Citation Codes

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citation codes

Case Number

Civil Misc. Writ Petn. No. 689 of 1978

Judges

K.N Singh
K.N Seth
Murlidhar, JJ.

Acts

provisions of Sections 21(4) and 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act
S. 16-G(3) of the U.P Intermediate Education Act (hereinafter referred to as the Act).
sub-section (3) of Section 131 of the U.P Municipalities Act
Indian Societies Registration Act, runs Hindu National
sub-section (3) of Section 131

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Smart Summary

Case Summary — Opinion by K.N. Seth, J.

Factual and Procedural Background

Hindu National School Management Trust Society, which runs Hindu National Inter College, Dehradun (recognised by the U.P. Board), through its Committee of Management (Petitioner No. 2), suspended a teacher, Trilok Chand Sharma (respondent No. 3), by resolution dated 26-4-1976 and constituted a sub-committee (president, vice-president and a member) to enquire into charges. Charges were served on 12-5-1976; the respondent replied on 30-5-1976 and a supplementary reply on 14-6-1976. The sub-committee reported on 24-6-1976 that the charges were established. The Committee approved the report on 29-6-1976 and decided to dismiss respondent No. 3 with effect from 26-4-1976. Approval under S. 16-G(3) of the U.P. Intermediate Education Act was obtained from the District Inspector of Schools on 20-10-1976, and an order of dismissal was passed on 31-10-1976 (with effect from 26-4-1976).

Respondent No. 3 appealed to the Regional Deputy Director of Education, who allowed the appeal by order dated 24-12-1977 on two grounds: (1) at the Committee meeting of 31-10-1976 two teachers who were ex-officio members were not present and two other teachers attended in their place; and (2) Regulation 35 of Chapter III of the Regulations framed under the Act required that only the Principal or Manager could be appointed to conduct the enquiry and that the enquiry could not be entrusted to a sub-committee (i.e., Regulation 35 was mandatory). The petitioners challenged the legality of the Regional Deputy Director's order; the petition came before a Division Bench which referred the question whether Regulation 35 is mandatory or directory to the present Bench.

Legal Issues Presented

Whether the validity of the Committee meeting of 31-10-1976 was affected because two elected ex-officio teacher members did not attend and were replaced by two other teachers (i.e., whether this irregularity invalidated the meeting and its resolution).
Whether Regulation 35 of Chapter III of the Regulations (which prescribes the Enquiry Officer for complaints against teachers and requires a small sub-committee for enquiry in the case of the Headmaster or Principal) is mandatory in all respects or directory in nature — in particular, whether the Committee may delegate the enquiry to a sub-committee instead of the named officers and whether non-compliance would vitiate actions taken.

Arguments of the Parties

Petitioners' Arguments

The two teachers whose terms had been earlier recorded as ex-officio members had, according to the petitioners, had their terms expire and the two teachers who attended the 31-10-1976 meeting were validly co-opted as ex-officio members in their place.
The 31-10-1976 meeting was held pursuant to Regulation 45 solely to implement an earlier decision already approved by the District Inspector of Schools; therefore no fresh decision was taken and any irregularity in membership did not invalidate the meeting.
There was an unchallenged complete quorum at the meeting and the resolution to implement the earlier dismissal decision was unanimous; no prejudice was caused to respondent No. 3 by the alleged irregularity.
With respect to Regulation 35, the petitioners argued (implicitly through submission and Court's treatment) that the Committee could delegate its authority to enquire and that entrustment of the enquiry to a sub-committee does not violate the object of Regulation 35.

