State of U. P. Vs. Manbodhan Lal
Srivastava [1957] INSC 75 (20 September 1957)
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA KAPUR, J.L.
SARKAR, A.K.
CITATION: 1957 AIR 912 1958 SCR 533
ACT:
Government servant-Disciplinary
Proceedings-Enquiry Show cause notice under Art. 31l(2) of the
Constitution-Consultation of Public Service Commission--Whethcr
mandatory-Constitution of India, Arts. 311(2), 320(3) (c).
HEADNOTE:
The respondent was an employee under the
appellant, the State of Uttar Pradesh, and as it was discovered that he had
allowed his private interests to come in conflict with his public duties, a
departmental inquiry was held wherein charges were framed against him. He was
called upon to submit his written statement of defence and given an opportunity
to adduce evidence in support of it. After considering the report of the
enquiry, in which the charges were found to be true, the appellant called upon
the respondent, under Art. 311(2) of the Constitution of India, to show cause
why he should not be demoted and compulsorily retired, and the respondent
submitted a written explanation setting out his defence and objecting to the
procedure 534 adopted at the inquiry. Subsequently, the respondent was given a
copy of the report and again called upon to show cause why the proposed penalty
of reduction in rank should not be imposed upon him, and he once again
submitted a written explanation. In the meantime the State Public Service Commission
was consulted by the Government as to the punishment proposed to be imposed,
and for this purpose it was supplied with all the relevant material up to the
date of the second show-cause notice. The Government finally by an order dated
September 12, 1953, inter alia, reduced the rank of the respondent with effect
from August 2, 1952, and thereupon, the respondent filed petitions under Art.
226 of the Constitution before the High Court challenging the legality of the
Government order. The High Court found that though the State -Public Service
Commission was consulted by the Government it was not supplied with the written
explanation submitted by the respondent in answer to the second show-cause
notice, and held that the order of the Government was invalid for the reason
that the provisions of Art.
320(3)(c) of the Constitution had not been
fully complied with. On appeal to the Supreme Court additional evidence was
sought to be adduced on behalf of the appellant to show that as a matter of
fact the State Public Service Commission was consulted even after the
submission of the respondent's explanation in answer to the second show-cause
notice, but it was found that there was sufficient opportunity for the
appellant to place all the relevant materials before the High Court itself :
Held, (1) that the additional evidence ought
not to be admitted and that the finding of the High Court that there was no
consultation with the Commission after the respondent had submitted his
explanation in answer to the second show cause notice, must stand.
It is well-settled that additional evidence
should not be permitted at the appellate stage in order to enable one of the
parties to remove lacunae in presenting its case at the proper stage, and to
fill in gaps. Of course, the position is different where the appellate court
itself requires certain evidence to be adduced in order to enable it to do
justice between the parties.
(2) that the provisions of Art. 320(3)(c) of
the Constitution of India are not mandatory and that they do not confer any
rights on a public servant so that the absence of consultation or any
irregularity in consultation does not afford him a cause of action in a court
of law.
P. Joseph John v. The State of
Travancore-Cochin, (1955) 1 S.C.R. 1011, considered.
Biswanath Khamka v. The King Emperor, (1945)
F.C.R. 99, relied on.
(3) that Art. 311 of the Constitution is not
controlled by the provisions of Art. 320.
CIVIL APPPELATE JURISDICTION : Civil Appeals
Nos. 27 and 28 of 1955.
Appeals from the judgment and order dated the
8th January, 1954, of the Allahabad High Court in Civil Misc. Writ No. 817 of
1953.
G. C. Mathur and C. P. Lal, for the appellant
in C. A. No.
27 and respondent in C. A. No. 28.
N. C. Sen, for the respondent in C. A. No. 27
and appellant in C. A. No. 28.
1957. September 20. The following Judgment of
the Court was delivered by SINHEA J.-These two cross-appeals on certificates
granted by the High Court under Art. 132 (1) of the Constitution, arise out of
a common judgment and order of a Division Bench of the High Court of Judicature
at Allahabad, in two writ petitions Nos. 121 and 817 of 1953, dated January
8,1954, allowing, in part and dismissing in part, the two petitions under Art.
