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Civil Appeal No. 908 of 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab and Haryana High Court in Civil Writ No. 2586/71 and CIVIL APPEAL No. 1041 oF 1975.
Appeal from the Judgment and Order dated 13 3 75 of the Punjab & Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S.K. Gambir, for the Appellant in C.A. No. 908/75.
Anand Sarup and H.S. Marwah, for Respondent No. 1 in C.A. 908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M.N. Shroff and R.N. Sachthey, for Respond ent No. 3 in C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by GOSWAMI, J.
These two appeals are by certificate from the judgment of the Full Bench of the High Court of Punjab and Haryana.
Both the appeals question the decision of the High Court one by the Judicial Officer and the other by the State Government.
The appellant in Civil Appeal No. 908 of 1975 (hereinaf ter to be referred to as the officer) was originally a member of the Punjab Civil Service (Judicial Branch).
He was appointed as a Subordinate Judge, IV Class, on February 27, 1956.
Thereafter he was promoted as a SubJudge, First Class, and was duly confirmed.
While, as a Subordinate Judge cum Magistrate First Class in Amloh, District Patiala, the Bar Association of Amloh on May 11, 1965, sent a resolu tion to the High Court levelling certain charges against the officer affecting his integrity and impartiality.
The High Court ascertained the facts through a preliminary enquiry held by the District Judge, apparently, ex parte, at this stage.
Thereafter, on the report of the District Judge a regular departmental enquiry was instituted.
The officer was suspended by the Government on June 6, 1966, at the instance of the High Court.
The District Judge, Sangrur, was appointed as the Enquiry Officer on July 21, 1966.
He enquired into the charges levelled against the officer.
The Enquiry Officer submitted his report and found him guilty of all the charges except one.
The High Court agreed with the Enquiry Officer and came to a tentative conclu sive that the officer should be removed from service.
Meanwhile, the services of the officer were allocated to the State of Haryana with effect from November 1, 1966.
428 The High Court recommended to the State Government of Haryana to serve a notice under Article 311(2) of the Con stitution asking the officer to show cause why the penalty of removal from service should not be imposed on him.
This was done by the State Government on March 13, 1967.
The officer submitted his explanation through the High Court on April 20, 1967.
The High Court found the explanation to be unsatisfactory and recommended to the Government that the officer should be removed from service.
The State Government, although on its own showing, "was inclined to agree with the views of the High Court and with the recommendation made by it", however, referred the case to the Haryana Public Service Commission for advice purporting to act under Article 320(3)(c) of the Consti tution.
The Commission advised that no case had been made out against the officer and that he should be exonerated.
The Governor accepted the advice of the Commission and passed the order on August 24, 1968, reinstating the officer in service with immediate effect.
The High Court was re quested by the Government to post the officer on his rein statement.
The High Court did not issue any posting order to the officer as it was of the opinion that the order of the Government was illegal for the vice of consultation with the Public Service Commission and for accepting its advice disregarding the recommendation of the High Court.
The High Court requested the Government to review its order but the Government did not take any action on that suggestion.
Since the High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court of Punjab and Haryana a petition under Arti cle 226 of the Constitution on July 12, 1971, praying for a writ of mandamus directing the High Court to issue an appro priate order of posting and also for a mandamus directing the Government to disburse full salary to the officer including the salary for the period under suspension and other consequential reliefs.
While the writ petition was pending before the Full Bench, the Governor, accepting the recommendation of the High Court, passed an order on December 16, 1974, issuing three months ' notice of compulsory retirement to the officer and the officer thus retired on March 18, 1975, after at taining the age of 55 under the service Rules.
The officer challenged the notice of retirement by way of a writ petition in the High Court on March 10, 1975.
The same was, however, withdrawn by the officer on March 13, 1975, on which date judgment of the Full Bench was delivered in the other writ application out of which the present appeals have arisen.
The officer, however, later on filed a writ petition No. 747 of 1975 in this Court against the order of compulsory retirement and he was allowed by us to withdraw the same on July 30, 1976.
The ' retirement of the officer is, 'there fore, not in dispute.
429 The High Court by a majority of four learned Judges held as follows : (1)"Since the impugned order, exonerating the petitioner from all charges and reinstating him, was not passed in accordance with the mandatory provision of the Constitution embodied in Article 235 of the Constitution, order is void and non est being ultra vires Article 235 of the Constitution and the High Court was right in not giving effect to it".
They also observed that any recommendation made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor.
(2) "Since the Public Service Commission was an extraneous body and could not be consulted and was able to influence the decision of the punishing authority, the order suffers from a grave constitu tional infirmity and is, therefore, liable to be declared ultra vires Article 235 of the Constitu tion and hence void and non est on this ground too.
The High Court was, therefore, right in disregarding that order and not implementing it by giving the posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not agree with the majority with regard to the conclusion on the aforemen tioned first point.
He, however, agreed with the majority with regard to the second point and also agreed with the final decision.
The High Court dismissed the officer 's writ application under Article 226 and held that he could not claim any relief on the basis of the order of reinstatement of the Governor of August 24, 1968.
The High Court further held that the dismissal of the petition would "not bar the State Government from passing an order against the petition er in accordance with the recommendation of the High Court completely ignoring and keeping out of consideration the advice tendered by the Public Service Commission".
Firstly, the appellants contend that the Governor being the appointing authority is not bound to accept the recom mendation of the High Court and the order of reinstatement is well within his powers under Article 311 read with the Rules for Appointment of Subordinate Judges in Haryana and the Punjab Civil Service (Punishment and Appeal) Rules, 1952, and is perfectly valid.
Secondly, they contend that the Governor is entitled under Article 320(3)(c) of the Constitution to consult the Public Service Commission with regard to the matter in question arising out of a disci plinary proceeding.
Thirdly, it is contended on behalf of the officer that in view of the fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with the order of rein statement it is no longer possible for the Governor to pass the order of removal of a person who has already retired from service.
it is submitted that m that view of the matter the writ application had become infructuous.
and even the High Court 430 need not have decided the writ application.
It is, there fore, submitted on behalf of the officer that since on his reinstatement the order of suspension lapsed and he had retired, he would be entitled to his full salary during the entire period of suspension upto the date of his retirement.
On behalf of the High Court it is submitted that under Article 235 of the Constitution the sole and exclusive disciplinary control over the subordinate judiciary being vested in the High Court the High Court 's recommendation is binding on the Governor and the Governor ought to have accepted the recommendation and passed an order of removal of the officer.
It is further submitted that the order of reinstatement passed by the Governor after consulting the Public Service Commission is absolutely void and ultra vires.
The controversies, such as we have to deal with, have raised their unpicturesque heads from time to time.
We are, therefore, not required to write on a clean slate on this subject.
Even so, one aspect of the matter, viz., that relating to the consultation with the Public Service Commis sion by the Governor with regard to judicial officers ' misconduct assumes a great importance in this case in a manner that has not arisen earlier before this Court.
The controversy in these appeals is rather disquieting.
In view of several decisions of this Court wherein different facets of like problems were noticed and resolved one would have thought that a healthy convention has grown and taken firm roots by now in fulfilment of one of the cherished Directive Principles of the Constitution in Article 5 which is based on the bed rock of the principle of independence of the judiciary.
