- (1.) This is an appeal by leave of the High Court of Calcutta under Art. 132(1) of the Constitution. The appellant before us was the Registrar and Accountant-General of the High Court at Calcutta on its Original Side. He was appointed to the post by the Chief Justice of the High Court on 4-3-1948 and confirmed therein on 15-11-1948. He was dismissed thereform with effect from 1-9-1951 by an order of the Chief Justice dated 3-9-1951. There were various charges against him and Mr. Justice Das Gupta was deputed by order of the Chief Justice dated 28-5-1951, to make an enquiry and submit a report. Das Gupta J. made a full enquiry and submitted his report on 11-8-1951, in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of the other charges. The learned Judges expressed his conclusion as 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 of the Original Side of this Court". The Chief Justice issued to the appellant a notice on 16-8-1951, intimating that he agreed with the report after careful consideration thereof and asking him to show cause why he should not be dismissed from his post. The appellant was given a hearing by the Chief Justice on 31-8-1951. The order dated 3-9-1951, of the Chief Justice dismissing the appellant from his offices a copy of which was served on him, runs as follows : "A full and thorough enquiry was held by K. C. Das Gupta J. into the charges made against Shri P. K. Bose the Registrar of the Original Side of this Court. Sri P. K. Bose was represented by eminent Counsel and every opportunity was given to him to meet the charges and put forward his explanation and defence. The learned Judge, however in a full and very carefully considered report found Sri P. K. Bose guilty of serious charges involving moral turpitude and dishonesty and further he was of opinion that Shri P. K. Bose was by reason thereof unfit to hold the said office of Registrar. I considered this report and the evidence most anxiously and found myself in entire agreement with the leaned Judge. Sri. P. K. Bose was, in my view, clearly guilty of the matter comprised in the charges specified by K. C. Das Gupta J. I considered that 'prima facie' the conduct of Sri P. K. Bose warranted dismissal and I, therefore, gave him notice under Art. 311(2), Constitution of India to show cause against the action proposed against him, namely dismissal. On 31-8-1951, Sri. P. K. Bose showed cause before me and I heared Sri Sachin Chaudhari his counsel and Sri P. K. Bose personally. In all the circumstances this is not a case in which I can properly show any leniency, Sri P. K. Bose has abused the trust and confidence reposed in him and has been found guilty of serious malpractices and dishonesty. Conduct such as this of an officer of the status of the Registrar of the Original Side of this Court is unpardonable and must be dealt with severely. I, therefore, dismiss Sri P. K. Bose from his office as Registrar of the Original Side of the Court, the dismissal to take effect from 1-9-1951. Let a copy of this order be served on Sri P. K. Bose". On 25-1-1952, the appellant submitted a petition to the Governor of West Bengal for cancellation of the above order. He received intimation dated 9-7-1952, that the "Governor declines to interfere on his behalf". Thereupon he filed an application to the Chief Justice for review of the prior order of dismissal. It may be mentioned that it was Chief Justice Sir. Arthur Trevor Harries, who had initiated the proceedings against the appellant and passed the order of dismissal. He retired in June, 1952. The application for review was made to the successor Shri P. B. Chakravarti C. J. on 11-9-1952. This application was rejected on 16-9-1952. Thereafter on 24-11-1952 i.e. more than a year after the order of dismissal, a writ application was filed on the Original Side of the High Court under Art. 226 of the Constitution against the Hon'ble the Chief Justice of the High Court. "for calling upon to bring up the records of the proceedings relating to his dismissal, in order that justice may be done by quashing or otherwise dealing with the said proceedings and the said order dated 3-9-1951, purporting to terminate his service and for directions being given to the Chief Justice to desist from giving effect to or acting in any manner under the said order." On the presentation of the application the leaned Judge on the Original Side, Bose J. issued a rule 'nisi' 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 Art. 132 (1) on the ground that the case involves substantial question of law relating to interpretation of the Constitution.
(2.) 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 Art. 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 appeared before us. In addition to controverting the correctness of the above contentions raised on behalf of the appellant, 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 should 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.
(3.) 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 official 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 the 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. Suraj Narain Anand' AIR 1949 PC 112 (A) and that the power of making rules relating to conditions of service of the staff of the High Court is vested in the Chief Justice of the Court under S. 242(4) taken with S. 241, Government of India Act, 1935, as also under Art. 229(2), Constitution of India, 1950. But it is said that no such rules have been framed by the Chief Justice, and that, therefore, by virtue of S. 276, Government of India Act, 1935, and Art. 313 of the Constitution, the Civil Services Rules continued to apply to him. It is necessary to examine the correctness of these assumptions.;