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TMI Blog1960 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... siemship. The Siem once appointed could not be removed from his office except through a referendum of the people according to custom until such custom was changed by legislation passed by the District Council with the concurrence of the Governor. No such legislation had however been passed till the writ petition was made on July 8, 1959. But on account of political differences between the respondent and the then Chief Executive Member an attempt was made after the General Elections of 1957 to harm the respondent. In consequence certain charges were levelled against the respondent and a Durbar was called by the appellant for July 6, 1959, and the respondent was asked to be present at the Durbar to defend himself. It is not clear whether the Durbar was held or Dot, but an order was issued on July 7, 1959, by the appellant in which it was said that the charges against the respondent had been forwarded to him and he had been given an opportunity to show cause on or before July 17, 1959, why he should not be removed from his office and that he had failed to appear before the appellant on July 7 as ordered. Therefore, the respondent was suspended from his office from July 8, 1959, and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct or dereliction of duty. The charge of political animosity against the then Chief Executive Member was denied and attention was drawn to the respondent's conduct in the discharge of his duties which showed that he was unfit to hold the office of Siem; consequently an order was passed on July 7, 1959, suspending him and the order was legal, intra vires and in keeping with custom and usage of the land and it was not necessary to obtain the approval of the District Council to the passing of that order which was in accordance with the terms of appointment of the respondent. Further the Executive Committee, considering all the circumstances of the case, was of the opinion that the matter was of emergency and therefore took action without getting the order approved by the District Council. The High Court did not go into the question whether there was any custom by which the Siem could be removed only by a referendum. It held that after the coming into force of the Constitution, the Khasi States lost all existence as separate entities except in so far as their existence or authority was preserved by the Constitution. It also held that the respondent was appointed to the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf the right to remove the Chief in case of oppression, misconduct or dereliction of duty, though before taking such action the prevalent custom in the particular State regarding the ascertainment of the wishes of the electoral college or the people was followed. The Chiefs were also under the control of the Deputy Commissioner of the district. This was the position upto the 15th of August, 1947, when India became a Dominion. Thereafter the paramountly of the British Government lapsed and it appears that the twenty-five Chiefs established a Federation. Thereafter a new relationship was established between these twenty-five Chiefs and the Government of India by means of an Instrument of Accession which was accepted by the Governor-General of India on August 17, 1948. By this Instrument, the Chiefs individually as well as collectively as members of the Federation acceded to the Dominion of India by which all existing administrative arrangements between the Government of India and the State of Assam on the one hand and the Khasi States on the other were to continue in force until new or modified arrangements were made subject to certain exceptions as to judicial and administrative pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transitional provisions and para. 21 with the amendment of the Schedule. It may be mentioned that the United Khasi and Jaintia Hills District with which we are concerned in this case is to comprise the territories which before the commencement of the Constitution were known as the Khasi States and the Khasi and Jaintia Hills Districts, excluding certain areas within the cantonment and municipality of Shillong. District Councils and Regional Councils are to be constituted under para. 2 and the Governor is given power to make rules for the first constitution of District Councils and Regional Councils in consultation with the existing tribal councils and other representative tribal organisations within the districts or regions concerned and the rules are to provide for the composition of the councils, the delimitation of territorial constituencies, the qualifications for voting at elections and the preparation of electoral rolls, the qualifications for being elected as members of councils, the term of office of the members and any other matter relating to or connected with elections or nominations to such councils, the procedure and conduct of business in the councils, and the appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para. 14 and order a fresh election and in the meantime to assume the administration of the area to himself subject to the previous approval of the Assam legislature. Paragraph 17 deals with the forming of constituencies for the Assam Legislative Assembly. Then we come to para. 19, which deals with transitional provisions and lays down that as soon as possible after the commencement of the Constitution, the Governor shall take steps for the constitution of a District Council for each autonomous district in the State under the Schedule and until a District Council is so constituted for an autonomous district, the administration of such district shall be vested in the Governor. It also provides that no Act of Parliament or of the Assam legislature shall apply to any area unless the Governor by Public notification so directs and the Governor in giving such direction with respect to any Act may direct that the Act shall in its application to the area