Case: T. Cajee Vs. U. Jormanik Siem And Another

necessary, the Executive committee of a District Council other than that of the Mikhir Hills or the North Cachar Hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council at its next session. The order of July 7, 1959, shows that the Executive Committee took action under Rule 30 (a) as it considered the matter to be one of emergency. It is not for the Courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its power. 13. The last point that has been urged is that in any case the Executive committee could not suspend the respondent, and reliance in this connection is placed on Management of Hotel Imperial v. Hotel Workers Union, (1960) 1 SCR 476 : (AIR 1959 SC 1324). This Court held in that assessee as under :"It was now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied terms in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay." 14. It is urged on the basis of these observations that in any case the respondent could not be suspended. Suspension is of two kinds. In the first place, suspension may be as a punishment, but the present is not a case of this kind of suspension; in the second place interim suspension may be mad pending inquiry into a case where removal is the result sought. It was this type of interim suspension which was dealt with in the case of Hotel Imperial, (1960) 1 SCR 476 : (AIR 1959 SC 1342 ) and it was pointed out that without an express term in the contract or without some provision of a statute or the rules there could not be interim suspension in the sense that the master could withhold the wages of the servant. But that case did not lay down that the master could not forbid the servant from working while he was inquiring into his conduct with a view to removing into his conduct with a view to removing him from service. It was specifically said there that if the master does so namely, forbids the servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the contract of employment or in the statute or the rules framed thereunder. The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case. 15. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. II of 1959) which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word "Chief" includes a Siem, a Lyngdoh etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. It will thus be seen for the scheme of the Sixth Schedule that the District Council is both an administrative as well as a legislative body. Further all the administrative and legislative powers were vested in the Governor by para. 19 till the District Councils were constituted. The Governor framed Rules under para. 2 (6) in 1951 called the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951. That notification notified for the general information of the subjects of Mylliem Siemship that Government after careful consideration of the nomination made by the Myntri-electors of the successor to the Siemship of Mylliem and also of the objections to this nomination, had appointed the respondent as Siem of Mylliem in place of late U. Sati Raja subject to confirmation by the District Council when that body was constituted. It was also notified that the respondent had taken over charge of the Siemship with effect from March, 5, 1951. It is clear from what we have said above that the Myntri-electors in this particular case used to elect a person and their election amounted to nomination of that person for the approval of the Governor to the Siemship of Mylliem; but until the Governor approved of the nomination and appointed the person so nominated to the Siemship he could not hold office as Siem of Mylliem. The position therefore just after the coming into force of the Constitution was that the Governor was charged with the administration of the autonomous districts till the District Councils came into existence and that carried with it the power to appoint officers to carry on the administration. The appointment therefore of the respondent as Siem of Mylliem was made by virtue of the Governors power under paragraph 19 and the respondent derived his power as Siem from that appointment and could not claim any power outside that appointment. The Governor of course made it clear that the appointment was subject to confirmation of the District Council when it came into being, for the Governors powers at the time of the appointment were derived from paragraph 19 and were transitional only. That is why it was said that the appointment was subject to confirmation by the District Council. Therefore when the District Council came into existence in June 1952, it, in due course, in exercise of its administrative powers under paragraph 2(4), considered the question of confirmation of the appointment made by the Governor in 1951 and confirmed the respondents appointment as Siem of Mylliem and communicated it to him along with the terms on which the confirmation was made. Besides the financial clauses, one of the terms provided that the Siem shall be subject to the control of the District Council and shall carry out all the orders issued to him from time to time by the District Council or its officers acting for and on behalf of the District Council.It was also provided that the Siem shall conduct himself in accordance with the established customs and usages approved by the District Council and in accordance with the rules, laws and regulations that the District Council may issue from time to time. Another term provided that the Siem and others shall be liable to removal from their offices by the order of the District Council if that body was satisfied that any of them did not discharge his duties properly or had been acting in a manner prejudicial to the interest of the Siemship or the District Council in general or had been conducting himself with indecorum; and such order passed by the District Council would be final. Therefore, after April 1953 the respondent continued in the office of Siem by virtue of this confirmation by the District Council10. This position apparently continued till 1959 when we come to the incidents which culminated in the order of July 7, 1959. We are not concerned in this appeal with the merits of the action taken against the respondent; nor are we concerned with the question whether there were sufficient reasons for the Executive Committee to take the action which it did against the respondent. We are only concerned with the power of the Executive Committee of the District Council to take any action at all in the matter of the respondents removal from the office of Siem. The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In this connection, the High Court relied on para. 3 (1) (g) of the Schedule, which lays down that the District Council shall have to power to make laws with respect to the appointment and suspension of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief of Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into