Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: M. NOMAN VS Respondent: DACCA IMPROVEMENT TRUST AND OTHERS
P L D 1964 Dacca 671
P L D 1964 Dacca 671
Before L H. Chowdhury, C. J. and M. R. Khan, J
M. NOMAN‑Petitioner
versus
DACCA IMPROVEMENT TRUST AND OTHERS ---Respondents
Petitions Nos. 417 and 426 of 1963, decided on 15th January 1964.
(a) Town Improvement Act (XIII of 1953), Ss. 20 & 173 Validity of meeting of Board challenged on ground of defective notice and want of quorum‑Defect, if any, held, curable under S. 173.
(b) Town Improvement Act (XIII of 1953), Ss. 34 & 35 (c) Order for drawing up proceedings against employee‑Not one falling under S. 34‑ Order directing suspension preliminary to and for facilitating departmental proceeding not an order "passed by Board under S. 34"‑Previous sanction of Government in either case not necessary.
(c) Government servant‑Suspension‑Appointing authority has power to order suspension even in absence of any law or rule on subject.
Kapurs' appeal reported in the newspaper "Statesman" (India) dated 20‑11‑63 ref.
A. R. S. Chowdhury v. Union of India 60 C W N 933 and State of Uttar Pradesh v. Babu Ram Upadhya 1961 S C A 593 distinguished.
(d) Town Improvement Act (XIII of 1953), Ss. 34 & 102‑ Expression "subject to any rules for the time being In force" in S. 34‑Absence of rules framed under S. 102 relating to conditions of service of employee‑Board has no power to draw departmental proceedings or frame any charge against employee‑Departmental proceedings found not sustainable for want of rules‑‑Suspension preliminary to proceedings also cannot be maintained for indefinite period‑Words "the Provincial Government n ray make rules" in S. 102‑‑Word "may" means "roust"‑ ‑‑Government under obligation to frame rules under S. 102 relating to conditions of service.
Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford 5 A C 214 ; Reg v. Tithe Commissioners 14 Q B 459 ; Rex v. Barlow 91 English Reports 516 ; Province of Bombay v. Khusaldas, S. Advani 86 C L J 330 ; (1929) 2 K B 180 ; Lachmi Chand Suchanti v. Ram Pratap Chowdhury A I R 1934 Pat. 670 and Bishan Singh v. Central Government of India A I R 1961 Pun. 451 ref.
(e) Interpretation of Statutes ‑ Words only directory, promissory or enabling‑May have compulsory force‑Word "may" can be construed as "shall".
Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford 5 A C 214 ; Reg v. Tithe Commissioners 14 Q B 459 ; Rex v. Barlow 91 English Reports 516 ; Province of Bombay v. Khusaldas, S. Advani 86 C L J 330 ; (1929) 2 K B 180 ; Rana Muhammad Jamil v. The Punjab Road Transport Board P L D 1957 Lah. 1 and Maxwell's Interpretation of Statutes, 10th edition at 374 ref.
(f) Government servant‑Suspension‑Meaning‑‑Suspension pending departmental inquiry ‑ Incidents of‑Order of suspen sion pending inquiry‑Neither "punishment" nor "penalty".
The Crown v. Fida Hussain P L D 1954 Lah. 402 ; Laxman v. State of Madhya Pradesh A I R 1959 M P 295 ; O. M. Prakash Gupta v. The State of Utter Pradesh 1955 S C A 832 and L. D. Sugar Mills v. P. T. Ram Sarup A I R 1957 S C 82 ref.
(g) Town Improvement Act (XIII of 1953), Ss. 34 & 35 (e)‑ Order imposing penalties by way of censuring, fining etc.‑Does not require previous sanction of Government.
(h) Constitution of Pakistan (1962), Art. 98‑Point of law not raised in petition‑ Nevertheless, may be taken into consideration in disposing of petition‑[No estoppel against statute].
(i) Precedent‑Judicial notice taken of case reported only in newspaper.
S. Israr Hussain v. The Crown P L D 1954 F C 313 ref. M. H. Khondkar with Shafiqur Rahman. S. M. Hossain and M. M. G. Hafez for Petitioner. Hamidul Huq Chowdhury and Abdur Rahman Chowdhury for Respondents 1 and 2.
