Devi Prasad Singh, J.@mdashA Division Bench of this Court has referred the controversy to Larger Bench, vide order dated 7.1.2010, to reconsider the ratio of the judgment of another Division Bench i.e., the case of
1. Whether the time schedule given in Item No. 17 of the Schedule of the U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 is mandatory in nature and that if the enquiry is delayed beyond six months the entire proceedings will become inoperative?
2. Whether the judgment in
Hon''ble the Chief Justice has constituted the present Larger Bench in terms of reference.
The petitioner was serving as Principal in the Government Polytechnic of City and District Mirzapur. During the course of employment, the petitioner along with one Sri K.L. Kushwaha, endorsed a cheque of scholarship and withdrew the cash of Rs. 2,84,843.33P without making necessary entries in the Government records. When the matter came to light, the petitioner and Sri K.L. Kushwaha deposited the amount of Rs. 2,84,843.33P., on 25.1.2006. However, disciplinary proceeding was initiated against the petitioner on 11.1.2007 under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 1999 Rules) with regard to alleged irregularities committed by him in distribution of scholarship. A chargesheet was served on 30.1.2007 with regard to temporary embezzlement. During pendency of departmental proceeding, the petitioner attained age of superannuation on 30.6.2007. A Government order dated 5.5.2008 was issued for continuing of the disciplinary proceeding under Article 351A of the Civil Service Regulations (in short CSR), against the petitioner as well as Sri K.L. Kushwaha keeping in view the fact that they have retired on 30.6.2007.
2. On 7.7.2008, Office Memo dated 30.5.2008 was issued by the State Government along with a copy of inquiry report requiring the petitioner to submit response. In consequence thereof, the petitioner submitted his reply on 21.7.2008. However, no final order was passed by the Government but the post retiral dues were withheld. Feeling aggrieved, the petitioner filed Writ Petition No. 1173 (S/B) of 2009, which was decided finally by judgment and order dated 19.8.2009 directing the Principal Secretary, Department of Vocational and Technical Education to decide the representation dated 24.5.2009. After due hearing, the representation submitted by the petitioner was rejected by the order dated 21.12.2009 with the observation that the petitioner had received entire amount of leave encashment, group insurance, 90% of GPF amount and has been paid provisional pension from July, 2007 to November, 2009. However, gratuity was not paid on account of pendency of departmental proceeding.
3. The petitioner relied upon the Rules framed under Article 309 of the Constitution namely, U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 (in short 1995 Rules) and submitted that since the inquiry has not been completed within six months in terms of 1995 Rules, it shall be deemed to have been lapsed. It has further been pleaded by the petitioner that 1995 Rules shall override the general departmental rules in view of the law settled by a Division Bench of this Court in the case of Lakhan Lal Ahirwar (supra). The Division Bench being not in agreement with the ratio of the judgment of the case of Lakhan Lal Ahirwar (supra), referred the controversy to the Larger Bench after framing aforementioned two questions.
4. Learned counsel for the petitioner vehemently argued that 1995 Rules will have overriding effect over 1999 Rules. Submission of the petitioner''s counsel is that 1995 Rules is special provision which deals with the matter where disciplinary proceeding has not been concluded within six months from the date of retirement and is mandatory in nature. Submission is that the case of Lakhan Lal Ahirwar (supra) lays down the correct law. Petitioner''s counsel relied upon the cases reported in (2007) 25 LCD 1148 :Lakhan Lal Ahirwar. Vs. State of U.P. and others;
5. On the other hand, learned counsel for the State of U.P. submits that 1995 Rules is a procedural in nature and not mandatory.
STATUTORY PROVISIONS
6. A time frame for the departmental proceeding has been provided by U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995, (in short 1995 Rules). For convenience, Rule 1, 2, 3 & 4 of 1995 Rules is reproduced as under:-
THE U.P. PENSION CASES (SUBMISSION,
DISPOSAL AND AVOIDANCE OF DELAY)
RULES, 1995
In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules, namely:-
1. Short title and commencement--(1) These rules may be called the Uttar Pradesh Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995.
2. Definitions--In these rules unless there is anything repugnant in the subject context:-
(a) "Chief Nodal Officer" means the Director of Pension, Uttar Pradesh;
(b) "Delay" means the period beyond the time schedule;
(c) "Forwarding Officer" means a person who is empowered to act as such by the Government, from time to time;
(d) "Government" means the State Government of Uttar Pradesh;
(e) "Governor" means the Governor of Uttar Pradesh;
(f) "Head of Department" means a person specified as such by the Government, from time to time;
(g) "Head of the Office" means a person specified as such by the Government, from time to time;
(h) "Nodal Officer" means a person empowered as such in accordance with the order of the Government issued, from time to time;
(i) "Pension" means Pension as defined in Article 41 of the Civil Service Regulations;
(j) "Pension Sanctioning Authority" means a person empowered as such by the Government, from time to time;
(k) "Time-Schedule" means the time specified in Column 3, in respect of a work specified in Column 2 of the Schedule.
NOTE
Disability pension--Invalidated from service is necessary condition for grant of disability pension.
3. Overriding effect-- These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders.
4. Procedure for implementation of the time schedule and allied matters-
(1) A delay may be ascertained by the Nodal Officer/Chief Nodal Officer.
(a) from the complaint of the Pensioner/Pensioner''s Organization.
(b) from the follow up of the disposal of pension cases.
(2) Whenever any delay comes to notice of the Nodal Officer/Chief Nodal Officer, he shall require the Head of the Department/the Head of the Office to furnish all relevant informations in respect of the reason for delay and, after such inquiry as he considers proper, find out the person responsible for the delay and send a proposal to the disciplinary authority concerned for disciplinary proceeding against him, the Nodal officer/Chief Nodal Officer shall follow up the matter till the completion of the disciplinary proceeding and maintain record of such proceeding. The Nodal Officer shall intimate to the Chief Nodal Officer in respect the result of such disciplinary proceeding.
(3) A person, who fails to furnish required information to the Nodal Officer/Chief Nodal Officer in respect of retirement of an employee or in respect of any other matter relating thereto, or who is responsible for delay, shall be guilty of misconduct and be punishable under the punishment rules applicable to him.
(4) Duly completed pension papers along with all relevant document shall be sent to the pension sanctioning authority within the schedule specified in the schedule in respect thereof.
