State of Uttar Pradesh Vs. Jogendra
Singh  INSC 47 (4 March 1963)
04/03/1963 GAJENDRAGADKAR, P.B.
CITATION: 1963 AIR 1618 1964 SCR (2) 197
F 1977 SC 740 (10) F 1977 SC1516 (2) RF 1992
SC 320 (47)
proceedings--Procedure-- "May"-Construction of--U.P. Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947, r. 4 (2).
The respondent was appointed a Naib Tehsildar
under the appellant, in the year 1937. On August 4, 1952, he was suspended on
complaints received against him and his case was referred for investigation to
the Administrative Tribunal appointed under the Rules. While the proceedings
were pending, additional complaints were received by the appellant against his
conduct and they were communicated to the Tribunal with an intimation that the
appellant proposed to send those further charges against the respondent for
enquiry. The Tribunal did not wait for receipt of the said additional charges
and on enquiry exonerated him from the charges framed against him, in August,
1952. On October 28, 1956, the respondent was again suspended and the charges
framed on the additional complaints were delivered to him.
The respondent submitted his explanation and
pleaded that the enquiry might be entrusted to the Administrative Tribunal in
accordance with the Rules; but his request was rejected and the case was
entrusted to the Commissioner with directions to take disciplinary proceeding-,
The High Court allowed the writ petition of
the respondent and the order directing the enquiry to be held by the appointed
authority under r. 55 of the said Civil Services Rules was quashed.
The question for decision in this Court was,
whether like the word "may" in r. 4 (1) which confers the discretion
on the Governor, the word "may" in sub-r. (2) confers discretion on
him, or does the word "may" in sub r.(2) really mean
"shall" or "must".
Held, that the whole purpose of r. 4 (2)
would be frustrated if the word ,may" in the said rule receives the same
construction as in sub-r. (1). The plain and unambiguous object of enacting
rule 4 (2) is to provide an option to the 198 .
Gazetted Government servants to request the
Governor that their cases should be tried by a Tribunal and not otherwise.
Thus r. 4 (2) imposes an obligation on the
Governor to grant a request made by the Gazetted Government Servant and such a
request not having been granted in the present case, the appeal must fail.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 301 of 1961.
Appeal from the judgment and order dated
March 10, 1960, of the Allahabad High Court (Lucknow Bench) in Special Appeal
No. 40 of 1959.
K. S. Hajela, and C. P. Lal, for the
K. L. Gosain and Naunit Lal, for the
1963. March 4. The judgment of the Court was
delivered by GAJENDRAGADKAR J .-The short point of law which arises in this
appeal relates to the construction of Rule 4 (2) of the Uttar Pradesh
Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter
called the Rules). That question arises in this way. The respondent Jogendra
Singh was appointed a Naib Tehsildar under the appellant, the State of U. P. in
the year 1937. On August 4, 1952, he was suspended as complaints had been
received against him and an enquiry into the said complaints was contemplated.
Accordingly, charges were framed against him
and his case was referred for investigation to the Administrative Tribunal
appointed under the Rules. The Tribunal held an enquiry and exonerated the
respondent from the charges framed against him, in August 1953.
While the proceedings before the Tribunal
were pending, additional complaints were received by the 199 appellant against
the respondent's conduct, and they were communicated by the appellant to the
Tribunal with an intimation that the appellant proposed to send those further
charges against the respondent for enquiry. The Tribunal did not wait for
receipt of the said additional charges because it was asked by the government
to proceed with the charge already with it and concluded its enquiry. That is
why on October 28, 1955, the respondent was again suspended and charges framed
on the additional complaints received against him were delivered to him on
October 29, 1956. On November 12, 1956, the respondent submitted his
explanation and pleaded that in case the appellant wanted to pursue the enquiry
against him, it might be entrusted to the Administrative Tribunal in accordance
with the Rules.
On June 28, 1958, the Deputy Secretary, Board
of Revenue, U.
P., informed the respondent that in
accordance with the orders passed by the appellant his case had been entrusted
to the Commissioner, Gorakhpur Division, with directions to take disciplinary
proceedings against him, and his request that the charges against him, should
be entrusted for investigation to the Administrative Tribunal had been
Thereupon, the respondent filed a writ
petition in the High Court of judicature at Allahabad on July 14, 1958, and prayed
that a writ, or a direction or an appropriate order should be passed against
the appellant quashing the proceedings intended to be taken against him before
the enquiring officer appointed by the appellant under Rule 55 of the Civil
Services (classification, Control and Appeal) Rules. The learned single judge
who heard the writ petition held that the respondent being a gazetted officer,
the appellant was bound to grant his request that the enquiry against him
should be 200 held by the Administrative Tribunal appointed Under the Rules.
