judgement:
il Appeals Nos. 245 and 202 of 1953.
Appeal under Article 132(1) of the Constitution of India from the judgment and order dated the 27th January 1953 of the Calcutta High Court in Matter No. 139 of 1952.
Ranadeb Chaudhry, Anil Kumar Das Gupta and Sukumar Ghose, for the appellant.
S.M. Bose, Advocate General, ' for West Bengal (B. Sen and P. K. Bose, with him) for the respondent.
December 23.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by leave of the High Court of Calcutta under article 132(1) of the Constitution.
The appellant before us was the 1333 Registrar and Accountant General of the High Court at Calcutta on its Original Side.
He was appointed to the post by the Chief Justice of the High Court on the 4th March, 1948 and confirmed therein on the 15th of November, 1948.
He was dismissed therefrom with effect from the 1st September, 1951, by an order of the Chief Justice dated the 3rd September, 1951.
There were various charges against him and Mr. Justice Das Gupta was deputed by order of the Chief Justice dated the 28th May, 1651, to make an ' enquiry and submit a report.
Mr. Justice Das Gupta made a full enquiry and submitted his report on the 11th August, 1951, in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of the other charges.
The learned Judge expressed his conclusion as follows: "Mr. Bose (the appellant) must be held to be guilty of misconduct and dishonest conduct and (that) he is unfit to hold the office of Registrar of the Original Side of this Court".
The Chief Justice issued to the appellant a notice on the 16th August, 1951, intimating that be agreed with the report after careful consideration thereof and asking him to show cause why he should Dot be dismissed from his post.
The appellant was given a hearing by the Chief Justice on the 31st August, 1951.
The order dated the 3rd September, 1951, of the Chief Justice dismissing the appellant from his office, a copy of which was served on him, runs as follows: "A full and thorough enquiry was held by Mr. Justice K. C. Das Gupta into the charges made against Sri P. K. Bose the Registrar of the Original Side of this Court.
Sri P. K. Bose was represented by eminent Counsel and every opportunity was given to him to meet the charges and put forward his explanation and defence.
The learned Judge however in a full and very carefully considered report found Sri P. K. Bose guilty of serious charges involving moral turpitude and dishonesty and further he was of opinion that Sri P. K. Bose was by reason thereof unfit to hold the said office of Registrar.
I considered this report and the evidence most 1334 anxiously and found myself in entire agreement with the learned Judge.
Sri P. K. Bose was, in my view, clearly guilty of the matter comprised in the charges specified by ' Mr. Justice K. C. Das Gupta.
I considered that prima facie the conduct of Sri P. K. Bose warranted dismissal and I therefore gave him notice under article 311(2) of the Constitution of India to show cause against the action proposed against him, namely, dismissal.
On the 31st august, 1951, Sri P.K. Bose showed cause before me and I heard Sri Sachin Chaudhuri his counsel and Sri P. K. Bose personally.
In all the circumstances this is not a case in which I can properly show any leniency.
Sri P. K. Bose has abused the trust and confidence reposed in him and has been found guilty of serious malpractices and dishonesty.
Conduct such as this of an officer of the status of the Registrar of the Original Side of this Court is unpardonable and must be dealt with severely.
I there fore dismiss Sri P. K. Bose from his office as Registrar of the Original Side of the Court, the dismissal to take effect from the 1st September, 1951.
Let a copy of this order be served on Sri P. K. Bose".
On the 25th January, 1952, the appellant submitted a petition to the Governor of West Bengal for cancellation of the above order.
He received intimation dated the 9th July, 1952, that the "Governor declines to interfere on his behalf".
Thereupon he filed an application to the Chief Justice for review of the prior order of dismissal.
It may be mentioned that it was Chief Justice, Sir Arthur Trevor Harries, who had initiated the proceedings against the appellant and passed the order of dismissal.
He retired in June, 1952.
The application for review was made to the successor Chief Justice, Shri P. B. Chakravarti, on the 11th September, 1952.
This application was rejected on the 16th September, 1952.
Thereafter on the 24th November, 1952, i.e., more than an year after the order of dismissal, a writ application was filed on the Original Side of the High Court under article 226 of the Constitution against the Hon 'ble 1335 the Chief Justice of the High Court "for calling upon him to bring up the records of the proceedings relating to his dismissal in order that justice may be done by quashing or otherwise dealing with the said proceedings and the said order dated the 3rd September, 1951, purporting to terminate his services and for directions being given to the Chief Justice to desist from giving effect to or acting in any manner under the said order".
On the presentation of the application the learned Judge on the Original Side, Mr. Justice Bose, issued a rule nisi calling upon the Hon 'ble the Chief Justice to show cause why an order in the nature of a writ as asked for should not be made.
This order was duly served and on its return the learned Judge made an order referring the hearing of the application to a Special Bench of three Judges as per the rules of the Court.
Accordingly the petition was, under the directions of the Chief Justice, heard by three learned Judges of the High Court, who after elaborate hearing and consideration of the points urged on behalf of the appellant dismissed the application.
Leave to appeal to this Court was, however, granted by them under article 132(1) on the ground that the case involves substantial questions of law relating to interpretation of the Constitution.
The main points that have been urged by the appellant before us, as before the High Court, are that (1)the Chief Justice of the High Court had no power under the law to dismiss him; (2)even if he had the power, he could not delegate the enquiry into the charges, to another Judge but should have enquired into the same himself; and (3)in any case the order of dismissal could not have been passed in the absence of previous consultation with the Public Service Commission of the State as provided under article 320 of the Constitution.
On behalf of the respondent, i.e., the Hon 'ble the Chief Justice of the High Court at Calcutta, the learned Advocate General of West Bengal has 1336 appeared before us.
In addition to controverting the correctness of the above contentions raised on behalf of the appellant, he strongly urged that (1)no writ could issue from the High Court against its own Chief Justice; (2)the order of the Chief Justice, the validity of which is being challenged, is a purely administrative order against which no application for writ is maintainable; and (3)this was not a case in which having regard to all the circumstances, any application by way of a writ should have been entertained.
The points urged on behalf of the appellant may first be taken up.
The most important out of them is the one relating to the authority of the Chief Justice to pass the order of dismissal as against the appellant.
It is beyond dispute that the Chief Justice is the authority for appointing the appellant.
It was in fact the Chief Justice who appointed the appellant and confirmed him.
But it is strongly urged that he had not the power to dismiss.
This argument is based on the assumption that the appellant falls within the category of public servants who are governed by the Civil Services (Classification, Control and Appeal) Rules, (hereinafter referred to as the Civil Services Rules) of the year 1930 as amended from time to time and that the said rules continue to apply, to an officer holding the post which he did, even after the Government of India Act, 1935, and later the Constitution of India of 1950 successively came into force.
I the argument recognises the fact that dismissal is a matter which falls within conditions of service of a public servant as held by the Privy Council in North West Frontier Province vs Suraj Narain Anand(1) and that the power of making rules relating to conditions of service of the staff of the High Courts is vested in the Chief Justice of the Court under section 242(4) taken with section 241 of the Government of India Act, 1935, as also under article 229(2) of the Constitution of India, 1950.
But (1) [1948] L.R. 75 I.A. 843.
1337 it is said that no such rules have been framed by the Chief Justice, and that therefore by virtue of section 276 of the Government of India Act, 1935, and article 313 of the Constitution, the Civil Services Rules continued to apply to him, It is necessary to examine the correctness of these assumptions.
The Civil Services Rules were framed by the Secretary of State in Council under powers vested in him by section 96 B(2) of the Government of India Act, 1915, as amended in 1919.
These rules were framed on the 19th June, 1930, and published on the 21st June, 1930.
