# 8 S.C.R. 37 DINESH CHANDRA PANbEY v. HIGH COURT OF M.P. & ANR

- **Citation:** [2010] 8 S.C.R. 37
- **Court:** Supreme Court of India
- **Decided:** 2010-07-08
- **Case number:** Civil Appeal No. 2622 of 2005
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-37-dinesh-chandra-panbey-v-high-court-of-m-p-anr-27040
- **Pages:** 24

## Headnote

A
B
Service Law - Judicial officer - Departmental Enquiry -
Charge for possessing disproportionate assets - A Judge
appointed as Presenting Officer - Application of delinquent C
for appointing legal practitioner for his. defence dismissed -
Found guilty in enquiry - Dismissal from service - Appeal,
writ petition as well as LPA dismissed - On appeal, plea _that
denial to engage legal practitioner violative of principles of
natural ,'ustice and Civil Services Rules and that evidence was
D
not appreciated in its correct perspective - Held: Denial of
engagement of legal practitioner was not violative of the
principles of natural justice or the Rules - Permission for
engagement of legal practitioner was not mandatory -
Engagement of 'legal practitioner' is permissible for delinquent E
only if the Presenting Officer is a legal practitioner - A judge
in service cannot be termed as a legal practitioner - Nonproduction of witnesses and documents by the delinquent in
support of his case leads to drawing adverse inference against
him - On facts, delinquent has not approached the court with
F
clean hands - Judges are expected to apply stringent social
and moral values to their standard of living - Finding of facts
arrived at by authorities/courts below cannot be interfered with
in exercise of jurisdiction under Article 136 - M.P. Civil
Services (Classification, Control and Appeal) Rules, 1966 -
G
r. 14(8) - Principles of natural justice - Interpretation of
Statutes -
A,9vocates Act, 1961 -
s. 2(i) -
Central
Administrative -Tribunal (Procedure) Rules, 1987 - r. 2(e) -
Constitution of India, 1950 - Article 136 - Judiciary.
37
H
38
SUPREME COURT REPORTS
(201 O] 8 S.C.R:
A
Interpretation of Statutes - Contextual interpretation -
Expression 'may' in a statute - Not essential, that it is always
directory - It can be read as 'shall' in view of the legislative
intent - However, in the instant case, expression 'may' in r.
14(8) to be construed as directory - M.P. Civil Services
B
(Classification, Control and Appeal) Rules, 1966 - r. 14 (8).
Words and Phrases - 'Legal practitioner' - Meaning of.
Appellant-a Civil Judge was charged for possessing
disproportionate assets to his known source of income.
c In the course of departmental enquiry, he made an
application for permission to engage a legal practitioner,
which was declined. Enquiry Officer found him guilty of
the charge. Disciplinary Authority imposed punishment
of removal from service. Appeal against the order was
0
dismissed by the Governor. Writ petition as well as
Letters Patent Appeal were dismissed.
E
F
In the instant appeal, the impugned order was
challenged mainly on two grQunds viz. denial of
assistance of legal practitioner was in violation of
principles of natural justice as well as M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966; and that
Disciplinary Authority and the courts had not appreciated
the evidence in its correct perspective.
Dismissing the appeal, the Court
HELD: 1.1 The bare reading of Rule 14(8) of M.P. Civil
Services (Classification Control and Appeal) Rules, 1966
shows that the Government servant may take the
assistance of any other Government servant to represent
G his case but may not engage a legal practitioner for the
purpose unless the Presenting Officer appointed by the
authority is a 'legal practitioner' or the disciplinary
authority, having regard to the circumstances of the case,
so permits. The expression 'may' cannot be read as
H
'shall'. The normal Rule is that a delinquent officer would
DINESH CHANDRA PANDEY v. HIGH COURT OF
39
M.P. & ANR.
be entitled to engage another officer to present his case.
A
But if the Presenting Officer is a 'legal practitioner', he
may normally be permitted to engage a legal practitioner.
The third category is where the disciplinary authority
having regard to the circumstances of the case so
·permits. It is, therefore, not absolutely mandatory that the
B
disciplinary authority should permit the engagement o

## Text

_Characters 0–39,855 of 48,504. This is a partial read: ask again with offset=39855 for what follows._

(2010] 8 S.C.R. 37
DINESH CHANDRA PANbEY
V.
HIGH COURT OF M.P. & ANR.