226 of the Constitution, by which the petitioner questioned the validity of the
orders passed by the Government of Uttar Pradesh, reducing him in rank, and
ordering his compulsory retirement from service. Civil Appeal No. 27 has been
preferred by the State of Uttar Pradesh and Civil Appeal No. 28 by the
petitioner in the Court below. For the sake of brevity, we shall refer to the
State of Uttar Pradesh as the appellant and the petitioner in the High Court
-Sri Manbodhan Lal Srivastava-as the respondent, in the course of this judgment
which covers both the appeals.
It is necessary to state the following facts
: In 1920, the respondent was employed in the education department of the State
of Uttar Pradesh, and in due course, was promoted to the United Provinces
Education Service (Junior Scale). This took place in 1946. In the year 1948,
the respondent was appointed an officer-on-special duty and managing editor of
a quarterly journal issued by the education department, under the style "
Shiksha ". While holding the post of officer-on-special-duty, the
respondent was also 536 appointed a member of the Book Selection Committee. He
continued to function as such until 1951. The respondent's conduct as a member
of that Committee was not found to be satisfactory and above board, inasmuch as
it was discovered that he had allowed his private interests to come in conflict
with his public duties. He was found to have shown favours in the selection of
books on approved list, in respect of certain books said to have been written
by a nephew of his, aged only 14 years, and by another relation of his, as also
to a firm of publishers who had advanced certain sums of money to him on
interest. In July, 1952, the respondent was transferred as Headmaster of a
certain High School, but he did not join his post and went on leave on medical
grounds. While on leave, the respondent was suspended from service with effect
from August 2, 1952. In September, the same year, the Director of Education
issued orders, framing charges against the respondent and calling upon him to
submit his written statement of defence and giving him an opportunity to call
evidence in support of it.
It is not necessary for the purposes of this
case, to set out the charges framed against him except to state that the
details of the books said to have been written by his prodigy nephew and his
other relation, were given, the gravamen of the charges being that. he did not
inform the Committee of his relationship with the alleged authors of the books,
the selection of which was calculated to brine, pecuniary benefit to those
relations. Another charge related to his having benefited a certain firm of
publishers whose books, about a dozen in number, had been selected by the
Committee of which he was a member. The respondent submitted a lengthy written statement
in his defence and did not insist on oral examination of witnesses, but
enclosed with his explanation certain affidavits in support of his case. The
Director of Education, after a thorough inquiry into the charges framed against
the respondent, submitted a report to the effect that the charges framed
against him had been substantially proved. He, recommended that the respondent
be demoted to the subordinate 537 Education Service and be compulsorily
retired. After considering the report aforesaid, the Government decided on
November 7, 1952, to call upon the respondent, under Art.
311(2) of the Constitution, to show cause why
the punishment suggested in the departmental inquiry report should not be
imposed upon him. In pursuance of the sbow-cause-notice served upon the
respondent on November 13, 1952, he put in a long written explanation on
November 26, 1952, on the same lines as his written statement of defence
submitted earlier as aforesaid, bearing on the merits of the findings as also
objecting to the procedure adopted at the inquiry. He also showed cause against
the proposed punishment. A Government notification dated January 9, 1953, was
published showing the names of the officers of the education department, who
would retire in due course on superannuation, that is to say, at the age of 55,
and the corresponding dates of superannuation. The respondent is shown therein
as one of those, and in the last column meant for showing the dates of retirement,
September 15, 1953, is mentioned as against his name. On February 2, 1953, the
respondent filed the first petition (Writ Petition No. 121 of 1953) challenging
the validity of the order of the Government suspending him and calling upon him
to show cause why he should not be reduced in rank with effect from the date of
suspension, and also compulsorily retired. In that petition, he also challenged
the legality of the entire proceedings and prayed for a writ of mandamus
directing the Government to pay his full salary during the period of suspension
until he attained the age of superannuation as aforesaid. PerhapRr realising
that the show-cause-notice served upon the respondent as aforesaid, in
November, 1952, would not fully satisfy the requirements of a reasonable
opportunity as contemplated by the Constitution, the Director of Education
forwarded to the respondent, along with a covering letter dated June 16, 1953,
a copy of the report of the inquiry; and again called upon him to show cause
why the proposed penalty of reduction in rank be not imposed upon him. The
State Public 538 Service Commission (which we shall refer to as the Commission)
was also consulted by the Government as to the punishment proposed to be
imposed as a result of the inquiry.