Respondent's Arguments

The meeting of 31-10-1976 was invalid because two elected ex-officio teacher members (Sri R.C. Goel and Sri Suresh Singh Suryawansi) were not invited and two other teachers (Sri Kailash Chandra and Sri Ravindra Kukreti) attended in their place.
Only the Principal or Manager of the College could be appointed to conduct the inquiry into charges against respondent No. 3; Regulation 35 (as interpreted in R.P. Dixit v. Managing Committee) was mandatory and the enquiry could not be entrusted to a sub-committee.
On these grounds the Regional Deputy Director of Education allowed the appeal and set aside the dismissal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R.P. Dixit v. Managing Committee (1971 All LJ 896)	Held (by a Division Bench) that Regulation 35 required appointment of a small sub-committee for inquiry against a Principal and that the use of the word "may" was nevertheless obligatory — i.e., Regulation 35 was mandatory as to constitution of the Enquiring Authority.	The Court concluded that the decision in R.P. Dixit's case was based on a wrong premise (that the regulation assigned enquiry to a named person and disallowed any other person). The Court rejected the mandatory reading adopted in R.P. Dixit and held that Regulation 35 permits delegation and is directory in nature.
Raza Buland Sugar Co. Ltd. v. The Municipal Board (AIR 1965 SC 895)	Explains that whether a provision is mandatory or directory depends on facts and factors such as the object of the statute, nature of provision, legislative intention, and consequences of treating it one way or the other.	The Court relied on these principles as the appropriate approach to determine whether Regulation 35 is mandatory or directory, applying the listed factors to the Regulations under consideration.
Haridwar Singh v. Bagun Sumbrui ((1973) 3 SCC 889 : AIR 1972 SC 1242)	Reiterates that no universal rule can be laid down; one must consider subject matter, importance of disregarded provision, and its relation to the general object intended to be secured; prohibitive/negative words usually indicate mandatory intent.	The Court cited this authority to reinforce the contextual approach and to inspect the importance of the provision disregarded (Regulation 35) relative to the protection intended for employees.
Dattatraya Moreshwar Pangarkar v. State of Bombay (1952 SCR 612 : AIR 1952 SC 181)	Where prescriptions relate to performance of public duty, invalidating acts for neglect may cause serious general inconvenience or injustice; hence such prescriptions may be construed as directory for guidance.	The Court invoked this principle to support the view that strict invalidation is not always appropriate when public duty and potential injustice to third parties are concerned; this weighed against treating Regulation 35 as strictly mandatory in all circumstances.
Howard v. Bodington ((1877) 2 PD 203)	Referenced as part of criteria for gauging importance of a provision and whether non-compliance renders an act void or voidable (quoted in S.A. de Smith's summary).	The Court incorporated the quoted reasoning (via de Smith) about assessing the importance of the disregarded provision in determining mandatory/directory character; used as illustrative authority for interpretation principles.
Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court (AIR 1956 SC 285)	Distinguishes administrative delegation: exercise of administrative power (appoint/dismiss) is administrative though preceded by an enquiry; deputing a responsible official to enquire and report is not delegating the ultimate responsibility.	The Court relied on this authority to conclude that Regulation 35 involves delegation (not assignment) of the Committee's power to enquire; deputing a sub-committee or official to hold the enquiry does not amount to an unlawful delegation of the Committee's ultimate responsibility.
Board of Education v. Rice (1911 AC 179)	Holds that a decision-maker may obtain material by feasible and convenient means so long as the affected party has a fair opportunity to correct or contradict relevant prejudicial material.	The Court used this principle to emphasize that delegation of inquiry to an officer or a sub-committee is acceptable provided the charged person has a fair opportunity to respond — aligning with the safeguards in Regulations 36 and 37.
Huth v. Clarke ((1890) 25 QBD 391)	Interprets "delegation" as not implying surrender of authority; delegation confers authority on another without denuding the delegator of ultimate responsibility.	The Court cited this to support the proposition that Regulation 35 permits delegation of the Committee's investigatory function without divesting the Committee of its ultimate authority and responsibility.
Roop Chand v. State of Punjab (AIR 1963 SC 1503)	Held that when a governmental power is delegated to an officer and exercised by that officer, the resulting order is the order of the government; delegations remain the delegator's power.	The Court applied this to analogise that under S. 16-G the Committee is the appointing authority and may delegate the inquiry — when delegated and exercised, it remains the Committee's power; hence delegation to a sub-committee would be substantially compliant.
Gulab Chand Pandey v. Dy. Director of Education (1977 All LR 114)	Followed R.P. Dixit in holding Regulation 35 mandatory (as cited by the opinion).	The Court noted that Gulab Chand Pandey followed R.P. Dixit, and treated those decisions as based on the same incorrect premise; the present Court rejected that line of authority.

Court's Reasoning and Analysis

The Court proceeded in two analytical stages: first it considered the validity of the Committee meeting of 31-10-1976; second it addressed the main legal question concerning the nature of Regulation 35.

