is.c.R.

SUPREME COURT REPORTS

J. K. IRON AND STEEL CO. LTD., KANPUR

THE IRON AND STEEL MAZDOOR UNION,

KANPUR

(with connected appeal)

[V1v1AN BosE, VENKATARAMA AYYAR and

CHANDRASEKHARA AIYAR JJ.)

Industrial Disputes Act, 1947, (Act XIV of 1947), ss. 7 and 11- Adjudicator-Scope and authority of-Democratic Constitution- Essentials thereof-Rule of Law-Benevolent despotism-Foreign thereto.

Held, that adjudication by an adjudicator under the Industrial Disputes Act does not mean adjudication according to the strict law of master and servant and that an adjudicator's award may contain provisions for the settlement of a dispute which no court could .irder

if it was bound by ordinary law. Thus the scope of an adjudication under t{ie Industrial Disputes Act is much wider than that of an arbitrator making an award.

Industrial Tribunals are not fettered by such limitations and an adjudicator has jurisdiction to investigate disputes about discharge and dismissal and where necessary, to direct reinstaten:ient.

Nevertheless, wide as their powers are, these Tribunals are not absolute and there are limitations to the ambit of their authority.

Though they are not courts in the strict sense of the term, they haye to discharge quasi judicial functions and as such are subject to the overriding jurisdiction of the Supreme Court under Art. 136 of the Constitution.

Their powers arc derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions. Those provisions invest them with many of the "trappings" of a court and deprive them of arbitrary or absolute discretion and power.

Bene, olent despotism is foreign to a democratic Constitution. \Vhen the Constitution of India converted this country into a so\-creign, democratic, republic, it did not invest it with the mere trappings of democracy hut invested it with the real thing. the true kernel of which is the ultimate authority of the courts to restrain all exercise of absolute and arbitrary power not only by the executive and by officials and lesser tribunals but also by the legislatures and e\en bv Parliament itself. The Constitution established a "Ruic of

La\\"" n th; s land and that carries with it restraints and restrictions that are foreign to despotic power.

The courts, however, must always exercise caution and should not substitute their own judgment and discretion for that of such tribunals.

Deamber 2 3.

Stetl Co. Lid.,

Kan/NJ' v. \ The Iron and Steel

Mazdoor Union,

Kanpur

In view of SS. 7 and II or the Industrial Disputes Act, 1947 and U.P. State Industrial Tribunal Standing Orders 1951 these Tribunals, though not bound by all the technicalities of Civil Courts must nevertheless follow the general pattern of the Civil Courts in the matter of taking the pleadings of the parties in writing and the drawing up of issues. It is not open to the Tribun::ls to disregard the pleadings and to reach any conclusion that they think are just and proper.

The Supreme Court remitted the case to the Labour Appellate Tribunal for a rehearing of the appeals as the Adjudicator and the Labour Appellate Tribunal had adopted the attitude of benevolent despots and had based their conclusion on irrelevant considerations and ignored thC real questions that arose for decision and the issues that arose out of the pleadings of the parties.

Western India Automobile Association v. Industrial Tribunal, Bombay {[19491 F.C.R. 321, 345), State of Madras v, C. P. Sa,.athy, {[1953] S.C.R. 334, 348), Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., {[1950] S.C.R. 459, 497), Muir Mills Co. v. Suti Mills Mazdoor Union, Kanpur ([1955] I S.C.R. 991, 1001), referred to.

CIVIL

APPELLATE JuR1so1CTION : Civil Appeals Nos. 22 and 22-A and 301 of 1955.

Appeals by special leave from the judgment and order dated the 4th July 1952 of the . Labour Appellate Tribunal of India, Lucknow in Appeals Nos. 391 and 392 of 1951 arising out of the Award dated the 1st November 1951 of the Adjudicator and Additional Regional Conciliation Officer, Kanpur in Case No. 53 of 1951.

G. S. Pathak, (Rameshwar Nath and Narain), for the appellants in all the appeals.

G. C. Mathur, for the respondent in C. 22 and 22-A and respondent No. 4 in C. A. of 1955. .

Rajinder

A. Nos.

No. 301

K. B. Asthana and C. P. Lal, for the respondent No. 3 in C. A. No. 301 of 1955.

1955.

December 23.

The Judgment of the Court was delivered by BoSE J.-We are concerned here with three appeals.

They arise out of a dispute between the J. K.

Iron and Steel Company Limited and the Iron and Steel Mazdoor Union.

We will call them the

' '

Company and the Mazdoor Union respectively.

The facts are as follows.

The Company had its . factory and other works at Kanpur in Uttar Pradesh. On 10-4-1948 the Ministry of Commerce in the Government of India ordered the Company to shift its Jute Baling Hoops factory from Kanpur to Calcutta.

As no land was available in Calcutta no effect could be given to this order till the year 1950-51.

On 19-3-1951 the Iron and Steel Controller ordered the Company to stop the rolling of jute baling hoops at once.

Accordingly, the production of these hoops was stopped from that date .

. At the same time there was scarcity of scrap iron and the Company's case is that that forced it to reduce the working of its furnace from three shifts a day to one.

The Company states that because of these two causes it was obliged to retrench its staff.

Therefore, it issued the following notice dated 15-5-1951 to 128 of its workers:

"Consequent to transfer of the Rolling Mill to Calcutta and want of scrap to Furnace Department in full, the services of the persons as per lists attached are dispensed with from today.

Their wages and other dues in full settlement will be paid after 2 P.M."

Twenty fi,, e of the 128 accepted their wages and other dues in full settlement but the remaining 103 refused.

Their cause was accordingly espoused by the Mazdoor. Union which made an application to the Regional Conciliation Officer at Kanpur on 16-5-1951 complaining that the retrenchment was illegal and asking that the workmen be reinstated with full payment of their wages for the period they were out of work.

This was forwarded to the Government of Uttar Pradesh and on 28-6-1951 the Governor of that State referred the following issue to the Regional Conciliation Officer at Kanpur under sections 3, 4 and 8 of the U. P. Industrial Disputes Act, 1947 for adjudication:

"Whether the retrenchment of the workmen

J. K. Iron attd

Stell Co. Ud.,

Kanpur v.

The Iron and Sle•l

Maz:.door Union,

Kanpur

Bose].

]. K. Iron and Stttl Co. l.Jd.,

Kanpur

The Iron and Steel

Ma::door Union,

Kanpur

Bose J.

given in the Annexure by Messrs J. K. Iron and Steel Co. Ltd., Kanpur,- is unjustified ? If so, to what relief are the workmen entitled ?"

The parties filed their written statements on 14-7-1951 and the Company filed a rejoinder on 20-7-1951. The Adjudicator thereupon took evidence, oral and documentary, and gave his award on 1-11-1951.

But before that was done the case of one of the workmen (Kapil Deo Singh) was withdrawn and that left 102 for him to deal with.

The Adjudicator reached the following conclusions.

The Mazdoor Union had contended that the retrenchment was not in good faith.

