JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. This Special Appeal, under the Rules of the Court, is preferred against the judgment of the Hon'ble Single Judge dated 4.8.2006 whereby Civil Misc. Writ Petition No. 43327 of 2003 of the sole petitioner-respondent has been allowed and the order imposing punishment of dismissal has been set aside.
2. Heard Shri H.R. Mishra, learned Counsel for the appellant and Shri Anil Bhushan, learned Counsel for the respondent. With the consent of the learned Counsel for the parties the matter is taken up for final disposal.
3. It appears that the petitioner-respondent was working as a sales man under the U.P. Consumer Co-operative Federation Limited and his services were governed by the U.P. Co-operative Societies Employees Service Regulations, 1975. However, on account of certain lapses and misconduct a departmental inquiry was initiated against him, which ultimately ended in punishment of dismissal. The aggrieved respondent preferred the aforesaid writ petition wherein the Hon'ble Single Judge, having taken note of the provision contained in Regulation 87 wherein it is provided, that no order imposing penalty under Sub-clauses (e) to (g) of Clause (1) of Regulation 84 shall be passed except with the prior concurrence of the Board, found that before imposing penalty of dismissal no approval/concurrence of the Board was obtained, the order of dismissal was illegal, hence quashed the same.
4. Shri H.R. Mishra, learned Counsel for the appellant vehemently contended that subsequently the approval of the Board was obtained and, therefore, if there was any defect, the same stands rectified but the Hon'ble Single Judge has not addressed to this aspect and thus, fell in error. We do not find any force in the submission for the reason that it is a well settled legal position when statute provides any thing to be done in particular manner, the same shall be done in that manner alone and not otherwise. In Competent Authority v. Barangore Jute Factory and Ors. the Hon'ble Apex Court held as under:
It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning.
5. It would be useful to remind one of the earliest case on the subject where Privy Council in Nazir Ahmad v. King Emperor AIR 1936 PC 253 laid down the dictum that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all. The Hon'ble Apex Court has reiterated and followed the aforesaid dictum in a catena of cases and one of the recent judgment Commissioner, Income Tax, Chandigarh v. Pearl Mechanical Engineering and Foundry Works Pvt. Ltd. . A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors. reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the same itself. Regulation 87 reads as under:
87. Order imposing penalty under Sub-clauses (e) to (g) of Clause (l) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board.
6. The language of the regulation makes it clear that no penalty under Sub-clauses (e) to (g) of Clause (1) of Regulation 87 shall be imposed upon an employee except with the prior concurrence of the Board. Two words 'shall' and 'except are important to throw light on the effect of Regulation 87 as to whether the provision is mandatory or even a subsequent approval would be sufficient compliance of the aforesaid provision. It is not in dispute that before imposing penalty of dismissal, which is one of the penalties provided under Sub-clauses (e) to (g) of Clause (1) of Regulation 87, no prior concurrence of the Board were obtained. The use of word 'shall' makes it obligatory on the disciplinary authority to obtain concurrence of the Board before passing any order of penalty and the concurrence must precede the order of penalty. The use of the word 'except' mandates the appointing authority not to impose any penalty under Clauses (e) to (g) of Clause (1) of Regulation 87 without prior concurrence of the Board. Where the rule framing authority simultaneously uses the words 'shall' and 'except' the intention is to make it imperative and mandatory. The language is positive as well as negative simultaneously. It makes it obligatory to the competent authority to seek prior concurrence and prevent it from passing any order without prior concurrence. The word except' has been defined in Webster's Third New International Dictionary to mean 'unless' or 'only'. Black's Law Dictionary, revised fourth edition, defined the words and expression 'except for' as synonymous in many cases with 'but for' and 'only for'. In the Black's Law Dictionary, sixth edition, the word 'except' has been defined as 'but for', 'only for' not including other than, otherwise than, to leave out of account or consideration. In Grolier New Webster's Dictionary, the word 'except' has been defined as apart from, excluding only. In respect to the term 'shall' it would not be necessary to burden this judgment with a catena of cases defining the same, but the settled law laid down in those cases is that the term 'shall' is a word of command and one which has always and which must be given a compulsory meaning i.e. denoting obligation. The word in ordinary usage means 'must' and is inconsistent with the concept of discretion. It has the invariable significance of excluding the idea of discretion, and has significance of operating to impose a duty, which may be enforced, particularly if a public policy is in favour of this meaning, of when addressed to public officials or where public interest is involved, or where the public or persons have right, which ought to be exercised or enforced, unless contrary intent appears. No doubt, some times it may and has been construed merely permissive or directory, i.e. equivalent to may, to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. The para-materia provision in Regulation 101 Chapter III of the Regulation framed under the Intermediate Education Act, 1921 came up for consideration before this Court and consistently this Court has taken the view that the words 'except with the prior approval of the Inspector' under Regulation 101 makes the provision mandatory and any order passed without prior approval is void ab initio. Reference may be made Amit Kumar v. District Inspector of Schools, Jaunpur and Anr. 2001 (1) AWC 242; Sharda Prasad Yadav and Ors. v. District Inspector of Schools, Deoria and Ors. 2002 (5) AWC 3822.
