PRADYAT KUMAR BOSE v. THE HONBLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT.

Citation: [1955] 2 S.C.R. 1331; 1955 INSC 82

Court: Supreme Court of India

Bench: VIVIAN BOSE , NATWARLAL HARILAL BHAGWATI, B. JAGANNADHADAS, BHUVNESHWAR PRASAD SINHA, SYED JAFFER IMAM

Judgment date: 1955-12-23

Case summary

1955 INSC 82. Supreme Court of India judgment dated 1955-12-23. PRADYAT KUMAR BOSE v. THE HONBLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT. Read the judgment...

Judgment text

. ,. 2S. C. R. SUPREME COURT REPORTS PRADYAT KUMAR BOSE ti. THE HON'BLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT. lVIVIAN BosE, BHAGWATI, ]AGANNADHADAs, B. P. SINHA and ]APER IMAM JJ. ] 1331 Calcutta High Court-Letters Patent 1865 11s 11menied in 1919- Clause S read with clause 4-Chief Justice-Power of appointmenl- W ! 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 Nov- e1nber 1948.

He was dismissed from that post with effect from ht September 1951 by the Chief Justice by his order dated 3rd Septem- ber 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 appel- lant in respect of some of the charges but found him guilty in res- pect 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 Cal- cutta High Court. The Chief Justice issued notice to the appel- lant 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 dis- missed 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 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 there- from 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 appel- lant 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 dis- missed 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 expla- nation 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' ; passage from the speech of Lord Chancellor in Local Government Board v. .. Arlidge(') is apposite and in- structive- "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:·ust- ed. 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 Gov- ernment Board it is not doubtful what this pro- cedure is.. Tl1e Minister at the head of the Board is directly responsible to Parliament like other Minis- ters.

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 offi- cials, 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 sub- stance 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 in- vatid. 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 capa- city, including memorials or petitions relating to such matters". The phrase "all disciplinary matters affecting a per- son" is sufficiently comprehensive to include any kind of disciplinary action p:·oposcd to be taken in respect -of a particular person. The question for comiclera- tion, 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 ser- vants of a High Cout and hence also of dismissal or removal and as regards the framing of rules prescrib- ing 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 Ser- vice 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 oj- Calu1tin 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 foot- ing from that under article 320(3) (a) or (b) which re- late 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 overrid- ing power of the Chief Justice in such cases. While, therefore, recognising the force of the view taken by the High Court, it appears desirable to consider the requirement under article 320(3) ( c) taken by itself with reference to the actual terms thereof, in view of the importance of this provision as a constitutional safeguard in cases to which it applies. A scrutiny of the provisions in Chapter I of Part XIV of the Constitution relating to the services shows that the various articles in this Chapter desig- nate the services to which the articles relate by a variety of terminology. Under article 309, the ap- propriate Legishture is vested with the power to re- gulate recruitn1ent and conditions of service uof per- sons appointed to public services and posts in con- nection with the affairs of the Union or of any State".

Under article 310 "every person who is a member of a civil service of the Union or holds any civil post under a State" holds office during the pleasure of the President or, as the case may be, of the Governor or of the Rajpramukh of the State. Under article 3\1 the two constitutional safeguards, viz. , ( 1) of not being liable to be dismissed or removed or reduced ill' rank until he has been given a reasonabie opportunity. • • ' , 2 S. C. R. SUPREME COURT REPORTS 1349 of showing cause against the action proposed to be taken in regard to him, and (2) of not being liable to he dismissed or removed by an authority subordinate to that by which he was appointed, are available to "a person who is a member of a civil service of the Union or of a civil service of a State, or holds a civil post under the Union or a State".

Under article 320(3) (c) however, the requirement of con- sultation with the appropriate Public Service Commis&ion on disciplinary matters is available to "a person serving under the Government of India or the Government of a State in a civil capacity". A close scrutiny of the terminology so used shows a marked departure in the language of article 320(3) ( c) horn that in articles 310 and 311. Officers and mem- bers of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 310 and 311.

The salaries of these perwns arc paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of offi- cers and servants of the High Court, are chargeable upon the Consolidated Fund of a State. The item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legisbture under article 203 ( 1). They must, therefore, L be taken "to hold posts in connection with the affairs of the State and to be members of the civil service ot the State". But c3n it he said that members of the High Court staff are "per- sons serving under the Government of a State in a civil capacity" which is the phrase used in article 320(3)(c).