The Adjudicator held that it was and that there was neither harassment nor v1cum1sation.

So also on the question about the shortage of scrap he held that there was a shortage but that it was only temporary and that It was not likely to last for more than 8 or 9 months.

He then referred to the Standing Orders and said that the Company was not entitled to resort to retrenchment except as a last resort and that in the circnmstances of the present case these workmen should

(1) have been offered the option of employment in the new set up at Calcutta; and (2) those that did not want it should have been laid off in rotation instead of being retrenched.

He accordingly ordered that that should be done and drew up a graduated scale of compensation.

We observe in passing that the expression used throughout has ?een "played off".

The reason for that is that that is the phrase used in the Standing O!ders and in the copy of the Act and Model Standing Orders reproduced by the U. P. Department of Labour in its Annual Review of Activities.

But it seems to us that that was due to printer's error at some stage which has been repeated in various places.

The correct expression is "lay off". That is the expression used and defined in the Act.

The Standing Orders should have used the same phrase.

Apart from the definition in the Act, "lay off" is a well-known industrial term meaning, accorcling to the Oxford Dictionary, "a period during which

. a workman is temporarily discharged".

We wiH use the correct expression in this judgment.

Both sides appealed to the Labour Appellate Tribunal.

The decision there was as follows.

The Tribunal upheld the finding that there was in fact a shortage of scrap iron an<l also agreed with the Adjudicator that that was only likely to be temporary.

Then it held, apparently as a matter of law, that under the Standing Orders it is not permisible to retrench workmen and deprive them of their maintenance when there is only a temporary shortage of material whatever the duration of the shortage; all that the employer can do in a case like that is to lay them off.

The Tribunal also upheld the finding that the Hoop Mill was in che course of transfer to Calcutta consequent on the orders of Government, but they held that there was nothing on the record to show which of the 105 persons (it should be 102) whose cases they were considering were "specifically engaged in the Hoop Mills and had become surplus by reason of the transfer to Callcutta".

This is one of the findings attacked before us by the Company on the ground that the Tribunal has failed to realise that the Company's operations must be considered as a whole and that because of the interdependence of its various departments a closure of one section, coupled with a shortage of materials in another, is bound to affect its all round working and therefore the question of retrenchment cannot be looked at from the narrow point of view of only one department but must be viewed in its all round setting.

We will deal with this later.

Another of the Tribunal's findings on the "transfer" aspect of the case was that a cut in profits is not in itself a good ground for retrenchment.

It held that retrenchment can only be made when there is a total closure of the mill "or when for any such other reason the workmen become surplus".

The final conclusion of the Tribunal was that the retrenchment was "wholly unjustified".

Accordingly, it set aside the retrenchments and held that the

1955 J. K. Iron and Steel Co. Ltd., Kanpur v.

The Iron and Steel

Mazdoor U11ion,

Kanpur

/Jose J.

J. K. Iron ond Steel Co. Ltd., Kanpur v.

The Iron ond Steel

Maz:door Union,

Kanpur

Bose].

affected workmen will be deemed to be "still in. service", and directed that they be reinstated.

The appeal of the Mazdoor Union was partly allowed and that of the Company dismissed.

This impelled the Company to do the following things: ( 1) to file a writ petition in the Allahabad High Court on 4-8-1952. This was dismissed by that Court on 9-4-1953 and Civil Appeal No. 301 of 19.55 is the appeal to us against that order;

(2) to file two appeals to this Court against the order of the Labour Appellate Tribunal.

These appeals are Civil Appeal No. 22 of 1955 and Civil Appeal No. 22-A of 1955.

This judgment covers all three appeals.

Mr. G. C. Mathur, who appeared for the Mazdoor Union, raised a preliminary objection against the Company's appeals based on the following facts.

The Company had appealed to this Court against the Labour Appellate Tribunal's decision on 26-8-1952.

The petition was summarily dismissed on 10-9-1952.

Counsel contended that that barred the present appeals: Civil Appeal 22-A of 1955 because it is an appeal against the very order that is now under appeal, and Civil Appeal 301 of 1955 on the basis of res judicata because it raises the same points as were raised in the petition for special leave which was dismissed.

We rejected this objection because the previous petition for appeal does not appear to have been dismissed on the merits but on two technical grounds.

It is true order of dismissal is general but the office note states ( 1) that no certified copy of the decision appealed against was filed though Order 13, rule 4, of the Rules of the Supreme Court, requires that and (2) that the reliefs sought in the petition for special leave and in the writ petition before the High Court are the same.

It is evident that that formed the basis of the order of dismissal especially as it is th<: usual practice not to entertain an appeal here when a similar matter is pending in the High Court.

Before we come to the merits it will be necessary to set out the grounds on which the High Court proceeded.

The learned Judges were concerned with a writ for certiorari and so naturally focused their attention on questions of jurisdiction rather than on the merits.

They considered that the Adjudicator was free to take into consideration all matters bearing on the question of retrenchment and to consider whether it was "absolutely necessary" to retrench the workmen. They looked at Standing Order 16(a) and decided that the Adjudicator had jurisdiction to determine th~ scope and meaning of this Order and that he and the Labour Appellate Tribunal were competent to hold that these orders meant that the Company was not entitled to take what the learned Judges called the "extreme step of retrenchment" so long as it was possible for it to "lay off" the workmen.

That at once raises quesions about the scope and authority of an adjudicator under the Industrial Disputes Act.

But that we feel, is now settled by authority.

The Federal Court held in Western India Automobile Association v.

Industrial Tribunal, Bombay(1) that adjudication does not mean adjudication according to the strict law of master and servant and held that an adjudicator's award may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law. They held that Industrial Tribunals are not fettered by these limitations and held fu:-ther that an adjudicator has jurisdiction to investigate disputes about discharge and dismissal and, where necessary, to direct reinstatement.

That decision was followed with approval by this Court in State of Madras v. C. P. Sarathy( 2 ) and it was again pointed out that the scope of an adjudication under the Industrial Disputes Act is much wider than that of an arbitrator making an award.

It would be pointless to cover the same ground; so we must take that now as settled law.

All the same, wide as their powers are, these Tri-

(1) [1949] F.C.R. 321, 345.

(2) [1953] S.C.R. 334, 348.

]. K. Iron and Stul Co. Ltd.,

Kanpur

Tiii Iron and Steel

Ma:i:door Unitm,

Kanp16

Bost].

Stel Co. Ltd., Kanpur v.

The Iron and Steel

Ma(, door Union,

Kanpur

Bose J.

bunals are not absolute and there are limitations to the ambit of their authority. In Bharat Bank Ltd. v.

Employees of Bharat Bank Ltd.(') this Court held by a majority that though these Tribunals are not Courts in the strict sense of the term they have to discharge quasi judicial functions and as such are subject to the overriding jurisdiction of this Court under article 136 of the Constitution.

Their powers are derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions.