1. Validity of the 31-10-1976 Meeting

The meeting was held pursuant to Regulation 45 to implement a prior decision already approved by the District Inspector of Schools; no fresh decision-making power was exercised at that meeting.
Although respondent alleged that two elected ex-officio teacher-members were not invited and replaced by others, the Court found that the quorum was complete, two teacher-representatives did attend, and the meeting's sole function was to implement the earlier approved decision.
The Court concluded that any irregularity in membership for that implementation meeting, even if assumed, would not invalidate the proceedings because no prejudice to respondent No. 3 was shown.

2. Scope and Nature of Regulation 35

The Court quoted Regulation 35 and then summarised Regulations 36 and 37, highlighting the multiple procedural safeguards they provide to an employee: specific written charges; opportunity to file defence; right to oral enquiry and to cross-examine witnesses; maintenance of record and reasons; right to be heard by the Committee; and requirement to send complete report to the Inspector/Regional Inspectress for approval.
The Court acknowledged that the object of Regulation 35 is to safeguard employees from arbitrary action by the Committee of Management and to ensure a fair enquiry process.
Addressing R.P. Dixit's holding that Regulation 35 was mandatory, the Court reviewed authoritative Supreme Court jurisprudence (Raza Buland, Haridwar Singh, Dattatraya Pangarkar) and academic commentary (S.A. de Smith) to explain the established approach: whether a provision is mandatory or directory depends on context, purpose, legislative intent, importance of the provision, relationship with other provisions and consequences of strict enforcement.
The Court analysed whether departing from the personnel prescription in Regulation 35 (i.e., conducting inquiry by a sub-committee rather than the named Headmaster/Principal/Manager) defeats the object of the Regulation. It found that the substantive safeguards in Regulations 36 and 37 remain available irrespective of whether a single officer or a sub-committee conducts the enquiry.
The Court reasoned that in many circumstances it may be impracticable or unfair to insist that only the named individuals conduct the enquiry (e.g., bias, unavailability). Insisting on rigid compliance could prejudice the teacher and frustrate a fair inquiry.
The Court further distinguished "assignment" from "delegation" and relied on Pradyat Kumar Bose and Roop Chand to show that deputing an officer or body to hold an enquiry is a permissible delegation of administrative functions so long as ultimate responsibility remains and procedural fairness is preserved.
Given the object of Regulation 35, the surrounding procedural safeguards, the possibility that delegation may better secure fairness, and the use of the word "may" in the Regulation, the Court concluded that Regulation 35 is directory rather than mandatory in every respect.
The Court explicitly held that the line of authority which treated Regulation 35's personnel prescription as mandatory (R.P. Dixit and those following it) was based on an incorrect premise and was therefore not followed.

Holding and Implications

PETITION ALLOWED; THE IMPUGNED ORDER OF THE REGIONAL DEPUTY DIRECTOR OF EDUCATION DATED 24-12-1977 IS QUASHED.

Direct consequences stated in the opinion:

The petition succeeds and is allowed; the Regional Deputy Director's order setting aside the dismissal is quashed.
Parties shall bear their own costs (as ordered by the Court).

Broader legal implications as articulated in the opinion:

The Court held that Regulation 35 is directory in nature rather than mandatory in all respects; the Committee of Management may delegate the inquiry function to a sub-committee or an officer where appropriate, provided the procedural safeguards in Regulations 36 and 37 (notice of charges, right to defence, oral inquiry, recording of evidence, right to be heard by the Committee, and requirement of sending records to the Inspector for approval) are observed so that no injustice results to the employee.
The decision expressly disapproved the view in R.P. Dixit (and decisions following it, such as Gulab Chand Pandey) insofar as they held that the personnel prescription in Regulation 35 was mandatory and incapable of any departure.
The Court emphasised the distinction between delegation and assignment: delegating an inquiry does not deprive the Committee of the ultimate responsibility for decision-making; delegation to obtain material and report is permissible so long as fair opportunity is preserved.

All content in this summary is drawn exclusively from the provided opinion text and does not add or infer facts beyond that text.

