Sudhir Agarwal, J.@mdashHeard Sri I.R. Singh for the Petitioner and learned standing counsel for the Respondents No. 1 and 2.
2. Since the pleadings are complete, as requested and agreed by learned Counsel for the parties, this matter is being decided finally under the Rules of the Court at this stage.
3. The facts, which are not in dispute, as borne out from the record, are that the Petitioner was appointed as Assistant Teacher in a Primary School on 2.12.1966, was promoted to the post of Head Master on 30.1.1990 and retired on 30.6.2008 on attaining the age of superannuation. He was prosecuted under Sections 323/34 and 325/34, I.P.C. in Criminal Case No. 1559 of 1979 and was convicted by the Judicial Magistrate, First Class, Jaunpur sentencing him with imprisonment for 4 months and 14 months whereagainst he filed Criminal Appeal No. 7 of 1982. The II Ird Addl. Sessions Judge, Jaunpur confirmed conviction vide judgment dated 25.7.1984 but reduced the sentence to 3 and 6 months. In the revision preferred before this Court, the conviction by the court below was upheld but on the question of sentence, the Court reduced it to the period already undergone and fine of Rs. 10,000 each vide judgment dated 24.7.1997.
4. The District Basic Education Officer, Jaunpur (hereinafter referred to as the ''B.S.A.'') issued a notice dated 15.1.2002 taking a view that the information about the above conviction was not given to the department and, therefore, the Petitioner is guilty of misrepresentation and fraud, hence why the salary already paid to the Petitioner be not recovered as arrears of land revenue. The Petitioner claims to have submitted his reply, a copy whereof has been filed as Annexure-6 to the writ petition. The B.S.A. however, passed the impugned order dated 13.7.2007 holding that since the Petitioner remained in jail for more than 48 hours, therefore, in view of Rule 48A (2) (b) of Civil Services (Classification Control and Appeal) Rules, 1930 as applicable in U.P. (hereinafter referred to as "1930 Rules") read with U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "1999 Rules"), he shall be deemed to be under suspension from 12.1.1983 to 23.7.1997 and dismissed from service with effect from 24.7.1997. The salary paid to the Petitioner on and after 24.7.1997, being illegal, is directed to be computed by the Finance and Accounts Officer so that the same may be recovered and deposited in the Government treasury.
5. A counter-affidavit on behalf of Respondents No. 1, 2 and 3 sworn by Sri V.K. Rai, Basic Shiksha Adhikari, Jaunpur has been filed wherein it is stated that the Petitioner is guilty of fraud and misrepresentation having not informed the authorities about his conviction in criminal case and, therefore, the order passed by the authority concerned is in accordance with law.
6. The counsel for the Petitioner submits that vide the order dated 13.7.2007 impugned in this writ petition, the B.S.A. has dismissed the Petitioner with effect from 24.7.1997 merely on the basis of his conviction in Criminal Case No. 200 of 1979, under Sections 323/34 and 325, I.P.C. wherein the Petitioner has ultimately been convicted and sentenced for one week and fine of Rs. 1,000. He also submits that mere conviction is not sufficient to allow the Respondent No. 2 to pass the impugned order unless it has considered "the conduct of the Petitioner led to conviction" so as to take a decision whether the major penalty of dismissal was warranted in the facts and circumstances of the case. He further submits that the offence under Sections 323 and 325 is not such as to warrant the major penalty of dismissal in a departmental matter. He also submits that 1930 Rules as well as 1999 Rules are inapplicable in the case of the Petitioner.
7. Before coming to the legal submissions, it would be necessary to consider the relevant service Rules whereby the Petitioner is governed and whether such an order is permissible under the rules or not.
8. The Petitioner, being a Head Master of a Junior Basic School maintained by the Board of Basic Education, is governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "1981 Rules"). The aforesaid Rules provide for the procedure for recruitment and appointment in service, transfer.
seniority, probation, confirmation, efficiency bar, age of superannuation, scale of pay and pay during probation.