Those provisions invest them with many of the "trappings" of a court and deprive them of arbitrary or absolute discretion and power.

There is, in our opinion, an even deeper reason which is hinted at in the judgment of Mahajan, J. (as he then was) at page 500 where he says that "benevolent despotism is foreign to a democratic Constitution".

That, in our opinion, is the heart of the matter.

When the Constitution of India converted . this country into a great sovereign, democratic, republic, it did not invest it with the mere trappings of democracy and leave it with merely its outward forms of behaviour but invested it with the real thing, the true kernel of which is the ultimate authority of the Courts to restrain all exercise of absolute and arbitrary power, not only by the executive and by officials and lesser tribunals but also by the legislatures and even by Parliament itself.

The Constitution establisheJ a "Rule of Law" in this land and that carries with it restraints and restrictions that are foreign to despotic power.

Despite thi'I, however, the Courts must always exercise caution and see that they do not substitute their own judgment and discretion for that of these Tribunals, for, as Mahajan, J. said in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.(') the overriding powers of this Court under article 136 are exceptional; and he went on to point out that-

"extraor<linary powers of this character can only be justifiably used where there has been a grave miscarriage of justice or where the procedure adopted by

(I) [1950] S.C.R. 459, 497.

the Tribunal is such that it offends against all notions of legal procedure".

Now the position in the present case is this. The Tribunals are directed by section 7 of the Industrial _ Disputes Act to adjudicate industrial disputes "in accordance with the provisions of the Act" and section 11 directs them to follow "such procedure as may be prescribed".

The procedure for the Uttar Pradesh Tribunals is laid down by the U. P. State Industrial Tribunal Standing Orders, 1951.

Very broadly it follows the Pattern of the Civil Courts. Once the reference is made by Government, the Tribunal has to take the pleadings of the parties in writing and to draw up issues.

Then it takes evidence, hears argument's and finally pronounces its "judgment" "in open Court".

It is evident from this that though these tribunals are not bound by all the technicalities of civil Courts, they must nevertheless follow the same general pattern.

Now the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ.

It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.

What exactly was the dispute in the present case?

The broad conflict was of course about the retrenchment and the Tribunal was asked to decide whether the retrenchment of these 103 persons was unjustified; but that by itself left the issue much too broad, so it was neces5ary to "particularise" and that was done in the pleadings.

The Company justified its action on two grounds:

(1) because of the shortage of scrap and (2) because of the stoppage of work in the Hoop Department consequent on the orders of Government.

But none of the persons retrenched came from the Hoop Department and the Company explained that that was because of the interdependence of its various departments and, taking the retrenchments in groups, department by department, it explained just why reduction was effected in those particular places. In

9-8.'l S. C. Iadia/5!1

195.'l_

J.X. Iron /Ull/

Sl11l C,. Utl.,

Kanpur

"· Thi Iron anti Slee I

M a:etloor Union,

Kanpur

Bm].

J.K. Iron and

Sttll Co. lJd.,

Kanpur , ..

Thi fro11 and Slttl

M11zdoor Union,

Kanpur

.... J.

.1324 iUPREME COURT REPORTS [19551

this way, it dealt serially with the retrenchments in

(1) the Scrap Department, (2) the Cast Iron Foundry,

(3) the Punching and Pressing Department, (4) the Watch and Ward Department and (5) the Clerical Department.

The Company also made the following assertions, ( 1) that retrenchment is a necessary incidence of an industry and that the discretion of the management should not be interfered with; (2) that it is the exclusive function of the management to determine the 'ize of its working force and (3) that the employer must be the sole judge as to how economically or efficiently its business is to be run.

The Mazdoor Union retorted that the retrenchments were not done in good faith.

It denied that there was any shortage of scrap but admitted the interdependence of the various departments and used that fact as an argument to indicate the Company's bad faith.

The Union said the very fact that there had been no retrenchment in the department that was directly affected, namely the Hooping Department, and that there was no retrenchment in certain allied departments that would have been the first to be hit, had there been any real shortage of scrap, showed that the reasons given by the Company for the retrenchment were untrue.

In particular, the Union pointed out that there had been no retrenchment in the following departments which, accordingly to it, would hne been the hardest hit had there been any truth in the Company's case, namely, (1) the Furnace Department, (2) Rolling Mill Department, (3) Workshop, ( 4) Painting and Bundling, (5) Works and Maintenance.

Then, as regards the Foundry Department and the Scrap Department where there had been retrenchments, the Union said that these departments had sub-sections and yet there were no retrenchments in the sub-sections that would have been hit if the Company's allegations were true_ The Union gave no reply to the Company's assertions about its right to retrench in the absence of bad faith, its right to determine the size of its working force and its right to judge of the economy and efficiency of its business

The Company filed a written rejoinder and explained in detail why there had been no retrenchments in the places where, according to the Union, there should have been on the facts alleged by the Company and it again explained why it had retrenched workers in the departments which; according to the Union, ought to have been the hardest hit.

This explanation again brought out the interdependence of the various departments.

Instead of drawing up issues, as it is required to do by Standing Order 22 of 1951, and determining just where the parties disagreed, the Adjudicator at once proceeded to record evidence and entered upon a rambling enquiry which embraced questions which had not been raised at all. On the only point on which the parties were really at issue, namely the good faith of the mai1agement, the findings were in favour of the Company.

So also the Adjudicator accepted the Company's assertion about its right to determine the size of its labour force and to effect retrenchment where necessary subject only to the proviso which the Adjudicator added, namely that this uust be done in good faith; and indeed the Mazdoor Union had not challenged these assehions in its written statement.

The Adjudicator said""'.'""

"It is however an accepted principle that such changes as are being done by the management now form a part of managerial discretion and cannot be interfered with unless it is coloured with the clement of victimisation or unfair labour practice." But despite this, and despite his findings about good faith, the Adjudicator considered that, in spite of it all, "the right of the workmen has to be safeguarded to certain extent".

What is left of the right if the "accepted principle" be what he says it is and if there is no victimisation or bad faith, he did not proceed to explain.

If the principle he enunciated and accepted is sound, .- then the only rights they have are to complain of

-· ...

Steel Co. Ltd., Kanpur v.

The Iron and Steel

Mazdoor Union,

Kanpur

Bose J.

].K. Iron alld SU1l Co. IJtl.,

Kanpur

TM Iron and Steil

Mazdoo' Union,

Kanpur

Bos~].

bad faith, victimisation and so forth. However, feeling under a compulsion to safeguard these unexplained rights he had recourse to Standing Order 16(a) and ignored Standing Orders 19 and 20.

The "accepted principle" to which the Adjudicator refers in the passage quoted above is implicit in Standing Orders 19(a) and 20(a). They deal with the termination of service by an industrial establishment and prescribe a certain quantum of notice in writing, and then comes this important proviso in Standing Order 19(a)-

"Provided that if a _permanent workman feels that he has been discharged for reasons not connected with his employment or that the reason of discharge communicated to him is not genuine, he may make an appeal to the Labour Commissioner.