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Hindu National School Management Trust Society And Another v. Deputy Director Of Education And Others

K.N Seth, J.:— Hindu National School Management Trust Society, a society registered under the Indian Societies Registration Act, runs Hindu National Inter College, Dehradun, which is recognised by the U.P Board of High School and Intermediate Education. Petitioner No. 2 is the Committee of Management constituted for managing and conducting the affairs of the College. Trilok Chand Sharma, respondent No. 3, was a teacher in the College. By a resolution dated 26-4-1976 the Committee of Management suspended respondent No. 3 and constituted a sub-committee consisting of the president, vice-president and a member of the Committee to enquire into the charges. The Sub-committee framed charges against respondent No. 3 and served it on him on 12-5-1976 who submitted his reply to the charges on 30-5-1976 and a supplementary reply on 14-6-1976. The Sub-Committee submitted its report on 24-6-1976 holding that the charges had been established against respondent No. 3. The Committee of Management thereafter passed a resolution on 29-6-1976 approving the report of the Sub-Committee and decided to dismiss respondent No. 3 from service with effect from 26-4-1976. (sic) were sent to the District Inspector of Schools for approval as contemplated by S. 16-G(3) of the U.P Intermediate Education Act (hereinafter referred to as the Act). The District Inspector of Schools granted the necessary approval on 20-10-1976. Thereafter the Committee of Management on 31-10-1976 passed an order dismissing respondent No. 3 from service with effect from 26-4-1976. Respondent No. 3 challenged that order in appeal before the Regional Deputy Director of Education who allowed the appeal by his order dated 24-12-1977 on the grounds, (1) that in the meeting of the Committee of Management held on 31-10-1976, which resolved to dismiss respondent No. 3 from service, two teachers who were ex-offico members, were not present and in their place two other teachers attended the meeting; and (2) that only the Principal or Manager of the College could be appointed to conduct the enquiry into the charges against respondent No. 3 and it could not be entrusted to a sub-committee in view of Regulation 35 of Chapter III of the Regulations framed under the Act which was mandatory. The petitioners have challenged the legality of that order.

2. The petition came up for hearing before a Division Bench. The Bench felt doubt about the correctness of the rule laid down in R.P Dixit v. Managing Committee (1971 All LJ 896) which formed the basis of the decision of the Regional Deputy Director of Education that Regulation 35 is mandatory and must be strictly complied with. On a reference made by the Division Bench the petition has been placed before this Bench for decision. Before dealing with the question whether Regulation 35 is mandatory or directory in nature we may deal with the other ground which weighed with the Regional Deputy Director of Education to set aside the order of dismissal of respondent No. 3. The validity of the meeting held on 31-10-1976 was assailed on the ground that two teachers, who were ex-officio members, were not present and in their place two other teachers attended the meeting. This meeting was held in pursuance of Regulation 45 of Chapter III of the Regulations which provides that the Committee shall implement the decisions of the Inspector or Regional Inspectress within two weeks of its intimation. According to respondent No. 3 Sri R.C Goel and Sri Suresh Singh Suryawansi, two teachers of the institution, were elected ex-officio members of the Committee on 3-2-1976 for a period of one year. They were not invited and in their place Sri Kailash Chandra and Sri Ravindra Kukreti were invited to attend the meeting which rendered the deliberations of the meeting illegal. The stand taken by the petitioners was that the term of the two teachers, who were earlier ex-officio members of the Committee of Management, had expired and the two teachers who did attend the meeting on that date, they were those who had been co-opted as ex-officio members of the Committee of Management. It was asserted that this point was raised before the Regional Deputy Director of Education but he ignored to give any finding on it. The controversy on the question whether the term of Sri R.C Goel and Sri Suresh Singh had come to an end or not and whether Sri Kaliash Chandra and Sri Ravindra Kukreti had been validly co-opted in their place is not of much significance. As noted earlier, the meeting of 31-10-1976 was held in pursuance of Regulation 45. In that meeting no decision was to be taken. It was solely for the purpose of implementing the earlier decision which had been approved by the District Inspector of Schools. It has not been disputed that the quorum at the meeting was complete and it was unanimously resolved to implement the earlier decision dismissing respondent No. 3 from service. Two representatives of the teachers did attend the meeting. Since no fresh decision was to be taken at this meeting, even assuming that irregularity was committed in not inviting Sri R.C Goel and Sri Suresh Singh to the meeting it would not invalidate the proceedings of the meeting. In any case no prejudice was caused to respondent No. 3 by the alleged irregularity.