(5) The Chief Nodal Officer/Nodal Officer and the pension sanctioning authority shall ensure arrangement for disposal of pension matters within the time schedule.
(6) The pension sanctioning authority shall hold or cause to be held regular monthly meeting of officers/officials, who deal such matter and shall take all appropriate steps for examination and disposal such matters.
(7) The Principal Secretary or Secretary, as the case may be, to be Government in the Department concerned shall supervise the work the Head of the Department/Head of the office in relation to all pension matters within the time schedule.
7. The time frame for the completion of disciplinary proceeding has been provided in the Appendix of 1995 Rules. Under Item of 17 of Time frame period, of six months has been provided for the completion of disciplinary proceedings, discussed hereinafter.
8. The disciplinary proceeding against the Government servants are initiated in pursuance of the provision contained in Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. For convenience, Rule 1, 3, 7 and 8 relevant for present controversy, are reproduced as under:-
UTTAR PRADESH GOVERNMENT SERVANT
(DISCIPLINE AND APPEAL) RULES, 1999
English translation of Karmik Anubhag-1, Not. No. 13/9/98-Ka-1-99 dated June 9, 1999, published in the U.P. Gazetted, extra., Part 4 Section (ka) dated 9th June, 1999, pp 9-17 [AP258]
In exercise of the power conferred by the proviso to Article 309 of the Constitution and in supersession of the Civil Service (Classification Control and Appeal) rules, 1930 and Punishment and Appeal Rules for Subordinate Service, Uttar Pradesh, 1932, the Governor is pleased to make the following rules.:
1. Short title and commencement --These rules may be called the Uttar Pradesh Government servant (Discipline and Appeal) rules, 1999.
(2) They shall come into force at once.
(3) They shall apply to Government servants under the rule making power of the Governor under the proviso to Article 309 of the Constitution except of the Officers and servants of the High Court of Judicature at Allahabad covered under Article 229 of the Constitution of India.
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3. Penalties --The following penalties may for good and sufficient reason and so hereinafter provided, be imposed upon the Government servants:--
MINOR PENALTIES:
(i) Censure;
(ii) Withholding of increments for specified period;
(iii) Stoppage at an efficiency bar
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach or orders;
(v) Fine in case of persons holding Group ''D'' posts:
Provided that the amount of such fine shall in no case exceed twenty five per cent of the months pay in which the fine is imposed.
MAJOR PENALTIES:
(i) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation--The following shall not amount to penalty within the meaning of this rule, namely:--
(i) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such probation.
4. ----
5. ----
6. ----
7. Procedure for imposing major penalties-Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:
(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The Facts constituting the misconduct on which it is proposed to take action shall be reduced in the from of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority.
Provided that where the Appointing Authority is Governor, the charge -sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.
(iii) The charge farmed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.
(v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation:
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence:
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of witnesses and Production of Documents) Act 1976.
(ix) The Inquiry Officer may ask any question he places at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The Disciplinary Authority, if considers 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.
(xii) 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 disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstance of the case so permits.
Provided that the rule 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 Government 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.
8. Submission of Inquiry Report - When the Inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority along with all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof, the Inquiry Officer shall not make any recommendation about the penalty.
9. The plain reading of the aforesaid provisions reveals that disciplinary proceeding may be initiated against a Government employee for misconduct warranting minor or major penalties. 1999 Rules does not provide time frame for the completion of departmental proceeding.
10. After retirement, the relationship between the Government and its employees comes to an end hence ordinarily, an inquiry may not continue under 1999 Rules. However, Civil Service Regulations (in short the CCS Regulations) further empowers the Governor of State to permit for continuance of disciplinary proceeding against Government servants even after retirement. For convenience, Article 351A of the CCS Regulations, is reproduced as under:-
351-A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service.
Provided that-
(1) Such departmental proceedings, if not instituted while the officer was on duty.
(i) shall not be instituted save with the sanction of the specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused, pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.
Provided that-
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment-
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Provincial Government:
(ii) shall be instituted before the officer''s retirement from service or within a year from the date on which he was last on duty whichever is later;
(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and;
(iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct;
(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and
(3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1).
Note--As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.
Explanation--For the purpose of this article-
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted;
(i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted to a criminal court; and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court.
Note--As soon as proceedings or the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.
11. In pursuance of permission granted by the Governor under Regulation 351-A by the order dated 25.5.2008, the disciplinary proceeding against the petitioner as well as Sri K.L. Kushwaha continues even after retirement. However, the petitioner took shelter of 1995 Rules. Item No. 17 of the Time Schedule of 1995 Rules provides that a disciplinary proceeding must be completed within six months after retirement. Rule 4 of 1995 Rules (supra) further provides that in case whenever delay comes to notice of Nodal Officer/Chief Nodal Officer appointed in terms of 1995 Rules, he shall require the Head of the Department or Head of the Office to furnish all relevant information with regard to delay caused in the disciplinary proceeding and shall take appropriate step for disposal of such department proceeding.
LANGUAGE
12. There seems to be difference with regard to language used in notification of English and Hindi version of Item No. 17 of Time Schedule appended to 1995 Rules. For convenience, both the English and Hindi Version are reproduced as under:-
"TIME SCHEDULE"
[See Rule 3(b) and 3(k)]
Hindi Version
13. The plain reading of Hindi and English version of Item No. 17 of Time Schedule, shows the discrepancy in language. In English version, the Legislature used the word, "must" whereas, in Hindi version with regard to period, the word used is, " ", means "should be".
14. The dictionary meaning of the word, "must" as given in Major Law Lexicon by P. Ramantha Aiyar, is as under:-
Must. In its ordinary and mandatory sense, obliged, or required; although the term is often used in a directory or permissive sense as synonymous with may.
The word ''may'' occurring in Section 11(9) of the Act is not intended to be read as ''must'' or ''shall'' [
It is well settled law that every use of the word ''shall'' or ''must in a particular rule or provision of law does not render that provision mandatory. A sound test for determining whether any particular provision is mandatory or not is to find out from the rules under considerations as to what are the consequences of non-compliance with this particular provision which is contended to be mandatory. If, as a result of the rules, non-compliance with any such provision said to be mandatory is not to be mandatory is not visited with any adverse consequences, the provision should be held not to be mandatory but only directory even though expressed by ''shall'' or ''must''.