Presumably, the Commission was supplied with all
the relevant material upto the date of the second show-cause notice.
The Commission was consulted but it appears
from the findings of the High Court that the respondent's written explanation
submitted on July 3,1953, was not before the Commission. The explanation
submitted on July 3, 1953, was a much more elaborate one dealing not only with
the three charges which had been made against him, but also with other irrelevant
findings of the inquiry officer who had made several observations against the
respondent's efficiency and conduct, which were not the subject-matter of the
several heads of charge framed against the respondent, and, therefore, not
called for. After considering the opinion of the Commission, the inquiry report
and the several explanations submitted by the respondent, the State Government
passed its final order dated September 12, 1953, reducing the respondent in
rank from the U. P. Education Service (Junior Scale) to Subordinate Education
Service, with effect from August 2, 1952, and compulsorily retiring him. The
order of compulsory retirement was more or less superfluous as the respondent
would have retired in the ordinary course with effect from September 15, 1953,
as already indicated. During the pendency of the first writ petition, and after
it had been heard by the High Court in part, the respondent filed the second
writ application (being Writ Petition No. 817 of 1953) on September 23, 1953,
practically covering the same grounds and praying for the same reliefs as
aforesaid. A Division Bench of the High Court, presided over by the Chief
Justice, by its judgment and order dated January 8, 1954, disposed of both the
writ petitions holding that the orders impugned were invalid for the reason
that the provisions of Art.
320(3) (c) of the Constitution had not been
fully complied with because the last written explanation of the respondent
submitted on July 3, 1953, had not been placed before the Commission.
539 The High Court, therefore, quashed the
orders of the Government reducing him in rank and reducing his emoluments with
effect from the date of suspension as aforesaid. It did not pass any order in
respect of the compulsories retirement because that had happened in due course
before the judgment of the High Court. The appellant has filed appeal No. 27
from this part of the judgment and order of the High Court.
The High Court refused the respondent's
prayer in respect of the full salary for the period of suspension during which
he had been deprived of it by the orders of the Government impugned by him.
From this part of the judgment, the respondent has preferred appeal No. 28. It
is manifest that if the State Government's appeal is well-founded and is
allowed by this Court, the respondent's appeal must fail without any further
consideration.
Before dealing with the merits of the
controversy raised in these appeals, it is necessary to state that Mr. Mathur
appearing on behalf of the appellant, proposed to place before this Court, at
the time of the argument, the original records and certain affidavits to show
that, that as a matter of fact, all the relevant facts relating to consultation
between the State Government and the Commission had not been placed before the
High Court and that if the additional evidence were taken at this stage, he
would satisf'y this Court that the Commission was consulted even after the
submission of the respondent's explanation in answer to the second
show-cause-notice. Without looking into the additional evidence proposed to be
placed before us, we indicated that we would not permit additional evidence to
be placed at this stage when there was sufficient opportunity for the State
Government to place all the relevant matters before the High Court itself. We
could not see any special reasons why additional. evidence should be allowed to
be adduced in this Court. It was not suggested that all that matter which was
proposed to be placed before this Court was not available to the State
Government during the time that the High Court considered the writ petitions on
two occasions, 69 540 It is well-settled that additional evidence should not be
permitted at the appellate stage in order to enable one of the parties to
remove certain lacunae in presenting its case at the proper stage, and to fill
in gaps. Of course, the position is different where the appellate court itself
requires certain evidence to be adduced in order to enable it to do justice
between the parties. In this case, therefore, we have proceeded on the
assumption that though the Commission was consulted as to the guilt or
otherwise of the respondent and the action proposed to be taken against him
after he had submitted his explanation in answer to the first
show-cause-notice, there was no consultation with the Commission after the
respondent had submitted his more elaborate explanation in answer to the second
show-cause notice.
