# SUPREME COURT REPORTS [1959) Supp. D. S. GAREWAL v. THE STATE OF PUNJAB AND ANOTHER

- **Citation:** [1959] Supp. 1 S.C.R. 792
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal Punjab .s. Anoth .. No. 426 of 1958
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1959-supp-d-s-garewal-v-the-state-of-punjab-and-another-1640
- **Pages:** 15

## Headnote

December Ir.
792
SUPREME COURT REPORTS [1959) Supp.
D. S. GAREWAL
v.
THE STATE OF PUNJAB AND ANOTHER
s. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
All-India Services-Act passed by provisional ParliamentConstitutionrd validity-Prepidents' power of adaptation-Parliament,
if authorised to delegate power to Central Government-Rules, validity of-Institution of enquiry-Competence of the State Government-.
All-India Services Act (LXI of r95I), ss, 3, 4-All-India Services
(Discipline and Appeal) Rules, r. 5-Constitution of India, Arts. 3I2,
392.
The point for determination in this appeal was whether the
All India Services Act, (LXI of 1951), enacted by the provisional
Parliament, was a constitutionally valid legislation. As there
was only one House during the transitional period, the President
in exercise of his powers under Art. 392 of the Constitution
passed the Constitution (Removal of Difficulties) Order No. II,
on January 26, 1950, and made, amongst others, an adaptation
of Art. 312(1) omitting the following therefrom,-" XXX if the
Council of States has declared by resolution supported by not
less than two-thirds of the members present and voting that it is
necessary or expedient in the national interest to do so XXX ".
The appellant, who was appointed to the Indian Police Service
in 1949, held the post of Superintendent of Police in the Punjab
in 1957 when he was reverted as Assistant Superintendent of
Police and informed that action was proposed to be taken
against him under r. 5 of the All India Services (Discipline and
Appeal) Rules, 1955, framed under s. 3 of the All India Services
Act, (LXI of 1951). He was, thereafter, placed under suspension
and an Officer was directed to hold a departmental enquiry
against him. On receipt of notice of the said enquiry, he moved
the High Court under Art. 226 of the Constitution and challenged
the constitutional validity of the Act and the legality of the
enquiry. The High Court held against him alld hence this
appeal. It was contended on behalf of the appellant, (1) that
the President had exceeded his power under Art. 392 in amending Art. 312 in the way he did; (2) that the provisional Parliament was incompetent to enact the impugned Act as there was
no compliance with the condition precedent to such an Act being
passed under Art. 312 ; (3) that the Rules were repugnant to
Art. 312 as they were made at a time when the adaptation was
no longer in force; (4) that the Parliament h~d no authority to
delegate its function under Art. 312 to the Central G;overnment ;
(5) that, at any rate, s. 3 of the Act was vitiated by excessive
delegation and (6) that the Punjab Government had no authority
under the Rules to institute the proceedings.
(1) S.C.R.
SUPREJVIE COURT REPORTS
793
Held, that the confontions were all without substance and
r958
must be rejected.
The power given to the President by Art. 392 of the ConD.S. Garewal
stitution was wide enough to enable him to make any adaptav.
tion by way of modification, addition or omission he considered
The State of
necessary or expedient with respect to a particular Article and Punjab & Another
if he did so in one way and not the other, it could not be said
that he had exceeded his power. As the adaptation of Art. 312
by omission of the condition precedent was thus valid, no
question of any compliance with it could arise and the provisional Parliament was quite competent to pass the impugned Act.
Sankari Prasad Singh Deo v. Union of India and State of
Bihar, [1952] S.C.R. 89, held inapplicable.
The reappearance of the omitted part of Art. 312 before the
framing of the Rules by the Central Government under the Act,
could in no way affect their validity since the Act itself was
valid and a permanent measure and the Rules derived their
force from the Act.
It was well settled that the Legislature was competent to
delegate to other authorities the power to frame rules to carry
out the purposes of the law made by i

## Text

December Ir.
792
SUPREME COURT REPORTS [1959) Supp.
D. S. GAREWAL
v.
THE STATE OF PUNJAB AND ANOTHER
s. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
All-India Services-Act passed by provisional ParliamentConstitutionrd validity-Prepidents' power of adaptation-Parliament,
if authorised to delegate power to Central Government-Rules, validity of-Institution of enquiry-Competence of the State Government-.
