Vijaya Bank And Another vs Shyam Nagarkar

Vijay Kumar Shukla, J.-

The present intra-court appeal takes exception to the order dated 30-3-2017 passed by the learned Single Judge whereby the writ petition filed by the

respondent has been allowed and the order of punishment of dismissal after departmental enquiry and the appellate order have been set aside and the

matter has been remitted back for conducting further enquiry.

The facts adumbrated in a nutshell, are that the respondent-petitioner was an officer of Junior Management Grade, Scale-I. He was posted as

Assistant Manager at Branch/Airport Extension Counter of the appellants-Bank at Bhopal during the period from 13-6-1995 to 3-6-2000. A complaint

was made by the Management of the Bank regarding defalcation of funds at the Police Station, Hanumanganj, District Bhopal in the year 2000. An

FIR to that effect was lodged and the respondent/writ-petitioner was arrested.

Charge-sheet was filed before before the competent court of jurisdiction and thereafter charges in respect of offence punishable under sections

409, 420, 467, 471 and 201 of the Indian Penal Code were framed against the respondent. He was placed under suspension by order dated 21-7-2000.

A charge-sheet was issued to him on 13-10-2001 along with articles of charges, list of witnesses and documents. Four charges were levelled against

the respondent to the effect that while working as Assistant Manager in the Bhopal Branch/Extension Counter during the aforesaid, he committed

serious act of fraud, forgery, misappropriation and indulged in falsification of bank records, tampering and destruction of the same; manipulation of

books of accounts of the Bank in order to derive/confer undue pecuniary benefits for self/other, thereby defrauding the Bank.

After receipt of the charge-sheet the writ petitioner made an application for stay of the departmental enquiry inter alia on the ground pending

criminal case against him. His prayer was rejected by the Bank authority, as a consequence thereof, the writ-petitioner filed a writ petition forming the

subject-matter of W.P. No.6340/2001 praying for stay of departmental proceedings inter alia on the ground of pending criminal prosecution against

him.

Initially, an interim order was passed on 02-01-2002 for stay of departmental enquiry, however on an application for vacating the interim order,

prayer was allowed by this Court on 5-7-2002. As it was found that the departmental enquiry mainly relates to the allegation of violation of Rules,

Regulations and Instructions and there does not appear any reason to assume that any prejudice would cause to the petitioner in his defence in the

criminal case.

After vacation of the stay order the writ-petitioner/respondent filed reply to the charge-sheet on 3-9-2002 with a prayer for supply of certain

documents. The Enquiry Officer directed for supply of copy of requisite documents to the petitioner, vide his application dated 3-9-2002. It is further

pleaded that the Branch Manager went to the house of the respondent but since he was not present the documents could not be supplied.

However,during course of enquiry the petitioner was supplied copies of the available documents. The documents which were destroyed by the writ

petitioner could not be supplied.

One P.J. Sudarshan, Chief Manager (MBD), Head Office, Bangalore was appointed as Enquiry Officer and Rakesh Viz, Assistant Manager,

Regional Office, was appointed as Presenting Officer and the proceeding for enquiry commenced from 26-9-2002. The petitioner was given liberty to

nominate a defence assistant but he did not nominate. He sought time to nominate a defence witness at a subsequent stage. It is further submitted by

the appellants-Bank that after affording full opportunity of hearing to the writ petitioner/respondent, the Enquiry Officer submitted a report on 4-12-

2002 and a copy thereof was supplied to the respondent on 7-12-2002. Thereafter, the disciplinary authority imposed penalty of dismissal from service,

vide order dated 30-9-2002.

Feeling aggrieved with the aforesaid order of dismissal from service, the writ petitioner preferred an appeal and the same was also dismissed by

order dated 8-4-2003. Being dissatisfied with the aforesaid orders, the writ petition was filed before this Court.