Here, the High Court, after a full enquiry, which has not been questioned at any stage, came to the conclusion that the charges of misconduct of a judicial officer were established and that the officer was of dubious integrity.
Who else but the High Court, in such a situation, is better posted to determine the issue and advise the Governor ? Yet, the stark reality is that the High Court 's recommendation was given a go by and the Commission 's contrary advice was preferred by the Governor.
Time and again this Court has been observing hopefully that it will be in the best interest of a high and healthy tradition for the Governor to ordinarily accept the recommendation of the High Court in a disciplinary matter concerning judicial officers ! We are concerned in these appeals with regard to a disciplinary proceeding in respect of a Subordinate Judge and hence falling within the purview of Article 235 of the Constitution.
That Article reads as follows : article 235.
"The control over district courts and courts subordinate thereto including the posting and promotion d, and the grant of leave W, persons belonging to the judicial service of a State and holding any post inferior to the post 431 of district Judge shall be vested in the High Court, but nothing in this article shall be con strued as talking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him other, vise than in accordance with the conditions of his service prescribed under such law".
In The State of West Bengal vs Nripendra Nath Bachi(1) this Court in an elaborate judgment went into the history of Articles 233 to 237 of the Constitution.
This Court held: "The word 'control ' as we have seen, was used for the first time in the Constitution and it is accom panied by the word 'vest ' which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge".
Dealing with the argument based on Article 311 this Court further observed in the above case as follows : "There is, therefore, nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power m it.
In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismiss al or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by el.
(2) of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could have held the enquiry in this case.
To hold other wise will be to reverse the policy which has moved determinedly in this direction".
Article 235 makes reference to the conditions of service which are prescribed under Article 309 of the Constitution.
The Punjab Civil Services (Punishment and Appeal) Rules, 1952 (hereinafter to he referred to as the Punishment Rules), were made by the Governor of Punjab in exercise of the powers conferred under Article 309 of the Constitution.
The judicial officers also hold posts in connect;on with the affairs of the State and the rules made under Article 309 so far as applicable, would govern their conditions of service.
There are also the Rules relating to the Appointment of Subordinate Judges in (1) ; 432 Haryana (hereinafter to be referred to as the Appointment Rules) which were promulgated by the Governor in exercise of the powers conferred by Article 234 read wire proviso to Article 309 of the Constitution.
These Rules were made by the Governor after consultation with the State Public Serv ice Commission and with the High Court.
Under rule 14, Part F of the Appointment Rules relating to Discipline, Penalties and Appeals, it is provided as follows : "In matters relating to discipline, penalties and appeal including orders specified in Appendix B, members of the Service shall be governed by 'The Punjab Civil Services (Punishment and Appeal) Rules, 1952 ' as amended from time to time.
Provided that the nature of penalties which may be inflicted, the authority empowered to impose such penalties or pass such orders and the appel late authority shall be as specified in Appendices 'A ' and 'B ' below : " In Appendix 'A ' it is provided in item (f) that the punish ing authority in case of removal from the service which does not disqualify from future employment is the "Government" and there is no appeal therefrom.
In item (g) of Appendix 'A ' dismissal is also provided for in similar terms.
In Appendix 'B ' the authority competent to pass an order of termination of the service of a Subordinate Judge is the "Government" and there is no appeal against such an order.
It will be seen that under rule 14 of the Appointment Rules of the Subordinate Judges, the Punishment Rules are being made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read with Appendix 'A ' of Part (F) of the Appointment Rules.
the competent authority to remove a Subordinate Judge from service is the ,Government".
It was, therefore, appropriate that the High Court, after close, of the departmental en quiry, when it was satisfied that the officer was guilty of misconduct deserving removal from service, recommended to the Governor for his removal.
Upto this stage there was no difficulty.
Trouble arose when the Government, although on its own showing, was inclined to agree with the High Court thought it proper to obtain the advice of the Public Service Commission as is usually done in the case of other civil servants.
As stated earlier, the Commission tendered its advice contrary to the recommendation of the High Court and held the opinion that the officer should be exonerated from the charges.
The Government accepted the advice of the Commission and reinstated the officer which resulted in refusal to accept the recommendation of the High Court.
In the above premises the questions that are raised .are (1) Whether the Governor is bound under the Constitution to accept the recommendation of the High Court and to pass an order of removal of the judicial officer.
433 (2) Whether consultation with the Public Service Commission in a matter of a disciplinary proceeding relating to the judicial officer under the control of the High Court is unconstitutional.
Is the order of reinstatement passed by the Government constitutionally valid ? (3) If not, what will be the position of the officer on the date of the officer 's compulsory retirement ? Is an order of removal possible after that date ? There is no dispute that the appointing authority of a Subordinate Judge under Article 235 as well as under the Appointment Rules is the Governor.
Under Article 235 itself the Subordinate Judge will be governed by the Appointment Rules made under Article 234 read with Article 309.
The Appointment Rules by reference, bring in the Punishment Rules whereby the punishing authority for removal is the "Government" mentioned in the former Rules.
With regard to the first question the appellants submit that the Governor being the appointing authority both under Article 235 and the Appointment Rules read with the Punish ment Rules, is the final authority to pass the order of removal of the officer and is not under any constitutional obligation to be bound by the recommendation of the High Court.
They rely upon Article 311 of the Constitution read with the aforementioned service Rules and submit that the control of the High Court under Article 235 does not impinge upon the power of the Governor to refuse to accept the recommendation of the High Court and to pass an appropriate order.
The learned counsel for the High Court, on the other hand, submits that Article 235 of the Constitution leaves no option to the Governor to refuse to accept its recommenda tion in a disciplinary matter in respect of a judicial officer.
He draws our attention to a very recent decision of this Court in State of Haryana vs Inder Prakash Artand H.C.S. and Others(1) to support his submission.
He particu larly relies upon paragraph 18 of that decision which reads: "The control vested in the High Court is that if the High Court is of opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment.
In such cases it is the contemplation in the Constitution that the Governor as the Head of the State will act in harmony with the recommen dation of the High Court.
If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the recommendation of the High Court.
The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its (1) [1976] supp.
S.C.R. 603.
434 jurisdiction will bind the State. 'The Governor will act on the recommendation of the High Court.
That is the broad basis of Article 235.
(See Shamsher Singh & Anr.
vs State of Punjab at page 841)".(1) It is pointed out by the appellants that in Inder Pra kash Anand 's case (supra) the question was whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under the Punjab Civil Services Rules against the recommendation of the High Court and that it was not a case relating to dismissal or removal on the disciplinary side.
Though the question involved in I.P. Anand 's case related to a different matter the above quoted observations of this Court, useful for all occasions, have, hopefully, a wider cast and their significance can be overlooked only at some peril of the desideratum nurtured in the Constitution.
The High Court, in making its recommendation to the Governor for passing the order of removal, has rightly conceded the authority of the Governor to pass the same.
The question is: Is the recommendation of the High Court binding on the Governor ? Since the Governor is the ultimate authority to pass the order of removal it will not be cor rect always to insist that he has no authority even under certain extraordinary circumstances to decline to accept forthwith, the particular recommendation.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should be always accepted by the Governor.
That is ordinarily so and should be in practice the rule as a matter of healthy convention.
