Pradyat Kumar Bose vs The Hon'ble Chief Justice of Calcutta High Court
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeals Nos. 245 and 202 of 1953
Decision Date: 23 December 1955
Coram: B. Jagannadhadas, Vivian Bose, Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, Syed Jaffer Imam
In this case the matter titled Pradyat Kumar Bose versus The Hon’ble Chief Justice of Calcutta was decided by the Supreme Court of India on 23 December 1955. The judgment was authored by Justice B. Jagannadhadas and the bench included Justices Vivian Bose, Natwarlal H. Bhagwati, B. Huvneshwar P. Sinha, Syed Jaffer Imam and others. The petitioner, Pradyat Kumar Bose, challenged the authority of the Chief Justice of the Calcutta High Court, who was the respondent. The citation of the decision appears as 1956 AIR 285 and 1955 SCR (2) 1331. The dispute concerned the interpretation of the Calcutta High Court-Letters Patent of 1865, as amended in 1919, particularly clause 8 read with clause 4, and the scope of the Chief Justice’s power of appointment and dismissal. The questions presented to the Court were whether the Chief Justice possessed the power to dismiss the petitioner, whether the Chief Justice could delegate the enquiry into the charges against the petitioner to another judge, whether the power to appoint or dismiss an officer was an administrative power, whether such delegation was permissible, and whether prior consultation with the Public Service Commission was required under Article 320(3) of the Constitution, together with the relevant provisions of Articles 229, 313, 367(1) and Section 16 of the General Clauses Act, 1897.
The factual background recorded that the petitioner was appointed in March 1948 by the Chief Justice of the Calcutta High Court as Registrar and Accountant-General of the original side of the Court and that his appointment was confirmed in November 1948. On 3 September 1951 the Chief Justice dismissed the petitioner effective from 1 September 1951, invoking several charges. The Chief Justice had authorized Justice Das Gupta to conduct an enquiry into those charges and to submit a report. Justice Das Gupta’s report exonerated the petitioner on some allegations but found him guilty of other charges, concluding that the petitioner’s misconduct and dishonest conduct rendered him unfit for the office. The Chief Justice issued a notice to the petitioner indicating agreement with the report and required him to show cause why he should not be dismissed. After the petitioner was given an opportunity to be heard, the Chief Justice dismissed him by order. The petitioner’s subsequent petition to the Governor for cancellation of the dismissal order was rejected, as were his applications for review of the dismissal order and a writ petition filed under Article 226 of the Constitution before the Calcutta High Court. Having obtained leave to appeal, the petitioner raised three principal points before the Supreme Court: (1) that the Chief Justice lacked authority to dismiss him; (2) that even if such authority existed, the Chief Justice should not have delegated the enquiry to another judge but should have conducted it personally; and (3) that the dismissal order required prior consultation with the Public Services Commission as mandated by Article 320 of the Constitution.
The Supreme Court examined three principal questions in this appeal. First, it considered whether the Chief Justice of the Calcutta High Court possessed the authority to dismiss the appellant from his position. Second, the Court assessed whether the delegation of the enquiry into the charges against the appellant to another judge amounted to an unlawful delegation of the power to dismiss. Third, the Court evaluated whether the dismissal could be effected without prior consultation with the Public Services Commission as mandated by Article 320 of the Constitution.
The Court held that the Chief Justice was duly empowered to dismiss the appellant. This conclusion was founded on the combined effect of clause 8 of the Letters Patent of the Calcutta High Court read with clause 4 of the same instrument, as well as Articles 229(1), 313 and 367(1) of the Constitution, read with section 16 of the General Clauses Act. These provisions together confer upon the appointing authority the accompanying power to remove the appointed officer.
Regarding the second issue, the Court found that the objection to dismissal on the basis of delegation was without merit. The Court explained that the power to appoint or dismiss an officer is an administrative function, not a judicial one. It is well established that a statutory officer exercising such an administrative power does not delegate his function merely by assigning a responsible and competent official to conduct an enquiry and prepare a report.
On the third question, the Court ruled that prior consultation with the Public Services Commission was not required for the dismissal in this case. The Court observed that Article 320(3) of the Constitution, when read as a whole, conflicts with Article 229, and that the language of Article 320 does not apply to the staff of the High Court. In reaching this conclusion, the Court referred to the authorities 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).
