1. Appointment and suspension of a traditional chief under the Sixth Schedule of the Constitution — challenge to the legality of removal without specific legislation. (Para 1 , 2 )
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1960 Supreme(SC) 220
SUPREME COURT OF INDIA
20th September, 1960
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO AND K.N. WANCHOO, JJ.
T. Cajee, Appellant
Versus
U. Jormonik Siem and another, Respondents.
Civil Appeal No. 394 of 1960.
Advocates Appeared
Mr. C. K. Daphtary, Solicitor-General of India and Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s. Narendra Kumar Lahiri and R. Gopalakrishanan, Advocates, with them), for Appellant; Mr. N. C. Chatterjee. Senior Advocate, (Mr. D. N. Mukherjee, Advocate with him), for Respondent No. 1: Mr. Naunit Lal Advocate, for Respondent No. 2.
Advocates:
A.V.VISHWANATHA SASTRI, C.K.DAFTARY, D.N.MUKHERJI, N.C.CHATTERJI, N.K.LAHIRI, NAUNIT LAL, R.GOPAL KRISHNAN
A.V.VISHWANATHA SASTRI, C.K.DAFTARY, D.N.MUKHERJI, N.C.CHATTERJI, N.K.LAHIRI, NAUNIT LAL, R.GOPAL KRISHNAN
The power to administer an autonomous district under the Sixth Schedule includes the inherent authority to appoint and remove administrative personnel, regardless of whether specific legislation has been enacted. Interim suspension is valid, but withholding remuneration requires explicit statutory or contractual authorization.
Headnote:(A) Constitution of India - Sixth Schedule - Paragraphs 2(4), 3(1)(g), and 19 - Autonomous Districts (Constitution of District Councils) Rules, 1951 - Rules 28, 29, and 30 - Power of District Council to appoint and remove administrative personnel - Whether a specific law is required for the removal of a Chief - Administrative vs. Legislative functions - The power to administer an autonomous district includes the inherent power to appoint and remove personnel necessary for administration. The existence of a power to make laws on a subject, such as the appointment or suspension of Chiefs, does not preclude the exercise of administrative power in the absence of such law. (Paras 10-11)
(B) Service Law - Interim Suspension - Withholding of remuneration - The power to forbid a servant from working during an inquiry (interim suspension) is permissible; however, the withholding of remuneration during such period requires an express term in the contract of employment or a specific statutory provision. In the absence of such authority, the master may suspend the servant but must continue to pay wages. (Paras 13-14)
(C) Administrative Law - Delegation of Power - Executive Committee - Where rules authorize an Executive Committee to take immediate action in excepted matters during an emergency, such action is valid and not subject to judicial review regarding the existence of the emergency. (Para 12)
Facts of the case:
An individual appointed as a Chief by the Governor and subsequently confirmed by a District Council on specific terms was suspended by the Executive Committee of the Council. The High Court held that the appointment and removal of a Chief were not administrative functions and could only be exercised through legislation passed by the District Council with the assent of the Governor. The matter was appealed to the Supreme Court.
Findings of Court:
The District Council, being vested with the administration of the autonomous district, has the power to appoint and remove personnel to carry out that administration. The terms of appointment govern the relationship between the appointing authority and the appointee. The Executive Committee acted within its powers by invoking emergency provisions for suspension. However, since no statute or contract authorized the withholding of pay, the suspension is valid only if full remuneration is paid.
Issues: Whether the power to appoint and remove a Chief is exclusively a legislative function requiring a law under the Sixth Schedule, and whether the Executive Committee had the authority to suspend the appointee and withhold remuneration.
Ratio Decidendi: Paragraph 3(1)(g) of the Sixth Schedule is a legislative list and does not imply that administrative actions regarding personnel must be preceded by legislation. Paragraph 2(4) provides comprehensive administrative power, which inherently includes the power to appoint and remove personnel. The power to appoint carries with it the corollary power to remove. Regarding suspension, while an employer can forbid an employee from working during an inquiry, the right to withhold wages must be explicitly grounded in statute or contract.
Result: Appeal allowed.
