# l'Nd.Jld K , &.1 v. Tlw H011'61' tlN CAitl Jrati<'. of ~H1g/, Court

- **Citation:** [1955] 2 S.C.R. 1331
- **Court:** Supreme Court of India
- **Decided:** 1953-01-27
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-nd-jld-k-1-v-tlw-h011-61-tln-caitl-jrati-of-h1g-court-1484
- **Pages:** 22

## Headnote

. .,.
2S.C.R.
SUPREME COURT REPORTS
PRADYAT KUMAR BOSE
ti.
THE HON'BLE THE CHIEF JUSTICE OF
CALCUTT A HIGH COURT.
lVIVIAN
BosE,
BHAGWATI,
]AGANNADHADAs,
B. P. SINHA and ]APER IMAM JJ.]
1331
Calcutta High Court-Letters Patent 1865 11s 11menied in 1919Clause S read with clause 4-Chief Justice-Power of appointmenlW !tether includes power of dismissal-Delegation
of enquiry into
charges by Chief Justice to another Judge-Competency thereof-P9Uln'
to appoint or dismiss an officer-Whether an 11dminis~rative power:-
Dismissal of an official by Chief fustice-Whether prior consultation
of Public Services Commission necessary-Constit#tion of India,
Arts. 229, 3H, 320(3) and 367(1)-General Clauses Act, 1897 (Act
X of 1897), s. 16.
The appellant was appointed in March 1948 by the Chief Justice
of the Calcutta High Court as Registrar ~nd Accountant-General of
the High Court on its original side and confirmed therein in Nove1nber 1948. He was dismissed from that post with effect from ht
September 1951 by the Chief Justice by his order dated 3rd September 1951. There were various charges against the appellant and
Mr. Justice Das Gupta was deputed by the Chief Justice to make an
enquiry and submit a report. Mr. Justice Das Gupta made a full
enquiry and submitted a report in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of other charges. His conclusion was that the appellant must be
held guilty of misconduct and dishonest conduct and· that he was
unfit to hold the office of Registrar of the Original Side of the Calcutta High Court. The Chief Justice issued notice to the appellant intimating that he agreed with the
report and asked him to
show cause why he should not be dismissed from his post. After he
was
given an
opportunity to show cause, the appellant was dismissed by an order of the Chief Justice.
The appellant's petition to
the
Governor for the cancellation
of the above order was dismissed. Subsequently his" application for
review to the Chief Justice of the orior order of dismissal and a writ
petition under Art. 226 of the Constitution filed in the High Court in
respect of his dismissal were also dismissed one after the other. The
appellant obtained leave; to appeal to the Supreme Court. The three
main points for consideration by the Supreme Court were :
I. Whether the Chief Justice of the
High Court
had
no
power to dismiss the appellant ;
2. Even if
the Chief Justice had such power
whether he
could not delegate the enquiry into the charges to another Judie bat
should have made the enquiry himself ; and
1955
'
1955
l'Nd.Jld K....,
&.1
v.
Tlw H011'61' tlN
CAitl Jrati<'. of
~H1g/,
Court
1332
SUPREME COURT REPORTS
[1955]
3. Whether the order of dismissal by the Chief Justice
could
have been passed without previous consultation with the Public Services Commission as provided by Art. 320 of the Constitution.
Held ( l) that the Chief Justice was competent to dismiH the
appellant because both by virtue of the provisions of clause 8 of the
Letters Patent of the Calcutta High Court read with clause 4 of the
same as well as Arts. 229(1), 313 and 367(1) of the Constitution read
with s. 16 of the General Clauses Act, the power of appointment includes the power of dismissal ;
(2) the objection lo the validity of dismissal on the ground that
the dcl~gation of enquiry amounted to a delegation of power is without substance because the exercise of power to appoint or dismiss an
ofticer is the exercise not of a judicial power but of an administrative power and it is well settled that a statutory functionary exercising such a power cannot be said to have delegated his functioa
merely because he has deputed a ,responsible and competent oflicial
to enquire and report ; and
(3) it was not necessary to have the previous consultation with
the Public Service Commission for the dismissal of the appellant by
the Chief Justice because Art. 320(3) of the Constitution taken as a
whole is inconsistent with Art. 229

## Text

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. .,.
2S.C.R.
SUPREME COURT REPORTS
PRADYAT KUMAR BOSE
ti.
THE HON'BLE THE CHIEF JUSTICE OF
CALCUTT A HIGH COURT.
lVIVIAN
BosE,
BHAGWATI,
]AGANNADHADAs,
B. P. SINHA and ]APER IMAM JJ.]
1331
Calcutta High Court-Letters Patent 1865 11s 11menied in 1919Clause S read with clause 4-Chief Justice-Power of appointmenlW !tether includes power of dismissal-Delegation
of enquiry into
charges by Chief Justice to another Judge-Competency thereof-P9Uln'
to appoint or dismiss an officer-Whether an 11dminis~rative power:-
Dismissal of an official by Chief fustice-Whether prior consultation
of Public Services Commission necessary-Constit#tion of India,
Arts. 229, 3H, 320(3) and 367(1)-General Clauses Act, 1897 (Act
X of 1897), s. 16.
