# Martin Burn Ltd v. R. N. Banerjee Bhagwati .I, !957 September 20

- **Citation:** [1958] 1 S.C.R. 533
- **Court:** Supreme Court of India
- **Decided:** 1957-09-20
- **Bench:** S. R. Das, Venkatarama Ayyar, B. P. Sinha, J. L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/martin-burn-ltd-v-r-n-banerjee-bhagwati-i-957-september-20-1479
- **Pages:** 15

## Headnote

Covernment
Servant-Disciplinary proceedings-EnquiryShow-cause notice under Art. 311(2) of the Constitution -Consultation of Public Service Commission-Whether mandatory-Constitution of India, Arts. 311(2), 320(3)(c).
The respondent was an. employee under the appellant, the
' State of Uttar Pradesh, and as it was discovered that he had
allowed his private interests to come in conflict with his public
duties, a departmental inquiry was held wherein charges were
framed against him. He was called upon to submit his written
statement of defence and given an opportunity to adduce evidence
in support of it. After considering the report of the enquiry, in
which the charges were fournl to be true, the appellant called
upon the respondent, under Art. 311(2) of the Constitution of
India, to show cause why he should not be demoted and compulsorily retired, and the respondent submitted a written explanation setting out his defence and objecting to the procedure
1957
Martin Burn Ltd.
V.
R. N. Banerjee
Bhagwati .I,
!957
September 20
1957
!i1ate of U. P.
v.
lf anbodhan Lal
Srivtutava
534
SUPREME COURT REPORTS
[1958]
adopted at the inquiry.
Subsequently, the respondent was given
a copy of the report and again called upon to show cause why tbe
proposed penalty of reduction in rank should not be imposed upon
him, and he once again submitted a written explanation. In the
meantime the State Public Service Commission was consulted by
the Government as to the punishment proposed to be imposed,
,and for this purpose it was supplied with all the relevant material
up to the date of the second show-cause notice. The Government
finally by an order dated September 12, 1953, inter alia, reduced
the rank of the respondent with effect from August 2, 1952, and
thereupon, the respondent filed petitions under Art. 226 of the
Constitution before the High cburt challenging the legality of the
·Government order. The High Court found that though the State
Public Service Commission was consulted by the Government it
was not supplied with the written explanation submitted by the
respondent in answer to the second show-cause notice, and held
that the order of the Government was invalid for the reason that
the provision of Art. 320(3)(c) of the Constitution had not been
fully complied with.
On appeal to the Supreme Court additional
.evidence was sought to be adduced on behalf of the appellant to
show that as a matter of fact the State Public Service Commission was consulted even after the submission of the respondent's
explanation in answer to the second show-cause notice, but it was
found that there was sufficient opportunity for the appellant
to place all the relevant materials, before the High Court itself:
Held, (I) that the additional evidence ought not to be
admitted and that the finding of the High Court that there was
no consultation with the Commission after the respondent had
submitted his explanation in answer to the second show-cause
notice, must stand.
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 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.
(2) that the provisions of Art. 320(3)(c) of the Constitution
of India are not mandatory and that they do not confer any
rights on a public servant so that the absence of consultation or
any irregularity in consultation does not afford him a cause of
action in a court of law.
P. Joseph John v. The State of Travancore-Cochin, (1955)
I S.C.R. !Oll, considered.
Biswanath Khamka v. The King Emperor, (1945) F.C.R. 99,
.relied on.
(3) that Art.311 of the Constitution is not controlled by the
provisions of Art. 320.
S.C.R.
SUPREME COURT REPORTS
535
ClvIL APPELLATE JURISDICTION : Civil Appeals
Nos. 27 and 28 of 1955.
Appeals from the judgment

## Text

S.GR.
SUPREME COURT REPORTS
533
which is the subject-matter of appeal before us was
correct.
It is no doubt true that the Labour Appellate
Tribunal recorded a finding in favour of the appellant that in terminating the service of the respondent
as it did, the appellant was not guilty of any unfair
labour practice nor was it actuated by any motive of
victimization against the respondent. That finding,
' however, cannot help the appellant in so far as the
Labour Appellate Tribunal held that the appellant
had failed to make out a prima facie case for terminating the service of the respondent.
