QG‘J L Wm Qla aoeg/yw Cd 112; THE MADHYA §RADESH STATE Ammnsmmwm TBIBIMAL ’ Swigawm. “Emca ‘ AT”J.&BALP’U§ gm? .2 . oAJsI Leé‘cmr 1991+ cd-{xghg ;> 9 wzas’ wPLICMT 3 Ramgovnd Shukla, aged abou’s ' 27 years, /omkamath Shuka, Oecoce Constbla o.82+, PBS. Mar ISTT :RAJNIDGAOH (M .P .) . é verss -= . State of Mahya ?radesh, Through 8ecretary Di m , epartmen: of Hoe {Palice} allab‘ Bhawan, BHOAL (M..} Vn ' P P Rmzommg s g 2 Director Geeral o olce, l’ic Head Qurters, 3. nspector eneral of Polie, hilai Zon, HIE (M . .) DISTT :DURGo 01 00, 5a a o , MIANDGAON (M 13 .) $.Gl 6a M.il, T OI I 3 PS' : anpur, ‘ ITRICT :mammmmxw (M .P a) . 1‘ / \ P x ‘ i Sw l mPli a N2 npu, D M u 1 d : , .. n f Pi Eoe a Madya radesh, BHGPAL (M39). h P I G c B e BLA P D G ip an Baux: Rge, RAIPUR (M.P.) . S ? J- . . M DS DETALL$ OF AP?LIEATIDXI HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 974 0f2005 PETITIONER Moturam. VERSUS RESPONDENTS : State of Madhya Pradesh & Others. WRIT PETITION (S) No. 975. of 2005 PETITIONER Rajkumar. VERSUS RESPONDENTS : State of Madhya Pradesh & Others. WRIT PETITION (S) No‘ 976 0f2005 PETITIONE : Bhuvaneshwar. VERSUS RESPONDENTS : State of Madhya Pradesh & Others. 'WRIT PETITION (S) No. 977 0f2005 PETITIONER : Ashok Kumar Sahu. VERSUS RESPONDENTS : State of Madhya Pradesh & Others. & WRIT PETITION 1S! N0. 978 of 2005 Ramgovind/Shukla. VERSUS $ETITIONER w RESPONDENTS State of Madhya Pradesh & Others. Post for pronouncement ofjudgment & order on ..4{-.+.’.‘.day of April, 2011 I Satish K. Agnihotri ‘ Judge Sdl— R HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION gS t No‘ 974 of 2005 Moturam. ' VERSUS State of Madhya Prade WRIT PETITION (S) N0. 975 of 2005 PETITIONER State of Madhya Pradesh & Others. PETITIONER RESPONDENTS sh & Others. Rajkumav . VERSUS W WRIT PETITION {S ) No. 976 of 2005 Bhuvaneshwar. VERSUS State of Madhya Pradesh 8L O PETITIONER thers . RESPONDENTS WRIT PETITION §S2N0. 977 0f 2005 Ashok Kumar Sahu. VERSUS PETITIONER of Madhya Pradesh & Others. State RESPONDENTS WRIT PETITION 1S) No. 978 of 2005 Ramgovind Shukla. EEHONER I P_(__,’—¢ JsmNDENTsi VERSUS State ofM v M adhya Pradesh & Others. SB Hon’ble Shri Satish K. Agnihotri, J. Palia Advocate for the petitioners’ Shri Y.S.Thakut, Deputy Advocat respondent No. 1 to 5. e Genetal for the State/ Shri Jitettdra Present: (Delivered on ..4ff.(.day ot'April, 201 i) The dispute involved in these petitions relate to the same incident. Thus, all the matters are being considered together and being disposed ofby this common orders The petitioners, namely Moturam, Constable, Rajkumar, Constable, Bhuvaneshwar, Head Constable, Ashok Kumar Sahu, Head Constable, Ramgovind Shukla, Constable, were posted at Police Station Manpur, District Rajnandgaon. M.S. Gill’was posted as Town Inspector. A departmental enquiry was initiated against all the petitioners on the basis of allegation that they remained absent from the duties without permission on 22.09.1992 when they were directed orally to remain present in the Police Station at 17.00 Hours by the Station House Officer, which was not followed, An enquiry was held and the petitioners were removed from service vide order dated 30.09.1993. The petitioners preferred a departmental appeal before the Deputy Inspector General of Police on 19.10.1993 which was rejected on 13.12.1993. A second r. appeal was also p’referred by the petitioners before the Director General of Police, the same was rejected on 27.06. 1994. Being aggrieved, the‘petitioners filed Original Applications before the Madhya Pradesh State Administrative Tribunal, Jabalpur, being registered as O.A. No. 2065/1994, 2066/1994, 2067/1994, 2068/994, 2069/1994. After having considered all the facts of the case, a11 the aforesaid petitions were dismissed vide order dated 22.03.1997 (Annexure D/l). However, on a review petition, filed by the petitioners7 the same was allowed and the matters were directed to be re—heard vide order dated 29.06.1999 (Annexure D/2) on the limited issue asto whether non-appointment of the Presenting Offrcer resulted in vitiating the enquiry or not and whether the enquiry officer acted as a Judge as well as prosecutor. l The Tribunal allowed the review application on the above ; issue as under: “11....we are of the opinion that the Tribunal did not give findings to the effect as to whether non-appointment of presenting officer resulted in vitiating the e'nquiry or not. Tribunal has also not given any findings as to whether the enquiry officer acted as a Judge as well as Prosecutor.” 4. All the above petitions have been transferred to this Court on dissolution of the State Administrative Tribunal and re—numbered as W.P.