December Ir v. THE STATE OF PUNJAB & Anr.

Nor was there any substance in the contention that s. 3 of the Act was vitiatell by excessive delegation of power and the Act did not lay clown any policy. Section 4 of the Act read with s. 3(2) of the Act showed that there was no delegation of power to the Central Government under s. 3(1) of the Act in excess of what was justified by the special circumstances of the case. There was no basis for the contention that the Central Government ancl not the Punjab Government could institute the enquiry. lfole 5 of the Rules showed that the enquiry was to be iniliated in all cases by the Government under which the 100 794 SUPREME COURT REPORTS [1959] Supp. z958 Officer concerned served, although the punishment as required by Rule 4(1) might have to be ultimately imposed by D. s. Ga•ew•I Central Government. The ;;01, of Punjab .s. Anoth .. No. 426 of 1958. CIVIL APPELLATE JURISDICTION: Civil Appeal wamhoo J. Appeal by special leave from the judgment and order dated July 30, 1958, of the Pupjab High Court in Civil Writ Application No. 732 of J958. N. C. Chatterjee, I. M. Lal and B. P. Maheshwari, for the appellant. S. M. Sikri, Advocate-General for the State of Punjab, M ohinder Singh Pannum, Additional Advocate-General for the State of Punjab and D. Gupta, for respondent No. 1. B. Sen.and T. M. Sen, for the Intervener. 1958. December 11. The Judgment of the Court was delivered by WANCHOO, J.-This appeal by special leave raises the question of the constitutionality of the All-India Services Act, (LXI of 1951) (hereinafter called the Act). The appellant was appointed to the Indian Police Service on October 1, 1949, and posted to the State of Punjab. He held charge as Superintendent of Police in various districts but was reverted as Assistant Su,perintendent of Police in August 1957, and was eventually posted to Dharamsala in March 1958. In the same month he was informed that it was proposed to take action against him under r. 5 of the All-India Services (Discipline and Appeal) Rules, 1955, (herein after called the Rules), framed under s. 3 of the Act. He was thereafter placed under suspension under r. 7 of the Rules pending disciplinary proceedings against him, and Shri K. L. Bhudiraja I. A. S. was appointed enquiry officer the departmental enquiry against him. Notice was issued to him by the Enquiry Officer in July 1958. He thereupon immediately made an application under Art. 226 of the Constitution before the Punjab High Court challenging the .consti tutionality of the Act and the legality of the enquiry against him. The application was dismissed on July 30, 1958, and his application for a certificate to appeal to hold (I) S.C.R. SUPHEME COUH.'f REPORTS 795 to this Court was dismissed next day. Thereupon he came to this Court and was granted special leave. Shri Chn.ttcrjee appearing for the appellant has v. s. Garewal v. raised the following six points in support of the Pu~~~ ~a';;!,,. •• appeal:- (1) The amendment made by the President in wanchoo J. Art. 312 of the Constitution by virtue of his power under Art. 392 by the Constitution (Removal of 'Diffi culties) Order No. II of 26th January, 1950, was in excess of the power conferred on him under Art. 392 ; (2) It was not within the competence of the pro visional Parliament to enact the Act in 1951, as there was no compliance with the condition precedcint to such an Act being passed, under Art. 312; (3) The Rules when promulgated in 1955 were bad as they were repugnant to Art. 312 as the amend ment made by the President by the Constitution (Removal of Difficulties) Order No. II had ceased· to have force and Art. 312 stood in 1955 as origihally enacted in the Constitution ; (4) Art. 312 laid a mandate on ParliameQt to make a law regulating the recruitment and conditions of service of all-India services created under that Article and Parliament could not delegate this func tion to the Central Government, and, therefore, s. 3 of the Act was invalid; (5) In any event, the delegation made by s.' 3 of the Act was excessive and, therefore, section 3 should be struck down ; and (6) The Punjab Government has no authoritiy to institute these proceedings under the Rules. Re. 1, 2 & 3. These three points may conveniently be taken together. Article 392 provides that "the President may, for the purpose of removing any difficulties, particularly in relation to the transition from the pro visions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct 1that this Constitution shall, during such period as may be specified in the order, have effect subject to suchadap tations, whether by way of modification, addition or 796 SUPREME COURT REPORTS [1959] Supp. v. D. omission, as he may deem to be necessary or expe- '~58 5 c,..ewat dient; provided that no such order shall be made after the first Jlleeting of Parliament duly constituted under The. State of Chapter II of Part V ". The purpose of this provision p1111jab & Another is obvious from the verv words in which it was made. Further Art. 379 provided that " until both Houses of ll'ancl•oo f. Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Consti tuent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the lJowers and perform all the duties coi1ferred by the provisions of this Constitution on Parliament". As there was only one House during the transitional period, there were bound to be difficulties in the appli cation of the Constitution, which envisaged a bicame ral legislature. Consequently, the President passed the Constitution (Removal of Difficulties) Order No. II on January 26, 1950, by which among other adapta tions, he made an adaptation in Art. 312 also, to this effect:- " In clause (1), omit •if the Council of States has declared by resolution supported by not less than two thirds of the members present and votiug that it is necessary or expedient in the national interest so to do '." This order was to come into force at once and was to continue until both Houses of Parliament had been duly constituted and summoned to meet for the first session under the provisions of the Constitution. After removal of the omitted words, Art. 312 read as follows:- " (1} Notwithstanding anything in Part XI, Par liament may by law provide for the creation of one or more all-India services common to the Union and the States, and st1bject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. (2) The services known at the commencement of this Constitution as the Indian Administrative Service 8 195 D. s. Garewal v. T.h• State of (1) S.C.R. SUPREME COURT REPORTS 797 and the Indian Police Service shall be deemed· to be services created by Parliament under this article." It is urged that though. the President undou!btedly had power to make adaptations, he exceeded that power inasmuch as he omitted the words mentioned Pun1ab <!>- Anothe• above from Art. 312 altogether. It is· suggested that Wanchoo J. the adaptation would have been proper, if in A~t. 312, as it originally stood in the Constitution, thel words "Council of States" had been substituted by the word1;1 " provisional Parliament", so that instead of a resolution of the Council of States a resolution of the provisional Parliament would have been necessii.ry for the creation and regulation of recruitment and condi- tions of service of an all-India service common to the Union· and the States. Reliance in this connelJtion is placed on Sankari Prasad Singh Dea v. U~ion of India and State of Bihar (1 ), where dealing with an adaptation made in Art. 368, by the same order, this Court observed that "the adaptation leaves the re- quirement of a special majority untouched".. It is urged that if the President had made the adaptation in the way suggested by learned counsel that would have left the requirement of a resolution supported by requisite majority untouched and would hate been within the power of the President; but inasmuch as the entire portion was omitted the President had exceeded his power. It is enough to say that Sankari Prasad Singh's case (1) does not lay down that if the adapt11tion in Art. 368 had been made in some other manner it would have been invalid and unconstitu- tional. Reference to the fact that adaptation left the requirement of a special majority untouch~d was made obviously for the purpose of emphasising that there was no real ground of grievance and not for indicating that in the absence of the retention of that provision the adaptation would have been bad. Indeed, it was pointed out in that case that Art. 392 was widely expressed and an order could be made under that Article for the purpose of removing any difficul- ties. The nature of the adaptation to be mad' is also equally widely expressed and it may be by 1 way of (1) (1952] S.C.R. 89. 798 SUPREME COURT REPORTS [1959] Supp. v. z95B modification, addition or omission. In the case of Art. v. s. Garewal 368 the President thought it necessary or expedient that the adaptation should be by "modification. In the case The state of of Art. 312, however, he thought it necessary or expe Punjab & Anotherdient that the adaptation should be by way of omis sion of certain words from that Article. The power Wanchoo f. given to the President under Art. 392 was very wide and it cannot be said that he could make the adaptation in one way and not in another. It was left to him to consider whether the adaptation should be by way of modification, addition or omission ; and if he thought it necessary or expedient with respect to a particular Article that adaptation should be by way of omission it cannot be said that he had exceeded his power. We are, therefore, of opinion that the Act cannot be declared unconstitutional on the ground that the Pre sident had exceeded his power under Art. 392 and that if he had not done so a resolution of the provisional Parliament would have been necessary with the re quisite majority before any law could be undertaken to regulate the recruitment and the conditions of service of an all-India service. Once it is held that the adaptation made by the President in Art. 312 was within his power, there is very little left in the other two points raised by Mr. Clmtterjee. It is said that the provisional Parliament was not competent to pass the Act in 1951, because the condition precedent for passing such a had not been, as required by Art. 312, complied with. This means in other words that a resolution with the requisite majority had not been passed by the provi sional Parliament; but this condition .would not be there once those words were validly removed by the order of the President under Art. 392, and the provi sional Parliament would have power to pass the Act without any resolution being passed before the law was made. The further argument that the Rules were promul gated in 1!)55 when the words omitted by the Constitu tion (Removal of Difficulties) Order Xo. II had re appeared in Art. 312 and were, therefore, repugnant to Art. 312 inasmuch as there was no resolution of the (l} S.C.R. SUPREME COURT REPORTS I 799 z958 Council of States, as required by that Article, is, in our opinion, completely baseless. The reappe11-rance of these words in Art. 