PETITIONER: STATE OF ANDHRA PRADESH & ANR. Vs. RESPONDENT: DR. RAHIMUDDIN KAMAL DATE OF JUDGMENT: 07/02/1997 BENCH: J.S. VERMA, S.P. KURDUKAR ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
S.P. KURDUKAR, J.
This civil appeal by Special Leave is filed by the
State of Andhra Pradesh and another challenging the legality
and correctness of the judgment and order dated August 7,
1984 passed by the Andhra Pradesh Administrative Tribunal in
review representation being Misc. Petition No. 322 of 1984
in Representation Petition No. 142 of 1978 filed by the
respondent.
2. A few facts relevant for the disposal of this appeal
may be briefly summarised as under:-
The respondent was appointed on 18th April, 1945 as
Tehsildar in revenue department of the erstwhile State of
Hyderabed. On re-organization of the States on 1st November,
1956, the respondent was allotted State of Andhra Pradesh.
In the year 1957, he was promoted as Deputy Collector.
3. While serving as the Deputy Collector, the respondent
applied for the granted leave from 11th June, 1963 to 10th
June, 1968. While on leave, on 14th November, 1964, the
respondent sought pre-mature retirement. The Board of
Revenue informed the respondent. that the govt. servant in
superior service governed by old pension rules had the
option to retire from service only after completion of 25
years of qualified service. While sanctioning the last spell
of extension of leave from 1st January, 1968 to 10th June,
1968, the Board of Revenue informed the respondent that he
would cease to be a government servant from 11th June, 1968
as per Rule 29 of the Hyderabad Civil Service Rules (for
short `Rules’) according to which a government servant after
five years of continuous absence from duty elsewhere than on
foreign service ceases to be a government servant. Despite
such communication, the respondent did not join the service
on 11th June, 1968 but sought permission on 19th June, 1968
to serve in a private company started by him and his wife.
According to the appellants, the respondent thus had not
only violated Rule 29 of the Rules by remaining absent for
more than five years but also contravened Rules 10, 11 and
12 of the Andhra Pradesh Civil Services Conduct Rules, 1964.
In the meantime, the Government of Andhra Pradesh on 28th
August, 1968 appointed the Secretary to the Board of Revenue
as enquiry officer under Rule 19(2)(a) of A.P. Civil
Services (Classification, Control and Appeal) Rules, 1963.
On November 24, 1970, a charge sheet came to be served on
the respondent. The respondent submitted his reply on 28th
December, 1970 but did not ask for any oral inquiry. On
perusal of the reply, the Authority found that the
explanation given by the respondent was not satisfactory
and, therefore, on 31st March, 1972, a show cause notice was
issued to him (respondent) indicating the proposed
punishment of removal from service. Vide order dated 23rd
September, 1977, the respondent was removed from service. By
another order dated 13th December, 1977, the period between
11th June, 1968 to 23rd September, 1977 was treated as `dies
non.’ It is relevant to mention that till the order of
removal from the service was made, the respondent continued
to remain absent. In 1978, the respondent filed
representation petition against the orders dated 23rd
September, 1977 and 13th December, 1977 before the Andhra
Pradesh Administrative Tribunal. After hearing the parties,
the A.P.Administrative Tribunal vide its order dated June
10, 1984 dismissed the representation petition. The
respondent thereafter filed review representation Misc.
Petition No. 322 of 1984 before the said Tribunal. The A.P.
Administrative Tribunal after hearing the review petitioner
and the respondent vide its order date 7th August, 1984 set
aside the order of removal of the respondent passed on 23rd
September, 1977 though upheld the order dated 13th December,
1977 on the ground that prior to the issue of order dated
23rd September, 1977, the Andhra Pradesh Vigilance
Commission was not consulted by the Government as required
by the then existing Rule 4(2) of A.P.Civil Services
(Disciplinary Proceedings Tribunal) Rules.
4. From the record, it is found that the Government of
Andhra Pradesh on 31st October, 1984 issued G.O.M.S. No.
1618 whereby it annulled the orders of the Tribunal dated
August 7, 1984 passed in review representation Misc.
Petition No. 322 of 1984. This order was issued by the
Government of Andhra Pradesh in exercise of its powers under
Article 371-D(5) of the Constitution of India. Aggrieved by
the order dated 31st October, 1984, the respondent filed
writ petition in the High Court of Andhra Pradesh and the
High Court vide its order date 12th February, 1987 relying
upon the decision of this Court in P.Sambamurthy Vs. State
of Andhra Pradesh, 1987(1) APLJ 13, allowed the writ
petition and set aside the order dated 31st October, 1984
passed by the Government of Andhra Pradesh. The Government
of Andhra Pradesh feeling aggrieved by the order passed by
the Andhra Pradesh Administrative Tribunal on August 7, 1984
has filed this appeal challenging the legality and
correctness thereof.
5. The Andhra Pradesh Administrative Tribunal after
considering to Rule 2(b) of the A.P. Civil Services
(Disciplinary Proceedings Tribunal) Rules (for short `DPT
Rules’) which defines the “misconduct” and on
reconsideration of Rule 4 opined that the charges levelled
against the respondent relate to the misconduct as defined
under Rule 2(b) ibid and since the Government of Andhra
Pradesh under sub rule (2) of Rules 4, as it then stood, did
not consult the Andhra Pradesh Vigilance Commission before
passing the order of removal on 23rd September, 1977, the
said order is rendered illegal. However, the Andhra Pradesh
Administrative Tribunal did not disturb the order dated 13th
December, 1977 as regards treating the period between 11th
June, 1968 to 23rd September, 1977 as “dies non.” The only
question, therefore, that falls for our consideration is as
to whether Andhra Pradesh Administrative Tribunal was right
in setting aside the order of removal of the respondent
passed on 23rd September, 1977 solely on the ground that
before passing this order, the Government of Andhra Pradesh
did not consult the Vigilance Commission. In order to
appreciate the rival contentions, it is necessary to
reproduce Rule 4 of DPT Rules which reads as under:-
“4.(1) In every case referred to
in sub-rule (1) or (2) of rule 3,
on completion of investigation, the
anti corruption department or other
departmental authority concerned
shall submit a report of the case
to the Government.