It is desirable therefore to consider the position relating to the staff of the High Courts before that date.
It is not disputed that the said position was governed by the Letters Patent of the High Court.
Clause 8 of the Letters Patent of 1865 as amended in 1919, which continues to be operative, as also clause 4 thereof, are relevant for the present purpose.
They are as follows: "8.
We do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal, from time to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by the Governor General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice, and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent.
And it is Our further will and pleasure and We do hereby for Us, Our heirs and successors give grant, direct, and appoint, that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall, from time to time, appoint for each office and place respectively, and as the Governor General in Council shall approve of.
Provided always, and it is Our will and pleasure, that all and every the officers and clerks to be appointed as aforesaid shall be resident within the limits of the jurisdiction of the said Court, so long as they shall hold their respective offices; but 1338 this proviso shall not interfere with or prejudice the right of any officer or clerk to avail himself of leave of absence under any rules prescribed by the Governor General in Council, and to absent himself from the said limits during the term of such leave, in accordance with the said rules".
We do hereby appoint and ordain, that every clerk and ministerial officer of the said High Court of Judicature at Fort William in Bengal, appointed by virtue of the said Letters Patent of the Fourteenth of May, One thousand eight hundred and sixty two, shall continue to hold and enjoy his office and employment, with the salary thereunto annexed, until he be removed from such office and employment; and he shall be subject to the like power of removal, regulations, and provisions if he were appointed by virtue of these Letters Patent".
It will be noticed that clause 8 specifically vests in the Chief Justice the power of appointment, but makes no mention of the power of removal or of making regulations or provisions.
But it is obvious from the last portion of clause 4 that such power was taken to be implicit under clause 8 and presumably as arising from the power of appointment.
It may be mentioned that under clause 10 of the Charter of the Supreme Court of Calcutta issued in 1774, the said Court also was in specific terms "authorized and empowered from time to time, as occasion may require, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice".
The power of removal or of taking other disciplinary action as regards such appointees was not in terms granted.
But there is historical evidence to show that the power of appointment conferred under the Charter was always understood as comprising the above powers.
Sir Charles Wood, the then Secretary of State for India in paragraph 10 of his dispatch to the Governor General dated the 17th May, 1862, (on the formation of the new High Courts) stated as follows: "The Supreme Court exercises an authority entirely independent of the Government in respect of 1339 its ministerial officers".
It is this power and authority along with other judicial power and authority that was succeeded to by the High Courts (on their formation in supersession of the Supreme and Sadar Courts) by virtue of section 9 of the Indian High Courts Act, in the following terms.
"Each of the High Courts to be established under the Act shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts . . . abolished under this Act . . " Thus it is clear that both under the Charter of the Supreme Court as well as under the Letters Patent of the High Court, the power of appointment was throughout understood as vesting in the High Court or the Chief Justice, the complete administrative and disciplinary control over its staff, including the power of dismissal.
There can be no doubt that this position continued at least until the Government of India Act, 1915.
Now, section 106 of the Government of India Act, 1915, in terms continued the above by providing that the jurisdiction of the High Court would "include all such powers and authority over and in relation to the administration of justice including power to appoint clerks and other ministerial officers of the Court as are vested in them by Letters Patent".
It follows that the position continued to be the same even under the Government of India Act, 1915, at any rate up to 1930, when the Civil Services Rules came into operation.
All the powers under the Letters Patent were, however, subject to alteration by competent legislative authority by virtue of clause 44 of the Letters Patent.
Clause 8 of the Letters Patent itself provided that the power of appointment of the Chief Justice was to be "subject to rules and restrictions which may be prescribed by the Governor General in Council".
Now, the Civil Services Rules were made by the Secretary of State in Council under section 96 B of the Government of India Act, 1915.
It is the case of the appellant that though the 169 1340 Civil Services Rules framed by virtue of delegated power under the Act could not override the specific power of appointment vested in the Chief Justice by virtue of section 106 thereof, they would override the alleged implications of that power such as the power of dismissal and power to frame rules relating to conditions of service in so far as they are specifically provided for under the Civil Services Rules.
It is further urged that the said situation continues up to date by virtue of section 276 of the Government of India Act, 1935 and article 313 of the Constitution, Now, the appellant is a person who was appointed in 1948 and dismissed in 1951.
It is, therefore, desirable in the first instance to examine the situation under the Government of India Act, 1935 and under the Constitution of 1950 on the assumption that the Civil Services Rules made a change in the prior situation so far as the High Court staff is concerned and applied thereto between 1930 and 1935.
Under the Government of India Act, 1935, the position relating to the Civil Services of the Crown in India is contained in a number of general provisions in Chapter 11 of Part X thereof Section 240(1) reiterates what was first statutorily declared by section 96 B of the 1915 Act, viz., that except as expressly provided by the Act every, person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty 's pleasure.
Section 241 provides for the recruitment and conditions of service of such persons and prescribes the various authorities who can make the appointments and frame the rules relating to conditions of service.
Section 242(4), in so far as it is relevant for the present purpose, provides that section 241 in its application to appointments to and to persons serving on the staff attached to a High Court shall have effect as if, in the case of a High Court, for any reference to the Governor in paragraph (b) of section (1), in paragraph (a) of sub section (2) and in sub section (5), there was substituted a reference to the Chief Justice of the Court.
Making the necessary substitutions as prescribed 1341 above, the statutory provisions in the Government of India Act, 1935, relating to recruitment and conditions of service of the staff of the High Court may be read as follows: "(1) Appointments to the Civil Services and civil posts under the Crown in India in relation to the staff attached to the High Court shall be made by the Chief Justice or such person as he may direct.
(2)The conditions of service of persons serving.
His Majesty in relation to the staff attached to the High Court shall be made by the Chief Justice of the High Court or by some person or persons authorised by him to make the rules for the purpose.
Provided that (a)the Governor may in his discretion require that in such cases as he may in his discretion direct no person not already attached to the court shall be appointed to any office connected with the Court save after consultation with the Provincial Public Service Commission; (b)rules made under sub section (2) by a Chief Justice shall,, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor".
These sections, while keeping intact the power of ap pointment of the members of the staff of the High Court with the Chief Justice as contained in the Letters Patent, provide, statutorily for the first time and in express terms what was implicit in clause 8 of the Letters Patent, viz., that the power to regulate and frame rules relating to conditions of service governing such staff is also vested in the Chief Justice subject however to two limitations indicated by the provisos mentioned above.
The corresponding provisions in the present Constitution relating to the powers of the Chief Justice in relation to the recruitment and service conditions of the staff of the High Court are almost identical and are contained in article 229.
They are as follows: "229.
(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of 1342 the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State in which the High Court has its principal seat may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2)Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause, shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State in which the Court has its principal seat".
It does not appear from the record that any rules have been made by the Chief Justice of the Calcutta High Court, at any rate, in so far as they may be applicable to the Registrar of the Original Side of the High Court.
On the assumption, therefore, that the Civil Services Rules applied to the case of a person in his position between 1930 and 1935, it has got to be seen whether they continue to be so applicable.
The relevant provisions in this behalf are section 276 of the Government of India Act, 1935, and article 313 of the Constitution.
They are as follows: "Section 276: Until other provision is made under the appropriate provisions of this Part of this Act, any rules made under the Government of India Act relating to the Civil Services of, or civil posts under, the Crown in India which were in force immediately before the commencement of Part III of this Act, shall, notwithstanding the repeal of that Act, continue in force so far as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act".
1343 "Article 313: Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all India service or as service or post under the Union or a State shall continue in force so far as consistent with the provi sions of this Constitution".