We, therefore, hold that the decision of the Labour
Appellate Tribunal refusing permission to the appellant under s. 22 of the Act was correct and this appeal
is liable to be dismissed.
It will accordingly be
dismissed with cost.
Appeal dismissed.
STATE OF U.P.
v.
MANBODHAN LAL SRIVASTAVA.
(S. R. DAS, C. J., VENKATARAMA AYYAR, B. P. SINHA,
J. L. KAPUR and A. K. SARKAR, JJ.)
Covernment
Servant-Disciplinary proceedings-EnquiryShow-cause notice under Art. 311(2) of the Constitution -Consultation of Public Service Commission-Whether mandatory-Constitution of India, Arts. 311(2), 320(3)(c).
The respondent was an. employee under the appellant, the
' State of Uttar Pradesh, and as it was discovered that he had
allowed his private interests to come in conflict with his public
duties, a departmental inquiry was held wherein charges were
framed against him. He was called upon to submit his written
statement of defence and given an opportunity to adduce evidence
in support of it. After considering the report of the enquiry, in
which the charges were fournl to be true, the appellant called
upon the respondent, under Art. 311(2) of the Constitution of
India, to show cause why he should not be demoted and compulsorily retired, and the respondent submitted a written explanation setting out his defence and objecting to the procedure
1957
Martin Burn Ltd.
V.
R. N. Banerjee
Bhagwati .I,
!957
September 20
1957
!i1ate of U. P.
v.
lf anbodhan Lal
Srivtutava
534
SUPREME COURT REPORTS
[1958]
adopted at the inquiry.
Subsequently, the respondent was given
a copy of the report and again called upon to show cause why tbe
proposed penalty of reduction in rank should not be imposed upon
him, and he once again submitted a written explanation. In the
meantime the State Public Service Commission was consulted by
the Government as to the punishment proposed to be imposed,
,and for this purpose it was supplied with all the relevant material
up to the date of the second show-cause notice. The Government
finally by an order dated September 12, 1953, inter alia, reduced
the rank of the respondent with effect from August 2, 1952, and
thereupon, the respondent filed petitions under Art. 226 of the
Constitution before the High cburt challenging the legality of the
·Government order. The High Court found that though the State
Public Service Commission was consulted by the Government it
was not supplied with the written explanation submitted by the
respondent in answer to the second show-cause notice, and held
that the order of the Government was invalid for the reason that
the provision of Art. 320(3)(c) of the Constitution had not been
fully complied with.
On appeal to the Supreme Court additional
.evidence was sought to be adduced on behalf of the appellant to
show that as a matter of fact the State Public Service Commission was consulted even after the submission of the respondent's
explanation in answer to the second show-cause notice, but it was
found that there was sufficient opportunity for the appellant
to place all the relevant materials, before the High Court itself:
Held, (I) that the additional evidence ought not to be
admitted and that the finding of the High Court that there was
no consultation with the Commission after the respondent had
submitted his explanation in answer to the second show-cause
notice, must stand.
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 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.
(2) that the provisions of Art. 320(3)(c) of the Constitution
of India are not mandatory and that they do not confer any
rights on a public servant so that the absence of consultation or
any irregularity in consultation does not afford him a cause of
action in a court of law.
P. Joseph John v. The State of Travancore-Cochin, (1955)
I S.C.R. !Oll, considered.
Biswanath Khamka v. The King Emperor, (1945) F.C.R. 99,
.relied on.
(3) that Art.311 of the Constitution is not controlled by the
provisions of Art. 320.
S.C.R.
SUPREME COURT REPORTS
535
ClvIL APPELLATE JURISDICTION : Civil Appeals
Nos. 27 and 28 of 1955.
Appeals from the judgment and order dated the 8th
January, 1954, of the AlJahabad High ·court in Civil
Misc. Writ No. 817 of 1953.