(Civil Appeal No. 2622 of 2005)
JULY 8, 2010
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
A
B
Service Law - Judicial officer - Departmental Enquiry -
Charge for possessing disproportionate assets - A Judge
appointed as Presenting Officer - Application of delinquent C
for appointing legal practitioner for his. defence dismissed -
Found guilty in enquiry - Dismissal from service - Appeal,
writ petition as well as LPA dismissed - On appeal, plea _that
denial to engage legal practitioner violative of principles of
natural ,'ustice and Civil Services Rules and that evidence was
D
not appreciated in its correct perspective - Held: Denial of
engagement of legal practitioner was not violative of the
principles of natural justice or the Rules - Permission for
engagement of legal practitioner was not mandatory -
Engagement of 'legal practitioner' is permissible for delinquent E
only if the Presenting Officer is a legal practitioner - A judge
in service cannot be termed as a legal practitioner - Nonproduction of witnesses and documents by the delinquent in
support of his case leads to drawing adverse inference against
him - On facts, delinquent has not approached the court with
F
clean hands - Judges are expected to apply stringent social
and moral values to their standard of living - Finding of facts
arrived at by authorities/courts below cannot be interfered with
in exercise of jurisdiction under Article 136 - M.P. Civil
Services (Classification, Control and Appeal) Rules, 1966 -
G
r. 14(8) - Principles of natural justice - Interpretation of
Statutes -
A,9vocates Act, 1961 -
s. 2(i) -
Central
Administrative -Tribunal (Procedure) Rules, 1987 - r. 2(e) -
Constitution of India, 1950 - Article 136 - Judiciary.
37
H
38
SUPREME COURT REPORTS
(201 O] 8 S.C.R:
A
Interpretation of Statutes - Contextual interpretation -
Expression 'may' in a statute - Not essential, that it is always
directory - It can be read as 'shall' in view of the legislative
intent - However, in the instant case, expression 'may' in r.
14(8) to be construed as directory - M.P. Civil Services
B
(Classification, Control and Appeal) Rules, 1966 - r. 14 (8).
Words and Phrases - 'Legal practitioner' - Meaning of.
Appellant-a Civil Judge was charged for possessing
disproportionate assets to his known source of income.
c In the course of departmental enquiry, he made an
application for permission to engage a legal practitioner,
which was declined. Enquiry Officer found him guilty of
the charge. Disciplinary Authority imposed punishment
of removal from service. Appeal against the order was
0
dismissed by the Governor. Writ petition as well as
Letters Patent Appeal were dismissed.
E
F
In the instant appeal, the impugned order was
challenged mainly on two grQunds viz. denial of
assistance of legal practitioner was in violation of
principles of natural justice as well as M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966; and that
Disciplinary Authority and the courts had not appreciated
the evidence in its correct perspective.
Dismissing the appeal, the Court
HELD: 1.1 The bare reading of Rule 14(8) of M.P. Civil
Services (Classification Control and Appeal) Rules, 1966
shows that the Government servant may take the
assistance of any other Government servant to represent
G his case but may not engage a legal practitioner for the
purpose unless the Presenting Officer appointed by the
authority is a 'legal practitioner' or the disciplinary
authority, having regard to the circumstances of the case,
so permits. The expression 'may' cannot be read as
H
'shall'. The normal Rule is that a delinquent officer would
DINESH CHANDRA PANDEY v. HIGH COURT OF
39
M.P. & ANR.
be entitled to engage another officer to present his case.
A
But if the Presenting Officer is a 'legal practitioner', he
may normally be permitted to engage a legal practitioner.
The third category is where the disciplinary authority
having regard to the circumstances of the case so
·permits. It is, therefore, not absolutely mandatory that the
B
disciplinary authority should permit the engagement of
a legal practitioner irrespective of the facts and
circumstances of the case. There is some element of
discretion vested with the authority which, has to be
exercised properly and in accordance with the settled c
principles of service jurisprudence. [Para 7) (50-D-H]
1.2 Where expression 'shall' has been used it would
not necessarily mean that it is mandatory. It will always
depend upon the facts of a given case, the conjunctive
reading of the relevant provisions along with other D
provisions of the Rules, the purpose sought to be
achieved and the object behind implementation of such
a provision. Where the word 'may' shall be read as 'shall'
would depend upon the intention of the legislature and
it is not to be taken that once the word 'may' is used, it E
per se would be directory. The expression 'may', used in
Rule 14(8) of 1966 Rules would have to be construed as
directory and not absolutely mandatory with reference to
the facts and circumstances of a given case. [Para 7) (50H; 51-A-E]
F
Sar/a Goel v. Kishan Chand (2009) 7 SCC 658;
Malaysian Airlines Systems BHD (II) v. Stic Travels (P.) Ltd.
(2001) 1 sec 509, relied on.
1.3. In the instant case the Presenting Officer was an
G
Additional District Judge. He possessed similar
qualification, professionally or otherwise, as was the
appellant himself. The appellant could have asked for
permission to engage and take assistance of any other
judicial officer of that rank or of any rank that Ile wanted,
H
40
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A which request ought to have been considered by the
Disciplinary Authority. It will be entirely uncalled for, that
an Additional Judge should be termed as a legal
practitioner and, therefore, vesting in the appellant a right
to engage a legal practitioner or an advocate for
B defending him in the departmental proceedings. It will be
rather appropriate to apply the principles of contextual
interpretation in the facts and circumstances of the case.
