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

A writ petition was filed by U. Jormanik Siem (hereinafter called the respondent) in the Assam High Court against the Chief Executive Member of the District Council (hereinafter called the appellant), United Khas and Jaintia Hills District (hereinafter called the District). The case of the respondent was that he was Siem of Mylliem Siemship in the District and was elected as such by the Myntires and the people according to custom in 1951. After the constitution of the District Council for the District, in June 1952, the Siemship was brought under it and the respondent continued to discharge the administrative and judicial functions, for which he was remunerated by a share of the gross income of the Siemship. The Siem once appointed could not be removed from his office except through a referendum of the people according to custom until such custom was changed by legislation passed by the District Council with the concurrence of the Governor. No such legislation had however been passed till the writ petition was made on July 8, 1959. But on account of political differences between the respondent and the then Chief Executive Member an attempt was made after the General Elections of 1957 to harm the respondent. In consequence certain charges were levelled against the respondent and a Durbar was called by the appellant for July 6, 1959, and the respondent was asked to be resent at the Durbar to defend himself. It is not clear whether the Durbar was held or not but an order was issued on July 7, 1959, by the appellant in which it was said that the charges against the respondent had been forwarded to him and he had been given an opportunity to show cause on or before July 17, 1959, why he should not be removed from his office and that he had failed to appear before the appellant on July 7 as ordered. Therefore, the respondent was suspended from his office from July 8, 1959 and was required to make over charge to the acting Siem on the same day. The respondent however filed the writ petition on July 8, 1959 which was admitted the same day and notice was issued to the appellant to show cause why the writ should not be granted. The High Court also passed an order staying the operation of the order of the appellant dated July 7, 1959. The respondent contended that he could not be removed from his office or suspended by the Executive Committee of the District Council and that the order of the appellant suspending him was illegal and ultra vires being against custom and usage relating to that matter. Further the order of the appellant was without jurisdiction as it was passed without the approval of the District Council and there was no emergency justifying the order. The order was also mala fide and was due to political animosity between the respondent and the Executive Committee.        2. The petition was opposed on behalf of the appellant, and its main contention was that the Siem was nominated by an electoral college consisting of the representatives of several clans and that the people in general had nothing to do with it and that nomination of the Siem by the electoral college was subject to approval of the Government. In accordance with that custom, the respondents nomination by the myntri-electors to the Siemship of Mylliem was approved by the Government and he was appointed to the office of Siem subject to confirmation by the District Council when that body came into existence. After the District Council was constituted in 1952, it approved the provisional appointment made by the Government and confirmed it on certain terms mentioned in the letter of April 9, 1953. Latter these terms were modified by the District Council in certain particulars by latter dated August 9, 1955, and the respondent had been working as Siem by virtue of this confirmation by the District Council on the terms conveyed to him in the two letters mentioned above. There was no custom which required a referendum of the people before the Siem of Mylliem could be removed from office. On the other hand, the Siem being appointed by the Government formerly and now by the District Council was liable to removal and or suspension by the appointing authority in case he did not act in accordance with the terms of his appointment and was guilty of oppression, misconduct or dereliction of duty. The charge of political animosity against the then Chief Executive Member was denied and attention was drawn to the respondents conduct in the discharge of his duties which showed that he was unfit to hold the office of Siem; consequently an order was passed on July 7, 1959, suspending him and the order was legal, intra vires and in keeping with custom and usage of the land and it was not necessary to obtain the approval of the District Council to the passing of that order which was in accordance with the terms of appointment of the respondent. Further the Executive Committee considering all the circumstances of the case, was of the opinion that the matter was of emergency and therefore took action without getting the order approved by the District Council.        3. The High Court did not go into the question whether there was any custom by which the Siem could be removed only by a referendum. It held that after the coming into force of the Constitution, the Khasi States lost all existence as separate entities except in so far as their existence or authority was preserved by the Constitution. It also held that the respondent was appointed to the office of Siem by the Deputy Commissioner on behalf of the Government with due regard to the nomination made by the Myntri-electors and this appointment was subject to confirmation by the District Council when that body was constituted and that in fact the District Council confirmed the appointment on April 9, 1953, on certain terms which were revised in 1955. It also held that the administration of the district vested in the District Council; but it was of the view that the appointment and succession of Siems were never intended to be its administrative function and therefore, the District Council could only act in this matter by making law with the assent of the Governor and not by passing order in exercise of its administrative functions. Therefore the power to appoint, even if it included the power to dismiss, could be exercised by the District Council only by means of proper legislation. In the result, the High Court allowed the petition and directed that the order of July 7, 1959, should not be given effect to as it was not supported by law. Thereupon the appellant applied for and obtained a certificate from the High Court under Art. 132 of the Constitution; and that is how the matter has come up before us.

Reasoning:
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.