T. Cajee vs U. Jormanik Siem And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 394 of 1960

Decision Date: 20 September 1960

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, J.L. Kapur, P.B. Gajendragadkar

In this case the matter titled T. Cajee versus U. Jormanik Siem and Another was decided on 20 September 1960 by the Supreme Court of India. The opinion was authored by Justice K. N. Wanchoo, who sat with Justices Bhuvneshwar P. Sinha, J. L. Kapur, and P. B. Gajendragadkar. The judgment appears in the 1961 volume of the All India Reporter at page 276 and is also reported in the 1961 Supreme Court Reports (First Series) at page 750. The case has subsequently been cited in a number of later reports, including the 1964 and 1965 Supreme Court Reports and several other volumes through the 1980s. The citation list records references such as R 1964 SC 787, D 1965 SC 1818, and RF 1972 SC 223, among others. The matter concerned the administration of tribal areas in the Assam region, specifically the removal of a tribal chief without a statutory enactment, and it also examined the powers of a district council and its executive committee under the Sixth Schedule of the Constitution of India.

The respondent, identified as Siem of the Mylliem siemship located in the United Khasi and Jaintia Hills District, had been elected in 1951 by the Mylliem electorate in accordance with customary practice. In June 1952 a District Council was constituted for the district under the provisions of the Sixth Schedule, and the siemship was brought within its jurisdiction. The Sixth Schedule empowered the District Council to enact regulations relating to a range of administrative matters, including the appointment and succession of chiefs and headmen. However, at the relevant time no specific regulation had been made concerning the appointment or removal of such chiefs and headmen. The Chief Executive Member of the Executive Committee of the District Council issued a notice to the respondent requiring him to show cause why he should not be removed from office, and subsequently suspended him. The respondent challenged this action on three grounds: first, that removal could be effected only by a law and not by administrative order; second, that the Executive Committee lacked authority to act in this matter; and third, that the suspension order was beyond the powers of the authority. The Court held that the District Council possessed a general power of administration under the Sixth Schedule that allowed it to appoint or remove administrative personnel even in the absence of a specific law. The Council was therefore both a legislative and an administrative body. While a specific law would bind the authority thereafter, until such a law was enacted the Council could exercise its administrative powers. The Court noted that the United Khasi‑Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act of 1959 had since come into force, and any further action should be taken in accordance with that Act. Additionally, the Court observed that Rule 30(a) of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951 permitted the Executive Committee to act on behalf of the District Council in emergencies, and it was not within the jurisdiction of the courts to determine whether an emergency existed. Consequently, the Court concluded that the Executive Committee’s interim suspension of the respondent could not be challenged, and that the respondent remained entitled to his remuneration during the period of suspension because no statutory provision authorized its withholding.

In the circumstances described, the Court held that the action taken by the Executive Committee could not be subjected to judicial challenge. The Court explained that an order of interim suspension could lawfully be issued against the respondent, identified as number 751, while an inquiry into his conduct was pending, even though the respondent’s terms of appointment did not contain a specific provision authorising such a suspension. Nevertheless, the Court found that the respondent remained entitled to receive his salary for the period of his interim suspension because no statute or rule existed that would permit the withholding of his remuneration. The Court applied the precedent set in Management of Hotel Imperial v. Hotel Workers’ Union, [1960] 1 S.C.R. 476, to reach this conclusion. Justice Subba Rao expressed a serious doubt that, when the Constitution grants an authority the power to enact laws on a particular subject, that authority may also act on the same subject in its administrative capacity without first making the necessary law.

The appeal under consideration arose from a certificate granted by the Assam High Court under Article 132(1) of the Constitution. The appeal, numbered Civil Appeal No. 394 of 1960, was filed against a judgment and order dated 19 April 1960 issued by the Assam High Court in Civil Rule No. 69/1959. The parties were represented by counsel for the appellant, including the Solicitor‑General of India, and counsel for each of the two respondents. The judgment of the Supreme Court was delivered by Chief Justice Sinha, with Justices Kapur, Gajendragadkar and Wanchoo joining, and a separate judgment was authored by Justice Subba Rao. Justice Wanchoo opened the judgment, noting that the appeal raised important questions about the interpretation of certain provisions of the Sixth Schedule of the Constitution.