The use of different terminology in the various articles was not like! y to have been accidental. It is to be noticed that even article 320 in its various clauses uses different phrases. Article 320 (1) refers to "appoint- i! l55 Pr4Jral r.. ·umar . BiJS( v. Tkr H. n'bh Ifie Chief Jusl/c, Rf Cil/cuUil High Court Jagann. ,d! iadils ]. ! 955 Pradyat Kumar Bose v. TM Hon'b/e the Cki~f Jujtice of Calcutta Hig. '1 Cout'I ]agonnadiiadas ]. 1350 SUPREME COURT REPORTS [1955] men ts to the services of the Union and the serv1ees of the State" and the proviso to article 320(3) refers to "services and posts in connection with the affairs of the Union and to 5'rvices and posts in con- nection with the affairs of the State". It appears, therefoce, not unlikely that in using somewhat diffe- rent phraseology, the intention was to demarcate the staff of the High Courts from the other civil services of the Union or the State.

The phrase "persons serv- ing under the Government of India or the Government of a State" seems to have reference to such persons m respect of whom the administrative control is vested in the respective executive Governments func- tioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of th. e above phrase because in respect of them the admini- strative control is clearlv vested in the Chief Justice, who under the Constitution, has the power of app:iint- ment and removal and of making rules for the con- ditions of services. Articles 53, 77, 154 and 166 of the Constitution show that while ti1e executive power of the Union or the State is vested, respectively, in the President or the Governor and th~i: e;u,cutive action is to be taken in their respective names, such action is the action of the Government of India or the Government of a State.

But the administrative action of the Chief Justice is outside the scope of these articles. It appears therfore that in nsing the phrase "Government of India and Government of a State" in article 320(3) (c), the Constitution had in view the above mentioned demarcation. A close com- parison of the terminology used in the corresponding provisions of the Government of India Act of 1935 also seems to confirm this demarcation. Section 290 ( 1) of the said Act refers to "every person who is a member of a civil service of the Crowll in India or holds any civil post under the Croum in India" while section 266(3) (c) relates to "a person serving His Majesty in a civil capacity in India". A perusal of the main paragraph of sub-section (3) of section 266 clearly shows that it has reference to three c. 11. e- • ' 2S. C. R. SUPREME COURT REPORTS 1351 gories of services ( 1) Secretary of States services, (2) Federal services under the Governor-General, and (3) Provincial Services under the Governor.

In the con- text of this section, the comprehensi~e phrase "serving His Majesty" seems to have been used as comprising only the above three services and should be exclusive of the staff of the High Court. The fact that diff- erent phrases have been used in the relevant sections. of the Government of India Act and the Constitution, relating to the constitutional safeguards in this be- half appears to be meant to emphasise the differentia- tion of the services of the High Court from other ser- vices, and to place the matter beyond any doubt as regards the non-applicability thereto of this con- stitutional protection. It may be noticed that while the constitutional safeguards under article 311 are available to every person in the civil service, the safeguard in article 320(3) (c) is one capable of being taken away by regulations to be made by the Presi- dent or Governor. The Constitution itself appears, therefore, to have classed this safeguard on a diff- erent footing.

This may well have been intended not to apply to the High Courts. Therefore, both on the ground that article 320(3) ( c) would be contrary to the implication of article 229 and on the ground that the language thereof is not applicable to the High Court 'staff, we are of the opinion that for the dis- missal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary. \Ve accordingly hold that the appel- lant was not entitled to the protection under article 320(3)(c). It follows that none of the three conten- iions raised on behalf of the appellant, i. e. , ( 1) as to the power of the Chief Justice to dismiss him, (2) as to his competence to delegate the enquiry to Mr. Justice Das Gupta, and (3) . as to his obligation to consult the State Public . Service Commission, have been sub:;tantiated. This application must accord- ingly fail on the merits. This would be enough to dispose of . the case against the :ippellant.

The learned Judges of the High Court h:1ve also dealt at some length with the question as 1955 Prodyat Kum«r Bo SI v. The Hon'blt th1· Chuf ]usli£1 of Calculla High Courl Jasan,.. dhadar ]. ! 955 rady'al Kumar Bost v. ihr lhm'hle lite Clzir( J:otire of Cal11 tta High ':. '&urt Jagannt11//1a. das ]. 1352 SUPREME COURT REPORTS [ 19551 to the maintainability · of an application for a writ in a c:tse of this kind and of the availability of any remedy by way of a writ against the action of the Chief Justice, 1vhether adrninistrative or judicial. Arguments in this behalf have also heen strongly urged before us by the learned Advocate-General of Vv est Bengal. In the· view,· however, that we have taken as to the contentions raised before us regarding the validity of the order of dismissal, we <lo not feel called upon to enter into the discussion relating to the availability of the writ. \Ve express no opinion on the questions so raised.

We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under article 226 of the Constiution in an "appropriate case. That is a ques- tion on which we express no opinion one way or the other in this case. In the result the appeal must be dismissed with costs- Along with this appeal, the appellant filed an appli- cation to this Court for leave under article 136 to appeal against the orders dated the 3rd September, 1951, and 16th September, 1952, dismissing him from service and declining to review it. In view of our judgment just delivered, that application must afao be rejected. , f ' •

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