The decision of the Labour Commissioner .......... shall be binding on both the parties".

Reading the body of Standing Order 19( a) along with the proviso in the light of the "accepted principle",, it is evident that the only right the workman has, when his service~ are lawfully terminated after service of due notice and so forth, is to question the order on only two grounds- ( 1) that he has been discharged for reasons not connected with his employment, and

(2) that , the reason of discharge communicated to him is not genuine.

There is nothing in these Standing Orders to indicate that retrenchment is a measure of last resort and that an employer must continue to lay off his workmen however uneconomical that may be to the business; still less that he must lay them off in rotation and thus affect other workmen who would not be affected by a legitimate order of retrenchment. That cuts at the root of the "accepted principle".

In any event, the ground on which the adjudicator proceeded was not a matter in dispute between the parties because it was not raised in their pleadings and could not have been put in issue had the Adjudicator troubled to draw up issues as he should have done.

As Mahajan, J. said, adjudicators and tribu-

' r

...

nals cannot act as benev9lent despots and that is exactly what it comes to when an adjudicator, after setting out, correctly in our opinion, the Compmy's rights, holds against the Union on the only grounds that it did raise and then proceeds to give an award, not only on grounds that are not raised but on grounds that fly in the face of the very principles that he enunciated; and that only because he felt that he was under a compulsion to "safeguard" the workmen to "a certain extent".

Both sides appealed to the Labour Appellate Tribunal and the second ground of the appeal lodged by the Mazdoor Union was "that _the award of the learned Adjudicator is quite arbitrary" which, of course, is exactly what it was And so also ground No. 9: "That the learned Adjudicator has gone beyond his jurisdiction in avyarding relief on a question not referred to it by Government".

That again we feel is justified.

What was referred was the question of the justification for retrenchment of certain specified workmen.

What was awarded was the laying off of persons whose cases were not even considered, th; tt is to say, when the Adjudicator directed laying off in rotation his order necessarily affected persons who had neither been laid off nor retrenched and whose cases not even the Union had in mind.

It is to be observed that the Mazdoor Union complains about this part of the order in ground No. 11 though on a different ground.

The Company also appealed against the Adjudicator's order and grounds Nos. 6, 9 and 24 of their appeal are directed against that part of the order that deals with tl1e lay off of the workmen.

Among other reasons advanced is that this will adversely affect others who are not retrenched.

The other grounds repeat what was said in the company's written itatement though in different language.

The Labour Appellate Tribunal contrasted Standing Order 15(a) with Standing Order 16(a) but also ignored Standing Orders 19(a) and 20 which are the

Steel Co. Lid.,

KanpUT

T kl Iron and Steel

Mozdoor Union,

Kanpur

BosiJ.

J.K.Iron and Slttl Co. LJd.,

Kanpur

Thi Iron ariJ Stttl

Mu.door Union,

Kan/Jur

Bo11j.

only ones that really apply to this case.

It upheld the finding of the Adjudictor that there was a shortage of scrap but held that as the shortage was for only 6 months retrenchment was not justified.

In point of fact, the Labour Appellate Tribunal is wrong about the six months.

It was under the impression that the Adjudicator had come to that conclusion.

But what the Adjudicator said was that the shortage at best was for a period of 8 01 9 months.

The passage which the Appellate Tribunaf quotes is not the finding of the Adjudicator but the argument advanced on behalf of the Company. The full passage runs thus:

"Shri Mahalingam stated that Standing Order 16( a) which provides for a lay off of a maximum period of 12 days in a month contemplates a temporary shortage of very short duration. It could not apply to shm-tage of raw materials lasting for more than 6 months and hence the C.ompany's right to retrench is not affected by the aforesaid Standing Order".

The Appellate Tribunal quoted the portion we have underlined but ignored the rest of the sentence and the part that went before and concluded that the portion underlined was a part of the Adjudicator's findings.

However, even if we assume that the Tribunal would have reached the same conclusion if it had realised that' the shortage was for as long as 8 or 9 months, the error into which it has fallen is that the question of retrenchment cannot be made to depend on the duration of the shortage or even on' the fact that those retrenched will be thrown out of employment but on the effect that an omission to retrench will have on the bminess.

In some cases, laying off even for 6 or 8 or 9 months might make the Company bankrupt, therefore, if the Appellate Tribunal considered that it had power to stop retrenchment for reasons other than those given in the proviso to Standing Order 19(a) it was bound to look into the Company's finances and determine the quetion of justification on that basis. T\ie only question referred was, was the retrenchment justified? and we find it

-'

impossible to see how that can be determined without considering the question of gocxl faith which in turn would largely depend on the finances of the Company, on the adverse effect that retention would have on the business and on whether retention would mean the deadweight of an uneconomic surplus and so forth.

Next, when the Appellate Tribunal turned its attention to the trans.fer of the Hoop Mill to Calcutta, it agreed that that would have been a good ground for retrenching those who were specifically engaged in the Hoop Mill but not the others.

But this takes an impossibly narrow view and ignores the over-all working of a business concern and the repercussions that a trans.fer of this kind would have on other parts of the business.

It totally ignores the pleadings of the parties and, like the adjudicator, bases its conclusion on some airy view of what it considers would be a good thing for the workmen.

That is not a decision "given in accordance with the Act" and is as much open to objection on that score as the aard• of the Adjudicator. It is pertinent at this stage to refer to a decision of this Court reported in Muir Mills Co. v. St4ti Mills Mazdoor Union, Kanpur(1 ) where Bhagwati, J. delivering the judgment of the Coun said-

"The considerations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable".

In the present case also we are of opinion that the Adjudicator and the Labour Appellate Tribunal had

adoped the attitude of benevolent despots and have based their conclusions on irrelevant considerations and have ignored the real questions that arose for decision and the issues that arose out of the pleadings of the parties.

It would not be right for us to substitute our judgment and discretion for that of the Adjudicator and the Tribunal: accordingly, as we are of opinion that the real questions that were in dispute between the

(1) (1955] l S.C.R. 991, 1001.

J.K. Iron an4 Slttl Co. IJtl.,

KIPIJM

v~ Thi Iron and Stul

Mazdoor Union,

KOllJM

BmJ.

J.K. Iron "nti Steel Co. Ud.,

Kanpur

The Iron and Stell

Mat:.door Unkn,

K'npur

Bost].

parties were neither appreciated nor considered we have no alternative but to remit the matter to the Labour Appellate Tribunal for a proper decision after drawing up issues that arise out of the pleadings, considering them and deciding the dispute accordingly, with liberty of course to remit the case to the Adjudicator for a retrial or for the taking of further evidence if it is of the opinion that the omission to draw up issues and focus attention on the points that seem to be in dispute has had the result of shutting out evidence that might otherwise have been led.

An agreement said to have been reached between the parties on 7-9-1953 was placed before us towards the end of the arguments but we have' not looked at it because counsel for the Mazdoor Union said it did not cover the case of these retrenched workers. The Company insisted that it did.