All-India Services Act (LXI of r95I), ss, 3, 4-All-India Services
(Discipline and Appeal) Rules, r. 5-Constitution of India, Arts. 3I2,
392.
The point for determination in this appeal was whether the
All India Services Act, (LXI of 1951), enacted by the provisional
Parliament, was a constitutionally valid legislation. As there
was only one House during the transitional period, the President
in exercise of his powers under Art. 392 of the Constitution
passed the Constitution (Removal of Difficulties) Order No. II,
on January 26, 1950, and made, amongst others, an adaptation
of Art. 312(1) omitting the following therefrom,-" XXX if the
Council of States has declared by resolution supported by not
less than two-thirds of the members present and voting that it is
necessary or expedient in the national interest to do so XXX ".
The appellant, who was appointed to the Indian Police Service
in 1949, held the post of Superintendent of Police in the Punjab
in 1957 when he was reverted as Assistant Superintendent of
Police and informed that action was proposed to be taken
against him under r. 5 of the All India Services (Discipline and
Appeal) Rules, 1955, framed under s. 3 of the All India Services
Act, (LXI of 1951). He was, thereafter, placed under suspension
and an Officer was directed to hold a departmental enquiry
against him. On receipt of notice of the said enquiry, he moved
the High Court under Art. 226 of the Constitution and challenged
the constitutional validity of the Act and the legality of the
enquiry. The High Court held against him alld hence this
appeal. It was contended on behalf of the appellant, (1) that
the President had exceeded his power under Art. 392 in amending Art. 312 in the way he did; (2) that the provisional Parliament was incompetent to enact the impugned Act as there was
no compliance with the condition precedent to such an Act being
passed under Art. 312 ; (3) that the Rules were repugnant to
Art. 312 as they were made at a time when the adaptation was
no longer in force; (4) that the Parliament h~d no authority to
delegate its function under Art. 312 to the Central G;overnment ;
(5) that, at any rate, s. 3 of the Act was vitiated by excessive
delegation and (6) that the Punjab Government had no authority
under the Rules to institute the proceedings.
(1) S.C.R.
SUPREJVIE COURT REPORTS
793
Held, that the confontions were all without substance and
r958
must be rejected.
The power given to the President by Art. 392 of the ConD.S. Garewal
stitution was wide enough to enable him to make any adaptav.
tion by way of modification, addition or omission he considered
The State of
necessary or expedient with respect to a particular Article and Punjab & Another
if he did so in one way and not the other, it could not be said
that he had exceeded his power. As the adaptation of Art. 312
by omission of the condition precedent was thus valid, no
question of any compliance with it could arise and the provisional Parliament was quite competent to pass the impugned Act.
Sankari Prasad Singh Deo v. Union of India and State of
Bihar, [1952] S.C.R. 89, held inapplicable.
The reappearance of the omitted part of Art. 312 before the
framing of the Rules by the Central Government under the Act,
could in no way affect their validity since the Act itself was
valid and a permanent measure and the Rules derived their
force from the Act.
It was well settled that the Legislature was competent to
delegate to other authorities the power to frame rules to carry
out the purposes of the law made by it. Such delegation could
also be made to an executive authority within certain limits.
Re The Delhi Laws Act, r9r2, [1951) S.C.R. 747 and Rajnarain Singh v. The Chairman, Patna Administration Committee,
Patna, [.1955] I S.C. H.. 290, relied on.
Use of such expressions as "Parliament may by law proviuc" or "Parliament may by law confer" by the Constitution
did not necessarily mean that delegation was wholly excluded.
It would be a matter for determination in each case whether the
intention was that the entire provisions were to be made by law
without recourse to any rules framed under the power of delegation. The numerous and varied provisions contemplated by
Art. 3 r2 made it impossible to hold that they were all intended
to be enacted as statute law and nothing was to be delegated to
the executive authorities. It was not correct to suggest that
the Article laid down a mandate prohibiting Parliament from
delegating authority to the Central Government to frame rules
for the recrui'tment and conditions of All-India Services.
