Union of India & Others v. Sripati Ranjan Biswas and Another

GusWAMI, J .-This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Calcutta of December 13, 1973 reversing the judgment of the learned single Judge who had earlier found no infirmity in the impugned order of dismissal of the first respondent (hereinafter to be described as the respondent). The respondent was a confirmed Appraiser with about eleven years• service in the Customs Department in Class II of Gazetted Officers. On J;iccembcr 4, 1961, he was suspended and a chargesheet was served upon him, The charges related to firstly taking illegal gratification, secondly possession of assests disproportionate to his disclosed income and thirdly purchase of a plot of land without sanction of the appropriate authodty. The respondent was found guilty in the course of a depart-mental enquir1y of the second and third charges and was exonerated with regard to the first charge. A second notice was served upon him on December 17, 1962, affording an opportunity to show cause why h~ should not be dismissed firom service. Thereu£S>n the respondent preferred an application under article 226 of the Constitution in the High Court challenging the show cause notice and obtained . a Rule. This Rule was disposed of by the High Court quashing third charge and the Collector of Customs was directed to reconsider the appropriate penalty to be imposed on the surviving second charge. On February 3, 1964, the Collector of Customs passed an order dismissing the res-pondent basing on the second charge. The respondent preferred an appeal to the President. of India under rule 23(2)(b) of the Central Civil Services (C!.assification, Control and Appeal) Rule.~ 1957 (briefly the Rules).· After consulting the Union Public Service Commission under rule 30(2) of the Rules, the President of India rejected the res-pondent's appeal.

On November 25, 1966, the respondent filed a petition under arti-cle 226 of the Constitution in the High Court challenging the validity of the dismissal order as well as the appellate order of the President. The learned single Judge allowed the writ petition on August 29, 1967, holding that the appellate authority decided the appeal without consi-dering whether the drastic punishment of dismissal was exces~ive or not in violation of the provio.ions of rnle 30(2)(c). The learned Judge, ·however, gave liberty to proceed with the appeal afresh. Thereafter the :Minister in the Ministry of Finance, Government of India, heard th,. appeal on March 28, ·1969. Ultimately the respondent's appeal to L the President of India was rejected on April 25, 1969 and the Under

Secretary to the Government of India in the F.inance Ministry com-municated th© order in the name of the President on May 9, 1969. --/~ The communication was in the following terms '--:-

"I am directed to refer to your letter dated 2-4-1968 and 5-6-1969, containing your further submission in reply to the notice issued to you vide this Ministry's No. F-49/l/67-4-839SupCl/75 -

Ad.-II, dated 23-2-1968, and to say that the President has carefully considered the further submissions made by you in consultation with the Union Public Service Commission. The arguments advanced by you at the time of the hearing granted to you by Shri P. C. Sethi, Minister in the Ministry of Finance, on behalf of the President on 28-3-1969 have also been carefully considered by him. Upon consideration of all the facts and circumstances of the case the President has decided that the penalty of dismissal from· service impos-ed on you by the Disciplinary Authority (viz.) the Collec-tor of Cnsioms, Calcutta is not excessive or severe and that I your appeal should be rejected. The P,resident hereby orders accordingly. A copy of the U.P.S.C. s letter No. F.3/56/ 68-SI dated ~6-10-1968 and a copy of the order passed by the Minister on behalf of the President are enclosed here- .i \vith".

The respondent in a third round of litjgation challenged the above order in the High Court under article 226 of the Constitution. The learned single Judge dismissed the same but in appeal against that _,, .iudgment the Division Bench set aside the order of the learned single Judge and quashed the aforesaid order of May 9, 1969. Hence this appeal by tl~e Union of India. •

The High Court held that, the pawers and duties which the Presi-dent is required to exercise as an appellate authority under rule 23(2)(b) Of the Rules are not constitutional duties imposed upon the President under the Constitution. According to the High Court the functions and duties of the President as an appellate authority under the said Rules are not part of business of the Government of India nor are they part of the President's duties under the Constitution. The High Court, therefore, came to the conclusion that the Minister had ·--.- no tight to deal with the appeal which had been preferred to the President of India under the said Rules.

The above question is squarely covered by a recent deci>ion of this Court in Samsher Singh v. State of Punjab and Another(ll). Even so, Mr. A. K. Sen appearing on behalf of the respondent submits that there.is still an area which has not been covered by the said decision. Mr. Sen submits tl,iat hearing of an appeal under a statutory rule, as in this case, it is a quas;i-judicial act and, therefore, it cannot be delegated by the President to the Minister. It is, however, clear that in Samsher Singh's case the question related to the termination of service of a sub-ordinate Judge under rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 195_2 and that of another officer in the Punjab qv!l Serv!ce (Judic.ia.l Branch) under rule 7(3) in Part D of the Punjab CIV!l Services (Judicial Branch) Rules 1951 as amended from time to time. It is not disputed that the above two Rules under which the termination took place are statutory Rules.

UNJON v. s. R, BISWAS (Goswami,!.) 271 The question which is raised iu this appeal relates to the dom~in .of appointment or dismissal of a Government serva~t. Such a que.s!Jon r-falls. within the ambit of a purely executive fnnct10n of the; President

in the case of the Union Government and of the Governor rn the case of a State. In the present case, such a function being ultimately a11 .executive function of the President, the fact that the final order is pre-ceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distin-guished in this appeal from the ratio of the decision in Samsher Singh's .case. The legal position is brought out very clearly in paragraph 57 of the report in Shamsher Singh (supra) in the following extracts:-

"Appointment or dismissal or removal of persons belong- -ing to the Judicial Service of the State is not a personal func-tion but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitu-tion" .

.Again in para 48 the Court observed -

"The President as well as the Govermir is the Constitu- ~ional orformal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the pid apd advice of his Council of Ministers, save in sphere where the Governor is required by or under the Constitution to exercise his functions in his discre-tion. Wherever the Constitution requires the satisfaction of the President or the coovernor for the exercise by the President or the Governor of any power of function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor hi the Constitutibnal sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers ·on whose aid and advice the President or the Governor gene-rally exercises all his powers and functions. The decision of any Minister or Officer under rules of business made under any of these two Articles 77 (G) and 166 ( 3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore the decision of Minister or officer under the rules of business ls the decision of the President or !he Governor".

We are, therefore, unable t.o see ho'Y t.he present case of the respondenf can get out of the rules laid down m Samsher Sing/i's case (supra).

Jn the history of the entire background qf the constitutional develop-ment of. o".r country, whei:i the Constitution conclusively contemplates ~ Constitutional Presi~ent 1t is i:iot permissible nor is it even intended to mvest npon the Pres.ident a different role of a ruling monarch. Any reference to 1?e the President under any rule made under the Constitution i:iust needs t.o the ~resident as the constitutional head, as envisaged m. tl,ie Constitution actmg with the aid and advice of the Council f Mmisters. o

Disposal of the appeal by th~ Minister nnder .rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the Ptesidcnt who has acted on the advice of the Minister in confirming the imugned order of dismissal. There is no question of delegation involved in such a matter. We find no constitutional infirmity in the impugned order of May 9, 1969. · .

In the result the appeal is allowed. The judgment of the Division Bench of the High Court is set aside. We will, however, make no order as to costs.