We were not prepared to investigate that dispute at that late stage but we make it plain that the Labour Appellate Tribunal will be at liberty to consider it or not as it deems right;,. aftq; hearing what both sides have to say about it.

The award and the decision of the Labour Appellate Tribunal are set aside and the case is remitted to the Labour Appellate Tribunal for a re-hearing of the appeals filed before it and for a fresh decision in the light of the foregoing observatigns.

We will, however, have to make some interim arrangement for payment of what may be termed a sort of subsistence allowance to the affected workmen during the pendency of those further proceedings.

As there is no agreement between the parties on the subject, we leave it to the Labour Appellate Tribunal or the Adjudicator, as the case may be, to make suitable orders in this respect.

There will be no order about costs as neither party is to blame for what has happened.

...

J. K. IRON AND STEEL CO. LTD., KANPUR

V1v1AN BosE

CHANDRASEKHARA AIYAR JJ.

Industrial Disputes Act, 1947

ss. 7 and 11

Industrial Disputes Act

Industrial Disputes Act

Supreme Court

Art. 136

Constitution of India

Stetl Co. Lid

SS. 7

II or the Industrial Disputes Act, 1947

CIVIL

APPELLATE JuR1so1CTION :

G. S. Pathak

Rameshwar Nath

Narain)

G. C. Mathur

Rajinder

K. B. Asthana

C. P. Lal

J. K.

Iron and Steel Company Limited

Iron and Steel Mazdoor Union

Kanpur

Calcutta

Mazdoor. Union

Government of Uttar Pradesh

sections 3, 4 and 8

Industrial Disputes Act, 1947

Kapil Deo Singh

Labour Appellate Tribunal

Callcutta

Iron and Steel

Mazdoor U11ion,

Kanpur

Iron ond Steel

Allahabad High Court

G. C. Mathur

Mazdoor Union

Order 13, rule 4

Industrial Disputes Act

Industrial Disputes Act

[1949] F.C.R. 321

K. Iron and Stul Co. Ltd.,

Kanpur

article 136

Mahajan

Constitution of India

Parliament

article 136

section 7

section 11

Iron and Steel

Mazdoor Union,

Kanpur

If the principle he enunciated and accepted is sound, .- then the only rights they have are to complain of
· ...

Steel Co. Ltd., Kanpur v.

The Iron and Steel

Mazdoor Union,

Kanpur

Bose J.

].K. Iron alld SU1l Co. IJtl.,

Mahalingam

Bhagwati

J.K. Iron

J.K. Iron "nti Steel Co. Ud.,

Kanpur


. .,.

2S.C.R.

SUPREME COURT REPORTS

PRADYAT KUMAR BOSE

ti.

THE HON'BLE THE CHIEF JUSTICE OF

CALCUTT A HIGH COURT.

lVIVIAN BosE,

BHAGWATI, ]AGANNADHADAs, B. P. SINHA and ]APER IMAM JJ.]

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 11dminisrative 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 Nove1nber 1948. He was dismissed from that post with effect from ht September 1951 by the Chief Justice by his order dated 3rd September 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 appellant in respect of some of the charges but found him guilty in respect 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 Calcutta High Court. The Chief Justice issued notice to the appellant 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 dismissed 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

l'Nd.Jld K....,

&.1

Tlw H011'61' tlN CAitl Jrati<'. of

~H1g/,

Court

3. Whether the order of dismissal by the Chief Justice could have been passed without previous consultation with the Public Services Commission as provided by Art. 320 of the Constitution.

Held ( l) that the Chief Justice was competent to dismiH the appellant because both by virtue of the provisions of clause 8 of the Letters Patent of the Calcutta High Court read with clause 4 of the same as well as Arts. 229(1), 313 and 367(1) of the Constitution read with s. 16 of the General Clauses Act, the power of appointment includes the power of dismissal ;

(2) the objection lo the validity of dismissal on the ground that the dclgation of enquiry amounted to a delegation of power is without substance because the exercise of power to appoint or dismiss an ofticer is the exercise not of a judicial power but of an administrative power and it is well settled that a statutory functionary exercising such a power cannot be said to have delegated his functioa merely because he has deputed a , responsible and competent oflicial to enquire and report ; and

(3) it was not necessary to have the previous consultation with the Public Service Commission for the dismissal of the appellant by the Chief Justice because Art. 320(3) of the Constitution taken as a whole is inconsistent with Art. 229 of the Constitution and also because the language thereof is not applicable to the High Court Staff.

North-West Frontier Province v. Suraj Nar•in Anand ([1948] L.R. 75 I.A. 343), Barnard v. National Dock Labour Board, ([1953] 2 Q.B. 18, 40), Board of Education v. Rice ([1911] A.C. 179), and Local Go•ernme•I Board v. Ar/illte ([1915] A.C. 120), referred to.

CIVIL

APPELLATE Ju1.1sDICTION :

C1V1L

APPULS Nos. 245 and 202 of 1953.

Appeal under Article 132(1) of the Constitution of India from the judgment and order dated the 27th January 1953 of the Calcutta High Court in Matter No. 139 of 1952.

RanaddJ Chaudhry, Anil Kumar Das Gupta and Suklimar Ghose, for the appellant.

S. M. Bose, Ad11ocate-General for West Bengal (B.

Sen and P. ~· Bose, with him) for the respondent.

1955. December 23.

The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by leave of the High Court of Calcutta under article 132(1) of

the Constitution.

The appellant before us was the i.

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 therefrom 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 appellant 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 dismissed 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 explanation 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 ].

The Hon'ble the Chief y.,1;,, of

C'<llcuU4 High

Court

anxiously and found myself in entire agreement with the learned Judge.

Sri P. K. Bose was, in my view, clearly guilty of the matter comprised in the charges specified by Mr. Justice K. C. Das Gupta.

I considered that prima facie the conduct of Sri P. K.

Bose warranted dismissal and I therefore gave him notice under article 311 (2) of the Constituion of India to show cause against the action proposed against him, namely, dismissal.

On the 31st August, 1951, Sri P. K. Bose showed cause before me and I heard Sri Sachin Chaudhri his counsel and Sri P. K. Bose pesonally.

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 severe! y.

I therefore dismiss Sri P. K. Bose from his office as Registrar of the Original Side of the Court, the dismissal to take clfect from the 1st September, 1951.

Let a copy of this order be served on Sri P.

Bose".

On the 25th January, 1952, the appellant submitted a petition to the Governor of West Bengal for cancellation of the above order.

He received intimation dated the 9th July, 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 Chief Justice, Shri P.

B. Chakravarti, on the 11th September, 1952.

This application was rejected on the 16th September, 1952.

Thereafter on the 24th November, 1952, i.e., more than an year after the order of dismissal, a writ application was filed on the Original Side of the High Court under article 226 of the Constitution against the Hon'ble

the Chief Justice of the High Court "for calling upon him to bring up the records of the proceedings relatrng to his dismissal, in order that justice may be done by quashing or otherwise dealing with the said proceedings and the said order dated the 3rd September 1951, purporting to terminate his services and for directions being given to the Chief Justice to desist from giving effect to or acting in any manner under the said order".