9. With regard to disciplinary matters, this Court finds that no provision has been made under 1981 Rules. There is another set of rules, namely, U.P. Basic Education Staff Rules, 1973 (hereinafter referred to as "1973 Rules") which contain provisions pertaining to suspension, punishment, procedure for enquiry and appeal etc. The appointing authority under Item 10 of the Schedule of a Head Master of a Junior Basic School is "District Basic Education Officer" and the appellate authority is "Member Secretary of Board of Basic Education". The punishment permissible to be inflicted upon a Teacher governed by 1973 Rules are prescribed in Rule 3 as under:
3. Punishment.-- The appointing authority may for good and sufficient reasons, impose the following penalties upon the officers, teachers and other employees of the Board:
(i) Censure ;
(ii) Withholding of the increments including stoppage at an efficiency bar ;
(iii) Reduction to lower post of time-scale, or to a lower stage in a time-scale ;
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders ;
(v) Removal from the service of the Board which does not qualify him from future employment; and
(vi) Dismissal from the service of the Board which ordinarily disqualifies him from future employment.
10. Rule 4 provides for suspension and reads as under:
4. Suspension.--(1) A person against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the inquiry, in the discretion of the appointing authority.
(2) An employee of the Board who is placed under suspension shall be granted subsistence allowance during his suspension period at such rate and subject to such rules as are applicable to a servant of the Uttar Pradesh Government, from time to time, and the said rule shall apply mutatis mutandis to the employees of the Board.
11. Rule 5, though contains the heading "Appeal", but Sub-rule (3) thereof provides for the procedure in respect to the disciplinary proceedings against the staff governed by 1973 Rules and reads as under:
Appeal.--(1) An appeal shall lie from an order passed by the appointing authority in respect of the posts mentioned in Column 1 of the Schedule appended to these rules, imposing upon any officer, teacher or other employee of the Board and of the penalties mentioned below, to the appellate authority mentioned in Column 3 of the said Schedule:
(a) reduction to a lower post or time-scale to a lower stage in a time-scale ;
(b) removal from service of the Board which does not disqualify him for future employment;
(c) dismissal from the service of the Board, which ordinarily disqualifies him from future employment.
(2) In case of other penalties against which no appeal is provided in this rule, the punished officer, teacher or other employee of the Board may make a representation against the imposition of any of these penalties to such officer as the Director of Education (Basic) may by general order, from time to time, specify in this behalf.
(3) The procedure laid down in the Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible, be followed in disciplinary proceedings, appeals and representations under these rules.
12. A bare perusal of 1973 Rules and in particular Rules 3, 4 and 5 shows that so far as the kind of punishment and the circumstances wherein power of suspension can be exercised by the competent authority, sufficient and separate provisions have been made in respect to the Teachers of a Junior Basic School and such other persons to whom 1973 Rules are applicable, but with respect to the procedure to be followed in disciplinary proceeding, appeal and representations, the procedure laid down in 1930 Rules as applicable to servants of U.P. Government, as far as possible, have been incorporated under 1973 Rules. It is an admitted position on both the sides that in 1973 Rules reference in Rule 5 (3) of 1973 Rules is in respect to 1930 Rules with respect to the procedure for disciplinary proceedings, appeals and representations. It is also not disputed that 1930 Rules have been rescinded by Rule 17 of 1999 Rules which came into force on 9.6.1999.
13. Whether recession of 1930 Rules would make 1999 Rules applicable to the staff governed by 1973 Rules suo motu or whether for the purposes of the staff governed by 1973 Rules still the provisions of 1930 Rules would continue to apply is one of the moot questions to be considered in this case. In other words, it is to be considered whether Rule 5 (3) providing for observance of 1930 Rules constitute "legislation by reference" or "legislation by incorporation". Even if it is a case of "legislation by reference", whether amendment, modification etc. in the statute, which is applied by reference would include bringing in a new statute which repeal or rescind or supersede the earlier statute in its entirety.
14. Secondly whether the new statute can be read in place of the old statute suo motu is another question of importance in this case.
15. Thirdly, whether the power of suspension conferred under Rule 4 of 1973 Rules would include the other conditions etc. applicable in the matter of suspension provided in 1930 Rules or 1999 Rules or whether Rule 4, insofar as the suspension part is concerned, is an independent and complete provision in 1973 Rules and the contingencies not provided in Rule 4 can be allowed to be taken into account by the competent authority to place a person under suspension governed by 1973 Rules, is also another important question.