A judge in service cannot be termed as a legal
practitioner, as it will mean and include only an Advocate
c or a Vakil of court practicing in a court, may even be a
Barrister, Special Pleader, Solicitors depending on the
facts of a given case. Rule 2(e) of the Central
Administrative Rules, 1987 also defines the word 'legal
practitioner'. However, it, in turn, requires that this
0 expression shall have the same meaning as is assigned
to it under the Advocates Act, 1961. In that Act the word
'legal practitioner' has been defined u/s. 2(i) to mean an
Advocate or Vakil of any High Court, a pleader Mukhtar
or Revenue Agent. The 'legal practitioner' is an
E expression of definite connotation and cannot be granted
an extended or inclusive meaning, so as to include what
is not specifically covered. A Judge may be law graduate
holding a Bachelor Degree in Law from any University
established by law in India but this by itself would not
render him as a 'legal practitioner'. On the contrary, there
F is a definite restriction upon the Judge from practicing
law. Such an implied inclusion, would not only lead to
absurdity but would even offend the laws in force in India.
[Paras 7 and 8) [51-F-H; 52-A-B; G-H; 53-A-D]
G
Muddada Chayanna vs. K. Narayana AIR 1979 SC 1320,
relied on.
Bhavnaqar University vs. Palitana Sugar Mills Pvt. Ltd.
AIR 2003---SC 51{,_ referred to.
H
P. Ramanatha Aiyar's Law Lexicon; 'Principles of the
DINESH CHANDRA PANDEY v. HIGH COURT OF
41
M.P. & ANR.
Common Law' by John lndermaur, .169 (Edmund H. A
Bennett ed., 1st Am.ed. 1878), referred to.
1.4. Even on principle of fairness, the order cannot
be said to have caused any prejudice to the appellant.
The appellant could have asked for appointment of any
colleague whose assistance he wanted to take and who 8
would have been as well qualified and experienced as the
presenting officer. The request of the appellant has been
rightly rejected by the disciplinary authority. Furthermore,
the appellant took no steps whatsoever to challenge the
order of the Disciplinary Authority declining assistance C
of an advocate. On the contrary, he participated without
any further protest in the entire departmental enquiry and
raised no objections. The Enquiry Officer conducted the
proceedings in a just, fair manner and in accordance with
rules. In fact, there is no challenge to that aspect of the D
matter. The appellant himself was fully capable of
defending himself in the departme~tal enquiry. In the
alternative he could easily ask for assistance of any
senior colleague from the service if he was under
pressure of any kind that the Presenting Officer was E
senior to him and belonged to Higher Judicial Service. He
did not exercise this choice, at any stage, for reasons
best known to him. However, he made an application
praying for permission to engage an advocate and
nothing else. Charge against the appellant was not of a F
very complicated nature, which a person having
qualification and experience of the appellant would not
be able to defend. In these circumstances, no prejudice
whatsoever has been caused to the interest of the
delinquent officer. [Para 9] [53-F-H; 54-A-F]
J.K. Aggarwal v. Haryana Seeds pevelopment
Corporation Ltd. 1991 (2) SCC 283; Board of Trustees of the
Port of Bombay v. Dilipkumar Raghavendranath Nadkarni
1983 (1) SCR 828, distinguished.
G
H
42
SUPREME COURT REPORTS
[2010) 8 S.C.R.
A
2.1. So far as the plea regarding perversity in
appreciation of the evidence in the impugned judgment
under appeal is concerned, the finding of facts arrived at
by the enquiry officer was not interfered with by the
Single Judge as well as the Division Bench of the High
B Court. It is hardly permissible for this Court to disturb
such findings of fact in exercise of its jurisdiction under
Article 136 of the Constitution of India. [Para 11] [57-F-G]
2.2. The conduct of the appellant can hardly be
appreciated in regard to deposit of money in the Bank
C regularly during the entire period of the relevant year. The
Department had showed that the deposits have been
made and the bank balance of the appellant, on a
particular date, was beyond the known sources of his
income to which, the appellant has raised a defence that
D he owned the land and the income received was an
agricultural income. However, he produced no evidence
during the departmental enquiry to show that some
person was making payment to him and/or some person
was depositing the money in the Bank so received from
E agricultural activity in every 2-3 days. Non-examination of
witnesses viz. persons carrying on the agricultural
activity, harvesting and selling the same; and the persons
purchasing the crop etc. and non-production of
necessary documents must lead to draw an adverse
F
inference against the appellant. In any case, the appellant
cannot take advantage of that fact and contend that the
inquiry officer has failed to appreciate evidence in its
correct perspective. [Para 11] [57-G-H; 58-A-E]
2.3. In the property return for the relevant year, the
G appellant is shown to have 1/3rd share in the agricultural
land located at two different places. There is a specific
column relating to income from agriculture. In that form
it was filled in by the appellant as 'uncertain'. Thus, for
the substantial period, he was fully aware of his income
H received from agricultural activity but he still chooses to
DINESH CHANDRA PANDEY v. HIGH COURT OF
43
M.P. & ANR.
