TMI Blog1957 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... liance with those provisions does not afford a cause of action to the respondent in a court of law. It is not for this Court further to consider what other remedy, if any, the respondent has. Appeal No. 27 is, therefore, allowed and appeal No. 28 dismissed. - C.A. 27 OF 1955 - - - Dated:- 20-9-1957 - SUDHI RANJAN DAS, T. L. VENKATARAMA AIYYAR, BHUVNESHWAR P. SINHA, J. L. KAPUR AND A.K. SARKAR, JJ. JUDGMENT These two cross-appeals on certificates granted by the High Court under Art. 132 (1) of the Constitution, arise out of a common judgment and order of a Division Bench of the High Court of Judicature at Allahabad, in two writ petitions Nos. 121 and 817 of 1953, dated January 8, 1954, allowing, in part and dismissing in part, the two petitions under Art. 226 of the Constitution, by which the petitioner questioned the validity of the orders passed by the Government of Uttar Pradesh, reducing him in rank, and ordering his compulsory retirement from service. Civil Appeal No. 27 has been preferred by the State of Uttar Pradesh and Civil Appeal No. 28 by the petitioner in the Court below. For the sake of brevity, we shall refer to the State of Uttar Pradesh as the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted a lengthy written statement in his defence and did not insist on oral examination of witnesses, but enclosed with his explanation certain affidavits in support of his case. The Director of Education, after a thorough inquiry into the charges framed against the respondent, submitted a report to the effect that the charges framed against him had been substantially proved. He, recommended that the respondent be demoted to the subordinate Education Service and be compulsorily retired. After considering the report aforesaid, the Government decided on November 7, 1952, to call upon the respondent, under Art. 311(2) of the Constitution, to show cause why the punishment suggested in the departmental inquiry report should not be imposed upon him. In pursuance of the sbow-cause-notice served upon the respondent on November 13, 1952, he put in a long written explanation on November 26, 1952, on the same lines as his written statement of defence submitted earlier as aforesaid, bearing on the merits of the findings as also objecting to the procedure adopted at the inquiry. He also showed cause against the proposed punishment. A Government notification dated January 9, 1953, was publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the respondent, the State Government passed its final order dated September 12, 1953, reducing the respondent in rank from the U. P. Education Service (Junior Scale) to Subordinate Education Service, with effect from August 2, 1952, and compulsorily retiring him. The order of compulsory retirement was more or less superfluous as the respondent would have retired in the ordinary course with effect from September 15, 1953, as already indicated. During the pendency of the first writ petition, and after it had been heard by the High Court in part, the respondent filed the second writ application (being Writ Petition No. 817 of 1953) on September 23, 1953, practically covering the same grounds and praying for the same reliefs as aforesaid. A Division Bench of the High Court, presided over by the Chief Justice, by its judgment and order dated January 8, 1954, disposed of both the writ petitions holding that the orders impugned were invalid for the reason that the provisions of Art. 320(3) (c) of the Constitution had not been fully complied with because the last written explanation of the respondent submitted on July 3, 1953, had not been placed before the Commission. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. In this case, therefore, we have proceeded on the assumption that though the Commission was consulted as to the guilt or otherwise of the respondent and the action proposed to be taken aginst him after he had submitted his explanation in answer to the first show-cause-notice, there was no consultation with the Commission after the respondent had submitted his more elaborate explanation in answer to the second show-cause- notice. Hence, the main question in controversy in appeal No. 27 of 1955 is whether the High Court was right in taking the view that Art. 311 was subject to the provisions of Art. 320(3)(c) of the Constitution, which were mandatory, and, as such, non-compliance with those provisions in the instant case was fatal to the proceedings ending with the order passed by the Government on September 12, 1953. The High Court started with the assumption that the provisions aforesaid of the Constitution are mandatory and on that assumption proceeded to consider the further question whether non-compliance with those provisions by the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of P. Joseph John v. The State of Travancore Cochin ( [ 1955] I S.C.R. 1011), the question of consultation with the State Public Service Commission was raised in slightly different circumstances. After the Government had before it the result of the inquiry into the conduct of the public servant, and after the punishment was tentatively arrived at, the Commission was consulted and it agreed to the proposed action. But this consultation and agreement was before the public servant was asked to show cause against the action proposed to be taken against him. His complaint was that the Commission should have been consulted after he had moved the Government for reviewing its previous order, and this Court ruled that it was not incumbent on the Government to consult the Commission as many times as he might choose to move the Government by way of review. In that case, this Court did not discuss and pronounce upon the alleged mandatory character of Art. 320 of the Constitution. Hence, it may be taken that we have to determine this controversy for the first time, though, according to the strict construction of the words of Art. 320(3)(c), an application for review would be covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Railway Company v. Normandin (L.R. [1917] A.C. 70). In that case the question mooted was whether the omission to revise the jury lists as directed by the statute had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury 'Lists will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment: .. ............ The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render the proceeding invalid. In that connection, the following quotation from Crawford on 'Statutory Construction'-art. 261 at p. 516, is pertinent: The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in Which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other........... We have already indicated that Art. 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Art. 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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