Case Note & Summary
The dispute concerned the removal from service of a Deputy Collector in the erstwhile State of Hyderabad, later allotted to Andhra Pradesh, who had remained absent from duty for over five years. The respondent was appointed as Tehsildar on 18-04-1945 and promoted as Deputy Collector in 1957. He was granted leave from 11-06-1963 to 10-06-1968; while on leave, he sought premature retirement on 14-11-1964, but the Board of Revenue informed him he could retire only after 25 years of qualified service. When the last extension of leave was sanctioned up to 10-06-1968, the Board informed him that under Rule 29 of the Hyderabad Civil Service Rules he would cease to be a government servant from 11-06-1968 after five years of continuous absence. Instead of joining duty, he sought permission on 19-06-1968 to serve in a private company started by him and his wife. The Government initiated disciplinary proceedings, appointed an enquiry officer, served a charge sheet on 24-11-1970, issued a show cause notice on 31-03-1972, and by order dated 23-09-1977 removed him from service; another order dated 13-12-1977 treated the period from 11-06-1968 to 23-09-1977 as dies non. The respondent filed a representation petition before the Andhra Pradesh Administrative Tribunal, which dismissed it on 10-06-1984. In review, the Tribunal on 07-08-1984 set aside the removal order solely because the Government had not consulted the Andhra Pradesh Vigilance Commission as required by Rule 4(2) of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, while upholding the dies non order. The Government issued G.O.M.S. No. 1618 on 31-10-1984 annulling the Tribunal's review order under Article 371-D(5) of the Constitution, but the High Court set aside that annulment on 12-02-1987 relying on P. Sambamurthy v. State of Andhra Pradesh. The State then appealed to the Supreme Court. The core legal issue was whether Rule 4(2) was mandatory. The appellants argued that no vigilance investigation had been directed and that the provision was directory; the respondent relied on Deokinandan Prasad and Jai Shanker to contend it was mandatory. The Court referred to State of U.P. v. Manbodhan Lal Srivastava, which held that consultation with the Public Service Commission under Article 320(3)(c) is not mandatory and non-compliance does not afford a cause of action. The Court held that the word 'shall' in Rule 4(2) is not always mandatory and its use depends on context; applying the same principle, non-consultation with the Vigilance Commission did not render the removal order illegal. Accordingly, the appeal was allowed, the Tribunal's order dated 07-08-1984 was set aside, and no costs were ordered.
Headnote
A) Service Law - Disciplinary Proceedings - Mandatory Consultation with Vigilance Commission - Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, Rule 4(2) - The respondent, a Deputy Collector, remained absent from duty for more than five years and was removed from service after disciplinary proceedings. The Tribunal set aside the removal solely because the Government did not consult the Andhra Pradesh Vigilance Commission as then required by Rule 4(2). The Supreme Court held that the word 'shall' in Rule 4(2) was not mandatory, and non-consultation did not render the removal order illegal. The appeal was allowed and the Tribunal's order dated 07-08-1984 was set aside. (Paras 7, 10, 12) B) Statutory Interpretation - Mandatory and Directory Provisions - Use of Word 'Shall' - Constitution of India, Article 320(3)(c); Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, Rule 4(2) - The Court relied on State of U.P. v. Manbodhan Lal Srivastava where it was held that consultation with the Public Service Commission under Article 320(3)(c) is not mandatory and non-compliance does not afford a cause of action. The same principle applied to Rule 4(2); context and object determine whether 'shall' is mandatory, not the mere use of the word. Non-compliance with directory consultation provisions does not invalidate the proceeding or outcome. Held that Rule 4(2) is directory and non-consultation with the Vigilance Commission does not vitiate the removal order. (Paras 8-11)
Issue of Consideration
Whether the Andhra Pradesh Administrative Tribunal was right in setting aside the removal order dated 23-09-1977 solely on the ground that the Government did not consult the Andhra Pradesh Vigilance Commission before passing the order as required by Rule 4(2) of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules.
Final Decision
The Supreme Court allowed the appeal, set aside the order dated 07-08-1984 passed by the Andhra Pradesh Administrative Tribunal, and held that non-consultation with the Vigilance Commission did not render the removal order illegal. No order as to costs.
Law Points
- Word 'shall' in Rule 4(2) of A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules is directory
- not mandatory
- Non-compliance with prior consultation with Andhra Pradesh Vigilance Commission does not invalidate removal order
- Article 320(3)(c) Constitution consultation with Public Service Commission is not mandatory and non-compliance does not give cause of action
- Construction of 'shall' depends on context and object of the statute