keep it vague and not declare his true income in the A
return. Now, in the departmental proceedings and in the
reply to the charge-sheet, he submitted that there was an
income of more than Rs.50,000/- p.a. and that he owned
37.53 acres of land at two different places. It is again
strange that he did not disclose in his reply that this was B
a land jointly owned with his brothers and family
members and what was the extent of his holding
individually. In the return, he himself claimed one-third
share in the property. The total land indicated at two
different places being 26 acres + 18 comes to 44 acres c
and one third of which, merely 14 acres approximately,
would be the land owned by hi'm and not 37 acres as
claimed. This, itself shows that the appellant has not
approached the court with clean hands and has not
disclosed true facts which were known to him alone. D
[Para 11] [58-F; 59-A-D]
2.4. In the departmental proceedings, he took
incorrect defence contrary to his return and failed to
discharge the onus placed upon him. In the departmental
enquiry, the appellant produced no income tax returns to E
show that in addition to his salary, he had other sources
of income and what was the extent of income from these
sources. In his written statement of defence he never took
up the plea that any such returns were filed and he made
no effort to bring on record t~e copies of such incomeF
tax returns, if at all filed. It was obligatory on the part of
the delinquent officer to disclose all such relevant facts
which were only within his personal knowledge. He
belongs to a service which is looked upon by the public
at large as a\ service cadre of high integrity and G
professional values. The Judges are expected to apply
stringent social and moral values to their standard of
living. It was expected of the appellant to disclose all true
and correct information and documents in his power and
H
44
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
possession before the Enquiry Officer. It was not required
of him to with-hold relevant material and take such a
defence which could not be substantiated during the
course of departmental enquiry. Having failed to produce
relevant documentary evidence as well as examine the
B witnesses, the appellant cannot argue that the
Disciplinary Authority or the courts have not appreciated
the evidence in its correct perspective. [Para 11] [59-D;
60-A]
Case Law Reference:
c
(2009) 1 sec 658
Relied on.
Para 7
(2001) 1 sec 509
Relied on.
Para 7
AIR 1979 SC 1320
Relied on.
Para 7
D
AIR 2003 SC 511
Referred to.
Para 7
· 1991 (2) sec 283
Distinguished.
Para 9
1983 (1) SCR 828
Distinguished.
Para 10
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2622 of 2005.
From the Judgment & Order dated 17.12.2004 of the High
Court of Judicature M.P. at Jabalpur in LPA No. 606 of 2003.
F
C.N. Sreekumar, T.G. Narayanan Nair, Dushyant Parashar,
P.R. Nayak for the Appellant.
B.S. Banthia for the Respondents.
The Judgment of the Court was delivered by
G
SWATANTER KUMAR, J. 1. Dinesh Chandra Pandey,
appellant herein, was appointed to the post of Civil Judge in
the M.P. Judicial Service (Class II) on 27th January, 1982. On
completion of the training period, he joined as Civil Judge,
Dhamtari on 12th September, 1982. During his tenure as Civil
H Judge, certain irregularities were noticed by the competent
DINESH CHANDRA PANDEY v. HIGH COURT OF
45
M.P. & ANR. [SWATANTER KUMAR, J.]
authority and on 7th December, 1988, a charge-sheet was
A
served upon him, primarily, on the ground that he was
possessed of disproportionate money/assets to his known
sources of income. He was served with a charge sheet
containing two articles of charges. One out of them (Charge 2)
had not been proved while other Charge (Charge 1) stood
B
proved against the delinquent officer. Article 1 which had been
established reads as under:
"That the said Shri D.C. Pandey while his posting as Civil
Judge, Class-II and J.M.F.C. Raipur had a Bank account
in State Bank of India Account No. SB/8833, the balance
C
whereof swelled from Rs.2170.01 to Rs.35036.92 paise
within the period from January 1984 to 6th May, 1985, his
explanation in this behalf having been found unconvincing
considering the disproportionateness of the said increase
in his bank balance to his salary income and pattern and
D
frequency of deposits the said increase in balance is
capable of no other reasonable explanation than that of
illicit gains as the source of money which renders his
integrity gravely doubtful."
2. The ~!legations were denied by him and on 30th
January, 1989 he submitted that he owns 37 acres of land in
Bilaspur and has agricultural income to the extent of Rs. 50,000/
- p.a. It is out of this agricultural income that he has been
depositing amounts in the bank and has not committed any
violation of service regulations or other offence which would
attract disciplinary action against him. The competent authority
decided to conduct a regular departmental enquiry and
appointed Shri G.R. Pandya, District & Sessions Judge, Raipur
E
F
as enquiry officer. Besides appointing an enquiry officer, the
G
High Court also appointed Shri Ram Krishna Behar, Addi.
Judge as Presenting Officer. During the course of enquiry, the
appellant made an application for permission to engage a legal
practitioner to assist him in the departmental enquiry. This
request was declined by the High Court vide order dated 4th
H
46
SUPREME COURT REPORTS
(2010) 8 S.C.R.