paragraph 3 (1) (g) than is justified by its language. Paragraph 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para. 3(1) (g) it has power to make laws with respect to the appointment or suspension of Chiefs or Headmen and this would naturally included the power to remove them. But it does not follow from this that the appointment or removal of a chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. The High Court also seems to have thought that as there was no provision in the Sixth Schedule in terms of Arts. 73 and 162 of the Constitution the administrative power of the District Council would not extend to the subject enumerated in paragraph 3(1). Now para 2(4) provides that the administration of an autonomous district shall vest in the District Council and this in our opinion is comprehensive enough to include all such executive powers as are necessary to be exercised for the purposes of the administration of the district.It is true that where executive power impinges upon the rights of citizens it will have to be backed by an appropriate law; but where executive power is concerned only with the personnel of the administration it is not necessary - even though it may be desirable - that there must be laws, rules or regulations governing the appointment of those who would carry on the administration under the control of the District Council. The Sixth Schedule vested the administration of the autonomous districts in the Governor during the transitional period and thereafter in the District Council. The administration could only be carried on by officers like the Siem or Chief and others below him, and it seems to us quite clear, if the administration was to be carried on, as it must, that the Governor in the first instance and the District Councils after they came into existence, would have power by virtue of the administration being vested in them to appoint officers and others to carry on the administration. Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under paragraph 19(1) (b) or till the District Council passed laws under para. 3(1) (g). the Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included that power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para. 19(1) (b) or laws are passed under para. 3(1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule.The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para. 3(1) (g) cannot be sustainedIn the absence of such general rules, the particular terms offered to a particular officer on his appointment would govern the relationship between the appointing authority and the person appointed in that particular case. It would therefore be wrong to hold that the respondent could not be removed from his office after his appointment in accordance with the terms on which he was appointedOne the view taken by the High Court, even the appointment of the respondent would be illegal for there was no law to support that appointment at the relevant time. But as we have said above, the Governor and later the District Councils being vested with the administration of the autonomous districts would be entitled to appoint personnel for carrying on the administration and the power to appoint would include from its very nature, being inherent in it, the power of removal, for it can hardly be contended that though the appointment might be made, the authority making the appointment would have no power to remove a person once appointed. In this particular case there can be no difficulty whatsoever because when the District Council confirmed the appointment of the respondent it laid down the terms on which the appointment will be held as well as the terms on which the respondent could be removed from the office, in which he was being continued. Nor can it be said that the appointment in this case was by the Governor and therefore the Governor could alone remove him, for the notification of March 1951 made it clear that the appointment by the Governor was provisional and was subject to confirmation by the District Council when it came into existence. The District Council in fact confirmed the appointment of the respondent in April 1953 and so in law the appointment of the respondent was by the District Council and therefore it would have the power to remove him. Besides, if as the High Court thought, the appointment of the respondent was invalid, it would inevitably follow that he had no right to ask for a writ under Art. 226; if the appointment was bad, he had no legal right and he cannot complain against his suspension. We are therefore of opinion that the respondent being an officer appointed to carry on the administration by the District Council could be removed by it in accordance with the terms and conditions of his appointmentOrdinarily, the appointment being made by the District Council, the removal could only be by it. The contention on behalf of the respondent is that even if the District Council had the power to remove in accordance with the terms and conditions of the respondents appointment that power could only be exercised by the District Council and not by the Executive Committee. In this connection, Rs. 28, 29 and 30 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951, are relevant. Rule 28 vests the executive functions of the District Council in the Executive Committee. Rule 29 (1) gives power to the Executive committee to dispose of all matters falling within its purview subject to certain exceptions mentioned in Rule 29 (2). One of these exceptions is with respect to all important appointments. Assuming that the office of Siem is an important appointment, the Executive Committee could not normally deal with it in view of the exceptions in R. 29(2). But R. 30 (a) lays down that where immediate action in respect of any of the excepted matters is necessary, the Executive committee of a District Council other than that of the Mikhir Hills or the North Cachar Hills, may take such action thereon as the emergency appears to it to require; but every such case shall have to be laid before the District Council at its next session. The order of July 7, 1959, shows that the Executive Committee took action under Rule 30 (a) as it considered the matter to be one of emergency. It is not for the Courts to go into the question whether there was emergency or not with respect to excepted matters and in the circumstances the action taken by the Executive Committee cannot be challenged on the ground that it is beyond its powerThe effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him.The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case15. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi-Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. II of 1959) which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word "Chief" includes a Siem, a Lyngdoh etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly.