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Munna Lal Tewary Vs. Harold R. Scott and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 161 of 1953
Judge
Reported inAIR1955Cal451,59CWN260,(1956)IILLJ474Cal
ActsGovernment of India Act, 1935 - Section 266(3); ;Constitution of India - Articles 313, 320(3), 320(5), 372, 372(1) and 372(2); ;Adaptation of Laws Order, 1950; ;Government of India Rule - Rule 52
AppellantMunna Lal Tewary
RespondentHarold R. Scott and ors.
Appellant AdvocateAnil Kumar Das Gupta, Adv.
Respondent AdvocateS.M. Bose, Adv. General
DispositionAppeal dismissed
Cases ReferredBailey v. Williamson
Excerpt:
- chakravahtti, c.j.1. the only ground urged in this appeal was that the appellant's discharge from the service of the state government was bad, inasmuch as neither before the initiation of departmental proceedings against him, nor before the imposition of a penalty had the public service commission been consulted.2. at all material times the appellant, munnalal tewary, was employed as the head accountant under the directorate of the west bengal fire services. in march, 1949, he was placed under -suspension on receipt of a report from the anti-corruption department of certain malpractices. thereafter, an enquiry was started against him in respect of two charges, one concerning the alleged purchase of a motorcar said to have been improperly made and another concerning alleged falsification.....
Judgment:

Chakravahtti, C.J.

1. The only ground urged in this appeal was that the appellant's discharge from the service of the State Government was bad, inasmuch as neither before the initiation of departmental proceedings against him, nor before the imposition of a penalty had the Public Service Commission been consulted.

2. At all material times the appellant, Munnalal Tewary, was employed as the Head Accountant under the Directorate of the West Bengal Fire Services. In March, 1949, he was placed under -suspension on receipt of a report from the Anti-corruption Department of certain malpractices. Thereafter, an enquiry was started against him in respect of two charges, one concerning the alleged purchase of a motorcar said to have been improperly made and another concerning alleged falsification of a Petrol Receipt and Issue Register in order to conceal misappropriation of petrol.

An enquiry was held by Sri S. K. Gupta, who was then the Secretary to the Government in the Department of Local Self-Government, and was concluded in September, 1949. Before, however, he made his report, a fresh charge was brought against the appellant as a result of certain remarks made by a Magistrate in connection 'with another case. The third charge was to the effect that the appellant had abetted one Ranjit Kumar Bhattacharya, Station Officer, Serampore, in forging the Petrol Stock Register of that station. By his report which he submitted in May 1950, the enquiring officer acquitted the 'appellant of the first two charges, but found him guilty of the third charge.

Thereafter, the usual, notice to show cause why he should not be removed from service was given, and the appellant appears to have shown cause. The cause shown was not accepted and he was discharged from service 011 23-6-1950, by an order of one Harold R. Scott, Director of Fire Services, who is respondent before us. The appellant submitted successive representations to the Government against the penalty imposed on him, but those were all rejected.

3. Thereafter, the appellant moved this Court under Article 226, Constitution of India for a writ of certiorari upon Harold R. Scott, Sri S. K. Gupta and the State of West Bengal, directing them to send up the records of the proceedings in order that the order of discharge and the findings at the enquiry might be quashed and a further writ in the nature of a prohibition, restraining the respondents from acting upon the order. A Rule 'nisi' was' issued on the application and it care to be disposed of by Bose J.

Various points were urged before him in support of the petition, but of them the only one, which is material for the purposes of the present appeal, was the point I have already mentioned. It was contended that by reason of the provisions of Article 320(3) of the Constitution, it was obligatory on the Government to consult the Public Service Commission before any action was taken against the appellant and that they not having done so, the proceedings taken against the appellant and the order passed against him were of no effect and void.

4. Bose J. conceded that the provisions of Article 320(3) were mandatory, but he held that, nevertheless, the appellant could derive no assistance from those provisions, inasmuch as a rule framed under Section 206(3), Government of India Act, 1935, and making it unnecessary to consult the Public Service Commission in respect of disciplinary action proposed to be taken against officers of the appellants class, had been continued in operation by Clause 19, Adaptation of Laws Order, 1950, issued by the President under Article 372(2) of the Constitution.

The learned Judge thought that whether the effect of Clause 19 was to bring into or keep in force a law not consistent with the Constitution, was immaterial, inasmuch as the power of the President to make any adaptations he considered necessary was derived from the Constitution itself. The learned Judge also pointed out that Article 372(2) expressly provided that no adaptation or modification made by the President could be questioned in any Court of law In accordance with those findings, he discharged the Rule and dismissed the appellant's application. Thereafter, the present appeal was prefer red.