Nor was there any substance in the contention that s. 3 of
the Act was vitiatell by excessive delegation of power and the
Act did not lay clown any policy. Section 4 of the Act read with
s. 3(2) of the Act showed that there was no delegation of power
to the Central Government under s. 3(1) of the Act in excess of
what was justified by the special circumstances of the case.
There was no basis for the contention that the Central
Government ancl not the Punjab Government could institute the
enquiry.
lfole 5 of the Rules showed that the enquiry was to
be iniliated in all cases by the Government under which the
100
794
SUPREME COURT REPORTS
[1959] Supp.
z958
Officer concerned served, although the punishment as required
by Rule 4(1) might have to be ultimately imposed by the
D. s. Ga•ew•I
Central Government.
The ;;01, of
CIVIL
APPELLATE JURISDICTION:
Civil
Appeal
Punjab .s. Anoth .. No. 426 of 1958.
Appeal by special leave from the judgment and
order dated July 30, 1958, of the Pupjab High Court
in Civil Writ Application No. 732 of J958.
N. C. Chatterjee, I. M. Lal and B. P. Maheshwari,
for the appellant.
S. M. Sikri, Advocate-General for the State of Punjab,
M ohinder Singh Pannum, Additional Advocate-General
for the State of Punjab and D. Gupta, for respondent
No. 1.
B. Sen.and T. M. Sen, for the Intervener.
1958. December 11. The Judgment of the Court
was delivered by
wamhoo J.
WANCHOO, J.-This appeal by special leave raises
the question of the constitutionality of the All-India
Services Act, (LXI of 1951) (hereinafter called the Act).
The appellant was appointed to the Indian Police
Service on October 1, 1949, and posted to the State of
Punjab. He held charge as Superintendent of Police
in various districts but was reverted as Assistant
Su,perintendent of Police in August 1957, and was
eventually posted to Dharamsala in March 1958. In
the same month he was informed that it was proposed
to take action against him under r. 5 of the All-India
Services (Discipline and Appeal) Rules, 1955, (hereinafter called the Rules), framed under s. 3 of the Act.
He was thereafter placed under suspension under r. 7
of the Rules pending disciplinary proceedings against
him, and Shri K. L. Bhudiraja I. A. S. was appointed
enquiry officer to hold the departmental enquiry
against him. Notice was issued to him by the Enquiry
Officer in July 1958. He thereupon immediately made
an application under Art. 226 of the Constitution
before the Punjab High Court challenging the .constitutionality of the Act and the legality of the enquiry
against him. The application was dismissed on July
30, 1958, and his application for a certificate to appeal
(I) S.C.R. SUPHEME COUH.'f REPORTS
795
to this Court was dismissed next day. Thereupon he
came to this Court and was granted special leave.
v. s. Garewal
Shri Chn.ttcrjee appearing for the appellant has
v.
raised the following six points in support of the Pu~~~ ~a';;!,,. ••
appeal:-
(1)
The amendment made by the President in
wanchoo J.
Art. 312 of the Constitution by virtue of his power
under Art. 392 by the Constitution (Removal of 'Difficulties) Order No. II of 26th January, 1950, was in
excess of the power conferred on him under Art. 392 ;
(2) It was not within the competence of the provisional Parliament to enact the Act in 1951, as there
was no compliance with the condition precedcint to
such an Act being passed, under Art. 312;
(3)
The Rules when promulgated in 1955 were
bad as they were repugnant to Art. 312 as the amendment made by the President by the Constitution
(Removal of Difficulties) Order No. II had ceased· to
have force and Art. 312 stood in 1955 as origihally
enacted in the Constitution ;
(4)
Art. 312 laid a mandate on ParliameQt to
make a law regulating the recruitment and conditions
of service of all-India services created under that
Article and Parliament could not delegate this function to the Central Government, and, therefore, s. 3 of
the Act was invalid;
(5) In any event, the delegation made by s.' 3 of
the Act was excessive and, therefore, section 3 should
be struck down ; and
(6)
The Punjab Government has no authoritiy to
institute these proceedings under the Rules.
Re. 1, 2 & 3.
These three points may conveniently be taken
together. Article 392 provides that "the President
may, for the purpose of removing any difficulties,
particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the
provisions of this Constitution, by order direct 1that
this Constitution shall, during such period as may be
specified in the order, have effect subject to suchadaptations, whether by way of modification, addition or
796
SUPREME COURT REPORTS [1959] Supp.