16. Lastly, as the case is, since under 1930 Rules as well as in 1999 Rules, the procedure for departmental enquiry includes omission thereof in certain contingencies, but provides certain conditions precedent which have to be kept in mind and observed by the competent authority in passing an order of punishment where no enquiry is held which include the consideration of "conduct led to conviction" by the competent authority, what is the effect, if such consideration is found ignored/omitted/flouted. This is the ultimate question to be considered.
17. Now coming to the first question whether application of 1930 Rules is by way of reference or by incorporation, it may be noticed that it is well-settled that there are two types of reference statutes, i.e. "statute of specific reference" and, "statute of general reference".
18. In Sutherland''s Statutory Construction, (4th Edn. Vol. 2A), Articles 51.07 at page 514 explains "legislation by reference" as under:
There are two general types of reference statutes: statutes of specific reference and statutes of general reference. A statute of specific reference, as its name implies, refers specifically to a particular statute by its title or section number. A general reference statute refers to the law on the subject generally. An example of this type of reference is a provision that contracts made under the statute are to be made "in the manner now provided by law
General and specific references have been held to differ in record to whether subsequent legislation which fits the reference is adopted. When a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption. This is to be contrasted with adoption by reference of limited and particular provisions of another statute, in which case the reference does not include subsequent amendments.
19. In Article 51.08, P. 516, it has been further stated as follows:
A statute of specific reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, unless the Legislature has expressly or by strong implication shown its intention to incorporate subsequent amendments with the statute. In the absence of such intention, subsequent amendments of the referred statute will have no effect on the reference statute.
20. Halsbury''s Law of England (4th Edn. Vol. 44 (1)), para 1257 Page 744 deals with incorporation of other enactments by reference as under:
It is a common device of legislative drafters to incorporate earlier statutory provisions by reference, rather than setting out similar provisions in full. This saves space and also attracts the case law and other learning attached to the earlier provisions. Its main advantage is a Parliamentary one, however, since it shortens Bills and cuts down the area for debate. Incorporation of an enactment by reference does not affect the continued separate identity of that enactment. By implication, it requires any necessary verbal adjustments to be made in the incorporated provisions where, as is the modern practice, these adjustments are not spelt out. The technique of Incorporation by reference has received much judicial criticism and is, therefore, less used today.
21. In para 1396, page 852, "Interpretation where other enactments incorporated by reference" has been dealt with as follows:
Where an Act incorporates by reference the whole or any part of any earlier Act, the provisions so incorporated must generally be construed as if they were set out in full in the later Act.
22. "Statutory Interpretations" by F.A.R. Bennion, I Ind Edn. Page 522 dealing with incorporation of provisions by reference says:
It is a common devise of legislative drafters to incorporate earlier statutory provisions by reference, rather than setting out similar provisions in full. This saves space, and also attracts the case law and other learning attached to the earlier provisions. Its main advantage is a Parliamentary one, however, since it shortens Bills and cuts down the area for debate.
23. Observations, therefore, are akin to what has been provided in Halsbury''s Law of England already noticed. "Bennion" describes the practice of incorporation by reference as archival drafting and on page 523 says:
(1) An enactment sometimes incorporates into the Act a whole body of law as it existed at a given time (''the relevant date''). This may include the practice prevailing on the relevant date, as well as the substantive law in force at that time. Often the provisions thus incorporated do not otherwise continue in force. The technique is called archival drafting because it requires persons applying the Act after considerable period has elapsed since the relevant date to engage in historical research in order to find out what the law thus imported amounts to.
(2) The effect of archival drafting is to ''freeze'' the body of law, so far as thus imported, in the form it was in on the relevant date. Subject to any amendments subsequently made for the purpose of the applying Act, the body of law is to be interpreted for those purposes at any subsequent time, unless the contrary intention appears, as if it had remained unaltered since that day.
24. "Craies on Statute Law" 7th Edn. at page 29 considering "legislation by reference" states:
Legislation by reference occurs where an earlier enactment is amended, applied, etc. by a mere specific reference to the section or part affected without any description of its subject-matter, necessitating in consequence resort to the enactment cited to appreciate what the later enactment is affecting.
25. On page 223, Craies, while describing the "incorporation of earlier enactment", says:
The effect of bringing into a later Act, by reference, sections of an earlier Act is to introduce the incorporated sections of the earlier Act into in the later Act as if they had been enacted in it for the first time. Consequently, when and Act of 1855 incorporated sections of an earlier Act of 1840, those sections were read so as to take effect as if they had been passed in 1855, and Lord Esher M.R. said: "If a subsequent Act, brings into itself by reference some of the classes of the former Act, the legal effect of that, as has often been held, is to write those sections into the new Act. Just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855.