The judgment was delivered in the Civil Appellate Jurisdiction concerning Civil Appeals Nos 245 and 202 of 1953. The appeal was filed under Article 132(1) of the Constitution of India against the order dated 27 January 1953 of the Calcutta High Court in Matter No 139 of 1952. Counsel for the appellant were senior advocates, while the Advocate-General of West Bengal, assisted by two additional counsel, appeared for the respondent. The judgment was pronounced on 23 December 1955 by Justice Jagannadhadas.
This appeal arose by way of leave from the High Court of Calcutta. The appellant had served as Registrar and Accountant-General of the Original Side of the Calcutta High Court. He was appointed to that office by the Chief Justice on 4 March 1948 and his appointment was confirmed on 15 November 1948. The Chief Justice dismissed him with effect from 1 September 1951 by an order dated 3 September 1951. Several charges had been made against him, and the Chief Justice, by order dated 28 May 1951, deputed Mr Justice Das Gupta to conduct a full enquiry and submit a report. Mr Justice Das Gupta completed the enquiry and furnished his report to the Chief Justice.
On 11 August 1951, Mr. Justice K. C. Das Gupta presented a report concerning the charges against the appellant, P. K. Bose. The report exonerated the appellant of some of the allegations but found him guilty of the remaining ones. The learned judge expressed his conclusion in the following terms: “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.” Subsequently, on 16 August 1951, the Chief Justice issued a notice to the appellant, informing him that the report had been carefully considered and requiring him to show cause why he should not be dismissed from his post. The appellant was afforded a hearing before the Chief Justice on 31 August 1951. A few days later, the Chief Justice dated an order of dismissal on 3 September 1951, a copy of which was served on the appellant. The order began by stating that a full and thorough enquiry had been conducted by Mr. Justice K. C. Das Gupta into the charges against Sri P. K. Bose, who was then the Registrar of the Original Side of the Court. It noted that the appellant had been represented by eminent counsel and that every opportunity had been given to him to meet the charges, to explain himself and to mount a defence. Nevertheless, the learned judge, in a carefully considered report, found Sri P. K. Bose guilty of serious charges involving moral turpitude and dishonesty and held that, on that basis, he was unfit to retain the office of Registrar. The Chief Justice stated that he had examined the report and the evidence anxiously and was in complete agreement with the learned judge, concluding that the appellant was clearly guilty of the matters specified in the report. On the basis of this prima facie finding, the Chief Justice issued a notice under article 311(2) of the Constitution of India requiring the appellant to show cause against the proposed dismissal. On 31 August 1951, the appellant appeared, and the Chief Justice heard both his counsel, Sri Sachin Chaudhuri, and the appellant himself. The Chief Justice observed that, in the circumstances, no leniency could be shown. He recorded that the appellant had abused the trust and confidence reposed in him, had been found guilty of serious malpractices and dishonesty, and that such conduct by an officer of the stature of Registrar of the Original Side was unpardonable and demanded severe treatment. Accordingly, the Chief Justice dismissed Sri P. K. Bose from the office of Registrar of the Original Side of the Court, with the dismissal to be effective from 1 September 1951, and directed that a copy of the order be served on the appellant. On 25 January 1952, the appellant filed a petition with the Governor of West Bengal seeking cancellation of the dismissal order.
After receiving a notice dated 9 July 1952 stating that the Governor had declined to intervene on his behalf, the appellant filed an application before the Chief Justice requesting review of the earlier dismissal order. The dismissal had been ordered by Chief Justice Sir Arthur Trevor Harries, who had initiated the proceedings against the appellant and subsequently retired in June 1952. Consequently, the review application was addressed to the succeeding Chief Justice, Shri P. B. Chakravarti, on 11 September 1952. That application was dismissed on 16 September 1952. More than a year after the dismissal, on 24 November 1952, the appellant instituted a writ petition on the Original Side of the High Court under article 226 of the Constitution. The petition sought an order directing the Chief Justice to produce the records of the dismissal proceedings so that the order dated 3 September 1951, which purported to terminate the appellant’s service, could be set aside or otherwise dealt with, and also requested that the Chief Justice be instructed not to give effect to that order. Upon presentation of the petition, the learned Judge on the Original Side, Mr Justice Bose, issued a rule nisi requiring the Chief Justice to show cause why the writ should not be granted. After serving the rule nisi, the judge referred the matter to a Special Bench of three judges in accordance with the court’s rules. The Special Bench, headed by the Chief Justice, heard the petition after an extensive hearing and considered the arguments advanced by the appellant. The Bench ultimately dismissed the petition, but granted leave to appeal to the Supreme Court under article 132(1), holding that the case raised substantial questions of law concerning the interpretation of the Constitution. The appellant’s principal contentions before the Supreme Court, identical to those raised before the High Court, were: (1) the Chief Justice of the High Court possessed no statutory authority to dismiss him; (2) even assuming such authority existed, the Chief Justice could not have delegated the enquiry into the charges to another judge and should have conducted the enquiry himself; and (3) the dismissal order was invalid because it was issued without prior consultation with the State Public Service Commission as mandated by article 320 of the Constitution. Representing the respondent, the Honorable Chief Justice of the Calcutta High Court, the Advocate-General of West Bengal appeared before the Supreme Court. The Advocate-General contested the correctness of each of the appellant’s submissions and argued against the relief sought.