Articles 233 to 237 relating to the subordinate judici ary are specially carved out and placed in the safe niche of a separate chapter, Chapter VI in Part VI of the Constitu tion under sub title 'Subordinate Courts '.
This by itself is significant.
It is a major breakthrough in the Constitu tion from the position under the Government of India Act 1935 so far as the subordinate judiciary is concerned and clearly unfolds the keen awareness of the rounding fathers in what has been a passionate and raging topic with regard to independence of the judiciary all through, over the years.
For the first time, in the country 's history, appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
The quality of exclusive control of the High Court does not appear to be whittled by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore, the High Court exercising disciplinary control over the subordinate judiciary finds.
after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice (1) ; 435 of the council of ministers or, as is usually the case, of one of the ministers.
It is in this context that this Court has more than once observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor.
This is the inner significance of the constitutional provisions relating to the subordinate judiciary.
Whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court.
That will be contrary to the contempla tion in the Constitution and should not take place.
It is not necessary to pursue the matter in further depth as sought to be canvassed by the parties taking ex treme stances in the view taken by us on the second ques tion.
With regard to the second submission we are clearly of opinion that consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer is not warranted by the provisions of Article 235.
It is true that under Article 235 as well as under the Appointment and Punishment Rules the Governor is the ap pointing and punishing authority.
But under Article 235 the High Court is the sole custodian over the discipline of the judicial officers.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
It is submitted on behalf of the appellants that Article 320(3)(c) provides that the Public Service Commission shall be consulted on all disci plinary matters affecting a person serving under the Govern ment of a State in a civil capacity.
Judicial Officers although holding posts in civil capacity are not serving under the Government of a State.
They hold posts in connec tion with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of con trol and discipline.
There is, therefore, no constitution al justification or sanction for the Governor, even if he wishes, to consult the Public Service Commission under Article 320 (3) (c) in respect of judicial officers.
Con sultation with the Public Service Commission in this case and preference accorded to its advice ignoring the recommen dation of the High Court have introduced a serious consti tutional infirmity in the final order of reinstatement passed by the Governor.
The appellants drew our attention to a decision of this Court in Pradvat Kumar Bose vs The Hon 'ble The Chief Justice of Calcutta High Court(1) where this Court had to deal with one of the arguments founded on Article 320(3)(c) of the Constitution.
In the above decision Pradyat Kumar Bose, who was Registrar and Accountant General of the High Court on its original side and who was the (1) [1955]2 S.C.R. 1331.
436 appointee of the Chief Justice, was dismissed by the Chief Justice after a full and thorough enquiry held by one of the Judges of the High Court whose findings were accepted by the Chief Justice.
Inter alia, it was contended before this Court that the order of dismissal by the Chief Justice was vitiated as the Chief Justice did not consult the State Public Service Commission prior to dismissal of the Regis trar as provided for under Article 320(3)(c).
This Court repelled the contention holding that Article 320(3)(c) was contrary to the implications of Article 229 and the language thereof was also not applicable to the High Court staff since the members of the High Court staff did not serve under the Government of the Union or of the State.
It is submitted by the appellants that this court held that Article 320(3) (e) was not applicable since the Chief Justice was the sole appointing and punishing authority so far as the High Court staff was concerned under Article 229 of the Constitution.
On a parity of reasoning it is con tended by the appellants that since the Governor is the sole appointing and punishing authority under the Appointment and Punishment Rules, Article 320(3)(c) is, therefore, clearly attracted, since, according to them, if Article 229 were not there the matter would have been considered by this Court in a different light.
We are unable to accept this submission since, as we have pointed out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the State Government.
The appellants also relied upon a decision 01 this Court in The High Court, Calcutta vs Amal Kumar Roy(1).
In this case also a submission was made in this Court that the High Court should have consulted the State Public Service Commission in superseding seniority of a Munsif as a result of his exclusion from consideration for promotion in a particular year which resulted in his loss of eight places in the cadre of Subordinate Judges at the time he was actu ally appointed to act as an Additional Subordinate Judge.
The particular officer 's case in substance was that this exclusion by the High Court amounted in law to the penalty of "withholding of promotion".
It was contended that the High Court should have consulted the State Public Service Commission since article 320(3)(c) contemplated disciplinary matters.
This Court disposed of this submission by holding that losing places in a rank was not 'reduction in rank ' and that no disciplinary proceedings had been started against the particular officer and hence there could be no occasion for the State Public Service Commission being consulted.
It is submitted by the appellants that this Court did not reject the submission based on Article 320(3)(c), out of hand, holding that the Article was not applicable.
It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision.
That however, does not mean that this Court categorically held Article 320(3)(c) was attracted in the case of judicial officers.
The question did not arise in that form.
(1) [1963] 1 S.C.R.437.
437 The matter should not be considered from the angle of supremacy of one organ over the other.
That will be an entirely erroneous approach.
The Constitution reposes certain power in the Governor even under Article 235.
He is the authority to pass the order of removal, albeit, on the recommendation of the High Court.
That is the constitution al scheme.
The Governor, however, cannot pass any order, as has been done in this case, without reference to the High Court and except on its recommendation.
Solution must be found in harmony and not in cold war between the two organs.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice Should be no other authority than the High Court in the matter of judicial officers.
This is the plain implication of Article 235.
Article 320 (3) (c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
To give any other interpretation to Article 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intend ed for protection of the judicial officers and necessarily the independence of the subordinate judiciary.
It is abso lutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it.
There is no room for any outside body between the Governor and the High Court.
The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same.
The order of the Governor is, therefore, constitutionally invalid and is liable to be quashed and we order accordingly.
That brings us to the third submission of the appellants.
At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired.
We, however, find that even in the writ application there was a prayer for a mandamus to the Govern ment to disburse the officer 's full salary during the entire period of suspension upto the date of his retirement.
The learned counsel for the officer has also argued the matter fully before us.
We would, therefore, deal with the same.
Since the order of reinstatement of August 24, 1968, is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order.
It is undisputed that he had been under suspension during that period.
It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension.
It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement.
438 We are, however, unable to accept this submission.
The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely dif ferent.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in service.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
Nothing re mains to be done about his suspension.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes back to serv ice.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treat ed.
That will be, therefore, a distinct and separate pro ceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed.
If, therefore, the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension.
There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer, in absence of any order in that behalf from the court, will be what he was earlier, viz., that of a suspended officer.
In this view of the matter, since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal, on the recommendation of the High Court, he would have the status of a suspended officer on the date of his compulsory retirement.
The officer in this case was, there fore, compulsorily retired while he was under suspension from service.
It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter.
It should, however, be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the pur pose of removal of the officer.
We, however, do not fail to see that the Government, on its own.
was inclined to accept the recommendation of the High Court at the initial stage.
In the result the appeals are dismissed and the order of reinstatement of the officer passed by the Governor stands quashed for the reasons given in this judgment.
There will be no order as to costs.

Output:
The appellant was a member of the Subordinate Judicial Service of the State.
On receipt of certain allegations the High Court made a preliminary enquiry and the State Govern ment suspended him from service.
After the final enquiry the High Court recommended to the State Government to remove him from service.
The State Public Service Commission, on reference by the Government, stated that he should be exon erated.