The factual backdrop involved a writ petition filed by U. Jormanik Siem, referred to as the respondent, in the Assam High Court against the Chief Executive Member of the United Khasi and Jaintia Hills District Council, hereinafter called the appellant. The respondent contended that he was the Siem of the Mylliem Siemship, having been elected in 1951 by the Mntries and the local people in accordance with customary practice. After the District Council was constituted in June 1952, the Siemship was placed under its jurisdiction, and the respondent continued to perform administrative and judicial functions, receiving remuneration that was a share of the gross income of the Siemship. Custom dictated that a Siem, once appointed, could not be removed from office except through a popular referendum, unless the custom was altered by legislation passed by the District Council with the Governor’s concurrence. No such legislation had been enacted by the time the writ petition was filed on 8 July 1959. The respondent further explained that political differences with the then Chief Executive Member led, after the 1957 General Elections, to an attempt to damage his position. Consequently, charges were brought against him, and the appellant convened a Durbar scheduled for 6 July 1959, requesting the respondent’s attendance to defend himself.

It was not clear from the record whether the Durbar that had been convened for July 6, 1959, actually took place. Nevertheless, on July 7, 1959, the appellant issued an order stating that the charges that had been sent to the respondent were to be addressed and that the respondent must show cause by July 17, 1959, as to why he should not be removed from his office. The order further observed that the respondent had failed to appear before the appellant on July 7 as directed, and consequently the respondent was suspended from his office effective July 8, 1959. The suspension order also required the respondent to transfer his charge to the acting Siem on the same day. On July 8, 1959, the respondent filed a writ petition challenging the suspension; the petition was admitted on the same day and a notice was issued to the appellant to show cause why the writ should not be granted. The High Court subsequently stayed the operation of the appellant’s July 7 order. In the petition, the respondent argued that neither removal nor suspension could be lawfully imposed by the Executive Committee of the District Council, contending that the appellant’s suspension order was illegal, ultra vires, and contrary to the established custom and usage governing the Siemship. He further maintained that the appellant’s order lacked jurisdiction because it had been issued without the approval of the District Council and that no emergency existed to justify such action. The respondent also described the order as being mala fide and motivated by political hostility between himself and the Executive Committee. The appellant, in opposition, put forward that the Siem was nominated by an electoral college comprising representatives of several clans, and that the general populace had no role in the nomination, which was subject to Government approval. According to this custom, the respondent had been nominated by the Myntri‑electors to the Siemship of Mylliem, his nomination was approved by the Government, and he was appointed to the office of Siem pending confirmation by the District Council. After the District Council was formed in 1952, it approved the provisional appointment made by the Government and confirmed it on the terms set out in a letter dated April 9, 1953. Those terms were later modified in certain respects by another letter dated August 9, 1955. The respondent continued to serve as Siem based on the confirmation and the terms communicated in the two letters. No custom required a referendum of the people before the Siem of Mylliem could be removed. Moreover, because the Siem’s appointment had originally been made by the Government and subsequently by the District Council, the Siem was liable to removal or suspension by the appointing authority if he failed to act in accordance with his appointment terms or was guilty of oppression, misconduct, or dereliction of duty.

The Court observed that the allegation of political animosity against the then Chief Executive Member had been rejected and that the focus was placed on the respondent’s behaviour while performing his duties. It found that the respondent’s conduct demonstrated that he was not suitable to continue in the office of Siem. Accordingly, an order dated 7 July 1959 was issued that suspended the respondent. The Court held that this suspension order was lawful, fell within the powers granted by the appointment, and conformed to the customary practices of the territory. Consequently, it was not required to secure the approval of the District Council before issuing the order, because the order was consistent with the terms of the respondent’s appointment. The Executive Committee, after reviewing all the circumstances, concluded that the situation constituted an emergency and therefore acted without seeking the District Council’s endorsement. The High Court, on review, did not examine whether any custom existed that would allow removal of a Siem only through a popular referendum. Instead, it held that, following the commencement of the Constitution, the Khasi States ceased to exist as independent entities except where the Constitution expressly preserved their existence or powers. The High Court further found that the respondent had been appointed to the Siem’s office by the Deputy Commissioner on behalf of the Government, taking into account the nomination of the Myntri‑electors, and that this appointment was subject to confirmation by the District Council once the Council was formed. The Court noted that the District Council had indeed confirmed the appointment on 9 April 1953 and that the confirmation terms were subsequently modified in 1955.