Dates of hearing : 3rd, 7th 8th and 9th January 1964.
JUDGMENT
CHOWDHURY, C. J.‑These two petitions under Article 98 of the Constitution are by the same petitioner. The Petition No. 417 of 1963 is against the order dated 14‑10‑63 suspending the petitioner from his service as preliminary to the departmental proceedings drawn against him and the other Petition No. 426 of 1963 is against the proceedings drawn up against him for inefficiency, mal‑practice, disobedience and misconduct. Both the actions have been taken by the Board of Trustees, Dacca Improvement Trust, hereinafter referred to as D. I. T. in pursu ance of the resolution of the Board dated 8‑10‑63, which runs as follows:--
"The Board discussed in detail the letter received from the Local Government, Government of East Pakistan, regarding actions to be taken against Mr. Noman, Chief Engineer, D. I. T. In view of the resolution taken by the Board of Trustees at their meeting held on 1‑8‑63 and also of the report of the Chairman placed before the Board, the Board was fully con vinced that a prima facie case has been made out against Mr. M. Noman, Chief Engineer, D. I. T. for his inefficiency, mal practice, disobedience and miscoc duct. The Board further resolved that in the best interest of the D. I. T. Mr. M. Noman, C. E., D. I. T. be suspended with immediate effect.
Formal proceedings on the aforesaid charges be drawn against Mr. Noman immediately for taking further action.
The Board further resolved that Mr. Noman be directed to hand over charges to an officer whom the Chairman thinks fit."
In the first petition the petitioner prays for declaration that the resolution dated 8‑10‑63 by the respondents and the other dated 14‑10‑63 suspending the petitioner in pursuance of that resolution are without lawful authority and of no legal effect.
In the second petition the petitioner prays for a declaration that the proceedings drawn and the charges framed in pursuance of the resolution dated 8‑10‑63 by the Board of Trustees are without lawful authority and of no legal effect. The petitioner obtained rule in both the petitions.
As both the petitions involve common question of law and facts, we have taken up both the petitions for hearing simultane ously and dispose of by one and the same judgment.
Mr. Khondkar, the learned Advocate for the petitioner, raised the following questions for determination in both the rules :‑----
(1) That the order of suspension and the proceedings drawn against the petitioner are orders under section 34 of the Town Improvement Act, and under section 35(c) of the Act they are subject to the previous sanction of the Provincial Govern ment but no such sanction having been obtained, those orders are bad and without lawful authority ;
(2) that, at any rate, section 34 contemplates rules subject to which the power under section 34 is to be exercised and that in the absence of any such rules framed under section 102 regulating the conditions of service of the employees, the Board of Trustees is not competent either to pass any order of suspension or to draw up proceedings against the petitioner ;
(3) that the action taken against the petitioner are mala fide ; and
(4) that the meeting in which the resolution is said to have been passed was no meeting according to law for defect of notice as well as for want of quorum.
I am taking up the last point first for consideration as it goes to the root of the matter. Under section 2 (b) "Board" means the Board of Trustees constituted under section 4 of the Act (The Town Improvement Act.)
Under section 2 (m) "Trustee" means a member of the Board.
Under section 4, the Board shall consist of 9 trustees as mentioned in that section ; but under section 9, if the provision of the Act is extended to Narayanganj Municipality, the number of trustees of the Board shall be increased by two as mentioned in that section and in that case the number of trustees will be eleven.
Section 19 provides different period for different trustees.
Section 20 (1) (d) provides that no business shall be trans acted at any meeting unless at least half the member of the trustees then in office, are present from the beginning to the end of the meeting.
Section 20 (1) (a) and (b) provides that an ordinary meeting shall be held at least once a month and the Chairman may, whenever he thinks fit, call a special meeting.