The word ''must'' occurring in S. 11(iv) of the Act cannot be read as ''may'' as the provision is mandatory in nature. [
Must and may. In People v. Thomas, 32 Misc. (N.Y.) 170, 173, it is said: "The word ''must'' is mandatory. It imports a physical or moral necessity. The word "may", when used in a statute which imposes an imperative duty, is construed to mean ''must'' but the word ''must'' is peremptory. It excludes all discretion, and imposes upon the Court an absolute duty to perform the requirements of the statute in which it is employed.
15. Thus, in appropriate case, the use of word, ''must'' may make the provision mandatory like ''shall'' but in some cases, it may be treated as directory. However, ordinarily, the use of word, ''must'' excludes all discretion and imposes an absolute duty to perform requirements of statutes in which it is employed.
16. In the dictionary "the New Lexicon Webster''s Dictionary of the English Language Deluxe Encyclopedic Edition", the meaning of the word, ''should'' is as under:-
should past of SHALL, auxiliary v. used to express moral obligation, necessity etc., you should work harder, or probability, it should rain tonight if the wind arose, futurity in indirect quotations to replace ''will'' and ''shall'' in direct quotations, we said we should be happy to come, futurity in polite requests or statements with implications of doubt, I should think she will come, or future conditions, if that should happen would you be able to go or past condition I should have been late if I hadn''t taken a tea. (ef SHALL ef. WOULD) (O.E. Sceolde, scolde).
According to "Collins English Dictionary 30th Anniversary Edition (10th Edn. in 2009)", the word, "should" means as under:-
Should vb the past tense of shall: used as an auxiliary verb to indicate that an action is considered by the speaker to be obligatory (you should go) or to form the subjunctive mood with I or we (I should like to see you; if I should be late, go without me).
17. According to "Oxford Advanced Learner''s Dictionary New 8th Edn", the word, "should" is defined as under:-
Should:-
1. used to show what is right, appropriate, etc., especially when criticizing sb''s actions: You shouldn''t drink and drive. He should have been more careful. A present for me You shouldn''t have! (= used to thank sb politely).
2. used for giving or asking for advice: You should stop worrying about it. Should I call him and apologize? I should wait a little longer, if I were you. (ironic) She doesn''t think she''ll get a job ''She should worry, with all her qualifications (= she does not need to worry).
3. used to say that you expect sth is true or will happen: We should arrive before dark. I should have finished the book by Friday. The roads should be less crowded today.
4. used to say that sth was expected has not happened: It should be snowing now, according to the weather forecast. The bus shall have arrived ten minutes ago.
5. Used after I or we instead of would for describing what you would do if sb else happened first: If I were asked to work on Sundays, I should resign.
6. (formal) used to refer to a possible event or situation: If you should change your mind, do let me know. In case you should need any help, here''s my number. Should anyone call (=if anyone calls), please tell them I''m busy.
7. Used as the past form of shall when reporting what sb has said: He asked me what time he should come. (= His words were: "What time shall I come?") (BrE, formal) I said (that) I should be glad to help.
8. (BrE) used after that when sb is suggested or arranged. She recommended that I should take some time off. In order that training should be effective it must be planned systematically. In both NamE and BrE this idea can be expressed without ''should'' She recommended that I take some time off. In order that training be effective..
9. used after that after many adjective that describe feelings: I''m anxious that we should allow plenty of time. I find it astonishing that he should be so rude to you.
10. (BrE, formal) used with I and we in polite requests: I should take to call my lawyer. We should be grateful for your help.
11. Used with I and we to give options that you are not certain about: I should imagine it will take about three hours. Is this enough food for everyone? I should think so. "Will it matter?" I shouldn''t think so.
12. Used for expressing strong agreement: ''I know it''s expensive but it will last for years.'' ''I should hope so too!'' Nobody will oppose it. ''I should think not!''
13. why, how, who, what sb/sth do used to refuse sth or to show that you are annoyed at a request; used to express surprise about an event or a situation: Why should I help him? He''s never done anything for me. How should I know where you''ve left your bag? I got on the bus and who should be sitting in front of me but Tony!
14. used to tell sb that sth would amuse or surprise them if they saw or experienced it. You should have seen her face when she found out. Note at MODAL.
18. On grammatical point of view the word, ''should'' has been defined as under (supra):-
� Should and ought to are both used to say that something is the best thing or the right thing to do, but should is much more common. You should take the baby to the doctor''s. I ought to give up smoking. In question should is usually used instead of ought to should we call the doctor?
� You from the past by using should have or ought to have. She should have asked for some help. You ought to have been more careful.
� The form should not or shouldn''t (and ought to or oughtn''t to, which are rare in NAME and formed in BrE) are used to say that something is a bade idea or the wrong thing to do. You shouldn''t drive so fast.
� The form should not have or shouldn''t have and, much less frequently, ought not to have or oughtn''t to have are used to talk about the past. I''m sorry, I shouldn''t have lost my temper.
should/would
� In modern English, the traditional difference between should and would in reported sentences, conditions, requests, etc., has disappeared and should is not used very much at all. In spoken English the short form ''d is usually used: I said I''d (I would) be late. He''d (he would have liked to how been an actor. I''d (I would) really prefer tea.
The main use of should now is to tell somebody what they ought to do to give advice, or to add emphasis: We should really go and visit them soon. You should have seen it.
19. Thus, wherever the word, ''should'' is used, ordinarily, it gives option for reasonable departure from statutory provisions. Since there is a conflict between English and Hindi version of 1995 Rules to the extent it relates to Item No. 17 of Time Schedule, it shall be appropriate to look into the constitutional provisions with regard to official language.
20. Chapter II of Part XVII of the Constitution deals with regional languages. Article 345 empowers the State Government to adopt Hindi as a regional language or any other language to be used for any official purpose of the State. For convenience, Article 345, 346 and 347 are reproduced as under:-
345. Official language or languages of a State.-
Subject to the provisions of articles 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State:
Provided that, until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution.
346. Official language for communication between one State and another or between a State and the Union.-
The language for the time being authorised for use in the Union for official purposes shall be the official language for communication between one State and another State and between a State and the Union:
Provided that if two or more States agree that the Hindi language should be the official language for communication between such States, that language may be used for such communication.