Now, it has to be observed that the continuance, under section 276 of the Government of India Act, 1935, of the Civil Services Rules, could only be in so far as such continuance may be consistent with the new Act.
Further in their application to the High Court staff, the rules are to be deemed to be rules made under the appropriate provisions of the Act.
The rules, therefore, must be deemed to be rules made by the Chief Justice consistently with the scheme and the provisions of the Act relating to the High Court staff which specifically vest in him the powers of appointment and of the regulation of conditions of service including the power of dismissal.
Such continuance, therefore, can only operate by a process of adaptation implicitly Authorised by the very terms of section 276.
It would follow that, in their continued application to the High Court staff, the word "Governor" has to be read as substituted by the word "Chief Justice" wherever necessary in the same way as section 242(4) of the Act requires the provisions of section 241 to be read as though any reference to the Governor therein is substituted by a reference to the Chief Justice of the High Court.
The continued application of the Civil Services Rules without such adaptation would result in the anomalous position, that although the 1935 Act specifically vests in the Chief Justice the power of appointment and of framing rules regulating conditions of service including the power of dismissal and hence thereby indicates the Chief Justice as the authority having the power to exercise disciplinary control, be has no such disciplinary control merely because he did not choose to make any fresh rules and was content with the continued appli 1344 cation of the old rules.
Now, the relevant provision in the Civil Services Rules which deals with disciplinary action including dismissal is rule 52 thereof.
That rule shows that "the Governor General in Council or Local Government of a Governor 's Province may impose any of the penalties specified in rule 49 (which includes dismissal) on any person included in any of the classes I to 5 specified in rule 14 who is serving under the administrative control of the Governor General in Council or the Local Government, as the case may be".
This rule, if it originally applied to the High Court staff, must after 1935 be read by substituting "Chief Justice" in the place of "the Local Government" wherever it occurs therein and making other consequential alterations.
Thus read, there can be no doubt that as from the commencement of the Government of India Act, 1935, the power of dismissal of a member of the High Court staff including, a person in the position of the appellant, Would vest in the Chief Justice.
This would be so even apart from the normal implication of the power of appointment specifically recognised under the Act.
It follows that even on the assumption that Civil Services Rules applied between 1930 and 1935 to the High Court staff their continuance after 1935 makes a change in the dismissing authority and the power of dismissal is vested in the Chief Justice.
That being the correct position prior to 1950, the Constitution has made no change in this respect and article 313 would also continue rule 52 of the Civil Services Rules as above adapted.
It would, therefore, follow that, at any rate, from the time of passing of the Government of India Act, 1935, as also under the Constitu tion, the power of dismissal vests in the Chief Justice notwithstanding that no specific rules have been made in this behalf by the Chief Justice.
It must be mentioned, at this stage, that so far as the power of dismissal is concerned, the position under the Constitution of 1950 is not open to any argument or doubt.
Article 229(1) which in terms vests the power of appointment in the Chief Justice is equally effective to vest in him the power of dis 1345 missal.
This results from section 16 of the General Clauses Act which by virtue of article 367(1) of the Constitution applies to the construction of the word "appointment" in article 229(1).
Section 16 of the General Clauses Act clearly provides that the power of "appointment" includes the power "to suspend or dismiss".
In view of the clear conclusion we have arrived at as above, we do not consider it necessary to deal with the arguments addressed to us on both sides as to the applicability or otherwise of the Civil Services Rules to the High Court staff, including a person in the position of the appellant, and we express no opinion thereon.
The main contention, therefore, of the appellant as to the competency of the Chief Justice to pass the order of dismissal against him fails.
The further subordinate objections that have been raised remain to be considered.
The first objection that has been urged is that even if the Chief Justice had the power to dismiss, he was not, in exercise of that power, competent to delegate to another Judge the enquiry into the charges but should have made the enquiry himself.
This contention proceeds on a misapprehension of the nature of the power.
As pointed out in Barnard vs National Dock Labour Board(1) at page 40, it is true that "no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication".
But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power.
It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise thereof It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report.
That is the ordinary mode of exercise of any administrative power.
What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise (1) ; , 40.
1846 of such power.
As pointed out by the House of Lords in Board of Education vs Rice(1), a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party "has a fair opportunity to correct or contradict any relevant and prejudicial material".
The following passage from the speech of Lord Chancellor in Local Government Board V. Arlidge (2) is apposite and in structive.
"My Lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted.
The result of its enquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure.
In the case of the Local Government Board it is not doubtful what this pro cedure is.
The Minister at the head of the Board is directly responsible to Parliament like other Ministers.
He is responsible not only for what he himself does but for all that is done in his department.
The volume of work entrusted to him is very great and he cannot do the great bulk of it himself.
He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly.
To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency.
Unlike a Judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff".
In view of the above clear statement of the law the objection to the validity of the dismissal on the ground that the delegation of the enquiry amounts to the delegation of the power itself is without any substance and must be rejected.
The second objection that has been taken is that even if the power of dismissal is vested in the Chief Justice, the appellant was entitled to the protection (1) , 182.
(2) ,133. 1347 of article 320(3)(c) of the Constitution.
It is urged that the dismissal in the absence of consultation with the Public Service Commission of the State was invalid.
There can be no doubt that members of the staff in other Government departments of the Union or the State are normally entitled to the protection of the three constitutional safeguards provided in articles 311(1), 311(2) and 320(3) (c).
Article 320(3) (e) so far as it is relevant for the present purpose, runs as follows: "The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters".
The phrase "all disciplinary matters affecting a person" is sufficiently comprehensive to include any kind of disciplinary action proposed to be taken in respect of a particular person.
The question for consideration, therefore, is whether a person belonging to the staff of a High Court is within the scope of the phrase (Ca person serving under the Government of India or the Government of a State in a civil capacity".
The learned Judges of the High Court were of the opinion that article 320(3) can have no application to the present case.
In their view the provisions of article 320(3) would be inconsistent with the power vested in the Chief Justice of a High Court under article 229, as regards the appointment of officers and ser vants of a High Court and hence also of dismissal or removal and as regards the framing of rules prescribing conditions of service of such officers or servants.
They also point out that the proviso to article 229(1) indicates the requirement that the State Public Service Commission should be consulted only in respect of the specific cases of future appointments and that too if the Governor of the State so requires by rule.
They take this and the fact that under the Constitution the provisions relating to High Court staff are taken out of Part XIV relating to the services, as imply 170 1348 ing, that in the exercise of the powers vested in the Chief Justice under article 229, consultation with the State Public Service Commission in respect of any other matter must be taken to have been excluded.
This reasoning is not without force.
Undoubtedly there is much to be said for the view that article 320(3) taken as a whole is inconsistent with article 229.
But it is possible to treat the requirement of prior consultation under article 320(3) (c) which relates to disciplinary action against individual Government employees and which is in the nature of an important constitutional safeguard for individual government employees as standing on a somewhat different footing from that under article 320(3) (a) or (b), which relate to general matters relating to recruitments, appointments, etc.
Prior consultation in respect of individual cases may not be considered necessarily inconsistent with the actual exercise of the overriding power of the Chief Justice in such cases.
While, therefore, recognising the force of the view taken by the High Court, it appears desirable to consider the requirement under article 320(3)(c) taken by itself with reference to the actual terms thereof, in view of the importance of this provision as a constitutional safeguard in cases to which it applies.
A scrutiny of the provisions in Chapter I of Part XIV of the Constitution relating to the services shows that the various articles in this Chapter designate the services to which the articles relate by a variety of terminology.
Under article 309, the appropriate Legislature is vested with the power to regulate recruitment and conditions of service "of persons appointed to public services and posts in connection with the affairs of the Union or of any State".
