T CAJEE Vs. U JORMANIK SIEM ANOTHER

JUDGEMENT

(1.) This appeal, on a certificate granted under Art. 132 (1) of the Constitution by the Assam High Court, raises questions regarding the interpretation of certain provisions of the Sixth Schedule of the Constitution. A writ petition was filed by U. Jormanik Siem (hereinafter called the respondent) in the Assam High Court against the Chief Executive Member of the District Council (hereinafter called the appellant), United Khas and Jaintia Hills District (hereinafter called the District). The case of the respondent was that he was Siem of Mylliem Siemship in the District and was elected as such by the Myntires and the people according to custom in 1951. After the constitution of the District Council for the District, in June 1952, the Siemship was brought under it and the respondent continued to discharge the administrative and judicial functions, for which he was remunerated by a share of the gross income of the Siemship. The Siem once appointed could not be removed from his office except through a referendum of the people according to custom until such custom was changed by legislation passed by the District Council with the concurrence of the Governor. No such legislation had however been passed till the writ petition was made on July 8, 1959. But on account of political differences between the respondent and the then Chief Executive Member an attempt was made after the General Elections of 1957 to harm the respondent. In consequence certain charges were levelled against the respondent and a Durbar was called by the appellant for July 6, 1959, and the respondent was asked to be resent at the Durbar to defend himself. It is not clear whether the Durbar was held or not but an order was issued on July 7, 1959, by the appellant in which it was said that the charges against the respondent had been forwarded to him and he had been given an opportunity to show cause on or before July 17, 1959, why he should not be removed from his office and that he had failed to appear before the appellant on July 7 as ordered. Therefore, the respondent was suspended from his office from July 8, 1959 and was required to make over charge to the acting Siem on the same day. The respondent however filed the writ petition on July 8, 1959 which was admitted the same day and notice was issued to the appellant to show cause why the writ should not be granted. The High Court also passed an order staying the operation of the order of the appellant dated July 7, 1959. The respondent contended that he could not be removed from his office or suspended by the Executive Committee of the District Council and that the order of the appellant suspending him was illegal and ultra vires being against custom and usage relating to that matter. Further the order of the appellant was without jurisdiction as it was passed without the approval of the District Council and there was no emergency justifying the order. The order was also mala fide and was due to political animosity between the respondent and the Executive Committee.

(2.) The petition was opposed on behalf of the appellant, and its main contention was that the Siem was nominated by an electoral college consisting of the representatives of several clans and that the people in general had nothing to do with it and that nomination of the Siem by the electoral college was subject to approval of the Government. In accordance with that custom, the respondent's nomination by the myntri-electors to the Siemship of Mylliem was approved by the Government and he was appointed to the office of Siem subject to confirmation by the District Council when that body came into existence. After the District Council was constituted in 1952, it approved the provisional appointment made by the Government and confirmed it on certain terms mentioned in the letter of April 9, 1953. Latter these terms were modified by the District Council in certain particulars by latter dated August 9, 1955, and the respondent had been working as Siem by virtue of this confirmation by the District Council on the terms conveyed to him in the two letters mentioned above. There was no custom which required a referendum of the people before the Siem of Mylliem could be removed from office. On the other hand, the Siem being appointed by the Government formerly and now by the District Council was liable to removal and or suspension by the appointing authority in case he did not act in accordance with the terms of his appointment and was guilty of oppression, misconduct 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.

(3.) 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 of Siem by the Deputy Commissioner on behalf of the Government with due regard to the nomination made by the Myntri-electors and this appointment was subject to confirmation by the District Council when that body was constituted and that in fact the District Council confirmed the appointment on April 9, 1953, on certain terms which were revised in 1955. It also held that the administration of the district vested in the District Council; but it was of the view that the appointment and succession of Siems were never intended to be its administrative function and therefore, the District Council could only act in this matter by making law with the assent of the Governor and not by passing order in exercise of its administrative functions. Therefore the power to appoint, even if it included the power to dismiss, could be exercised by the District Council only by means of proper legislation. In the result, the High Court allowed the petition and directed that the order of July 7, 1959, should not be given effect to as it was not supported by law. Thereupon the appellant applied for and obtained a certificate from the High Court under Art. 132 of the Constitution; and that is how the matter has come up before us.