26. In "Statutory Interpretationss in Australia" by D.C. Pearce and R.S. Goddes (3rd Edn.), Page 152, Acts incorporating other statutory provisions have been described as under:
It is not uncommon to find in an Act a provision staying that it is to be read as one with, or to be read and construed with, or to be incorporated with, another Act. The effect of such a provision is, in effect, to mould the two Acts into one - to require the incorporated Act notionally to be written into the incorporating Act. Accordingly, each of the provisions of the two Acts must be construed as if they were included in the one Act- unless there is such a manifest discrepancy that it can be seen that the later of the two Act impliedly repealed part of the earlier.
27. It has considered the effect of incorporation on page 153 and says:
In the absence of an indication to the contrary, provisions incorporated in another Act are fixed as it were at the date of their incorporation. Subsequent amendments to the incorporated provisions will not be included in the incorporating Act ; Commr. for Government Transport (N.S.W.) v. Deacon, (1957) 97 CLR 535. This assumption may, however, be rebutted by, for example, the incorporation of the designated legislation "as in force from time to time". This effect is achieved also, in these jurisdictions which have an Interpretation Act provision that provides that reference to an Act are to that Act as amended.
28. Crawford''s Statutory Construction, 1989 Reprint by Pakistan Law House, Article 234, Page 439 deals on the subject and says:
A statute may assort all or only a part of another statute by express reference, or by re-enactment of the former in verbatim or in substantially the same language. Where this is true, the adopted provisions become a part of the adopting statute. Similarly a statute may adopt the provisions of another statute by what is known as descriptive reference. In this case, the adopted provisions become a part of the adopting statute but only those provisions which relate to the new statute''s subject.
29. In Secretary, State of India in Council v. Hindusthan Co-operative Insurance Soceity Ltd. AIR 1931 PC 149. the incorporation effected in the statutes, i.e. Calcutta Improvement Trust Act, 1911 came to be considered before the Privy Council with reference to Local Act 19 of 1921. The Privy Council observed as under:
But their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of State, and their Lordships are not prepared to hold that the Sub-section in question, which was not enacted till 1921, can be regarded as incorporated in the Local Act of 1911. It was not part of the Land Acquisition Act when the Local Act was passed, nor in adopting the provisions of the Land Acquisition Act is there anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to that Act. It is at least conceivable that new provisions might have been added to the Land Acquisition Act which would be wholly unsuitable to the Local code. Nor again, does Act XIX of 1921 contain any provision that the amendments enacted by it are to be treated as in any way retrospective, or are to be regarded as affecting any other enactment than the Land Acquisition Act itself. Their Lordships regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt.
In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second: see the cases collected in Craies on Statute Law, 3rd Edn. pp. 349, 350. This doctrine finds expression in a common-form section which regularly appears in the amending and repealing Acts which are passed from time to time in India. x x x x x The independent existence of the two Acts is, therefore, recognized ; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principles involved is as applicable in India as it is in this country.
It seems to be not less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.
30. In Bolani Ores Ltd. v. State of Orissa. AIR 1975 SC 17, with reference to Section 2 (c) of the Motor Vehicles Act, 1939 and the Orissa Motor Vehicles Taxation (Amendment) Act, 1943 incorporating the definition of "motor vehicle" as provided in 1939 Act, by reference, the Court observed in para 29 of the judgment as under:
This is a well-accepted interpretation both in this country as well as in England which has to a large extent influenced our law. This view is further reinforced by the use of the word ''has'' in the expression "has the same meaning as in the Motor Vehicles Act, 1939" in Section 2 (c) of the Taxation Act, which would perhaps further justify the assumption that the Legislature had intended to incorporate the definition under the Act as it then existed and not as it may exist from time to time. This method of drafting which adopts incorporation by reference to another Act whatever may have been its historical justification in England, in this country does not exhibit an activistic draftsmanship which would have adopted the method of providing its own definition. Where two Acts are complementary or interconnected, legislation by reference may be an easier method because a definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislatures.
