Case: Pradyat Kumar Bose Vs. The Honble The Chief Justice Of Calcutta High Court

The appellant before us was the 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 4-3-1948 and confirmed therein onHe was dismissed thereform with effect from 1-9-1951 by an order of the Chief Justice dated 3-9-1951.There were various charges against him and Mr. Justice Das Gupta was deputed by order of the Chief Justice dated 28-5-1951, to make an enquiry and submit a report. Das Gupta J. made a full enquiry and submitted his report on 11-8-1951, 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 Judges expressed his conclusion as followsBose (the appellant) must be held to be guilty of misconduct and dishonest conduct and (that) he is unfit to hold the office of Registrar of the Original Side of thisChief Justice issued to the appellant a notice on 16-8-1951, 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 onThe order dated 3-9-1951, of the Chief Justice dismissing the appellant from his offices a copy of which was served on him, runs as followsfull and thorough enquiry was held by K. C. Das Gupta J. into the charges made against Shri 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 defence. 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 Shri P. K. Bose was by reason thereof unfit to hold the said office of Registrar.I considered this report and the evidence most anxiously and found myself in entire agreement with the leaned Judge. Sri. P. K. Bose was, in my view, clearly guilty of the matter comprised in the charges specified by K. C. Das Gupta J. I considered that prima facie the conduct of Sri P. K. Bose warranted dismissal and I, therefore, gave him notice under Art. 311(2), Constitution of India to show cause against the action proposed against him, namely dismissal.On 31-8-1951, Sri. P. K. Bose showed cause before me and I heared Sri Sachin Chaudhari his counsel and Sri P. K. Bose personally. 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 severely. I, therefore, dismiss Sri P. K. Bose from his office as Registrar of the Original Side of the Court, the dismissal to take effect from 1-9-1951.Let a copy of this order be served on Sri P. K.25-1-1952, the appellant submitted a petition to the Governor of West Bengal for cancellation of the above order. He received intimation dated 9-7-1952, 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 Shri P. B. Chakravarti C. J. on 11-9-1952. This application was rejected on 16-9-1952. Thereafter on 24-11-1952 i.e. more than a year after the order of dismissal, a writ application was filed on the Original Side of the High Court under Art. 226 of the Constitution against the Honble the Chief Justice of the Highcalling upon to bring up the records of the proceedings relating to his dismissal, in order that justice may be done by quashing or otherwise dealing with the said proceedings and the said order dated 3-9-1951, purporting to terminate his service and for directions being given to the Chief Justice to desist from giving effect to or acting in any manner under the saidthe presentation of the application the leaned Judge on the Original Side, Bose J. issued a rule nisi calling upon the Honble 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 Art. 132 (1) on the ground that the case involves substantial question of law relating to interpretation of the Constitution.

Reasoning:
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.6. There can be no doubt that this position continued at least until the Government of India Act,Now, S. 106, 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 Government 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 Cl. 44, 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 S. 96-B, Government of India Act, 1915.Now, it has to be observed that the continuance, under S. 276, 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 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 or adaptation implicitly authorised by the very terms of S. 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 S. 242 (4) of the Act requires the provisions of S. 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 of 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 application of the oldfollows 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 authority 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 Art. 313 would also continue R. 52 of the Civil Services Rules as above adapted.It would, therefore, follow that, at any rate, from the time of passing ofthe 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.In view of the clear conclusion we have arrived at as above, we do not consider it necessary to deal with the arguments addressed to us on both sides as to the applicability or otherwise 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 himis well-recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power.What cannot be delegated except where the law specifically so provides - is the ultimated responsibility for the exercise of suchobjection 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 any substance and must belearned Judges of the High Court were of the opinion that Art. 320(3) have no application to the present case.In their view the provisions of Art. 320 (3) would be inconsistent with the power vested in the Chief Justice of a High Court under Art. 229, as regards the appointment of officers and servants of a High Court and hence also of dismissal or removal and as regards the framing of rules prescribing conditions of service of such officers or servants. They also point out that the proviso to Art. 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 out of Part XIV relating to the services, as implying, that in the exercise of the powers vested in the Chief Justice under Art. 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 must to be said for the view that Art. 320(3) taken as a whole is inconsistent with Art.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. While, therefore, recognising the force of the view taken by the High Court, it appears desirable to consider the requirement under Art. 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 ituse of different terminology in the various articles was not likely to have been accidental. It is to be noticed that even Art. 320 in its various clauses uses different phrases. Article 320(1) refers to "appointments to the services of the Union and the services of the State" and the proviso to Art. 320(3) refers to "services and posts in connection with the affairs of the Union and to services and posts in connection with the affairs of the State".It appears, therefore, not unlikely that in using somewhat different 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 serving under the Government of India or the Government of a State" seems to have reference to such persons is respect of whom the administrative control is vested in the respective executive Governments functioning 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 the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the conditions of services.Articles 53, 77, 154 and 166 of the Constitution show that while the executive power of the Union or the State is vested, respectively, in the President or the Governor and that executive 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 therefore that in using the phrase "Government of India and Government of a State" in Art. 320(3)(c), the Constitution had in view the above mentioned demarcation. A close comparison 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 Crown in India or holds any civil post under the Crown in India" while S. 266(3)(c) relates to "a person serving His Majesty in a civil capacity in India". A perusal of the main paragraph of sub-s. (3) of S. 266 clearly shows that it has reference to three categories of services (1) Secretary of States services, (2) Federal services under the Governor-General and (3) Provincial Services, under the Governor.In the context of this section, the comprehensive 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 different phrases have been used in the relevant sections of the Government of India Act and the Constitution, relating to the constitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the High Court from other services, and to place the matters beyond any doubt as regards the non-applicability thereto of this constitutional protection.It may be noticed that while the constitutional safeguards under Art. 311 are available to every person in the civil service, the safeguard in Art. 320 (3)(c) is one capable of being taken away by regulations to be made by the President or Governor. The Constitution itself appears, therefore, to have classed this safeguard on a different footing. This may well have been intended not to apply to the High Courts. Therefore, both on the ground that Art. 320(3)(c) would be contrary to the implication of Art. 229 and on the ground that Art. 320(3)(c) would be contrary to the implication of Art. 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 dismissal of the appellant by the Chief Justice prior consultation with the Public Service Commission was not necessary.We accordingly hold that the appellant was not entitled to the protection under Art. 320(3)(c). It follows that none of the three contentions 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 Das Gupta, J. and (3) as to his obligation to consult the State Public Service Commission, have been substantiated. This application must accordingly fail on theconsider 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 Art. 226 of the Constitution in an appropriate case. That is a question on which we express no opinion one way or the other in this case.