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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

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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

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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

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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.

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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".

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"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

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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

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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

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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-

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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

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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-

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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

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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

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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.