A December, 1989. The appellant participated in the enquiry and
the enquiry officer submitted his report on 4th April, 1990 and
returned the finding of guilt against the appellant. The
concluding paragraphs of the report read as under:
B
c
D
E
F
"Shri Pandey was saving Rs.600/- p.m. out of his salary
and, therefore, this amount was quite insufficient for
making such a large saving. Mere saying of Shri Pandey
received the amounts frequently from his mother is not
sufficient. Something more was required to explain the
deposits. This type of explanation was already given by
Shri Pandey during the preliminary inquiry and was already
found unsatisfactory, hence further opportunity was given
to Shri Pandey, by holding this inquiry to give reasonable
and convincing explanation regarding the source of his
income. I am sorry to say that Shri Pandey could not
assess the seriousness of the matter and went on
repeating that the money was sent by his mother. The
mother of Shri Pandey as well as the customers who had
purchased the produce of the messenger who used to
bring the money frequently from Bilaspur to Raipur have
not been examined. Under these circumstances, bald
statement of Shri Pandey that money was received by him
from his mother does not appear to be correct. Thus, I
come to the conclusion that charge no. 1 regarding the
frequent deposits made by Shri Pandey within a span of
short period is proved against him.
3. Disciplinary authority, after receiving the said report,
issued show cause notice to the appellant on 16th March, 1991
informing the appellant that finding of the enquiry officer on
G Article (1) had been accepted and as to why punishment should
not be imposed upon him to which he submitted a detailed
reply. The disciplinary authority vide its order dated 10th June,
1992, opined that the stand taken by the appellant was not
satisfactory and consequently, imposed the punishment of
removal from service. The appellant preferred an appeal
H
DINESH CHANDRA PANDEY v. HIGH COURT OF
47
M.P. & ANR. [SWATANTER KUMAR, J.]
against this order before the Governor which also came to be A
dismissed vide order dated 3rd February, 1993. The order of
removal from service, as confirmed by the appellate authority,
was challenged by the appellant by filing a Writ Petition being
Misc. Petition No. 3847 of 1992 in the High Court which also
came to be dismissed by the Ld. Single Judge vide its order B
dated 1st July, 2003. Still dissatisfied with the judgment of the
Court, Letter Patent Appeal was filed which also met the same
fate and was dismissed by the Division Bench of the Madhya
Pradesh High Court vide order dated 17th December, 2004.
The legality and correctness of this order has been challenged c
by the appellant in the present appeal under Article 136 of the
Constitution.
'·
4. As would be evident from the above narrated facts, the
charge against the appellant was a very limited one. In fact, the
deposit of the amount in the bank was not disputed by the D
appellant. However, he rendered the explanation that he had
agricultural land from where he was getting Rs. 50,000/-p.a. as
income and had, therefore, deposited these amounts in the
bank during the period stated in the charge sheet i.e. between i
January, 1984 to May, 1985. He had also taken up the stand
E
before the Courts that while he was functioning as a Civil Judge
(Class II), Dhamtari in December, 1982, a crime had taken
place in which one Shri Pandri Rao Pawar, Advocate and pne
of his nephew were involved. They had caused serious injuries
to the brother of Shri H.L. Warda, the then Judicial Magistrate,
F
1st Class, Dhamtari who had lost his one eye in the assault. A
case under Sections 294, 3-25, 5068 of IPC was registered.
The appellant herein had rejected their bail application and did
not succumb to the pressure brought in by the advocate which
resulted ihenmity between the parties. It was also alleged that · G
the said advocate filed a complaint on 9th December, 1982
against the appellant stating therein that one witness Dayaram
Sahu in Criminal Case No. 1153 of 1986 under Section 325/
34 IPC was directed to be handcuffed without any justification
and later on the appellant was transferred from Dhamtari and
H
48
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
posted to Raipur. As such there was a different motive for
taking disciplinary action against the appellant than what was
apparent from the record of the disciplinary proceedings.
According to the appellant, he was possessed by sufficient
means as he had income from salary as well as agricultural
s activity. In light of the facts given by him, there was no occasion
to frame any charge against the appellant. Further, the
contention is that none of the article of charges have been
proved against the delinquent in accordance with law.
5. On the contrary, the learned counsel appearing for the
C
respondents contended that this Court should not re-appreciate
the evidence. The enquiry officer, the disciplinary authority, the
learned Single Judge and even the Division Bench have
accepted the fact that the appellant had been rightly charged
with Article 1, which stands proved and, as such, no interference
D
is called for on merits or even on the question of quantum of
punishment. It is also stated by him that in terms of Govt.