On the basis of this recommendation, the Governor ordered the appellant 's reinstatement; but the High Court did not give him a posting on the view that the order of the Governor was illegal because of consultation with the Serv ice Commission and in accepting its advice, disregarding the High Court 's own recommendation.
The High Court, therefore, suggested to the Government to review its order of rein statement, but the Government did not take any action.
The appellant then filed a writ petition in the High Court challenging its refusal to give him a posting.
In the mean time the Governor compulsorily retired the appellant from service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that the Governor 's order ;reinstating the appellant was void and non est because: (i) it was not passed in accordance with the provisions of article 235 of the Constitution and (ii) the Government could not have consulted the Public Service Commission which was an extraneous body.
In appeal to this Court it was contended for the appellant that (i) the Governor was not bound by the recom mendation of the High Court; (ii) the Governor was entitled under article 320(3)(c) to consult the Public Service Commis sion on the question arising out of a disciplinary proceed ing; and (iii) since the appellant was later compulsorily retired, the order of suspension merged with the order of reinstatement, and since no other order of suspension was passed thereafter, he was entitled to full salary upto the date of his compulsory retirement.
Dismissing the appeal, HELD: (1)(a) Articles 233 to 237 relating to the subor dinate judiciary are specially carved out and placed in the safe niche of a separate chapter.
For the first time in the country 's history appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts.
But the appointing authority of a Subordinate Judge under article 235 as well as under the Appointment Rules, is the Governor.
The High Court, in making its recommenda tion to the Governor for passing the order of removal, had rightly conceded the authority of the Governor.
Ordinarily and as a matter of graceful routine, recommendations of the High Court are and should always be accepted by the Gover nor.
This is ordinarily so and should be in practice the rule as a matter of healthy convention.
But it will not be correct always to insist that the Governor has no authority even under extraordinary circumstances to send the matter for reconsideration.
(b) The quality of exclusive control of the High Court is not whittled down by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration.
When, therefore.
the High Court, exercising disciplinary control, over the subordinate judiciary found, after a proper enquiry, that a certain officer was guilty of gross misconduct and was unworthy to be retained in judicial service and, therefore, recommended to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommenda tion could be rejected by the Governor acting with the aid and advice of ministers or, of one of them.
[434 G H] The State of West Bengal vs Nripendra Nath Bagchi ; ; and State of Haryana vs Inder Prakash Anand H.C.S., and others [1976] Supp.
S.C.R. 603.
referred to.
(c) Whenever in an extraordinary ease, the Governor feels, for certain reasons, that he is unable to accept the High Court 's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer.
The Governor could not have passed any order on the advice of the Public Service Commission in this case.
The advice should be of no other authority than the High Court in the matter of judicial officers.
This is the plain impli cation of Article 235.
There is no room for any outside body between the Governor and the High Court.
In relying upon the advice of the Commission the Governor took alien considerations into account and acted erroneously in passing the order of reinstatement.
[435 B, E F] Consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer was not warranted by the provisions of article 235.
Under the Constitution the High Court is the sole custodian over the discipline of judicial officers.
[435 D] (2) (a) Just as the High Court staff are not serving under the Government of the State, the judicial officers are also not under the State Government.
They hold posts in connection with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of control and discipline.
article 320(3)(c) is entirely out of place so far as the High Court is concerned dealing with judicial officers.
D] Pradvat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; and The High Court, Calcutta vs Amal Kumar Roy [1963]1 SCR 437 distinguished and held inapplicable.
(b) The Governor cannot pass any order without reference to the High Court and except on its recommendation.
The matter should not be considered from the angle of supremacy between one organ over the other.
Solution must be found in harmony and not in cold war between the two organs.
[437 A B] (3) The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different.
Suspension is a step to dismissal and may culminate in dismissal.
When an officer is suspended no work is taken from him but he does not cease to be in serv ice.
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal.
When, however, a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect.
The suspended officer, on rein statement, goes back to service.
A further order may have to be passed by the authority as to in what manner the period of suspension will be treated.
That will be there fore a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of rein statement was passed.
If the order of reinstatement is set aside the officer is bound to revert to his immediate ante rior status of suspension in the absence of any order in that behalf from the Court.
[438 A C] In the instant case since the order of reinstatement stood quashed, the appellant would have the status of a suspended officer on the date of his compulsory retirement.
It is not for this Court to say whether he would be entitled to his 427 full salary while on suspension.
Since the officer had already retired, it is not necessary for the Governor to consider the recommendation of the High Court for the pur pose of his removal.
[438 E F]


Input:
ivil Appeal No. 687 of 1987.
716 From the Judgment and Order dated 8.9.1986 of the Alla habad High Court in C.W.P. No. 501 of 1986.
Yogeshwar Prasad, Vishal Jeet, S.R. Srivastava and Ms. Rachna Gupta for the Appellant.
section Markandeya for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant is a person providing transport service in the District of Mathura.
He questioned the validity of the Order dated May 22, 1986 passed by the District Magistrate, Mathura declaring Plot Nos. 701 and 702 in the Town Area, Baldev (Mathura) as a bus stand/halting place of Baldev, where the stage carriages were directed to stand for the purpose of allowing the passengers of Baldev to get into and to get down from the stage carriages in a writ petition, Civil Miscellaneous Writ Petition No. 501 of 1986 filed before the High Court of Allahabad under Article 226 of the Constitution of India.
That petition was dis missed by the High Court on September 8, 1986.
This appeal by special leave is filed against the said decision of the High Court.
The case of the appellant was that the District Magis trate had no power to appoint any area as a bus stand under section 76 of the (hereinafter referred to as 'the Act ') under which he purported to pass the impugned order.
According to the appellant the power to fix any area as a bus stand was vested in the Regional Transport Authority having jurisdiction over the area and not in the District Magistrate.
The High Court was of the opinion that section 76 of the Act conferred wide powers on the District Magistrate 'to fix the places for the bus stand/halting place '.
It was further of the view that the place where the appellant and other bus operators were asked to stop their buses was only a halting place and hence the order made under section 76 of the Act was unassailable.
It further observed that since the impugned order did not specifically state that the bus operators could allow the passengers to get down and pick up the passengers, it could not be construed as an order fixing the area as a bus stand.
It should be stated at this stage that after the impugned order was passed the Town Area Committee gave a contract to a private contractor to collect that fees payable by the bus operators for making use of the area in question which was within its jurisdiction for stopping their buses in accord ance with the order passed by the 717 District Magistrate.
After the Writ Petition was filed in the High Court.
the appellant had obtained an order of stay preventing the Town Area Committee from collecting the fees.
Immediately after the Writ Petition was dismissed, the Executive Officer of the Town Area Committee, Baldev (Mathu ra) wrote a letter on 10.10.1986 to the President of the Mathura Sadabad Manikpur Eta Motor Operators Union, Mathura requiring all the bus operators to stop their buses at the bus stand fixed by the District Magistrate.
The letter reads thus: "President Mathura Sadabad Manikpur Eta Motor Operators Union Mathura.
Letter No. 192/TAB/86 Dated: 10.10.86 Subject: Civil Miscellaneous Writ Peti tion No. 501/86 Shri Hari Om Gautam Versus District Magis trate, Mathura.