31. In Bajya v. Smt. Gopikabai and Anr. AIR 1978 SC 793, in para 27 approving the comments of Sutherland in Statutory Construction (supra) the Apex Court observed:
27. Broadly speaking, legislation by referential incorporation falls in two categories: First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference.
32. In Bhatinda Improvement Trust v. Balwant Singh and Ors. AIR 1992 SC 2214. the Court held in para 8 of the judgment:
8... it Is well-settled law that where a statute is incorporated by a reference into a second statute, the repeal of the first statute does not affect the second. Similarly, in a case where a statute is incorporated by a reference into another statute an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorporation. It is again well-settled that where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same. This depends on the language used in the latter statute and other relevant circumstances.
33. In U.P. Avas Evam Vikas Parishad v. Jainul Islam and Anr. AIR 1998 SC 1028, a three Judge Bench of the Apex Court held:
17. A subsequent legislation often makes a reference to an earlier legislation so as to make the provision of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute ; or (ii) a legislation by incorporation where under the provisions of the earlier legislation to which reference is made are incorporated into the late legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R. the legal effect of such incorporation by reference "is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." (See: Wood''s Estate, Re, (1886) 31 Ch D 607 at p 615). As to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of Madhya Pradesh v. M.V. Narasimhan. 1976 (1) SCR 6: AIR 1975 SC 1835:
"Where a subsequent Act incorporates provisions of a previous Act. Then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:
(a) where the subsequent Act and the previous Act are supplemental to each other ;
(b) where the two Acts are in pari materia ;
(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual ; and
(d) where the amendment of the previous Act, either expressly or by necessary intendment, applied the said provisions to the subsequent Act." (p. 14)
34. A Full Bench of this Court has dealt with the question of legislation by reference and by incorporation in Dr. Mohammad Tahir v. State of U.P. and Ors. (2004) 2 UPLBEC 1406, and has considered a large number of the authorities of the Apex Court on the subject and, therefore, it is not necessary to deal with this aspects in more detail. However, it would be appropriate to refer to certain recent decisions of the Apex Court in this regard which are subsequent to the Full Bench decision in Dr. Mohammad Tahir (supra).
35. The above principles have been considered in further detail, and distinction therein has been discussed in P.C. Agarwala v. Payment of Wages Inspector, M.P. and Ors. JT 2005 (8) SC 544, in paras 10, 11 and 12 of the judgment as under:
10. A distinction has been made between a mere reference or citation of one of the statutes into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequently to the time of adoption, as was noted by Sutherland ; Statutory Construction, Vol. 2, 3rd Edn. p. 550 and Supplement (1956). p. 119.
11. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statute as at the time of adoption, and (ii) where a statute incorporates by general reference. The Law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.
12. In the former case, a modification, repeal or re-enactment of the statute that is referred will also have effect in the statute in which it is referred ; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal or amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are: (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable, and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of the earlier Act are incorporated into the later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not, however, mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out meaning of the provision incorporated.
36. A slight modification on the principle has been noticed in para 13 of the judgment in P.C. Agarwala (supra) which reads as under:
13. It may be added that clear intention of the incorporating Act cannot be defeated by such provision of the earlier Act which have not been incorporated. In the interpretation of an incorporated provision, the Court is sometimes required to formulate variations of details in the context of the incorporating statute. (See Mariyappa v. State of Karnataka, (1998) 3 SCC 276). The merit of legislation by incorporation is brevity which is sometimes counterbalanced by difficulties and obscurities which it is likely to create.
37. In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. 2005 (8) SCC 504. in para 28 the Court said:
28. Adopting or applying an earlier or existing Act by competent Legislature to a later Act is an accepted device of legislation. If the adopting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference. Whereas if the provisions of another Act are bodily lifted and incorporated in the Act, then it Is known as legislation by incorporation. The determination whether a legislation was by way of incorporation or reference is more a matter of construction by the Courts keeping in view the language employed by the Act, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. Reason for it is the Courts'' prime duty to assume that any law made by the Legislature is enacted to serve public purpose..
38. In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd. and Ors. 2007 (8) SCC 705, in paras 96 and 97 of the judgment the Court observed:
96. The State exercises its different power for different purposes. Issuing notification of a planning area, whether named or not, for the purpose of Section 13(1) is different from the one for which a development authority is created within the meaning of Section 38(1) of the Act. The State in a given situation may appoint more than one authority for the same planned area. The State delegated its power upon the District Planning Authority u/s 38 of the Act. The Appellant authority was created for a definite purpose. Its jurisdiction was limited to the area notified. When so creating, although 1974 notification was referred to, the same was only for the purpose of limiting the area of operation of the Appellant authority. The principle of legislation by incorporation was applied and not the principle of legislation by reference.
