  of the decision in Samsher Singh case.  The legal  position is brought out very clearly in paragraph  57 of  the report in Shamsher Singh (supra) in the following extracts:-           "Appointment or  dismissal or  removal of  persons      belonging to the Judicial Service of the State is not a      personal function  but is  an executive function of the      Governor exercised in accordance with the rules in that      behalf under the Constitution".      Again in para 48 the Court observed           "The President  as well  as the  Governor  is  the      Constitutional or formal head. The President as well as      the  Governor   exercises  his   powers  and  functions      conferred on  him by  or under  the Constitution on the      aid advice  of his Council of Ministers, save in sphere      where  the   Governor  is  required  by  or  under  the      Constitution  to   exercise  his   functions   in   his      discretion.  Wherever  the  Constitution  requires  the      satisfaction of  the President  or the-Governor for the      exercise by  the President  or the Governor o any power      of  function,   the  satisfaction   required   by   the      Constitution is  not the  personal satisfaction  o  the      President or  Governor  but  the  satisfaction  of  the      President or  Governor in  the Constitutional  sense in      the Cabinet system of Government, that is, satisfaction      of his Council of Ministers on whose aid and advice the      President or  the Governor  generally exercises all his      powers and  functions. The  decision of any Minister or      officer under  rules o business made under any of these      two Articles  77(3) and  166 (3) is the decision of the      President or  the Governor respectively. These articles      did not  provide for  any  delegation.  Therefore,  the      decision of  Minister or  officer under  the  rules  of      business is  the  decision  of  the  President  or  the      Governor". We are, therefore, unable to see how the present case of the respondent can  get out  of the  rules laid  down in Samsher Singh’s case (supra).      In  the   history  of  the  entire  background  of  the constitutional  development   o  our   country,   when   the Constitution  conclusively   contemplates  a  Constitutional President it  is not  permissible nor is it even intended to invest upon  the President  a different  role  of  a  ruling monarch. Any  reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice o the Council of Ministers. 272      Disposal of  the appeal  by  the  Minister  under  rule

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23(2)(b) of  the Rules  is, therefore,  a proper  and  legal disposal of the appeal to the President who has acted on the advice of  the Minister  in confirming  the imugned order of dismissal. There  is no  question of  delegation involved in such a  matter. We  find no  constitutional infirmity in the impugned order of May 9, 1969.      In the  result the  appeal is  allowed. The judgment of the Division  ; Bench  of the  High (Court  is set aside. We win, however, make no order as to costs. P.B.R.                                       Appeal allowed. 273