The appellant was appointed in March 1948 by the Chief Justice
of the Calcutta High Court as Registrar ~nd Accountant-General of
the High Court on its original side and confirmed therein in Nove1nber 1948. He was dismissed from that post with effect from ht
September 1951 by the Chief Justice by his order dated 3rd September 1951. There were various charges against the appellant and
Mr. Justice Das Gupta was deputed by the Chief Justice to make an
enquiry and submit a report. Mr. Justice Das Gupta made a full
enquiry and submitted a report in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of other charges. His conclusion was that the appellant must be
held guilty of misconduct and dishonest conduct and· that he was
unfit to hold the office of Registrar of the Original Side of the Calcutta High Court. The Chief Justice issued notice to the appellant intimating that he agreed with the
report and asked him to
show cause why he should not be dismissed from his post. After he
was
given an
opportunity to show cause, the appellant was dismissed by an order of the Chief Justice.
The appellant's petition to
the
Governor for the cancellation
of the above order was dismissed. Subsequently his" application for
review to the Chief Justice of the orior order of dismissal and a writ
petition under Art. 226 of the Constitution filed in the High Court in
respect of his dismissal were also dismissed one after the other. The
appellant obtained leave; to appeal to the Supreme Court. The three
main points for consideration by the Supreme Court were :
I. Whether the Chief Justice of the
High Court
had
no
power to dismiss the appellant ;
2. Even if
the Chief Justice had such power
whether he
could not delegate the enquiry into the charges to another Judie bat
should have made the enquiry himself ; and
1955
'
1955
l'Nd.Jld K....,
&.1
v.
Tlw H011'61' tlN
CAitl Jrati<'. of
~H1g/,
Court
1332
SUPREME COURT REPORTS
[1955]
3. Whether the order of dismissal by the Chief Justice
could
have been passed without previous consultation with the Public Services Commission as provided by Art. 320 of the Constitution.
Held ( l) that the Chief Justice was competent to dismiH the
appellant because both by virtue of the provisions of clause 8 of the
Letters Patent of the Calcutta High Court read with clause 4 of the
same as well as Arts. 229(1), 313 and 367(1) of the Constitution read
with s. 16 of the General Clauses Act, the power of appointment includes the power of dismissal ;
(2) the objection lo the validity of dismissal on the ground that
the dcl~gation of enquiry amounted to a delegation of power is without substance because the exercise of power to appoint or dismiss an
ofticer is the exercise not of a judicial power but of an administrative power and it is well settled that a statutory functionary exercising such a power cannot be said to have delegated his functioa
merely because he has deputed a ,responsible and competent oflicial
to enquire and report ; and
(3) it was not necessary to have the previous consultation with
the Public Service Commission for the dismissal of the appellant by
the Chief Justice because Art. 320(3) of the Constitution taken as a
whole is inconsistent with Art. 229 of the
Constitution and also
because the language thereof is not applicable to the
High Court
Staff.
North-West Frontier Province v. Suraj Nar•in Anand ([1948]
L.R. 75 I.A. 343), Barnard v. National Dock Labour Board, ([1953]
2 Q.B. 18, 40), Board of Education v. Rice ([1911] A.C. 179), and
Local Go•ernme•I Board v. Ar/illte ([1915] A.C. 120), referred to.
CIVIL
APPELLATE
Ju1.1sDICTION :
C1V1L
APPULS
Nos. 245 and 202 of 1953.
Appeal under Article 132(1)
of the Constitution
of India from the judgment and order dated the 27th
January 1953 of the Calcutta High Court in Matter
No. 139 of 1952.
RanaddJ Chaudhry, Anil Kumar Das Gupta and
Suklimar Ghose, for the appellant.
S. M. Bose, Ad11ocate-General for
West Bengal (B.
Sen and P. ~· Bose, with him) for the respondent.
1955. December 23.
The Judgment of the Court
was delivered by
JAGANNADHADAS
J.-This is an appeal by leave of
the High Court of Calcutta under article 132(1) of
,•
•
the Constitution.
The appellant before us was the
i.
>
2S.C.R.
SUPREME COURT REPORTS
1333
Registrar and Accountant-General of the High Court
at Calcutta on its Original Side.
He was appointed
to the post by the Chief
Justice of the High Court on
the 4th March, 1948 and confirmed therein on the
15th of November, 1948.
·He
was dismissed therefrom with effect from the 1st September, 1951, by an
·order of the Chief Justice dated the 3rd September,
1951. There were various charges against him and
Mr. Justice Das Gupta was deputed by order of the
Chief Justice dated the 28th May, 1951, to make an
enquiry and submit a report.
Mr. Justice Das Gupta
made a full enquiry and submitted his report on the
11th August, 1951, in which he exonerated the appellant in respect of some of the charges but found him
guilty in
respect of the other charges.
The learned
Judge expressed his conclusion as follows:
"Mr. Bose (the appellant) must
be
held
to be
guilty
of misconduct and dishonest·
conduct and
(that) he is unfit to hold the office of Registrar olf the
Original Side of this Court".