Hence, the main question in controversy in
appeal No. 27 of 1955 is whether the High Court was right in taking the view
that Art. 311 was subject to the provisions of Art.
320(3)(c) of the Constitution, which were
mandatory, and, as such, non-compliance with those provisions in the instant
case was fatal to the proceedings ending with the order passed by the
Government on September 12, 1953.
The High Court started with the assumption
that the provisions aforesaid of the Constitution are mandatory and on that
assumption proceeded to consider the further question whether non-compliance
with those provisions by the State Government conferred any right on the
respondent to question the validity of the order impugned in this case. In this
connection, the High Court found that the Commission had been consulted sometime
in June, 1953. It has to be assumed as aforesaid, that the Commission had not
before it the more elaborate explanation submitted in writing by the respondent
on July 3, in answer to the second show-cause notice. The High Court was
further of the opinion that it may be that if that explanation had been placed
before the Commission, its advice to the State Government may not have been in
the same terms in which it actually gave its advice, and after considering
which, along 541 with other relevant matters, the State Government passed the
order now in question. We shall assume for the purposes of this case that there
was an irregularity in, though not complete absence of, consultation with the
Commission. Now the question is: Did this irregularity afford a cause of action
to the respondent to challenge the final order passed by the State Government
on September 12, 1953 ? That part of the order which related to compulsory
retirement may easily be passed over, because, in any case, three days litter,
on September 15, the respondent retired in due course. Hence, the operative
portion of the final order of the Government, which adversely affected the
respondent, was the order reducing him in rank from the Provincial to the
Subordinate grade. That order appears to have satisfied the conditions laid
down in Art. 311 of the Constitution. At no stage of the controversy has it
been suggested that, so far as the appellant was concerned, the respondent had
not a " reasonable opportunity of showing cause against the action
proposed to be taken in regard to him "; that is to say, it is now beyond
question that the proceedings taken by the appellant, including the
departmental inquiry against the respondent ending with his reduction in rank,
satisfied the mandatory provisions of Chapter I of Part XIV of the
Constitution, with particular reference to Art. 31 1. That conclusion would put
an end to the respondent's case, unless it is held that the provisions of Art.
320(3)(c) are of a mandatory character and are in the nature of a rider to Art.
31 1.
This question does not appear to have been
determined by this Court in the form in which it has been now raised before us.
In the case of P. Joseph John v. The State of Travancore Cochin(1), the
question of consultation with the State Public Service Commission was raised in
slightly different circumstances. After the Government had before it the result
of the inquiry into the conduct of the public servant, and after the punishment
was tentatively arrived at, the Commission was consulted and it agreed to the
proposed action. But this consultation (I) [1955] I S.C.R. 1011.
542 and agreement was before the public
servant was asked to show cause against the action proposed to be taken against
him. His complaint was that the Commission should have been consulted after he
had moved the Government for reviewing its previous order, and this Court ruled
that it was not incumbent on the Government to consult the Commission as many
times as he might choose to move the Government by way of review. In that case,
this Court did not discuss and pronounce upon the alleged mandatory character
of Art. 320 of the Constitution. Hence, it may be taken that we have to
determine this controversy for the first time, though, according to the strict
construction of the words of Art.
320(3)(c), an application for review would be
covered by the words memorials or petitions ".
Article 320(3)(c) is in these terms
320(3):" The Union Public Service Commission or the State Public Service
Commission, as the case may be, shall be consulted(a).........................................................
(b).........................................................
(c) 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;
".
Article 320 does not come under Chapter I
headed Services " of Part XIV. It occurs in Chapter 11 of that part headed
" Public Service Commissions." Articles 320 and 323 lay down the
several duties of a Public Service Commission. Article 321 envisages such
" additional functions " as may be provided for by Parliament or a
State Legislature. Articles 320 and 323 begin with the words "It shall be
the duty and then proceed to prescribe the various duties and functions of the
Union or a State Public Service Commission, such as to conduct examinations for
appointments; to assist in framing and operating schemes of joint recruitment;
and of being consulted on all matters relating to methods of recruitment or
principles in making appointments to Civil Services and on all disciplinary
matters affecting 543 a civil servant. Perhaps, because of the use of the word
" shall " in several parts of Art. 320, the High Court was led to
assume that the provisions of Art. 320(3)(c) were mandatory, but, in our opinion,
there are several cogent reasons for holding to the contrary. In the first
place, the proviso to Art. 320, itself, contemplates that the President or the
Governor, as the case may be, "may make regulations specifying the matters
in which either generally, or in any particular class of case or in particular
circumstances, it shall not be necessary for a Public Service Commission to be
consulted." The words quoted above give a clear indication of the
intention of the Constitution makers that they did envisage certain cases or
classes of cases in which the Commission need not be consulted. If the
provisions of Art.