Under article 310 "every person who is a member of a civil service of the Union or holds any civil, post under a State" holds office during the pleasure of the President or, as the case may be, of the Governor or of the Rajpramukh of the State.
Under article 311 the two constitutional safeguards, viz., (1) of not being liable to be dismissed or removed or reduced in rank until he has been given a reasonable opportunity 1349 of showing cause against the action proposed to be taken in regard to him, and (2) of not being liable to be dismissed or removed by ail authority subordinate to that by which he was appointed, are available to "a person who is a member of a civil service of the Union or of a civil service of a State, or holds a civil post under the Union or a State".
Under article 320(3)(c) however, the requirement of con sultation with the appropriate Public Service Commission on disciplinary matters is available to "a person serving under the Government of India or the Government of a State in a civil capacity".
A close scrutiny of the terminology so used shows a marked departure in the language of article 320 (3) (c) from that in articles 310 and 311.
Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 3lO and 311.
The salaries of these persons are paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State.
The item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legislature under article 203(1).
They must, therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State".
But can it be said that members of the High Court staff are "persons serving under the Government of a State in a civil capacity" which is the phrase used in article 320(3) (c).
The use of different terminology in the various articles was not likely to have been accidental.
It is to be noticed that even article 320 in its various clauses uses different phrases.
Article 320(1) refers to "appoint 1350 ments to the services of the Union and the services of the State" and the proviso to article 320(3) refers to "services and posts in connection with the affairs of the Union and to services and posts in connection with the affairs of the State".
It appears, therefore, not unlikely that in using somewhat different phraseology, the intention was to demarcate the staff of the High Courts from the other civil services of the Union or the State.
The phrase "persons serving under the Government of India or the Government of a State" seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh.
The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the con ditions of services.
Articles 53, 77, 154 and 166 of the Constitution show that while the executive power of the Union or the State is vested, respectively, in the President or the Governor and that executive action is to be taken in their respective names, such action is the action of the Government of India or the Government of a State.
But the administrative action of the Chief Justice is outside the scope of these articles.
It appears therefore that in using the phrase "Government of India and Government of a State" in article 320(3) (c), the Constitution had in view the above mentioned demarcation.
A close comparison of the terminology used in the corresponding provisions of the Government of India Act of 1935 also seems to confirm this demarcation.
Section 290 (1) of the said Act refers to "every person who is a member of a civil service of the Crown in India or holds any civil post under the Crown in India" while section 266(3)(c) relates to "a person serving His Majesty in a civil capacity in India".
A perusal of the main paragraph of sub section (3) of section 266 clearly shows that it has reference to three cate 1351 gories of services (1) Secretary of States services, (2) Federal services under the Governor General, and (3) Provincial Services under the Governor.
In the context of this section, the comprehensive phrase "serving His Majesty" seems to have been used as comprising only the above three services and should be exclusive of the staff of the High Court.
The fact that different phrases have been used in the relevant sections of the Government of India Act and the Constitution,,, relating to the constitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the High Court from other services, and to place the matter beyond any doubt as regards the non applicability thereto of this constitutional protection.
It may be noticed that while the constitutional safeguards under article 311 are available to every person in the civil service, the safeguard in article 320(3)(c) is one capable of being taken away by regulations to be made by the President or Governor.
The Constitution itself appears, therefore, to have classed this safeguard on a different footing.
This may well have been intended not to apply to the High Courts.
Therefore both on the ground that article 320(3)(c) would be contrary to the implication of article 229 and on the ground that the language thereof is not applicable to the High Court staff, we are of the opinion that for the dismissal of the appellant by the Chief Justice, prior consultation with the Public Service Commission was not necessary.
We accordingly hold that the appellant was not entitled to the protection under article 320(3)(c).
It follows that none of the three contentions raised on behalf of the appellant, i.e., (1) as to the power of the Chief Justice to dismiss him, (2) as to his competence to delegate the enquiry to Mr. Justice Das Gupta, and (3) as to his obligation to consult the State Public Service Commission, have been substantiated.
This application must accordingly fail on the merits.
This would be enough to dispose of the case against the appellant.
The learned Judges of the High Court have also dealt at some length with the question as 1352 to the maintainability of an application for a writ in a case of this kind and of the availability of any remedy by way of a writ against the action of the Chief Justice, whether administrative or judicial.
Arguments in this behalf have also been strongly urged before us by the learned Advocate General of West Bengal.
In the view, however, that we have taken as to the contentions raised before us regarding the validity of the order of dismissal, we do not feel called upon to enter into the discussion relating to the availability of the writ.
We express no opinion on the questions so raised.
We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under article 226 of the Constitution in an appropriate case.
That is a question on which we express no opinion one way or the other in this case.
In the result the appeal must be dismissed with costs.
Along with this appeal, the appellant filed an application to this Court for leave under article 136 to appeal against the orders dated the 3rd September, 1951, and 16th September, 1952, dismissing him from service and declining to review it.
In view of our judgment just delivered, that application must also be rejected.

summary/full:
The appellant was appointed in March 1948 by the Chief Justice of the Calcutta High Court as Registrar and Accountant General of the High Court on its original side and confirmed therein in November 1948.
He was dismissed from that post with effect from 1st September 1951 by the Chief Justice by his order dated 3rd September 1951.
There were various charges against the appellant and Mr. Justice Das Gupta was deputed by the Chief Justice to make an enquiry and submit a report.
Mr. Justice Das Gupta made a full enquiry and submitted a report in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of other charges.
His conclusion was that the appellant must be held guilty of misconduct and dishonest conduct and that he was unfit to hold the office of Registrar of the Original Side of the Calcutta High Court.
The Chief Justice issued notice to the appellant intimating that he agreed with the report and asked him to show cause why he should not be dismissed from his post.
After be was given an opportunity to show cause, the appellant was dismissed by an order of the Chief Justice.
The appellant 's petition to the Governor for the cancellation of the above order was dismissed.
Subsequently his application for review to the Chief Justice of the prior order of dismissal and a writ petition under article 226 of the Constitution filed in the High Court in respect of his dismissal were also dismissed one after the other.
The appellant obtained leave to appeal to the Supreme Court.
The three main points for consideration by the Supreme Court were: 1.
Whether the Chief Justice of the High Court had no power to dismiss the appellant; 2.
Even if the Chief Justice had such power whether be could not delegate the enquiry into the charges to another Judge but should have made the enquiry himself; and 168 1332 3.
Whether the order of dismissal by the Chief Justice could have been passed without previous consultation with the Public Services Commission as provided by article 320 of the Constitution.
Held (1) that the Chief Justice was competent to dismiss the appellant because both by virtue of the provisions of clause 8 of the Letters Patent of the Calcutta High Court read with clause 4 of the same as well as articles 229(1), 313 and 367(1) of the Constitution read with section 16 of the General Clauses Act, the power of appointment includes the power of dismissal; (2) the objection to the validity of dismissal on the ground that the delegation of enquiry amounted to a delegation of power is without substance because the exercise of power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power and it is well settled that a statutory functionary exercising such a power cannot be said to have delegated his function merely because he has deputed a responsible and competent official to enquire and report; and (3) it was not necessary to have the previous consultation with the Public Service Commission for the dismissal of the appellant by the Chief Justice because article 320(3) of the Constitution taken as a whole is inconsistent with article 229 of the Constitution and also because the language thereof is not applicable to the High Court Staff.
North West Frontier Province vs Suraj Narain Anand ([1948] L.R. 75 I.A. 343), Barnard vs National Dock Labour Board, ([1953] 2 Q.B. 18, 40), Board of Education vs Bice ([1911] A.C. 179), and Local Government Board vs Arlidge ([1915] A.C. 120), referred to.


