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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: JOGENDRA SINGH

DATE OF JUDGMENT: 04/03/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1963 AIR 1618            1964 SCR  (2) 197  CITATOR INFO :  F          1977 SC 740  (10)  F          1977 SC1516  (2)  RF         1992 SC 320  (47)

ACT: Public    Servant--Disciplinary     proceedings--Procedure-- "May"-Construction    of--U.P.   Disciplinary    Proceedings (Administrative Tribunal) Rules, 1947, r. 4 (2).

HEADNOTE: The  respondent  was appointed a Naib  Tehsildar  under  the appellant,  in  the year 1937.  On August 4,  1952,  he  was suspended  on complaints received against him and  his  case was   referred  for  investigation  to  the   Administrative Tribunal  appointed under the Rules.  While the  proceedings were  pending,  additional complaints were received  by  the appellant against his conduct and they were communicated  to the Tribunal with an intimation that the appellant  proposed to  send  those further charges against the  respondent  for enquiry.  The Tribunal did not wait for receipt of the  said additional  charges and on enquiry exonerated him  from  the charges framed against him, in August, 1952.  On October 28, 1956,  the  respondent was again suspended and  the  charges framed  on the additional complaints were delivered to  him. The  respondent submitted his explanation and  pleaded  that the  enquiry  might  be  entrusted  to  the   Administrative Tribunal  in accordance with the Rules; but his request  was rejected and the case was entrusted to the Commissioner with directions  to take disciplinary proceeding-,  against  him. The  High Court allowed the writ petition of the  respondent and  the  order  directing the enquiry to  be  held  by  the appointed  authority under r. 55 of the said Civil  Services Rules was quashed. The  question for decision in this Court was,  whether  like the  word "may" in r. 4 (1) which confers the discretion  on the   Governor,  the  word  "may"  in  sub-r.  (2)   confers discretion  on  him,  or does the word "may"  in  sub  r.(2) really mean "shall" or "must". Held, that the whole purpose of r. 4 (2) would be frustrated if  the  word  ,may"  in the said  rule  receives  the  same construction  as in sub-r. (1).  The plain  and  unambiguous

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object of enacting rule 4 (2) is to provide an option to the 198 . Gazetted  Government servants to request the  Governor  that their cases should be tried by a Tribunal and not otherwise. Thus r. 4 (2) imposes an obligation on the Governor to grant a request made by the Gazetted Government Servant and such a request  not  having been granted in the present  case,  the appeal must fail.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 301 of 1961. Appeal from the judgment and order dated March 10, 1960,  of the  Allahabad High Court (Lucknow Bench) in Special  Appeal No. 40 of 1959. K.   S. Hajela, and C. P. Lal, for the appellant. K.   L. Gosain  and Naunit Lal, for the respondent. 1963.  March 4. The judgment of the Court was delivered by GAJENDRAGADKAR  J .-The short point of law which  arises  in this appeal relates to the construction of Rule 4 (2) of the Uttar   Pradesh  Disciplinary  Proceedings   (Administrative Tribunal) Rules, 1947 (hereinafter called the Rules).   That question arises in this way.  The respondent Jogendra  Singh was  appointed  a Naib Tehsildar under  the  appellant,  the State of U. P. in the year 1937.  On August 4, 1952, he  was suspended as complaints had been received against him and an enquiry   into   the  said  complaints   was   contemplated. Accordingly,  charges were framed against him and  his  case was   referred  for  investigation  to  the   Administrative Tribunal  appointed under the Rules.  The Tribunal  held  an enquiry  and  exonerated  the respondent  from  the  charges framed against him, in August 1953. While  the  proceedings before the  Tribunal  were  pending, additional complaints were received by the 199 appellant  against the respondent’s conduct, and  they  were communicated  by  the  appellant to  the  Tribunal  with  an intimation that the appellant proposed to send those further charges  against the respondent for enquiry.   The  Tribunal did  not  wait for receipt of the  said  additional  charges because  it was asked by the government to proceed with  the charge  already with it and concluded its enquiry.  That  is why on October 28, 1955, the respondent was again  suspended and  charges  framed on the additional  complaints  received against  him were delivered to him on October 29, 1956.   On November 12, 1956, the respondent submitted his  explanation and pleaded that in case the appellant wanted to pursue  the enquiry   against  him,  it  might  be  entrusted   to   the Administrative Tribunal in accordance with the Rules. On June 28, 1958, the Deputy Secretary, Board of Revenue, U. P.,  informed  the respondent that in  accordance  with  the orders  passed by the appellant his case had been  entrusted to the Commissioner, Gorakhpur Division, with directions  to take  disciplinary proceedings against him, and his  request that  the  charges  against him,  should  be  entrusted  for investigation  to  the  Administrative  Tribunal  had   been rejected. Thereupon, the respondent filed a writ petition in the  High Court  of  judicature  at Allahabad on July  14,  1958,  and prayed  that a writ, or a direction or an appropriate  order should   be  passed  against  the  appellant  quashing   the proceedings  intended  to be taken against  him  before  the enquiring  officer appointed by the appellant under Rule  55 of  the Civil Services (classification, Control and  Appeal)