'~58
omission, as he may deem to be necessary or expeD. 5 c,..ewat
dient; provided that no such order shall be made after
v.
the first Jlleeting of Parliament duly constituted under
The. State of
Chapter II of Part V ". The purpose of this provision
p1111jab & Another is obvious from the verv words in which it was made.
Further Art. 379 provided that " until both Houses of
ll'ancl•oo f.
Parliament have been duly constituted and summoned
to meet for the first session under the provisions of
this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately
before the commencement of this Constitution shall be
the provisional Parliament and shall exercise all the
lJowers and perform all the duties coi1ferred by the
provisions of this Constitution on Parliament". As
there was only one House during the transitional
period, there were bound to be difficulties in the application of the Constitution, which envisaged a bicameral legislature. Consequently, the President passed
the Constitution (Removal of Difficulties) Order No. II
on January 26, 1950, by which among other adaptations, he made an adaptation in Art. 312 also, to this
effect:-
" In clause (1), omit •if the Council of States has
declared by resolution supported by not less than twothirds of the members present and votiug that it is
necessary or expedient in the national interest so to
do '."
This order was to come into force at once and was to
continue until both Houses of Parliament had been
duly constituted and summoned to meet for the first
session under the provisions of the Constitution. After
removal of the omitted words, Art. 312 read as
follows:-
" (1} Notwithstanding anything in Part XI, Parliament may by law provide for the creation of one or
more all-India services common to the Union and the
States, and st1bject to the other provisions of this
Chapter, regulate the recruitment, and the conditions
of service of persons appointed, to any such service.
(2) The services known at the commencement of
this Constitution as the Indian Administrative Service
(1) S.C.R. SUPREME COURT REPORTS
797
and the Indian Police Service shall be deemed· to be
1958
services created by Parliament under this article."
D. s. Garewal
It is urged that though. the President undou!btedly
v.
had power to make adaptations, he exceeded that
T.h• State of
power inasmuch as he omitted the words mentioned Pun1ab <!>- Anothe•
above from Art. 312 altogether. It is· suggested that
Wanchoo J.
the adaptation would have been proper, if in A~t. 312,
as it originally stood in the Constitution, thel words
"Council of States" had been substituted by the
word1;1 " provisional Parliament", so that instead of a
resolution of the Council of States a resolution of the
provisional Parliament would have been necessii.ry for
the creation and regulation of recruitment and conditions of service of an all-India service common to the
Union· and the States. Reliance in this connelJtion is
placed on Sankari Prasad Singh Dea v. U~ion of
India and State of Bihar (1), where dealing with an
adaptation made in Art. 368, by the same order, this
Court observed that "the adaptation leaves the requirement of a special majority untouched".. It is
urged that if the President had made the adaptation
in the way suggested by learned counsel that would
have left the requirement of a resolution supported by
requisite majority untouched and would hate been
within the power of the President; but inasmuch as
the entire portion was omitted the President had
exceeded his power. It is enough to say that Sankari
Prasad Singh's case (1) does not lay down that if the
adapt11tion in Art. 368 had been made in some other
manner it would have been invalid and unconstitutional. Reference to the fact that adaptation left the
requirement of a special majority
untouch~d was
made obviously for the purpose of emphasising that
there was no real ground of grievance and not for
indicating that in the absence of the retention of that
provision the adaptation would have been bad. Indeed,
it was pointed out in that case that Art. 392 was
widely expressed and an order could be made under
that Article for the purpose of removing any difficulties. The nature of the adaptation to be mad' is also
equally widely expressed and it may be by 1 way of
(1) (1952] S.C.R. 89.
798
SUPREME COURT REPORTS
[1959] Supp.
z95B
modification, addition or omission. In the case of Art.
v. s. Garewal
368 the President thought it necessary or expedient that
v.
the adaptation should be by "modification. In the case
The state of
of Art. 312, however, he thought it necessary or expePunjab & Anotherdient that the adaptation should be by way of omission of certain words from that Article. The power
Wanchoo f.
given to the President under Art. 392 was very wide and
it cannot be said that he could make the adaptation
in one way and not in another. It was left to him to
consider whether the adaptation should be by way of
modification, addition or omission ; and if he thought
it necessary or expedient with respect to a particular
Article that adaptation should be by way of omission
it cannot be said that he had exceeded his power.
