J.K. Tandon, J.
1. The petitioner was appointed as Naib Tahsildar in 1937. He worked at several placesand ultimately rose to the rank of a Deputy Collector in which capacity he officiated at Azamgarh and Unnao till September, 1948. There were complaints against his work while he was Sub-Divisional Magistrate, Unnao. This once led to his reversion to his substantive post of Tahsildar on 18-9-1948. Alhough, the petitioner has so claimed, he was exonerated subsequently on the charges levelled against him after an inquiry by the Criminal Investigation Department his reversion on the post of Tahsildar continued.
2. In December, 1948, he, therefore, tookover charge as Tahsildar at Sikandera Rao in thedistrict of Aligarh. As, however, further complaints were made against him, fresh charges were delivered to him in connection with his work at Sikandera Rao. He was also placed under suspension on 4-8-1952. The Government apparently because the petitioner as a Tahsildar was a gazetted officer referred the said charges for inquiry to the Administrative Tribunal in 1952. Again, he was successful in getting a favourable order from the Tribunal which held the charges not proved. This was in August, 1953.
While the proceedings were still continuing before the Tribunal a communication was received bythe Tribunal from the Government on 18-11-1952, to the effect that the latter proposed to send some further charges against the petitioner for inquiry. These further charges related to his work as Tahsildar, Banegaon in the district of Gorakhpur. Admittedly the Tribunal did not wait for the receipt of these additional charges and concluded its inquiry on the charges already before it. The petitioner has claimed that these additional charges were frivolous and engineered by his opponents. According to him the District Magistrate concerned also exonerated him from the blame.
3. The other facts are that the said additionalcharges were not dropped but they were entrusted lor further investigation to the Criminal Investigation Department. The petitioner was also suspended with effect from 28-10-1955 though these charges were formally delivered to him on 29-10-1956. In submitting his explanation on these charges he requested that, in case the Government wanted to pursue the inquiry against him, the same might be entrusted to the Administrative Tribunal in accordance with the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947.
On 28-6-1958 the Deputy Secretary, Board of Revenue, U. P. informed the petitioner that in accordance with the orders received from the Government his case had been entrusted to the Commissioner, Gorakhpur Division, with directions to take disciplinary proceedings against him (vide Annexure X). In other words, the inquiry on the charges was entrusted to the Commissioner, Gorakhpur Division, and his request that it be entrusted to the Administrative Tribunal was turned clown. Thereupon the petitioner filed the present petition impugning the order of the Government entrusting the inquiry to the Commissioner.
4. Amongst the grounds raised in support are that additional charges, as they have been called, were already covered by the charges earlier served upon him and on which he had been exonerated also, no second inquiry could therefore, be held and further that he being a gazetted officer the Government is bound, in view of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, to entrust the inquiry to the Administrative Tribunal.
5. On the view that this Court is taking on the second ground, it is not necessary in the present case to deal with the first ground. In any case, certain questions of fact will arise in its connection which cannot properly be investigated here. I, therefore, proceed to discuss the second objection.
6. Rule 4 of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, makes the following provision :
'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 :
(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).'
The Disciplinary Proceedings (Administrative Tribunal) Rules were prepared under Sections 241(2) and 266(3) of the Government of India Act, 1935, for regulating in certain cases the conduct of disciplinary proceedings and the award of punishment to members of the public service under the Governor's rule-making control. There is no dispute that the petitioner belongs to a public service under the Governor's rule making control. His case, therefore, is attracted by the provision in the said Rules and Rule 4 also is applicable to him.
Sub-rule (1) of Rule 4 confers on the Governor the general power to refer to the Tribunal cases relating to individual Government servants or class of Government servants in respect of matters referred to in. Clauses (a) to (d) of that sub-rule. The charges against the petitioner admittedly fall under one or the other of these categories. Sub-rule (2) again requires that the Governor may in respect of a gazetted Government servant on his request refer his case to the Tribunal in respect of matters referred to in Sub-rule (1). By Sub-rule (1) a general power is given to the Governor to refer cases to the Tribunal and by sub-rule (2) a gazetted Government servant also has been conferred the right to ask the Governor to refer his case to the Tribunal. The petitioner's case is governed by Sub-rule (2) also, he being a gazetted Government servant.
7. There is no dispute by the learned standing counsel also that the petitioner's case is such as the Governor could under the above provisions refer to the Tribunal. His objection, however, is that the Governor is not bound to do so in every case but has a discretion to refer it to the Tribunal or hold a departmental inquiry as he should desire. In spite of my asking him to tell me the cases in which the Governor will refer the matter to the Tribunal and cases in which he will entrust the inquiry to departmental officers, he was unable to invite my attention to any provision in the rules laying down the distinction.
As this contention is, the Governor has an absolute discretion in the matter and can refer any case to one or the other authority. I do not consider myself called upon to express any final opinion on the above interpretation placed by the learned standing counsel on Rule 4, or whether the Governor's discretion in the matter is absolute and not controlled by any subjective considerations. The question which will dispose of the present controversy is whether the Governor has any discretion to refuse to refer the matter to the Tribunal where it concerns a gazetted Government servant and the gazetted Government servant, indeed, asks him to do so.
8. Since the word used in the two sub-rules is 'may', it is contended that the Governor is not bound to make a reference but may in his individual discretion decline to do so. By Sub-rule (1) of Rule 4 a general power to refer matters to the Tribunal has been given to the Governor and by Sub-rule (2) a duty has been entrusted to him where so requested by the gazetted officer concerned to entrust the inquiry to the Administrative Tribunal. This is thus a case where a power belonging to him is coupled with a duty also. A gazetted government servant occupies a certain superior status in the administrative hierarchy. Apparently it is in that context, at least that is one of the considerations, in which Sub-rule (2) exists. An Administrative Tribunal consists of two persons, of whom one is a person who is qualified for appointment as a Judge of a High Court. The provision for inquiry by an Administrative Tribunal is thus for the benefit of a Government servant.
In asking the Government to refer the inquiry to the Administrative Tribunal a Government servant who is so entitled, naturally asks something which is for his benefit. He cannot be deprived of that benefit at the unguided discretion of the authority charged with the duty of entrusting the inquiry. The Government is thus not only armed with the power of entrusting the inquiry to the Tribunal but is placed under an obligation also to do so where so requested by the Government servant concerned. In these circumstances the word 'may' has the force of 'must' and the Governor cannot refuse the request of the Government servant except for some very valid reasons. In the present case no such reason has been assigned. Under the circumstances the Government was guilty of an apparent error in refusing to refer the dispute to the Administrative Tribunal.
9. As no other point has been pressed in this case and the petitioner has succeeded in showing that the order of Governor refusing to refer the inquiry on the charges to the Administrative Tribunal is contrary to law he is entitled to an order quashing the reference to the Commissioner, Gorakhpur Division.
10. The petition is accordingly allowed. Theorder dated 28-6-1958, directing the inquiry to beentrusted to the Commissioner, Gorakhpur Division,is quashed. The petitioner will get his cost from therespondent. This order will not affect the right ofthe State Government to refer the inquiry afresh tothe Administrative Tribunal in accordance with law.