The learned Single Judge allowed the writ petition mainly on the grounds - (i) that the petitioner had not been given an opportunity to engage a

defence conunsel; and (ii) that as per Regulation 6(9) of the Vijaya Bank Officer Employee's (Conduct) Regulations, 1981 and Vijaya Bank Officer

Employees’s (Discipline and Appeal) Regulations, 1981 [hereinafter referred to as `the Regulations’], it was obligatory on the part of the

enquiry authority to adjourn the case, if the employee does not plead guilty. The matter has been remitted back to the Enquiry Officer for conducting

further enquiry from the stage of appointment of a defence assistant, with the further direction to conclude the enquiry in accordance with law.

Assailing the the order passed by the learned Single Judge, learned counsel appearing for the appellants-Bank submitted that there was substantial

compliance of the provisions of the Regulations and the respondent was afforded adequate opportunity to defend his case. It is contended that the

Enquiry Officer issued notice for fixing the enquiry on 4-02-2002. The respondent submitted a copy of the order dated 02-01-2002 and, therefore, the

enquiry could not be concluded. The said order was vacated on 5-7-2002 with the observation that `there does not appear any reason to assume that

any prejudice would caused to the petitioner in his defence in the criminal case, if the departmental enquiry is continued.†The Enquiry Officer issued

fresh notice on 12-7-2002 for fixing the enquiry on 31-7-2002 at 10:00 AM.

The writ petitioner/respondent did not attend the enquiry at the time and date fixed and the enquiry was adjourned till 12 o’clock. At 11:25 hrs.

a telegram was sent from local Post Office and the petitioner being available in the locality and no medical certificate was forthcoming in support of

his claim and, therefore, the enquiry was conducted ex parte.

It is contended on behalf of the appellants that since there was substantial compliance of Rule 6(9) of the Rules, therefore, the learned Single

Judge ought to have not interfered with the departmental enquiry and also the order of dismissal and the appellate order as well. The learned Single

Judge in para 26 of the judgment held that the Enquiry Officer should have granted adjournment to engage a defence representative to the delinquent

officer, as provided in Regulation 6(9) of the Regulations, is not correct.

At this juncture, it is useful to refer the relevant provision of Regulation 6(9) of the Regulations. The same is extracted hereunder:

“6. Procedure for imposing major penalties.

(1) …… ..

xxx  xxx  xxx  xxx

(9) If the officer employee does not plead guilty, the inquiring authority shall adjourn the case to a later date not exceeding 30 days or within such

extended time as may be granted by the inquiring authority. The inquiring authority while adjourning the case as in sub-regulation (9), shall also record

by an order that the officer employee may for the purpose of preparing defence..

(i) complete inspection of the documents as in the list furnished to him immediately and in any case not exceeding 5 days from the date of such order

if he had not done so earlier as provided for in the proviso to sub-regulation (3);

(ii) submit a list of documents and witnesses, that he wants for the inquiry;

(iii) give notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery

or production of the documents referred to in item (ii); Note: The relevancy of the documents and the examination of the witnesses referred to an item

(ii) shall be given by the officer employee concerned.â€​

Counsel for the writ petitioner assiduously urged that the enquiry ought to have been adjourned in terms of sub-clause (9) of Regulation 6 after the

proceeding was held on 26-9-2002 at about 10:30 AM. He had pleaded not guilty on the said date and thereafter the Enquiry Officer had asked that

whether he wishes to be defended by someone or he will defend himself. He had asked for the time to given name of his defence representative with

his consent within a week. It is also contended by the learned counsel for the appellant that Regulation 6(9) of the Regulations is mandatory in nature

and its violation would vitiate the entire domestic enquiry. It is contended by him that the provision envisaged in the Regulation came up for

consideration before the learned Single Judge in the case of Bhawani Shankar Singhal vs. State of M.P., 2012(2) MPLJ 326 wherein the learned

Single Judge after referring the judgment of the Division Bench in the case of Anil Kumar Das vs. Senior Superintendent of Post Officers, Kamrup

Division, Gauhati and others, AIR 1969 Assam & Nagaland 99, held that the provision is mandatory. He supported the order passed by the learned

Single Judge on the ground that since the Enquiry Officer erred in not adjourning the enquiry as per the mandatory provisions of Regulation 6(9) of the

Regulations when the delinquent employee did not plead guilty, that would be the first date of hearing.