Legal Category Hierarchy
- constitutional law
- administrative law
- labour and employment law
Table of Contents
2. Whether removal of a chief requires a referendum or specific legislation versus whether administrative power of appointment inherently includes the power of removal. (Para 1 , 2 )
3. Administration vested in District Councils includes inherent power to appoint and remove personnel; legislative power to make laws does not preclude exercise of administrative functions. (Para 6 , 7 , 8 , 9 , 10 , 11 )
4. Power of administration under the Sixth Schedule includes the inherent power to appoint and remove administrative personnel, independent of the power to legislate on the same subject. (Para 10 , 11 )
5. Appeal allowed — High Court order set aside — suspension held valid subject to payment of full remuneration in the absence of statutory authority to withhold it. (Para 14 , 16 )
6. Does the power to make laws on appointment or removal of chiefs under the Sixth Schedule preclude administrative action without such laws?
No. The power to make laws under Paragraph 3(1)(g) does not mean appointment or removal is a purely legislative act. The general power of administration vested in the District Council under Paragraph 2(4) includes the inherent power to appoint and remove administrative personnel. (Para 10 )
7. Does the power to appoint an administrative officer inherently include the power to remove them?
Yes. The court held that the power to appoint personnel for carrying out administration necessarily includes the power of removal as a corollary; otherwise, an authority could appoint but never remove a person once appointed. (Para 10 , 11 )
8. Can an Executive Committee of a District Council take action on excepted matters like important appointments?
Yes, if immediate action is necessary. Under Rule 30(a) of the relevant Rules, the Executive Committee may take action in an emergency regarding excepted matters, provided the case is laid before the District Council at its next session. (Para 12 )
9. Is an employer entitled to withhold remuneration during an interim suspension without a specific statute or contract term?
No. While a master may forbid a servant from working during an inquiry, remuneration cannot be withheld unless there is an express term in the contract or a provision in a statute or rules authorizing such withholding. (Para 13 , 14 )
Judgment
WANCHOO, J. (delivering the judgment on behalf of Sinha C.J.I., Kapur, Gajendragadkar JJ. and himself) : This appeal, on a certificate granted under Art. 132 (1) of the Constitution by the Assam High Court, raises questions regarding the interpretation of certain provisions of the Sixth Schedule of the Constitution. A writ petition was filed by U. Jormanik Siem (hereinafter called the respondent) in the Assam High Court against the Chief Executive Member of the District Council (hereinafter called the appellant), United Khas and Jaintia Hills District (hereinafter called the District). The case of the respondent was that he was Siem of Mylliem Siemship in the District and was elected as such by the Myntires and the people according to custom in 1951. After the constitution of the District Council for the District, in June 1952, the Siemship was brought under it and the respondent continued to discharge the administrative and judicial functions, for which he was remunerated by a share of the gross income of the Siemship. The Siem once appointed could not be removed from his office except through a referendum of the people according to custom until such custom was changed by legislation passed by the District Council with the concurrence of the Governor. No such legislation had however been passed till the writ petition was made on July 8, 1959. But on account of political differences between the respondent and the then Chief Executive Member an attempt was made after the General Elections of 1957 to harm the respondent. In consequence certain charges were levelled against the respondent and a Durbar was called by the appellant for July 6, 1959, and the respondent was asked to be resent at the Durbar to defend himself. It is not clear whether the Durbar was held or not but an order was issued on July 7, 1959, by the appellant in which it was said that the charges against the respondent had been forwarded to him and he had been given an opportunity to show cause on or before July 17, 1959, why he should not be removed from his office and that he had failed to appear before the appellant on July 7 as ordered. Therefore, the respondent was suspended from his office from July 8, 1959 and was required to make over charge to the acting Siem on the same day. The respondent however filed the writ petition on July 8, 1959 which was admitted the same day and notice was issued to the appellant to show cause why the writ should not be granted. The High Court also passed an order staying the operation of the order of the appellant dated July 7, 1959. The respondent contended that he could not be removed from his office or suspended by the Executive Committee of the District Council and that the order of the appellant suspending him was illegal and ultra vires being against custom and usage relating to that matter. Further the order of the appellant was without jurisdiction as it was passed without the approval of the District Council and there was no emergency justifying the order. The order was also mala fide and was due to political animosity between the respondent and the Executive Committee.
2. The petition was opposed on behalf of the appellant, and its main contention was that the Siem was nominated by an electoral college consisting of the representatives of several clans and that the people in general had nothing to do with it and that nomination of the Siem by the electoral college was subject to approval of the Government. In accordance with that custom, the respondent s nomination by the myntri-electors to the Siemship of Mylliem was approved by the Government and he was appointed to the office of Siem subject to confirmation by the District Council when that body came into existence. After the District Council was constituted in 1952, it approved the provisional appointment made by the Government and confirmed it on certain terms mentioned in the letter of April 9, 1953. Latter these terms were modified by the District Cou