7. Recently, a Division Bench of this Court in the case of Jagdish Singh v. State of U.P. and Ors. 2006 (64) ALR 17 (summary) has considered the aforesaid issue and it has held that without prior approval of the Inspector, the Principal or committee of management cannot issue an appointment letter or permit joining of any candidate. Relevant observations are reproduced as under:
Without prior approval of the Inspector, the Principal or the committee of management cannot issue an appointment letter or permit joining of any candidate. Requirement of prior approval in Regulation 101 is a condition precedent before issuing an appointment letter and is mandatory.
8. We entirely agree with the view taken in the aforesaid cases. Moreover, the purpose and object requiring the management to seek prior concurrence of the Board is to protect the employee from any arbitrary and illegal punitive action on the part of the management without strictly observing procedure prescribed in the Regulations. The Board, being an independent statutory body, is expected to scrutinized the matter as to whether the proceedings have been conducted in a fair and impartial manner, consistent with the procedure prescribed under the rules and the employee is not being unduly harassed. Therefore, we are of the view that the Hon'ble Single Judge has rightly held that without prior concurrence of the Board the order of dismissal passed by the management was unsustainable and the same was liable to be quashed.
9. However, there is another aspect of the matter, which needs to be considered at this stage. The Hon'ble Single Judge after setting aside the order of dismissal has issued further direction to the respondents to a hold fresh inquiry against the petitioner giving him a proper opportunity of hearing and in accordance with law. We do not find from the entire judgment that the entire inquiry proceedings were found to be vitiated in law in any manner. The requirement of prior concurrence of the Board is a stage subsequent to the submission of inquiry report when the management decide to impose penalty upon the employee and such resolution is required to be sent to the Board for its prior concurrence before issuing actual order imposing penalty upon the employee. The word 'concurrence' itself presuppose a decision taken by the disciplinary authority, which before becoming an order and executable, needs concurrence by the Board. That being so and in the absence of any finding that the inquiry proceeding or the tentative decision of the management to impose punishment upon the employee is vitiated in law the direction to the appellant to hold a fresh inquiry cannot be sustained. Mere violation of Regulation 87 would not have the effect of invalidating the entire inquiry proceeding i.e. a stage before the matter is to be sent to the Board for its concurrence.
10. At this stage Shri Anil Bhushan, learned Counsel for the respondent contended that the inquiry was conducted ex parte without giving him adequate opportunity to defend and the same was vitiated in law. However, we find that in the writ petition the petitioner-respondent has challenged the order of dismissal mainly on the ground that Regulation 87 was not observed. No other point has been pressed. Therefore, it is not appropriate at this stage to look into the question as to whether the inquiry was validly conducted or not. Moreover, this aspect is within the domain of the Board itself which is empowered to look into the procedure of inquiry, whether it is in accordance with law or not while considering the grant of occurrence under Regulation 87.
11. We, therefore, modify the order of the Hon'ble Single Judge and while upholding the judgment under appeal setting aside the dismissal order, modify rest of the directions and provide that the appellant is at liberty to take further action for seeking prior concurrence of the Board under Regulation 87 in accordance with rules. The Board shall consider the matter after affording opportunity of hearing to both the sides and shall take decision as expeditiously as possible, preferably within a period of three months from the date of receiving proposal, if any, from the appellant along with the certified copy of this order.
12. With the above modification, the special appeal and the writ petition are accordingly partly allowed.