5. Mr. Das Gupta, who appeared on behalf of the appellant, put his point in an ingratiatingly simple form. He contended that although the proviso to Article 320(3) empowered the Governor to make regulations specifying the matters in respect of which it would not be necessary for the Public Service Commission to be consulted, no regulations had, in fact, been made. The proviso to Clause (3) of the Article was, therefore, out of the way and what was operative -at the present time and what was to be applied to the instant case was 'only the main provision of the clause unqualified in any manner. If that was the position in law, the order of discharge was plainly bad, inasmuch as the Public Service Commission had not been consulted and inasmuch as there was no regulation in existence which exempted the State Government from consulting the Commission.

If it was said that the rule framed under Section 266(3), Government o India Act, 1935, had been kept in force by Clause 19, Adaptation of Laws Order, 1950, Mr. Das Gupta's answer was that such a rule, being inconsistent with the Constitution, would have no effect and could not prevail over the Constitution itself. He referred to Clause (5) of Article 320 which requires that all regulations made under the proviso to Clause (3) must be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the -State, as the case might be. According to Mr. Das Gupta, the old rule framed under the Government of India Act not having been laid before the Houses of the Stale Legislature, could not acquire validity as law without being so laid and- a claim that it was a valid and operative law, in spite of not having been laid before the Houses of the Legislature, was a claim inconsistent with the Constitution.

The power of the President under Article 372(2), it was urged, was only power to make adaptations for the purpose of bringing the provisions of existing laws into accord with provisions of the Constitution and, therefore, any pre-existing law not in accord with the Constitution could not be valid by reason of anything done under Article 372(2).

6. It will thus be seen that the whole argument of the appellant was centered on Article 320(3) of the Constitution. It appears to me that the argument raises two questions, a decision on either of which against the appellant will conclude the case. If Article 320(3) is not mandatory in character but only directory, no other question would arise, inasmuch as a failure to consult the Public Service Commission would not make the disciplinary action taken without such consultation invalid.

On the other hand, if the rule of exemption raided under Section 266(3), Government of India Act had been kept in force and validly so kept, the appellant could not insist on prior consultation with the Public Service Commission as of right, even if the provisions of Article 320(3) might otherwise be mandatory in character. In the second case, the position would be that the State Government had exercised or must be deemed, by reason of the President's action, to have exercised, the power to exempt itself from the duty of consulting the Public Service Commission given to it by Article 320 itself.

7. I would take the second question first. The learned Advocate-General, who appeared for the respondents, contended that the whole argument of the appellant was entirely beside the point, inasmuch as the rule framed, under Section 266(3), Government of India Act was not inconsistent with anything contained in the Constitution. The rule, I might point out here, is Rule 52 which says that with respect to matters specified in Clause (c) of Sub-section (3) of Section 266, Government of India Act (which corresponds to Clause (c) of Article 320(3) of the Constitution),

'it shall not be necessary to consult the Commission prior to the passing of orders by any authority subordinate to the Provincial Government which is competent to pass such orders,'

The learned Advocate-General contended that the power of the Central or the local Government to exempt itself from the duty of consulting the Public Service Commission was not unknown to the Constitution of India, but was, on the other hand, expressly provided for in the proviso to Clause (3) of Article 320. According to him, it followed that the rule which I have just read, contained nothing inconsistent with the Constitution.

8. I do not find it possible to accept the contention of the learned Advocate-General, The power given by Section 206(3), Government of India Act is a power exercisable by the Governor-General or the Governors in their own discretion and it is not a power circumscribed in any other way. Nor is any further procedure directed or enjoined to be taken in respect of regulations that may be framed in exercise of the power.

The Constitution, however, has added to the old power a duty and the duty is to lay the regulations before each House of Parliament or the House or each House of the Legislature of the State in order that the Houses of Parliament or the House or Houses of the Legislature may repeal or amend the regulations, if they feel minded to do so. In my view, a rule in respect of which all that can be said is that it has been framed by the Governor, is not consistent with the Constitution which requires by the proviso to Article 320(3) and Clause (5) of the same -Article that it would not be sufficient for the relevant authorities to frame regulations, but they must also submit the regulations to the judgment of the Legislature.

It is true that Clause (5) of Article 320 can apply only to regulations framed after the commencement of the Constitution, but a pre-existing rule flaming validity under the Constitution cannot be said to be consistent with the Constitution if it has not been subjected to the procedure prescribed by Clause (5).

9. The learned Advocate-General next contended that assuming that the old rule providing for exemption from the duty to consult the Public Service Commission was inconsistent with the Constitution, it was, nevertheless, to be accepted as a good rule inasmuch as the President had chosen to keep it in force by means of the action taken by him under Article 372(2) of the Constitution itself.