320 were of a mandatory character, the
Constitution would not have left it to the discretion of the Head of the Executive
Government to undo those provisions by making regulations to the contrary. If
it had been intended by the makers of the Constitution that consultation with
the Commission should be mandatory, the proviso would not have been there, or,
at any rate, in the terms in which it stands.
That does not amount to saying that it is
open to the Executive Government completely to ignore the existence of the
Commission or to pick and choose cases in which it may or may not be consulted.
Once, relevant regulations have been made, they are meant to be followed in
letter and in spirit and it goes without saying that consultation with the Commission
on all disciplinary matters affecting a public servant has been specifically
provided for, in order, first, to give an assurance to the Services that a
wholly independent body, not directly concerned with the making of orders
adversely affecting public servants, has considered the action proposed to be
taken against a particular public servant, with an open mind; and, secondly, to
afford the Government unbiassed advice and opinion on matters vitally affecting
the morale of public services. It is, therefore, incumbent upon the Executive
Government, when it proposes to take any disciplinary 544 action against a
public servant, to consult the Commission as to whether the action proposed to
be taken was justified and was not in excess of the requirements of the
situation.
Secondly, it is clear that the requirement of
the consultation with the Commission does not extend to making the advice of
the Commission on those matter,,;, binding on the Government. Of course, the
Government, when it consults the Commission on matters like these, does it, not
by way of a mere formality, but, with a view to getting proper assistance in
assessing the guilt or otherwise of the person proceeded against and of the
suitability and adequacy of the penalty proposed to be imposed. If the opinion
of the Commission were binding on the Government, it may have been argued with
greater force that non-compliance with the rule for consultation would have
been-fatal to the validity of the order proposed to be passed against a public
servant.
In the absence of such a binding character,
it is difficult to see how non-compliance with the provisions of Art.
320(3)(c) could have the effect of nullifying
the final order passed by the Government.
Thirdly, Art. 320 or the other articles in
Chapter II of Part XIV of the Constitution deal with the constitution of the
Commission and appointment and removal of the Chairman or other members of the
Commission and their terms of service as also their duties and functions. Chapter
II deals with the relation between Government and the Commission but not
between the Commission and a public servant. Chapter II containing Art. 320
does not, in terms, confer any rights or privileges on an individual public
servant nor any constitutional guarantee of the nature contained in Chapter I
of that Part, particularly Art. 31 1. Article 31 1, therefore, is not, in
anyway, controlled by the provisions of Chapter II of Part XIV, with particular
reference to Art. 320.
The question may be looked at from another
point of view.
Does the Constitution provide for the
contingency as to what is to happen in the event of non-compliance with the requirements
of Art. 320(3)(c) ? It does not, either in express terms 545 or by implication,
provide that the result of such a noncompliance is to invalidate the
proceedings ending with the final order of the Government. This aspect of the
relevant provisions of Part XIV of the Constitution, has a direct bearing on
the question whether Art. 320 is mandatory. The question whether a certain
provision in a statute imposing a duty on a public body or authority was
mandatory or only directory, arose before their Lordships of the Judicial
Committee of the Privy Council in the case of Montreal Street Railway Company
v. Normandin (I). In that case the question mooted was whether the omission to
revise the jury lists as directed by the statute had the effect of nullifying
the verdict given by a jury. Their Lordships held that the irregularities in
the due revision of the jury 'Lists will not ipso facto avoid the verdict of a
jury. The Board made the following observations in the course of their
judgment:
".. ............ The question whether
provisions in a statute are directory or imperative has very frequently arisen
in this country, but it has been said that no general rule can be laid down,
and that in every case the object of the statute must be looked at. The cases
on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596
and following pages. When the provisions of a statute relate to the performance
of a public duty and the case is such that to hold null and void acts done in
neglect of this duty would work serious general inconvenience, or injustice to
persons who have no control over those entrusted with the duty, and at the same
time would not promote the main object of the Legislature, it has been the
practice to hold such provisions to be directory only, the neglect of them,
though punishable, not affecting the validity of the acts done." The
principle laid down in this case was adopted by the Federal Court in the case
of Biswanath Khemka v. The King Emperor (2). In that case, the Federal Court
had to consider the effect of non-compliance with the provisions of s. 256 of
the Government of India Act, 1935, requiring consultation between public
authorities (r) L.R. [1917] A.C. 70.