The Chief Justice issued to the appellant
a notice on
the 16th August, 1951, intimating that he agreed with
the
report after careful consideration thereof
and
asking him to show cause why he should not be dismissed from his post.
The appellant
was given a
hearing by the Chief Justice on the 31st August, 1951·
The order dated
the 3rd September,
1951, of the
Chief Justice dismissing the appellant from his office,
a copy of which was served on him, runs as follows :
"A full and thorough enquiry was held by Mr.
Justice K. C. Das Gupta into the charges made against
Sri P. K. Bose the Registrar of the Original Side of
this
Court.
Sri P. K. Bose was
represented by
eminent Counsel and every opportunity was given to
him to meet the charges and put forward his explanation and
~efence.
The learned Judge however in
a full and very carefully considered report found Sri
P. K. Bose guilty of serious charges involving moral
turpitude and dishonesty
and
further
he was
of
opinion that Sri P. K.
Bose was by reason thereof
unfit to hold the said office of Registrar.
I considered this report and the evidence
most
1955
p,.q,., Xlllllllt
Bos1
"·
Thi HDA'611 ,,_
Chiff }11.Jlid of
Ctikidta Hi11t
c-t
]o,_,a,J/tMu ].
1955
v.
The Hon'ble the
Chief y.,1;,, of
C'<llcuU4 High
Court
1334
SUPREME COURT REPORTS
[1955]
anxiously and found myself in entire agreement with
the learned Judge.
Sri P. K. Bose was, in my view,
clearly guilty of the matter comprised in the charges
specified by Mr. Justice K. C. Das Gupta.
I considered that prima facie
the conduct of Sri P. K.
Bose
warranted dismissal and I therefore gave him notice
under article 311 (2)
of the Constituion of India to
show cause against the action proposed against him,
namely, dismissal.
On the 31st August, 1951, Sri P. K. Bose showed
cause before
me and I heard Sri Sachin Chaudhri
his counsel and Sri P. K. Bose pe~sonally.
In all the
circumstances this is not a case in which I can properly show any leniency. Sri P. K. Bose has abused
the trust and confidence reposed in him and has been
found guilty of serious malpractices and dishonesty.
Conduct such as this of an officer of the status of the
Registrar of the Original Side of this Court is unpardonable and must be dealt with severe! y.
I therefore dismiss Sri P. K. Bose from his office as Registrar
of the Original Side of the Court, the dismissal to take
clfect from
the 1st September, 1951.
Let a copy of this order be served on Sri P.
K.
Bose".
On the 25th January,
1952,
the appellant submitted
a petition to the Governor of West Bengal for cancellation of the above
order.
He received intimation dated the 9th July,
1952, that the "Governor
declines
to
interfere on his behalf'.
Thereupon he
filed an application to the Chief Justice for review of
the prior order of dismissal.
It may be mentioned
that it was Chief Justice, Sir Arthur Trevor Harries,
who had initiated the proceedings against the appellant and passed the order of dismissal.
He retired in
June, 1952.
The application for review was made to
the successor Chief Justice, Shri P.
B. Chakravarti,
on
the 11th September, 1952.
This application was
rejected on the 16th September, 1952.
Thereafter on
the 24th November, 1952, i.e., more than an year
after
the order of dismissal, a writ
application was
filed on the Original Side of the High Court under
article 226 of the Constitution against the Hon'ble
I
'
2S.C.R.
SUPREME COURT REPORTS
1335
the Chief Justice of the High Court "for calling upon
him to bring up the records of
the proceedings relatrng to his dismissal, in order that justice may be done
by quashing or otherwise dealing with the said proceedings and the said order dated the 3rd September
1951, purporting to terminate his services and for
directions being given to the Chief Justice to desist
from
giving effect to or acting in any manner under
the said order".
On the presentation of
the application
the
learned Judge on the Original Side, Mr.
Justice
Bose,
issued a rule nw calling upon the
Hon'ble the Chief Justice to show cause why an order
in the nature of a writ as asked for should not be
made. This order was duly served and on its return
the learned Judge made an order referring the hearing
of the application to a Special Bench of three Judges
as per the rules. of the Court.
Accordingly the petition was, under the directions of the Chief Justice,
heard by
three learned
Judges of the , High Court,
who after elaborate hearing and consideration of the
points urged on behalf
of the appellant dismissed the
application.
Leave
to appeal to this Court was,
however, granted by
them under article 132(1)
on
the ground that the case involves substantial
questions of law relating to interpretation of the Constitution.
The main points that have been
urged by
the
appellant before us, as before the High Court, are
that-
( 1) the Chief Justice of the High Court had no
power under the law to dismiss him;
(2) even if he had the power, he could not delegate the enquiry into the charges, to another Judge
but should
have enquired into the same himself;
and
(3) in any case the order of dismissal could not
have been passed
in the absence of previous consultation with the Public Service Commission of the State
as provided under article 320 of the Constitution.