The respondent, on behalf of the appellant, contended that the High Court could not issue a writ against its own Chief Justice, that the order issued by the Chief Justice was a purely administrative action and therefore not subject to a writ petition, and that, considering the totality of the circumstances, no writ application should have been entertained. The Court first examined these submissions. The most salient point raised concerned whether the Chief Justice possessed the authority to dismiss the appellant. It was undisputed that the Chief Justice had the power to appoint the appellant, and that the appellant’s appointment and subsequent confirmation were indeed made by the Chief Justice. Nevertheless, the appellant argued that the Chief Justice lacked the power to dismiss him. This contention rested on the assumption that the appellant fell within the class of public servants governed by the Civil Services (Classification, Control and Appeal) Rules, 1930, as amended, and that those rules continued to apply to an officer in his position even after the Government of India Act, 1935, and subsequently the Constitution of India, 1950, came into force.
The argument further acknowledged that dismissal is a matter falling within the conditions of service of a public servant, as held by the Privy Council in North-West Frontier Province v. Suraj Narain Anand [1948] L.R. 75 I.A. 843. It also noted that the authority to make rules concerning the conditions of service of High Court staff was vested in the Chief Justice under section 242(4) read with section 241 of the Government of India Act, 1935, and under article 229(2) of the Constitution of India, 1950. However, it was submitted that the Chief Justice had not framed any such rules, and consequently, by virtue of section 276 of the Government of India Act, 1935, and article 313 of the Constitution, the Civil Services Rules continued to govern the appellant. The Court therefore needed to examine the correctness of these premises. The Civil Services Rules had been drafted by the Secretary of State in Council pursuant to powers conferred by section 96-B(2) of the Government of India Act, 1915, as amended in 1919. These rules were prepared on 19 June 1930 and published on 21 June 1930. Accordingly, the Court considered the legal position of High Court staff prior to that date. It was undisputed that before the enactment of the 1930 Rules, the positions of High Court officers were regulated by the Letters Patent of the High Court. In particular, clause 8 of the Letters Patent of 1865, as amended in 1919, together with clause 4 of the same instrument, remained operative and were therefore relevant to the present dispute.
The Letters Patent dated 14 May 1862 contained a clause numbered eight, which expressly authorised and empowered the Chief Justice of the High Court of Judicature at Fort William in Bengal to appoint, as and when required and subject to any rules or restrictions that the Governor-General in Council might prescribe, such number of clerks and other ministerial officers as were deemed necessary for the administration of justice and for the proper execution of all powers and authorities vested in the High Court by those Letters Patent. The clause further provided that each officer and clerk appointed under this authority would receive a reasonable salary fixed by the Chief Justice and subsequently approved by the Governor-General in Council. A proviso in the same clause required that all such officers and clerks remain resident within the limits of the Court’s jurisdiction for the duration of their appointment, although it expressly allowed any officer to avail himself of leave of absence and to be absent from the jurisdiction in accordance with any rules prescribed by the Governor-General in Council.
Clause four of the same Letters Patent stipulated that every clerk and ministerial officer of the High Court appointed under the authority of the Letters Patent of 14 May 1862 would continue to hold his office and enjoy the salary attached thereto until such time as he might be removed. The clause made clear that such officers would be subject to the same power of removal, regulations and provisions as if they had been appointed under the present Letters Patent.