(S) No. 974, 975, 976, 977 and 978 of 2005. Thus, the grievances of the petitioners in/respect of perversity and irregularity in conduct of enquiry, have been considered and stand closed as the Tribunal has dismissed all the petitions on other grounds, except the ground raised and accepted on review applications i.e. whether the order passed in an enquiry is vitiated on the ground that the Presenting Officer was not appointed by the 3 Disciplinary Authority, and whether, the enquiry offlcer acted as a Judge as well as prosecutor. m Shri Pali, leamed counsel appearing for the petitioners would submit that the whole enquiry proceeding is vitiated on account of the fact that no presenting officer was appointed. The petitioners Vi“v had made a request on 19.01.1993 (Annexure A-5 to W.P.(S) N0. 974/2005) to appoint a Presenting Offlcer but it was not done. The Inquiry Officer himself assumed the role of the Presenting Officer. The role of the Inquiry Officer is of a quasi-judicial nature, thus, the Inquiry Officer cannot represent the department/disciplinary authority. The Inquiry Officer has relied on the preliminary report which was never supplied to the petitioners, and as such this tantamounts to Violation of the principles of natural justice. Thus, the punishment of removal of the petitioners from service, imposed by the Disciplinary Authority and confirmed by the Appellate Authorities, is liable to be quashed. On the other hand, Shri Y.S.Thakur, learned Deputy Advocate General appearing for the State/respondent No. l to 5 would submit that these petitions had been decided by the State Administrative Tribunal, Jabalpur, on merits vide order dated 22.03.1997. HOwever, on account of review application filed by the petitioners herein, these petitions were directed to be heard / again on the question asto whether non-appointment of Presenting Officer would vitiatc the enquiry proceedings or not and Whether 3 the enquiry officer acted as a Judge as well as prosecutor. Under provisions of Rule 14(5)(c) of the Madhya Pradesh/Chhattisgarh Civil Services (Classification Control & Appeal) Rules, 1966 (for short ‘the Rules, 1966’), it is not mandatory to appoint a “Presenting Officer” as Rule 14(14) also provides that the Enquiry Authority may also put such questions to the witness as it thinks fit. Thus, the requirement of appointing a “Presenting Officer”, is not mandatory. Hc would next contend that the petitioners have not pleaded any allegation of biasness on the part of the inquiring authority and have not objected to non-appointment of the presenting officer during the course of the enquiry. Even in the mercy appeal, there is no such ground. Thus, the instant petitions are devoid of merits and are liable to be dismissed. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. Rule 14 provides for procedure for imposing penalties. The relevant provisions of Rule 14 are as under: 14. Procedure for imposing penalties. — XXX XXX XXX XXX XXX XXX (5)(a) On receipt of the Written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose; and where all the articles of charges have been admitted by the Government servant in his written statement of the defence the disciplinary authority shall record its finding on each charge after taking such evidence as ita-may think fit and shall act in the manner laid down in Rule 15; (b) if no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub—rule (2), an inquiring authority for the purpose; (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it'may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support ofthe articles of charge. (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of w charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re—examine the witnesses on any points on which they have been cross-examined but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks f1t. (l7) The evidence on behalf of the Govemment servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the . witnesses for the disciplinary authority. (19) The inquiring authority may) after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Govemment servant or permit them to file written briefs of their respective case, ifthey so desire. The word ‘may’ raises a presumption that the particular provisions r is directory but the same depends on the context, subject matter and object of the statutory provision and further, consequence by’ not complying with the provision. Rule 14 provides for procedure for imposing penalties. The object of Rule 14 is to afford an opportunity of hearing to the delinquent 1'0. .3 employee in a proper manner before recording finding on the allegations levelled against the delinquent employee, and as such, in sub rule (4) of Rule 14, it is provided that the Govemment servant shall be served with a copy of the article of charges, statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which article of charge is proposed to be sustained. Thus, the object is very clear that the government servant should be given full oppartunity to file proper written statement and examine the witnesses and cross examine the listed prosecution witnesses. Provisions of clause (c) of sub—rule (5) of Rule 14 provides for appointment of a ‘Presenting Officer’. The word ‘may’ has been used for appointing a government