On behalf of the respondent, i.e., the Hon'ble
the
Chief Justice
of
the High Court at Calcutta,
the
learned
Advocate-General
of
West
Bengal
has
1955
Praiyu K umor
Bose
v.
Thi Ho11'/Jk tlu
Cltiif justice of
Calcutt• High
Court
ja,annadhaJas j.
1955
Pradyat Kumar
Bose
v.
The Hon'ble tht
Chief Justict of
CalcutttJ High
Court
Jagannadhaatu ].
1336
SUPREME COURT REPORTS
[1955]
appeared before us.
In addition to controverting the
correctness
of the above contentions raised on behalf
of the appeliant, he strongly urged that-
(1) no writ could issue
from the High Court
against its own Chief Justice;
(2) the order of the Chief Justice, the validity
of which is being challenged, is a purely administrative order against which no application for writ is
maintainable; and
(3) this was not a case in which having regard to
all the circumstances, any application
by way
of a
writ
•hould have been entertained.
The points
urged on behalf of the appellant may
first be taken up. The most important out of them
is
the one relating to the authority
of
the Chief
Justice to pass the order of dismissal as against the
appellant.
It is beyond dispute that the Chief Justice is the
authority
for
appointing the appellant. It was in
fact the Chief Justice who appointed the appellant
and confirmed him.
But it is strongly urged that he
had not the power to dismiss.
This argument is based
on
the
assumption that the appellant falls within the
category of public servants who are governed by the
Civil Services
(Classification,
Control and Appeal)
Rules,
(hereinafter referred to as the Civil Services
Rules)
of
the
year 1930 as amended from time to
time and that the said rules continue to apply, to an
officer holding the post which he did, even after the
Government of India Act, 1935, and later the Constitution . of . India of 1950 successively came
into
force.
The argument recognises the fact that
dismissal
is a matter
which falls
within conditions of
service
of a public servant
as held by the Privy
Council in
North-West Frontier Province v. Surai
Narain Anand(') and that the power of making rules
relating to conditions of service of the staff of the
High Courts is vested in the Chief Justice of the
Court under section 242(4)
taken with section 241 of
the Government of India Act, 1935, as also under.
article 229 (2) of the Constitution of India, 1950. But
(I) [1948] L· R. 75 I. A. 343.
.•
I
'
•
\
,
2S.C.R.
SUPREME COURT REPORTS
1337
it is said that no such rules have been framed by the
Chief Justice, and that therefore by virtue
of-sectiqn
276 of the Government of India Act,
1935, and article 313 of the Constitution, the Civil Services Rules
continued
to apply
to him.
It is necessary
to examine the correctness of these assumptions.
The Civil Services Rules were framed by the Secretary of State in Council under powers vested in him
by section 96-B (2) of the Government of India Act,
1915, as amended in 1919.
These rules were framed
on the 19th June, 1930, and published
on the 21st
June,
1930.
It is desirable therefore to consider the
position relating to the staff of the High Courts before that date.
It is not disputed that the said position was governed by
the Letters Patent of the High
Court. Clause 8 of the Letters Patent of 1865
as
amended in 1919, which continues to be operative, as
also clause 4 thereof, are relevant for the present
purpose. They are as follows:
"8. \Ve do hereby authorize and empower
the
Chief
Justice of the said High Court of Judicature at
Fort William in Bengal, from
time to time, as occasion may require,
a~<l subject to any rules and restrictions which may
be prescribed by the GovernorGeneral in Council, to appoint
so many and such
clerks and other ministerial officers as shall be found
necessary
for the administfation of justice,
and the
due execution
of
all
the powers
and authorities
granted
and committed to the said High Court by
these Our Letters Patent.
And it is Our further will
and pleasure and We do hereby for Us, Our heirs and
successors give, grant, direct, and appoint, that all
and every
the officers and clerks to be appointed as
aforesaid
shall
have
and receive respectively
such
reasonable salaries as the Chief Justice shall, from
time to time, appoint
for each office and place respectively,
and
as
the Governor-General
in Council
shall approve of: Provided always, and it is Our will
and pleasure,
that all
and
every the officers
and
clerks to be appointed as aforesaid shall be resident
within the limits of the jurisdiction of the said Court,
so long as they shall hold their respective offices; but
1955
Prad;-al Kumar
Bose
v.
The Hon'bu t/i6
Ch~( Juslie1 of
Calcutta High
Court
Jagannadhadas J.
!955
Pradyal ,.., .. ,
/Josi
v.
Thi Hon'hU th1
Chitf Justice of
Calculla High
Court
Jagannadhadas J.
1338
SUPREME COURT REPORTS
[19551
this proviso shall not interfere
with or prejudice the
right of any officer or clerk to avail himself of leave
of absence under any rules prescribed by the Governor-General in Council, and to absent himself from
the said
limits during the term of such leave, in
accordance with the said rules".
"4. We do hereby appoint and ordain, that every
clerk and ministerial officer of
the said High Court
of Judicature
at
Fort William in Bengal, appointed
by virtue
of the said Letters Patent of the Fourteenth
of May, One thousand eight hundred and sixty-two,
shall continue to hold and enjoy his office and employment, with the salary thereunto annexed, until
he be removed from such office and employment; and
he shall be subject to the like power of removal, regulations, and provisions if he were appointed by virtue of
these Letters Patent".