judgement:
iminal Appeal Nos.
216 218 of 1976.
Appeals by Special Leave from the Judgments and Orders dated the 12 2 1975, 17 2 1975 and 8 7 1975 in Crl.
Revision Petitions Nos. 383, 294/74 and Crl.
Petition No. 570/75 respectively and CRIMINAL APPEAL Nos.
204/76, 32/78 AND 307/77 Appeals by Special Leave from the Judgments and Order dated the 15 7 1975, 12/13 11 1975 and 18 11 1975 in Crl.
Appln.
No. 678/75, Crl.
Appeal No. 311/74 and Crl.
A. No. 325/74 respectively and 823 CRIMINAL APPEAL Nos.
278/76, 408 410/77, 429, 372/77, 33 36/78.
Appeals by Special Leave from the Judgments and Order dated the 19 4 1976, 24 12 76, 7 12 76, 17 1 77, 30 11 76, 22 11 76, 19 5 76, 8 2 77 in Crl.
Revision No. 53/75, 294/74, 258/76, 1707/ 76, 86/76, 212/76, 82/75; 231/76 and 1603/76 & 239/76 respectively.
section V. Gupte, Attorney General of India (In C.A. 216), K. R. Nambiar for the Appellant in C.As. 216 and 217/76.
N. Sudhakaran for Appellant in Crl.
A. 218/76.
V. section Desai, (in CA. 204), H. R. Khanna and M. N. Shroff for the Appellant in Crl.
A. 204/76, 307/77 and 32/78.
section V. Gupte, Attorney General of India (In CA. 278), B. P. Maheshwari, N. K. Jain, Suresh Sethi and Randhir Jain for the Appellant in Crl.
A.278/76, 408 410, 429, 372 of 1977 and 33 36 of 1978.
D.Mukherjee and section K. Sabharwal for Respondent in Crl.
A. 34/78.
A.S. Nambiar for Respondent in Crl.
A. 216/76.
M. C. Bhandare, B. P. Singh and A. K. Srivastava for Respondent No. 1 in Crl.
A No., 278/76.
Vepa Sarathy and P. K. Pillai fort Respondent No. 1 in Crl.
A.35/ 78.
Veena Devi Khanna and V. N. Ganpule for Respondent No. 1 in Crl.
A. No. 36/78.
D. P. Mukherjee for Intervener in Cr.
A. No. 278.
Ganatra (V. B.), 1.
N. Shroff and H. section Parihar, for the Intervener in Crl.
A. No. 204 and R. 1 in Crl.
A. No. 307.
The Judgment of the Court was delivered by UNTWALIA J.
.
In these appeals by special leave the common and important question of law which falls for our determination is whether the non compliance with the requirement of Rule 22 of the Prevention of Food Adulteration Rules, 1955 hereinafter called the Rules, framed under The hereinafter to be referred to as the Act, vitiates the trial or the conviction recorded under section 16(1)(a)(i) of the Act.
In Rajal Das Guru Nanal Pamanant vs The States of Maharashtra(1) the conviction of the appellant was set aside on the ground : "The Public Analyst did not have the quantities mentioned in the Rules for analysis,.
The appellant rightly contends that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice.
The quantities mentioned are required for correct analysis.
Shortage in quantity for analysis is not permitted by the Statute.
" This larger Bench was constituted for examining the correctness of the above view.
(1) [1975] 2S.C.R.886 =A.I.R. 1975 S.C. 189.
824 We shall, at the outset, notice the scheme of the Act with reference to the relevant provisions of the Act and the Rules.
The Act was very substantially amended by Act 34 of 1976.
We will however, for the purpose of these appeals be referring to die pro.visions of the Act as they stood before the said amendment.
When an article of food shall be deemed to be adulterated has been mentioned and defined in section 2 (i) of the Act.
It is not seriously in dispute in any of these appeals that the articles of food sold to the Food Inspectors by the dealers were found to be adulterated within the meaning of one or the other sub clause of clause (i) of section 2 of the Act.
Of course, the type and extent of adulteration did vary.
In some cases it was of a serious nature in others it was of a technical nature and in some it was as a result of misunderstanding as to nature of the article sold, as for example, whether it was Vanaspati or Ghee.
As usual, according to clause (xii) the word "prescribed" in the Act means prescribed by rules made under the Act.
Clause (xiv) defines the "sample" to mean ."a sample of any article of food taken under the provisions of this Act or of any rules made thereunder.
" A Central Committee for food standards has been constituted by the Central Government in accordance with section 3 to advise on matters arising out of the administration of the Act and to carry out the other functions assigned to it.
Section 7 provides that no person shall manufacture for sale, store, sell or distribute any adulterated food.
Public Analysts are appointed under section 8.
Food Inspec tors appointed under section 9 have been conferred the powers enumerated in section 10.
A Food Inspector has got power to take a sample of any article of food from any person selling such article under section 10(1) (a) (i) and to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken as provided for in clause (b).
The procedure to be followed by Food.
Inspectors is provided for in section 11.
Under sub section (1), Food Inspector taking a sample of food for analysis has to give notice.
to the person from whom he has taken the sample, separate the sample then and there into three parts, mark and seal or fasten up each part in such a manner as its nature permits, deliver one of the parts to the person from whom the sample has been taken, send another part for analysis to the Public Analyst and retain the third part for production in any legal proceedings or for analysis by the Director of the Central Food Laboratory.
Sub section (2) says : "If the person from whom the sample has been taken.
declines to accept one of the parts, the food inspector shall send intimation to the public analyst of such refusal and thereupon the public analyst receiving a sample for analysis shall divide it into two parts and shall seal or fasten up one of those parts and shall cause it, either upon receipt of the sample or when he delivers his report, to be delivered to the food inspector who shall retain it for production in case legal proceedings are taken.
" Now sub section (3) should also be to read as a whole.
825 "When a sample of any article of food is taken under sub section (1) or sub section (2) of section 10, the food inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.
" Any purchaser of any article of food other than a food inspector can also get the food purchased by him analysed in accordance with section 12.
Section 13 deals with the report of the Public Analyst and makes it, in certain cases, subject to the over riding effect of the report of the Director of the Central Food Laboratory.
Sub section (5) of section 13 says that any document purporting to be a report signed by a public analyst, unless it has been superseded under subsection (3) by a certificate of the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under the Act.
It shall be final and conclusive evidence of the facts, stated therein.
Of course, if necessary, the Public Analyst can be called as a witness, in accordance with the Code of Criminal Procedure, to depose about certain facts in relation to his report either at the instance of the prosecution or the accused.
Even the Court may summon him as its witness if the justice of the case so requires.
And until and unless the report of the Public Analyst is demolished, shaken or becomes doubtful, it is final and conclusive evidence of the facts stated therein.
A person can be convicted under section 16 (1 ) (a) (i) merely on the basis of the report of the Public Analyst.
His report, therefore, has got a great sanctity for protecting the general public and their health against use and consumption of adulterated food.
On the other hand, it has great significance and importance for the protection of a citizen as he can be convicted under the Act only on its basis.
Amongst the Rules, the relevant ones for our purpose are Rules 14 to 22A contained in Chapter V the heading of which is "Sealing, Fastening and Despatch of Samples.
" The manner of sending sample for analysis is provided in Rule 14 and the method of labelling and addressing the bottles or containers is to be found in Rule 15.
Rule 16 deals with the manner of packing and sealing the samples.
How a container of a sample is to be sent to the Public Analyst is mentioned in Rule 17.