It was noted that clause eight specifically vested the Chief Justice with the power of appointment but made no mention of any power to remove officers or of the authority to make regulations. However, the latter part of clause four was interpreted to imply that the power of removal and the making of regulations were to be read as implicit within clause eight, presumably arising from the power of appointment. The judgment also referred to clause ten of the Charter of the Supreme Court of Calcutta of 1774, which similarly authorised the Court to appoint clerks and other ministerial officers as required, but did not expressly grant the power of removal or other disciplinary action. Historical evidence, however, showed that the power of appointment was always understood to include the attendant power to remove or discipline those appointed.
In the material presented, it was demonstrated that the authority to appoint staff under the Charter was consistently interpreted as also containing the powers to dismiss and to regulate the conditions of service of those appointees. The evidence included a statement made by Sir Charles Wood, who was the Secretary of State for India at the time, in paragraph ten of his dispatch to the Governor-General dated 17 May 1862 on the occasion of establishing the new High Courts. In that dispatch Sir Wood declared, “The Supreme Court exercises an authority entirely independent of the Government in respect of its ministerial officers.” The Court observed that this assertion of independent authority, together with the broader judicial powers of the Supreme Court, was transferred to the High Courts when they were created in place of the Supreme and Sadar Courts. The transfer occurred pursuant to section 9 of the Indian High Courts Act, which provided that each High Court to be established “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.” Consequently, the Court concluded that both the original Charter of the Supreme Court and the subsequent Letters Patent of each High Court were understood to give the Chief Justice, or the High Court itself, full administrative and disciplinary control over its personnel, including the power to terminate appointments.
The Court further noted that this understanding persisted at least until the passage of the Government of India Act 1915. Section 106 of that Act expressly continued the earlier position by stating that the jurisdiction of the High Court “shall 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.” The Court observed that the same comprehensive power remained in force under the 1915 Act and continued to operate up to the year 1930, when the Civil Services Rules were introduced. Nevertheless, the Court emphasized that the powers conferred by the Letters Patent were subject to alteration by competent legislative authority under clause 44 of the Letters Patent. Moreover, clause 8 of the Letters Patent itself specified that the Chief Justice’s power of appointment was “subject to rules and restrictions which may be prescribed by the Governor-General in Council.” The Civil Services Rules, the Court explained, were framed by the Secretary of State in Council under section 96-B of the Government of India Act 1915.
According to the appellant, the Civil Services Rules, although made under delegated authority, could not override the specific appointment power that the Chief Justice possessed under section 106 of the 1915 Act. However, the appellant argued that the Rules could supersede the incidental implications of that appointment power, such as the authority to dismiss staff and to prescribe service conditions, insofar as the Rules expressly provided for those matters. The appellant further contended that this situation remained applicable to the present time by virtue of the continuing effect of the statutory framework.
The Court observed that the appellant’s case invoked section 276 of the Government of India Act, 1935 and article 313 of the Constitution of 1950. The appellant had been appointed to his position in 1948 and subsequently dismissed in 1951. Accordingly, the Court deemed it necessary first to examine the legal position that existed under the Government of India Act, 1935 and under the Constitution of 1950, assuming that the Civil Services Rules had effected a change in the earlier legal framework as it applied to the staff of the High Court between the years 1930 and 1935. Under the Government of India Act, 1935 the matters concerning the Civil Services of the Crown in India were set out in several general provisions contained in Chapter eleven of Part ten. Section 240(1) repeated the earlier statutory declaration made by section 96-B of the 1915 Act, namely that, except as expressly provided by the Act, every person who was a member of a civil service of the Crown in India or who held any civil post under the Crown held office at the pleasure of His Majesty. Section 241 dealt with the recruitment and conditions of service of such persons and specified the various authorities empowered to make appointments and to frame the rules governing conditions of service. Section 242(4), insofar as it was relevant to the present matter, provided that the provisions of section 241, when applied to appointments to and to persons serving on the staff attached to a High Court, were to be read as if, for any reference to the Governor in paragraph (b) of sub-section (1), in paragraph (a) of sub-section (2) and in sub-section (5), the reference to the Chief Justice of that Court was substituted. By making the prescribed substitutions, the statutory provisions of the Government of India Act, 1935 relating to recruitment and conditions of service of the High Court staff could be expressed as follows: first, appointments to the Civil Services and civil posts under the Crown in India in relation to the staff attached to a High Court were to be made by the Chief Justice or by such person as the Chief Justice might direct; second, the conditions of service of persons serving under His Majesty in relation to the staff attached to a High Court were to be framed by the Chief Justice of the High Court or by persons authorized by him for that purpose, subject to two provisos. The first proviso allowed the Governor, in his discretion, to require that no person who was not already attached to the court be appointed to any office connected with the court unless the Governor first consulted the Provincial Public Service Commission. The second proviso required that any rules made by the Chief Justice under the second sub-section that related to salaries, allowances, leave or pensions obtain the approval of the Governor. These sections, while preserving the power of appointment of the High Court staff by the Chief Justice as contained in the Letters Patent, statutorily articulated for the first time in explicit terms the implication that the authority to regulate and frame rules concerning conditions of service of such staff was also vested in the Chief Justice, subject to the two limitations indicated in the provisos.
