Case: State of Uttar Pradesh Vs. Manbodhan Lal Srivastava

a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Art. 320 is mandatory. The question whether a certain provision 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 Rly. Co. v. Normandin, 1917 A.C. 170 (B). 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 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 the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."14. The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 F C R 99 : (A I R 1945 F C 67) (C). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc.15. The Court repelled the contention that the provisions of S. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character.16. An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not 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 consequence which would follow from construing it the one way or the other ........."17. 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 he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is 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 against 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 secondthe operative portion of the final order of the Government which adversely affected the respondent, was the order reducing him in rank from the Provincial to the Subordinate grade. That order appears to have satisfies the conditions laid down in Art. 311 of the Constitution. At no stage of the controversy, has it been suggested that so far as the appellant was concerned, the respondent has not a "reasonable opportunity of showing cause against the action proposed to be taken in regard to him"; that is to say, it is now beyond question that the proceedings taken by the appellant including the departmental inquiry against the respondent ending with his reduction in rank, satisfied the mandatory provisions of Chapter I of Part XIV of the Constitution, with particular reference to Art.conclusion would put an end to the respondents case, unless it is held that the provisions of Art. 320 (3) (c) are of a mandatory character and are in the nature of a rider to Art.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 the action proposed to be taken was justified and was not in excess of the requirements of theit is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to bethe opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320 (3)(c) could have the effect of nullifying the final order passed by the Government.Thirdly Art. 320 or the other articles in chap. 11 of Part XIV of the Constitution, deal with the Constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a publicII containing Art. 320, does not, in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in chap. I of that Part particularly Art.Article 311, therefore, is not, in any way, controlled by the provisions of chap. II of Part XIV, with particular reference to Art. 320.An examination of the terms of Art. 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Art. 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to bethey are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in theresult could not have been contemplated by the makers of the Constitution.Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would bethe other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceedinghave 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 athe 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 he can enforce in a Court of law. Hence, if the provisions of Art. 311, have been complied with in this case - and it has not been contended at any stage that they had not been complied with- he has no remedy against any irregularity that the State Government may haveit can be held, and we are not prepared to hold, that Art. 320 (3) (c) is in the nature of a rider or proviso to Art. 311, it is not possible to construe Art. 320 (3) (c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.