The Court also determined that while the District Council possessed the overall administration of the district, the functions of appointing and succeeding Siems were never intended to be part of its ordinary administrative duties. Accordingly, the Council could act in this matter only by enacting legislation with the Governor’s assent, not by issuing administrative orders. Thus, any power to appoint, and even to dismiss, could be exercised by the Council solely through proper legislative procedures. As a result, the High Court allowed the petition, directing that the 7 July 1959 suspension order should not be enforced because it lacked legal authority. Following this decision, the appellant sought and obtained a certificate from the High Court under Article 132 of the Constitution, bringing the dispute before the Supreme Court. Before addressing the principal issue on which the respondent’s writ succeeded, the Court considered the historical status of the Chiefs in the former Khasi States prior to 1947 and the effect of the Constitution’s commencement in 1950 on that status. It noted that, before 1947, there were twenty‑five Chiefs, each exercising only limited powers within their respective states.

In the former Khasi States the method of selecting the Chief varied. In a few of the States the succession was hereditary, whereas in the majority the Chief, regardless of the title by which he was known, was chosen either by an electoral college or directly by the people. In many instances the election was limited to members of certain families that were recognized as the Chief’s families. Regardless of whether the Chief came to power by inheritance or by election, the British Government, represented by the Crown authority, had to formally recognize the new Chief before he could exercise any functions; this recognition was conveyed through the grant of sands to the Chief. The British Government, acting through its Crown representative, reserved for itself the ultimate power to remove a Chief on grounds of oppression, misconduct, or neglect of duty, but before exercising that power it observed the customary practice of the particular State for determining the wishes of the electoral college or the population. In addition, the Chiefs were subject to the oversight of the Deputy Commissioner of the district. This arrangement remained in force up to 15 August 1947, the date on which India became a Dominion and the British paramountcy ceased. After that date the twenty‑five Chiefs organized themselves into a Federation. A new relationship with the Government of India was then created by means of an Instrument of Accession, which the Governor‑General of India accepted on 17 August 1948. Under that Instrument each Chief, and the Chiefs collectively as members of the Federation, acceded to the Dominion of India, and all existing administrative arrangements between the Government of India and the State of Assam on one side and the Khasi States on the other were to continue until new or modified arrangements were made, subject to certain exceptions concerning judicial and administrative powers. The only administrative matters that were excepted were excise, forests, land and water rights and the revenue derived from them; every other function was to be shared with the Central or State Government. Regarding legislation, both the Dominion Legislature and the Assam Legislature were empowered to enact laws on matters of common interest, provided that a mechanism for representation in the Assam Legislature was devised. This situation persisted until the Constitution of India came into force. No merger of the twenty‑five Khasi States into India occurred before 26 January 1950. However, the Constitution’s First Schedule defined the territory of the State of Assam as comprising the areas that, immediately before the Constitution’s commencement, formed the Province of Assam, the Khasi States, and the Assam Tribal Areas, excluding the territories specified in the Schedule to the Assam (Alteration of Boundaries) Act. Consequently, the Constitution merged the Khasi States into the State of Assam.

In 1951 the Constitution merged the twenty‑five Khasi States into the State of Assam, thereby terminating any administrative authority that the Chiefs previously exercised. Although Article 244(2) of the Constitution provided that the special provisions of the Sixth Schedule would apply to the tribal areas of Assam, the effect of the merger was that the Chiefs lost all ruling or administrative powers. From that date the governance of those former states was to be carried out in accordance with the provisions contained in the Sixth Schedule. The Schedule, by paragraphs 1 and 20, divides the entire tribal area into autonomous districts and two other specified areas, and it further allows each autonomous district to be subdivided into autonomous regions. Paragraphs 2 to 17 set out the detailed scheme for the administration of autonomous districts and autonomous regions, while paragraph 18 extends the application of paragraphs 2 to 17 to the two additional areas identified in paragraph 20. Paragraph 19 contains transitional provisions, and paragraph 21 deals with the amendment procedure for the Schedule.

