State of U.P. vs Manbodhan Lal Srivastava

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 27 and 28 of 1955

Decision Date: 20 September 1957

Coram: Bhuvneshwar P. Sinha, J.L. Kapur, A.K. Sarkar

The case titled State of Uttar Pradesh versus Manbodhan Lal Srivastava was decided on 20 September 1957 by the Supreme Court of India. The judgment was authored by Justice Bhuvneshwar P. Sinha and the bench also included Justices J. L. Kapur and A. K. Sarkar. The decision is reported in the 1957 All India Reporter at page 912 and in the 1958 Supreme Court Reporter at page 533. The matter concerned disciplinary proceedings under the Government Servants (Disciplinary Proceedings) Act and involved the procedure for issuing a show-cause notice pursuant to Article 311(2) of the Constitution, as well as the requirement of consulting the State Public Service Commission under Article 320(3)(c).

The respondent, Manbodhan Lal Srivastava, was a government employee of the State of Uttar Pradesh. The State discovered that he had allowed his private interests to conflict with his official duties and therefore initiated a departmental inquiry in which specific charges were framed against him. He was required to file a written statement of defence and was given an opportunity to produce evidence supporting his defence. After the inquiry concluded that the charges were substantiated, the State, invoking Article 311(2) of the Constitution, served a first show-cause notice demanding an explanation for why he should not be demoted and compulsorily retired. The respondent replied with a written defence in which he challenged the procedure adopted at the inquiry. Subsequently the State served a second show-cause notice, furnishing the respondent with a copy of the inquiry report and again asking him to explain why the proposed reduction in rank should not be imposed. He responded with another written explanation.

During the pendency of these proceedings the Government consulted the State Public Service Commission regarding the appropriate punishment. For this purpose it provided the Commission with all material that was available up to the date of the second show-cause notice. Finally, by an order dated 12 September 1953, the Government reduced the respondent’s rank with effect from 2 August 1952. Aggrieved by this order, the respondent filed petitions under Article 226 of the Constitution before the High Court of Uttar Pradesh, contesting the legality of the Government’s order. The High Court observed that, although the State had consulted the Public Service Commission, it had not supplied the Commission with the written explanation filed by the respondent in response to the second show-cause notice. Consequently, the High Court held that the Government’s order was void because the requirements of Article 320(3)(c) of the Constitution had not been fully complied with.

On appeal to the Supreme Court, the appellant sought to introduce additional evidence to demonstrate that, as a matter of fact, the State Public Service Commission had indeed been consulted after the respondent’s submission in answer to the second show-cause notice. The Supreme Court examined the additional material and concluded that there was sufficient opportunity for the appellant to place all relevant documents before the High Court. Nevertheless, the Court noted that the additional evidence could not be admitted at the appellate stage to cure the procedural lapse identified by the High Court. Accordingly, the Supreme Court affirmed the High Court’s finding that the consultation under Article 320(3)(c) had not been effected in the manner prescribed, and that the order reducing the respondent’s rank was therefore invalid.

The High Court held, first, that the additional evidence sought to be introduced should not be admitted. The court affirmed its earlier finding that there had been no consultation with the State Public Service Commission after the respondent had filed his explanation in answer to the second show-cause notice. The court explained that it is a well-established rule that, at the appellate stage, a party may not be allowed to present fresh evidence merely to remedy shortcomings or gaps in the case that should have been addressed at the trial stage. This rule prevents a party from using the appeal as an opportunity to fill in lacunae that existed in the original proceedings. The court added, however, that an exception to this rule exists when the appellate tribunal itself determines that certain evidence is necessary for it to dispense justice between the parties. In such a circumstance, the appellate court may direct that evidence be produced.

Second, the Court observed that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory in nature. The Court explained that those provisions do not create any enforceable right in favour of a public servant. Consequently, the mere absence of consultation with the Commission, or any irregularity in the manner of such consultation, does not give rise to a cause of action that a public servant can maintain in a court of law. In reaching this conclusion, the Court referred to the precedent set in P. Joseph John v. The State of Travancore-Cochin, (1955) 1 S.C.R. 1011, and also relied upon the decision in Biswanath Khamka v. The King Emperor, (1945) F.C.R. 99. Third, the Court held that Article 311 of the Constitution is not subject to the provisions of Article 320; the two articles operate independently of each other.