Reference was made to the language of Clause 19, Adaptation of Laws Order, 1950, and reliance was placed on the provision that where any rule, order or other instrument had been in force under any provision of the Government of India Act, 1935, and such provision had been re-enacted with or without modification in the Constitution,

'the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instrument o the appropriate kind duly made by the appropriate authority under the said provision of the Constitution,'

It was contended that what the President had directed was that the rule was to remain in force as if it were a rule duly made by the appropriate authority under the provisions of the Constitution, and that it followed that notwithstanding that the rule had not been laid before the Houses of the State Legislature, it must be deemed to have been so laid. In other words, the rule must be deemed to have been first framed by the State Government and then laid before the Houses of the Legislature, although, in fact, the second step had not been taken accuse the President had said that the rule was to continue to have effect as if it had been duly made under the Constitution.

The learned Advocate-General, at least as far as I understood him, at first went to the length of saying that the President might, by way of adapting pre-existing laws to the Constitution, keep in force laws which were inconsistent with the Constitution and might to that end, even override certain of its provisions in order to bring it into conformity with pre-existing laws. In fairness to the Advocate-General, I must state that on the second day of the argument he appeared to abandon that contention, but I might examine it on its merits.

10. Before proceeding further, I might refer to another' Article of the Constitution which has a more direct bearing on the question before us. That is Article 313, which deals specifically with laws applicable to public services and posts under the Central or the Local Government. The Article says that

'until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State, shall continue in force, so far as consistent with the provisions of this Constitution.'

All that we need notice in this Article is that pre-existing laws applicable to public services are to continue in force ordly 'in so far as consistent with the provisions of this Constitution.' It appears to me that since Article 313 deals specifically' with laws relating to public services and posts belonging thereto, it is not really necessary to refer to Article 372(1) which is a provision of a general character. But that Article also does not contain any wider or different provision. Article 372 occurs in Part 21 of the Constitution, which is concerned with temporary and transitional provisions. Articles 369, 370 and 371 contain various directions which are to operate during the transitional period 'notwithstanding anything in this Constitution'. The Constitution is thus put on one side.

The provisions of Article 372(1) are, however, far different, because although the Article says that

'all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority',

this provision is only 'notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution.' The vital qualification attached to Article 313 is thus repeated in Article 372(1) as well.

The general intent of the Constitution, therefore, is that pre-existing laws are to operate after the Constitution, until amended or modified by the appropriate authority, only so far as they are consistent with the Constitution and that so far as they are not so consistent, they are to cease to operate.

11. It is in the light of that general intent that the provisions of Clause (2) of Article 372 are to be understood and construed. That clause provides that

'for the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.'

Although the adaptations or modifications that may be made by the President are made immune from attack in any court of law - about the true scope of that provision I shall have to say something later - the governing direction in the clause is that the dealing by the President with pre-existing laws must be for the purpose of bringing such laws 'into accord with the provisions of this Constitution.'

In other words, if there is some pre-existing law which does not conflict with the Constitution in certain respects but does conflict in certain other respects, but it is considered expedient and necessary to keep the law substantially in force, the President can so adjust it to the Constitution as to remove the conflict & then direct it to remain operative. The clause docs not authorize the contrary procedure. It says that the President shall act for the purpose of bringing the provisions of pre-existing laws into accord with the Constitution and not that he should act for the purpose of bringing the provisions of the Constitution into accord with preexisting laws.

I should, therefore, think that the words, 'as if were a rule, order or instrument of the appropriate kind duly made by the appropriate authority under the said provisions of the Constitution', occurring in Clause 19, Adaptation of Laws Order, 1950 cannot be construed as if they could even have the effect of overriding provisions of the Constitution itself. Subject to the apparent difficulty caused by the last words of Article 372(2), I should think that any adaptation which is plainly inconsistent with the Constitution cannot be valid under Article 372(2) and therefore the adaptation actually made must be construed as if the President had not intended to exceed his powers, unless the words used make it wholly impossible to do so.

12. Logically, the next question would be, suppose the advisers of the President make him enact a provision by way of a purported adaptation of a pre-existing law which js plainly inconsistent with the Constitution, what would the effect of such an adaptation be and to what extent would scrutiny in courts of law be barred by reason of the last words in Article 372(2)?

Mr. Das Gupta contended that while the adaptation or modification could not be questioned 'qua' an act of the President, the result of the adaptation or, in other words the previous law as adapted, could nevertheless be challenged as repugnant- to the Constitution, if it was, in fact, so repugnant. Frima facie, that would seem to be a proposition not easily seen to be tenable. If a law as adapted by the President is to be declared unconstitutional and void, the effect of such declaration would be to say that in making the adaptation the President had acted unconstitutionally and, therefore, a Court making such a declaration would be questioning the adaptation. To put it in that hald way is however to over-simplify the matter.

