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What then is the effect of the said propositions in their application to the provisions of the and the rules made thereunder? The of 89 702 1861 continues to be good law under the Constitution.
Paragraph 477 of the Police Regulations shows that the rules in Chapter XXXII thereof have been framed under section 7 of the .
Presumably, they were also made by the Government in exercise of its power under section 46(2) of the .
Under para.
479(a) the Governor 's power of punishment with reference to all officers is preserved; that is to say, this provision expressly saves the power of the Governor under article 310 of the Constitution.
"Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation": see Maxwell "On the Interpretation of Statutes", 10th edn., pp. 5051.
The statutory rules cannot be described as, or equated with, administrative directions.
If so, the and the rules made thereunder constitute a self contained code providing for ' the appointment.
of police officers and prescribing the procedure for their removal.
It follows that where the appropriate authority takes disciplinary action under the or the rules made thereunder, it must conform to the provisions of the statute or the rules which have conferred upon it the power to take the said action.
If there is any violation of the said provisions, subject to the question which we will presently consider whether the rules are directory or mandatory, the public servant would have a right to challenge the decision of that authority.
Learned counsel for the appellants relied upon the following decisions of the Privy Council and this Court in support of his contention that the said rules are administrative directions: R. T. Rangachari vs Secretary of State for India (1), R. Venkata Rao vs Secretary of State for India (2), High Commissioner for India and High Commissioner for Pakistan vs I. M. Lall (3), section A. Venkataraman vs The Union of India(4), and Khem Chand vs The Union of India(5).
In Venkata Rao 's (1) (1936) L.R. 64 I.A. 40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) ; (5) ; 703 case (1) a reader of the Government Press was dismissed and in the suit filed by him against the Secretary, of State for India he complained, inter alia, that the dismissal was contrary to the statute inasmuch as it was not preceded by any such inquiry as was prescribed by rule XIV of the Civil Services Classification Rules made under section 96B(2) of the Government of India Act.
Under section 96B of the said Act, every person in civil service holds office during the pleasure of His Majesty.
Sub section (2) of that section empowers the Secretary of State for India to make rules laying down, among others, the conditions of service, and sub section
(5) declares that no rules so made shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the civil service of the Crown in India in such manner as may appear to him to be just and equitable.
On a construction of these provisions the Judicial Committee held that His Majesty 's pleasure was paramount and could not legally be controlled or limited by the rules.
Two reasons were given for the conclusion, namely, (i) section 96B in express terms stated that the office was held during the pleasure and there was no room for the implication of a contractual term that the rules were to be observed; and (ii) sub section
(2) of section 96B and the rules made careful provisions for redress of grievances by administrative process and that sub section
(5) reaffirmed the superior authority of the Secretary of State in Council over the civil service.
It may be noticed that the rules framed in exercise of the power conferred by the Act was to regulate the exercise of His Majesty 's pleasure.
The observations were presumably coloured by the doctrine of "tenure at pleasure" obtaining in England, namely, that it could only be modified by statute, influenced by the princi ple that the rules made under a statute shall be consistent with its provisions and, what is more, based upon a construction of the express provisions of the Act.
These observations cannot, in our opinion, be taken out of their context and applied to the provisions of our Constitution and the Acts of our Legislatures in derogation of the well settled principles of (1) (1936) L. R. 64 I. A. 55.
704 statutory construction.
In Bangachari 's case (1) a police officer was dismissed by an authority subordinate to that by which he had been appointed.
The appeal was heard along with that in Venkata Rao 's case (2) and the judgments in both the appeals were delivered on the same day.
The Judicial Committee distinguished Venkata Rao 's case (2) with the following observations at p. 53: "It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time.
" These observations do not carry the matter further an our remarks made in connection with Venkata Rao 's case (2) would equally apply to this case.
I.M. Lall 's case (3) turns upon sub section
(3) of section 240 of the Government of India Act, 1935.
Again the Judicial Committee made a distinction between the rules and the provisions of the Act and ruled that sub sections
(2) and (3) of section 240 indicated a qualification or exception to the antecedent provisions in sub section
(1) of section 240.
This decision only adopted the reasoning in the earlier decision.
The remarks made by us in connection with Venkata Rao 's case (2) would equally apply to this decision.