The precaution of sending the memorandum and impression of seal is provided for in Rule 18.
Rules 19, 20 and 21 deal with preservatives to be added to certain types, of samples.
The important Rule 22 with which we are mainly concerned in these appeals specifies the quantity of sample to be sent to the Public Analyst and says "The quantity of sample of food to be sent to the Public Analyst or Director for analysis shall be as specified below.
" Items 1 to 22 _gives a list of various articles of food.
The residuary item is 23 which includes all foods not specified in items 1 to 22.
In the last column of this list as against the quantity to be supplied,the heading is "Approximate quantity to be supplied.
" The first question which was mooted before us was whether Rule of the Rules is directory or mandatory.
Attention of the Bench deciding Pamanani 's case (supra) was not called to this aspect of the 826 matter.
It seems to have been assumed, however, that the Rule is mandatory.
Rules of interpretation for determining whether a particular provision is directory or mandatory are well known.
Even in regard to Rule 22, many High Courts of India had taken the view that the Rule was directory or recommendatory as the use of the word approximate ' in one of the columns of the Rule indicates.
The object of the Rule, according to the said decisions, was to secure evidence as to whether the article of food sold was adulterated or not.
If the quantity sent by the Food Inspector to the Public Analyst was sufficient for analysis and caused no prejudice to the accused, then the mere fact of his sending a lesser quantity than that prescribed could not vitiate the evidentiary value of the report of the Public Analyst of the conviction based thereupon; vide State of Bombay vs Ramanlal Jamnadas Gandhi(1); Nagar Swatha Adhikari, Nagar Mahapalika, Agra vs Ant Ram(2) Public Prosecutor vs Basheer Sahib(3); Public Prosecutor, Andhra Pradesh vs Pasara Rama Rao(4); Public Prosecutor vs Ediga Venkata Swami(5); Food Inspector, Quilon vs Koyakutty(6) and Food Inspector, Calicut vs T. Karunakaran & others.
(7 ) No decision of any High Court taking a contrary view was brought to our notice.
In the Bombay decision mentioned above, it was also observed, and rightly, that, whether the Rule is recommendatory or mandatory, it should be observed by the Food Inspectors concerned.
We may add that the decisions of the Courts holding that the Rule is merely directory and if the quantity sent by the Food Inspector is sufficient for the purpose of analysis, the report of the Public Analyst should not be thrown out merely on the ground of the breach of the Rule, are not meant to give a charter or a licence to the Food Inspectors for violating ' the Rule.
They must remember that even directory Rules are meant to be observed and substantially complied with.
A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities.
He should, therefore, always be cautious in complying with the Rules as far as possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so.
In the eleventh edition of the well known treatise, Maxwell on Interpretation of Statutes.
are to be found at page 362 onwards certain guidelines laid down for determining whether a particular Statute or Statutory Rule is imperative or directory.
"Where, indeed, the whole aim and object of the legislature would be plainly deflated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention"; that is to say, such a requirement would be imperative. ' At page 364 it is stated : "The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." (1) I.L.R. [1960] Bombay, 404.
(2) A.I.R. 1966 Allahabad, 32.
(3) A.I.R. 1966 Madras 325.
(4) A.I.R. 1967 Andhra Pradesh 49.
(5) A.I.R. 1967 Andhra Pradesh, 131.
(6) 1972 Kerala Law Times, 464.
(7) 1973 Kerala Law Times, 595.
827 A few principles may now be extracted with advantage from the seventh edition of Craies on Statute Law Page 62: When a statute is passed for the purpose of enabling something to be done, and prescribed the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absoute; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory".
Page 262 "It is the duty of courts of justice to try to get at the real intention of the, legislature by carefully attending to the whole scope of the statute to be construed. .
that in each case you must look to the subject matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.
" It is not necessary to refer to the numerous decided cases on this point.
Applying the statutory principles extracted above, it would be noticed that the use of the word 'shall ' in sub section (3) of section 11 and in Rule 22 would, on its face, indicate that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules.
But it is well known that the mere use of the word 'shall ' does not invariably lead to this result.
The whole purpose and the context of the provision has to be kept in view for deciding the issue.
The object of the Act is to obtain the conviction of a person dealing in adulterated food.
It was brought to our notice by counsel on either side that the quantities of various samples of food to be sent to the Public Analyst as fixed from time to time have varied.
As observed by this Court in the case of State of Uttar Pradesh vs Kartar Singh(1) the standards of food are fixed after consultation with the Committee constituted under section 3 of the Act.
The quan tities of samples are also fixed from time to.
time by the Government presumably in consultation with the Committee and on the basis of the Experts ' opinions.
By and large, it appears,, as was stated before us by the.
learned Attorney general with reference to the various tests and the quantities required therefor from the Manual of Methods of Tests and Analysis for food, that generally the quantities fixed are more than double the quantity required for analysis by the Public Analyst.
As, for example, the total quantity required for the various tests of Ghee is approximately 55 gms.
But the quantity prescribed in Rule 22 is 150 gms.
The purpose of prescribing more than double the quantity required for analysis.
is that a Food Inspector while taking a sample of food for analysis in accordance with section 11 is not aware at the threshold whether the person from whom the sample has been taken would decline to accept one of the three parts.
It is to (1) [1964]6 S.C.R. 679. 828 guard against such an eventuality that the quantity prescribed is more than double because if the person declines to accept one part of the sample, then, as mentioned in sub section (2), the Food Inspector has to send an intimation to the Public Analyst of such refusal and thereupon the letter has to divide the 1/3rd part sent to him into two: parts.
The half of the one third is retained for further tests, if necessary, or for production in case legal proceedings are taken.
It would thus be seen that the whole object of section 11 and Rule 22 is to find out by ,a correct anaysis, subject to further.
verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not.
If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value.
If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not.
if he finds it insufficient, there is an end of the matter.
If, however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise,, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail.
In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious, that the case may end in acquittal.
But if the object is not frustrated and is, squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance.
To quote the words of Sir George Rankin, C. J. from the decision of the Calcutta High Court in Chandra Nath Bagchi vs Nabadwip Chandra Dutt and others(1) at page 478, it would be merely piling unreason upon technicality.
" In our considered judgment the Rule is directory and not mandatory.
But we must hasten to reiterate what we have said above that, even so, Food Inspectors should take care to see that they comply with the Rule as far as possible.
We may also advert to one more aspect of the wording of the Rule to find out whether it is directory or mandatory and that is the use of the word 'approximate ' in the second column of the list.
The use of this term does indicate the directory nature 'of the Rule but does not necessarily militate against the view that the Rule is mandatory.
The expression 'approximate quantity ' is meant to convey that the quantity to be supplied must be in the close vicinity of the quantity specified So long it is so, there is no infraction of the Rule at all.
But the question of non compliance with the Rule comes in when the quantity supplied is not in close vicinity of the quantity specified and appreciably below it.
Even so, if the quantity supplied is sufficient and enables the Public Analyst to do his duty of making a correct analysis,, it should be inferred that the Rule has been substantially complied with, as the purpose of the Rule has been achieved.
(1)A.I.R. 1931 Calcutta 476.
829 In Pamanani 's case (supra) the Court seems to have, been Over whelmed by a sense of injustice when the High Court, which had acquitted the manufacturer, convicted the appellant, a grocer although facts of the case did indicate that the real culprit was the manufacturer.
Technically, the grocer could not succeed in getting protection under section 19 (2) (a) of the Act.
It is in this background, we are inclined.
to think that the Court 's sense of justice weighed heavily in favour of the grocer and prompted it to say "that non compliance with the quantity to be supplied caused 'not only infraction of the provisions but also injustices".