347. Special provision relating to language spoken by a section of the population of a State.-
On a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout that State or any part thereof for such purpose as he may specify.
21. In the State of U.P., the State Legislature had declared Hindi as official language. Bills are passed and Rules are framed by the Legislature in Hindi and its English Translation is also prepared simultaneously. By the notification dated 12.11.1951, the State of U.P. has declared Hindi as its official language. Accordingly, while interpreting Item No. 17 of Time Schedule (supra), preference should be given to the notification issued in Hindi by the State Government whereby, the word, ''should be'' has been used under Item No. 17 of Time Schedule, which makes the provisions directory and not mandatory. It may be noted that under Article 343, the official language of Union is Hindi Devnagri script and in clause (2) of the Article 343 it has been provided that English language shall continue to be used for official purpose of Union for which it is being used immediately before commencement of the Constitution, which seems to have been extended from time to time. But there appears to be no such constitutional mandate for the States.
22. In pursuance of power conferred by Article 345 of the Constitution, the U.P. Official Language Act, 1951 (in short 1951 Act) was amended by Act No. 9 of 1969 whereby, the State Legislature had declared Hindi language as official language of the State from the date of notification i.e., 12.11.1951. For convenience, Act No. 9 of 1969 in its totality, is reproduced as under:
UTTAR PRADESH OFFICIAL LANGUAGE ACT, 19511
(U.P. Act No. XXVI of 1951 as Amended by Act 9 of 1969)
CONTENTS
Authoritative English text 2 of the Uttar Pradesh Raj Bhasha Adhiniyam, 1951
An Act to provide for adoption of Hindi as the language to be used for the official purposes and other matters of the State of Uttar Pradesh.
Whereas Article 345 and Clause (3) of Article 348 of the Constitution provide inter alia that the Legislature of a State may by law adopt Hindi in Devnagri script as the language to be used for official purposes of the State and for matters hereinafter appearing; It is hereby enacted as follows-
1. State title, extent and commencement-- (1) This Act may be called the Uttar Pradesh Official Language Act, 1951.
(2) It extends to the whole of Uttar Pradesh.
(3) It shall come into force at once.
Prefatory Note--For S.O.R., see Gaz. Extra., dated Aug. 23, 1951; for discussion, see L.A. Pro., dated Aug. 23, 1951, in Vol. XCVI, p. 125, dated Sept. 18 and 19, 1951 in Vol. SCVIII, pp. 135--147 and 163--210, dated Sep. 24, 25, 26 and 27, 1951, in Vol. XCIX, pp. 29, 69--114, 125--177 and 187--193, dated March 7, 1952, in Vol. C, p. 21 and L.G. Pro. Dated Sept. 28 and 29, 1951, In Vol. XXIV, pp. 207, 240--256 and 257--278.
Passed in Hindi by the U.P. Legislative Assembly on Sep. 27, 1951, and by the U.P. Legislative Council on Sep. 29, 151.
Received the assent of the Governor on Nov. 5, 1951, under Article 200 of the Constitution of India.
2. Hindi to be official language of the State--Without prejudice to the provisions of Article 346 and 347 of the Constitution, Hindi in Devnagri script shall, with effect from such date [****]2, as the State Government may, by notification3 in the official Gazette, appoint in this behalf, be the language used in respect of the follows:-
(a) (i) ordinances promulgated under Article 213 of the Constitution.
(ii) orders, rules regulations and bye-laws issued by the State Government under the Constitution of India or under any law made by Parliament or the Legislature of the State, and
(b) all or any of the official purposes of the State; and different dates may be appointed for different purposes in clauses (a) and (b) aforesaid.
4[Provided that the State Government may by general or special order in this behalf permit the use of the international form of Indian numerals for any official purpose of the State.]
23. The aforesaid 1951 Act was further amended by Act No. 28 of 1989 whereby, in Section 3 of the said Act further addition has been made therein that Urdu language shall be used as second official language for such purposes as may be notified by the State Government from time to time.
It may be noted that U.P. Uttar Pradesh Official Language (Subordinate Courts) Act, 1970 was amended by Act No. 17 of 1970 whereby it has been provided that from the date of notification in the official gazette, orders and judgments of subordinate courts shall be in Hindi i.e., Devnagri script with international form of Indian numericals.
24. We have been fortified from the judgment of Hon''ble Supreme Court in the case of M.S. Associated Distributors Ltd. (supra), relied upon by Sri Abdul Moin learned Additional Chief Standing Counsel. In the said case, their lordships of Hon''ble Supreme Court also ruled that in the event of conflict between Hindi and English script of a notification, the notification issued in Hindi language, shall be applicable, to quote relevant portion as under:-
7. It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that Bubble-gum comes within the category of a Sweet.
25. The importance of mother tongue or the language used by incumbent in his or her daily life, has been given due weight by Hon''ble Supreme Court in an appeal decided on 1.5.2013, in the Civil Appeal No. 4472 of 2013 (Arising out of SLP (C) No. 10723/2012) (Mithilesh Kumar Singh. Vs. Union of India and others). While upholding the right of delinquent employee to claim that inquiry proceeding must be conducted in his mother language, their lordships of Hon''ble Supreme Court held that denial of such right, shall be denial of reasonable opportunity to defend, hence shall be hit by Article 14 of the Constitution of India. Their lordships further reiterated the Rules framed by the Central Government with regard to use of Hindi as official language and observed, to quote:-
A perusal of the aforesaid provisions would bring forth the legislative intention in respect of the use of Hindi language for official purposes of the Central Government wherever practicable or desired besides English language so as to ensure that the employees may function effectively and not be put to prejudice on ground of lack of proficiency in either English or Hindi language.