On the presentation of the application the learned Judge on the Original Side, Mr.

Justice Bose, issued a rule nw calling upon the Hon'ble 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 article 132(1) on the ground that the case involves substantial questions of law relating to interpretation of the Constitution.

The main points that have been urged by the appellant before us, as before the High Court, are that- ( 1) the Chief Justice of the High Court had no power under the law to dismiss him;

(2) even if he had the power, he could not delegate the enquiry into the charges, to another Judge but should have enquired into the same himself; and

(3) in any case the order of dismissal could not have been passed in the absence of previous consultation with the Public Service Commission of the State as provided under article 320 of the Constitution.

On behalf of the respondent, i.e., the Hon'ble the Chief Justice of the High Court at Calcutta, the learned Advocate-General of West Bengal has

Praiyu K umor

Bose

Thi Ho11'/Jk tlu Cltiif justice of

Calcutt• High Court

ja, annadhaJas j.

Pradyat Kumar

Bose

The Hon'ble tht Chief Justict of

CalcutttJ High

Court

Jagannadhaatu ].

appeared before us.

In addition to controverting the correctness of the above contentions raised on behalf of the appeliant, he strongly urged that-

(1) no writ could issue from the High Court against its own Chief Justice;

(2) the order of the Chief Justice, the validity of which is being challenged, is a purely administrative order against which no application for writ is maintainable; and

(3) this was not a case in which having regard to all the circumstances, any application by way of a writ •hould have been entertained.

The points urged on behalf of the appellant may first be taken up. The most important out of them is the one relating to the authority of the Chief Justice to pass the order of dismissal as against the appellant.

It is beyond dispute that the Chief Justice is the authority for appointing the appellant. It was in fact the Chief Justice who appointed the appellant and confirmed him.

But it is strongly urged that he had not the power to dismiss.

This argument is based on the assumption that the appellant falls within the category of public servants who are governed by the Civil Services (Classification, Control and Appeal) Rules, (hereinafter referred to as the Civil Services Rules) of the year 1930 as amended from time to time and that the said rules continue to apply, to an officer holding the post which he did, even after the Government of India Act, 1935, and later the Constitution . of . India of 1950 successively came into force.

The argument recognises the fact that dismissal is a matter which falls within conditions of service of a public servant as held by the Privy Council in North-West Frontier Province v. Surai Narain Anand(') and that the power of making rules relating to conditions of service of the staff of the High Courts is vested in the Chief Justice of the Court under section 242(4) taken with section 241 of the Government of India Act, 1935, as also under. article 229 (2) of the Constitution of India, 1950. But

(I) [1948] L R. 75 I. A. 343.

it is said that no such rules have been framed by the Chief Justice, and that therefore by virtue of-sectiqn 276 of the Government of India Act, 1935, and article 313 of the Constitution, the Civil Services Rules continued to apply to him.

It is necessary to examine the correctness of these assumptions.

The Civil Services Rules were framed by the Secretary of State in Council under powers vested in him by section 96-B (2) of the Government of India Act, 1915, as amended in 1919.

These rules were framed on the 19th June, 1930, and published on the 21st June, 1930.

It is desirable therefore to consider the position relating to the staff of the High Courts before that date.

It is not disputed that the said position was governed by the Letters Patent of the High Court. Clause 8 of the Letters Patent of 1865 as amended in 1919, which continues to be operative, as also clause 4 thereof, are relevant for the present purpose. They are as follows:

"8. \Ve do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal, from time to time, as occasion may require, a~<l subject to any rules and restrictions which may be prescribed by the Governor- General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administfation of justice, and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent.

And it is Our further will and pleasure and We do hereby for Us, Our heirs and successors give, grant, direct, and appoint, that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall, from time to time, appoint for each office and place respectively, and as the Governor-General in Council shall approve of: Provided always, and it is Our will and pleasure, that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court, so long as they shall hold their respective offices; but

Prad;-al Kumar

Bose

The Hon'bu t/i6

Ch~( Juslie1 of

Calcutta High

Court

Jagannadhadas J.

!955

Pradyal ,.., .. ,

/Josi

Thi Hon'hU th1 Chitf Justice of

Calculla High

Court

Jagannadhadas J.

this proviso shall not interfere with or prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by the Governor-General in Council, and to absent himself from the said limits during the term of such leave, in accordance with the said rules".

"4. We do hereby appoint and ordain, that every clerk and ministerial officer of the said High Court of Judicature at Fort William in Bengal, appointed by virtue of the said Letters Patent of the Fourteenth of May, One thousand eight hundred and sixty-two, shall continue to hold and enjoy his office and employment, with the salary thereunto annexed, until he be removed from such office and employment; and he shall be subject to the like power of removal, regulations, and provisions if he were appointed by virtue of these Letters Patent".

It will be noticed that .clause 8 specifically vests in the Chief Justice the power of appointment, but makes no mention of the power of removal or of making regulations or provisions.

But it is obvious from the last portion of clause 4 that such power was taken to be implicit under clause 8 and presumably as arising from the power of appointment.

It may be mentioned that under clause 10 of the Charter of the Supreme Court of Calcutta issued in 1774, the said Court also was in specific terms "authorized and empowered from time to time, as occ:i.- sion may require, to appoint so many and such clerks wd other ministerial officers as shall be found nece,... sary for the administration of justice".

The power of removal or of taking other disciplinary action as regards such appointees was not in terms granted.

But there is historical evidence to show that the power of appointment conferred under the Charter was always understood as comprising the above powers.

Sir Charles Wood, the then Secretary of State for India in paragraph 10 of his dispatch to the Governor-General dated the 17th May, 1862, (on the formation of the new High Courts) stated as follows:

"The Supreme Court exercises an :i.uthority entirely independent of the Government in respect al

its ministerial officers".

It is this power and authority along with other judicial power and authority that was succeeded to by the High Courts (on their formation in supersession of the Supreme and Sadar Courts) by virtue of section 9 of the Indian High Courts Act, in the following terms.

"Each of the High Courts to be established under the Act shall have and exercise ................ all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts ............. . . . . . . . . . . . abolished under this Act .................. " 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.

There can be no doubt that this position continued at least until the Government of India Act, 1915.

Now, section 106 of the 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 GovernmeQ.t 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 clause 44 of the 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 section %-B of the Government. of India Act, 1915.

It is the case of the appellant that though the 30-95 S. C. India/59.

ProdvaJ Ir umar

Bose ...

The Hon'bu th,.