What Mr. Das Gupta was trying to say probably was that just as rules framed under a particular Act which, under some provision of the Act, were to be deemed a part thereof would still be questioned if they were inconsistent with certain provisions in the Act itself although the actual act of the appropriate authority in framing the rules could not be questioned, similarly, the result of an adaptation made by the President could be questioned, if it conflicted with the Constitution, although the process by which the adaptation had come to be made, namely, the action of the President, was not liable to challenge.

The position with regard to statutory rules which are declared to be a part of the Act, but which are found to be inconsistent with the Act itself was elaborately examined by the House of Lords in the case of - 'Minister of Health v. The King (on the-prosecution of Yaffe)', 1931 AC 494 (A). In that case, their Lordships had to construe Section 40 of the Housing Act of 1925, which empowered the Minister of Health to make an order confirming, with or without modifications, an improvement scheme made under the Act, and provided that 'the order of the Minister, when made, shall have effect as if enacted in this Act.

It was held that the section did not preclude the Court from calling in question the order of the Minister where the scheme presented to him for confirmation and confirmed by him was inconsistent with the provisions of the Act. In dealing with the question as to how a conflict between the substantive provisions of an Act and rules framed thereunder which are also to be deemed as parts of the Act was to be resolved, their Lordships referred to the earlier case of - 'Institute of Patent Agents v. Lockwood', (1894) AC 347 (B), decided by the House, where the question was whether rules framed under an Act and required to be laid before the Houses of Parliament and in fact so laid could be questioned in Courts of law as invalid.

Viscount Duuedin pointed out that there was an obvious distinction between the earlier case and the case then betorc the House, inasmuch as in the earlier case the rules had to be deemed to have received the sanction of Parliament itself. The learned and noble Lord however proceeded to say that that distinction would not avail to prevent the sanction given by the Minister in the ease then before the House from being 'an untouchable sanction.'

In other words, his Lordship thought that just in a case where rules were required to be laid before the Houses of Parliament and were, in fact, so laid, the validity of the actual enactment of the rules could not be questioned, even so, in the case then before the House, the validity of the sanction given by the Minister of Health could not be questioned. How then were Courts of law to proceed in such a situation? -Viscount Dunedin with whom all the other noble and learned Lords concurred observed that the true rule had been laid down by Herschell L .Q-, in the earlier case in a passage to which he referred and which I might usefully quote;

'No doubt,' observed the Lord Chancellor, 'there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to by and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which is the subordinate provision, and which must give way to the other.

That would ho so with regard to the enactment, and with regard to rules which are to be treated as if within the enactment. In that case, probably the enactment itself would be treated as the governing consideration and the rule as subordinate to it.'

After quoting the above passage, Viscount Dune-din proceeded as follows:

'What that comes to is this: The confirmation, makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Aet which provides fur the framing of the scheme, not a subsequent Act. If therefore, the scheme, as made, conflicts with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be otherwise if the scheme had been 'per se' embodied in a subsequent Act, for then the' maxim to be applied would have been 'Posteriora derogant priori-bus' '

13. Adopting the language of Viscount Dunedin, it seems to me possible to say that the result of are adaptation order made by the President is that the rule adapted speaks as if it is authorized by the Constitution or has been framed under it, but the Constitution which provides for the framing of the rule by giving the power of adaptation is the same Constitution and it contains other provisions with which the rule framed is not consistent. It may be said that, in such a case, although the act of the President -in making the adaptation cannot be challenged, just as the act of the Minister of Health could not be challenged, the rule must give way to-the provisions of the Constitution, being subordinate thereto.

I am not overlooking the fact that the rules fromed under an Act and the Act itself are at differentlevels of legislation, but I can see no essentialdifference between on one hand, the provisions of .an Act and rules framed under it, which are to betreated as parts thereof and on the other, the provisions of the Constitution and rules framed underit or brought into accord with it. As at presentadvised, I am inclined to think that the principleto which 1 have just referred and which was ex- plained by the House of Lords in the case 1 have just mentioned, might apply to the construction of Article 372(2) of our Constitution.

14. It is, however, not necessary to come to a decision on that question in the present case.. The question would arise if it had to be said on that language of Clause 19 that it did purport to keep in force even laws which might be inconsistent with the Constitution. In my view, Clause 19, Adaptation of Laws Order, 1950, cannot and ought not to be so construed. The clause does not say that theold rules or orders or other instruments shall remain in force, just as they are, but it says that theywill remain in force 'so far as applicable' and'with the necessary modifications.' What does thelast phrase mean?