Servant Conduct Rules, 1985, which are applicable to the
members of the Judicial Service in the State of Madhya
Pradesh, a Government servant who either fails to file a return
E
prescribed in sub-rule (i) or files a return for any year, which
does not fully disclose all the property that is required to be
indicated or otherwise conceals any such property, would
amount to misconduct. Further, the argument raised is that the
Enquiry Officer has examined all the relevant aspects and after
F
being satisfied that there was no plausible explanation for
depositing the money in the bank at such short intervals, no fault
can be found with the finding of the Enquiry Officer. Referring
to the behaviour of a common prudent person/agriculturist, the
income from agriculture could hardly be on day-to-day basis. It
G was nobody's case that vegetable or allied crop was being
grown on the land in question. In normal course, the money
would be available to agriculturist only when the crop is
harvested and sold in the market. No such evidence had been
produced by the appellant during the course of enquiry. Thus,
H
no interference is called for.
DINESH CHANDRA PANDEY v. HIGH COURT OF
49
M.P. & ANR. [SWATANTER KUMAR, J.]
6. The challenge to the impugned order is, primarily, on
A
two grounds. Firstly, the appellant had asked for assistance of
a legal practitioner which had been unfairly denied to him.
Denial of assistance of a legal practitioner tantamount to
violation of principles of natural justice as well as MP. Civil
Services (Classification, Control and Appeal) Rules, 1966 (for B
short "1966 Rules"), and, as such, the entire departmental
proceedings as well as the impugned order of punishment are
vitiated. Secondly, the enquiry officer as well as the High Court
have not appreciated the evidence in its proper perspective and
has failed to accept plausible defence raised by the appellant c
in regard to deposit of money in the bank. The order of removal
from service, thus, is based on no evidence and is required to
be set aside. In support of this contention learned counsel
referred to Rule 14(8) of the 1966 Rules as well as Judgment
of this Court in the case of J.K. Aggarwal v. Haryana Seeds D
Development Corporation Ltd. [(1991) 2 SCC 283] and Board
of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni, [(1983) 1 SCR 828]. The 1966
rules are applicable to the member of judicial services of the
State of Madhya Pradesh as the Government, in consultation
with the High Court, has only framed one set of Rules i.e. M.P.
E
Judicial Service (Classification, Recruitment and Conditions of
Service) Rules, 1955 ( which primarily deal with the eligibility,
methodology relating to appointment to the judicial services of
the States and its cadre etc. As far as the disciplinary rules are
concerned, it is a common case of the parties that the above
F
1966 Rules are the Rules applicable to the members of judicial
services. These Rules came into force from the date of their
publication. They deal with power to suspend, conduct
departmental enquiry, the procedure which is to be adopted in
a departmental enquiry and punishments which can be inflicted G
upon an officer by the Competent Disciplinary Authority. While
Rule 10 deals with the punishment and penalties which can be
imposed on the member of the service, Rules 12 and Rule 13
deal with the Disciplinary Authority and the authority who ca11
institute the proceedings. While Rule 14 deals not' only with
Hi
50
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A
imposition of punishment but also gives the entire procedure
which is required to be followed by the Enquiry Officer as well
as the Disciplinary Authority before inflicting any punishment
upon the charged officer, Rule 14(8) deals with providing of
legal assistance or engagement of a legal practitioner during
B
the course of a departmental enquiry. As the reliance has been
placed by both the parties on this Rule, it will be useful to
reproduce the same here:
c
D
"Rule 14(8): The Government servant may take the
assistance of 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 legal practitioner, or, the
disciplinary authority, having regard to the circumstances
of the case, so permits."
7. The bare reading of this Rule shows that the
Government servant may take the assistance of any other
Government servant to represent his case but may not engage
a legal practitioner for the purpose unless the presenting officer
E
appointed by the authority is a 'legal practitioner' or the
disciplinary authority, having regard to the circumstances of the
case, so permits. The expression 'may' cannot be read as
'shall'. The normal Rule is that a delinquent officer would be
entitled to engage another officer to present his case. But if the
F
presenting officer is a 'legal practitioner', he may normally be
permitted to engage a legal practitioner. The third category is
where the disciplinary authority having regard to the
circumstances of the case so permits. It is, therefore, not
absolutely mandatory that the disciplinary authority should
G permit the engagement of a legal practitioner irrespective of
the facts and circumstances of the case. There is some element
of discretion vested with the authority which, of course, has to
be exercised properly and in accordance with the settled
principles of service jurisprudence. The Courts have taken a
view that where expression 'shall' has been used it would not
H
DINESH CHANDRA PANDEY v. HIGH COURT OF M.P. 51
& ANR. [SWATANTER KUMAR, J.]