The United Khasi and Jaintia Hills District, which is the subject of the present dispute, comprises the territories that were, before the Constitution came into force, known as the Khasi States together with the Khasi and Jaintia Hills Districts, but it excludes certain portions within the Shillong cantonment and municipality. Under paragraph 2 of the Sixth Schedule, District Councils and Regional Councils are to be constituted for the autonomous district and its regions. The Governor is empowered to make rules governing the initial constitution of these Councils, and he must do so after consulting the existing tribal councils and other representative tribal organisations that operate in the relevant districts or regions. The rules that the Governor may frame are required to specify the composition of the Councils, the delimitation of territorial constituencies, the qualifications for voters, the preparation of electoral rolls, the qualifications for persons to be elected as members, the term of office of the members, and any other matter relating to elections or nominations. In addition, the rules must prescribe the procedure and conduct of business in the Councils, the appointment of officers and staff, and any other matters necessary for the functioning of the Councils. Once constituted, the District or Regional Council receives the powers set out in paragraph 2, including authority to create local Councils or Boards, to determine their procedures, to conduct their business, and generally to manage all affairs relating to the administration of the district or region. Furthermore, paragraph 2(4) provides that, except where any particular matter is vested in a Regional Council within the district, the administration of an autonomous district shall be vested in the District Council of that district.

In this scheme, the administration of each autonomous district is placed with the District Council of that district, while the administration of an autonomous region is placed with the Regional Council of that region. Paragraph 3 confers upon both District and Regional Councils the authority to enact legislation concerning a range of subjects, including the appointment and succession of Chiefs or Headmen, provided that every such law must be laid before the Governor and cannot take effect without the Governor’s assent. Paragraphs 4 and 5 address the administration of justice within the autonomous areas. Paragraph 6 authorises the District Council to establish, construct, or manage institutions and facilities such as primary schools, dispensaries, markets, cattle pounds, ferries, fisheries, roads and waterways. Paragraphs 7, 8 and 9 relate to the financial matters of the Councils. Paragraph 10 empowers District Councils to issue regulations that control money‑lending and trading activities conducted by non‑tribal persons, with such regulations becoming operative only after receiving the Governor’s assent. Paragraph 11 requires the publication of any law, rule or regulation made under the Schedule. Paragraph 12 governs the extent to which Acts of Parliament and the State Legislature apply to autonomous districts and autonomous regions. Paragraph 13 deals with the preparation and presentation of the budget. Paragraph 14 authorises the Governor, at any time, to appoint a commission to investigate and report on the administration of autonomous districts and autonomous regions. Paragraph 15 gives the Governor the power to annul or suspend any Act or regulation of the District or Regional Councils under specified circumstances, and also enables the Governor to suspend a Council and to assume all or any of its powers, provided that such order is placed before the Assam Legislature. Paragraph 16 permits the Governor, on the recommendation of the commission appointed under paragraph 14, to dissolve a District or Regional Council, to call a fresh election, and, pending the election, to assume the administration of the area, subject again to prior approval of the Assam Legislature. Paragraph 17 concerns the formation of constituencies for the Assam Legislative Assembly. Paragraph 19 sets out transitional provisions, directing that as soon as possible after the Constitution commences, the Governor shall take steps to constitute a District Council for each autonomous district under the Schedule; until such a Council is formed, the administration of that district remains vested in the Governor. Paragraph 19 further provides that no Act of Parliament or of the Assam Legislature shall apply to any area unless the Governor, by public notification, expressly directs its application, and the Governor may, in giving such direction, impose exceptions or modifications as he deems appropriate. The Governor is also empowered to make regulations aimed at preserving peace and good government in any area, and any such regulation may repeal or amend any Act of Parliament or of the Assam Legislature or any existing law then applicable to that area.