It will be noticed that .clause 8 specifically vests in the
Chief Justice the power of appointment, but
makes
no mention of
the power of removal or of making
regulations or provisions.
But it is
obvious
from
the last
portion
of
clause 4 that such power was
taken to be implicit under clause 8 and presumably
as arising from the power of appointment.
It may
be mentioned that under clause 10 of the
Charter of the Supreme Court of
Calcutta issued in
1774, the
said Court also was in specific terms "authorized and empowered from time to time, as occ:i.-
sion
may require, to appoint so many and such clerks
wd other ministerial officers as shall be found nece,...
sary for the administration of justice".
The power
of removal or of taking other disciplinary action as
regards such appointees was not in terms granted.
But
there
is
historical evidence to show that the
power
of
appointment conferred under the Charter
was
always
understood
as
comprising the above
powers.
Sir Charles Wood, the then Secretary of
State for
India in paragraph 10 of his dispatch
to the
Governor-General dated the 17th May,
1862, (on the
formation of the new High Courts) stated as follows:
"The Supreme Court exercises
an :i.uthority
entirely independent of the Government in respect al
I
..
'
t
2 S.C.R.
SUPREME COURT REPORTS
1339
its ministerial officers".
It is this power and authority along with other judicial power and authority that was succeeded to by
the High Courts (on their formation in supersession
of the Supreme and Sadar Courts)
by virtue of
section 9 of the Indian High Courts Act, in the following terms.
"Each of the High Courts to be established under
the Act shall have and exercise ................ all jurisdiction and
every power and authority whatsoever
in any manner vested in any of the Courts ............. .
. . . . . . . . . . abolished
under this Act .................. "
Thus it is clear that both under the Charter of the
Supreme Court as well as under the Letters Patent
of the High Court, the power of appointment
was
throughout understood as vesting in the High Court
or the Chief Justice, the complete administrative and
disciplinary control over its staff, including the power
of dismissal.
There can be no doubt that this position continued
at least until the Government of India Act,
1915.
Now, section
106 of the Government of India Act,
1915, in terms continued the above by providing that
the jurisdiction of the High Court would "include all
such powers and authority over and in relation to
the administration
of
justice
including power to
appoint clerks and other ministerial officers of the
Court as are vested in them by Letters Patent".
It
follows that the position continued to be the same
even under the GovernmeQ.t of India Act, 1915, at
any rate up to 1930, when the Civil Services Rules
came
into operation. All the powers under the Letters
Patent were, however, subject to alteration by competent legislative authority
by virtue of clause 44 of
the Letters Patent.
Clause 8 of the Letters Patent
itself provided that the power
of appointment of
the Chief Justice was to be "subject to rules and
restrictions which may
be prescribed
by the
Governor-General in Council".
Now, the Civil Services
Rules were made by the Secretary of State in Council
under section %-B of the Government. of India Act,
1915.
It is the case of the appellant that though the
30-95 S. C. India/59.
1955
ProdvaJ Ir umar
·Bose
...
The Hon'bu th,.
Chief Jwtica of
CalcuJta High
Court
JaganfUldhodAI J
1955
Pradyal Kumar
Bos•
v.
The Hon'blt Ou
Chi~{ ,]u.tlice of
CO!c11tta Jligh
Courl
1340
SUPREME COURT REPORTS
[1955]
Civil Services Rules framed by virtue of delegated
power under the Act could not override the specific
power of appointment vested in the Chief f ustice by
virtue of section 106 thereof, they would override the
alleged implications of that power such as the power of
dismissal and power to frame rules relating to conditions of service in so far as they are specifically provided for under the Civil Services Rules. It is further
u.rged that the said situation continues up to date by
virtue of section 276 of the. Government of India Act,
1935 and article 313 of the Constitution. Now, the appellant is a person who was appointed in 1948 and dismissed in 1951.
It is, therefore, desirable in the first
instance to examine the situation under the Government of India Act, 1935 and under the Constitution
of 1950 on the assumption
that
the Civil Services
Rules made a change in the prior situation so far as
the High Court staff is concerned and applied thereto
between 1930 and 1935.
Under the Government of India Act, 1935, the position relating to the Civil Services of. the Crown in
India is contained in a number of general provisiona
in Chapter II of Part X thereof.
Section
240(1)
reiterates what was first statutorily declared by section 96-B of the 1915 Act, viz.,
that except as expressly provided · by the Act every person who is a
member of a civil service of the Crown in India, or
holds any 6vil post under the Crown in India, holds
office
du~ing
His Majesty's pleasure.
Section 241
provides for the recruitment and conditions of service
of such persons
and prescribes the various authorities
who can make the appointments and frame the rule•
relating to conditions of service. Section 242( 4), in
so far as it is relevant fo, the present purpose, pro-.
vides that section 241 in its application to appointments
to and to persons serving on the staff attached
to a High -Court shall have effect as if, in the case of
a High Court, for any reference to fhe Governor in
paragraph (b) of section (1) in paragraph (a) of subsection (2) and in sub-section
(5), there was substituted a reference
to the Chief fustice of the Court.
