The State of Punjab vs Shri Kartar Singh Grewal

S.S. Sandhawalia, J.—Whether the provisions of rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, are mandatory in nature is the primary question which falls for determination in this second appeal which is before us on a reference.

Dr. Kartar Singh Grewal was a member of the P.C.M.S. Class I service and was due to superannuate on the 1st of September, 1972. However, long before that, departmental proceedings on six charges of corruption were commenced against him in July, 1968. The Enquiry Officer found him guilty of the following two charges, whilst exonerating him on the remaining four:---

That on 1st September 1967, Dr. Grewal, obtained Rs. 1,000/- as illegal gratification from Shri Sukhminder Singh son of Shri Gurdev Singh resident of village Kot Shamir for the medical treatment and operation of his brother Shri Gurcharan Singh : and

That on 25th September, 1957, the said Dr. Grewal obtained Rs. 10/- as illegal gratification from Mrs. Savitri Devi Teacher, for recommending extension of her maternity leave.

The report of the Enquiry Officer was accepted by the Government and a notice dated the 15th of September, 1970, was served on the respondent to show cause as to why he should not be dismissed from service. On a consideration of the explanation submitted by the respondent, the Government took the view that some clarification was required on the effect of delay in the lodging of the original complaint against the respondent and further nether the non-performance of the operation for which the respondent is alleged to have taken a bribe of Rs. (sic) in any way affected the prosecution case After complying with the necessary formalities a second Enquiry Officer was appointed in order to give his findings on the aforesaid two points. Before him, the respondent on the 23rd of July, 1971, made a prayer that he should be allowed to summon further evidence but this was declined by the order dated the 26th of July, 1971 on the ground that no amendment of the charge had been made and the relevant witnesses had already been cross-examined at length As the issue was more or less of a legal nature regarding the effect of delay and the performance of operation by another doctor, the parties ware directed to cite law and argue the matter before the Enquiry Officer. Having heard the counsel for the parties on the issues aforesaid, the Enquiry Officer by his older dated the 9th of September, 1971, decided both the issues against the respondent. The government agreeing with toe findings of both tie Enquiry Officers served a fresh show cause notice against the respondent for imposing the punishment of dismissal. After considering the reply filed by the respondent in detail, the Governor of Punjab passed the dismissal order on the 28th of August, 1972.

As the date of the superannuation of the respondent was drawing close, the aforementioned order of dismissal was published in a Government Gazette (Extra-ordinary) on the very date of 28th August, 1972. It is equally not in dispute that the appellant State further took the precaution of having the order broadcast from the Jullundur All India Radio and further bad it published in the ''Tribune'' before the 1st September, 1972.

Meanwhile up to the 22nd of August, 1972, the respondent attended to his duties in the office but apparently having got some wind of the action impending against him be went on a day''s casual leave on the date aforementioned, Thereafter he applied for extension of that leave but it is the common case that he sought for extension in leave was never sanctioned by the competent authority. Persistent attempts to personally serve the respondent with the order of dismissal after the 28th August, 1972 forthwith were made on behalf of the appellant state at all his known addresses. A vigorous attempt to trace him was made both at Patiala and Ludhiana but it appears that the respondent managed to evade such service effectively and it was not till the 2nd of September, 1972, that he was served personally. This, however, was obviously after his date of superannuation Subsequently the order of dismissal was received by the respondent through registered post on the 7th of September, 1972, which in fact bad been dispatched from office on the 1st of September, 1972.

The respondent challenged his dismissal by way of a suit which was decreed in his favour by the trial Court primarily on the ground that the dismissal order bad not been served on him according to the procedure prescribed in Rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules 1970 (hereinafter called the Rules) and in fact had been communicated to him on the 2nd of September, 1972, when be bad already superannuated from service. It was held, therefore that the order never became operative against the respondent during his continuance in service.

The State of Punjab appealed against the aforesaid judgment but the learned Senior Subordinate Judge. Chandigarh, dismissed this appeal with costs and apart from affirming the findings of the trial Court on the point of non-compliance with rule 22 he further proceeded to bold that no reasonable opportunity to show cause had teen allowed to the respondent in the departmental proceedings insofar as be had not been allowed to lead further evidence by the Enquiry Officer.