That is why the writ petition was allowed and the order directing the enquiry
to be held by the appointed authority under Rule 55 of the said Civil Services
Rules was quashed.
This order was challenged by the appellant by
an appeal under the Letters Patent before a Division Bench of the said High
Court. The Division Bench agreed with the view taken by the learned single
judge and dismissed the appeal. The appellant then applied for and obtained a
certificate from the said High Court and it is with the said certificate that
it has come to this Court.
Mr. Hajela for the appellant contends that
the conclusion reached by the Courts below is not supported on a fair and
reasonable construction of Rule 4 (2) of the Rules. The appellant's case is
that in the State of U. P. it is competent to the Governor to direct that
disciplinary proceedings against the officers specified in Rule 4 of the Rules
should be tried before /an Administrative officer, but there is no obligation
on the Governor in that behalf. The Governor may, if he so decides direct that
the said enquiry may be held under Rule 55 of the Civil Services Rules and
conducted by an appropriate authority appointed in that behalf. Whether the
enquiry should be held by the Administrative Tribunal, or by an appropriate
authority, is a matter entirely within the discretion of the Governor.
On the other hand, the High Court has held
that so far as cases of gazetted government servants arc concerned, they are
covered by Rule 4 (2) of the Rules and on a fair construction of the said Rule,
it is clear that if @ gazetted government servant requests that the enquiry
against him should be held by the Administrative Tribunal, the Governor is
bound to grant his request. So, the narrow point which arises 201 for our
decision is which of the two views can be said to represent correctly the
effect of Rule 4 (2) of the Rules.
Rule 4 reads as follows:- "4. (1) The
Governor may refer to the tribunal cases relating to an individual government
servant or class of government servants or government servants in a particular
area only in respect of matters involving :- (a) corruption;
(b) failure to discharge duties properly-.
(c) irremediable general inefficiency in a
public servant of more than ten years' standing; and (d) personal immorality.
(2) The Governor may, in respect of a
gazetted government servant on his own request, refer his case to the Tribunal
in respect of matters referred to in sub-rule (1)." It would be noticed
that Rule 4 (1) confers discretion on the Governor to refer to the Tribunal
cases failing under clauses (a) to (d) in respect of servants specified by the
first part of sub-rule (1). In regard to these cases, the government servant
concerned cannot claim that the enquiry against him should not be held by a
Tribunal and the matter falls to be decided solely in the discretion of the
Governor. It is also clear that amongst the classes of servants to whom
sub-rule (1) applies, gazetted government servants are included, so that if
Rule 4 (1) had stood by itself, even gazetted government servants would have no
right to claim that the enquiry against them should not be held by a Tribunal.
202 It-is in the light of this provision that
rule 4 (2) has to be considered.
Rule 4 (2) deals with the class of gazetted
government servants and gives them the right to make a request to the Governor
that their cases should be' referred to the Tribunal in respect of matters
specified in clauses (a) to (d) of sub-rule (1). The question for our decision
is whether like the word " may" in rule 4 (1) which confers the
discretion on the Governor, the word ",may" in subrule (2) confers
discretion on him, or does the word ,(may" in sub- rule (2) really mean
"shall" or "'must" ? There is no doubt that the word
"'may" generally does not mean "must" or "shall".
But it is well settled that the word "may" is capable of meaning
"must" or "'shall" in the light of the context. It is also
clear that where a discretion is conferred upon a public authority coupled with
an obligation, the word "may" which denotes discretion should be
construed to mean a command. Sometimes, the legislature uses the word
"may" out of deference to the high status of the authority on whom
the power and the obligation are intended to be conferred and imposed. In the
present case, it is the context which is decisive. The whole purpose of rule 4
(2) would be frustrated if the word "may" in the said rule receives
the same construction as in sub-rule (1). It is because in regard to gazetted
government servants the discretion had already been given to the Governor to
refer their cases to the tribunal that the rule-making authority wanted to make
a special provision in respect of them as distinguished from other government
servants falling under rule 4 (1) and rule 4 (2) has been prescribed, otherwise
rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous
object of enacting rule 4 (2) is to provide an option to the gazetted
government servants to request the Governor that their cases should be tried by
a Tribunal and 203 not otherwise. The rule-making authority presumably thought
that having regard to the status of the gazetted government servants, it would
be legitimate to give such an opinion to them. Therefore, we feel no difficulty
in accepting the view taken by the High Court that rule 4(2) imposes an
obligation on the Governor to grant a request made by the gazetted government
servant that' his case should be referred to the Tribunal under the Rules. Such
a request was admittedly made by the respondent and has not been granted.
Therefore, we are satisfied that the High Court was right in quashing the
proceedings proposed to be taken by the appellant against the respondent
otherwise than by referring his case to the Tribunal under the Rules.
The appeal accordingly fails and is dismissed