- (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. 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. 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 & Ors. , 2005 (9) SCALE 493, 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. "
(3.) 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. , 2004 (4) SCC 597. A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M. H. Ghaswala & Ors. , AIR 2001 SC 3868, 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 (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board. " 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, or 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 & Anr. , 2001 (1) LBESR 878 (All) : 2001 (1) AWC 242; Sharda Prasad Yadav & Ors. v. District Inspector of Schools, Deoria & Ors. , 2002 (2) LBESR 771 (All) : 2002 (5) AWC 3822.;