The judgment proceeded to set out the formal details of the appeal. It recorded that the matter fell under civil appellate jurisdiction, being Civil Appeals Nos. 27 and 28 of 1955. Both appeals originated from the judgment and order dated 8 January 1954 delivered by the Allahabad High Court in Civil Miscellaneous Writ No. 817 of 1953. The Court listed the counsel appearing for the parties: G. C. Mathur and C. P. Lal for the appellant in Appeal 27 and for the respondent in Appeal 28, and N. C. Sen for the respondent in Appeal 27 and for the appellant in Appeal 28. The judgment was dated 20 September 1957 and was delivered by Justice Sinhea.

The Court explained that the two cross-appeals arose on certificates granted by the High Court under Article 132(1) of the Constitution. Both appeals derived from a common judgment and order of a Division Bench of the Allahabad High Court in writ petitions numbered 121 and 817 of 1953, dated 8 January 1954. The High Court had allowed, in part, and dismissed, in part, the two petitions brought under Article 226 of the Constitution. In those petitions, the petitioner had contested the legality of orders issued by the Government of Uttar Pradesh that reduced his rank and directed his compulsory retirement from service. Civil Appeal No. 27 was preferred by the State of Uttar Pradesh, while Civil Appeal No. 28 was preferred by the petitioner who had appeared before the High Court. For brevity, the Court stated that it would refer to the State of Uttar Pradesh as “the appellant” and to the petitioner, Sri Manbodhan Lal Srivastava, as “the respondent” throughout the judgment, which covered both appeals.

The Court then set out the factual background of the case. It noted that the respondent had been appointed to the education department of the State of Uttar Pradesh in 1920. Over the course of his service, he had been promoted to the United Provinces Education Service (Junior Scale). This employment history formed the foundation for the subsequent proceedings concerning his rank and retirement.

In 1946 the respondent’s promotion to the United Provinces Education Service (Junior Scale) occurred, and two years later, in 1948, he was appointed officer-on-special duty and managing editor of the education department’s quarterly journal titled “Shiksha.” While serving in that capacity, he was also named a member of the Book Selection Committee, a position he retained until 1951. During his tenure on the Committee, the Department found his conduct unsatisfactory because he allowed his private interests to clash with his public responsibilities. Specifically, it was discovered that he had given preferential treatment to certain books on the approved list that were allegedly authored by his fourteen-year-old nephew and another relative, and that he had favored a publishing firm which had previously advanced interest-bearing sums of money to him. In July 1952 the respondent was transferred to the post of Headmaster of a particular high school, but he did not assume that post and instead took leave on medical grounds. While he was on leave, the department suspended him effective 2 August 1952. In September of the same year the Director of Education framed formal charges against him, directed him to submit a written statement of defence, and permitted him to call evidence in support of his defence. The charges, which need not be reproduced in full for the present purpose, centered on his failure to disclose his familial relationship with the alleged authors of the books whose selection appeared to yield pecuniary advantage to them, and on his alleged assistance to a publishing firm whose approximately twelve books had been chosen by the Committee of which he was a member. The respondent responded with a detailed written statement, chose not to pursue oral examination of witnesses, and annexed several affidavits to support his position. After conducting a thorough inquiry, the Director of Education reported that the charges were substantially proved and recommended that the respondent be demoted to the subordinate Education Service and be compulsorily retired. Acting on that report, the Government on 7 November 1952 issued a notice under Article 311(2) of the Constitution, calling upon the respondent to show cause why the recommended punishment should not be imposed. The respondent received the show-cause notice on 13 November 1952 and, on 26 November 1952, filed a long written explanation that echoed his earlier defence, addressed the merits of the findings, objected to the procedure followed at the inquiry, and set out his reasons for opposing the proposed penalty.