A perusal of the two judgments of the Courts below makes it plain that the basic infirmity which they found in the order of dismissal was the fact that the sane had not been served on the respondent either in person or through registered post before the date of his superannuation. The Trial Court held that the mandatory provisions of Rule 22 had been consequently infracted and the first appellate Court affirmed the findings in the following terms:--

I, therefore, confirm the finding of the learned trial Judge that the, order of dismissal of the respondent from service was not communicated to the respondent in the manner laid down in rule 22 before he retired from service. This ground by itself is sufficient to held that the impugned order is bad and illegal.

Necessarily, therefore, the issue arises whether Rule 22 is of such a sanctity that any non-compliance with the modes of service provided therein would vitiate an otherwise valid order. To put it in legal terminology the point is whether the same is mandatory or directory in nature.

As the argument must necessarily revolve around its provisions it is first apt to set down Rule 22 of the Rules--

Service of orders, notices, etc.--Every order, notice and other process made or issued under there rule shall be served in person on the Government employee concerned or communicated to him by registered post.

The sole reliance of Mr. Khoji on behalf of the respondent for his contention that the rule should be construed as mandatory is on the use of the would ''shall'' in the Rule, that by itself can hardly aid the ease of the respondent. It is more than well-settled that the mere use of the word ''shall'' in a provision is not conclusive. It has been held by the highest authority that a provision couched in terms ''mandatory'' may in fact be ''directory'' in nature. The scope of the enquiry, therefore, is whether the intent of the trainers of the Rules was that the same should be observed to the letter and that every infraction thereof should invalidate all actions so taken.

To my mind, as against the solitary reliance on the word ''shall'' there appear to be a host of other factors which militate against the construction of the aforementioned Rules as mandatory, inevitably the first amongst these is the indicia given by the history of this held of statutory rules. The Punjab Civil Services (Punishment and Appeal) Rules, 1953, which now stand repealed by virtues of Rule 29 of the present rules, held the field for nearly two decades and the sign cant thing to notice herein is that there was no identical or even corresponding provision of this nature in that set of rules. Obviously the present rule pertains to an area which was thought to be of such, little significance that no PROVIsion therefor was made at ail for nearly 20 years and perhaps even under any earlier rules on the point. Apparently it was thought adequate under those Rules that the mode of communication of orders, notices etc., could best be left to the good sense and discretion of the authorities. It is thus apparent that rule 22 was meant to do no more than provide a broad guideline for the manner in which service of orders and notices etc., was to be made and there could hardly be any intention to preclude all other modes of communication even though they may be equally or indeed more effective.

The context in which this rule is placed in and its nature also would negative any assumption that it was meant to be mandatory. This rule dads a place in part VII of the Rules under the heading ''Miscellaneous''. That in a way may indicate the importance which the framers intended to attach thereto. Again it is obvious that the rule is of a procedural nature There is high authority for the proposition that procedural rules are not to be raised to such a pedestal that every infraction thereof may vitiate the action taken in non-conform by therewith. It has been well-settled that procedure is to aid the course of justice rather than impede the same. The importance which the law attaches to substantive law cannot always be attached to mere modes of procedure

In this context one may also apply the test of Chief Justice Chagla speaking for the Bench in Ismail Papamia and Others Vs. Labour Appellate Tribunal of India and Another,

.........The other principle which is equally important is that the Court must consider what is the real aim and object of a particular enactment in is construing, and if in giving to a provision a mandatory construction it is likely to defeat the aim and object of the enactment then the Court should not give such a construction.