(2) The Government shall after
examining such records and after
consulting the Heads of Department
concerned, if necessary, decide
whether the case shall be tried in
a court of law of inquired into by
the Tribunal or departmental
authority. But before taking a
decision, the Government shall
consult the Andhra Pradesh
Vigilance Commission.
(3) If the Government decide that
the case shall be inquired into by
the Tribunal, they shall send the
records relating thereto the
Tribunal.
(4) In any case where the Head of
the Department is not consulted, he
shall be informed of the action
that is being taken.
(5) There shall be a Director of
Prosecutions and as many Additional
Directors of Prosecutions as may be
considered necessary to conduct
enquiries on behalf of the
Government in disciplinary cases
before the Tribunal and the accused
officer concerned shall be allowed
to be represented by counsel. In
case where the Director of
Prosecutions or any of the
Additional Directors of Prosecution
cannot attend to examinations of
witnesses on commission, and ad-hoc
Director of Prosecutions shall be
appointed. (As per G.O.Ms. No. 109
(Ser.D) 25-2-1969.”
6. Rule 2(b) of DPT Rules defines the “misconduct”:-
“Misconduct” shall have the same
meaning as criminal misconduct
under Section 5(1) of the
Prevention of Corruption Act, 1947
(Central Act II of 1947) and shall
include any attempt to commit any
offence referred to in clause (c)
or clause (d) of that section and
any “wilful contravention of the
rules made under the proviso to
Article 309 of the of persons
appointed services and posts in
connection with the affairs of the
State.” ( G.O.Ms. No. 1026, G.A.
(Ser-D), dated 16-2-1969.”
7. Admittedly, the respondent had remained absent from
duty for more than five years commencing from 10th June,
1968 till the order of removal was made on September 23,
1977. His absence from duty, therefore, would be covered by
the definition of misconduct under Rule 2(b) of DPT Rules.
Learned counsel for the appellants urged that Rule 4(1)
and (2) of DPT Rules have no application in the present case
because no vigilance investigation was ever directed by the
Government of Andhra Pradesh, Vigilance Commission.
Alternatively, it was submitted that assuming that clause
(2) of Rule 4 of DPT Rules applies in the present case yet
the same is not mandatory and, therefore, no consultation by
the Government with the Andhra Pradesh Vigilance Commission
would not render the order dated 23rd September, 1977
illegal. A somewhat similar question fell for consideration
before the Constitution Bench of this Court in State of U.P.
Vs. Manbodhan Lal Srivastava, 1958 SCR 533. In this reported
decision, a penalty of reduction in rank was made without
consulting the Public Service Commission. An argument was
raised that under Article 320(3)(c) of the Constitution of
India, it was obligatory to consult the Public Service
Commission before any adverse order was made against the
public servant. This Court while construing the provisions
of Articles 311 and 320 (3)(c) of the Constitution held that
the provisions of Article 320(3)(c) relating to the prior
consultation with the Public Service Commission are not
mandatory and that non compliance thereof does not afford
cause of action to the respondent (public servant) in a
court of law. This Court observed as under:-
“An examination of the terms of
Article 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 Article
320(3)(c) are mandatory in terms,
the other clauses or sub-clauses of
that article will have to be
equally held to be mandatory. If
they are so held, any appointments
made to the public services of the
Union or a State, without observing
strictly the terms of these sub-
clauses in clauses (3) of Article
320, would adversely affect the
person so appointed to a public ser
vice, 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 man 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.”
8. The relevant portion of clause (2) of Rule 4 of DPT
Rules reads thus:-
“4(2)- ……………….But
before taking a decision, the
Government shall consult the Andhra
Pradesh Vigilance Commission.”
9. The phraseology used in Article 320(3)(c) is similar
and reads thus:-
“The Union Public Service
Commission or the State Public
Service Commission, as the case may
be, shall be consulted.”
10. The word “shall” appearing in clause (2) of Rule 4 set
out herein above, therefore, in our opinion, is not
mandatory and consequently non consultation with the Andhra
Pradesh Vigilance Commission would not render the order of
removal of the respondent passed on 23rd September, 1977
illegal.
11. Mr. H.S.Gururaja Rao, the Learned Senior Counsel
appearing for the respondent relied upon the Judgment of
this Court in Deokinandan Prasad Vs. State of Bihar 1971
(Suppl.) S.C.R. 634 to contend that the word “shall” in
clause (2) of Rule 4 of the DPT Rules must be construed as
mandatory and non observance thereof would render the order
dated 23rd September, 1977 illegal. After going through the
judgment, we are unable to accept the contention raised on
behalf of the respondent. He then relied upon another
decision of this Court in Jai Shanker Vs. State of Rajasthan
1966(1) SCR 825. It was a case where Regulation 13 of
Jodhpur Service Regulations was not questioned. it provided
for automatic termination of service on account of over
staying the leave period for more than one moth. The
question raised before the Court was whether such
termination attracts Article 311 and answer given by this
Court is in the affirmative. The facts of this reported
decision are quite distinguishable and has no application to
the facts of the present case.
12. For the foregoing reasons, we allow the appeal and set
aside the order dated August 7, 1984 passed by the Andhra
Pradesh Administrative Tribunal. In the circumstances, there
will be no order as to costs.