From the proceedings of the meeting in which the resolution was passed, it appears that there were five trustees present includ ing the Chairman. Mr. N. Ruda, a member of the Board of Trustees, was nominated on 30‑11‑59 and his term of three years expired on 30‑11‑62 and since then he ceased to be a member of the Board. Then there remains ten members out of which, half the number, i.e., five members were present, including the Chairman. It also appears that three new members were nominated in place of the three out‑going members. They are K. B. Jasimuddin, Mvi. Mollah Abdul Majid and Khondkar Mahbub Hussain, vide Notification No. S‑VII/IT‑4/63/1099, dated 3rd October 1963, published in the Dacca Gazette, dated October 10, 1963 that is, after the date of the meeting on 8‑10‑63. So the notice of the meeting could not have been served on them. The outgoing members on whom notice of the meeting was served could not attend as they ceased to be members. Excluding those three outgoing members, there remains only 7 members of the Board and out of these seven, five attended the meeting as it appears from the proceedings of the meeting held on 8‑10‑63. Further section 173 of the Act provides that no act done or any proceeding taken under the Act shall be questioned on the ground of (e) any omission, defect, or irregularity not affecting the merit of the case.
It is then contended by the learned Advocate for the petitioner that the Chairman, who is the whole‑time permanent officer, is not a trustee. That is not correct, as the Constitution of the Board in section 4 read with the definition of the Board in section 2 (b) and section 19 of the Act shows.
Therefore, there is no defect in the meeting in which the resolution was passed either on account of the lack of quorum or for defect of notice.
It is said that the proceeding of the meeting held on 1‑8 63 was not confirmed in the subsequent meeting, but the proceeding of the meeting on 10‑8‑63 shows that the members present confirmed it.
Now coming to the first point, with reference to the proceedings drawn against the petitioner, it is not correct to say that it is an order under section 34 of the Act, to come within "All orders passed by the Board under section 34" in section 35(c), because orders under section 34 must relate to appointment, promotion etc. of the employees of the Board and of censuring, fining, withholding promotion, reducing, suspending or dismissing them. The order for drawing up proceedings is not such an order, though it is a step‑in‑aid to the punishment, but by itself is not a punishment. Even if it is considered a sort of punishment in a very broad sense, it is excepted "except orders granting leave to or imposing punishment" in section 35 (c), to be subject to the previous sanction of the Provincial Government. The same consideration will apply in respect of suspension also.
The word "suspension" finds place in section 34 of the Act, but that is by way of punishment after departmental proceedings, if any, and not suspension as preliminary to and for facilitating the departmental proceeding. Even if it is punishment in a broad sense of the term, then also it comes under the exception to section 35 (c) of the Act.
It is then contended that if it is not a punishment to come under section 34 of the Act, then, the Board has no power to pass an order suspending the petitioner from service in the absence of any law or rule having the force of law. We are unable to accept this contention as correct. In the absence of any rule the power to appoint carries with it the power of suspension. This principle has been accepted by the Supreme Court of India in Kapur's Appeal, reported in "The Statesman" dated 20‑11‑63 filed by the learned Advocate for the petitioner along with an application for acceptance of the report in this case. In this report it is held
"On general principles the authority entitled to appoint a public servant would be entitled to suspend him pending a criminal proceeding. This power which .was available to a master in the general law of master and servant could also be exercised by the Secretary of State as the appointing authority."
In the present case there is no dispute that the Board of Trustees is the appointing authority which has appointed the petitioner. So, as an appointing authority, it can suspend him as a preliminary departmental proceedings.
Now coming to the second point, namely, that, at any rate, section 34 contemplates rules subject to which the power under section 34 is to be exercised and in the absence of any such rules framed under section 102 relating to the conditions of service of the employees of the Board, the Board of Trustees is not competent either to pass an order of suspension or of drawing proceedings against the petitioner ; there are several sections in the Act giving rule‑making power to the Board as well as to that Provincial Government of which section 102 of the Act is most material for our purpose. Section 102 provides that "the Provincial Government may make rules, not inconsistent with the provisions of the Act, in particular, the Provincial Government may make rules for all or any of the following matters, namely,
(e) the conditions on which the employees of the Board or of the Tribunal may be appointed, reduced, suspended, dis charged, removed, dismissed or otherwise punished."