On harmonious consideration of Regulation 6(9) of the Regulations with deals with different stages of enquiry, it is noted that if an officer-

employee (delinquent employee) pleads not guilty, the Enquiry Officer shall adjourn the case but at a later date not exceeding 30 days, or within such

an extended date, as may be granted by the Enquiry Officer. From the pleadings and the records it is noticeable that the enquiry was held on 31-7-

2002 and the delinquent officer chose not to attend the same in spite of service of notice. The enquiry was conducted ex parte. Thereafter, further

date of enquiry was fixed on 26-9-2002, i.e. after almost 60 days from the first previous date of enquiry. There was sufficient time for the delinquent

employee to engage a defence representative of his choice.

In view of the obtaining factual matrix, we find that there was substantial compliance of the provisions of Regulation 6(9) of the Regulations. It is

further noted that the writ-petitioner submitted a letter on 28-8-2002 seeking permission to engage an advocate. The Disciplinary Authority rejected

the said prayer on 7-9-2002 and thereafter the matter was taken up in the enquiry on 26-9-2002. Hence, sufficient time was made available to the

writ-petitioner/respondent to engage a defence representative of his choice, however, he failed to engage the same. Some other important dates are to

be noted here, that the enquiry commenced on 26-9-2002 and on 27-9-2002 and 28-9-2002 examination-in-chief was conducted. Thus, the respondent

had time to engage a defence counsel as his examination had started on 30th instant onwards.

Counsel appearing for the respondent vehemently urged that the provision envisaged in Regulation 6(9) of the Regulations ought to be mandatory

as has interpreted in the case of Bhawani Shankar Singhal (supra). He submitted that the word `shall’ has been used in sub-clause (9) of

Regulation 6 of the Regulations. It provides - “If the officer employee does not plead guilty, the inquiring authority shall adjourn the case to a later

date not exceeding 30 days or within such extended time as may be granted by the inquiring authority.â€​

The use of word “may†or “shall†is not conclusive. Whether the provision is merely directory or mandatory, was examined by Hon'ble

the Supreme Court in a judgement reported as (2007) 8 SCC 338 (Dhampur Sugar Mills Ltd. vs. State of U.P.), wherein it has been held that whether

the provision is directory or mandatory is required to be decided by ascertaining the intention of the Legislature and not by looking at the language in

which the the provision is clothed. The Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to

ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue. The relevant

extract from the judgment reads thus :

“35. Reading the substantive provisions in the Act as also subordinate legislation by way of the Rules, there is no doubt in our minds that the

submission of the learned counsel for the writ petitioner that such a Committee ought to have been constituted by the State is well- founded and must

be upheld. The High Court dealt with the submission of the writ petitioner but did not accept it observing that the Legislature had used the expression

“mayâ€​ and not “shallâ€​ in Section 3 of the Act. The Court ruled that the provision was merely directory and not mandatory.

We are unable to subscribe to the above view. In our judgment, mere use of word “may†or “shall†is not conclusive. The question

whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such

controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And

for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to

ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.

Several statutes confer power on authorities and officers to be exercised by them at their discretion. The power is in permissive language, such as,

“it may be lawfulâ€, “it may be permissibleâ€, “it may be open to doâ€, etc. In certain circumstances, however, such power is “coupled

with dutyâ€​ and must be exercised.

Before more than a century in Baker, Re, Nicholas v. Baker, (1890) 44 Ch D 262(CA), Cotton, L.J. Stated;

“I think that great misconception is caused by saying that in some cases 'may' means 'must'. It never can mean 'must', so long as the English

language retains its meaning; but it gives a power, and then it may be question in what cases, where a Judge has a power given by him by the word

'may', it becomes his duty to exercise it.