The Court explained that the authority to make regulations for an autonomous district was limited by the requirement of the President’s assent, and that such regulations could amend or repeal any existing law of Parliament, the Assam legislature, or any other law then applicable to the area. Because of this arrangement, the Sixth Schedule created a District Council that functioned both as an administrative body and as a legislative assembly. Until a District Council was formally established, all of the administrative and legislative powers described in paragraph nineteen were exercised by the Governor. In exercise of those powers, the Governor issued the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951, made under paragraph 2(6). Those Rules provided, among other matters, for an Executive Committee headed by a Chief Executive Member together with two additional members, and assigned to that Committee the executive responsibilities of the District Council. The Rules also listed certain subjects that were excluded from the Executive Committee’s jurisdiction; however, they permitted the Committee, in an emergency, to act on those excluded matters if necessary, on the condition that each such action be reported to the District Council at its next session. Pursuant to the Rules, the District Council for the relevant district was constituted in June 1952. The Court further observed that the administrative authority previously enjoyed by the tribal chiefs before 26 January 1950 ceased to exist with the commencement of the Constitution, and that, during the transitional period, all administrative powers that previously belonged to the chiefs were transferred to the Governor under paragraph 19 of the Sixth Schedule.

Against this background, the Court considered the notification dated 6 March 1951, which informed the public of the government’s decision, after careful review of the nomination made by the tribal electors for the successor to the Siemship of Mylliem and after consideration of objections to that nomination, to appoint the respondent as Siem of Mylliem in place of the late U. Sati Raja, subject to later confirmation by the District Council once it was formed. The notification also stated that the respondent assumed charge of the Siemship on 5 March 1951. The Court noted that, in this case, the tribal electors’ vote functioned as a nomination that required the Governor’s approval before the nominee could actually hold the office of Siem. Consequently, until the Governor gave his approval and made the appointment, the nominee could not exercise the powers of Siem of Mylliem. Thus, immediately after the Constitution came into force, the Governor was responsible for the administration of autonomous districts until the District Councils were created, and this responsibility included the power to appoint officials to carry out administrative duties. Accordingly, the appointment of the respondent as Siem of Mylliem was made by the Governor under the authority granted by paragraph 19, and the respondent’s authority derived solely from that appointment.

In this case, the Court explained that the appointment of the respondent as Siem of Mylliem was made by the Governor exercising the authority granted under paragraph 19 of the relevant schedule. Consequently, the respondent’s authority to act as Siem derived solely from that gubernatorial appointment, and he could not assert any powers beyond those conferred by it. The Governor expressly stated that his appointment was provisional, pending confirmation by the District Council once that body was constituted, because the Governor’s powers at the time were themselves transitional and limited to paragraph 19. Accordingly, when the District Council was formed in June 1952, it exercised its administrative powers under paragraph 2 (4) and reviewed the Governor’s 1951 appointment. The Council then confirmed the respondent’s position as Siem of Mylliem and communicated the confirmation together with the specific terms attached to it. Among those terms, besides financial provisions, the Council required that the Siem remain under the control of the District Council and obey all orders issued from time to time by the Council or by officers acting on its behalf. The terms also mandated that the Siem conduct himself in conformity with the customs and usages that the Council had approved and in accordance with any rules, laws or regulations that the Council might issue in the future. A further condition provided that the Siem, and any other officers, could be removed from office by an order of the District Council if the Council was satisfied that the officer had failed to discharge his duties properly, acted prejudicially to the interests of the Siemship or the Council, or behaved with indecorum; such removal orders were expressly stated to be final. Accordingly, after April 1953, the respondent continued to hold the office of Siem on the basis of the Council’s confirmation and the attendant conditions. In August 1955, the Council issued a modification of those terms, which was communicated to the respondent on 9 August 1955. The modified notice informed the respondent that he would retain the Siemship so long as he was not removed by the District Council for any lapse on his part, that he must submit to the directions of the Council, and that he must obey all orders issued by the Chief Executive Member or by any officer authorized to act on behalf of the Chief Executive Member. The notice further required the respondent to manage the affairs of the Elaka in accordance with the established customs and customary laws approved by the Council and to follow the rules and regulations that the Council had already enforced or might enforce subsequently. The notice also made provision for the judicial powers of the Siem in accordance with the United Khasi‑Jaintia Hills Autonomous District (Administration of Justice) Rules, 1953.