How did it cause injustice? There is not elaboration in the judgment.
There is no indication of the basis for saying "The quantities mentioned are required for correct analysis.
" A lesser quantity also could enable the Analyst to make a correct analysis.
That being so, the inference, from the two premises stated above, that "Shortage in quantity for analysis is not permitted by the statute", if we may say so, with great respect, is not a correct statement of the law.
We may, in passing, note that the Rules have now been amended and Rule 22B has been added in 1977 which reads as follows "22B Quantity of sample sent to be considered as sufficient Notwithstanding anything contained in Rule 22, the quantity of sample sent for analysis shall be considered as sufficient unless the public analyst or the Director reports to the contrary.
" In our opinion, the new Rule has been added for the purpose of clarifying the law and not by way of amending it.
The law, as we have enunciated it, was so even without Rule 22B and it is stated here, to place it beyond any debate or doubt.
We may usefully refer to a recent decision dated July 6, 1976 of the Supreme Court of the United States of America in the cases of W. T. Stone, Warden, Petitioner, 74 1055 vs Lloyad Charles Powell and Charles L. Wolff, Jr., Warden, Petitioner, 72 1222 vs David L. Rice wherein the majority of the Court made a conspicuous departure from its previous decision of about half a century in the application of the exclusionary Rule of evidence.
The prosecution relied upon evidence obtained by searches and seizures Which were said to be unconstitutional and unlawful.
The issue was of considerable importance in the administration of criminal justice.
Mr. Justice Powell in his leading majority judgment dissenting from the earlier view said "Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendmen t exclusionary rule, that this view is unjustified.
We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a State prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 830 A very wholesome principle was adverted to by the learned Judge when he said : "Application of the rule thus deflects the truth finding process and often frees the guilty.
The disparity in partiCular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.
Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.
" Chief Justice Burger in his concurring opinion said "To vindicate the continued existence of this judge made rule, it is incumbent upon those who seek its retention and surely its extension to demonstrate that it serves its declared deterrent purpose and to show that the results outweigh the rule 's heavy costs to rational enforcement of the criminal law.
See, e.g. Killough vs United States, ; (1962).The burden rightly rests upon those, who ask society to ignore trustworthy evidence of guilt, at the expense of setting obviously guilty criminals free to ply their trade.
" We may now briefly deal with some of the submissions made on behalf of the respondents in support of the decision of this Court in Pamanani 's case.
It was argued with reference to Mothods in food Analysis, second edition by Maynard A. Joslyn, that the sample must be a representative sample.
It is with that view that the quantity was prescribed in Rule 22 and should not be permitted to be tampered with in any manner.
We are not impressed by this argument at all.
A representative sample has got a different connotation, meaning and purpose in commercial transactions.
If for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price.
Taking sample from one storage will not be sufficient.
In our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food.
If the food sold to the Inspector is proved to be adulterated, it is.
immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person.
A person who. stores or sells such sample is liable to be punished under section 16 (1) (a) (i) of the Act.
Reliance was placed upon the case of Dwerryhouse vs United Co operative Dairies, Ltd. (1) The question for consideration in that case was the scope and ambit of certain sections of the Food and Drugs Act, 1955.
The Justice had come to.
the conclusion on the facts of the (1) [1962] 1 All England Law Reports, 936.
831 case that no sample under the Act had been procured and decided that section 108 did not prevent their hearing the, case and that the supplier was entitled.
to the defence laid down by section 94(4) of the Act.
On a case stated by Justices for the county of Chester, Lord Parker, C.J. said at page 941 "I think that they were wrong in holding that the respondent was entitled to the statutory defence laid down in section 94(4) of the Act.
That defence is only open in respect of a sample of milk taken.
I cannot think that one can give a sample of milk any other meaning than a sample of milk procured under the Act, which are the words used in section 108 (1) (a) (i).
Indeed, sub section
(4) of section 94 appears in a section which is dealing particularly with the sampling of milk, and subsequent proceedings, and I am quite satisfied, therefore, that if, as I think, no sample was procured under the Act, sub section
(4) does not come into operation.
" On a consideration of the various relevant provisions of the English Statute for the application of section 1108(1) and section 94(4) it was found necessary that the sample should have been procured under the said Act.
Since it was not so, both the said provisions were held to be inapplicable.
In the context of our Statute the decision is of no help to the respnodents.
Reliance was also placed upon the case of Skeate vs Moore(1).
In that case the report of the Public Analyst showed that the aggregate of meat in the two pies represented a smaller percentage of meat than was required to be contained in one meat pie under the Meat Pie and Sausage Roll Regulations, 1967.
He did not find separately the meat content of each of the two pies sent to him.
Under Regulation 5, a meat content of each pie was necessary to be found out.
The proceeding had to be "in respect of an article of substance sampled.
" They were found to relate to part only of the sample taken.
And in that view of the matter the conviction was quashed.
In our opinion, the Language of the 1955 Act and the Regulations framed thereunder being quite dissimilar to our Statute and the Rules, the decision aforesaid cannot be assessed into service in favour of respondents.
On a careful consideration of the matter, we have come to the conclusion, and we say so with very great respect, that Pamanani 's case on the point at issue before us was not correctly decided.
And this would have necessitated our passing of various consequential orders in these cases.
In some cases High Court refused special leave against orders of acquittal; in others some other grounds of attack on the order of conviction were available but were neither gone into nor decided by the High Court; in some others the High Court following the decision of this Court in Pamanani 's case recorded orders of acquittal.
We also (1) [1971] 3 All England Law Reports, 1306.
832 found that, in some cases, the adulteration was of a minor and technical character, although in some it was of, rather, serious nature too.
In some cases, decisions were given on the footing that chillies powder is condiment and not spice a matter which we are not deciding.
But taking the totality of the facts and circumstances of each case and specially the fact that Pamanani 's case has held the field for about three years, by now, we did not feel that justice required that we should interfere with the orders of acquittal in all these cases and send some cases back to the High Court while deciding others ourselves by recording orders of conviction.
Rule 22B clarifying the law has also been introduced as late as December, 1977 although Pamanani 's case was decided in December, 1974.
We were informed at the Bar, and so far we are aware, rightly 'too, that for non compliance with the requirements of Rule 22, many cases in different States had ended in acquittal.
Decision in many of them became final and only a few could be brought to this Court.
Each one of the Food Inspectors concerned had jailed in discharging his duty strictly in accordance with the requirements, of the law, and, in such a situation, after great harassment, long delay, and expenses which the respondents bad to incur, they should not be punished by this Court.
In the three Kerala cases Mr. section V. Gupte appearing with Mr. K. R. Nambiar and Mr. Sudhakaran stated before us that the State was interested more in the correct enunciation of the law than in seeing that the respondents in these appeals are convicted.
They were not anxious to prosecute these matters to obtain ultimate conviction of the respondents.
A large number of the other appeals are by the Municipal Corporation of Delhi for whom the Attorney General appeared assisted by Mr. B. P. Maheshwari.
Although a categorical stand was not taken on behalf of the appellants in these appeals as the one taken in the Kerala cases, eventually, the learned Attorney General did net seriously object to the course indicated by us.
In the few Bombay appeals M/s. V. section Desai and M. N. Shroff showed their anxiety for obtaining ultimate convictions of the offenders, but we do not find sufficient reason 'or passing a different kind of order in the Bombay appeals.
In similar situations in the case of The State of Bihar vs Hiralal Kejriwal and Another(") this Court refused to exercise its discretionary jurisdiction under Article 136 of the Constitution and did not order the continuance of the criminal proceeding any further.