This Court in section A. Venkataraman 's case (4) incidentally noticed the observations of the Judicial Committee in Venkata Rao 's case (2) and observed that the rules, which were not incorporated in a statute, did not impose any legal restriction upon the right of the Crown to dismiss its servants at pleasure.
This Court was not laying down any general proposition, but was only stating the gist of the reasoning in Venkata Rao 's case (2).
Das, C.J., if we may say so, correctly stated the scope of the rule in Venkata Rao 's case (2) in the decision in Khem Chand 's case (5), when he stated at p. 1091 "The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the Crown under the Government of India Act, 1915, the rules could not override (1) (1936) L.R. 64 I.A. 40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) ; (5) ; 705 or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself." To state it differently, the Government of India Act, 1915, as amended in 1919, and that of 1935 expressly and clearly laid down that the tenure was at pleasure and therefore the rules framed under that Act must be consistent with the Act and not in derogation of it.
These decisions and the observations made therein could not be understood to mark a radical departure from the fundamental principle of construction that rules made under a statute must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act.
There is another principle equally fundamental to the rules of construction, namely, that the rules shall be consistent with the provisions of the Act.
The decisions of the Judicial Committee on the provisions of the earlier Constitution Acts can be sustained on the ground that the rules made in exercise of power conferred under the Acts cannot override or modify the tenure at pleasure provided by section 96B or section 240 of the said Acts, as the case may be.
Therefore, when the paramountcy of the doctrine was conceded or declared by the statute, there might have been justification for sustaining the rules made under that statute in derogation thereof on the ground that they were only administrative directions, for otherwise the rules would have to be struck down as inconsistent with the Act.
In such a situation, if the statute was valid it would be valid in so far as it did not derogate from the provisions of article 310, read with article 311 the rules made thereunder would be as efficacious as the Act itself.
So long as the statute and the rules made thereunder do not affect the power of the Governor in the present case the Governor 's pleasure is expressly preserved they should be legally enforceable.
In this context the decisions of the different High Courts in India are cited at the Bar.
It would not serve any purpose to consider every one of them in detail.
It would suffice if their general trend be noticed.
They express two divergent views: one line relies upon the observations 706 of the Privy Council in Venkata Rao 's case (1) and lays down that all statutory rules vis a vis the disciplinary proceedings taken against a Government servant are administrative directions, and the other applies the well settled rules of construction and holds that the appropriate authority is bound to comply with the mandatory provisions of the rules in making an inquiry under a particular statute.
A close scrutiny of some of the decisions discloses a distinction implied, though not expressed, between statutory rules defining the scope of reasonable opportunity and those governing other procedural steps in the disciplinary process.
In our view, subject to the overriding power of the President or the Governor under article 310, as qualified by the provisions of article 311, the rules governing disciplinary proceedings cannot be treated as administrative directions, but shall have the same effect as the provisions of the statute whereunder they are made, in so far a, , they are not inconsistent with the provisions thereof We have already negatived the contention of learned counsel that the Governor exercises his pleasure through the officers specified in section 7 of the , and therefore, it is not possible to equate the Governor 's pleasure with that of the specified officers ' statutory power.
If so, it follows that the inquiry under the Act shall be made in accordance with its provisions and the rules made thereunder.
Then learned counsel contends that even if the said rules have statutory force, they are only directory and the non compliance with the rules will not invalidate the order of dismissal made by the appropriate authority.
Before we consider the principles governing the question whether the rules are mandatory or directory, it would be convenient at this stage to notice broadly the scope and the purpose of the inquiry contemplated by the rules.
Section 2 of the constitutes the police establishment; section 7 empowers specified officers to (1) [1936] L.R. 64 I.A. 55.
707 punish specified subordinate officers who are remiss or negligent in discharge of their duties or unfit for the same; section 46 enables the Government to make rules.
to regulate the procedure to be followed by the magistrate and police officers in discharge of any duty imposed on them by or under the Act; under section 7, read with section 46 of the , the Police Regulations embodied in chapter XXXII were framed.
Paragraph 477 of the Regulations says that the rules in that chapter have been made under section 7 of the and apply only to officers appointed under section 2 of the and that no officer appointed under that section shall be punished by executive order otherwise than in the manner provided in that chapter.
Paragraph 478 prescribes the nature of the punishment that can be imposed on the delinquent officers.
Paragraph 479 empowers specified officers to punish specified subordinate officers.