Sir, The aforesaid Writ Petition which was filed against the order of District Magis trate, Mathura dated 22.5 1986 declaring the old bus stand of T.A. Baldev (Mathura) as authorised Bus stand/Halting place, has been dismissed by High Court, Allahabad on 8.9.86 and the stay order concerned has also been cancelled.
Now the order of District Magis trate dated 22.5.86 has become effective again.
As a result of which all the buses of the union are bound to stop and start from the authorised Bus stand/Halting place of Baldev allowing the passengers to get in and get down from the bus and for booking at this very stand and to pay standcommission to T.A. Faithfully, Sd/ 8/10 illegible Executive Officer (Seal) Town Area Com mittee, Baldev, Mathura." 718 The relevant provisions of the Act which govern the case are these.
Section 68, which is in Chapter IV of the Act containing the provisions relating to 'control of transport vehicles ' confers the power on the State Government to make rules for the purpose of the said chapter.
Clause (r) of sub section (2) of section 68 of the Act specifically con fers on the State Government without prejudice to the gener ality of the power conferred under sub section (1) of sec tion 68 of the Act the power to frame rules regarding or 'prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in speci fied areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place. ' Section 76 of the Act reads thus: "76.
Parking places and halting stations The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
" Section 91 of the Act, which is in Chapter VI dealing with 'control of traffic ', confers the power on the State Government to make rules for the purpose of carrying into effect the provisions of Chapter VI.
Clause (e) of sub section (2) of section 91 of the Act confers the power on the State Government specifically to make rules regarding the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use.
Section 76 is also in Chapter VI.
The first question which arises for consideration is whether the area in which the bus operators were asked to stop their buses is a bus stand or a halting place.
The next question is whether, if the said area is a bus stand, the District Magistrate had the power to pass the impugned order.
It is not disputed before us that the District Magis trate had passed the impugned order in question with the object of establishing a bus stand in the area in question.
That appears to be so from the order passed by the District Magistrate and the letter dated 10.10.1986 written by the Executive Officer of Baldev Town Area 719 Committee.
We shall proceed on the basis that the District Magistrate fixed the area as a bus stand.
Regarding the authority which had the power to notify an area as a bus stand, there are at least three decisions of this Court.
In T.P. Ibrahim vs Regional Transport Authority, Tanjore, ; this Court took the view that the expres sion 'duly notified stand ' in section 68(2) (r) of the Act meant a stand duly notified by the Transport Authority and not a stand notified by the municipality within whose juris diction the area was situated.
This Court held that the fixing and alteration of bus stands was not a purpose for eign to the 'control of transport vehicles ' which was gov erned by Chapter IV of the Act and, therefore, rules could be framed by the State Government regarding the said subject under section 68(2)(r) of the Act.
At page 297 of the Re ports this Court has observed thus: "The expression 'duly notified stands ' is not defined in the Act, but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Author ity and by none other.
" It accordingly affirmed the view of the High Court against whose judgment the said appeal had been filed that section 76 of the Act which contained the provision relating to parking places and halting places had no application to a permanent bus stand which was a sort of radiating centre of all the bus traffic in the town.
A similar question arose for consideration in Municipal Board, Pushkar vs State Transport Authority, Rajasthan and Ors., [1963] Supp. 2 S.C.R. 373.
Following the decision in T.B. Ibrahim 's case (supra) this Court held in this case that section 76 of the Act had nothing to do with the fixation or alteration of a bus stand and the power to issue a notification fixing a bus stand was implied in section 68(2)(r) of the Act.
It further held that the power under section 68(2)(r) of the Act could be exercised only by the Regional Transport Authority having jurisdiction over the area and therefore, the order passed under that provision was open to revision under section 64 A by the State Transport Authority.
The last case to which reference has to be made is Municipal Council, Bhopal vs Sindhi Sahiti Multipurpose Transport Co op.
Society Ltd. & Anr., ; where the two decisions referred to above were applied for purposes of deciding the said case.
The facts of this case were these.
The Municipal Council of Bhopal had made bye laws under the provisions of section 358(7)(f) and (m) read with section 349 (ii) of the Madhya Pradesh Municipalities Act, 1961.
Bye law 2 provided that no person incharge of a motor bus plying for hire shall for 720 the purpose of taking up or setting down of passengers, park or stop his bus anywhere within the limits of the municipal ity except at the Municipal Bus Stand.
The other bye laws provided for a levy of a fee of Re. 1 for every 8 hours or part thereof in respect of the use of the bus stand by such buses and for the issue of a permit on such payment.
The respondent in that case filed a writ petition in the High Court of Madhya Pradesh challenging the said bye laws.
The High Court held that bye law l(c), which defined the expres sion 'Municipal Bus Stand ' and bye law 2 were valid but held bye laws 3 to 7 which provided for the payment of fee and the ' giving of permit etc., as invalid and restrained the Municipal Council from giving effect to those bye laws in any manner.
In that case this Court affirmed the decision of the High Court holding that the power to regulate or prohib it the use of municipal land as a halting place of vehicles could not be used to compel people to use such land as halting place.
Such a power should be given specifically by the statute and that the power to compel persons in charge of motor buses to stop only at certain places for the pur pose of taking up or setting down passengers was a matter which relating to motor traffic and that there was a specif ic provision in section 68(2)(r) of the Act for that pur pose.
Accordingly this Court held that the bye laws which compelled persons in charge of motor buses to use the Munic ipal Bus Stand could not be passed by the Municipality.
In that case also the District Magistrate had declared the Bhopal Municipal Bus Stand as a bus stand.
The Municipal Council contended before this Court that the District Magis trate had been authorised by the State Government under section 76 of the Act to pass an order fixing the Municipal Bus Stand as a bus stand for purposes of the Act.
Rejecting the said contention this Court held that the District Magis trate could not exercise the power of fixing a bus stand under section 76 of the Act and that could be done only under section 68(2)(r) of the Act.
The Court further ob served that while the Municipal Corporation had no power to compel persons plying motor buses for hire to use only the Municipal Bus Stand for the purpose of taking up and setting down passengers, there can be no objection to its providing a bus stand for anybody who chooses to use it voluntarily and to such person being required to pay for such use.
In the instant case reliance is placed by the learned counsel for the Town Area Committee of Baldev on rule 93 of the U.P. Motor Vehicles Rules, 1940 which authorises the District Magistrate to specify places within the limits of any municipality, notified area, town area or cantonment or within such other limits as he may define where alone public service vehicles or any specified class or classes of public 721 service vehicles and/or goods vehicles may stand indefinite ly or for such period as may be specified or public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
We do not think that the Town Area Committee can derive any assistance from this rule.
It only authorises the District Magistrate to exercise the powers under section 76 of the Act which is confined to the question of determination of parking places and halting places which are not the same as bus stands which can only be notified by the Regional Transport Author ity as held by this Court in T.B. Ibrahim 's case (supra).
It is not disputed that in the instant case no order has been passed by the Regional Transport Authority, Mathura to determine the area in question as a bus stand and the Dis trict Magistrate cannot be equated with the Regional Trans port Authority constituted under the Act.
The High Court was, therefore, in error in upholding the impugned order passed by the District Magistrate.
We, therefore, set aside the judgment of the High Court and quash the order dated 22.5.1986 passed by the District Magistrate.