In Food Inspector, Calicut Cororation vs Cherukattil Gopalan and anr.(2) this Court said at page 730 : "But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the aquittal of the respondents, we merely set aside the order and judgment of the High Court.
But we may make it clear that apart (1) [1960] 1 S.C.R. 726.
(2) 833 from holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour.
" For the reasons stated above, we dispose of these appeals by merely laying down the correct proposition of law but do not make any con sequential orders setting aside the acquittal of any of the respondents or sending back the cases to the Courts below or convicting any of them by an order of this Court.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
Rule 22 of the Prevention of Food Adulteration Rules, 1955 framed under the specifies the quantity of sample of food to lye sent to the Public Analyst or Directorate for analysis as the case may be.
Items 1 to 22 gives a list of various articles of food and the residuary item 23 includes all foods not specified in items 1 to 22.
In the last column of the list, as against the quantity to be supplied, the heading is "Approximate quantity to be supplied".
While considering the said provisions, in Rajal Day Guru Namal Pamanani vs The State of Maharashtra ; 1975 SC 189 conviction of the appellant was set aside by this Court on the ground : "The Public Analyst did not have the quantities mentioned in the Rules for analysis.
The appellant rightly contends that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice.
The quantities mentioned are required for correct analysis.
Shortage in quantity for analysis is not permitted by the Statute.
" Since under Article 141 of the Constitution, the above decision of the Supreme Court is binding on all the High Courts, following the above view in some cases the High Court refused special leave against the order of acquittal; in others, some other grounds Of attack on the order of conviction were available but were neither gone into nor decided by the High Court; in some others the High Court recorded orders of acquittal; in some cases, the adulteration was of a minor and technical character, although in some it was of, rather, serious nature too and in some cases, decisions were given on the footing that chillies powder is condiment and not spice.
Hence, the appeals by special leave.
The appellants contended that the view in Pamanani 's case was not correct and needed further examination.
Disposing of the appeals by laying down.
the correct proposition of the law, the Court HELD : (1) The report of the Analyst under section 13 of the has got a great sanctity for protecting the general public and their health against use and consumption of adulterated food.
On the other hand, it has great significance and importance for the protection of a citizen, as he can be convicted under the Act only on its basis, under section 16(1) 821 (a)(ii) of the Act, because unless and until the report of the Public Analyst is demolished shaken or becomes doubtful, it is final and conclusive evidence of the facts stated therein, under section 13 (5) of the Act.
[825 D E] (2) The use of the word 'shall ' in sub section
(3) of section 11 and in Rule 22 would on its face, indicate that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed rules.
The mere use of the word 'shall ' does not invariably lead to this result.
The whole purpose and the context of the provisions has to be kept in view for deciding the issue.
[827 D E] (3) The purpose of prescribing more than double the quantity required for analysis is that a Food Inspector while taking a sample of food for analysis in accordance with section 11 of the .
is not aware at the threshold whether the person from whom the sample has been taken would decline to accept one of the three parts.
It is to guard against such an eventuality that the quantity prescribed is more than double because if the person declines to accept one part of the sample then, as mentioned in sub section
(2), the Food Inspector has to send an intimation to the Public Analyst of such refusal and thereupon the latter has to divide 1/3rd part sent to him into two parts.
The half of the one third is retained for further tests, if necessary, or for production in case legal proceedings are taken.
[827 G H, 828 A B] State of Uttar Pradesh vs Kartar Singh ; referred to.
(4) The object of the Act is to obtain the conviction of a person dealing in adulterated food.
The whole object of section 11 and Rule 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not.
If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the rule will not result in the nullification of the report and obliterate its evi dentiary value.
If the quantity sent is less, it is for the public Analyst to see whether it is sufficient for his analysis or not.
If he finds it insufficient, there is an end of the matter.
If, however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail.
in other words, if the object is frustrated by the sending of the short quantity, by the Food Inspector to the Public Analyst, the case will end in acquittal.
But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health by acquitting offenders on technical grounds which have no substance.
[827 E, 828 B F] Chandra Nath Bagchi vs Nabadwip Chandra Dutt and others A.I.R. 1931 Calcutta 476 quoted with approval.
(5) The object of rule 22 is to secure evidence as to whether the article of food sold is adulterated or not.
That being so, even directory Rules are meant to be observed and substantially complied with.
A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities.
He should, therefore, always be cautious in complying with the Rules as far as Possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so.
[823 A B D E] State of Bombay vs Ramanlal Jamnadas Gandhi I.L.R. [1960] Bombay, 404, Nagar Swatha Adhikari, Nagar Mahapalika Aqra vs Ant Ram A.I.R. 1906 Allahabad, 32 Public Prosecutor vs Basheer Sahib A.I.R. 1966 Madras 325 Public Prosecutor vs Ediga Venkata Swami A.I.R. 1967 Andhra Pradesh 131 Andhra Pradesh vs Pusala Rama Ram A.I.R. 1967 Andhra Pradesh 49, FoodInspector, Quilon vs Kovakutty (1972) Kerala Law Times.
464 and Food Inspector, Calicut vs T. Karunakaran Others (1973) Kerala Law Times, 595 approved.
(6) Rule 22 is directory and not mandatory, as it seems to have been assumed by this Court in Pamanani 's case.
The use of the word 'approximate ' does in 822 dicate the directory nature of the Rule but does not necessarily militate against the view that the Rule is mandatory.
[826 A, 827 A B] (7) The expression 'approximate quantity ' is meant to convey that the quantity to be supplied must be in the close vicinity of the quantity specified.
So long it is so, there is no infraction of the Rule at all.
But the question of non compliance with the Rule comes in when the quantity supplied is not in close vicinity of the quantity specified and is appreciably below it.
Even so, if the quantity supplied is sufficient and enables the Public Analyst to do his duty of making a correct analysis, it should be inferred that the Rule has been substantially complied with, as the purpose of the Rule has been achieved.
[828 F H] (8) In Pamanani 's case, the Court seems to have been overwhelmed by a sense of injustice when the High Court, which had acquitted the manufacturer, convicted the appellant, a grocer, although facts of the case did indicate that the real culprit was the manufacturer.
Technically, the grocer could not succeed in getting protection under section 19(2)(a) of the Act.
It is in this background, that the Court 's sense of justice weighed heavily in favour of the grocer and promoted it to say "that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice.
[829 A B] (9) The new Rule 22B added in 1977 to the Prevention of Food Adulteration Rules, 1955 is for the purpose of clarifying the law and not by way of amending it.
The law was so, even without any amendment.
Rule 22B places it beyond any debate of doubt.
[829 E] W. T. Stone, Warden, Petitioner 74 1055 vs Lloyd Charles Powell and Charles L. Wolff.
Jr. Warden Petitioner, 72 1227 vs David L. Rice decided on July 6, 1976 quoted with approval.
A representative sample has got a different connotation, meaning and purpose in commercial transaction.
In our statute, the ingredient of the offence is manufacturing for sale, storing, selling or distributing any adulterated food.
If the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person.
A person who stores or sells such sample is liable to be punished under section 16(1)(a)(i) of the Act.
[830 F G] Dwerryhouse vs United Co operative Dairies, Ltd. [1962] 1 All England Law Reports 936 and Skeate vs Moore [1971] 3 All England Law Reports, 1306 distinguished.
Rajal Das Guru Namal Pamanani vs The State of Maharashtra ; overruled.
[ln ,view of Pamanani 's case holding the field for about 3 years, the introduction of the new section 22B and the States ' interest being more in the correct enunciation of the law than in seeing that the respondents in these appeals are convicted, the Court, in larger interest of justice, disposed of the appeals without disturbing or setting aside the orders under appeals or making any consequential orders]