necessarily mean that it is mandatory. It will always depend A
upon the facts of a given case, the conjunctive reading of the
relevant provisions along with other provisions of the Rules, the
purpose sought to be achieved and the object behind
implementation of such a provision. This Court in the case of
Sar/a Goel v. Kishan Chand [(2009) 7 SCC 658], took the view B
that where the word 'may' shall be read as 'shall' would depend
upon the intention of the legislature and it is not to be taken that·
once the word 'may' is used, it per se would be directory, In
other words, it is not merely the use of a particular expression
that would render a provision directory or mandatory. It would c
have to be interpreted in light of the settled principles, and while
ensuring that intent of the Rule is not frustrated. Further, in the
case of Malaysian Airlines Systems BHD (II) v. Stic Travels
(P.) Ltd., [(2001) 1 sec 509]. this Court took the Vi!3W that word
'may' in Section 11 (1) of the Arbitration and Conciliation Act,
D
1996 is not to be construed as 'must' or 'shall', as the word
'may' has not been used in the sense of 'shall', the provision
is not mandatory. In the light of these principles, we are of the
considered view that the expression 'may', used in Rule 14(8)
of 1966 Rules would have to be construed as directory and not
absolutely mandatory with reference to the facts and ·E
circumstances of a given case. Of course, it would be desirable
that wherever the presenting officer is a legal practitioner, the
delinquent officer should be given the option and may be
permitted to engage a legal practitioner if he so opts. But this
Rule is hardly of any assistance and help to the appellant in the
F
present case. The Presenting Officer was an Additional District
Judge. He was possessed of similar qualification, professionally
or otherwise, as was the appellant himself. The appellant could
have asked for permission to engage and take assistance of
any other judicial officer of that rank or of any rank that he G
· wanted which request ought to have been considered by the
Disciplinary Authority. It will be entirely uncalled for that an
Additional Judge should be termed as a legal practitioner and,
therefore, vesting in the appellant a right to engage a legal
practitioner or an advocate for defending him in the · H
52
SUPREME COURT REPORTS
(2010] 8 S.C.R.
A
departmental proceedings. It will be rather appropriate to apply
the principles of contextual interpretation in the facts and
circumstances of the case. In the case of Muddada Chayanna
vs. K. Narayana [AIR 1979 SC 1320], it was held by this Court
that interpretation of statute, contextual or otherwise, must
B
further and not frustrate the object of the statute. In other words,
the expression 'medical practitioner' appearing in the
Maharashtra Nurses Act, 1966 should be given a meaning in
the context in which it is sought to be applied to achieve the
real object of the statute. It is also to be kept in mind that while
c dealing with the provisions of the statute, the Court would not
adopt an approach or give meaning to an expression which
would produce unintelligible, absurd and unreasonable result
and would render the legislative intent unworkable or totally
irreconcilable with the provisions of the statute (Bhavnagar
0
University vs. Palitana Sugar Mills Pvt. Ltd. [AIR 2003 SC
511 ]). The learned counsel for the appellant referred to P.
Ramanatha Aiyar's Law Lexicon to emphasise that the
expression 'legal practitioner' appearing in Rule 14(8) would
cover even a judicial officer. He relied upon the following
explanations given to this expression:
E
"Legal practitioner" defined (See also Advocate of a High
Court; Barrister; Government pleader; Pleader; Public
Prosecutor; Recognized agent) Act 18, 1879, S. 3; Act 18,
1881, S. 4(2); Act 16, 1887, S.4(16); Act 17, 1889, S
F
3(13); Act 23 .• 1923, S.2; Act 21, 1926, S.2
'Legal Practitioner' means an advocate vakil or attorney
of any High Court, a pleader, mukhtaro revenue agent. Act
XVIII of 1879 (Legal Practitioners), S.3]"
G
8. The above referred explanations clearly show that a
judge in service cannot be termed as a legal practitioner, as it
will mean and include only an Advocate or a vakil of Court
practicing in a Court, may even be a Barrister, Special Pleader,
solicitors depending on the facts of a given case. Rule 2 (e) of
H the Central Administrative Rules, 1987 also defines the word
DINESH CHANDRA PANDEY v. HIGH COURT OF
53
M.P. & ANR. [SWATANTER KUMAR, J.]
'legal practitioner'. However, it, in turn, requires that this
A
expression shall have the same meaning as is assigned to it
under the Advocates Act, 1961. In that Act the word 'legal
practitioner' has been defined under Section 2(i) to mean an
advocate or vakil of any High Court, a pleader mukhtar or
revenue agent. In other words, this is an expression of definite
B
connotation and cannot be granted an extended or inclusive
meaning, so as to include what is not specifically covered. A ·
Judge may be law graduate holding a Bachelor Degree in Law
from any University established by law in India but this by itself ·
would not render him as a 'legal practitioner'. On the contrary, c
there is a definite restriction upon the Judge from practicing law.