G. C. Mathur and C. P. Lal, for the appellant in
C. A. No. 27 and respondent in C. A. No. 28.
N. C. Sen, for the respondent in C. A. No. 27 and
appellant in C. A. No. 28.
1957. September 20. The following judgment of the
Court was delivered by
SINHA J.-These two cross-appeals on certificates
granted by the High Court under Art. 132(1) of the
Constitution arise out of a common judgment and
order of a Division Bench of the High Court
of
Judicature at
Allahabad,
in two writ petitions
Nos. 121 and 817 of 1953, dated January 8, 1954,
allowing in part and dismissing in part, the two petitions, under Art. 226 of the Constitution, by which the
petitioner questioned the validity of the orders passed
by the Government of Uttar Pradesh, reducing him in
rank, and ordering his compulsory retirement from
service. Civil Appeal No. 27 has been preferred by
the State of Uttar Pradesh and Civil Appeal No. 28 by
the petitioner in the Court below. For the sake of
brevity, we shall refer to the State of Uttai' Pradesh
as the appellant and the petitioner in the High· Court
-Sri Manbodhan Lal. Srivastva-as the respondent,
in the course of this judgment which covers both the
appeals.
It is necessary to state the following facts: In 1920,
the respondent was
employed
in the education
department of the State of Uttar Pradesh, and in
due course, was promoted to the United Provinces
Education Service (Junior Scale). This took place in
1946. In the year 1948, the respondent was appofo.ted 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
19S1
Stall! of U. P.
v.
Manbodlran Lal
Srivastava
Sinha J.
1957
State of U. P.
v.
Manbodhan Lal
Sr;VaJIQVQ
Sinha J.
536
SUPREME COURT REPORTS
[1958
appointed a member of the Book Selection Committee.
He continued to function as such until 1951. The
respondent's conduct as a member of that Committee
was not found to be satisfactory and above board,
inasmuch as it was discoveted that he had allowed
his private interest 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 a firm of publishers who had
advanced certain sums of money to him on interest.
In July, 1952, the respondent was transferred as
Headmaster 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, 1952. In 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 m:cessary 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
a member. The respondent 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
S.C.R.
SUPREME COURT REPORTS
537
Education Service and be compulsorily retired. After
1957
considering . the report aforesaid, the Government
State of.u. P.
decided on November 7, 1952, to call upon the resv.
pondent, under Art. 311 (2) of the Constitution, to show Manbo4Ao11Lal
cause why the punishment suggested in the depart:.
Sri'~~
mental inquiry report should not be imposed' upon
Sinha 1.
him. In pursuance 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
t6 t4e procedure
adopted at the enquiry. He also showed
cause
against the proposed punishment. A Government
notification dated January 9, 1953, was published
showing the names of the officers of the· education
department, . who would retire in due course . on
superannuation, that is to say, at the age of 55, and
. the corresponding dates of superannuation. The respondent 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 (lffect from the
date of suspension, and also compulsorily retired. In
that petition, he also challenged the legality of the
entire proceedings and prayed for a writ of mandamus
directing the Government to pay his full salary during
the period of suspension until he attained the age oi
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, 1953il a copy of the
report of the enquiry ; and again ca ed upon. him to
show cause why the proposed penalty of reduction in
rank be not imposed upon him. The State Public
Ilf2SC/61PIV..-6
.
1957
Stat• of U. P.
v.
Mllltbodlrtm Lal
!;,Srlrtutaro
SI""" J.
538
SUPREME COURT REPORTS
[1958]
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 enquiry. 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 respondent's written explanation submitted on July 3, 1953, was not before the Commission.