The respondent reiterated his earlier defence statement, addressing the substance of the inquiry findings and contesting the procedure applied during the investigation. He also opposed the proposed punishment and submitted a written explanation challenging the disciplinary action. On 9 January 1953, a Government notification was issued that listed the education department officers scheduled to retire upon reaching the superannuation age of fifty-five, together with their respective retirement dates. The respondent’s name appeared on that list, and the column indicating the retirement date showed 15 September 1953 as the date applicable to him. Subsequently, on 2 February 1953, the respondent filed Writ Petition No. 121 of 1953. In that petition he contested the validity of the Government’s order that suspended him and required him to show cause why his rank should not be reduced from the date of suspension, and he also challenged the order of compulsory retirement. He further disputed the legality of the entire proceedings and sought a writ of mandamus directing the Government to continue paying his full salary throughout the suspension period until he attained the superannuation age specified in the notification.

Presuming that the show-cause notice served in November 1952 might not have furnished a reasonable opportunity as required by the Constitution, the Director of Education, on 16 June 1953, sent the respondent a copy of the inquiry report together with a covering letter and again asked him to show cause why the contemplated reduction in rank should not be imposed. The State Public Service Commission, referred to in the judgment as “the Commission,” was consulted by the Government concerning the punishment recommended by the inquiry. It is presumed that the Commission received all material relevant up to the date of the second show-cause notice. However, according to the High Court’s findings, the respondent’s written explanation filed on 3 July 1953 had not been placed before the Commission. That explanation was considerably more detailed than the earlier submission; it addressed not only the three specific charges framed against the respondent but also tackled several observations made by the inquiry officer concerning the respondent’s efficiency and conduct, which lay outside the scope of the framed charges and therefore were not required to be answered. After reviewing the Commission’s opinion, the inquiry report, and the multiple explanations supplied by the respondent, the State Government issued its final order on 12 September 1953. That order reduced the respondent’s rank from the Uttar Pradesh Education Service (Junior Scale) to the Subordinate Education Service, made the reduction effective from 2 August 1952, and ordered his compulsory retirement. The compulsory retirement order was essentially redundant because the respondent was already scheduled to retire in the ordinary course on 15 September 1953.

The record showed that the respondent would have ordinarily retired on 15 September 1953, as had already been indicated. While the first writ petition was pending and after it had been heard in part, the respondent filed a second writ application, identified as Writ Petition No. 817 of 1953, on 23 September 1953. That second petition covered essentially the same grounds and prayed for the same reliefs as the first. A Division Bench of the High Court, presided over by the Chief Justice, delivered a judgment and order on 8 January 1954 disposing of both writ petitions. The High Court held that the orders challenged were invalid because the requirements of Article 320(3)(c) of the Constitution had not been fully complied with; specifically, the respondent’s last written explanation dated 3 July 1953 had not been placed before the Commission. Consequently, the High Court set aside the Government orders that had reduced the respondent’s rank and emoluments, effective from the date of suspension, but it made no order regarding the compulsory retirement, which had already taken place before the judgment. The appellant thereafter filed appeal No. 27 from that portion of the High Court’s judgment and order. The High Court had also refused the respondent’s request for full salary for the period of suspension during which he had been deprived of it by the impugned orders, and from that part of the judgment the respondent filed appeal No. 28. It was apparent that if the State Government’s appeal were upheld by this Court, the respondent’s appeal would necessarily fail without any further consideration. Before the merits of the controversies raised in the appeals could be addressed, counsel for the appellant proposed to place before this Court, at the time of argument, the original records and certain affidavits. He sought to demonstrate that the relevant facts concerning the consultation between the State Government and the Commission had not been placed before the High Court, and that, if such additional evidence were admitted, he could satisfy the Court that the Commission had been consulted even after the respondent’s explanation to the second show-cause notice. The Court indicated that it would not permit such additional evidence at this stage because the State Government had ample opportunity to present all relevant matters before the High Court itself. No special justification was shown for admitting fresh evidence now, and it was not suggested that the material proposed for admission was unavailable to the State Government during the earlier proceedings.