312 has nothing to do ·with the D. s. ~arewal vires of the Rules. The rules were framed under the The state of power given to the Central Government by the Act, Punjab & A"other and if the Act was valid when it was passeql, the Central Government would have power to frame rules Wanchoo J. under it, as it is a permanent measure. The Rules framed in 1955, therefore, cannot be challenged on the ground that the omitted words reappeared in Art. 312. The Rules derive their force from the Act and the form in which Art. 312 emerged, after the Constitu- tion (Removal of Difficulties} Order No. II cai:ne to an end in 1952, would not have any effect <1>n the Rules. There is no force, therefore, in any of these three points, and we reject them. Re. 4. It is contended that Art. 312 lays down a mandate on Parliament to make the law itself regulating the . recrui.tment and the conditions of service of all-India services, and therefore, it was not 1 open to Parliament to delegate any part of the · work relating to such regulation to the Central Govern ment by framing Rules for the purpose. Now, it is well settled that it is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purposes of the law made by it. It. was so held by the majority of Judges in Re The ). The Delhi Laws casf was Delhi Laws Act, 1912 (1 further examined in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna (2 ), and the delegation was held to go to the extent of authorising an exeeutive authority to modify the law made but not in any essential feature. It was also observ"'d that what constitutes essential feature cannot be enun ciated in general terms. It is, therefore, cleal,' that delegation of legislative functions can' be m~de to In this executive authorities within certain limits. case s. 3 of the Act lays down that the Central Govern ment may, after consultation with the Governments of the States conce:rned, make rules for the regulatJion of (1) [1951] S.C.R. 747. (2) [1955] 1 S.C.R. 290. 800 SUPREME COURT REPORTS [1959] Supp. r958 Wnnchoo .f. D. S. Grirewal v. recruitment and conditions of service of persons ap- pointed to an all-India service. It also Jays down that all rules made under this section shall be laid for The state of not less than fourteen days before Parliament as soon P1mjnb & Anothc. as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid. Mr. Chatterjee contends that no delegation whatsoever was possible nuder Art. 312 and that the Constitution rcq11ircd that Parliament should itself frame the entire law relating to the regulation of recruitment and the conditions of service of all-India services. We have, therefore, to see whether there is anything in the words of Art. 312 which takes away the usual power of delegation, which ordinarily resides in the legisla ture. Stress in this connection has been laid on the words "Parliament may by law provide" appearing in Art. 312. It is urged that these words should be read to mean that there is no scope for delegation in a law made under Art. 312. Our attention in this con nection was drawn to words used in Art. 245, which are "Parliament may make laws". It is said that the words used in Art. 312 are in a special form, which import that Parliament must provide by Jaw for regu l;ttion of recruitment and the conditions of service and cannot delegate any part of it to other authorities. Reference was also made to the words used in Art. 138 (1), (namely, Parliament may by law confer); Art. 138 (2), law provide); Art .. 139, (namely, Parliament may by law confer)°; and Art. 148 (3), (namely, as may be determined by Parliament by law). In contrast to these Articles, our attention was drawn to the words of Art. 173 (c), (namely, by or under any law made by Parliament), and Art. 293 (2), (namely, by or under any law made by Pa.rliament). It is urged that when the Constitu tion uses the words " may by law confer " or " may by law provide", no delegation whatsoever is.possible. We are of opinion that these words do not necessarily exclude delegation and it will have to be seen in each case how far the intention of the Constitution was that (namely, Parliament may by (1) S.C.R. SUPREME COURT REPORTS ' t,' 801 959 r Wanchoo ]. D. s. Garewal v. The state of the entire provision should be made b.Y law with ut re- course to any rules framed under the power of elega- tion. Let us, therefore, examine Art. 312 fr m this angle, and see if the intention of the Constitutivn was that regulation of recruitment and conditions of $ervice Punjab & Another to an all-India service should only be by law and there should be no delegation of any power to frame rules. Regulation of recruitment and conditions of service requires numerous and varied rules, which may have to be changed from time to time as the exigencies of public service require. This could not be unknown to the Constitution makers and it is not possible to hold that the intention of the Constitution was that these numerous and varied rules should be framed by Parliament itself and that any amendment of these rules which may be required to meet the difficulties of day-to-day administration should also be made by Parliament only with all the attending delay which passing of legislation entails. We are, therefore, of opinion that in the circumstances of Art. 312 it could not have been the intention of the Constitution that the numerous and varied provisions that have to be made in order to regulate the recruitment and the conditions of service of all-India services should all be enacted as statute law and nothing should be delegat- ed to the