We are, therefore, of opinion that the Act cannot be
declared unconstitutional on the ground that the President had exceeded his power under Art. 392 and that
if he had not done so a resolution of the provisional
Parliament would have been necessary with the requisite majority before any law could be undertaken to
regulate the recruitment and the conditions of service
of an all-India service.
Once it is held that the adaptation made by the
President in Art. 312 was within his power, there is
very little left in the other two points raised by Mr.
Clmtterjee. It is said that the provisional Parliament
was not competent to pass the Act in 1951, because
the condition precedent for passing such a law
had not been, as required by Art. 312, complied with.
This means in other words that a resolution with the
requisite majority had not been passed by the provisional Parliament; but this condition .would not be
there once those words were validly removed by the
order of the President under Art. 392, and the provisional Parliament would have power to pass the Act
without any resolution being passed before the law
was made.
The further argument that the Rules were promulgated in 1!)55 when the words omitted by the Constitution (Removal of Difficulties) Order Xo. II had reappeared in Art. 312 and were, therefore, repugnant to
Art. 312 inasmuch as there was no resolution of the
(l} S.C.R. SUPREME COURT REPORTS
I 799
Council of States, as required by that Article, is, in
z958
our opinion, completely baseless. The reappe11-rance
of these words in Art. 312 has nothing to do ·with the
D. s. ~arewal
vires of the Rules. The rules were framed under the
The state of
power given to the Central Government by the Act, Punjab & A"other
and if the Act was valid when it was passeql, the
Central Government would have power to frame rules
Wanchoo J.
under it, as it is a permanent measure. The Rules
framed in 1955, therefore, cannot be challenged on the
ground that the omitted words reappeared in Art. 312.
The Rules derive their force from the Act and the
form in which Art. 312 emerged, after the Constitution (Removal of Difficulties} Order No. II cai:ne to
an end in 1952, would not have any effect <1>n the
Rules. There is no force, therefore, in any of these
three points, and we reject them.
Re. 4.
It is contended that Art. 312 lays down a mandate
on Parliament to make the law itself regulating
the . recrui.tment and the conditions of service of
all-India services, and therefore, it was not
1 open
to Parliament to delegate any part of the · work
relating to such regulation to the Central Government by framing Rules for the purpose. Now, it is
well settled that it is competent for the legislature
to delegate to other authorities the power to frame
rules to carry out the purposes of the law made by it.
It. was so held by the majority of Judges in Re The
Delhi Laws Act, 1912 (1).
The Delhi Laws casf was
further examined in Rajnarain Singh v. The Chairman,
Patna Administration Committee, Patna (2), and the
delegation was held to go to the extent of authorising
an exeeutive authority to modify the law made but
not in any essential feature. It was also observ"'d
that what constitutes essential feature cannot be enunciated in general terms. It is, therefore, cleal,' that
delegation of legislative functions can' be m~de to
executive authorities within certain limits. In this
case s. 3 of the Act lays down that the Central Government may, after consultation with the Governments of
the States conce:rned, make rules for the regulatJion of
(1) [1951] S.C.R. 747.
(2) [1955] 1 S.C.R. 290.
800
SUPREME COURT REPORTS [1959] Supp.
r958
recruitment and conditions of service of persons appointed to an all-India service. It also Jays down
D. S. Grirewal
that all rules made under this section shall be laid for
v.
The state of
not less than fourteen days before Parliament as soon
P1mjnb & Anothc. as possible after they are made, and shall be subject to
such modifications, whether by way of repeal or
Wnnchoo .f.
amendment, as Parliament may make on a motion
made during the session in which they are so laid.
Mr. Chatterjee contends that no delegation whatsoever
was possible nuder Art. 312 and that the Constitution
rcq11ircd that Parliament should itself frame the entire
law relating to the regulation of recruitment and the
conditions of service of all-India services.
We have,
therefore, to see whether there is anything in the
words of Art. 312 which takes away the usual power
of delegation, which ordinarily resides in the legislature.