The judgment explained that the provisions concerning the staff of the High Court, as set out in the Letters Patent and granting authority to the Chief Justice, for the first time gave statutory expression to what had been merely implied in clause 8 of the Letters Patent. In other words, the Letters Patent indicated that the Chief Justice also possessed the power to make and frame rules governing the conditions of service of the High Court staff, but that power was subject to two limitations laid down in the accompanying provisos. The Court then noted that the present Constitution contains nearly identical provisions dealing with the powers of the Chief Justice over recruitment and service conditions of High Court personnel, and that these provisions are found in article 229. Article 229 reads as follows: “(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 cases specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court except after consultation with the State Public Service Commission. (2) Subject to any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer authorised by the Chief Justice, provided that any rules relating to salaries, allowances, leave or pensions must obtain the approval of the Governor of the State in which the Court has its principal seat.” The Court observed that, according to the record, the Chief Justice of the Calcutta High Court had not issued any such rules, at least none that applied to the Registrar of the Original Side of the High Court. Consequently, assuming that the Civil Services Rules were applicable to a person holding that position between 1930 and 1935, the Court considered it necessary to examine whether those rules continued to apply. The relevant statutory provisions for this inquiry were identified as section 276 of the Government of India Act, 1935, and article 313 of the Constitution. Section 276 provides that, until a new provision is made under the appropriate parts of that Act, any rules made under the Government of India Act concerning the Civil Services or civil posts under the Crown in India that were in force immediately before the commencement of Part III of the Act shall, notwithstanding the repeal of that Act, remain in force to the extent that they are consistent with the new Act, and shall be deemed to be rules made under the appropriate provisions of the new Act.
In this case, the Court referred to the provision of Article 313 which states: “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 provisions of this Constitution.” The Court observed that the continuation of the Civil Services Rules under section 276 of the Government of India Act, 1935 could operate only to the extent that such continuation did not conflict with the Constitution. It further noted that, for the purpose of applying those rules to the staff of the High Court, the rules were to be treated as if they had been made under the appropriate provisions of the 1935 Act. Consequently, the rules were to be regarded as having been made by the Chief Justice, in accordance with the scheme of the Act that specifically gave the Chief Justice the authority to appoint personnel, regulate conditions of service, and dismiss employees. The Court explained that this continued operation could occur only through an implicit process of adaptation that the language of section 276 itself authorised. Accordingly, wherever the word “Governor” appeared in the rules, it had to be read as “Chief Justice” for the High Court context, similar to the effect of section 242(4) of the Act which required that references to the Governor in section 241 be read as references to the Chief Justice of the High Court. The Court warned that if the Civil Services Rules were applied without such adaptation, an inconsistency would arise: although the 1935 Act expressly vested the Chief Justice with the powers of appointment and of framing service-regulating rules, including the power of dismissal, the Chief Justice would, in practice, lack any disciplinary control if the old rules remained unchanged. The Court then turned to rule 52 of the Civil Services Rules, which dealt with disciplinary action and dismissal. Rule 52 provided 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 V 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.” The Court held that if this rule originally applied to High Court staff, after 1935 it must be read by substituting “Chief Justice” in place of “the Local Government” wherever that phrase occurred, and by making any other necessary consequential changes.