The explanation submitted on July 3, 1953, was
a
much more elaborate one dealing not only with three
charges which had been made against him, but also
with other irrelevant ·findings of the enquiry officer
who had made several observations against the
respondent's efficiency and conduct, which were not
the subject-matter of the several heads
of charge
framed against the respondent, and therefore, not
called for. After considering 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 retfrement was more or less superfluous as the
respondent would have retired in the ordinary course
with effect from September 15, 1953, as
already
indicated. During the pendency of the first writ
petition, an<:I after it had been heard by the High Court
in part, the respondent filed the second writ application (being Writ Petition No. 817of1953) 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 by
the Chief
Justice by its judgment and order dated January 8,
I 954, disposed of both the writ petitions holding that
the orders impugned were invalid for the reason that
the provisions of Art. 320(3) (c) of the Constitution had
not been fully complied .with because the last written
explanation of the respondent submitted on July 3,
1953, had not been placed before the Commission
S.C.R.
SUPREME COURT REPORTS
539
The High Court, therefore, quashed the orders of the
1957
Government reducing him in rank and reducing his
stote of u. P.
emoluments with effect from the date of suspension
v.
as aforesaid. It did not pass any order in respect MQllbodhanLal
of the compulsory retirement
because that had
Srivastava
happened in due course pefore the judgment of the ·
High Court. The appellant has filed appeal No. 27
from this part of the judgment and order of the High
Court. The High Court refused the respondent's 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. 28. It is manifest that if. the State
Government's appeal is well-founded and is allowed
by this Court, the respondent's appeal must fail
without any further consideration.
Before dealing with the merits of the controversy
raised in these appeals, it is necessary to state · that
Mr. Mathur appearing on behalf of the appellant,
proposed to place before this Court, at the time of
the argument, the original records and certain
affidavits to sqow that, that as a matter of fact, all
the relevant facts relating to com;ultation between
the State Government and the Commission had not
been placed before the High Court and that if the
additional evidence were taken at this stage, he would
satisfy this Court that the CommissiQrt was consulted
even after the submission of the respondent's explanation in answer to the
second show-cause-notice.
Without looking into the additional evidence propo.sed
to be placed before us, we indicated that. we would
not permit additional evidence to be placed at this
stage when there was sufficient opportunity for the
State Government to place all the relevant matters
before the High Court itself. We could not see any
special reasons why additional evidence should be
allowed to~ be adduced in this Court. It was
not
suggested that al1 that matter which was proposed to
be placed before this Court was not available to the ·
State Government durin~ the time that the High
Court considered the wnt petitions on two occasions.
Sinha J.
19$'7
Stal• of U.P.
v.
Mallbodlta11 Lal
Srlwuta"la
Sinha/.
S40
SUPREME COURT REPORTS
[19581
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 tlte 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
tlte 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 tlte
Commission after tlte respondent had submitted his
more elaborate explanation in answer to tlte second
show-cause-notice.
Hence, the main question in controversy in appeal .
No. 27 of 1955 is whether the High Court was right in
taking the view that Art. 311 was subject to the
provisions of Art. 320(3)(c) of the Constitution, which
were mandatory, and, as such, non-compliance with
those provisions in the instant case was fatal to the
proceedings ending with the order passed by the
Government on September 12, 1953.
The High Court started with the assumption that
the provisions aforesaid
of the Constitution are
manda,ory and on that assumption proceeded to
consider the further question whether non-compliance
with those provisions by the State
Government
conferred any right on the respondent to question the
validity of the order. impugned in this case. In this
connection, the High Court found that the Commission had been consulted some time in June, 1953. It
has to be assumed as aforesaid, that the Commission
had not before it the more elaborate explanation submitted in writing by the respondent on July 3, in
answer to the second show-cause-notice. The High
Court was further of the opinion that it may be that
if that explanation had been placed before the Commission, its advice to the State Government may not
have been in the same terms in which it actually
gave its advice, and after considering which, along
S.C.R.