Making
the
necessary
substitutions
as
prescrib"l
•
•
',
•
2 S.C.R.
SUPREME COURT REPORTS
1341
.above,
the statutory provisions in the Government
of India Act
1935, relating to recruitment and conditions of service of the staff of the High Court may
be read as follows :
"(l) Appointments to the Civil Services and Civil
posts under the
C~·own in India in relation to the
staff attached to the High Court shall be made by the
Chief Justice or such person as he may direct.
(2) The conditions of service of persons servmg
His Majesty in relation to the staff attached to the
High Court shall be made by the Chief Justice of the
High Court or by some person or persons authorised
by him to make the rules for the purpose.
Provided that-
( a) the Governor may in his discretion require
that in such . cases as he may in his discretion direct
no person not already attached to the Court shall
be appointed to any office connected with the Court
save
after consultation with the Provincial Public
'Service Commission;
(b) rules made under sub-section
(2) by a Chief
Justice
shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the
Governor".
These sections, while keeping intact the power of appointment
of the members of the staff of the High
Court with the Chief Justice as contained in the
Letters
Patent, provide, statutorily for the first time
and in express terms what was implicit in clause 8 of
the Letters Patent, viz., that the power to regulate
and frame rules relating to conditions of service governing such staff is also vested in the Chief Justice
subject however to two limitations indicated by the
provisos mentioned above.
The corresponding provisions
in the present Constitution relating to the
powers of the Chief Justice in relation to the recruitment and service conditions of the staff of the High
Court are almost identical and are contained in article 229.
They are as follows:
'
"229. (1) Appointments of officers and
servants
u£ a High Court shall be made by the Chief Justice of
1955
Pr•tlyat 1\ umat
Bou
v.
Tht Hon'bk t/11
Chief Justice of
Calcutta High
Court
1955
Pradvat Kumar
, Bose
"·
The Hon'ble t/1e
Chief Justice of
Calcutta Hig/1
Court
Jagannadhadas ].
1342
SUPREME COURT REPORTS
fl955J
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 scat may by rule
reql!ire that in such cases as may be specified in the·
rule no person not already attached to the Court shall
be appointed
to any office connected
with the
Court
save after consultation
with the State Public Service
Commission.
(2) Subject to the provisions of any law made by
the Legislature of the State,
the conditions of service
of officers and
servants of a High Court shall be such.
as
may be prescribed by trules made by the Chief
Justice of the Court or by some other Judge or officer
of the Court authorised by the Chief Justice to make
rules for the purpose:
Provided that the rules made under this clause,
shall, so far as they relate to salaries, allowance"S,
leave or pensions, require the approval of the Governor of the State in which the Court has its principal
seat".
It does not appear
from the record that any rules
have been made by the Chief Justice of the Calcutta
High Court, at any rate, in so far as they may be
applicable to the Registrar of the Original Side of the
High Court.
On the assumption, therefore, that the
Civil Services Rules
applied to the case of a person
in his position between 1930 and 1935, it has got to be
seen whether they continue to be so applicable.
The
relevant provisions in this behalf are section 276 of
the Government of India Act. 1935, and article 313
of the Constitution.
They are as follows:
"Section 276: Until other provision is made under
the
approp~iate
provisions of this Part of this Act,
any rules made under the Government of India Act
relating to the Civil Services of, or civil posts under,
the Crown in India which were in force immediately
before
the
commencement of
Part III of this
Act,
shall,
notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and
shall be deemed to be rules made under the appropriate provisions of this Act".
2S.C.R
SUPREME COURT REPORTS
1343
"Article 313:
Until other provision is made in this
behalf under this Constitution, all the laws in force
immediately
before
the
commencement of this Constitution and applicable
to any public service or any
post which continues to exist after the commence-
-ment of this· Constitution, as an all-India service or
as service or post under the Union or a Stat.:: shall
·Continue in force so far as consistent with the provisions
of this Constitution".
Now, it has to be observed that the continuance,
under section 276 of
the Government of India Act,
1935, of the Civil Services Rules, could only be in so
far as such continuance may be consistent with
the
new Act.
Further in their application to the High
Court staff, the rules are to be deemed to be rules
made under the appropriate provisions of the Act.
The rules, therefore, must be deemed to be rules made
by the Chief Justice consistently with the scheme and
the provisions of
the Act relating to the High Court
staff which specifically
vest
in him the powers of
appointment and of the regulation of conditions of
service · including
the power
of dismissal.
Such
continuance, therefore, can only operate by a process
of adaptJtion implicitly authorised by the very terms
of section 276.