It is beyond doubt that from the moment the Government of India Act, 1935 came into force, the authority to dismiss a member of the High Court staff – including a person holding the position of the appellant – vested in the Chief Justice. This vesting of power existed independently of the ordinary implication that the Act expressly recognised the power of appointment in the same office. Consequently, even if one assumes that the Civil Services Rules were applicable to the High Court staff between 1930 and 1935, their continuation after 1935 altered the identity of the dismissing authority, placing the power of dismissal in the Chief Justice. That arrangement was correct before the adoption of the Constitution in 1950, and the Constitution did not modify it. Article 313 of the Constitution therefore continues to give effect to rule 52 of the Civil Services Rules as it had been adapted for the post-1935 period. As a result, from the date of the Government of India Act, 1935 and equally under the Constitution, the power to dismiss staff of the High Court resides in the Chief Justice, even though the Chief Justice has not issued any specific rules on the matter. At this stage it must be noted that the constitutional position on the power of dismissal is settled and admits no argument. Article 229(1) of the Constitution, which vests the power of appointment in the Chief Justice, is equally effective to vest in him the power of dismissal. This follows from section 16 of the General Clauses Act, which, by virtue of article 367(1) of the Constitution, governs the interpretation of the word “appointment” in article 229(1). Section 16 expressly states that the power of “appointment” includes the power “to suspend or dismiss”. Having reached this clear conclusion, the Court found it unnecessary to address the submissions made by either side concerning whether the Civil Services Rules applied to the High Court staff, including the appellant, and therefore expressed no opinion on that question. The appellant’s principal contention that the Chief Justice lacked competence to issue the dismissal order therefore fails. The subsidiary objections raised by the appellant remain for consideration. The first of those subsidiary objections argues that, even assuming the Chief Justice possessed the power to dismiss, he could not lawfully delegate the inquiry into the charges to another judge and should have conducted the inquiry himself. This argument rests on a misunderstanding of the nature of the power. As observed in Barnard v. National Dock Labour Board (1953) 2 Q.B. 18 at page 40, “no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication”. However, the power to appoint or dismiss an officer is not a judicial power but an administrative one, and the nature of that administrative power allows the delegating functionary to entrust a competent official with the inquiry, provided the affected party receives a fair opportunity to respond.
In this matter the Court explained that the power to appoint or dismiss an officer is not a judicial power but an administrative one, although it must be exercised after a fair opportunity to show cause and after an enquiry that mirrors judicial standards. It is well-recognised that a statutory officer who wields such a power does not delegate the power itself merely by assigning a responsible and competent official to conduct an inquiry and prepare a report; this constitutes the ordinary method of exercising any administrative authority. The only aspect that cannot be delegated, unless a statute expressly permits it, is the ultimate responsibility for the exercise of that power. The House of Lords, in Board of Education v. Rice, observed that a functionary who must decide an administrative matter may obtain the necessary material in a manner that is feasible and convenient, provided that the affected party is given a fair opportunity to correct or contradict any material that is relevant and potentially prejudicial. Lord Chancellor’s speech in Local Government Board v. Arlidge is also instructive. He stated that an administrative body entrusted with deciding a disputed question must reach its conclusion by its ordinary procedure, unless the statute directs otherwise. The Minister heading the Local Government Board is directly responsible to Parliament and for all actions of his department; because the volume of work is too great for him to perform personally, he is expected to obtain materials vicariously through his officials and has fulfilled his duty when he ensures that those officials obtain the materials properly. To demand that the Minister or other Board members perform every task personally would impair efficiency, and unlike a judge, an administrative head is compelled to rely on staff assistance. Accordingly, the Court held that the objection that the dismissal was invalid because the enquiry was delegated, thereby allegedly delegating the power itself, has no substance and must be rejected. The Court then turned to the second objection, which contended that even if dismissal power resides with the Chief Justice, the appellant should enjoy the protection of article 320(3)(c) of the Constitution, arguing that dismissal without consultation with the State Public Service Commission is invalid.