We also quash the letter dated 10.10.1986 written by the Executive Officer of Town Area Committee, Baldev to the President of the Union requiring the bus operators to stop their buses at the bus stand and to start from there and to permit the passengers to get into and to get out of their buses at that bus stand.
It is open to the Regional Transport Authority to take action immediately for determining any convenient place or places within the Town Area of Baldev (Mathura) as a bus stand.
The appeal is accordingly allowed.
There shall, however, be no order as to costs.
S.R. Appeal allowed.

Output:
Chapter VI of the contain provisions relating to "control of transport vehicles".
Section 68 confers the power on the State Government to make rules for the purpose of the said chapter.
Clause (r) of sub section (2) of section 68 of the Act specifically con fers on the State Government without prejudice to the gener ally of the power conferred under sub section (1) of section 68 of the Act the power to frame rules regarding "prohibit ing the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place.
" Section 76 empowers the State Government or any authority authorised in this behalf by the State Government to determine parking places and halting stations.
Clause (e) of sub section (2) of section 91 of the Act confers the power on the State Government specifically to make rules regarding the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use.
Rule 93 of the Uttar Pradesh Motor Vehicles Rules, 1940 similarly authorises the District Magistrate to specify places within the limits of any munic ipality, notified area, town area or cantonment or within such other limits as he may define where alone public serv ice vehicles or any specified class or classes of public service vehicles and/or goods vehicles may stand indefinite ly or for such period as may be specified or public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
715 The District Magistrate, Mathura by his order dated 22.5.1986 declared and determined plot Nos. 701 and 702 in the Town Area, Baldev (Mathura) as a bus stand/halting place of Baldev, where the stage carriages were directed to stand for the purpose of allowing the passengers of Baldev to get into and to get down from the stage carriages.
Accordingly, the Town Area Committee gave a contract to a private con tractor to collect the necessary fees payable by the bus operators for making use of the area in question which was within its jurisdiction for stopping their buses in accord ance with the order passed by the District Magistrate.
The appellant, a person providing transport service in the District of Mathura, challenged the said order dated May 22, 1986 and the order of the Town Area Committee the levy fees by filing a Civil Writ Petition No. 501 of 1986 before the High Court of Allahabad.
The Writ Petition was dismissed by the High Court on 8.9.1986.
Hence the appeal by special leave.
Allowing the appeal.
the Court, HELD: Rule 93 of U.P. Motor Vehicles Rules, 1940 only authorises the District Magistrate to exercise the powers under Section 76 of the which is confined to the question of determination of parking places and halting places which are not the same as bus stands which can only be notified by the Regional Transport Author ity under section 68(2)(r) of the Act.
[721B] In the instant case no order has been passed by the Regional Transport Authority, Mathura to determine the area in question as a bus stand and the District Megistrate cannot be equated with the Regional Transport Authority constituted under the Act.
Therefore, the order dated 22.5.1986 passed by the District Magistrate and also the letter dated 10.10.1986 written by the Executive Officer of Town Area Committee, Baldev to the President of the Union requiring the bus operators to stop their buses at the bus stand and to start from there and to permit the passengers to get into and to get out of their buses at that bus stand is not in order.
[721C E] T.P. Ibrahim vs Regional Transport Authority, Tan/ore, ; ; Municipal Board, Puskar vs State Transport Authority, Rajasthan and Ors., [1903] Supp.
2 SCR 373; and Municipal Council, Bhopal vs Sindhi Sahiti Multipurpose Transport Co op.
Society Ltd. & Anr. ; , followed.


Input:
Appeal No. 134 of 1951.
Appeal from the Judgment and Order dated 20th November, 1950, of the Labour Appellate Tribunal, Lucknow, in Appeal No. 10 of 1950.
Bakshi Tek Chand and Veda Vyasa (section B. Kapur, with them) for the appellants.
Shaukat Hussain for the respondent.
Bishen Singh for the intervener.
December 17.
The Judgment of the Court was delivered by DAS J.
This appeal has been filed with the special leave granted by this Court on May 10, 1951.
By the order granting such leave the appeal has been restricted to one point only, namely, " whether the Government of Uttar Pradesh had the power to extend the time for making the award ex post facto, i.e. after the time limit originally fixed therefore had expired.
There is no dispute as to the facts.
An industrial dispute having arisen between the appellant company and its employees, by Labour Department Notification No. 637 (ST)/XVIII 53 (ST)/50 dated February 18, 1950, the Governor of Uttar Pradesh was pleased, in exercise of the powers conferred by section 3 read with section 4 of the U. P. (U. P. Act No. XXVIII of 1947), to refer the said dispute to the Labour Commissioner.
U. P., or a Conciliation Officer of the State Government nominated by him for adjudication on seven several issues specified therein and to direct the adjudicator to conclude the adjudication proceedings and submit his award to the Government not later than April 5, 1950.
The Labour Commissioner by his letter No. I.M.R. 14 A nominated Shri M. P. Vidyarthi, Regional Conciliation Officer, U. P., as the adjudicator in the above dispute with a direction that be should submit his, award by March 25, 1950, and that if the proceeding, were not likely to be 441 completed within that time he should move the Government for extension of time at least a week before the specified date.
By Notification No. 897 (ST)/XVIII 53 (ST)/50 dated March 20, 1950, the Governor was pleased to order that the adjudicator should also adjudicate on an additional issue formulated therein.
By a further Notification No. 950 ' (ST)/XVIII 53 (ST)/60 dated March 24, 1950, the ,Governor was pleased to refer another additional issue for the decision of the adjudicator.
The adjudicator did not make his award on or before April 55 1950, as directed by the first order of reference but made his award on April 13, 1950, that is to say, 8 days after the expiry of the time originally fixed for the making of the award.
About thirteen days after.
the I delivery of the award Labour Department Notification No. 1247 (ST)/XVIII 53 (ST)/50 was issued on April 26, 1950, whereby the Governor was pleased, in exercise of powers conferred by section 3 read with section 4 of the 'Act, to allow the adjudicator in the said dispute to submit his award by April 30, 1950.
Thereafter by Notification No. 1447 (ST)/XVIII 53(ST)/50 dated August 1, 1950.
, the Governor was pleased, in exercise of powers conferred by section 6 (2) read with sections 3 and 4 of the Act, to order that the award be enforced for a period of six months from the date of that order in the first instance and thereafter for such further period as might be prescribed.
On August 17, 1950, the appellant company preferred an appeal against the award to the Labour Appellate Tribunal contending, inter alia, as follows: That the award dated April 13, 1950, is vitiated, having been given after the expiry of the time limit.
(a) In its order dated February 18, 1950, para.
(5), Government directed the adjudicator to conclude the proceedings and submit his award not later than the 5th April, 1950.
The award is dated 13th April, 1950.
The Government, however, tried to remedy 442 this defect by the issue of G.O. No. 1247 (ST) XVIII 53 (ST)/50 dated April 26, 1950, but under the law this is of no avail.
To be a valid extension of date granted to the adjudicator, Government ,.,order should have been issued before the 5th April, 1950, to keep the authority of the adjudicator alive.
"On the date the adjudicator made the award, i.e., 13th April, 1950, he had no power to make an award.