It is obvious that Clause 19 owes its parentage to Section 24, General Clauses Act which provides that where any Central Aet or Regulation is, after the commencement of the General Clauses Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any order, scheme, rule - I am leaving out the portions not material - issued under the repealed Act or Regulation shall,

'so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted.'

I am quite clear in my mind that the expression 'with the necessary modifications' occurring in Clause 19 have the same meaning as the phrase 'so far as it is not inconsistent with 'the provisions re-enacted.' Only such a construction will give the clause a meaning consistent with Article 313 and 372(1) of the Constitution and I can see no reason whatever to construe the clause in any other way.

Applied to the instant case, the effect of Clause 19 would, therefore, be that the old rule of exemption shall remain in force, subject to being laid before the Houses of the Slate Legislature as directed by Clause (5) of Article 320 and subject to being repealed or amended by the Legislature.

15. It is at this point that the appellant, to my mind, is confronted with a practical difficulty, The objection that the Public Service Commission had not been consulted was not taken in the petition made before the trial Court and the point was raised only in the course of the argument. There is nothing, however, on the record to show whether or not the old rules framed under Section 266(3), Government of India Act, 1935, were laid before the Houses of Legislature after their adaptation.

It appears that a similar case arose in England where Section 101, Sub-section (4) of the Patents, Designs and Trade Marks Act and rules framed thereunder came to be considered. Section 101 required that any rules made in pursuance of the section would have to be laid before both Houses of Parliament, if Parliament was in session at the time of making thereof, or if not, then as soon as practicable after the beginning of the then next session of Parliament. Certain rules were framed in 1889 but they were repealed in 1890.

In 1891 a fresh set of rules were framed, but they were trained in the form of a declaration that from and after the commencement of the new rules-the rules of 1889 would, where applicable, and save so far as they were altered by the new rules, have effect with certain modifications. The point raised was that the rules of 1889, though duly framed, having been repealed, they could not be re-enacted by a mere reference in the rules of 1891 and that for a valid re-enactment they would be' required to be repaid before the Houses of Parliament, as enjoined by Sub-section (4) of Section 101 of the Act There was no evidence before the Court whether the rules of 1889 had been placed before Parliament alter the incorporation in the rules of 1891, nor any evidence that they had not been. In those circumstances the Court proceeded on the view that the provisions of Sub-section (4) of Section 101 must be deemed to have been complied with and that the Court could not give effect to an argument of invalidity of ultra vires in the absence of the necessary pleading and the necessary evidence. (See -Starey v. Graham', (1899) 1 QB 406 (Q).

It is true that the respondents did not contend before us that the old rule had, in tact, been laid before the Houses of the State Legislature after its adaptation, but the position is exactly as it was-in the case to which I have just referred. If there had been evidence that the old rules had not been laid before the Houses of Legislature, we would, have to proceed to the next stage of considering, even in connection with the present point, what the effect of a failure in that regard was, but as; the facts stand, the enquiry must stop at the point we have reached.

16. I do not, however, propose to decide againstthe appellant on this ground, because, much as Itregret the decision, he must fail on the fundamentalground which is that Article 320(3) is not mandatory.It has been held to be directory by a DivisionBench of this Court in the case of - 'ShivaNandan v. State of West Bengal', : AIR1954Cal60 , but, it I may say so with great respect, Iam not impressed by the reasons on which thatdecision rests.

One reason given is that the opinion of the Commission is not binding on Government, as it appears from Article 323(1). I do not' see that that provision makes any difference, because although the Constituent may not have required Governments to be bound by the advice of the Commission, it might still have required imperatively that the opinion of the Commission must be taken into consideration and that the public servant affected should have the privilege of having the opinion of the Commission brought to bear on Government's judgment. 1 can see no necessary conflict between the provision for a consultation being mandatory and the advice given by the authority consulted not being binding.

Another reason given by the learned Judges is based on a consideration which found no favour with a learned Judge, sitting singly, who decided the case of - 'Sisir Kumar Das v. State of West Bengal', : AIR1955Cal183 . Das J. who delivered the judgment of the Division Bunch observed that he could not persuade himself to hold that a menial servant of the humblest category could claim the privileges conferred by Article 320(3). Referring to that observation Sinha, J,, remarked in the later case of ' : AIR1955Cal183 , that the entire background of the Constitution was to confer equality of status on all citizens so as to-evolve a classless society and, therefore, it could not be right to construe an Article in the Constitution as if the Constitution itself contemplated discrimination, between citizens of different grades of position or wealth.