The orders also referenced the Justice Rules of 1953 and contained additional provisions dealing with financial matters. As a result of those orders, the respondent’s tenure as Siem would continue so long as he was not removed for any lapse on his part. When the three orders dated 1951, 1953 and 1955 are examined together, it becomes clear that the respondent held the office of Siem by virtue of his original appointment by the Governor, which was subsequently confirmed by the District Council on the terms that had been communicated to him. Consequently, he was effectively an administrative officer appointed by the District Council pursuant to the powers granted under paragraph 2(4) of the Schedule, and he operated under the Council’s control. This arrangement appears to have persisted until 1959, when events led to the issuance of the order dated 7 July 1959.

The Court stated that it was not concerned in the present appeal with the merits of the action taken against the respondent, nor with whether the Executive Committee of the District Council had sufficient cause to act against him. The sole issue before the Court was whether the Executive Committee possessed any authority at all to remove the respondent from the office of Siem. The High Court had held that the appointment and succession of a Siem were not administrative functions of the District Council, and that the Council could act only by legislating with the Governor’s assent with respect to the appointment and removal of a Siem. In reaching that conclusion, the High Court relied upon paragraph 3(1)(g) of the Schedule, which provides that the District Council may make laws concerning the appointment and succession of Chiefs and Headmen. The High Court appeared to infer that, until such a law was enacted, the Council possessed no power to appoint a Chief or Siem, and consequently no power to remove one.

The Court disagreed with that interpretation, observing that the High Court had read far more into paragraph 3(1)(g) than the language warranted. Paragraph 3(1) functions essentially as a legislative list, enumerating the subjects on which the District Council may legislate. Under sub‑paragraph (g) the Council is empowered to make laws regarding the appointment or succession of Chiefs or Headmen, which naturally includes the power to remove them. However, the Court emphasized that this does not mean that the appointment or removal of a Chief is itself a legislative act, nor that such actions require a prior law. The Court further noted that the High Court seemed to assume that, because there was no provision in the Sixth Schedule relating to Articles 73 and 162 of the Constitution, the Council’s administrative power could not extend to the subjects listed in paragraph 3(1). The Court rejected that view, maintaining that the administrative authority vested in the District Council under paragraph 2(4) is comprehensive enough to encompass the executive functions necessary for district administration, including the appointment and removal of officers such as the Siem.

The judgment observed that Article 162 of the Constitution did not limit the administrative power of a District Council to the subjects listed in paragraph 3(1). It further noted that paragraph 2(4) declared that the administration of an autonomous district vests in the District Council, and that this provision is sufficiently comprehensive to encompass all executive powers necessary for district administration. The judgment acknowledged that when executive power interferes with citizens’ rights, it must be supported by an appropriate law; however, it held that where executive power concerns only the personnel who manage the administration, a law, rule, or regulation governing their appointment is not mandatory, although it may be desirable. The Sixth Schedule originally placed the administration of autonomous districts in the Governor during a transitional period and thereafter in the District Council. The administration could be executed by officers such as the Siem, the Chief, and subordinate officials, and the judgment found it clear that the Governor initially, and the District Councils subsequently, possessed the authority to appoint such officers by virtue of the administration being vested in them. Once the power to appoint falls within the district’s administrative authority, the power to remove those appointed necessarily follows as a corollary. The judgment rejected the notion that the Constitution intended a complete halt to district administration until the Governor issued regulations under paragraph 19(1)(b) or the District Council enacted laws under paragraph 3(1)(g). Instead, it held that both the Governor and, later, the District Councils were endowed with the power to continue administration, which included appointing and dismissing personnel. While the judgment recognized that, after regulations under paragraph 19(1)(b) or laws under paragraph 3(1) concerning appointment or removal are made, the administrative authorities must adhere to those provisions, it emphasized that the absence of such regulations or laws does not preclude appointments or dismissals. Consequently, the judgment concluded that the authorities always possessed the power to appoint or remove administrative personnel under the general administrative authority vested by the Sixth Schedule. Accordingly, the view taken by the High Court—that the District Council could not make appointments or removals without a prior law under paragraph 3(1)(g)—could not be sustained. In this case, the District Council when it confirmed the appointment of the respondent