Chief Jwtica of

CalcuJta High

Court

JaganfUldhodAI J

Pradyal Kumar

Bos•

The Hon'blt Ou

Chi~{ ,]u.tlice of

CO!c11tta Jligh

Courl

Civil Services Rules framed by virtue of delegated power under the Act could not override the specific power of appointment vested in the Chief f ustice by virtue of section 106 thereof, they would override the alleged implications of that power such as the power of dismissal and power to frame rules relating to conditions of service in so far as they are specifically provided for under the Civil Services Rules. It is further u.rged that the said situation continues up to date by virtue of section 276 of the. Government of India Act, 1935 and article 313 of the Constitution. Now, the appellant is a person who was appointed in 1948 and dismissed in 1951.

It is, therefore, desirable in the first instance to examine the situation under the Government of India Act, 1935 and under the Constitution of 1950 on the assumption that the Civil Services Rules made a change in the prior situation so far as the High Court staff is concerned and applied thereto between 1930 and 1935.

Under the Government of India Act, 1935, the position relating to the Civil Services of. the Crown in India is contained in a number of general provisiona in Chapter II of Part X thereof.

Section 240(1) reiterates what was first statutorily declared by section 96-B of the 1915 Act, viz., that except as expressly provided by the Act every person who is a member of a civil service of the Crown in India, or holds any 6vil post under the Crown in India, holds office duing His Majesty's pleasure.

Section 241 provides for the recruitment and conditions of service of such persons and prescribes the various authorities who can make the appointments and frame the rule•

relating to conditions of service. Section 242( 4), in so far as it is relevant fo, the present purpose, pro-. vides that section 241 in its application to appointments to and to persons serving on the staff attached to a High -Court shall have effect as if, in the case of a High Court, for any reference to fhe Governor in paragraph (b) of section (1) in paragraph (a) of subsection (2) and in sub-section (5), there was substituted a reference to the Chief fustice of the Court.

Making the necessary substitutions as prescrib"l

.above, the statutory provisions in the Government of India Act 1935, relating to recruitment and conditions of service of the staff of the High Court may be read as follows :

"(l) Appointments to the Civil Services and Civil posts under the Cown in India in relation to the staff attached to the High Court shall be made by the Chief Justice or such person as he may direct.

(2) The conditions of service of persons servmg His Majesty in relation to the staff attached to the High Court shall be made by the Chief Justice of the High Court or by some person or persons authorised by him to make the rules for the purpose.

Provided that- ( a) the Governor may in his discretion require that in such . cases as he may in his discretion direct no person not already attached to the Court shall be appointed to any office connected with the Court

save after consultation with the Provincial Public 'Service Commission;

(b) rules made under sub-section

(2) by a Chief Justice shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor".

These sections, while keeping intact the power of appointment of the members of the staff of the High Court with the Chief Justice as contained in the Letters Patent, provide, statutorily for the first time and in express terms what was implicit in clause 8 of the Letters Patent, viz., that the power to regulate and frame rules relating to conditions of service governing such staff is also vested in the Chief Justice subject however to two limitations indicated by the provisos mentioned above.

The corresponding provisions in the present Constitution relating to the powers of the Chief Justice in relation to the recruitment and service conditions of the staff of the High Court are almost identical and are contained in article 229.

They are as follows: ' "229. (1) Appointments of officers and servants u£ a High Court shall be made by the Chief Justice of

Pr•tlyat 1\ umat

Bou

Tht Hon'bk t/11 Chief Justice of Calcutta High

Court

Pradvat Kumar

, Bose

"· The Hon'ble t/1e Chief Justice of

Calcutta Hig/1

Court

Jagannadhadas ].

the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State in which the High Court has its principal scat may by rule reql!ire that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such. as may be prescribed by trules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause, shall, so far as they relate to salaries, allowance"S, leave or pensions, require the approval of the Governor of the State in which the Court has its principal seat".

It does not appear from the record that any rules have been made by the Chief Justice of the Calcutta High Court, at any rate, in so far as they may be applicable to the Registrar of the Original Side of the High Court.

On the assumption, therefore, that the Civil Services Rules applied to the case of a person in his position between 1930 and 1935, it has got to be seen whether they continue to be so applicable.

The relevant provisions in this behalf are section 276 of the Government of India Act. 1935, and article 313 of the Constitution.

They are as follows: "Section 276: Until other provision is made under the appropiate provisions of this Part of this Act, any rules made under the Government of India Act relating to the Civil Services of, or civil posts under, the Crown in India which were in force immediately before the commencement of Part III of this Act, shall, notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act".

"Article 313: Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commence- -ment of this Constitution, as an all-India service or as service or post under the Union or a Stat.:: shall Continue in force so far as consistent with the provisions of this Constitution".

Now, it has to be observed that the continuance, under section 276 of the 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 the 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 of adaptJtion implicitly authorised by the very terms of section 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 section 242( 4) of the Act requires the provisions of section 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 <0f 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 appli-

Prad;•at ii. umar

BoS<

The llon'hl• the Chief :Justice nf

Calcutta High

Court

:JagannaJ:, adas J.

PraJyat A11mu

BoJt v.

TM Hon"blt IR1 Chief ]us tic1 of

CalcuJta Hith

Cf!llfl

ation of the old rules.

Now, the relevant provmon m the Civil Services Rules which deals with disciplinary action including dismissal is rule 52 thereof.

That rule shows that "the Governor-General in Council or Local Government of a Governor's Province may impose any of the penalties specified in rule 49

(which includes dismissal) on any person included in any of the classes 1 to 5 specified in rule 14 who 1' serving under the administrative control of the Governor-General in Council or the Local Government, as the case may be".

This rule, if it originally applied to the High Court staff, must after 1935 be read by substituting "Chief Justice" in the place of "the Local Government" wherever it occurs therein and making other consequential alterations.

Thus read, there can be no doubt that as from the commencement of the Government of India Act, 1935, the power of dismissal of a member of the High Court staff including, a person in the position of the appellant, would vest in the Chief Justice.

This would be so even apart from the normal implication of the power of appointment specifically recognised under the Act.

It follows 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 autority 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 article 3B would also continue rule 52 of the Civil Services Rules as above adapted.

It would, therefore, follow that,. at any rate, from the time of passing of the 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.

It must be mentioned, at this stage, that so far as the power of dismissal is concerned, the position under the Constitution of 1950 is not open to any argument or doubt.

Article 229(1) which in terms vests the power of appointment in the Chief Justice is equally effective to vest in him the power of dis-

. '

missal.

This results from section 16 of the General Clauses Act which by virtue of article 367(1) of the Constitution applies to the construction of the word "appointment" in article 229( 1).

Section 16 of the General Clauses Act clearly provides that the power of "appointment" includes the power "to suspend or dismiss".

In view of the clear conclusion we have arrived at as aboe, we do not consider it necessary to deal with the arguments addressed to us on both sides as to the applicability or othrewisc 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 him fails.

The further subordinate objectjons that have been raised remain to be considered.

The first objection that has been urged is that even if the Chief Justice had the power to dismiss, he was not, in exercise of that power, competent to delegate to another Judge the enquiry into the charges but should have made the enquiry himself.

This contention proceeds on a misapprehension of the nature of the power.