The Court noted that the High Court had examined the writ petitions on two separate occasions. It reiterated the well-established rule that, at the appellate stage, a party may not be allowed to introduce additional evidence merely to remedy gaps or omissions that could have been addressed at the trial stage. However, the Court clarified that this rule yields when the appellate tribunal itself requires further evidence in order to achieve a just determination between the parties. On that basis, the Court proceeded on the assumption that the Commission had indeed been consulted regarding the respondent’s guilt or innocence and regarding any action to be taken against him after he had filed his answer to the first show-cause notice. The Court further assumed, for the purposes of its analysis, that no consultation with the Commission occurred after the respondent submitted a more detailed answer to the second show-cause notice. Consequently, the principal issue in appeal number 27 of 1955 was whether the High Court was correct in holding that Article 311 of the Constitution was subject to the mandatory provisions of Article 320(3)(c), and that failure to comply with those provisions made the order dated 12 September 1953 void. The High Court began by treating the provisions of Articles 311 and 320(3)(c) as mandatory and, on that basis, examined whether the State Government’s non-compliance gave the respondent a right to challenge the validity of the impugned order. In its findings, the High Court observed that the Commission had been consulted sometime in June 1953, but it was to be presumed that the Commission had not received the respondent’s more elaborate written explanation dated 3 July, which was filed in response to the second show-cause notice. The High Court further expressed the opinion that, had the Commission been presented with that explanation, the advice it might have rendered to the State Government could have differed from the advice actually given, and that such a different advice might have led the State Government to reach a different decision than the one that formed the basis of the order now under review. For the purpose of the present case, the Court assumed that there was an irregularity in the consultation process, though not a complete absence of consultation. The next question was whether this irregularity afforded the respondent a cause of action to contest the final order issued by the State Government on 12 September 1953. The Court observed that the part of the order concerning compulsory retirement could be disregarded, because the respondent retired voluntarily on 15 September 1953. Therefore, the operative and adverse part of the final order was the reduction in the respondent’s rank from the Provincial grade to the Subordinate grade.

The Court observed that the order reducing the respondent’s rank appeared to satisfy the conditions laid down in Article 311 of the Constitution. Throughout the controversy, no suggestion had been made that, as far as the appellant was concerned, the respondent had been denied a “reasonable opportunity of showing cause against the action proposed to be taken in regard to him.” Consequently, the Court held that it was beyond doubt that the proceedings initiated by the appellant, including the departmental inquiry that culminated in the respondent’s reduction in rank, complied with the mandatory provisions of Chapter I of Part XIV of the Constitution, specifically with reference to Article 311. The Court noted that this conclusion would terminate the respondent’s claim unless it were decided that the provisions of Article 320(3)(c) possessed a mandatory character and functioned as a rider to Article 311.

The Court then stated that the question of whether Article 320(3)(c) was mandatory had not been decided by this Court in the precise form in which it was now presented. The Court referred to the earlier decision in P. Joseph John v. The State of Travancore Cochin (1), where the issue of consultation with the State Public Service Commission arose under slightly different circumstances. In that case, after the Government had obtained the result of an inquiry into the conduct of a public servant and had tentatively arrived at a punishment, the Commission was consulted and it agreed to the proposed action. The Court noted that this consultation and agreement occurred before the public servant had been asked to show cause against the proposed action. The public servant’s grievance was that the Commission should have been consulted after he moved the Government for a review of its previous order. The Court ruled that the Government was not obliged to consult the Commission each time the public servant opted to seek a review. Moreover, in that case the Court did not discuss or pronounce upon the alleged mandatory nature of Article 320 of the Constitution.

Accordingly, the Court concluded that it must determine this controversy for the first time. However, the Court observed that, according to a strict construction of the words of Article 320(3)(c), an application for review would be covered by the terms “memorials or petitions.” The Court reproduced the text of Article 320(3)(c) as follows: “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;.” The Court pointed out that Article 320 did not fall within Chapter I, which is headed “Services,” of Part XIV; instead, it appeared in Chapter XI of that Part, which is headed “Public Service Commissions.” The Court further noted that Articles 320 and 323 set out the various duties of a Public Service Commission, while Article 321 envisaged “additional functions” that Parliament or a State Legislature might provide.