If I may say so, the criticism made by Sinha, J., appears to me to have the support of good reason. The last ground on which the decision in ' : AIR1954Cal60 ', is based is the authority of the decision of the Federal Court in -'Biswanath Khemka v. Emperor . That decision, if I may say so with respect, is a very unusual one. Their Lordships had to construe Section 256, Gov ernment of India Act, 1935, which read as follows;

'No recommendation shall be made for the grant of magisterial powers or of enhanced magisterial powers' to, or the withdrawal of any magisterial powers from, any person save after consultation with the district magistrate of the district in which he is working, or with the Chief Presidency Magistrate, as the case may be.'

As a matter of language, the section appears to me to contain an absolute mandate in the shape of an absolute prohibition, because it says that no recommendation shall be made save after consultation -with a certain authority. The Federal Court, however, yet held that even that provision was of a directory character and the reason given by them was that any other view would lead in many cases to results which could not have been intended by Parliament and which would entail general inconvenience and injustice to persons who had no control over those entrusted with the duty of making recommendations for the grant of the magisterial powers.

That observation was patterned on what the Judicial Committee had said in the case of - 'Montreal Street Rly. Co. v. Norrrtandin', AIR 1917 PC 142 at pp. 143-^44 (G). But with the utmost respect, I am unable to see how the observations of the Judicial Committee could at all be drawn upon in aid of the conclusion at which the Federal Court arrived. The Judicial Committee undoubtedly was considering the principles to be applied in deciding whether a particular provision in a statute was mandatory Or directory.

The proposition which they laid down was this: 'Where the provisions of a statute relate to the performance of a public duty and the case is such that to hold that the acts done were invalid would work general inconvenience and injustice to persons who had no control over those entrusted with the duty and, at the same time, would not promote the main object of the legislation, the provision should be construed as a directory provision.

What the Judicial Committee had in mind was explained more fully and directly in the earlier case of - 'Canadian Pacific Rly. Co. v. Parke', (1899) A.C. 535 (II), where they said that a provision of law should be construed as directory, if to construe it as a mandatory provision would involve an infringement of the common law rights of citizens.

If I may again say so with great respect, it appears to me that if a Magistrate is appointed without complying with the correct procedure for his appointment or if powers conferred on him are not conferred in accordance with law, there can be no question of any general or public inconvenience resulting, if the orders passed and sentences imposed by such a Magistrate are set aside.

It cannot certainly be right to hold as a general rule that if violation of a statute is committed on a large scale with the result that too many people have become involved in the consequences, the violation should he upheld on that ground alone. because not to do so would be to disturb the acts already done. The principle laid down by the judicial Committee applies only to cases where the acts done in exercise of the authority in question have been beneficial to the public.

In any view, it is not necessary for us to consider ourselves bound by the decision of the Federal Court, because they were construing a different provision of law and, on the facts found by themselves, the observations made as regards the mandatory character of Section 256 were in the nature of 'obiter dicta. The Division Bench also said that the Public Service Commission was to be consulted under ' Clause (3) of Article 320 only in respect of those classes of officers for whose recruitment it held an examination under Clause (1), but I can find no warrant for that view.

17. Having said so much, I must proceed to say that Article 320(3) appears to me to he of a directory nature for a variety of other considerations. The first is that the Article itself gives the liberty to the President and the Governors to exempt themselves from its operation by regulations framed by themselves. A mandate which leaves it open to the mandated person to carry or not to carry out the mandate according to his pleasure or discretion cannot be a mandate, properly so called at all. It may be urged against this view that if the main provision of Article 320(3) had not been mandatory, there would be no necessity of empowering the President and the Governors specifically to exempt themselves from the operation of its provisions, if they chose to do so.

The answer to that argument would be that the fact that a particular provision is directory does not mean that it can be followed or not followed just as one pleases. It means merely that whereas in the case of mandatory provision strict compliance with every letter of the law is necessary and absence of such compliance will invalidate the act, in the case of a directory provision, substantial compliance is sufficient and even where there is no compliance at all the act is not invalidated by such non-compliance alone.

It does not mean that where a provision is directory, the persons or authorities to whom it applies can make a habit of disregarding it on the ground that they are not imperatively required to follow it and can follow or flat follow it as they choose. It is because the Constitution expects the President and the Governors of the States to consult the Public Service Commission in eases' covered by Article 320(3) and because it assumes that normally and except in the case of an oversight, they will follow the provisions of the Article that a specific power is given to make consultation with the Public Service Commission unnecessary in certain cases by means of framing regulations in that behalf.