SUPREME COURT REPORTS
54.l
with other relevant matters, the State Government
passed the order now in question. We shall assume
for the purposes of this case that there was an irregularity in, though not complete ab~ence of, consultation
with the CommissiQn. Now the question is: Did this
irregularity afford a cause of action to the respondent
to challenge the final order, passed by the
State
Government on September 12, 1953? That part of
the order which related to compulsory retirement may
easily be passed over, because, in any case, three days
later, on September 15, the respondent retired in due
course. Hence, the 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 satisfied 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 had 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 provision
of Chapter I of Part XIV of the Constitution', with
particular reference to Art. 311. That conclusion
would put an end to the respondent's 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. 311. This question does not appear to have
been determined by this Court in the form in which
it has been now raised before us. In the case of
P. Joseph John v. The State of Travancore Cochin (1),
the question of consultation with the State Public
Service Commission was raised in slightly different
circumstances. After the Government had before it
the result of the inquiry into the conduct
of the
public servant, and after the punishment was tentatively arrived at, the Commission was consulted and it
agreed to the proposed action. But this consultation
(I) (19S5) 1 S.C.R. 1011 ..
1957
State of U.P.
·v.
ManlitNlhan Laf
Srlvratava
Sinha·/.
1957
Stale of U.P.
·v.
Mtl1ibodlum Lal
Sriwutava
Silllra I.
542
SUPREME COURT REPORTS
[19581
and agreement was before the public servant was
asked to show cause against the action proposed to be
taken against him.
His complaint was that the
Commission should have been consulted after he had
moved · the Government for reviewing its previous
order, and this Court ruled that it was not incumbent
on the Government to consult the Commission as
ma11y times as he might c;b.oose to move the Government by way of review. In that case, this Court did
not discuss and pronounce upon the alleged
mandatory character of Art. 320 of the Constitution. Hence
it may be taken that we have to determine this controversy for the first time, though according to the
strict construction of the words of A;t. 320(3)(c), an
application for review would be covered by the words
"memorials or petitions".
Article 320(3)( c) is in these terms:
320(3) : "The Union Public Service Commission
or the State Public Service Commission, as the case
may be, shall be consulted-
(a) ..................................... .
(b) ..................................... .
(c) on all disciplinary matters affecting a person
serving under the Government of India or the
Government of a State in a Civil capacity, including
memorials or petitions relating to such matters;".
Article 320 does not come under Chapter I headed
"Services" of Part XIV. It occurs in Chapter II of
that part headed "Public Service Commissions."
Article 320 and 323 lay down the several duties of a
Public Service Commission. Article 321 envisages
such "additional functions" as may be provided for
by Parliament or a State Legislature. Articles 320 and
323 begin with the words "It shall be the duty
............ ", and then proceed to prescribe the
various duties and functions of the Union or a State
Public Service Commission, such as
to conduct
examinations for appointments; to assist in framing
and operating schemes of joint recruitment ; and of
being consulted on all matters relating to methods of
recruitment or principles in making appointments to
Civil Services and on all disciplinary matters affecting
S.C.R.
SUPREME COURT REPORTS
543
a ciVil servant. Perhaps, because of the use of the
t9S7
word "shall" in several parts of Art. 320, the High
state of u.P.
Court was led to assume that the
provisions
of
v.
Art. 320(3)(c) were mandatory, but, in our opinion,
M011bod"'1nLaJ
there are several cogent reasons for holding to the
Srtv111t01a
contrary. In the first place, .the proviso to Art. 320,
slllna 1.
itself, contemplates that the President
or
the
Governor, as the case may be, "may make reg01ations specifying the matters in which either generally,
or.in any particular class of case or in particular circumstances, it shall not be necessary for a Public
Service Commission to be consulted." The words
quoted above give a clear indication of the intention
of the Constitution makers that they did envisage
certain cases or classes of cases in which the Commission need not be consulted. If the provisions of
Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the
Head of the Executive Government to undo those
provisions by making regulations to the contrary. If
1t had been intended by the makers of the Constitution
that consultation with the Commission should be
mandatory, the proviso would not have been there, or,
at any rate, in the terms in which .it stands. That does
not amount to saying that it is open to the Executive
Government completely to ignore the existence of the
Commission or to pick and choose cases in which it
may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed
in letter and in spirit and it goes without saying that
consultation with the Commission on all disciplinary
matters affecting a public servant has been specifically
provided for, in order, first to give an assurance to
the Services that a wholly independent body,
not
directly concerned with the making of orders adversely
affecting public servants, has considered the action
proposed to be taken against a particular public
servant, with an open mind; and, secondly, to afford
the Government unbiassed advice and opinion on
matters vitally affecting the morale of public services.