or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. The Governor is also given power to make regulations for the peace and good government of any area and any regulation so made may r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounted to a nomination of that person for the approval of the Governor to the Siemship of Mylliem; but until the Governor approved of the nomination and appointed the person so nominated to the Siemship he could not hold office as Siem of Alylliem. The position therefore just after the coming into force of the Constitution was that the Governor was charged with the administration of the autonomous districts till the District Councils came into existence and that carried with it the power to appoint officers to carry on the administration. The appointment therefore of the respondent as Siem of Mylliem was made by virtue of the Governor's power under para. 19 and the respondent derived his power as Siem from that appointment and could not claim any power outside that appointment. The Governor of course made it clear that the appointment was subject to confirmation of the District Council when it came into being, for the Governor's powers at the time of the appointment were derived from para. 19 and are transitional only. That is why it was said that the appointment was subject to confirmation by the District Council. Therefore when the ]District Council came into existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to financial matters. The consequence of these orders was that the respondent's term as Siem was to continue as long as he was not removed from that office for any lapse on his part. The position therefore that emerges on a consideration of the three orders of 1951, 1953 and 1955 is that the respondent was holding the office of Siem by virtue of his appointment in the first instance by the Governor and its later confirmation by the District Council on terms which had been communicated to him and was thus no more than an administrative officer appointed by the District Council by virtue of its powers under para. 2 (4) of the Schedule and working under its control. This position apparently continued till 1959 when we come to the incidents which culminated in the order of July 7, 1959. We are not Concerned in this appeal with the merits of the action taken against the respondent; nor are we concerned with the question whether there were sufficient reasons for the Executive Committee to take the action which it did against the respondent. We are only concerned with the power of the Executive Committee of the District Council to take any action at all in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administration of the autonomous districts in the Governor during the transitional period and thereafter in the District Council. The administration could only be carried on by officers like the Siem or Chief and others below him, and it seems to us quite clear, if the administration was to be carried on, as it must, that the Governor in the first instance and the District Councils after they came into existence, would have power by virtue of the administration being vested in them to appoint officers and others to carry on the administration. Further once the power of appointment falls within the power of administration of the district the power of removal of officers and ,,others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para. 19(1)(b) or till the District Council passed laws under para. 3(1)(g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry nature, being inherent in it, the power of removal, for it can hardly be contended that though the appointment might be made, the authority making the appointment would have no power to remove a person once appointed. In this particular case there can be no difficulty whatsoever because when the District Council confirmed the appointment of the respondent it laid down the terms on which the appointment will be held as well' as the terms on which the respondent could be removed from, the office, in which he was being continued. Nor can it be said that the appointment in this case was by the Governor and therefore the Governor could alone remove him, for the notification of March 1951 made it clear that the appointment by the Governor was provisional and was subject to confirmation by the District Council when it came into existence. The District Council in fact confirmed the appointment of the respondent in April 1953 and so in law the appointment of the respondent was by the District Council and therefore it would have the power to remove him. Besides, if, as the High Court thought, the appointment of the respondent was invalid, it would inevitably follow that he had no righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tel Imperial v. Hotel Workers' Union This Court held in that case as under:- It was now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of, employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is urged on the basis of these observations that in any case the respondent could not be suspended. Suspension is of two kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him. The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly DO express contract to that effect in this case. Before we part with this case we should like to point out that a law has now been passed, namely, The United Khasi- Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (No. 11 of 1959), which came into force in October 1959. It deals with the appointment of Chiefs and Headmen as well as their removal and suspension (as a punishment). The word Chief includes a Siem, a Lyngdoh, etc. and the respondent would therefore be a chief within the meaning of this Act and further action may be taken accordingly. We therefore allow the appeal with costs, set aside the order of the High Court and direct that further action be taken in the manner indicated by u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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