26. Hon''ble Supreme Court further emphasising for disciplinary proceeding in a language understood by delinquent employee (in the present case, ''Hindi''), held as under:-
23. Further, the aforesaid denial of statutory rights to the appellant alongwith the non-conduct of inquiry proceedings in the language desired by the appellant to facilitate his effective participation in the said proceedings would also lead to gross violation of principles of natural justice. It is to be noted that intrinsically embodied in the principle of fair hearing are two elements: firstly that the opportunity of hearing must be given and secondly that the opportunity must be reasonable. The purpose of such opportunity of hearing to a person against whom disciplinary action is sought is to enable him to controvert, contradict or explain the material allegations against him or any statement that may be prejudicial to his interest, meaning thereby that such opportunity must be adequate and fair so as to encompass within its ambit the right to put forth adequate defence. (See:
24. In the instant case, the aforesaid principle of reasonable opportunity of hearing has been vitiated by the refusal of the respondents to duly notify the appellant with the charges imputed against him in the language desired by him. In order that the aforesaid right becomes real right, it must carry with them the right in the appellant to defend his case in the best possible manner, i.e., the appellant to know the case made out against him, the evidence given and the statements made affecting him alongwith the right of having a fair opportunity to correct or contradict them. (See: 16D C.J.S. Constitutional Law '' 1783; Wade and Forsyth, Administrative Law, 9th Ed., Oxford University Press, p. 514; Samaraditya Pal, Law Relating to Public Service, 3rd Ed., 2011, Lexis Nexis Butterworths Wadhwa Nagpur, p. 742). If the said is not done, it would infringe the rule that justice must not only be done, but also seen to be done. However, abundant caution must be exercised in ensuring that this right to defend must not be reduced to mere lip service by the authority. The essence of this facet of natural justice lies in adequate and reasonable opportunity to put forth the defence before the disciplinary authority and any deviation from the said rule would tantamount to shell opportunity and be no opportunity in the eye of law. (73A Corpus Juris Secundum, Public Administrative Law and Procedure, Hearings and Adjudications, Notice and Hearing, Elements and Essentials of Hearing, ''257). In the instant case, the requests of the appellant were justified and were to facilitate him to effectively understand and then participate in the case brought forth by the respondents. The appellant had only required the charge-memo and the correspondence in Hindi language so as to exercise his right to defend himself against the charges so framed from the respondents. The denial of the respondents to provide him with the charge-memo in Hindi language have directly impinged upon his right to effectively put forth his case in defence of the charges against him and thus resulted in gross injustice to the appellant.
27. Hence primacy given to notification issued in Hindi being official language of State of U.P., shall be in public interest keeping in view the fact that the language of majority of the population of State of U.P., is Hindi or Urdu mixed Hindi speaking.
28. Since the official language of the State of U.P., has been declared Hindi Devnagri script in pursuance of power conferred by Article 345 of the Constitution, and the original bill passed by the Legislature is also in Hindi, in the event of conflict between Hindi and English version, the Hindi version of the statute shall prevail over the English version. The English version of the statutory provisions are mere translation of the Hindi version. Since entire proceeding of State Legislature is executed in Hindi and notifications are issued accordingly, the English version is mere translation of Hindi version. Therefore, in the event of language conflict, the Hindi version of statutory notification shall prevail over the English version.
INTERPRETATION
29. Under Rule 2 (supra), of the 1995 Rules the Director of Pension shall be the Chief Nodal Officer and shall be responsible to implement 1995 Rules. Under Rule 4 (supra) whenever attention of Nodal Officer or Chief Nodal Officer is invited with regard to delay caused in disciplinary proceeding, he or she shall find out the person responsible for delay and may recommend for disciplinary action against the officer who is responsible in causing delay of disciplinary proceeding. A person who fails to furnish required information to Nodal Officer or Chief Nodal Officer, shall be guilty of misconduct and shall be punishable under the service Rules applicable to him. The Nodal Officer/Chief Nodal Officer shall be the supervisory authority to ensure that the departmental proceeding of retired Government employees are completed expeditiously say, within six months in terms of item No. 17. However, neither Rule 4 nor Item No. 17 of Time Schedule provides consequence in case disciplinary proceeding is not completed within six months after retirement. The combined reading of 1995 Rules, reveals that at the most, the Nodal Officer/Chief Nodal Officer may direct to pay retiral dues and recommend for disciplinary proceeding against the persons who is responsible in causing delay of disciplinary proceeding in terms of Rule 4 of 1995 Rules. In any case neither rule 4 nor Item No. 17 of Time schedule (supra) provides that disciplinary proceeding shall lapse in case not completed within period of six months.
30. The disciplinary proceeding is initiated under 1999 Rules (supra) or alike Rules and continues even after retirement in terms of permission granted by the Governor of the State under Regulation 351A of Civil Service Regulations. Rule 3 of 1995 Rules gives it overriding effect over other Rules but it does not mandate with regard to closure of disciplinary proceeding after the period of six months. Once the Governor has granted sanction under Regulation 351A of civil Service Regulations, then there appears to be no reason to draw an inference that the disciplinary proceeding shall come to an end after lapse of six months from the date of retirement.
31. In case in terms of Item No. 17 of Time Schedule inquiry is not completed within a period of six months, then 1995 Rules (supra) itself provides the complete guidelines with regard to consequential action. It is a complete code in itself. In view of the provision contained in Rule 4 (supra), the inaction or delay caused by the disciplinary authority in concluding the inquiry within the time frame of 6 months shall be deemed to be misconduct by the fiction of law and such person may face departmental proceeding and accordingly, be punished. In any case, in the absence of any penal provision or provisions with regard to closure of departmental inquiry under Item 17 of Time Schedule provided in 1995 Rules, it is not open for the court to hold that after lapse of six months the disciplinary proceedings shall be lapsed. While considering Item No. 17, the provision contained in Rule 4 of 1995 Rules cannot be overlooked.
32. It is well settled rule of the construction that the statute must be read as a whole and one provision of the Act or Rule, should be construed with reference to other provisions in the same Act or Rule, so as to make a consistent enactment of the whole statute.
Maxwell in his famous treatise, "The Interpretation of Statutes", while laying down principles with regard to interpretation, observed as under:-
A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.
[12th Edn. Page 36]
33. Such construction has merit of avoiding any inconsistency or repugnancy either with a Section or Rule or between a Section or other parts of the statute. It is the duty of the Courts to avoid head on clash between two sections or Rules of the same statute, vide
34. In a recent judgment in Civil appeal No. 7600 of 2012 arising out of SLP (C) No. 1673 of 2012 (Rajesh Awasthi. Vs. Nand Lal Jaiswal & others, decided on 19.10.2012, their lordships of Hon''ble Supreme Court while affirming the Division Bench (Hon''ble Mr. Justice Devi Prasad Singh and Hon''ble Mr. Justice S.C. Chaurasia) judgment of this Court (Writ Petition No. 1428 (M/B) of 2011 decided on 10.1.2012) reported in JT 2012 (11) SC 1: Rajesh Awasthi. Vs. Nand Lal Jaiswal and others, while interpreting Section 85 of Electricity Act, 2003, reiterated what Lord Brougham said in Crowford v. Spooner (1846) 6 Moore PC 1, to quote:-
one has to take the words as the Legislature has given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question controlled or altered.