It would follow
that. in their continued
application
to the High Court. staff, the word
"Governor" has to be read as substituted by the word
"Chief Justice"
wherever necessary in the same way
as section 242( 4) of the Act requires the provisions of
section 241 to be read as though any reference to the
Governor therein is substituted by a reference to the
Chief Justice of the High Court. The continued application of the Civil Services Rules without such adaptation would result in the anomalous position, that
although the 1935 Act specifically vests
in the Chief
Justice the power of appointment and of framing rules
regulating conditions
of service including
the
power
<0f dismissal
and
hence thereby
indicates the Chief
Justice as the authority having the power to exercise
disciplinary
control, he
has
no such
disciplinary
-control merely because he did not choose to make any
fresh rules
and was content with the continued appli1955
Prad;•at ii. umar
BoS<
v.
The llon'hl• the
Chief :Justice nf
Calcutta High
Court
:JagannaJ:,adas J.
1955
PraJyat A·11mu
BoJt
v.
TM Hon"blt IR1
Chief ]us tic1 of
CalcuJta Hith
Cf!llfl
1344
SUPREME COURT REPORTS
[1955]
~ation of the old rules.
Now, the relevant provmon
m the Civil Services Rules which deals with disciplinary action including dismissal is rule
52 thereof.
That
rule shows
that
"the Governor-General in
Council or Local Government of a Governor's Province
may impose any of the penalties specified in rule 49
(which includes dismissal) on any person included in
any of the classes 1 to 5 specified in rule 14 who 1'
serving under the administrative control of the Governor-General in Council or the Local
Government,
as the case may be".
This rule, if it originally applied
to the High Court staff, must after 1935 be read by
substituting
"Chief Justice"
in the place of "the
Local Government"
wherever it occurs therein and
making other consequential alterations.
Thus read,
there can be no doubt that as from the commencement of the Government of India Act, 1935, the power
of dismissal
of
a member of the High Court staff
including,
a person in the position of the appellant,
would vest in
the Chief Justice.
This would be so
even apart from the normal implication of the power
of appointment specifically
recognised under the Act.
It follows that even on
the assumption that Civil
Services Rules applied between
1930 and 1935 to the
High Court staff their continuance after 1935 makes
a change in the dismissing aut~ority and the power of
dismissal is vested in the Chief Justice.
That being
the correct position prior to 1950,
the Constitution
has made no change in this respect and article 3B
would also continue rule 52 of the Civil Services Rules
as above adapted.
It would, therefore, follow that,.
at any rate, from the time of passing of the Government of India Act,
1935, as also under the Constitution, the power of dismissal vests in the Chief Justice
notwithstanding
that no specific rules
have been
made in this behalf by the Chief Justice.
It· must be mentioned, at this stage, that so far as
the power of dismissal is concerned, the position
under the Constitution of 1950 is not open to any
argument or doubt.
Article 229(1)
which in terms
vests the power of appointment in the Chief Justice
is equally effective to vest in him the power of dis-
•
I
.,
. ~ '
2S.C.R.
SUPREME COURT REPORTS
1345
missal.
This results from section
16 of the General
Clauses Act which by virtue of article 367(1) of the
Constitution applies to the construction of the word
"appointment" in article 229( 1).
Section 16 of the
General Clauses Act clearly provides that the power
of "appointment"
includes the power "to suspend or
dismiss".
In view of the clear conclusion we have arrived at
as abo~e, we do not consider it necessary to deal with
the arguments addressed to us
on both sides as to the
applicability or othrewisc of the Civil
Services Rules
to the High Court staff, including a person in the
position of the appellant, and we express no opinion
thereon.
The
main
contention,
therefore,
of the
appellant as to the competency of the Chief Justice
to pass the order of dismissal against him fails.
The further subordinate objectjons that have been
raised
remain
to be considered.
The first objection
that has been urged is that even if the Chief Justice
had the power to dismiss,
he was not, in exercise of
that power, competent to delegate to another Judge
the enquiry into the charges but should have made
the enquiry himself.
This contention proceeds on a
misapprehension of the
nature of the power.
As
pointed
out
in
Barnard v. National Dock Labour
Board(1) at page ::10, it is true that "no judicial tribunal can delegate its functions unless it is enabled to
do so expressly or by necessary implication".
But
the exercise
of
the power -to appoint or dismiss an
officer is the exercise not of a judicial power but of
an administrative power.
It is nonetheless
so, by
reason . of the fact
that an opportunity to show cause
and
an e:nquiry
simulating judicial standards have
to precede the exercise thereof.
It is well-recognised
that a statutory functionary exercising such a power
cannot be said to have delegated his functions
merely
by deputing a respon\ible and competent official to
enquire and report.
That is the ordinary mode of
exercise of any administrative power.
What cannot
be deleg;ited · except where the law specifically so provides-is the
ultimate responsibility for the exercise
(\\ {\95312 Q. B· 18, 4o.
1955
Pr~dyat Kumar
·Bose
v.
The Ho11'ble 1/1'
Chief J11stice of
Calcutta Hig!i
Court
Jagarmadhadas J.
1955
Prad1•at Kumar
. BQJI
...
1)u Hon'ble the
Chief .7uJlice of
Calculta lligh
Court
JagannaJ:,adas J.