executive authorities. In the circum$tanccs we arc of opinion that the words used in Art. 312 in the context in which they .have been used do not ex- clude the delegation of power to frame rules fol!' regu- lation of recruitment and the conditions of service of all-India services. \Ve cannot read Art. 312 aslayiug down a mandate prohibiting Parliament from delegat- ing authority to the Central Government to fra~e rules for the recruitment and the conditions of ser'Vice of all-India services. We, therefore, reject this conten- tion. Re. 5. The argument in this connection is that even if dele gation is possible, there was excessive delegation in this case, and, therefore, the Act should be struck down. The Act is a short Act of four sections. The IOI 802 SUPREME COURT REPORTS [1959] Supp. r958 first section deals with the short title, the second sec- tion defines the expression "all-India Service", and D. s. ~~rewal the third section gives power to the Central Govern Thc state of ment to frame rules for regulation of recruitment and Punjab & Anothe. the conditions of service after consultation with the Governments of the States concerned, and lays down that all rules so framed shall be laid before Parliament and shall be subject to such modifications as Parlia ment may make. Section 4 which is important is in these terms- W"'"" 00 J. " All rules in force immediately before the com mencement of this Act and applicable to an all-I nrlia service shall continue to be in force and 1lhall be deem ed to be rules made under this Act." It is urged that this Act lays down no legislative policy or standard at all and everything is left to the Central Government. this connection reference was made to the following observations of Mukher jea, J. (as he was then), in Re The Delhi Laws Act, 1912 (1 ) at p. 982 :- In " The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that 'So long as a policy is laid down and a policy. standard estaolished by statute no constitutional dele gation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules witbin prescribed limits and the determination of facts to which the legislation is to apply'." It is said that in this case Parliament did not even exercise the essential legislative function inasmuch as it did not determine or choose the legislative policy and formally enact that policy into a binding rule of conduct. Apparently, if one looks at the Act, there seems to be some force in this contention. But a close reading of s. 4 of the Act and its scope, purpose and (1) [1951] S.C.R. 747· •t. I95B Wanchoo f. v. The State of (I) S.C.R. SUPREME COURT REPORTS 803 effect Will BhOW that this iB not a CaSe Where the Jegis- lature has failed to lay down the legislative policy and D. s. Garewal formally to enact that policy into a binding rule o{ con- duct. What does s. 4 in fact provide? Undoubtedly there were rules in force immediately before the com- Punjab & Another mencement of the Act which governed the two all- India services covered by it and the legislature adopt- ed those rules and said in s. 4 that they shall continue to be in force. Thus though s. 4 appears on the face of it as one short section of four lines, it is in effect a statutory provision adopting all the rules which were in force at the commencement of the Act, governing the recruitment and the conditions of service of the two all-India services. The section certainly lays down that the rules already in force shall be taken to be rules under the Act ; but that was necessary in order to enable the Central Government under s. 3 to add to, alter, vary and amend those rules. There is no doubt, however, that s. 4 did lay down that the existing rules will govern the two all-India services in the matter of regulation of recruitment and condi- tions of service, and in so far as it did so it c&ter- mined the legislative policy and, set up a standard for the Central Government to follow and formally e111act- eu it into a binding rule of conduct. Further, by s. 3 the Central Government was given the power to f:tame rules in future which may have the effect of adding to, altering, varying or amending the rules accepted under s. 4 as binding. Seeing that the rules would govern the all-India services common to the Central Government and the State Government provision was made by s. 3 that rules should be framed only after consulting the State Governments. At the same time Parliament took care to see that these rules were laid on the table of Parliament for fourteen days before they were to come into force and they were subject to modification, whether by way of repeal or amendment on a motion made by Parliament during the session in which they are so laid. This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and coptrol over its delegate. Therefore, reading s. 4 along ;with I I I 804 SUPREME COURT HEPORTS [1959] Supp. - s. 3(2) of the Act it cannot be said in the special cir cumstances of this case that there was excessive dele gation to the Central Government bys. 3(1). We are, therefore, of opinion that the Act cannot be struck D. S Garowal v. The state of Punjab & Anoth" down on the ground of excessive delegation. Wanchoo ]. Re. 6. The last contention is that the Punjab Government has no authority 1 to institute these proceedings under the Rules. It would be necessary in this connection to refer to the Rules. Rule 3 provides for penalties, which are seven in number. Rule 4 provides for the authorities, who can impose the penalties, and three of the penalties, namely, dismissal; removal or com pulsory retirement, can