Their lordships further re-affirmed what Viscount Haldane has said in Attorney General v. Milne (1914-15) AER 1061, to quote:-
the language used "has a natural meaning, we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so.
Hon''ble Supreme Court further re-affirmed what Viscount Simon, L.C., said in Nokes v. Dancaster Amalgamated Collieries Ltd. (1940) 3 AER 549, to quote:-
the golden rule is that the words of a statute must prima facie be given their ordinary meaning.
35. In one another judgment reported in
65. Mr. Sorabjee has also rightly pointed out the observations made by Lord Diplock in Duport Steels Ltd. In the aforesaid judgment, the House of Lords disapproved the approach adopted by the Court of Appeal in discerning the intention of the legislature; it is observed that:- (WLR p. 157 C-D)
...the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution it is Parliament''s opinion on these matters that is paramount.
(Emphasis supplied)
In the same judgment, it is further observed:- (WLR p. 157 F)
...But if this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts...
(Emphasis supplied)
66. The above are well accepted principles for discerning the intention of the legislature. In view of the aforesaid, we shall construe the provision contained in Section 2(2) without adding the word "only" to the provision.
36. In Lakhan Lal Ahirwar''s (supra) the Division Bench failed to reconcile the provision contained in Rule 4 and Item No. 17 of Time frame (supra) hence seems to be per incuriam to the law settled by Hon''ble Supreme Court.
37. Per incurrium means in ignorance of or without taking note of some statutory provisions or the judgment of Hon''ble Supreme Court or the larger Bench, vide;
38. The concept of "per in curiam" in all those decisions given is "in ignorance" or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned, i.e., previous decisions of the Court i.e. its own Court or by a Court of co-ordinate or higher jurisdiction or in ignorance of a term of a statute or by a rule having the force of law. "Incuria", literally means "carelessness". In practice, per incuriam is taken to mean per ignoratium. (Vide
39. In
40. In
41. A similar view has been reiterated in
"Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ''''quotable in law", as held in Young Vs. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, is avoided and ignored if it is rendered, ''''in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short "the Constitution") which embodies the doctrine of precedents as a matter of law. The above position was highlighted in
42. Neither English version nor Hindi version of Item No. 17 of Time frame of 1995 Rules, stipulates the consequence, which may halt the disciplinary proceeding forever. In any case, a plain reading of Item No. 17 (supra) does not provide that in case inquiry is not completed within six months, the disciplinary proceeding shall lapse or come to an end as argued by the learned counsel for the petitioner.
43. In spite of the fact that Rule 17 does not provide the closure of disciplinary proceeding after lapse of six months, the Lakhan Lal Ahirwar''s case (supra) provides that after lapse of six months disciplinary proceeding shall come to an end. Virtually, Lakhan Lal Ahirwar''s case (supra), supplies causus omissus to Item No. 17 of the Time frame of 1995 Rules (supra) which seems to be not permissible under the facts and circumstances of the present case. Ordinarily, court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous vide
44. It should also not be lightly presumed that what the Legislature has given with one hand, be taken away by another hand. Means what has been provided under Rule 4, may be frustrated by Item No. 17 of Time frame under 1995 Rules (supra), vide Tahsildar Singh and Another vs. The State of Uttar Pradesh;
45. It is further settled rule of construction that when there are conflict in enactments of two provisions which cannot be reconciled with each other, then, they shall be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of ''harmonious construction'' vide,
46. A construction with reduces one of the provisions to that of a provision as ''dead letter'' or ''useless lumber'' is not harmonious construction. To harmonize is not to destroy any statutory provision or to render it otiose, vide
47. In view of the above, in case the principle of harmonious construction is applied to the provisions contained in 1995 Rules i.e., Rule 4 as well as Item No. 17 of Time frame of 1995 Rules and is given effect, then in such situation, it shall be obligatory on the part of the disciplinary authority to conclude the disciplinary proceedings within six months but in case it is not concluded then action may be taken by the Nodal Officer or the Chief Nodal Officer in terms of Rule 4. But disciplinary proceedings shall not lapse by reading down a provision, in the absence of any provision either in Rule 4 or Item No. 17 of Time frame of 1995 Rules.
48. In view of the above, Lakhan Lal Ahirwar''s case (supra) does not seem to lay down correct law. The option is open to the employee facing disciplinary proceeding to invoke Rule 4 of 1995 Rules (supra) and remind the Nodal or Chief Nodal Officer of his statutory obligations by representing his or her cause or approach the High Court under writ jurisdiction to enforce the statutory obligations by the authorities in terms of Rule 4 of 1995 Rules (Supra).
49. There may be cases where for no fault on the part of the Government employee, the inquiry proceeding is prolonged as a measure of harassment, then in such cases, the employee has got opportunity to approach High Court under writ jurisdiction or Hon''ble Supreme Court for quashing of proceeding or for appropriate order or direction or pursue the matter under Rule 4 of the 1995 rules (supra).
50. It is well settled proposition of law that ordinarily, mere delay in disciplinary proceeding itself, cannot be regarded to have violated Article 14 or 21 of the Constitution of India. The disciplinary proceeding ordinarily, may not be set aside by the process of judicial review except in rare cases on certain specified grounds, vide
51. Hon''ble Supreme Court in some of the cases while dealing with the situation where inquiry proceeding has been instituted after inordinate delay or prolonged for no fault on the part of the employee, has interfered and passed orders, vide
Accordingly, in the event of delay in conclusion of disciplinary proceeding, option is open to the Government employees to approach for judicial review of State action and the court may look into the matter and pass appropriate order to secure ends of justice.
52. In Lakhan Lal Ahirwar''s case (supra), the Division Bench had made the following observation while interpreting the Item No. 17 as under:-
10. As per time schedule there are two modes of taking decision. As per first part of the time schedule the decision will be taken within three months after receipt of Government Order. The impugned Government Order has been passed on 6th October, 2006 with the sanction of the Governor and even such period has expired before filing of the writ petition without any decision thereof. As per the second part of the time schedule i.e., departmental proceeding, which has been instituted before retirement must be completed within six months after retirement. Even such period has already expired since the petitioner retired from service on 28th February, 2006.