3. The main question for consideration before us related to the scope and nature of Regulation 35. The Regulation reads as follows:—

“35. On receipt of a complaint or an adverse report of facts of a serious nature the Committee may in the cases of teachers appoint the Headmaster or Principal or Manager as the inquiry officer (or the Manager may himself set up the inquiry if such power has been delegated to him by the Committee under rules) and in the case of the Headmaster or Principal, a small sub-committee, with instructions to submit the report as expeditiously as possible”.

4. Regulations 36 and 37 set out in detail the procedure to be followed in conducting the enquiry and taking a decision on the report of the proceedings and recommendations of the Enquiring Authority. Clause (1) of Regulation 36 requires that a definite charge or charges shall be communicated to the employee charged. He shall be required within a specified time to put in a written statement of his defence and to state whether he desired to be heard in person. An oral enquiry has to be held in respect of such allegations as are not admitted. Such oral evidence as the Enquiring Authority considers necessary will be heard. The person charged is entitled to cross-examine the witnesses, to give evidence in person and such witnesses may be called as he may wish subject to the power of the Enquiring Authority for sufficient reason to be recorded in writing to refuse to call a witness. It is further enjoined that the proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. It is open to the Enquiring Authority to make his own recommendation regarding the punishment to be imposed on the employee. Clause (3) of Regulation 36 provides that where there is difficulty in observing exactly the requirements of the provisions of Clause (1) and those requirements can in the opinion of the Enquiring Authority be waived without injustice to the person charged, he may for reasons to be recorded in writing waive them. The Enquiring Authority is required to submit its report along with its recommendations to the Committee. By Regulation 37 it is provided that on receipt of the report of the proceedings and recommendations of the Enquiry Authority the Committee of Management shall, after notice to the employee, meet to consider the report of the proceedings and recommendations made and take decision on the case. The employee, if he so desires, has a right to appear before the Committee in person and state his case and answer any question that may be put to him by any member present at the meeting. The Committee is then required to send a complete report together with all connected papers to the Inspector or Regional Inspectress, as the case may be, for approval of action proposed by it. It is thus obvious that these Regulations have been framed to safeguard the interest of the employees against unjust and arbitrary actions of the Committee of Management.

5. Under Regulation 35 in the cases of teachers and other employees the Enquiry Officer is to be the Head Master or Principal or Manager and in the cases of Head Master or Principal, the Enquiry has to be conducted by a small sub-committee appointed by the Committee of Management. The question is whether every part of this Regulation is to be treated as mandatory and must be strictly complied with. In R.P Dixit's case (1971 All LJ 896) (supra) the Division Bench took the view that since that enquiry against the Principal was conducted not by a subcommittee but by the Committee of Management itself, there was non-compliance with the provisions of Regulation 35. The Bench relied on the dictum that if law requires something to be done in a particular manner it has to be done in that very manner or not at all and that in spite of the use of word ‘may’ in Regulation 35 it is obligatory to appoint a small sub-committee to hold the enquiry against the Principal. It cannot possibly be disputed that provision relating to the holding of an enquiry is mandatory but can it be said that the constitution of the Enquiring Authority is also mandatory in the sense that no departure at all can be made in that respect? Dealing with the question whether a particular provision is mandatory or is merely directory the Supreme Court in Raza Buland Sugar Co. Ltd. v. The Municipal Board (AIR 1965 SC 895) observed that this question cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provisions is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provisions, the serious, general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provisions, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. In that case the question was whether sub-section (3) of Section 131 of the U.P Municipalities Act was mandatory. The Supreme Court held that the first part of sub-section (3) of Section 131 dealing with publication of proposal and draft rule along with notice was mandatory but the second part of that provision, which related to the manner of publication was only directory.

6. In Haridwar Singh v. Bagun Sumbrui, ((1973) 3 SCC 889 : AIR 1972 SC 1242) Mathew, J. stated the same principle in these words:—

“No universal rule can be laid down on this matter. In each case one must look to the subject matter and consider the importance of the provisions disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory…….”

7. Where a prescription relates to performance of a public duty and to invalidate 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, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatraya Moreshwar Pangarkar v. State of Bombay, 1952 SCR 612 : (AIR 1952 SC 181).

8. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (See Maxwell, Interpretation of Statutes, 6th Edition, pp. 649-650).