" The Appellate Tribunal by its decision given on November 20, 1950, dismissed the appeal with the following observations on the point mentioned above. " With regard to the last point our view is that as the Government had the authority under section 6 of the Act to fix time limit for submitting an award it had also the necessary and incidental power to extend the time limit originally fixed, if it considered it necessary.
The first proviso to section 3 empowers the Provincial Government to add more matters for adjudication.
It is obvious that additions to the matters already referred to would or may take more time than what had been originally estimated, and so ,it may lead to an impossible position if the Government had no power to extend the time originally fixed by it, and it makes no difference, in our opinion, whether the time is extended before or after the expiry of the time originally limited.
" The present appeal is against that decision of the Appellate Tribunal but limited to the question hareinbefore mentioned.
Dr. Tek Chand appearing in support of this appeal urges that the adjudicator derived his authority under the order made by Notification No. 637, dated February 18, 1950.
Section 6 (1) provides that the adjudicator " shall, within such time as may be specified, submit its award to the State Government.
" The time specified by the order was " not later than April 5, 1950.
" On the expiry of that time the adjudicator became functus officio and bad no power or authority to make the award.
It is true that two 448 more issues were, by the two subsequent orders, added to the list of issues to be determined by the adjudicator but those issues, Dr. Tek Chand submits, did not involve any detailed investigation into facts necessitating any further time for making the award.
Learned counsel contends that the U.P. Act under consideration has no provision empowering the State Government to enlarge the time for the making of ' the award by the adjudicator. 'In the circumstances, if the State Government took the view that the addition of those two issues would render the time ' specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. ' The State Government did not adopt that course.
What it purported to do was to extend the time for making the award not only after the time originally fixed had expired but also after the award had, actually been submitted.
The argument is that even assuming but not admitting that the State Government had the power to extend the time before the time had expired it certainly had no power to do so after the award had been made, for it was meaningless, urges Dr. Tek Chand, to extend the time to do an act which bad already been done.
He refers us to the decision of the Judicial Committee in Baja Har Narain Singh vs Chaudhrain Bhagwant Kuar(1) where it was held that under the Code of Civil Procedure of 1882 the Court had no power to extend the time for making the award after the award had been filed.
Section 514 of that Code enabled the Court to grant a further time and from time to time to enlarge the period for the delivery of the award but section 521 provided that no award shall be valid unless made within the period allowed by the Court.
Their Lordships of the Privy Council took the view that it would not have been competent for the Court to extend the time after the award had been made, for once the award was made (1) L.R. 18 I.A. 55; 13 All.
300 444 and delivered the power of the Court under section 514 was spent and that although the Court had the fullest power to enlarge the time under that section as long as the award was not completed it no longer possessed any such power when once the award was made.
in order to give full effect to section 521 the Judicial Committee had to confine the exercise of the power to extend the time given to the Court by section 514 to a point of time before the award had been made.
This decision was relied upon by Mr. Justice Harring ton sitting singly on the Original Side of the Calcutta High Court in Shib Krishna Dawn & Co. vs Satish Chander Dutt(1) which was a case governed by the Code of 1908.
The learned Judge overlooked the fact that paragraph 8 of the Second Schedule to the Code of 1908 which corresponded to section 514 of the Code of 1882 expressly conferred power on the Court to allow further time and from time to time, either before or after the expiration of the period fixed for the making of the award, to enlarge such period and that paragraph 15 which corresponded to section 521 of the Code of 1882 contained no provision that an award made out of time was ipso facto invalid and that consequently the reasoning underlying the decision of the Judicial Committee in the case of Raja Narain Singh vs Chaudhrain Bhagwant Kuar (2) had no application to the case before him, which was governed by the Code of 1908.
Having regard to the difference in the language of the relevant provisions of the two Codes, the correctness of the decision of Harrington J. was doubted by Mr. Justice Chitty also sitting singly on the Original Side of the Calcutta High Court in Sri Lal vs Arjun Das(3).
Eventually the, decision of Mr. Justice Harrington was dissented from by a Division Bench of the same High Court sitting in appeal from the Original Side in Jetha Lal Laxmi Chand Shah vs Amrita Lal Ojha(4), which held that the Court had power to enlarge the time for making the award even after the award had (1) I.L.R.38 Cal.
(3) (2) 18 I.A. 55.
(4) I.L R. ;42 C.W.N. 833.
445 actually been made.
The learned Judges in the last mentioned case referred to and relied on the case of Lord vs Lee(1).
Reference has also been made by learned counsel for the respondents to Dentron vs Strong (2) and toMay vs Harcourt (3).
It will be noticed that all those English cases were decided under section 15 of the Common Law Procedure Act, 1854 (17 & 18 Vic , c. 125).
It is true that in that English statute there was no provision similar to section 521 of our Code of 1882 which was noticed by the Privy Council in the case cited by Dr. Tek Chand; nevertheless section 15 of the English statute like section 514 of the Code of Civil Procedure of 1882 corresponding to paragraph 8 of the Second Schedule to the Civil Procedure Code of 1908 and like section 9 of the English Arbitration Act, 1889, corresponding to section 12 of the Indian Arbitration Act, 1899, empowered the Court, from time to time, to enlarge the time for making the award.
There is a similar provision for enlargement of time in section 148 of our Civil Procedure Code of 1908.
There is, however, no similar provision in the U. P.
Section 6(1) of that Act peremptorily requires the adjudicator to submit his award to the State Government " within such time as may be specified " and not "within such time as may from time to time be specified.
" It is significant that the only occasion when the State Government can, under the U. P. Act, specify a fresh period of time is when it remits the award for reconsideration under sub section (2) of section 6, for under subsection (3) the adjudicator is enjoined to submit his award, after reconsideration, within such period as may be specified by the State Government.
Even in this case, under section 6(2) and (3) the State Government may in the order remitting the award specify a time within which the award, after reconsideration, must be filed.
This gives power to the State Government to fix a fresh period of time to do a fresh (1) (2) (1874) L. R. 9 Q.B. 11 7, (3) I.P.R. 13 Q. B.D. 688, 446 act, namely, to reconsider and file the reconsidered award.
It does not give the State Government any power to enlarge the time fixed originally for the initial making of the award.
Therefore, except where ,the State Government under section 6 (2)remits the 'award for reconsideration it has no power even to specify a fresh period of time and much less a power to extend the time for the initial making of the award under section 6 (1).
In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8 of the U. P. , the Governor was pleased to make an order embodied in Notification No. 615 (LL)/XVIII 7 (LL) 1951, dated March 15, 1951.
The proviso to rule 16 of that order authorised the State Government to extend from time to time the period within which the Tribunal or the adjudicator was to pronounce the decision.
These rules were, however, not in force at the time material to the case before us.
Learned counsel appearing for the respondent and for the State of Uttar Pradesh have not referred us to any similar rule which, was in force in 1950.
In view of the language of section 6 of the U. P. Act and in the absence of a rule like the proviso to rule 16 referred to above it must follow that the State Government had no authority whatever to extend the time and the adjudicator became functus officio on the expiry of the time specified in the original order of reference and, therefore, the award which had not been made within that time must be held to be without jurisdiction and a nullity as contended by Dr. Tek Chand.
Learned counsel for the respondents refers us to the provisions of section 14 of the U. P. General Clauses Act, 1904, which provides that where by any Uttar Pradesh Act any power is conferred on the State Government then that power may be exercised from time to time as occasion requires.
