Case: Unlon Of Lndla &amp; Others Vs. Sripati Ranjan Biswas And Another

imposed on you by the Disciplinary Authority (viz the Collector of Customs, Calcutta is not excessive or severe and that your appeal should be rejected. The President hereby orders accordingly. A copy of the U. P. S. Cs. letter No. F. 3/56/68-61 dated 26-10-1968 and a copy of the order passed by the Minister on behalf of the President are enclosed herewith."4. The respondent in a third round of litigation challenged the above order in the High Court under Article 226 of the Constitution. The learned single Judge dismissed the same but in appeal against that judgment the Division Bench set aside the order of the learned single Judge and quashed the aforesaid order of May 9, 1969. Hence this appeal by the Union of India.5. The High Court held that the powers and duties which the President is required to exercise as an appellate authority under Rule 23 (2) (b) of the Rules are not constitutional duties imposed upon the President under the Constitution. According to the High Court the functions and duties of the President as an appellate authority under the said Rules are not part of business of the Government of India nor are they part of the Presidents duties under the Constitution. The High Court, therefore, came to the conclusion that the Minister had no right to deal with the appeal which had been preferred to the President of India under the said Rules.6. The above question is squarely covered by a recent decision of this Court in Samsher Singh v. State of Punjab. AIR 1974 SC 2192 = (1974 Lab IC 1380). Even so, Mr. A. K. Sen appearing on behalf of the respondent submits that there is still an area which has not been covered by the said decision. Mr. Sen submits that hearing of an appeal under a statutory rule as in this case, is a quasi-judicial act and, therefore, it cannot be delegated by the President to the Minister.7. It is, however clear that in Samsher Singhs case AIR 1974 SC 2192 = (1974 Lab IC 1380) the question related to the termination of service of a subordinate Judge under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and that of another officer in the Punjab Civil Service (Judicial Branch) under Rule 7 (3) in Part D of the Punjab Civil Services (Judicial Branch) Rules,1951 as amended from time to time. It is not disputed that the above two Rules under which the termination took place are statutory Rules.8. The question which is raised in this appeal relates to the domain of appointment or dismissal of a Government servant. Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhs case. The legal position is brought out very clearly in para. 57 of the report in Shamsher Singh, AIR 1974 SC 2192 = (1974 Lab IC 1380) (supra) in the following extracts :-"Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution".Again in Para. 48 the Court observed-"The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77 (3) and 166 (3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor."We are, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969.

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

Explanation:
1[ds]Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singhsare, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singhs case (supra).9. In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter.We find no constitutional infirmity in the impugned order of May 9, 1969.