(2) [1945] F.C.R. 99.
546 before the conferment of magisterial
powers or of enhanced magisterial powers, etc. The Court repelled the
contention that the provisions of s. 256, aforesaid, were mandatory.
It was further held that noncompliance with
that section would not render the appointment otherwise regularly and validly
made, invalid or inoperative. That decision is particularly important as the
words of the section then before their Lordships of the Federal Court were very
emphatic and of a prohibitory character.
An examination of the terms of Art. 320 shows
that the word " shall " appears in almost every paragraph and every
clause or sub-clause of that article. If it were held that the provisions of
Art. 320(3)(c) are mandatory in terms. the other clauses or sub-clauses of that
article will have to be equally held to be mandatory. If they are so held, any
appointments made to the public services of the Union or a State, without
observing strictly the terms of these sub clauses in cl. (3) of Art. 320, would
adversely affect the person so appointed to a -public service, without any
fault on his part and without his having any say in the matter.
This result could not have been contemplated
by the makers of the Constitution. Hence, the use of the word " shall
" in a statute, though generally taken in a mandatory sense, does -not
necessarily mean that in every case it shall have that effect, that is to say,
that unless the words of the statute are punctiliously followed, the
proceeding, or the outcome of the proceeding, would be invalid. On the other hand,
it is not always correct to say that where the word " may " has been
used, the statute is only permissive or directory in the sense that
non-compliance with those provisions will not render the proceeding invalid. In
that connection, the following quotation from Crawford on 'Statutory
Construction'-art. 261 at p. 516, is pertinent:
" The question as to whether a statute
is mandatory or directory depends upon the intent of the legislature and not
upon the language in Which the intent is clothed. The meaning and intention of
the legislature must govern, and these are to be ascertained, 547 not only from
the phraseology of the provision but also by considering its nature, its
design, and the consequences which would follow from construing it the one way
or the other..........." We have already indicated that Art. 320(3)(c) of
the Constitution does not confer any rights on a public servant so that the
absence of consultation or any irregularity in consultation, should not afford
him a cause of action in a court of law, or entitle him to relief under the
special powers of a High Court under Art. 226 of the Constitution or of this
Court under Art. 32. It is not a right which could be recognized and enforced
by a writ. On the other hand, Art. 311 of the Constitution has been construed
as conferring a right on a civil servant of the Union or a State, which he can
enforce in a court of law. Hence, if the provisions of Art. 311, have been
complied with in this case and it has not been contended at any stage that they
had not been complied with-he has no remedy against any irregularity that the
State Government may have committed.
Unless, it can be held, and we are not
prepared to hold, that Art. 320(3)(c) is in the nature of a rider or proviso to
Art. 31 1, it is not possible to construe Art. 320(3)(c) in the sense of
affording a cause of action to a public servant against whom some action has
been taken by his employer.
In view of these considerations, it must be
held that the provisions of Art. 320(3)(c) are not mandatory and that noncompliance
with those provisions does not afford a cause of action to the respondent in a
court of law. It is not for this Court further to consider what other remedy,
if any, the respondent has. Appeal No. 27 is, therefore, allowed and appeal No.
28 dismissed. In view of the fact that the appellant did not strictly comply
with the terms of Art.
320(3)(c) of the Constitution, we direct that
each party bear its own costs throughout.
Appeal No. 27 allowed.
Appeal No. 28 dismissed.
Back