It is not disputed or denied that no such rules have been framed by the Provincial Government nor the Government Service Rules have been made applicable to the employees of D. 1. T. by notification. Section 34, while giving power of appointment and punishment, subjected it to "any rules for the time being in force."
Now the question is whether in the absence of any such rules, the employees of the Board can be punished or any proceedings for that purpose can be drawn up ; and if they can, then, what is the procedure to be followed for the purpose.
Mr. Hamidul Huq Chowdhury, the learned Advocate for the respondents, contends that the power of appointment carries with it the power of punishment and in the absence of any rule, the rule of natural justice is to be followed. This contention of Mr. Chowdhury overlooks that there is a specific provision in the Act providing for making rules relating to the condition of service of the Board's employees in section 102 of the Act. Had there been no such rule‑making provision in the Act under which the employees are appointed, then, the contention of Mr. Chowdhury might have some force. Mr. Chowdhury's contention is that the rule‑making provisions in section 102 are only enabling provisions and the Provincial Government may or may not make rules and that if rules are made then those rules are to be followed and in the absence of any such rules, the rule of natural justice has to be followed and it has been followed in this case by giving the petitioner opportunity to defend himself against the charges framed against him.
This contention of Mr. Chowdhury leads us to see if the rule‑making provisions of the Act are mere directory or mandatory.
It is no doubt true that the words used are "The Provincial Government may make rules" and "may make rules for all or any of the following matters" including the condition on which the employees of the Board may be appointed or punished in section 102 (e).
These proposed rules relate to the rights, privileges and liabilities of the Board's employees. These rights and liabilities, as the scheme of the Act shows, are not intended to be left to the whims of their employer. Section 155 of the Act shows that if any rule Is framed under section 102, it shall be published by the Provincial Government by notification and such publication shall be conclusive proof that the rule has been duly made. Section 2(i) says "Notification means notification published in the official Gazette." Section 34 provides that the power of appointing and punishing shall be subject to any rules for the time being in force. What follows then is no rule no power‑one presupposing the other. Then it is contended by Mr. Chowdhury for the respon dents that in that case the appointment of the petitioner is also not valid in the absence of any rule. But sections 32 and 33 and some other sections of the Act give power also to the Board to frame rules. Section 102 speaks of the rules relating to the condition of service to be made by the Government and not the power of appointment which has been made under the rules framed by the Board under the rule‑making power of the Board.
Therefore, what follows from the whole scheme of the Act and its aim and purpose and the various provisions of the Act is that the rules contemplated in section 102 are rules relating to the rights and privileges of the employees of the Board and the power of making rules relating to the condition of service given to the Government is an obligatory one though couched in the word "may" which means "must". I am fortified in my view by the decision of the House of Lords in the case of Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford (5 A C 214) where the Lord Chancellor (Earl Cairns) with reference to the enabling words used in a statute, at page 222‑223 of the report observed "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 conditions 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."
and at page 225 of the report, quoted with approval what Mr. Justice Coleridge has said in Reg v. Tithe Commissioners (14 Q B 459) which runs as follows:
"The words undoubtedly are only empowering but it has been so often decided as to have become an axiom that in public statute words only directory, promissory or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice."
Then the Lord Chancellor at the same page of the report commented:
"The only axiom Mr. Justice Coleridge spoke of was, that, under certain circumstances, enabling words might have a compulsory force."
With this view of the Lord Chancellor, the other Lords in the case agreed. Lord Penzance after reviewing cases on the point observed at page 231 of the report:
"In all these instances the Courts decided that the power conferred was one which was intended by the Legislature to be exercised ; and that although the statute in terms had only conferred a power, the circumstances were such as to create a duty."
Lord Blackburn after considering what Mr. Justice Coleridge has really said in the case of Reg v. Tithe Commissioners, observed at page 244 of the report :‑----
"The only part of this to which objection can be taken is the use of the `public' ; if by that it is to be understood either that enabling words are always compulsory where the public are concerned or are never compulsory except where the public are concerned, I do not think either was meant. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right."