But I can imagine even another argument against the Article being construed as directory. It may be said that whereas the provisions of Article 320(3) might well be construed as directory, if the direction of the Constitution stopped at the proviso to the clause, the same cannot be done, because the matter has not been left to the sole discretion of the President and the Governors, but a further provision has been made, requiring all regulations framed under the proviso to be laid before Parliament or the Houses of the State Legislature as the case may be.

The last requirement, it may be contended, made it clear that unless the President or the State Governors actually framed regulations, making the consultation with the Public Service Commission unnecessary & unless such regulations upon being laid before the Legislature, were neither repealed nor amended, the main provision of Article 320(3) would operate in full force as a provision of a mandatory character. I would accede to that argument, if I could hold that Clause {5} of Article 320 was mandatory. Unfortunately, I am unable to do so.

18. Clause (5) reads as follows:

'All regulations made under the proviso to Clause (3) by the President or the Governor or Rajpramukh of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid'.

The learned Advocate-General contended that the provisions contained in the words, which I have just read, were not mandatory, but he did not advance any argument in support of that contention. I have since considered the matter and although I have not been able to make a very extended investigation, I have still been able to trace decisions of high authority where provisions of the same character came to be considered. The view taken accords, if I may say so without immodesty, with my reading of the language of Clause (5) and its effect in law.

19. It is well known that when an Act provides that rules framed under a section of it shall have to be laid before the Legislature, the provision is generally made in one or another of three forms. There is either a mere direction that any rules framed under a particular section shall have to be laid before the Legislature for a certain period, or there is a provision that the rules shall not come into effect till after they have been laid before the Legislature and have lain there for a stated period or it may be said that the rules shall have to be laid before the Legislature and if the Legislature disapproves or amends or modifies them, they will have effect only as so amended or modified.

In the second type of cases which I have just mentioned, no difficulty can arise, because the Act itself says specifically that the rules are not to come into effect till they have been laid before the Houses of Parliament and have lain there for a stated period. Such a provision fell to be construed in the case of - 'Metcalfe v. Cox', (1895) AC 328 (I).

The Act which came to be considered there was the Universities (Scotland) Act, 1889, which provided by Section 20 that all Ordinances made by members of a certain commission were to be published in the Edinburgh Gazette laid before Parliament, and submitted to the Queen in Council for approval, and that 'no such ordinance shall be effectual until it shall have been so published, laid before Parliament, and approved by Her Majesty in Council.' - The case was heard by a very strong House which included among its members Lords Herschell, Watson and Macnaghten, that they all held unanimously that an Ordinance by which the University College of Dundee had been sought to be affiliated to and made a part of the University of St. Andrews but which had not been laid before Parliament was, for want of due compliance with the procedure laid down by the statute, invalid and void.

20. The provisions of Clause (5) of Article 320 are, however, entirely different. In the first place, all that the clause requires and enjoins is that the regulations shall be laid before the Legislature for a period of not less than fourteen days. It is not said that till the regulations have been so laid and till after they have lain fur a particular period, they shall not come into force. Again, the clause provides that after the regulations have been placed before the Legislature they shall be subject to modification 'whether by way of repeal or amendment.'

The word 'amendment' causes no difficulty, be-cause I can conceive of even draft rules being amended, but the clause also speaks of 'repeal' and that provision to my mind indicates conclusively that the regulations do not depend for their validity on being laid before the House and certainly do not depend on the Legislature's approval. The word 'repeal' implies and connotes that' what is to be repealed is already law, for otherwise repealing could have no meaning and there could no question of repeal at all.

Even apart from the meaning suggested by the word 'repeal', it appears to me that in view of the limited character of the provision contained in CL (5), limited in the sense that it is confined to a direction for laying the regulation before the House, the clause can be construed only as a prc*-vision of a directory character.

21. The question was considered at great length by four Judges of the Queen's Bench in the case of - 'Bailey v. Williamson', (1873) 8-Q. B. 118 (T). The Act which fell to be considered there was me Parks Regulation Act, 1872, which was-largely concerned with the use by the public of the Hyde Park in London. The Act contained a schedule which provided for the framing of rules and Section 9 of the Aci ran as follows:

'Any rule made in pursuance of the first schedule to this Act shall be forthwith laid before both Houses of Parliament, if Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session of Parliament; and if such rules shall be disapproved of by either House of Parliament within one month after the same shall have been so laid before Parliament, such rules, or such parts thereof as shall be disapproved of, shall not be enforced.'