97. The difference between the two principles is well-known. Whereas in the case of the former, a further notification amending the ambit or scope of the statute would be necessary, if the statute incorporated by reference is amended, in the latter it would not be necessary.
39. In Bharat Co-operative Bank (Mumbai) Ltd. v. Co-operative Bank Employees Union, AIR 2007 SC 2320: 2007 (5) AWC 5314 (SC). this question with reference to Section 2(bb) of Industrial Disputes Act, 1947 as well as Banking Regulation Act, 1949 came up for consideration. In para 14, the Apex Court observed:
...we may briefly notice the distinction between the two aforementioned concepts of statutory interpretation, viz. a mere reference or citation of one statute in another and incorporation by reference. Legislation by incorporation is a common legislative device where the Legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another statute. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there Is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. On the contrary, in the case of a mere reference or citation, a modification, repeal or re-enactment of the statute, that is referred will also have effect on the statute in which it is referred.
40. In para 20. the Court observed: "However, the distinction between incorporation by reference and adoption of provisions by mere reference or citation is not too easy to highlight. The distinction is one of difference in degree and is often blurred. The fact that no clear-cut guidelines or distinguishing features have been spelt out to ascertain whether it belongs to one or the other category makes the task of identification difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. Therefore, the kind of language used in the provision, the scheme and purpose of the Act assume significance in finding answer to the question."
41. Referring to its decision in Maharashtra State Road Transport Corporation v. State of Maharashtra and Ors. 2003 (2) SCR 530. the Apex Court in Bharat Co-operative Bank (Mumbai) Ltd. (supra) said that: "The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end."
42. Considering in the light of the principles laid down above, I am of the view that it is "legislation by reference" with respect to procedure prescribed in 1930 Rules with respect to disciplinary proceedings, appeals and representations and its subsequent amendments and supersession, recession by 1999 Rules would also cover the field and would apply to Rule 5 (3) of 1973 Rules. Both the statutes travel in the same field. Since the purpose of referring to 1930 Rules in 1973 Rules is in respect to import procedure of departmental enquiry instead of repeating the same, to my mind the exception referred in P.C. Agarwala (supra) clearly attracted here also and it would be prudent to apply 1999 Rules which supersede 1930 Rules, since the amended and detailed procedure provided in 1999 Rules makes the enquiry more transparent and consistent with the known principles of natural justice. The intent of rule framing authority also does not appear to be otherwise.
43. The subsequent amendment, modification etc. in the statutes would, therefore, also be applicable to 1973 Rules but only and specifically with respect to the procedure for departmental inquiry, appeals and representations and not beyond that.
44. So far as the suspension is concerned, Rule 4 of 1973 Rules is independent having not made any reference to any other statutes or rule. The provisions pertaining to suspension provided in 1930 Rules and 1999 Rules, therefore, would not be applicable. Meaning thereby under 1973 Rules a person can be placed under suspension only in the contingencies and the manner prescribed therein and not beyond that. The first three questions formulated above, therefore, are answered accordingly.
45. Now I come to last issue. In the present case, the impugned order has been passed dismissing the Petitioner with effect from 24.7.1997. If the impugned order is treated to be an order passed under 1930 Rules ; as was amended in 1975 and 1977, I find that it does not empower the competent authority to dismiss or remove an employee on mere conviction Without holding any enquiry whatsoever. Rule 55 of 1930 Rules, as substituted by Civil Services (C.C.A.) (U.P. Amendment) Rules, 1975 published in U.P. Gazette dated 22.3.1975 is reproduced as under:
55. (1) Without prejudice to the provisions of the Public Servant Inquiries Act, 1850 an order (other than an order based on facts which had led to his conviction in a criminal court or by a court martial) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is a member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the ground on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considered necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The officer conducting the inquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.
(2) Where the punishing authority itself inquires into any charge or appoints an inquiring officer for holding an inquiry into such charge, the punishing authority, if it considered it necessary to do so, may, by an order, appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits.
(4) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged.
(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient.