In this discussion, Articles 320 and 323 of the Constitution were examined. Both articles open with the expression “It shall be the duty” and then set out the several duties and functions of either the Union Public Service Commission or a State Public Service Commission. These duties include conducting examinations for appointments, assisting in the formulation and operation of joint recruitment schemes, and being consulted on all matters concerning recruitment methods, principles for making appointments to the Civil Services, and on all disciplinary matters that affect a civil servant. The High Court, having noted the repeated use of the word “shall” within various parts of Article 320, was led to conclude that the provision in Article 320(3)(c) was mandatory. The present Court, however, found several persuasive reasons to reject that conclusion. First, the proviso to Article 320 itself expressly empowers the President or, as the case may be, the Governor to “make regulations 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.” This language clearly indicates that the Constitution-makers envisaged certain situations or categories of cases where consultation with the Commission would not be required. Were the provisions of Article 320 intended to be of a mandatory nature, the Constitution would not have left it to the discretion of the Head of the Executive Government to overturn those provisions by means of regulations to the contrary. If the framers had intended compulsory consultation, the proviso would either not exist or would be phrased differently. This does not imply that the Executive Government may completely disregard the Commission or arbitrarily select cases for consultation or non-consultation. Once the relevant regulations are framed, they must be adhered to both in letter and in spirit. Moreover, the specific provision for consultation on all disciplinary matters serves two important purposes. Firstly, it offers reassurance to the Services that an entirely independent body, which is not directly involved in issuing orders that may adversely affect public servants, will review the proposed action against a particular servant with an open mind. Secondly, it enables the Government to obtain unbiased advice and opinion on issues that are critical to the morale of the public services. Accordingly, it is incumbent upon the Executive Government, whenever it intends to take disciplinary action against a public servant, to seek the Commission’s view on whether the proposed action is justified and not excessive under the circumstances. Secondly, it is clear that the requirement of the consulta- tion

The Court observed that the statutory duty to consult the Commission does not convert the Commission’s advice into a binding obligation on the Government. It emphasized that when the Government seeks the Commission’s views on disciplinary matters, the purpose is not a perfunctory formality but a genuine attempt to obtain assistance in evaluating the guilt or innocence of the individual under investigation and in assessing whether the proposed penalty is appropriate and sufficient. The Court noted that, had the Commission’s opinion been binding, a stronger argument could have been made that any failure to comply with the consultation requirement would have rendered the contemplated disciplinary order void. Because the advice is not binding, the Court found it difficult to accept that a breach of the provisions of Article 320(3)(c) would automatically invalidate the final order issued by the Government.

The Court then turned to the constitutional provisions themselves. It explained that Article 320 and the other articles contained in Chapter II of Part XIV of the Constitution primarily deal with the composition of the Commission, the appointment and removal of its Chairman and members, their terms of service, and the duties and functions of the body. Chapter II, the Court said, regulates the relationship between the Government and the Commission and does not address the relationship between the Commission and an individual public servant. Accordingly, the provisions of Chapter II, including Article 320, do not confer any individual rights or privileges on a public servant, nor do they provide any constitutional guarantee of the kind found in Chapter I of the same Part, particularly those contained in Article 311. Article 311, therefore, is not controlled by the provisions of Chapter II of Part XIV, even when Article 320 is considered.

Addressing the possibility of a constitutional contingency for non-compliance with Article 320(3)(c), the Court held that the Constitution, either expressly or by implication, does not prescribe that failure to comply with the consultation requirement should invalidate the proceedings that culminate in the Government’s final order. This observation, the Court said, is directly relevant to the question of whether Article 320 is mandatory. To illustrate the principle, the Court referred to the decision of the Judicial Committee of the Privy Council in Montreal Street Railway Company v. Normandin (I). In that case, the issue was whether the statutory failure to revise jury lists as required would nullify a jury’s verdict. The Privy Council held that such irregularities would not ipso facto invalidate the verdict. The Board, in its judgment, observed that the question of whether a statutory provision imposes a mandatory duty or merely a directory one is a separate, well-recognised legal enquiry.