Stress in this connection has been laid on the
words "Parliament may by law provide" appearing
in Art. 312. It is urged that these words should be
read to mean that there is no scope for delegation in a
law made under Art. 312. Our attention in this connection was drawn to words used in Art. 245, which
are "Parliament may make laws". It is said that the
words used in Art. 312 are in a special form, which
import that Parliament must provide by Jaw for regul;ttion of recruitment and the conditions of service and
cannot delegate any part of it to other authorities.
Reference was also made to the words used in Art. 138
(1), (namely, Parliament may by law confer); Art. 138
(2), (namely, Parliament may by law provide);
Art .. 139, (namely, Parliament may by law confer)°;
and Art. 148 (3), (namely, as may be determined by
Parliament by law). In contrast to these Articles,
our attention was drawn to the words of Art. 173 (c),
(namely, by or under any law made by Parliament),
and Art. 293 (2), (namely, by or under any law made
by Pa.rliament). It is urged that when the Constitution uses the words " may by law confer " or " may
by law provide", no delegation whatsoever is.possible.
We are of opinion that these words do not necessarily
exclude delegation and it will have to be seen in each
case how far the intention of the Constitution was that
'
(1) S.C.R. SUPREME COURT REPORTS
t,'
801
the entire provision should be made b.Y law with ut rer 959
course to any rules framed under the power of elegaD. s. Garewal
tion. Let us, therefore, examine Art. 312 fr m this
v.
angle, and see if the intention of the Constitutivn was
The state of
that regulation of recruitment and conditions of $ervice Punjab & Another
to an all-India service should only be by law and
Wanchoo ].
there should be no delegation of any power to frame
rules.
Regulation of recruitment and conditions of
service requires numerous and varied rules, which may
have to be changed from time to time as the exigencies
of public service require. This could not be unknown
to the Constitution makers and it is not possible to
hold that the intention of the Constitution was that
these numerous and varied rules should be framed by
Parliament itself and that any amendment of these
rules which may be required to meet the difficulties of
day-to-day administration should also be made by
Parliament only with all the attending delay which
passing of legislation entails. We are, therefore, of
opinion that in the circumstances of Art. 312 it could
not have been the intention of the Constitution that
the numerous and varied provisions that have to be
made in order to regulate the recruitment and the
conditions of service of all-India services should all be
enacted as statute law and nothing should be delegated to the executive authorities. In the circum$tanccs
we arc of opinion that the words used in Art. 312 in
the context in which they .have been used do not exclude the delegation of power to frame rules fol!' regulation of recruitment and the conditions of service of
all-India services.
\Ve cannot read Art. 312 aslayiug
down a mandate prohibiting Parliament from delegating authority to the Central Government to fra~e rules
for the recruitment and the conditions of ser'Vice of
all-India services.
We, therefore, reject this contention.
Re. 5.
The argument in this connection is that even if delegation is possible, there was excessive delegation in
this case, and, therefore, the Act should be struck
down. The Act is a short Act of four sections. The
IOI
802
SUPREME COURT REPORTS [1959] Supp.
r958
first section deals with the short title, the second section defines the expression "all-India Service", and
D. s. ~~rewal the third section gives power to the Central GovernThc state of
ment to frame rules for regulation of recruitment and
Punjab & Anothe. the conditions of service after consultation with the
Governments of the States concerned, and lays down
W"'""00 J.
that all rules so framed shall be laid before Parliament
and shall be subject to such modifications as Parliament may make. Section 4 which is important is in
these terms-
" All rules in force immediately before the commencement of this Act and applicable to an all-I nrlia
service shall continue to be in force and 1lhall be deemed to be rules made under this Act."
It is urged that this Act lays down no legislative
policy or standard at all and everything is left to the
Central Government. In this connection reference
was made to the following observations of Mukherjea, J. (as he was then), in Re The Delhi Laws Act,
1912 (1) at p. 982 :-
" The essential legislative function consists in the
determination or choosing of the legislative policy and
of formally enacting that policy into a binding rule of
conduct. It is open to the legislature to formulate
the policy as broadly and with as little or as much
details as it thinks proper and it may delegate the rest
of the legislative work to a subordinate authority who
will work out the details within the framework of that
policy. 'So long as a policy is laid down and a
standard estaolished by statute no constitutional delegation of legislative power is involved in leaving to
selected instrumentalities the making of subordinate
rules witbin prescribed limits and the determination
of facts to which the legislation is to apply'."