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Rules.  The learned single judge who heard the writ petition held  that  the  respondent being a  gazetted  officer,  the appellant  was bound to grant his request that  the  enquiry against him should be 200 held  by  the Administrative Tribunal  appointed  Under  the Rules.   That is why the writ petition was allowed  and  the order  directing  the enquiry to be held  by  the  appointed authority under Rule 55 of the said Civil Services Rules was quashed. This  order  was challenged by the appellant  by  an  appeal under the Letters Patent before a Division Bench of the said High  Court.  The Division Bench agreed with the view  taken by  the learned single judge and dismissed the appeal.   The appellant  then applied for and obtained a certificate  from the said High Court and it is with the said certificate that it has come to this Court. Mr.  Hajela for the appellant contends that  the  conclusion reached  by the Courts below is not supported on a fair  and reasonable  construction  of Rule 4 (2) of the  Rules.   The appellant’s  case  is  that  in the State of  U.  P.  it  is competent  to  the  Governor  to  direct  that  disciplinary proceedings against the officers specified in Rule 4 of  the Rules should be tried before /an Administrative officer, but there is no obligation on the Governor in that behalf.   The Governor may, if he so decides direct that the said  enquiry may  be held under Rule 55 of the Civil Services  Rules  and conducted  by  an appropriate authority  appointed  in  that behalf.    Whether  the  enquiry  should  be  held  by   the Administrative Tribunal, or by an appropriate authority,  is a matter entirely within the discretion of the Governor. On  the other hand, the High Court has held that so  far  as cases  of gazetted government servants arc  concerned,  they are  covered  by  Rule  4 (2) of the Rules  and  on  a  fair construction  of  the  said  Rule, it is  clear  that  if  @ gazetted  government  servant  requests  that  the   enquiry against  him should be held by the Administrative  Tribunal, the Governor is bound to grant his request.  So, the  narrow point which arises 201 for  our decision is which of the two views can be  said  to represent  correctly the effect of Rule 4 (2) of the  Rules. Rule 4 reads as follows:-               "4.   (1) The Governor may refer to the               tribunal  cases  relating  to  an   individual               government  servant  or  class  of  government               servants   or   government   servants   in   a               particular  area  only in respect  of  matters               involving :-               (a)   corruption;               (b)   failure to discharge duties properly-.               (c)   irremediable  general inefficiency in  a               public   servant  of  more  than  ten   years’               standing; and               (d)   personal immorality.               (2)   The  Governor  may,  in  respect  of   a               gazetted   government  servant  on   his   own               request,  refer  his case to the  Tribunal  in               respect  of  matters referred to  in  sub-rule               (1)." It  would be noticed that Rule 4 (1) confers  discretion  on the  Governor to refer to the Tribunal cases  failing  under clauses  (a) to (d) in respect of servants specified by  the first  part of sub-rule (1).  In regard to these cases,  the government  servant concerned cannot claim that the  enquiry

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against him should not be held by a Tribunal and the  matter falls  to  be  decided  solely  in  the  discretion  of  the Governor.   It  is also clear that amongst  the  classes  of servants  to whom sub-rule (1) applies, gazetted  government servants  are included, so that if Rule 4 (1) had  stood  by itself,  even  gazetted government servants  would  have  no right  to claim that the enquiry against them should not  be held by a Tribunal. 202 It-is in the light of this provision that rule 4 (2) has  to be considered. Rule  4  (2)  deals with the class  of  gazetted  government servants  and gives them the right to make a request to  the Governor  that  their  cases  should  be’  referred  to  the Tribunal  in respect of matters specified in clauses (a)  to (d)  of  sub-rule  (1).  The question for  our  decision  is whether like the word " may" in rule 4 (1) which confers the discretion  on the Governor, the word ",may" in subrule  (2) confers  discretion on him, or does the word ,(may" in  sub- rule (2) really mean "shall" or "’must" ?  There is no doubt that  the  word  "’may" generally does not  mean  "must"  or "shall".   But  it is well settled that the  word  "may"  is capable  of meaning "must" or "’shall" in the light  of  the context.   It  is  also clear that  where  a  discretion  is conferred   upon   a  public  authority  coupled   with   an obligation,  the word "may" which denotes discretion  should be construed to mean a command.  Sometimes, the  legislature uses  the word "may" out of deference to the high status  of the  authority  on  whom the power and  the  obligation  are intended to be conferred and imposed.  In the present  case, it  is the context which is decisive.  The whole purpose  of rule 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-rule (1).   It is  because  in regard to gazetted government  servants  the discretion  had already been given to the Governor to  refer their  cases to the tribunal that the rule-making  authority wanted  to  make a special provision in respect of  them  as distinguished  from other government servants falling  under rule  4  (1) and rule 4 (2) has been  prescribed,  otherwise rule  4 (2) would be wholly redundant.  In other words,  the plain  and unambiguous object of enacting rule 4 (2)  is  to provide  an  option to the gazetted government  servants  to request  the Governor that their cases should be tried by  a Tribunal and  203 not otherwise.  The rule-making authority presumably thought that having regard to the status of the gazetted  government servants, it would be legitimate to give such an opinion  to them.   Therefore,  we feel no difficulty in  accepting  the view  taken  by  the High Court that rule  4(2)  imposes  an obligation  on the Governor to grant a request made  by  the gazetted  government  servant  that’  his  case  should   be referred  to the Tribunal under the Rules.  Such  a  request was  admittedly  made  by the respondent and  has  not  been granted.   Therefore, we are satisfied that the  High  Court was  right in quashing the proceedings proposed to be  taken by  the appellant against the respondent otherwise  than  by referring his case to the Tribunal under the Rules. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.