It is, therefore, incumbent
upon
the
Executive
Govermnent, when it proposed to take any disciplinary
l9S7 -
Stal• of U. P.
v.
Mt111bodhon Loi
Srlwutawi
Slnlia J.
544
SUPREME COURT REPORTS
[1958]
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 the situation.
Secondly, it is clear that the requirements 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 be imposed. If the 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 a such 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 Chapter II
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 public
servant.
Chapter II 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 Chapter I of the Part,
particularly
Art. 311. Article 311, therefore, is not, in any way,
controlled by the provisions of Chapter II of Part
XIV, with particular reference to Art. 320.
The question may be
looked at from another
point of view.
Does the Constitution provide for
the contingency as to what is to happen in the
event of non-compliance with the requirements of
Art. 320(3)(c) ? It does not, either in express terms
S.C.R.
SUPREME COURT REPORTS
545
or by implication, provide that the result of such a
non.;.compliance is to invalidate the proceedings end·
ing 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 Coucil in the case
of Montreal Street Railway Company v. Normandin(').
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 Lordship held that the irregularities
i_n the due revision of the jury lists will not ipso fac'o
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 directly 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 contol 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."
The principle laid down in this case was adopted by
the Federal Court in the case of Biswanath Khemka v.
The King Emperor (2). In that case, the Federal Court
had to consider the effect on non-compliance with the
provisions of s. 256 of the Government of India Act,
1935, requiring consultation between public authorities
. (1) L.R. [1917] A.C. 170
(2) [1945] F.C.R. 99.
l9!17
State of U.P.
v.
Mtmbodltan Lal
Srlr111tava
Slrrha J.
1951
-·-·
Stal• of U.P.
v.
Manbodluvt Lal
Srlvtutavo
SlnhD J.
546
SUPREME COURT REPORTS
(1958]
before the conferment of magisterial powers or of
enhanced magisterial powers, etc. The Court repelled
the contention that the provisions of s. 256, aforesaid,
were mandatory. It was
further held that noncompliance 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
wer~ very
emphatic and of a prohibitory character.
An examination of the terms of Art. 320 shows that
the word "shall" appears in almost every paragraph
and every clause or sub-clause 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
or 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 subclauses 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 directly 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,
S.C.R.
SUPREME COURT REPORTS
547
not only from the phraseology of the provision, but
also by considering its nature, its design, and .the
consequences which would follow from construing it
the one way or the other ....... .
We have already indicated that Art. 320 (3)(c) of the
Constitution does not confer any rights on a public
servant so that the absence of consultation or any
irregularity in consultation, should not afford him a
cause of action in a court of law, or entitle him to relief
under the special. powers of a High Court under
Art. 226 of the Constitution or of this Court under
Art. 32. It is not a right which could be recognized and
enforced by a writ. On the other hand, Art. 311 of the
Constitution has been construed as conferring a right
on a civil servant of the Union or a State, which he
can enforce in a court of law. Hence, if the provisions
of Art. 311, have been complied with in this caseand it has not been contended at any stage that they
had not been complied with-he has no remedy against
an.y 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 sence of affording a cause
of action to a public servant against whom some
action has been taken by his employer.
In view of these considerations, it must be held that
the provisions of Art. 320(3)(c) are not mandatory and
that non-compliance with those provisions does not
afford a cause of action to the respondent in a court of
law. It is not for this Court further to consider what
other remedy, if any, the respondent has. Appeal
No.27 is, therefore, allowed and appeal No. 28dismissed. In view of the fact that the appellant did not
strictly comply with the terms of Art. 320(3)(c) of the
Constitution1 we direct that each party bear its owil
costs throughout.
Appea!No. 21 allowed.
Appeal No. 28 dismissed.
19S7
State of U.P.
v.
Mtutbodlran Lal
Sriwutava
Sinha J.