Such an implied inclusion, as argued by the appellant, would
not only lead to absurdity but would even offend the laws in force
in India. John lndermaur, Principles of the Common Law 169
(Edmund H. Bennett ed., 1st Am.ed. 1878 explains the term
D
a~.follows :
. "Legal practitioners may be either barristers, special
pleaders not at the bar, certified conveyancers, or
solicitors. The three latter may recover their fees, but the
first may not, their acting being deemed of a voluntary
E
nature, and their fees merely in the light of honorary
payments; and it follows from this, that no action lies
against them for negligence or unskilfulness:"
9. Thus, the expression 'legal practitioner' is a well defined
and explained term. It, by any stretch of imagination, cannot
include a serving Judge who might have been appointed as a
presenting officer in the departmental proceedings. Besides this
legal aspect of the matter, even on principle of fairness we do
F
not think that the order has caused any prejudice to the
G
appellant. The appellant could have asked for appointment of
any colleague whose assistance he wanted to take and who
would have been as well qualified and experienced as the
presenting officer. The request of the appellant has been rightly
rejected by the disciplinary authority. Furthermore, the
application was made on 7th December, 1988 itself and
H
54
SUPREME COURT REPORTS
[2010] 8 S.C.R.
A thereafter the appellant took no steps whatsoever to challenge
the order of the Disciplinary Authority declining assistance of
an advocate. On the contrary, he participated without any further
protest in the entire departmental enquiry and raised no
objections. The Enquiry Officer conducted the proceedings in
s a just, fair manner and in accordance with rules. In fact, there
'is no challenge to that aspect of the matter. In the application,
the appellant had stated "that the complainant neither has
necessary experience nor the required skill to handle his
defence in such circumstances." This statement ex facie is not
c correct. The appellant must have dealt with variety of cases
during his tenure as a Judge. He was fully capable of defending
himself in the departmental enquiry. In the alternative he could
easily ask for assistance of any senior colleague from the
service if he was under pressure of any kind that the Presenting
0 Officer was senior to him and belonged to Higher Judicial
Service. He did not exercise this choice, at any stage, for
reasons best known to him. However, he made an application
praying for permission to engage an advocate and nothing
else. Charge against the appellant was not of a very
E complicated nature, which a person having qualification and
experience of the appellant would not be able to defend. In
these circumstances, we are of the considered view that no
prejudice whatsoever has been caused to the interest of the
delinquent officer. These are the rules primarily of procedure,
an element of prejudice would be one of the necessary features,
F before departmental proceedings can be held to be vitiated on
that ground. The reliance placed upon the case of J.K.
Aggarwal (supra) is totally unwarranted. In that case, the Court
came to the conclusion that refusal to sanction the service of
lawyer in the inquiry proceedings was not a proper exercise of
G discretion under the Rule resulting in failure of justice. The Court
held that the discretion was vested in the disciplinary authority
in terms of Rule 7(5) of the relevant Rules. The language of that
Rule was entirely different and permission to engage a legal
practitioner was relatable to the nature of the punishment which
H could be imposed upon the delinquent officer in the
DINESH CHANDRA PANDEY v. HIGH COURT OF
55
M.P. & ANR. [SWATANTER KUMAR, J.]
departmental proceedings. If the charges were likely to result A
in dismissal of the person from service, in that event, that officer
may with the sanction of the Enquiry Officer be permitted to be
represented through a counsel. Language of this Rule is entirely
different from the language of the Rule in question in the present
case. On the basis of the facts of that case and Rule 7(5) of B
the said Rules the Court held:
'The right of representative by a lawyer may not in all cases
be held to be a part of natural justice. No general principle
valid in all cases can be enunciated. In non~statutory
domestic tribunals, Lord Denning in the Court of Appeal C
in England favoured such a right where a serious charge
had been made which affected the livelihood or the right
of a person to pursue an avocation and observed:
"I should have thought, therefore, that when a man's · D
reputation or livelihood is at stdke, he not only has a right
to speak by his own mouth. He also has a right to speak
by counsel or solicitor."
·
But this was not followed by Lyell, J. in Pett case (No.2)
E
It would appear that in the inquiry, the respondentCorporation was represented by its Personnel and
Administration Manager who is stated to be a man of law.
The rule itself recognizes that where the charges are so
serious as to entail a dismissal from service the inquiry
F
authority may permit the services of a lawyer. This rule vests
a discretion. In the matter of exercise of this discretion one
of the relevant factors is whether there is likelihood of the
combat being unequal entailing a miscarriage or failure of
justice and a denial of a real and reasonable opportunity G
for defence by reasons of the appellant being pitted
against a presenting officer who is trained in law. Legal
Adviser and a lawyer are for this purpose somewhat
liberally construed and must include ''whosoever assists or
advises on facts and in law must be deemed to be in the
H
A
B
c
D
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F
G
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56
SUPREME COURT REPORTS
[2010) 8 S.C.R.
position of a legal adviser". In the last analysis, a decision
has to be reached on a case to case basis on the
situational particularities and the special requirements of
justice of the case. It is unnecessary, therefore, to go into
the larger question "whether as a sequel to an adverse
verdict in a domestic enquiry serious civil and pecuniary
consequences are likely to ensue, in order to enable the
person so likely to suffer such consequences with a view
to giving him a reasonable opportunity to defend himself,
on his request, should be permitted to appear through a
legal practitioner" which was kept open in Board of
Trustees of the Port of Bombay v. Dilip Kumar. However,
it was held in that case (SCC p. 132, para 12)
" ...