1346
SUPREME COURT REPORTS
11955 j
of such power. As pointed out by the House of Lords
in Board of Education v. Rice('), a functionary
who
has to decide an administrative matter, of the nature
i11volved
in
this case,
can obtain
the materi[ll
on
which he is to act in such manner as may be feasible
and convenient,
provided
only
the
affected
party
"h.1s
a fair opportunity to correct or contradict· any
relevant and
prejudicial material"·
The
fol\owini>;
passage from the speech of Lord Chancellor in Local
Government Board v . .. Arlidge(')
is apposite
and instructive-
"M y Lords, I concur in this view
of the pos1t10n
of an administrative body to which the decision of a
question in dispute between parties has been ent:·usted.
The result of its enquiry must, as I have said,
be taken, in
the absence of directions in the statute
to the contrary,
to be intended to be reached by
its
ordinary
procedure.
In the case
of the Local
Government Board
it
is
not doubtful what
this
procedure is..
Tl1e Minister at the head of the Board is
directly responsible to Parliament like other Ministers.
He is responsible not only for what he himself
does
but for all that is done in his department. The
volume "of work entrusted ·to him is very great and he
cannot do the great bulk . of it himself. He is expected
to obtain his
materials vicariously through his
officials, and he has discharged. his duty if he sees that
they obtain these materials for
him properly.
To try
to extend his
duty beyond this ~nd to insist that he
and other members of the Board shou \d do everything
personally would be to impair . his efficiency. Unlike
a Judge in a Court he is not only at liberty but is
compelled to .rely
on the assistance of his staff".
In view of the abm•e clear statement of the law the
objection
to the validity of the dismissal on
the
ground that the delegation of the enquiry amounts to
the delegation of the power itself is without 3ny substance and must be rejected.
The second objection that has been taken is that
even if the power of dismissal
~ vested in the Chief
Justice, the appellant. was entitled
to the
protection
(l) [t9IJ] A.C. 179, 182;
(2;
[1·~15] A.c. 120. 133.
'
, ....
•
2S.~.R.
SUPREME COURT REPORTS
1347
of article 320( 3 )( c) of the Constituion.
It is urged
that the dismissal in the absence of
consultation with
the Public Service Commission of
the State was
invatid. There can be no doubt that members of
the
staff in other Government departments of the
Unioa
or the State are normally entitled to the protection
of the
three constitutional
safeguards provided
in
articles 311(1), 311(2) and 320(3)(c). Article 320(3)(c)
so far as it is reievant for the present purpose, runs
as follows:
"The Union Public Service Commission or the
State Public Service Commission, as
the case may
be, shall
be
consulted on all disciplinary matters
affecting a person serving
under the Government of
India or the Government of a State in a civil capacity, including memorials or petitions relating to such
matters".
The phrase "all disciplinary matters affecting a person"
is sufficiently comprehensive to include any kind
of disciplinary action
p:·oposcd
to be taken in respect
-of a particular
person.
The question for comicleration, therefore, is whether a person belonging to the
staff of a High Court is within the scope of the phrase
"a person serving under the Government of India or
the Government of a State in a civii capacity". The
learned Judges of the High Court were of the opinion
that article 320(3) can have
no application
to the
present case.
In their view the provisions of article
320(3)
would be inconsistent with the power vested
in the Chief Justice of a High Court under article
229,
as regards
the appointment of officers
and servants of a High Cout and hence also of dismissal or
removal and as regards the framing of rules prescribing conditions of service of such officers or serv:mts.
They also point out that the proviso to article 229(1)
indicates the requirement that the State Public Service Commission should be consulted only in respect
.of the specific cases of future appointments and that
too if the Governor of the State so requires by rule.
They take this and the fact that under the Constitution
the provisions relating to High Court staff are taken
oot of Part XIV relating to the services,
as imply-
!955
Pradvilt Kwr.ur
··Bose
v.
Toe Hen' ble the
Chi~( ]11sttte ojCalu1tin Hi.Y,'1.
Court
-
]a.gunnadhadas ].
1955
Pn11Jyal J{umar
BMt
v.
The ll1111'blc th.r.
r:lii~f ,]11Jlf, e o.f
Calrulttt 11 i ,z •
(,',1111!
'
Jar,<mua,f!,cdas ].
1348
SUPREME COURT REPOI!.TS
[1955]
ing, that in the exercise of the powers vested in the
Chief Justice
under
article 229, consultation with the
State Public Service
Commission in respect of any
other matter must be taken to have been excluded.
This reasoning is not without force.
Undoubtedly
there is much to be said for the view that article
320(3)
taken as a whole is inconsistent
with article
229.
But it is possible to treat
the requirement of
prior consultation under article· 320(3) ( c) which relates
to disciplinary
action
against
individual Government
employees and which is in the nature of an important
constitutional
safeguard
for
individual
government
employees
as standing on a somewhat different footing from that under article 320(3) (a) or (b) which relate
to
general
matters
relating to recruitment!,
appointments,
etc.
Prior consultation
in respect of
individual
cases may not be considered necessarily
inconsistent with the actual exercise of the overriding power of the Chief Justice in
such cases.