servant or legal practitioner as “Presenting Officer” to present the ca support of the articles of charges. Thus, the Presenting Officer presents the case in support of the articles of charges. However, it \ is provided in sub—rule (6) of Rule l4, that the Disciplinary Authority may also act as an Inquiring Authority. Sub—rule (8) of Rule l4, deals with assistance 0f any other Government servant to present the case on his behalf, but may not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the Disciplinary Authority is a legalpractitioner. Under sub~rule (l4) of Rule l4, the word ‘shall’ is used to the extent that “the Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross—examined but not on any new matter, without the leave of the inquiring authoeity”. The inquiring authority may also put such questions to the witnesses as k -j it thinks tit Thus, it appears that the role of the Presenting Officer is imperative. However, the inquiring authority may also examine ‘3 and cross examine the witnesses. In sub-rule (15) of Rule l4, the Inquiring Authority is further authorized in its discretion to allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new w evidence or recall and re-exarnine any witnesses. 11. Under sub-rule (1 7) of Rule 14, though there is no provision for r6- examination or cross«exaxni11ation by the presenting offmar, as the san‘le is to be done by the Inquiring Authority. Sub—rule 19 of the Ruie 14, also provides that the Inquiring Authority may, atter the completion of the production of evidence, hear the Presenting Officer, if any, appointed. Thus, the object is to appoint Presenting Officer to have fair, independent and unbiased enquiry. ’ Thus, on the bare perusal of the provisions of Rule 14 and the analysis, hereinabove mentioned, the word ‘may’ used in sub rule (5)(c) of Rule 1'4 may be construed as ‘shall’ and appointment of the Presenting Officer is imperative. The context, object and purpose of the enquiry into the misconduct of a govemment employee has been considered by the Supreme Court in a catena of decisions holding that the inquiring authority acts in a quasi- judicial authority and is in the position of an independent adj udicator. 1n the celebrated book on the Princip1es of Statutory Interpretation, 12““ Edition, 2010 by learned minor Justice G.P.Singh, (Former Chief iustice, MP. High Court), it is observed as under: “in an oft—quoted passage LORD CAMPBELL said: “No universal rule can be 1aid down as to whether mandatory enactments shall be considered directory “only-r or obligatory with an implied ,nullitication for disobedience, It is the duty of courts of justice to try to get the real intention of the Legislature by carefully attending the whole scope of the statute to be considered”. As approved by the Supreme Court: “The question as to whether 12. 13. ma statute is mandatory or directory depends upon the intent of the Legislature and upon the language in which the intent is clothed. The meaning and intention of the w 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 consequence which would follow from construing it the one way or the other”. (See: State of U.P. v. Manbodhan Ldl Shrivastava, AIR 1957 SC 912, p. 918; State of U.P. v. Baburam Upadhya, AIR 1961 SC 751, p. 765, State ofMysore v. V.K.Kangan AIR 1975 SC 2190, p. 2192, Gavindla‘: Chhaganlal Palel v. Agriculture Produce Market Committee, AIR 1976 SC 263, p, 267, Ganesh Prasad Sah Kesari v. Lakshmi Narayan, AIR 1985 SC 964, B.P.Kh§mka Pvt. Ltd. v. Bire‘ndra Kumar Bhowmz'k, AIR 1987 SC 1010; Owners and Parties interested in M V, “Vali Pero" v. Fernandes Lope, AIR 1989 SC 2206, p. 2213, State of MP. v. Pradeep Kumar, (2000) 7 SCC 372, p. 377; Sarla Gael v1 Krishzm Chand (2009) 7 SCC 658. ) 14. In Bhikhraj Jaipuria v, Union 0flndia’, the Supreme Court held a under: “17....Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequence of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. It: the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity: if it is directory, penalty may be incurred for non-compliance, but the , act or thing done is regarded as good. As observed in Maxwell on Interpretation of Statutes io‘h Edn. P. 376: “It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied nullifrcation for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may w “Ant r962 sc H3 (v 49oz!) {f2 , s r-1 10 perhaps be found generally correct to say that nullilication is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded.” Lord Campbell in Liverpool Borough Bank v. Turner, (1860) 30 L J Ch 379 observed; “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.” 15. The Supreme Court, in Raza Buland Sugar Co. Ltd. Rampur v. The Municipal Board, Rampur2, it was held as under: t “7‘ The question whether a particular provision of a statute which on the face of it appears mandatory — inasmuch as it uses the word “shall” as in the present case — or is . merely directory cannot be resolved by laying down any general rule and depends upon the facts/of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from Whether, the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerationswhich may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.” 