Case: State of Uttar Pradesh Vs. Manbodhan Lal Srivastava

In 1920, the respondent was employed in the education department of the State of Utter Pradesh, and in due course, was promoted to the United Provinces Education Service (Junior Scale). This took place inIn the year 1948, the respondent was appointed an officer-on-special duty and managing editor of a quarterly journal issued by the education department, under the style Shiksha. While holding the post of officer-on-special duty, the respondent was also appointed a member of the Book Selection Committee. He continued to function as such untilrespondents conduct as a member of that Committee, was not found to be satisfactory and above board; inasmuch as it was discovered that he had allowed his private interests to come in conflict with his public duties. He was found to have shown favours in the selection of books on approved list, in respect of certain books said to have been written by a nephew of his, aged only 14 years, and by another relation of his, as also to firm of publishers who had advanced certain sums of money to him on interest. In July, 1952, the respondent was transferred as Head-master of a certain High School, but he did not join his post and went on leave on medical grounds. While on leave, the respondent was suspended from service with effect from August 2,September, the same year, the Director of Education issued orders, framing charges against the respondent and calling upon him to submit his written statement of defence and giving him an opportunity to call evidence in support of it. It is not necessary for the purposes of this case, to set out the charges framed against him except to state that the details of the books, said to have been written by his prodigy nephew and his other relation, were given, the gravamen of the charges being that he did not inform the Committee of his relationship with the alleged authors of the books, the selection of which was calculated to bring pecuniary benefit to those relations. Another charge related to his having benefited a certain firm of publishers whose books, about a dozen in number, had been selected by the Committee of which he was arespondent 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 uponpursuance of the show-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, 1958, was published showing the names of the officers of the education department, who would retire in due course on super-annuation, that is to say, at the age of 55, and the corresponding dates ofrespondent is shown therein as one of those, and in the last column meant for showing the dates of retirement, September 15, 1953, is mentioned as against his name. On February 2, 1953, the respondent filed the first petition (Writ petition No. 121 of 1953) challenging the validity of the order of the Government suspending him and calling upon him to show cause why he should not be reduced in rank with effect from the date of suspension, and also compulsorilythat petition, he also challenged the legality of the entire proceedings and prayed for a writ for mandamus directing the Government to pay his full salary during the period of suspension until he attained the age of superannuation as aforesaid. Perhaps, realising that the show-cause-notice served upon the respondent as aforesaid, in November, 1952, would not fully satisfy the requirements of a reasonable opportunity as contemplated by the Constitution, the Director of Education forwarded to the respondent, along with a covering letter dated June, 16, 1953, a copy of the report of the inquiry; and again called upon him to show cause why the proposed penalty of reduction in rank be not imposed uponState Public Service Commission (which we shall, refer to as the Commission) was also consulted by the Government as to the punishment proposed to be imposed as a result of the inquiry. Presumably, the Commission was supplied with all the relevant material upto the date of the second show-cause-notice.The Commission was consulted but it appears from the findings of the High Court that the respondents written explanation submitted on July 8,1953, was not before the Commission. The explanation submitted on July 3, 1953, was a much more elaborate on dealing not only with the three charges which had been made against him, but also with other irrelevant findings of the inquiry officer who had made several observations against the respondents efficiency and conduct, which were not the subject-matter of the several heads of charge framed against the respondent, and, therefore, not calledconsidering the opinion of the Commission, the inquiry report and the several explanations 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 alreadythe 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 provision 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 theHigh Court, therefore, quashed the orders of the Government reducing him in rank and reducing his emoluments with effect from the date of suspension as aforesaid. It did not pass any order in respect of the compulsory retirement because that had happened in due course before the judgment of the High Court. The appellant has filed appeal No. 27 from this part of the judgment and order of the HighHigh Court refused the respondents prayer in respect of the full salary for the period of suspension during which he had been deprived of it by the orders of the Government impugned by him. From this part of the judgment, the respondent has preferred appeal No.

Reasoning:
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.