In the matter before the Court, it was argued that a dismissal which took place without consulting the Public Service Commission of the State could not be sustained as valid. The Court recognised that, as a matter of established practice, employees of various Government departments—whether belonging to the Union or a State—are normally protected by the three constitutional safeguards enumerated in articles 311 (1), 311 (2) and 320 (3) (c). The provision that was specifically relevant to the issue at hand is article 320 (3) (e), which reads: “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 expression “all disciplinary matters affecting a person” was held to be sufficiently broad to embrace any form of disciplinary action proposed against an individual. Consequently, the central question for determination was whether an individual who forms part of the staff of a High Court falls within the description of “a person serving under the Government of India or the Government of a State in a civil capacity.” The learned Judges of the High Court expressed the view that article 320 (3) could not be applied to the present controversy. They reasoned that the provisions of article 320 (3) would clash with the authority conferred on the Chief Justice of a High Court by article 229, which governs the appointment, dismissal, removal and the framing of service conditions for officers and servants of a High Court. The judges further observed that the proviso to article 229 (1) restricts consultation with the State Public Service Commission to specific future appointments, and only when the Governor of the State directs such consultation by rule. They pointed out that, under the Constitution, the provisions relating to the staff of a High Court are excluded from Part XIV, which deals with services, and inferred that this omission signalled an intention to exclude any requirement for consultation with the State Public Service Commission in matters other than the limited cases mentioned in article 229. This line of reasoning was acknowledged as having persuasive force.
Nevertheless, the Court recognised that while the argument presented by the High Court judges was not without merit, it was possible to view the requirement of prior consultation under article 320 (3) (c) on a different footing. Article 320 (3) (c) pertains specifically to disciplinary action against individual Government employees and represents an important constitutional safeguard for those individuals. This safeguard was considered to rest on a somewhat distinct basis from the provisions of article 320 (3) (a) or (b), which relate to general matters such as recruitment and appointments. The Court noted that requiring prior consultation in respect of an individual case does not automatically conflict with the overriding powers vested in the Chief Justice under article 229. In other words, the necessity of consulting the State Public Service Commission before taking disciplinary action against a High Court staff member may be compatible with, rather than contrary to, the Chief Justice’s authority to dismiss or remove such personnel. Accordingly, the Court held that the prior-consultation requirement in article 320 (3) (c) could be construed as a separate constitutional safeguard that does not necessarily negate the Chief Justice’s power under article 229 to dismiss a staff member, provided that the consultation is duly carried out.
In this case, the Court noted that while it accepted the persuasive reasoning of the High Court, it was appropriate to examine article 320(3)(c) independently, focusing on its literal wording because the provision serves as a vital constitutional safeguard in the situations it governs. The Court then examined the language used in Chapter I of Part XIV of the Constitution, which deals with services, and observed that the various articles in that chapter employ different terminology to designate the categories of service concerned. Under article 309, the Constitution entrusts the appropriate Legislature with authority to regulate the recruitment and conditions of service of persons appointed to public services and posts that are connected with the affairs of the Union or of any State. Article 310 provides that every person who is a member of a civil service of the Union or who holds any civil post under a State holds office at the pleasure of the President, or, as the case may be, of the Governor or of the Rajpramukh of the State. Article 311 enshrines two safeguards for a person who is a member of a civil service of the Union or of a civil service of a State, or who holds a civil post under the Union or a State. The first safeguard prohibits dismissal, removal or reduction in rank until the person has been given a reasonable opportunity to show cause against the proposed action. The second safeguard prevents dismissal or removal by any authority that is subordinate to the authority that originally appointed the person. In contrast, article 320(3)(c) requires that before any disciplinary action is taken, the appropriate Public Service Commission must be consulted with respect to a person serving under the Government of India or the Government of a State in a civil capacity. A close reading of this terminology reveals a clear departure from the language used in articles 310 and 311. The Court observed that officers and staff attached to a High Court clearly fall within the description of “persons appointed to public services and posts in connection with the affairs of the State” and also within the description of “a person who is a member of a civil service of a State” as used in articles 309 and 311. Moreover, the salaries of these High Court officers and servants are drawn from State funds, as shown by article 229(3), which states 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 on the Consolidated Fund of the State. Consequently, the expenditure for these officials must be included in the annual financial statement that is laid before the State Legislature.