The District Council, exercising its administrative authority, set certain conditions for the respondent’s service, and those conditions were intended to regulate the relationship between the respondent and the Council, including any removal from the office of Siem. The Court referred to the decision in Parshotam Lal Dhingra v. The Union of India (1), observing that the terms of service of a government servant appointed to a post are governed by the employment contract, whether express or implied, and by the rules that apply to members of the relevant service. When no general rules exist, the specific terms offered to an individual officer at the time of appointment govern the relationship between the appointing authority and that officer. Consequently, it would be incorrect to hold that the respondent could not be removed after his appointment if the removal complied with the terms on which he was appointed. The High Court had held that the appointment itself was illegal because no law existed to support it at the relevant time. However, the Court noted that both the Governor and, subsequently, the District Councils were vested with the authority to administer autonomous districts, and that authority included the inherent power to both appoint and remove personnel. It is unreasonable to suggest that an authority which makes an appointment would lack the power to remove the appointed individual. In the present case there was no difficulty because, when the District Council confirmed the respondent’s appointment, it also specified the terms under which the appointment would continue and the circumstances that would permit removal from the office. Moreover, the appointment could not be said to have been made solely by the Governor, since the March 1951 notification clarified that any appointment by the Governor was provisional and required confirmation by the District Council once it was formed. The District Council indeed confirmed the respondent’s appointment in April 1953, thereby making the Council the proper appointing authority with the consequent power to remove him. If, as the High Court suggested, the appointment were invalid, the respondent would have no standing to seek a writ under Article 226, and he could not challenge his suspension. Therefore, the Court concluded that the respondent, being an officer appointed by the District Council to carry out administrative functions, could lawfully be removed by that Council in accordance with the terms and conditions of his appointment.

The Court observed that the respondent’s appointment was governed by specific terms and conditions, and consequently the authority to remove him lay with the body that appointed him, namely the District Council. The next issue for consideration was whether the Executive Committee of that Council possessed the power to take the action it had taken in the present case. Under ordinary principles, because the appointment was made by the District Council, the power to remove the officer could only be exercised by the Council itself. The respondent argued that even if the Council had the power to remove him in accordance with the conditions of his appointment, that power could not be exercised by the Executive Committee, but solely by the Council.

In addressing this contention, the Court turned to Rules 28, 29 and 30 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951. Rule 28 vests the executive functions of the District Council in its Executive Committee. Rule 29(1) authorises the Executive Committee to dispose of all matters falling within its jurisdiction, subject to the exceptions listed in Rule 29(2). One of those exceptions concerns “all important appointments.” Assuming that the office of “seem” (the position held by the respondent) qualified as an important appointment, the Executive Committee could not ordinarily deal with the removal of the respondent because of the restriction in Rule 29(2). However, Rule 30(a) provides an additional safeguard: where an immediate action in respect of any of the excepted matters is necessary, the Executive Committee of a District Council, other than those of the Mikir Hills or the North Cachar Hills, may take such action if it deems an emergency required, provided that the matter is presented to the District Council at its next session. The order dated 7 July 1959 demonstrated that the Executive Committee acted under Rule 30(a), considering the situation to be an emergency. The Court held that it is not the function of the judiciary to adjudicate whether an emergency truly existed in a particular instance of an excepted matter, and therefore the Executive Committee’s action could not be set aside on the ground that it exceeded its authority.

The final point raised by the respondent was that the Executive Committee lacked the power to suspend him, relying on the decision in Management of Hotel Imperial v. Hotel Workers’ Union. That decision clarified that the power to suspend a servant, in the sense of prohibiting him from working, is not an implied term of an ordinary employment contract; such power can arise only from a statutory provision, an express term in the contract, or a rule made under a statute. In the absence of any such express authority, a master cannot lawfully suspend a workman and must continue to pay wages during the period of alleged suspension. Conversely, if the contract, statute, or rules do grant a power of suspension, that suspension temporarily alters the master‑servant relationship, relieving the servant of the obligation to render service and relieving the master of the obligation to pay wages. The Court noted that this principle was the basis of the respondent’s argument that the Executive Committee could not lawfully suspend him.