It is plain that the rule is intended to provide a simple mode of communicating the orders and notices etc., which the preceding rules require. If this rule is given a mandatory construction, it is plain that the same can indeed defeat the aim an intent of the very object of this set of disciplinary rules. It is the sad experience of the Courts to notice the case with which service can be evaded by a recalcitrant litigant or a public servant if it is not to his interest to accept the same. What deserves particular highlighting here is the fact that the rules do not provide for any alternative modes of substituted service as is usually done in many other fields of procedure. The result of giving a mandatory nature of this rule would be that in the absence of any substituted service a dishonest public servant may evade the process of service on him indefinitely and thus set at naught the object of the rules to provide a quick procedure for disciplinary proceedings Indeed such a construction would place a premium on absconding and deliberate evasion of the process under the rules. These factors therefore, also are a pointer to the result that the rule was meant to be directory and no more than a convenient guideline for communicating orders and notices and other process

One more test for determining the rather ticklish question whether a provision is mandatory or directory is the presence or absence of penal provision in case of its infraction It is plain that where the legislature provides certain adequate penal consequences for the violation of a rule, the latter must normally be construed as being mandatory. Where, however, no penal consequences are in terms provided, the rule would not be usually mandatory. In the present case it is the admitted position that the rules do not provide any penal consequences so far as the violation of Rule 22 is concerned. This may also be one of the indications that the rules need Dot be construed as being mandatory.

Lastly it was argued with plausibility on behalf of the appellant that the object of the rule is to communicate to the public servant the order, notice or other process, as the case may be. The prime object is to plant the public servant with Knowledge of the process and there is no particular magic in service in person or necessarily by registered post. It was pointed out that if it can be proved or shown aliende that the public servant had been fully served by ordinary post or had in fact come to know of the order in terms then merely on the ground that he was not served in person or by registered post would not in any way detract from the fact that he was fully aware of the proceedings. Consequently so long as the spirit of imparting the knowledge of the process to the public servant is satisfied the mere violation of the letter thereof would not in any way be material.

For the aforementioned reasons I am (sic) of the view that Rule 22 cannot be raised to the pedestal of being mandatory. It is at best a directory provision providing for a convenient mode to communicate the orders, notices and processes under the rules to the public servant. The infraction of such a directory rule cannot pers negate the communication or service by other means of a valid order.

Once the hurdle of rule 22 is out of way of the appellant then it has a relatively straight and easy run. The surviving issue in this context would, therefore, be whether the order of dismissal has been otherwise communicated to the respondent before the date of his retirement. Though there appears to be some variation of judicial option on the point in earlier cases, it is clear that the matter new stands concluded in favour of the appellant-state by the decision in State of Punjab Vs. Khemi Ram, The specific question before the Bench Herein was whether an order passed against a Government servant took effect when it was made or when it was actually served on and received by him. After fully adverting to the earlier three cases Bachhittar Singh Vs. The State of Punjab, , S. Pratap Singh Vs. The State of Punjab, and State of Punjab Vs. Amar Singh Harika, in the context, their Lordships, have concluded as follows:--

* * * It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order it is had and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it is thought fit. But once such an order is sent out, it goes out of the control of such an authority and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, if must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. It the be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and dispatched to him before such date. In officer against whom action is sought to be taken thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay is receipt and be able to defeat its service on him. Such a meaning of the word communication'' ought not to be given unless the provision in question expressly so provides. Actually knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in Amar Singh Harika''s case (supra) contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid.

Herein it is the common cane that the order of dismissal was broadcast over the All India Radio and also published in the official gazette before the date of the retirement of the respondent. Equally it was published in the press and despatched by ordinary post under postal certificate on the 30th of August, 1972. The order had thus completely passed out of the control of the authority and could not be ordinarily recalled. Applying the ratio of Khemi Ram''s case, it has, therefore, to be held that the order of dismissal in the present case stood communicated to the respondent before the 1st of September, 1972, which was the date of his superannuation.