11. Even if we hold that right to initiate proceedings would include right to continue the proceedings but the mandatory part of the Rules 1995 says that the departmental proceedings, if instituted before retirement, it must be completed within six months after retirement. Therefore, such mandatory part of the Rules cannot be ignored being special in nature which overrides general. Such period is already over. If we go independently with authority of the Governor''s as per Article 351-A CSR on initiation, we are of the view that such period has also expired as per the aforesaid Rules.
12. Therefore, we hold that the order impugned dated 6th October, 2006 is inoperative in nature. The petitioner cannot be put under any embargo from getting pensionary benefits.
The case of Lakhan Lal Ahirwar''s case (supra), relies upon the English version of Item No. 17 of Time Schedule of 1995 Rules. It has not taken into account the Hindi version and secondly, their lordships have not considered the material fact that even if the English version is taken into account and is treated as mandatory, Item No. 17 does not provide the consequences to be followed in case disciplinary proceeding is not completed within time of six months. Consequence has been given in Rule 4 of 1995 Rules. In case the ratio of Lakhan Lal Ahirwar''s case (supra), is treated to be correct one, then it may amount to supplying the causes omissus or applying the principle of reading down, which seems to be not correct in view of the fact that the language of Item No. 17 of 1995 Rules does not suffer from any ambiguity.
53. In
54. In
55. In
56. Hon''ble Supreme Court in the case of
57. In the case of
58. In the case of
59. In the case of
60. In the case of
61. In the case of
62. In
63. In Lakhan Lal Ahirwar (supra), the Division Bench had taken into account the Item No. 17 of Time Schedule in its isolation. It has not considered the rules in its entirety and the mandate of Rule 4 of 1995 Rules, hence is Per incuriam to Rule 4 of 1995 Rules as well as law settled by Hon''ble Supreme Court (supra).
Mandatory/Directory
64. In Black''s Law Dictionary, the words, "mandatory" and "directory" have been defined as under:
directory, n. 1. A book containing an alphabetical list of names, addresses, and telephone numbers, esp. those of a city''s or area''s residents and businesses. [Cases: Telecommunications 875.] 2. Any organization''s publication containing information on its members or business, such as a legal directory. 3. Eccles. Law. A church''s book of directions for conducting worship. � One of the primary directories is the Directory for the Public Worship of God, prepared by the Assembly of Divines in England in 1644 to replace the Book of Common Prayer, which had been abolished by Parliament (and was later reinstated). The Directory was ratified by Parliament in 1645 and adopted by the Scottish Parliament and General Assembly of the Church of Scotland that same year. A directory in the Roman Catholic Church contains instructions for saying the mass and offices each day of the year. 4. A small governing body; specif., the five-member executive body that governed France from 1795-1799 during the French Revolution until it was overthrown by Napoleon and succeeded by the consulate.
mandatory, adj. (15c). Of, relating to, or constituting a command; required; preemptory.
A provision in a statute is said to be mandatory when disobedience to it, or want of exact compliance with it, will make the act done under the statute absolutely void. Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 334 (1896).
65. It is vehemently argued by the petitioner''s counsel that the provisions contained in Item No. 17 of Time Schedule of 1995 Rules, is mandatory and its non-compliance shall vitiate the continuance of further disciplinary proceeding after the lapse of six months.
66. Sri Moin Ahmad, learned Additional Chief Standing Counsel on the other hand, argued that in case Item No. 17 is read along with Rule 4 (supra), it shall be directory in nature and disciplinary proceeding shall not vitiate after lapse of six months except that provision contained in Rule 4 of 1995 Rules shall come into effect and appropriate action may be taken in accordance with law.
67. The argument advanced by the petitioner''s counsel seems to be misconceived. We have already held that in Lakhan Lal Ahirwar''s case (supra) Rule 4 of 1995 Rules has not been considered. Hence, it does not lay down the correct law.
68. Coming to the mandatory nature of the provision, it shall be appropriate to deal with the law on the subject. Whether, a provision is mandatory or directory in addition to language used in the statute, the Court has to examine the context in which the provision has been used and the purpose it seeks to achieve. It shall also be necessary to find out the intent of legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.
69. Supreme Court in the case of
It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision 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 legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.
70. A Constitution Bench of the Hon''ble Supreme Court, in
For ascertaining the real intention of the Legislature, the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
71. In the case of Banwarilal Agarwalla (supra), the Constitution Bench of Hon''ble Supreme Court while considering the question with regard to directory or mandatory nature of a statutory provisions, their lordships held that language is only one of the meaning considerations which has to be taken into account in deciding whether a requirement is directory or mandatory. Meaning thereby, language is not final ground on which a decision is to be taken with regard to mandatory and directory of the statutory provisions.
72. In
73. In
In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.
Similar view has been reiterated in
74. In
75. In
The use of the word ''shall'' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would of so demand. Normally, the word ''shall'' prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ''shall'', therefore, ought to be constructed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word ''shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.
76. In
77. In Ram Deen Maurya''s case (supra), Hon''ble Supreme Court held that in case in a provision, consequence of non-compliance is not provided, then such provision shall be mandatory, to quote relevant portion of the judgment (supra) as under:-
52. While considering the non-compliance with procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice and furthers its ends and, therefore, if the consequence of non-compliance is not provided, the requirement may be held to be directory.
78. In
79. In
80. The law on this issue can be summarised that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. But the circumstance that Legislature has used the language of compulsive force is always of great relevance and in the absence of anything contrary in the contest indicating that a permissive interpretation is permissible, the Statute is to be construed as peremptory.
81. In Salem Advocate Bar Association''s case (supra), Hon''ble Supreme Court while considering the provisions contained in Order 8 Rule 1 of CPC, with regard to filing of written statement, held it to be directory. It is held that upper limit of 90 days for filing of written statement may be as extended by the courts on the ground that provision is not mandatory but directory.
In the case of Zolba (supra) also, the case of Salem Advocate Bar Association (supra) has been reiterated by the Hon''ble Supreme Court.