It is said that in this case Parliament did not even
exercise the essential legislative function inasmuch as
it did not determine or choose the legislative policy
•t.
and formally enact that policy into a binding rule of
conduct. Apparently, if one looks at the Act, there
seems to be some force in this contention. But a close
reading of s. 4 of the Act and its scope, purpose and
(1) [1951] S.C.R. 747·
(I) S.C.R. SUPREME COURT REPORTS
803
effect Will BhOW that this iB not a CaSe Where the JegisI95B
lature has failed to lay down the legislative policy and
D. s. Garewal
formally to enact that policy into a binding rule o{ conv.
duct. What does s. 4 in fact provide? Undoubtedly
The State of
there were rules in force immediately before the com- Punjab & Another
mencement of the Act which governed the two allIndia services covered by it and the legislature adoptWanchoo f.
ed those rules and said in s. 4 that they shall continue
to be in force.
Thus though s. 4 appears on the face
of it as one short section of four lines, it is in effect a
statutory provision adopting all the rules which were
in force at the commencement of the Act, governing
the recruitment and the conditions of service of the
two all-India services.
The section certainly lays
down that the rules already in force shall be taken to
be rules under the Act ; but that was necessary in
order to enable the Central Government under s. 3 to
add to, alter, vary and amend those rules. There is
no doubt, however, that s. 4 did lay down that the
existing rules will govern the two all-India services
in the matter of regulation of recruitment and conditions of service, and in so far as it did so it c&termined the legislative policy and, set up a standard for
the Central Government to follow and formally e111acteu it into a binding rule of conduct. Further, by s. 3
the Central Government was given the power to f:tame
rules in future which may have the effect of adding
to, altering, varying or amending the rules accepted
under s. 4 as binding. Seeing that the rules would
govern the all-India services common to the Central
Government and the State Government provision was
made by s. 3 that rules should be framed only after
consulting the State Governments. At the same time
Parliament took care to see that these rules were laid
on the table of Parliament for fourteen days before
they were to come into force and they were subject to
modification, whether by way of repeal or amendment
on a motion made by Parliament during the session
in which they are so laid. This makes it perfectly
clear that Parliament has in no way abdicated its
authority, but is keeping strict vigilance and coptrol
over its delegate. Therefore, reading s. 4 along ;with
I
I
I
804
SUPREME COURT HEPORTS [1959] Supp.
-
s. 3(2) of the Act it cannot be said in the special circumstances of this case that there was excessive deleD. S Garowal
v.
gation to the Central Government bys. 3(1).
We are,
The state of
therefore, of opinion that the Act cannot be struck
Punjab & Anoth" down on the ground of excessive delegation.
Wanchoo ].
Re. 6.
The last contention is that the Punjab Government
has no authority 1 to institute these proceedings under
the Rules. It would be necessary in this connection
to refer to the Rules.
Rule 3 provides for penalties,
which are seven in number. Rule 4 provides for the
authorities, who can impose the penalties, and three
of the penalties, namely, dismissal; removal or compulsory retirement, can only be imposed by the Central
Government, while the other four penalties can be
imposed by the State Government.
Rule 5 provides
the procedure for imposing penalties. The argument
is that as in this case the charge against the appellant
is serious, he is likely to be dismiRsed or removed or
compulsorily retired, and therefore, the Central Government should have instituted enquiry in this case. We
are of opinion that there is no force in this contention.
In the first place, it cannot be postulated at the very
outset of the enquiry whether there would be any
punishment at all, and even if there is going to be
punishment, what particular punishment out of the
seven mentioned in r. 3 would be imposed. Therefore,
even on the assumption that the Government which
has to impose the punishment must also institute the
enquiry, it cannot be said at this stage that the Punjab
Government which can impose at least four out of
seven penalties is not the proper Government to
institute the enquiry. In the second place, a perusal
of r. 5 shows that the intention is that the enquiry
would be instituted by the Government under which
the officer is serving even in cases where the penalty
is to be imposed by the Central Government. Rule 4(2)
shows that so far as the four penalties which could be
imposed by the State Government are concerned, the
institution of the enquiry is by the Government under
whom such officer was serving at the time of commission of such a.ct or omission which renders him liable
I
(1) S.C.R.