Paragraph 483 gives the procedure to be followed in the matter of the inquiry against a police officer.
It reads: "Subject to the special provision contained in paragraph 500 and to any special orders which may be passed by the Governor in particular cases a proceeding against a police officer will consist of A A magisterial or police inquiry, followed, if this inquiry shows the need for further action, by B A judicial trial, or C A departmental trial, or both, consecutively." Paragraph 484 declares that the nature of the inquiry in any particular case will vary according to the nature of the offence.
If the offence is cognizable or non cognizable, the inquiry will be according to Schedule II of the Criminal Procedure Code.
If the information is received by the District Magistrate, he may in exercise of his powers under the Criminal Procedure Code either, (1) make or order a magisterial inquiry; or (2) order an investigation by the Police.
Paragraph 485 reads: "When a magisterial inquiry is ordered it will be made in accordance with the Criminal Procedure Code and the Superintendent of Police will have no direct 708 concern with it until the conclusion of judicial proceedings or until and unless the case is referred to him for further disposal, but he must give any assistance to the inquiring magistrate that he may legally be called upon to give and he must suspend the accused should this become necessary under paragraph 496." Paragraph 486 says that there can be no magisterial inquiry under the Criminal Procedure Code when the offence alleged against a police officer amounts to an offence only under section 7 of the , and it provides further that in such cases, and in, other cases until and unless a magisterial inquiry is ordered, inquiry will be made under the direction of the Superintendent of Police in accordance with the rules given thereunder.
Under rule I thereof, "Every information received by the police relating to the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV, Criminal Procedure Code, according to law, a case under the appropriate section being registered in the police station concerned".
There are six provisos to that rule.
Rule II provides for the inquiry of a non cognizable offence; and rule III prescribes the procedure in regard to an offence only under section 7 of the or a non cognizable offence of which the Superintendent of Police considers unnecessary at that stage to forward a report in writing to the District Magistrate.
Paragraph 488 deals with a judicial trial and para.
489 with a departmental trial.
Paragraph 489 says: "A police officer may be departmentally tried under section 7 of the (1) after he has been tried judicially; (2) after a magisterial inquiry under the Criminal Procedure Code; (3) after a police investigation under the Criminal Procedure Code or a departmental enquiry under paragraph 486,III above.
" There are other provisions dealing with the manner of conducting the inquiries and other connected matters.
The rules provide for the magisterial and police inquiry followed, if the inquiry showed the need for further action, by a judicial trial or a departmental 709 trial, or both, consecutively.
In the case of cognizable offences the Superintendent of Police is directed to investigate under chapter XIV of the Criminal Pro p, cedure Code and in the case of non cognizable offences in the manner provided in rule II of para.
486, and in the case of an offence only under section 7 of the or a non cognizable offence in the manner provided under rule III of para.
After one or other of the relevant procedure is followed, the Superintendent of Police is empowered to try a police officer departmentally.
The question is whether rule I of para.
486 is directory.
The relevant rule says that the police officer shall be tried in the first place under chapter XIV of the Criminal Procedure Code.
The word "shall" in its ordinary import is "obligatory"; but there are many decisions wherein the courts under different situations construed the word to mean "may".
This Court in Hari Vishnu Kamath vs Syed Ahmad Ishaque (1) dealt with this problem at p. 1125 thus: "It is well established that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter.
" It is then observed: "They (the rules) are well known, and there is no need to repeat them.
But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.
" The following quotation from Crawford "On the Construction of Statutes", at p. 516, is also helpful in this connection: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the (1) ; 90 710 consequences which would follow from construing it the one way or the other. " This passage was approved by this Court in State of U. P. vs Manbodhan Lal Srivastava (1).
In Craies on Statute Law, 5th edition, the following passage appears at p. 242: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
" A valuable guide for ascertaining the intention of the Legislature is found in Maxwell on "The Interpretation of Statutes", 10th edition, at p. 381 and it is: "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only.
The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.
" This passage was accepted by the Judicial Committee of the Privy Council in the case of Montreal Street Railway Company vs Normandin (2 ) and by this Court in State of U. P. vs Manbodhan Lal Srivastava (1).
The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.
For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which (1) ; , 545.
(2) L.R. [1917] A.C.770.
711 would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non compliance with the provisions, the fact that the non compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
Now what is the object of rule I of para.