The Court observed that the question of whether a statutory provision is directory or imperative has arisen very often in this country, and that no single rule can be applied to all cases. It held that each provision must be examined in the light of the purpose that the Parliament sought to achieve. The Court referred to the compilation of decisions on this topic that appear in Maxwell on Statutes, fifth edition, beginning on page 596, to illustrate the breadth of authorities dealing with the issue.

When a statutory provision imposes a duty on a public authority, the Court explained that if declaring acts performed in breach of that duty to be void would cause serious general inconvenience or would prejudice persons who have no control over the performance of the duty, and if such a declaration would not further the main objective of the legislature, then the provision is ordinarily treated as directory. Although neglect of a directory provision may be punishable, the Court stressed that such neglect does not affect the validity of the acts already done. This principle was later adopted by the Federal Court in Biswanath Khemka v. The King Emperor. In that case the Federal Court examined the effect of non-compliance with section 256 of the Government of India Act, 1935, which required consultation between public authorities before conferring or enhancing magisterial powers. The Court rejected the argument that the wording of section 256 was mandatory, and held that failure to observe the consultation requirement did not render the appointment invalid or inoperative. The decision was described as important because the language of the section was very emphatic and of a prohibitory nature.

The Court then turned to article 320 of the Constitution and noted that the word “shall” appears in almost every paragraph, clause and sub-clause of that article. It pointed out that if article 320(3)(c) were held to be mandatory, then the same mandatory character would have to be attributed to all the other clauses and sub-clauses of article 320. Such a construction would mean that any appointment to the Union or State public services made without strict compliance with the procedural requirements of clause (3) would adversely affect the appointed person, even though the person had no fault and no say in the matter. The Court said that the framers of the Constitution could not have contemplated such an outcome. Consequently, the Court warned that the presence of the word “shall” in a statute, although normally understood to impose a mandatory duty, does not automatically render non-compliance fatal to the proceeding or its result. Similarly, the Court cautioned that it is not always correct to assume that the use of the word “may” makes a provision merely permissive or directory, because non-compliance with a “may” provision may still have significant legal consequences.

In this case the Court explained that when a statute uses the word “may,” the provision is intended to be permissive or directory, meaning that failure to follow it does not invalidate the proceeding. The Court quoted a passage from Crawford on Statutory Construction, article 261 at page 516, which states that determining whether a statute is mandatory or directory depends on the legislature’s intent rather than the literal wording. The Court emphasized that the meaning and purpose of the legislature must guide interpretation, and that this purpose is derived not only from the language of the provision but also from its nature, design, and the consequences that would follow from interpreting it one way or the other. The Court had previously observed that article 320(3)(c) of the Constitution does not create any enforceable right in a public servant. Consequently, the absence of consultation or any irregularity in the consultation process cannot give the servant a cause of action in a court of law, nor can it justify relief under article 226 of the Constitution or article 32 of the Constitution. The Court noted that such a right cannot be recognized and enforced by a writ. By contrast, article 311 of the Constitution has been interpreted as granting a civil servant of the Union or a State a right that can be enforced in a court of law. Therefore, if the provisions of article 311 were complied with in the present case, and no party contested such compliance, the servant has no remedy against any irregularity that the State Government may have committed. The Court further stated that it was not prepared to hold that article 320(3)(c) functions as a rider or proviso to article 311, and consequently it could not be construed as giving a public servant a cause of action when his employer takes action against him.

Considering these observations, the Court concluded that the provisions of article 320(3)(c) are not mandatory and that non-compliance with those provisions does not give the respondent a cause of action before a court of law. The Court also indicated that it would not examine any other possible remedy that the respondent might have. Accordingly, the Court allowed appeal No 27 and dismissed appeal No 28. Because the appellant had not strictly complied with the terms of article 320(3)(c) of the Constitution, the Court directed that each party bear its own costs throughout the proceedings. The final order therefore stated that appeal No 27 was allowed and appeal No 28 was dismissed, with each side responsible for its own expenses.