Apart from the afore-mentioned legal position, I am also of the view that it is plain as a matter of fact on this record that the respondent had obviously become aware of the adverse orders apparently at the stage of its contemplation obviously after its passing on the 28th of August, 1972, and was making desperate efforts to avoid the service thereof on him till the date of his retirement. Herein it deserves notice that neither of the two Courts adverted to this aspect of the case at all because of their conclusion that rule 22 was mandatory in nature. It may thus be noticed that on the 22nd of August, 1 72, the respondent took casual leave for a day and thereafter sought extension thereof surreptitiously This extension was never sanctioned and the respondent virtually absented himself from service without leave thereafter. A reference has already been made to the broadcasting of the order of dismissal as also its publication in the official gazette, in the Tribune and its despatch by post to the respondent. It can hardly be believed that despite all this (particularly in view of the fact that the respondent knew that proceedings of the departmental enquiry were reaching their final culmination) he would not have become aware of the passing of the order of dismissal against him. Nevertheless the testimony of D.W. 1 Shri Narinder Singh and D.W. 2 Shri Kewal Krishan leaves hardly any manner of doubt that the respondent was deliberately avoiding the service of the order on him in person. Immediately on the passing of the order on the 29th of August, Head Constable, Jaggu Ram attempted to serve the respondent at his known address at Patiala Frustrated in the attempt to do so, the said police officer then located the residential house of the respondent in Chandigarh late in the evening of the 30th of August, 1972, but the respondent apparently made himself scarce. On the following day of the 31st of August, 1972, Jaggu Ram was able to contact the wife of the respondent at this residential house, who again refused to give any certain address but slated that the respondent might be at Ludhiana where his brother was supposedly ill. Thereafter both D.W. Narinder Singh and Head Constable Jaggu Ram made repeated attempts to serve the respondent at Patiala but without success. This, however, was not all. D.W. 2 Shri Kewal Krishan was despatched to serve the respondent, if available, at Ludhiana. After a determined chase be was able to trace the brother of the respondent who informed him that fact the respondent had not even met him after the 27th of August, 1972. This witness made a report of his attempts to serve the respondent, which was proved on the record as Exhibit D. 4. All this evidence leaves no manner of doubt in my mind that the respondent was fully aware of the order of dismissal and was deliberately thwarting the well meaning attempts of the appellant-State to serve him personally before the date of his superannuation.

In the light of the aforementioned discussion, it is plain that the order of dismissal does not suffer from any infirmity whatsoever regarding the communication of the same to the respondent before the date of his superannuation.

All that now remains is to examine the rather sketchy finding of the first appellate Court that a reasonable opportunity to show cause was not afforded to the respondent in the enquiry proceeding and they thus stand vitiated. However, the sole ground for this ending appears to be that the respondent was not allowed to lead evidence afresh before the second Enquiry Officer when the matter was remitted to him to opine on two limited points.

It is worth recalling that the enquiry proceedings herein were originally initialed as early as in July, 1968. A perusal of the enquiry report. Exhibit P. 16 would show that the fullest and the amplest opportunity was afforded to the respondent to defend himself, Indeed no grievance in this regard had been and perhaps could be made As many as 12 witnesses were examined by the respondent in his defence and it is further plain from the enquiry report, (sic). P. 16 which runs into 45 typed pages that he also adduced documentary evidence and had full access thereto. The Government had agreed with the findings arrived at by the Enquiry Officer and issued a show cause notice regarding the quantum of punishment to the respondent On considering his explanation in all fairness to him vide Exhibit P. 18, only two limited matters were required to be examined afresh. These in terms were whether the delay in lodging the complaint would in law affect the proceedings and consequently whether the admitted position of another doctor having performed the operation in place of the respondent in any way weakened the prosecution case. It is plain that these were not matters which required any further evidence. Nevertheless the respondent in an apparent attempt to further prolong the proceedings wanted to recall some of the prosecution witnesses who had been already examined and cross-examined at great length in the earlier proceedings. This request, in my view, was rightly declined by a short fit reasoned order of the Enquiry Officer, Exhibit P. 20. She rightly took the view that the matter was more or lass legal and the parties might cite law and argue the point and there was no justification for recalling witnesses. No further grievance seems to have been made and subsequently the respondent who was represented by a counsel had the matter fully canvassed before the second Enquiry Officer on the two points which were disposed of by the order Exhibit P. 22 on the 9th of September, 1971. In this context one fails to see how there has been any denial of reasonable opportunity to the respondent to defend himself. In passing may mention that this grievance was also sought to be agitated before the trial Court, and which after consideration was categorically rejected. The reasoning of the trial Court is unexceptionable and I find that the appellate Court misdirected itself in reversing that finding. Accordingly this finding of the first appellate Court is hereby set aside.

No other point has been raised on behalf of the respondent. As both the contentions of the appellant are meritorious, the appeal succeeds and is hereby allowed. The suit of the respondent shall dismissed. However, there will be no order as to costs.