46. Rule 55 nowhere empower the competent authority to dismiss or remove an employee without holding an inquiry on mere conviction. The power exercised by B.S.A. in the case in hand with reference to 1930 Rules, therefore, is wholly without jurisdiction.
47. The impugned order also does not conform to 1999 Rules inasmuch proviso to Rule 7 deals with the cases where disciplinary proceedings may not be held ; and, without holding any departmental enquiry, in accordance with procedure prescribed therein the order imposing major penalty can be passed: It reads as under:
Provided that this shall not apply in following cases:
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge: or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules ; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.
48. A perusal of proviso (i) shows that the order contemplated therein is one which can be passed imposing a major penalty on a person on the ground of "conduct which has led to his conviction" on a criminal charge and not mere conviction.
49. The contingencies where a person can be imposed major penalty without any enquiry on the ground of his conviction is no more res integra. It is now well-settled that Article 311(2) proviso (a) of the Constitution is pari materia to proviso (i) to Rule 7 of 1999 Rules empowering the disciplinary authority to impose a major penalty on a person without holding the enquiry on the basis of "conduct led to conviction". It is also a settled exposition of law that punishment is not automatic and based on the mere conviction but the order imposing punishment must show application of mind on the part of disciplinary authority on the conduct led to conviction of the Government servant and appropriate punishment which he is liable to suffer.
50. The question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct led to conviction of the Government servant before passing punishment order is also no more res integra.
50A. In Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416, the Apex Court while considering the pari materia provision under Article 311 of the Constitution of India, held as under:
The second proviso will apply only where the conduct of a Government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a Government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned. Government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the Government servant is not entitled to an enquiry.
(Emphasis added)
51. A similar question came up for consideration before a Division Bench of this Court in Shyam Narain Shukla v. State of U.P. (1988) 6 LCD 530. and this Court held as under:
In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage.
(Emphasis added)
52. Similarly another Division Bench of this Court in Sadanand Mishra v. State of U.P. 1993 LCD 70. held that on the conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction is also considered. Further, it is held that the scrutiny of conduct of an employee leading to his conviction is to be done ex parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned.
53. The above view was taken by this Court in Civil Misc. Writ Petition No. 45364 of 2003.
54. With respect to suspension, once 1930 Rules and 1999 Rules have not been incorporated bodily regarding provision pertaining to suspension but separate and independent provisions have been made in 1973 Rules, therefore, the contingencies with respect to suspension have to be followed as provided in 1973 Rules and not as provided in 1930 or 1999 Rules. Rule 48A (2) of 1930 Rules shall be inapplicable. With respect to suspension, the only contingencies provided in 1973 Rules are where an enquiry is contemplated or proceeded. It does not talk of either suspension during a criminal enquiry, trial or investigation is pending or where an employee is kept in jail for any particular period. In the absence of any provision authorizing the authority to suspend an employee during the period of pendency of a criminal case, I am clearly of the view that the impugned order passed by B.S.A. treating the Petitioner under suspension during the period he was convicted is not in accordance with Rule 4 of 1973 Rules and, therefore, cannot be sustained.
55. There is another aspect of the matter. A punishment cannot be imposed with retrospective effect. In the case in hand, though the impugned order has been passed on 13.7.2007 but it has imposed punishment upon the Petitioner retrospectively. It is well-settled that an executive order of punishment cannot be passed with retrospective effect unless the authority is authorized to do so. Learned standing counsel could not show any provision under which such a power could have been exercised by Respondent No. 2. However, in such case though it is also well-settled that an order or punishment passed retrospectively is severable and to the extent the authority concerned has given it retrospective effect may be struck down but the order may be upheld prospectively. I could have opted for such recourse provided the impugned order would have been valid otherwise, but as already discussed, since the impugned order is vitiated in law for various other reason, as already discussed, I have no option but to set aside the same in its entirety.
56. In the result, the writ petition is allowed. The impugned order dated 13.7.2007, passed by Respondent No. 2 (Annexure-7 to the writ petition) is hereby quashed.
57. However, it shall be open to the Respondent to pass a fresh order in accordance with law within a period of six months from today. However, in case the Respondent No. 2 fails to pass any fresh order or chose not to pass any further order in the matter within the aforesaid period, the Petitioner shall be entitled to all consequential benefits.
58. No cost.