(emphasis supplied)

In leading case of Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 : 49 LJ QB 577 : (1874-80) All ER Rep 43 (HL), the Bishop was empowered

to issue commission of inquiry in case of alleged misconduct by a clergyman, either on an application by someone or suo motu. The question was

whether the Bishop had right to refuse commission when an application was made. The House of Lords held that the Bishop had discretion to act

pursuant to the complaint and no mandatory duty was imposed on him.

Earl Cairns, L.C., however, made the following remarkable and oft-quoted observations : (All ER p. 47 H-I)

“The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which

there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or

power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in

the condition under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may

couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.â€​

(emphasis supplied)

Explaining the doctrine of power coupled with duty, De Smith, (Judicial Review of Administrative Action, 1995, pp.300-01) states:

“Sometimes the question before a court is whether words which apparently confer a discretion are instead to be interpreted as imposing duty. Such

words as 'may' and 'it shall be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally, however, they may be construed as

imposing a duty to act, and even a duty to act in one particular manner.â€​

(emphasis supplied)

Wade also says (Wade & Forsyth, Administrative Law, 9th Edn.) : p.233) :

“The hallmark of discretionary power is permissive language using words such as 'may' or 'it shall be lawful', as opposed toobligatory language

such as 'shall'. But this simple distinction is not always a sure guide, for there have been many decisions in which permissive language has been

construed as obligatory. This is not so much because one form of words is interpreted to mean its opposite, as because the power conferred is, in the

circumstances, prescribed by the Act, coupled with a duty to exercise it in a proper case.â€​

(emphasis supplied)

In the leading case of Padfield v. Minister of Agriculture, Fisheries & Food, 1968 AC 997 : (1968) 2 WLR 924 (HL), the relevant Act provided for

the reference of a complaint to a committee of investigation “if the Minister so directsâ€. The Minister refused to act on a complaint. It was held

that the Minister was required to act on a complaint in absence of good and relevant reasons to the contrary.â€​

In another judgement reported as (2008) 12 SCC 372, Bachahan Devi vs. Nagar Nigam, Gorakhpur, the Court held that the use of the words

“may†and “shall†may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The

relevant extract from the judgment reads thus :

“21. The ultimate rule in construing auxiliary verbs like “may†and “shall†is to discover the legislative intent; and the use of words

“may†and “shall†is not decisive of its discretion or mandates. The use of the words “may†and “shall†may help the courts in

ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter,

the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.â€​

Similar is the view reiterated in the judgment reported as (2015) 8 SCC 744 (D.K. Basu vs. State of W.B.), wherein it was held to the following

effect :

“13. A long line of decisions of this Court starting with Sardar Govindrao v. State of M.P., AIR 1965 SC 1222 have followed the above line of

reasoning and authoritatively held that the use of the words “may†or “shall†by themselves does not necessarily suggest that one is directory

and the other mandatory, but, the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation

will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the

same.â€​

Thus, in view of the aforesaid enunciation of law, the word `shall’ used in Regulation 6(9) of the Regulations cannot be held to be mandatory,

as no consequence is attached.

The law laid down in the case of Bhwani Shankar Singhal (supra) by Single Judge is not a good law, as the provision cannot be construed to be

mandatory. In the facts of the present case, we have noted that there was substantial compliance of the Regulation 6(9) and the respondent was

granted adequate opportunity to defend himself, which he failed to avail. Further, the writ-petitioner was supplied relevant documents as demanded by

him . The respondent could not show as to what prejudice has been caused to him for non-supply of certain documents.

We do not find any error in the order of punishment and the appellate order. The learned Single Judge has erred while quashing the order of

punishment and the appellate order imposed against the writ petitioner/respondent.

Ex-consequenti, the writ appeal succeeds and is here by allowed. No order as to costs.