82. In view of the above, in case the entire 1995 Rule is read collectively even without considering the language of the provisions, then Item No. 17 of the schedule of the Rule in question, seems to be directory. Subject to action under Rule 4 of the Rules, inquiry proceeding may continue beyond six months for a reasonable period that too, subject to judicial review of State action. We have considered cases relied upon by the Additional CSC (supra). It shall be appropriate to consider the cases relied upon by the petitioner''s counsel.
83. In the case of Bhagirathi Jena (supra), their lordship of Hon''ble Supreme Court held that after retirement inquiry proceeding shall lapse in case there is no specific provision for its continuance after retirement. The case of Bhagirathi Jena (supra) relates to Financial Corporation of the State of Orrisa. Where there appears to be no provision like Article 351-A of Civil Service Regulations read with Service Rules (supra). The court was not seized with the controversy where identical provision was in issue. Hence seems to be not applicable under the facts and circumstances of the present case.
84. Same principle of law has been reiterated by this Court in the case of Rajkiya Krishi Utpadan Mandi (supra) where, finding has been recorded that in view of non-applicability of Article 351-A of the Civil Services Regulations, inquiry may not continue after retirement.
85. In the case of May George (supra), their lordships of Hon''ble Supreme Court held that where question arose as to whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application.
86. Keeping in view the ratio of May George (supra), there appears to be no room of doubt that purpose of Rule is to expedite the disciplinary proceeding but in any case, if it is not completed within the period of six months, then consequence have been given in the Rules itself i.e., under Rule 4, to take action against the erring authority. Item No. 17 does not provide consequence. Hence as held (supra), it shall be deemed to be directory and it is not open for this Court to supply casus omissus.
87. Reliance placed on the case of Ram Deen Maurya (supra), seems to be misconceived. Hon''ble Supreme Court in the same case (para 52) held that in case consequence is not provided in a statutory provision, it shall be deemed to be directory.
88. The case of Raghubir Dayal (supra) relates to publication of substance of a notification or declaration in a newspaper. It is held that statutory requirement with regard to publication is directory. Hon''ble Supreme Court held that it shall be considered as it may but it shall depend upon the facts and circumstances of the case. There appears to be no reason to object the proposition which has been consistent view of the Hon''ble Supreme Court. Their lordships after discussing purpose of notification u/s 6(1) of Land Acquisition Act, 1894, as mandatory which seems to be not applicable under the facts and circumstances of the present case.
89. In the case of Sri Krishna Pandey (supra), Regulation 351-A of Civil Services Regulations was considered by the Hon''ble Supreme Court. Their lordships held that Governor has right to withdraw pension or part thereof, to quote relevant portion as under:-
4. A reading thereof clearly indicates that the Governor reserves to himself the power and right to withhold or withdraw pension or a part thereof, whether permanently or for a specified period. Equally, he has right to order recovery from pension of the whole or part of any pecuniary loss caused to Government when it is found in a departmental or judicial proceedings that the delinquent was guilty of grave misconduct or has caused pecuniary loss to the Government by his misconduct or negligence while he was continuing in service including the period of his re-employment after retirement. But the conditions precedent are that the departmental proceedings should be initiated only either before retirement or during re-employment and the same shall not be instituted without the sanction of the Governor. It should be in respect of an event which may have taken place not more than 4 years before the institution of such proceedings.
5. Explanation to the rule purports to give the meaning to the words ''commencement of departmental proceedings''. It says that departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or if the officer has been placed under suspension from an earlier date, from such date the date of suspension and the proceedings shall be deemed to have been instituted in the case of criminal proceedings, on the date on which complaint is made or a charge-sheet is submitted to a criminal court; and in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to the civil Court. As soon as the proceedings of the nature referred in the articles are instituted, the authority which institutes such proceedings shall without delay intimate the fact to the audit officer of the concerned.
Thus, in Sri Krishna Pandey''s case (supra), their lordship of Hon''ble Supreme Court held that the misconduct should be not more than four years before institution of such proceedings and secondly, departmental proceeding shall commence when the chargesheet is issued or from the date of suspension. Their lordship further held that it is not necessary that departmental proceeding should be instituted against the delinquent officer before retirement, to quote relevant portion of para 6 is reproduced as under:-
6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon.
In view of the above, the case of Sri Krishna Pandey seems to be not applicable in the facts and circumstances of the present case.
90. The case of Major Radha Krishan (supra), relates to a controversy where the order of termination was in issue. Hon''ble Supreme Court held that action taken in exercise of power under a Rule, cannot override the provisions of the statute under which the Rule was made.
91. The case of P.N. Srivastava (supra) relates to a situation where inquiry was not concluded within time frame provided by the Court during the course of hearing. It has been held that in case inquiry is not concluded within time framed, the disciplinary authority has no right to proceed beyond the period provided under the Rule unless it is extended.
92. Judgments have to be read in reference to context of particular statutory provisions interpreted by the Court. Decision cannot be relied upon in support of the proposition that it did not decide vide,
93. The cases relied upon by the petitioner''s counsel, do not seem to be applicable under the facts and circumstances of the present case. Rather, some of the cases help the respondent State.
94. In view of the above, in case Item No. 17 of 1995 Rules is read with Rule 4 and the entire Rule as a whole, the inquiry may continue even after six months subject to punitive action by Rule 4 and the judicial review of State action. The case of Lakhan Lal Ahirwar (supra) seems to be decided solely after taking into account the Item No. 17 without considering the effect of Rule 4 as well as Hindi and English version of Rules (supra), hence, it does not seem to lay down correct law. In view of the above, the question referred, is answered as under:-
1. Item No. 17 of U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995, is directory and even if inquiry continues beyond period of six months or is delayed, it shall not be inoperative.
2. The judgment in Lakhan Lal Ahirwar''s case (supra), does not lay down the correct law and the Item No. 17 of Schedule of U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995, is not mandatory but is directory.
The question referred is answered accordingly. Let matter be sent to Division Bench concerned for adjudication of Controversy in the light of answer given hereinabove.
The reference is decided accordingly.
1 Published in Gaz. Extra., dated Nov. 12, 1951.
2 Omitted by U.P. Act No. 9 of 1960.
3 See Noti. No. U.O. 718/XVII, dated Oct. 30, 1951, in Gaz. Extra., dated Oct. 30, 1952.
4 Ins. By U.P. Act No. 9 of 1969.