SUPREME COURT REPORTS
1
805
to punishment. Rule 2(b) defines " Government", and
r95B
the third clause thereof lays down that in the caise of
D. s. Garcwal
a member of service serving in connect.ion· with the
v.
affairs of a State, the Government would be the
The State of
Government of that State. The appellant was se~ving Pirnjab & Another
in connection with the affairs of the State of Pml1jab,
and in his case therefore the Government for the purWanchoo f.
pose of r. 5 which provides procedure for imposing
penalties would be the Punjab Government. It i$ the
Punjab Government, therefore, which could tak¢ the
steps provided in r. 5. Rules 5(1) to 5(8) provide the
procedure for such enquiries and the word "government" used in these sub-rules means in the present pase,
the Punjab Government, for the appellant was ser~ing
in connection "with the affairs of the State of Punjab.
Rule 5(9) provides for what is to happen after the
enquiry is over, and it lays down that after the
enquiry has been completed and after the punishing
authority has arrived at a provisional conclusion in
regard to tile penalty to be imposed, if the pe11alty
pro posed is dismissal, removal, compulsory retire1~en t
or reduction in rank, the member of the service charged shall be supplied with a copy of the repol't of
enquiry and be given a further opportunity to show
cause why the proposed penalty should not be imposed
on him.
The very fact that in this rule the Word
'Government' is not used and instead the words
'punishing authority' are used shows that the question of punishment arises after the enquiry is overland
the relevant Govemment would then consider that
question; and if punishment is to be one of the three
provided in r. 4(1) the report of the enquiry officer
would have to be forwarded to the Cental Government
so that it may determine the provisional punishment
and communicate it to the officer concerned along with
the report of the enquiry officer to comply with. the
provisions of Art. 311(2). So far as the institutiqn of
the enquiry is concerned, r. 5 contemplates that it will
be instituted by the Government of the State in connection with the affairs of which the officer is serving.
In this ca,se the appellant was serving in connec~ion
with the affairs of the State of Punjab, and, therefore,
806
SUPREME COURT REPORTS [1959] Supp.
•958
the Punjab Government would have authority to
D. s. Ga.ew•I institute the enquiry against him. The Central
v.
Government would only come into the picture after
Th• S•••• of
the enquiry is concluded and if it is decided to impose
Punj•b c;. Another one of the three punishments mentioned in r. 4(1).
Wanchoo J.
This contention must also be rejected.
We, therefore, dismiss the ·appeal with costs to the
State of Punjab.
Appeal dismissed..
PANDIT M. S. M. SHARMA
v.
SHRI SRI KRISHNA SINHA AND. OTHERS
(S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA,
K. SUBBA RAO and K. N. W ANOHOO, JJ.)
State Legislature, Privilege of-Pawer to prohibit publication
of proceedings including portions -expunged by the SPeaker-Publi·
cation, if a breach of privilege-If can prevail over tM fundamental
right to freedom of speech and expression-Freedom of the PressScope and extent-Constitution of India, Arts. z94(3), z9(z)(a).
The petitioner, the. Editor of the English daily newspaper
Searchlight of Patna, was called upon by the Secretary of the
Patna Legislative Assembly to show cause before the Committee
of Privileges of the Assembly why appropriate action should not
be taken against him for the breach of privileges of the Speaker
and the Assembly for publishing in its entirety a speech. delivered in the Assembly by a member thereof, portions of which were
directed to be expunged by the Speaker. It was contended on
behalf of the Petitioner that the said notice and the proposed
action by the Committee were in violation of his fundamental
right to freedom of speech and expression under Art. l9(1)(a)
and of the protection of his personal liberty under Art. 21 of the
Constitution, and that, as an editor of a newspaper, he was entitled to all the benefits of the freedom of the Press. The
respondents relied on Art. 194(3) of the Constitution llnd claimed that the proceedings in the House as those in the British
House of Commons were not usually meant to be published, and
in no circumstances was it permissible to publish the parts of a