The discussion noted that the items of expenditure relating to the administrative costs of a High Court, including salaries, allowances and pensions, must be placed before the Legislature under article 203(1). Consequently, these personnel must be regarded as “holding posts in connection with the affairs of the State and as members of the civil service of the State.” The Court then examined whether the staff of a High Court could also be described as “persons serving under the Government of a State in a civil capacity,” which is the expression employed in article 320(3)(c). It observed that the different terminology used in the various constitutional provisions was unlikely to be accidental. Even within article 320 itself, distinct phrases appear in its clauses: article 320(1) speaks of “appointments to the services of the Union and the services of the State,” while the proviso to article 320(3) mentions “services and posts in connection with the affairs of the Union and … the affairs of the State.” This variation, the Court held, suggests an intentional effort to separate the staff of the High Courts from the ordinary civil services of the Union or the State. The phrase “persons serving under the Government of India or the Government of a State” is understood to refer to individuals whose administrative control rests with the respective executive governments that act in the name of the President, the Governor or a Rajpramukh. By contrast, the officers and staff of a High Court are not encompassed by that description because their administrative control is vested in the Chief Justice, who, under the Constitution, possesses the authority to make appointments, removals and service rules. Articles 53, 77, 154 and 166 demonstrate that executive power of the Union and the State is vested respectively in the President and the Governor, and that executive actions taken in their names constitute actions of the Government of India or the Government of a State. The administrative actions of the Chief Justice, however, fall outside the scope of those articles. Accordingly, the Court concluded that the Constitution’s use of the expression “Government of India and Government of a State” in article 320(3)(c) was intended to effect the aforementioned demarcation. A comparative reading of the terminology in the Government of India Act, 1935, reinforced this view. Section 290(1) of that 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,” whereas section 266(3)(c) speaks of “a person serving His Majesty in a civil capacity in India.” An examination of the main paragraph of sub-section (3) of section 266 shows that it contemplates three categories of service, beginning with the Secretary category.
In that provision the law identified three categories of service: the services of the States, the Federal services that were administered under the Governor-General, and the Provincial services that operated under the Governor. Within the meaning of that section the broad expression “serving His Majesty” was intended to cover only these three categories and to exclude the personnel of the High Court. The use of distinct terminology in the corresponding sections of the Government of India Act and of the Constitution was meant to underline the separation of the High Court staff from other services and to leave no doubt that the constitutional protection afforded in those provisions did not extend to them. It could be observed that while the safeguards prescribed in article 311 were available to every individual employed in the civil service, the safeguard contained in article 320(3)(c) could be removed by regulations made by the President or the Governor. This difference indicated that the Constitution placed that particular safeguard on a separate footing, and it appeared that the framers had not intended it to apply to the High Courts. Accordingly, on the ground that applying article 320(3)(c) to the High Court would conflict with the implication of article 229, and on the ground that the wording of article 320(3)(c) simply did not relate to High Court employees, the Court was of the opinion that the Chief Justice did not need to obtain prior consultation with the Public Service Commission before dismissing the appellant. The Court therefore held that the appellant was not entitled to the protection of article 320(3)(c). As a result, none of the three arguments presented on behalf of the appellant were sustained: the first argument that the Chief Justice lacked the power to dismiss him, the second argument that the Chief Justice was not competent to delegate the enquiry to Mr Justice Das Gupta, and the third argument that the State Public Service Commission had to be consulted, were all found to be unsupported. The application therefore failed on its merits, which was sufficient to resolve the dispute concerning the appellant. The judges of the High Court had also examined at length whether an application for a writ was maintainable in a case of this nature and whether any remedy by way of a writ could be obtained against the Chief Justice’s action, whether administrative or judicial, and such arguments had been vigorously advanced by the Advocate-General of West Bengal. Since the present judgment had already decided the questions relating to the validity of the dismissal order, the Court did not feel bound to address the writ-availability issue and expressed no opinion on those questions. Nevertheless, the Court considered it appropriate to note that its view—that the power to dismiss a civil servant is an exercise of administrative authority—did not necessarily foreclose the possibility of a remedy under article 226 of the Constitution.
In an appropriate case, the question of whether a writ could be issued remained unresolved, and the Court expressly declined to express any opinion on that issue in the present matter. Accordingly, the Court concluded that the appeal filed by the petitioner must be dismissed and ordered that the petitioner shall bear the costs of the proceedings. Together with the appeal, the petitioner had also submitted an application to this Court seeking special leave to appeal under article 136 of the Constitution. The application challenged the orders dated 3 September 1951 and 16 September 1952, which had terminated his service and had refused a review. In light of the judgment now rendered, the Court found that the application for special leave could not be entertained and consequently ordered its rejection. The costs were assessed on a standard basis and were to be paid by the appellant as part of the final order. The rejection of the special leave application meant that the orders of dismissal dated 3 September 1951 and 16 September 1952 would remain effective and unreviewed by this Court. Thus, both the original appeal and the ancillary application for special leave were disposed of, leaving no further relief available to the appellant.