Sections 3 and 4 of the U. P. , certainly confer power on the State Government to refer disputes to an adjudicator for decision 447 and section 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award.
The combined effect of section 14 of the U. P. General Clauses Act and section 6(1) of the U. P. , it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified " and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case.
We are unable to accept this line of reasoning.
Under section 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by sections 3, 4 and 6, that is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made.
This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order.
The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the legislature thinks fit to do so.
There is no question of any inherent power of the Court and much less of the Executive Government in this behalf.
Section 14 of the U. P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the Respondents can derive no support from that section.
Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act, 1904, and contends that the order of April 26, 1950, should be taken as an amendment or modification, within the meaning of that section, of the first order of February 18, 1950.
It is true that the order of April 26, 1950, does ex facie purport to rectify, the order of 448 February 18, 1950, but, in view of the absence of any distinct provision in section 21 that the power of amendment and modification conferred on the Government may be so exercised as to have retrospective operation the order of April 26, 1950, viewed merely as an order of amendment or modification, cannot, by virtue of section 21, have that effect.
If, therefore, the amending order operates prospectively, i.e., only as from the date of the order, it cannot validate the award which bad been made after the expiry of the time specified in the original order and before the date, of the amending order, during which period the adjudicator was functus officio and had no jurisdiction to act at all.
We do not think the respondents can derive any support from section 21 of the U. P. General Clauses Act.
The result, therefore is that this appeal must be allowed and the award must be declared to be null .and void and we order accordingly.
In the circumstances of this case we make no order as to costs.
Appeal allowed.
Agent for the intervener: C. P. Lal.

Output:
On February 18,1950, the Governor of Uttar Pradesh referred an industrial dispute to the Labour Commissioner or a person nominated by him with the direction that the award should be submitted not later than April 5, 1950.
The award, however, was made on April 13, and on April 26, the Governor issued a notification extending the time for making the award up to April 30: Held, (i) in view of the language of section 6 of the U. P. , and in the absence of a provision like that contained in the proviso to r. 16 of the Governor 's notification dated in March 15, 1951, the State Government had no authority whatever to extend the time, and the adjudicator became functus officio on the expiry of the time fixed in the original order of reference and the award was therefore one made without jurisdiction and a nullity.
(ii)Section 14 of the U. P. General Clauses Act, 1904, did not in terms or by necessary implication give any such power of extension of time to the State Government.
(iii)Though the order of April 26 did exfacie purport to modify the order of February 18, in view of the absence of any distinct provision in section 21 of the U. P. General Clauses Act, 1904, that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation, the order of April 26, viewed merely as an order of amendment or modification, cannot, by virtue of section 21, have retrospective effect.
Raja Har Narain Singh vs Chaudhrain Bhagwant Kuar (L.R. 18 I.A. 55) applied.
Jetha Lal Lakshmi Chand Shah vs Amrita Lal Ojha (I.L.R. , Lord vs Lee (L.R. 3 Q.B. 404), Dentron vs Strong (L.R. 9 Q.B. 117), May vs Harcourt (L.R. 13 Q.B.D, 688) distinguished.
57 440


Input:
Special Leave Petition (Civil) Nos.
12 12A of 1988.
From the Judgment and order dated 18.12.1987 of the Andhra Pradesh High Court in W.A. Nos.
1649 and 1650 of 1987 P.N. Lekhi, M.K. Garg and Lokesh Kumar for the Petitioner.
Kuldeep Singh, Additional Solicitor General and Mrs. A. Subhashini for the Respondents.
The following order of the Court was delivered: O R D E R In response to the queries made by this Court by its order dated January 8, 1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the relevant information as under: (1) In the matter of the age of Shri Justice K. Bhaskaran, Chief Justice of the Andhra Pradesh High Court, the advice and comments of the Chief Justice of India were sought in terms of Articles 217(3) of the Constitution of India.
The files containing all the relevant papers were referred to the Chief Justice of India on 28th September, 1987.
(2) The Chief Justice of India on 29th December, 1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court concerning the matter of the age of the Chief Justice Bhaskaran.
The opinion was made available to the Chief Justice of India on 6th January, 1988.
The Chief Justice of India on 11th January, 1988 indicated further course of action in the matter.
The file has been resubmitted to 730 the Chief Justice of India on 16th January, 1988 for his further advice.
(3) A view in the matter will be taken by the President of India after the advice of the Chief Justice of India is made available.
In view of the foregoing, it is clear that the President of India in compliance with Article 217(3) of the Constitution of India has referred the question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court to the Chief Justice of India for his opinion.
That being so, no writ of mandamus can lie.
The President of India as a constitutional functionary has discharged his duties under Article 217(3) of the Constitution and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers.
As laid down in the Union of India vs Jyoti Prakash Mitter,.
[1971] 3 SCR at 503 & 504, the matter as to the age of the Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 217(3) of the Constitution.
Such a question as to the age of the Chief Justice or a Judge under Article 217(3) of the Constitution is beyond the reach of the Council of Ministers under Article 74 of the Constitution.
J.C. Shah, C.J., speaking for the Constitution Bench has laid down the law in these words: It is necessary to observe that the President in whose name all executive functions of the Union are performed is by article 217(3) invested with judicial power of great significance which has bearing on the independence of the Judges of the Higher Courts.
The President is by article 74 of the Constitution the Constitutional head who acts on the advice of the Council of Ministers. " The question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court must, therefore, be decided by the President of India on the advice of the Chief Justice of India as enjoined by Article 217(3) of the Constitution in the light of the principles laid down by this Court in Jyoti Prakash Mitter 's, case.
The High Court, in our considered opinion, should have thrown out the petition under article 226 of the Constitution at the very threshold because the President of India was seized with the question under Article 217(3) of the Constitution.
Indeed, it appears from the judgment of the 731 High court that when the learned counsel for the Union of India A informed the Court that the President of India is seized with the question, the counsel for the appellant conceded that the writ of quo warranto is not maintainable.
The special leave petitions are accordingly dismissed.
G.N. Petitions dismissed.

Output:
% The appellant raised the question as regards the determination of age of the Chief Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed against the Judgment and order of the Andhra Pradesh High Court dismissing in limine the Writ Appeals against the order of dismissal of the Writ Petitions by a Single Judge of the High Court.
ln the course of the proceedings, this Court, on January 8, 1988, made certain queries to which the Additional Solicitor General furnished information broadly on the following lines: That a view in the matter will be taken by the President of India after the advice of Chief Justice of India is made available, and that all relevant files have been submitted to the Chief Justice of India along with the opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court.
In view of the information made available, this Court dismissed the Special Leave Petitions and, ^ HELD: 1.
The matter as to the age of the retired Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 2l7(3) of the Constitution.
[730C D] 2.
Such a question as to the age of the Chief Justice or a Judge, under Article 217(3) of the Constitution, is beyond the reach of the Council of Ministers under Article 74 of the Constitution.
[730D E] Union of India vs Jyoti Prakosh Mitter, [ 197 l ] 3 SCR 483, followed.
729 3.
Since the President of India, in compliance with Article 2l7(3), has referred the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of Mandamus can lie.
[730B] 4.
The President of India as a constitutional functionary has discharged his duties under Article 217(3) and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers.
[730C]