As pointed out in Barnard v. National Dock Labour Board(1) at page ::10, it is true that "no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication".

But the exercise of the power -to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power.

It is nonetheless so, by reason . of the fact that an opportunity to show cause and an e:nquiry simulating judicial standards have to precede the exercise thereof.

It is well-recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a respon\ible and competent official to enquire and report.

That is the ordinary mode of exercise of any administrative power.

What cannot be deleg; ited except where the law specifically so provides-is the ultimate responsibility for the exercise (\\ {\95312 Q. B 18, 4o.

Prdyat Kumar

Bose v.

The Ho11'ble 1/1' Chief J11stice of

Calcutta Hig!i

Court

Jagarmadhadas J.

Prad1•at Kumar

. BQJI ... 1)u Hon'ble the Chief .7uJlice of Calculta lligh

Court

JagannaJ:, adas J.

of such power. As pointed out by the House of Lords in Board of Education v. Rice('), a functionary who has to decide an administrative matter, of the nature i11volved in this case, can obtain the materi[ll on which he is to act in such manner as may be feasible and convenient, provided only the affected party "h.1s a fair opportunity to correct or contradict any relevant and prejudicial material"· The fol\owini>; passage from the speech of Lord Chancellor in Local Government Board v . .. Arlidge(') is apposite and instructive-

"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:usted.

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 Government Board it is not doubtful what this procedure is..

Tl1e Minister at the head of the Board is directly responsible to Parliament like other Ministers.

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 officials, 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 substance 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.

, ....

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 invatid. 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 capacity, including memorials or petitions relating to such matters".

The phrase "all disciplinary matters affecting a person" is sufficiently comprehensive to include any kind of disciplinary action p:oposcd to be taken in respect -of a particular person.

The question for comicleration, 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 servants of a High Cout and hence also of dismissal or removal and as regards the framing of rules prescribing 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 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 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 ].

Pn11Jyal J{umar

BMt

The ll1111'blc th.r.

r:liif ,]11Jlf, e o.f

Calrulttt 11 i , z •

(,',1111! '

Jar,<mua, f!, cdas ].

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 footing from that under article 320(3) (a) or (b) which relate 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 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 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 designate the services to which the articles relate by a variety of terminology.

Under article 309, the appropriate Legishture is vested with the power to regulate recruitn1ent and conditions of service uof persons appointed to public services and posts in connection 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.

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 consultation 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 members 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 officers 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 "persons 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 "appointi!l55

Pr4Jral r..umar

. BiJS(

Tkr H.n'bh Ifie Chief Jusl/c, Rf

Cil/cuUil High

Court

Jagann., d!iadils ].

!955

Pradyat Kumar

Bose

TM Hon'b/e the

Ckif Jujtice of

Calcutta Hig.'1

Cout'I

]agonnadiiadas ].

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 connection with the affairs of the State".

It appears, therefoce, 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 m 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 th.e above phrase because in respect of them the administrative control is clearlv vested in the Chief Justice, who under the Constitution, has the power of app:iintment and removal and of making rules for the conditions 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 thi: 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 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 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.egories 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 comprehensie 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 matter beyond any doubt as regards the non-applicability thereto of this constitutional 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 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 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 dismissal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary. \Ve accordingly hold that the appellant was not entitled to the protection under article 320(3)(c).

It follows that none of the three conteniions 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 accordingly 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

Prodyat Kum"r

Bo SI

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 ].

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 question 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 application 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.

PRADYAT KUMAR BOSE

THE HONBLE THE CHIEF JUSTICE OF CALCUTTA HIGH COURT

BHAGWATI

B. P. SINHA

APER IMAM JJ.

Calcutta High Court

clause 4

Arts. 229, 3H, 320(3) and 367(1)

General Clauses Act, 1897

s. 16

Art. 226

Supreme Court

Art. 320

clause 8

clause 4

Arts. 229(1), 313 and 367(1)

s. 16

General Clauses Act

Art. 320(3)

Art. 229

L.R. 75 I.A. 343

Article 132(1)

Constitution of India

RanaddJ Chaudhry

Anil Kumar Das Gupta

Suklimar Ghose

S. M. Bose

B.

Sen

P. ~· Bose

JAGANNADHADAS

article 132(1)

28th May, 1951

11th August, 1951

Bose

31st August, 1951

September, 1951

K. C. Das Gupta

P. K. Bose

P. K.

Bose

P. K. Bose

article 311

Sachin Chaudhri

1st September, 1951

P.

Bose

25th January, 1952

West Bengal

9th July, 1952

Arthur Trevor Harries

P.

B. Chakravarti

11th September, 1952

article 226

Bose

article 132(1)

article 320

High Court at Calcutta

Praiyu K umor

Pradyat Kumar

Bose

Jagannadhaatu

Government of India Act, 1935

section 242(4)

section 241

Government of India Act, 1935

article 229

Constitution of India

L R. 75 I. A. 343

Government of India Act, 1935

article 313

section 96

Government of India Act, 1915

19th June, 1930

21st June, 1930

Clause 8

clause 4

Bengal

Jagannadhadas

Pradyal

clause 8

clause 4

clause 8

clause 10

Supreme Court of Calcutta

Charles Wood

India

17th May, 1862

Supreme and Sadar Courts

section 9

section 106

Government of India Act, 1915

India Act, 1915

clause 44

Clause 8

India Act, 1915

JaganfUldhodAI

Pradyal Kumar

section 106

section 276

Government of India Act, 1935

article 313

Government of India Act, 1935

Government of India Act, 1935

Section 240(1)

section 96

Section 241

Section 242( 4)

section 241

Government of India Act 1935

clause 8

article 229

Pradvat Kumar

, Bose

section 276

article 313

Section 276

Article 313

section 276

Government of India Act, 1935

section 276

section 242( 4)

section 241

JagannaJ

PraJyat A11mu

Government of India Act, 1935

article 3B

Government of India Act, 1935

Article 229(1)

section 16

General Clauses Act

article 367(1)

article 229( 1)

Section 16

General Clauses Act

Jagarmadhadas

Parliament

article 320( 3 )( c)

articles 311(1), 311(2) and 320(3)(c)

Article 320(3)(c)

Union Public Service Commission

Government of India

article 320(3)

article 320(3)

article 229

article 229(1)

State Public Service Commission

Pradvilt Kwr.ur

article 229

article 320(3)

article 229

article 320(3)

article 320(3)

article 320(3)

article 309

article 310

article 3

article 320(3)

article 320(3)

articles 310 and 311

articles 310 and 311

article 229(3)

article 202

article 203

article 320(3)(c)

article 320

Article 320

Pradyat Kumar

article 320(3)

Rajpramukh

Articles 53, 77, 154 and 166

article 320(3)

Section 290

section 266(3)

section 266

article 311

article 320(3)

article 320(3)

article 229

article 320(3)(c)

Bost

article 226

article 136

3rd September, 1951

16th September, 1952