Section 4 of the Act provides that the regulations contained in the Schedule shall not take effect until the expiration of one calendar month after the passing of the Act. The question raised being whether regulations framed under the Act would be operative after the expiry of one calendar month, but before they had been laid before Parliament, Cockburn, C. J., observed as follows:

'Was it, then, intended that the Act should in the meantime be inoperative? I think not, because the regulations are to come into effect within one month after the Act itself comes into operation. It is contemplated by the legislature in the statute itself, that those regulations, which are to come into force within one month of the statute, shall be supplemented by rules to be made; and it seems to me that the rules must be considered as coming into operation by virtue of the statute and the regulations in the schedule from the time the rules are made; subject to this, that if those rules should appear to either House of Parliament then sitting or when it next meets, as unreasonable and improper, then either House of Parliament has the power reserved to it by the statute, instead of a new statute being enacted, to repeal what has been done under the former one, and to disallow all or any of the rules.'

Blackburn, J., was more direct and referred to the provision in Section 9 to the effect that the rules or such part of them as might be disapproved by Parliament would not be enlorced. Referring particularly to that provision, the learned Judge observed as follows:

'The question is - Docs that mean that the rule which had been made and published shall not be enforced, 'ab initio,' and that this laying before Parliament Khali, be made a condition precedent? 1 can only say that it does not seem to me to be the intention expressed by the legislature.

I think the legislature has expressed the intention that the rules shall be made, and an intention that if after the period limited Parliament expresses its disapproval, it shall cease to be a rule; but it is to be a rule up to that time, and, as such, any transgression of it may be punished by a summary conviction under Section 4.'

Mellor, J., pointed out that Section 9 did not say that the rules would not come into force until they had been laid before Parliament or until they had been approved and he concluded that, in the absence of such words the laying before Parliament could not be held to be essential for the purpose of validating the rules. Quiu'n, J., made the accute observation that Section 9 said nothing about the approval of Parliament but only said that Parliament might, if it chose, disapprove the rules or a portion of them.

' 'It is very remarkable,' said the learned Judge, 'that the word used is 'disapproved', so that the act must be an act of disapproval on the part of Parliament, and not of approval. And the section docs not say that the rule, if disapproved, shall be null and void, or of no effect, or that it shall be repealed, or anything of that kind; but it simply says that it shall not be enforced.'

The point in the learned Judge's observation is that since the statute simply said that Parliament might, if it chose, disapprove the rules, but said nothing about approval, approval by the Legislature could not be said to be a condition precedent to the validity of the rules.

22. I need not multiply citations, but shall content myself with referring to a case to which I have already referred, namely, the case of '(1899) 1 Q. B. 406 (C)'. Referring to Section 101, Sub-s. (4), Patents, Designs and Trade Marks Act, to which I referred a few minutes ago in the course of this judgment, Channell J., said that provisions of that character were no more than directory.

23. It will appear that there are no words in Clause (5) of Article 320 which say that the regulations shall have no effect, unless laid before the Houses of Parliament or that they will not come into force till the Houses have approved of them. Indeed, as Quain, J., pointed out in the decision I have already referred to Clause (5) also says nothing about the approval of the Legislature.

If, therefore, failure to lay them before Parliament or the Houses of the State Legislature does not entail the consequence that the regulations will not come into force at all or will cease to have effect as law, I feel constrained to hold, in accordance with established principles, that the provisions of Clause (5) can only be construed as directory. Indeed, the word 'repeal' as occurring in the clause, leaves no option but to hold that even without being laid before the Legislature and before they have been so laid, the regulations are already law. If so, then the provision for laying them cannot be mandatory, for if it was mandatory, non-compliance with it would make the regulations utterly void.

24. Since Clause (5) is itself directory, it cannot require the construction of Clause (3) as directory, otherwise suggested, to be modified and one must come to the conclusion that all parts of the provision relating to consultation with the Public Service Commission as also those provisions, taken as a whole cannot be construed to be of a mandatory character. This view seems to have the force of practical considerations behind it, because before the commencement of the Constitution and the first sitting of the Houses of the Legislature, there would be in interval and if the provisions of Article 320(3) were mandatory, there could' be no rule of exemption operative during that period. The consideration is perhaps not a very strong one, because 11 that would happen would be that the Commission would have to be consulted in every case of disciplinary action. But there are other reasons, as I have shown, drawn from the language of the Article which compels the view that its provisions are merely directory.

25. As I pointed out towards the early part of the judgment, if Article 320(3) is only directory and not of a mandatory character, the appellant cannot succeed in his application on the ground that the Public Service Commission was not consulted in his case. It is clear that if Article 320(3) is construed as a directory provision, as in my view it has to be construed, the safeguard provided by it to the servant of the State may prove to be of a wholly illusory character. It may be that the Constitution trusted the executive to follow the directions of the Article, even though they were not of a mandatory character and one can only hope that they will be followed.

26. For the reasons I have given above, this appeal cannot succeed. It is accordingly dismissed, but there will be no order for costs.

Lahiri, J.

27. I agree.


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