Though that case relates to the interpretation of the words "it shall be lawful for the Bishop of the diocese in section 3 of the Church. Discipline Act, the principle of interpretation laid down in that case seems to be of universal application. It is the leading case on the point and followed both in England and in undivided India. I do not feel necessary to refer to and discuss those cases here nor do I think it necessary to refer to and discuss other reported cases cited at the Bar as they are not exactly on the point.
So, I am of opinion that in the absence of any rules framed by the Provincial Government under section 102 and notified under section 155 of the Act, the Board has got no power to draw departmental proceedings against the petitioner or to framing any charge against him, though I have pointed out that the Board as the appointing authority has got the power of suspending the petitioner from service preliminary to or pending the departmental proceeding to facilitate the proceeding.
If the departmental proceedings drawn against the petitioner cannot be sustained for want of rule to be made by the Provincial Government, the order of suspension preliminary to that proceeding cannot be maintained for indefinite period in the absence of lawful proceeding started or to be started.
There remains one other point raised by the learned Advocate for the petitioner, namely, that the action taken against the petitioner was mala fide. The sum and substance of this ground, as stated in the petition (vide paragraphs 7 to 13), is that after the publication in "The Azad" newspaper about some alleged mal‑administration in the affairs of the D. I. T. the Chairman of the D. I. T. suspected the petitioner for that publication and since then he has become vindictive against the petitioner and as such he has resorted to all mala fide actions against the petitioner culminating into the suspension of the petitioner from his service and the drawing of the proceedings against him. On the other hand, it appears both from the petition of the petitioner (vide paragraphs 4 to 6) and from the affidavit‑in‑opposition filed by the respondents in the case that the Board of trustees and its Chairmen were taking actions in the day to day administration of the affairs of the Board and also against the petitioner for his inefficiency, misconduct, mismanagement and disobedience from before. These actions taken by the Chairman of the Board can be attributed to him as action taken by the Chief Executive Officer of the Board in course of the discharge of his duties for proper administration of the affairs of the Board and the action taken by the Board of Trustees against the petitioner, before and after the alleged publication in the newspaper "The Azad", culminating into the suspension of the petitioner may also be justified from that point of view. Be that as it may, we do not like to express any opinion on that point as it requires investiga tion into facts.
The result, therefore, is that both the rules are made absolute against the respondents, but as against the respondent No. 2 in his capacity as Chairman of the Board, and we declare that the proceedings drawn against the petitioner are bad in law and of no legal effect and that the order of suspension of the petitioner from service is inoperative:
As both the petitions succeeded on a technical ground of want of rules to be framed by the Provincial Government under section 102 of the Town Improvement Act, we do not propose to pass any order as to costs in any of these petitions.
M. R. KHAN, J.‑In this case several points of law have been raised. I would give my own views on those points.
Mr. M. H. Khandkar, learned Advocate for the petitioner submits that if the order suspending the petitioner pending a departmental enquiry is not a punishment, then, that order is illegal and of no legal effect, the same not having been made with the previous sanction of the Provincial Government as required by clause (c) of section 35 of the Town Improvement Act, 1953 (hereinafter called the Act). His alternative contention is that if the interim suspension is a punishment, the order is equally bad in law and of no legal effect, the same having been imposed on the petitioner without giving him any opportunity of being heard.
On the other hand, Mr. Hamidul Huq Chowdhury, learned Advocate for the respondents, submits that if the interim suspen sion is a punishment, previous sanction of the Provincial Govern ment is not necessary in view of the express exception made by clause (c) of section 35 in respect of punishment. He, however, contends that an order of suspension pending depart mental enquiry is only a preliminary step towards inquiry into the charges against the person proceeded against and is not a punishment and that an order of this kind is not one under section 34 and, as such, previous sanction of the Provincial Government is not required under clause (c) of section 35 before making such an order.
Before proceeding to examine the provisions of clause (c) of section 35 of the Act, it is, therefore, necessary to consider whether the order of suspension pending a departmental enquiry is or is not a punishment. Suspension pending a departmental enquiry is a step taken with a view to keeping the delinquent out of office till the passing of a final order on the completion of the inquiry into the charges levelled against him. An order of suspension is generally made in a case where the compe tent authority, in view of the gravity of the charges…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.