In the judgment, the Court quoted the earlier principle that “however, there is power to suspend either in the contract of, employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.” Relying on that observation, it was submitted that the respondent could not be suspended under any circumstance. The Court explained that suspension may arise in two distinct forms. The first form is punitive suspension, which the present matter does not involve. The second form is an interim suspension that may be imposed while an inquiry is pending, where the ultimate aim of the inquiry is the removal of the employee. The Court noted that this second type of suspension had been considered in the decision of Hotel Imperial (1). In that earlier case, it was held that without an express term in the employment contract or without a specific provision in a statute or in the rules made thereunder, an employer could not withhold the employee’s wages during an interim suspension. The Court further clarified that the Hotel Imperial case did not say that an employer could not prohibit the employee from performing work while the employer was investigating the employee’s conduct with a view to possible removal. On the contrary, the earlier judgment stated that if the employer forbids the employee to work and thereby effectively suspends him as an interim measure, the employer must continue to pay the employee’s wages for the period of that interim suspension. Consequently, wages, remuneration for work done, or emoluments of the office cannot be withheld, in whole or in part, unless there is a specific power to order such an interim suspension contained either in the employment contract, in a statute, or in the rules made thereunder. The effect of that precedent is that, in the absence of such a power, an employer may still issue an order of interim suspension, but must still pay the employee according to the contractual terms. ID the present case, the Court observed that the terms and conditions communicated to the respondent did not contain any express clause granting the District Council authority to issue an interim suspension order while investigating the respondent’s conduct for a prospective removal. Moreover, no statute or set of rules was identified that authorized an interim suspension which would permit the withholding of the employee’s remuneration, either wholly or partly. In view of these facts, the Court concluded that although an order of interim suspension could theoretically be made against the respondent during the pendency of the inquiry, the respondent’s remuneration, as stipulated in the communicated terms and conditions, could not be lawfully withheld unless a governing statute or rule existed that justified such a deduction. Accordingly, because no such statute or rule was found, the respondent’s full remuneration could not be withheld despite the issuance of an interim suspension.

The Court observed that the respondent’s salary could not be withheld simply because an order of interim suspension had been issued, even though such an order required the respondent to cease performing the duties of his office. The interim suspension order that was issued in this matter on 7 July 1959 was therefore held to be valid, but the respondent was required to receive his full remuneration unless the District Council could lawfully retain all or part of that remuneration under a statute or rules specifically enacted for that purpose. The Court noted that there was no express term in the contract or any statutory provision authorising the withholding of the whole or any portion of the remuneration in this case.

The Court then turned to the legislative development that had occurred after the suspension order. It pointed out that a new statute, the United Khasi‑Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No 11 of 1959), had been enacted and came into force in October 1959. The Act governs the appointment, removal and suspension as a form of punishment of chiefs and headmen. The term “Chief” under the Act includes a Siem, a Lyngdoh and similar persons, and consequently the respondent fell within the meaning of “Chief” under the Act. Accordingly, the Court allowed the appeal, ordered that costs be awarded, set aside the order of the High Court and directed that any further proceedings be conducted in accordance with the provisions of the newly enacted Act.

Justice Subba Rao, concurring with the conclusion, expressed that he had serious reservations about whether an authority that the Constitution empowers to make laws on a particular subject may act on that subject without first enacting a law in its legislative capacity. He therefore refrained from commenting on that point. Nevertheless, he agreed with the two principal reasons advanced by his colleague. First, he noted that if the respondent’s arguments were accepted, the original appointment order would be invalid, thereby depriving the Siem of any right to the office. Second, he observed that the Act passed on 16 October 1959 provided a valid legal basis for the District Council to remove a Siem, and that the inquiry, being only at its initial stage, could legitimately be pursued under the provisions of that Act. Consequently, the appeal was allowed.