2 AIR 1965 SC 895 (V 52 C Ml) 16. The Supreme Court, in Keshav Chandra Joshi & Others v. Union oflndia & Others3, held as under: “33....The word “may“ consult the Commission has been used in the context of discharge of statutory duty. The Govcrnor is obligated to consult the Public Service Commission. Therefore, the word “may” must be construed to mean “shall” and it mandatory on the part of the Governor to consult the Public Service Commission before exempting or relaxing the operation of rule regarding conditions of the serVice of a member to relieve h1m from undue hardship and to cause Just and equitable results. . .” p l7. Reliance of the petitioner in Rattan Lal Shdrma v. Managing ‘Committee, Dr. Hari Ram (Ca-Education) Higher Secondary School & Others4, is not relevant to the facts of the case as on the question of illegality, perversity on enquiry, the issue already stands concluded. l8. In NNagendra Rao & C0. v. Slate ofA,P.5. the Supreme Court observed as under: “6 Even though the section uses the word may but keeping 1n View the obiectiwc of the Act and the context 1n which 1t has been used 1t should be read as shall’ othervnse it would frustrate the objective of the sub- — section.” In Dinkar Annia Patil & Another v. State of Maharashtra & 3 Others6, the Supreme Court held as under: “26 Rule 4 A opens With a non obstante ”clause and prOVides that 1f in the opinion of the State Government the extgenmes of service so require, the Government may in consultation with MPSC wherever necessary M 3 1992 Supp (t) SCC 272 . 4 (1993)4 scc 10 5 (1994) 6 scc 205 6 (i999) i sec 354 i 2 . 12 make appointments to the post in relaxation of the percentage prescribed in Rule 4 of the Rules by promotion and nomination. The Tribunal held that the word “may” used in this Rule is directory but in our considered View, to give such a meaning would render the very object of consultation with MPSC wherever necessary nugatory. It would give unbridle power to the Govemmem to dispense with the consultation with MPSC which may result into arbitrary exercise of powers by the authority. This could never be the object of Rule 4-A. In our considered view, the word “may” must mean “shall” and this is also obvious from the correspondence between the State Government and MPSC.” 20. A Constitution Bench of the Supreme Court, in Orissa Textile & Steel Ltd. v. State of Orissa & Others7, while considering the use of word ‘may’ in section 25AO of the Industrial Disputes Act, 1947, observed as under: “l4. Further sub-section (5) of the amended Section 25-0 provides that the appropriate Government may, either on its own motion or on an application made by the employer or any workman, review its order granting or refusing permission or refer the matter to a Tribunal for adjudication. It has also been provided that if a reference is made to a Tribunal (under/this sub—section) then the Tribunal should pass its award within a period of 30 days from the date of such reference. Counsel for the employers submitted that it is left to the discretion of the appropriate Govemment to either review or make a reference. They submitted that there is n0 right in the ' employer to “cormpulsorily seek a review or a reference. The teamed Attorney General, fairly submitted that the work "may", in sub- section (5) of the amended Section 25-0 should be read as "shall". He further submitted that the "review" would necessitate the making of an enquiry into all relevant facts, particularly the genuineness and adequacy of the reasons stated by the 7 (2002) 2 scc 57s 13 employer, and the giving of an opportunity of being heard. \He submitted that the order passed on review would have to be an order in writing giving reasons. He submitted that even though sub-section (5) of amended Section 25-0, does not lays down any time limit within which the review was to be disposed off, a proper reading of the section would necessarily imply that a review would have to be disposed of within a period of 30 days from the date on which an applicatio for review was made. l6. In our view, the learned Attorney- General is right. A proper reading of sub- section (5) of the amended Section 25-0 shows that, in the context in which it is used, the word “may” necessarily means “shall”. Thus, the appropriate government “shall” review the order if an application in that behalf is made by the employer or the workmen.” 21. In Mani Shankar v. Union oflndz'a & Another3, relied on by the petitioners, the issue therein was conduct of departmental proceeding. In that context, it was held as under: “17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicabie in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review: are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at