only be imposed by the Central Government, while the other four penalties can be imposed by the State Government. Rule 5 provides the procedure for imposing penalties. The argument is that as in this case the charge against the appellant is serious, he is likely to be dismiRsed or removed or compulsorily retired, and therefore, the Central Govern ment should have instituted enquiry in this case. We are of opinion that there is no force in this contention. In the first place, it cannot be postulated at the very outset of the enquiry whether there would be any punishment at all, and even if there is going to be punishment, what particular punishment out of the seven mentioned in r. 3 would be imposed. Therefore, even on the assumption that the Government which has to impose the punishment must also institute the enquiry, it cannot be said at this stage that the Punjab Government which can impose at least four out of seven penalties is not the proper Government to In the second place, a perusal institute the enquiry. of r. 5 shows that the intention is that the enquiry would be instituted by the Government under which the officer is serving even in cases where the penalty is to be imposed by the Central Government. Rule 4(2) shows that so far as the four penalties which could be imposed by the State Government are concerned, the institution of the enquiry is by the Government under whom such officer was serving at the time of commis sion of such a.ct or omission which renders him liable (1) S.C.R. SUPREME COURT REPORTS I 1 805 r95B Wanchoo f. v. The State of to punishment. Rule 2(b) defines " Government", and the third clause thereof lays down that in the caise of D. s. Garcwal a member of service serving in connect.ion· with the affairs of a State, the Government would be the Government of that State. The appellant was se~ving Pirnjab & Another in connection with the affairs of the State of Pml1jab, and in his case therefore the Government for the pur- pose of r. 5 which provides procedure for imposing penalties would be the Punjab Government. It i$ the Punjab Government, therefore, which could tak¢ the steps provided in r. 5. Rules 5(1) to 5(8) provide the procedure for such enquiries and the word "govern- ment" used in these sub-rules means in the present pase, the Punjab Government, for the appellant was ser~ing in connection "with the affairs of the State of Punjab. Rule 5(9) provides for what is to happen after the enquiry is over, and it lays down that after the enquiry has been completed and after the punishing authority has arrived at a provisional conclusion in regard to tile penalty to be imposed, if the pe11alty pro posed is dismissal, removal, compulsory retire1~en t or reduction in rank, the member of the service charg- ed shall be supplied with a copy of the repol't of enquiry and be given a further opportunity to show cause why the proposed penalty should not be imposed on him. The very fact that in this rule the Word 'Government' is not used and instead the words 'punishing authority' are used shows that the ques- tion of punishment arises after the enquiry is overland the relevant Govemment would then consider that question; and if punishment is to be one of the three provided in r. 4(1) the report of the enquiry officer would have to be forwarded to the Cental Government so that it may determine the provisional punishment and communicate it to the officer concerned along with the report of the enquiry officer to comply with. the provisions of Art. 311(2). So far as the institutiqn of the enquiry is concerned, r. 5 contemplates that it will be instituted by the Government of the State in con- nection with the affairs of which the officer is serving. In this ca, se the appellant was serving in connec~ion with the affairs of the State of Punjab, and, therefore, 806 SUPREME COURT REPORTS [1959] Supp. •958 D. s. Ga.ew•I v. Th• S•••• of the Punjab Government would have authority to institute the enquiry against him. The Central Government would only come into the picture after the enquiry is concluded and if it is decided to impose Punj•b c;. Another one of the three punishments mentioned in r. 4(1). r Wanchoo J. This contention must also be rejected. We, therefore, dismiss the ·appeal with costs to the State of Punjab. Appeal dismissed.. PANDIT M. S. M. SHARMA v. SHRI SRI KRISHNA SINHA AND. OTHERS (S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA, K. SUBBA RAO and K. N. W ANOHOO, JJ.) State Legislature, Privilege of-Pawer to prohibit publication of proceedings including portions -expunged by the SPeaker-Publi· cation, if a breach of privilege-If can prevail over tM fundamental right to freedom of speech and expression-Freedom of the Press Scope and extent-Constitution of India, Arts. z94(3), z9(z)(a). The petitioner, the. Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech. deliver ed in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker. It was contended on behalf of the Petitioner that the said notice and the proposed action by the Committee were in violation of his fundamental right to freedom of speech and expression under Art. l9(1)(a) and of the protection of his personal liberty under Art. 21 of the Constitution, and that, as an editor of a newspaper, he was en titled to all the benefits of the freedom of the Press. The respondents relied on Art. 194(3) of the Constitution llnd claim ed that the proceedings in the House as those in the British House of Commons were not usually meant to be published, and in no circumstances was it permissible to publish the parts of a