9. Dealing with the same problem S.A de Smith in his book ‘Judicial Review of Administrative Action’. Third Edition summarised the position thus:—

“The law relating to the effect of failure to comply with procedural requirement, resembles an inextricable tangle of loose ends. Although it would be futile to attempt to unravel or cut all the knots, it is possible to state the main principles of interpretation that the courts have followed and to illustrate their application in a few settings.

When Parliament prescribes the manner of form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done (though in some cases it has been said that there must be “substantial compliance” with the statutory provisions if the deviation is to be excused as a mere irregularity)……. The whole scope and purpose of the enactment must be considered, and one must assess “the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act.” (Howard v. Bodington (1877) 2 PD 203, 211). Furthermore much may depend upon the particular circumstances of the case in hand. Although “nullification is the natural and usual consequence of disobedience” breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced, or if serious public inconvenience would be caused by holding them to be mandatory, or if the court is for any reason disinclined to interfere with the act or decision that is impugned.”

10. We do not consider it necessary to refer to other cases and the opinion expressed by other eminent jurists on the question under consideration. It appears to be well settled that in order to judge the nature and scope of a particular statute or rule i.e whether it is mandatory or directory the purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. As observed earlier, the object in framing Regulation 35 is to provide a safeguard to the employees of the educational institution against arbitrary and capricious actions of the Committee of Management. The enquiry, on the basis of the charges framed has to be conducted in case of a teacher or other employees by the Head Master, Principal or the Manager and by a subcommittee appointed by the Committee of Management in case of a Principal or Headmaster. The Headmaster or the Principal being the head of the institution it was considered desirable that a small sub-committee should hold the enquiry and it should not be done by a single individual. With regard to an enquiry against a teacher although it is provided that it shall be conducted by a single individual, is the object of the provision defeated if the enquiry is conducted (by) a sub-committee? The safeguards provided to the teacher before taking action against him are; (1) the grounds on which it is proposed to take action against him are reduced in the form of a definite charge or charges which are communicated to him and they have to be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him; (2) he has a right to put in a written statement of his defence, to cross-examine the witnesses, to give evidence in person and to produce witnesses in support of his case (3) the Enquiring Authority has to maintain a sufficient record of the evidence and statement of the findings and the grounds thereof, (4) on receipt of the report of the proceedings and the recommendations from the Enquiring Authority the Committee of Management is enjoined to serve another notice on the employee (5) the Committee has to consider the report of the proceedings and the recommendation made and then take a decision on the case; (6) the employee, if he so desires has a right to appear before the Committee in person to state his case and answer any question that may be put to him before the decision is taken and (7) the Committee has then to send a complete report together with all connected papers to the Inspector or Regional Inspector, as the case may be, for approval of action proposed by it. All these safeguards are available to a teacher whether his enquiry is conducted by the Head Master or Principal or Manager or it is conducted by a small sub-committee. It cannot be successfully contended that by making a departure with regard to the constitution of the Enquiring Authority the purpose for which the provision has been made or the intention of the legislature in making the provision is violated or any serious general inconvenience or injustice is caused to the teacher concerned. On the other hand, the entrustment of the enquiry to a small sub-committee in place of the Head Master or Principal or Manager ensures to the teacher concerned greater and better safeguards than he would have had if the enquiry is conducted by an individual.

11. In certain circumstances it may not at all be possible to entrust the enquiry to the Head Master or Principal or Manager. That individual may be highly biased against the teacher or for one lesson or the other may not be available to conduct the enquiry within a reasonable time. If the provision relating to the personnel of the Enquiring Authority is held to be mandatory, it may cause serious prejudice to the teacher concerned and his interest would suffer and also defeat the purpose of getting a fair and impartial enquiry conducted. It does not appear that any special purpose was sought to be achieved by confining the choice of an Enquiry Officer between the Principal or Head Master or the Manager in case the enquiry was to be conducted against a teacher. In normal course the Principal and the Manager being persons conversant with the affairs of the College, should be required to enquire into the charges against a teacher but if the circumstances so require, the enquiry may be entrusted to a sub-committee, which is definitely a more august body than a principal or Head Master or Manager. It would give no cause for embarrassment to the teacher concerned inasmuch as the enquiry would be conducted by a more responsible and higher body. That would substantially satisfy the requirements of Regulation 35.

12. The decision in R.P Dixit's case (1971 All LJ 896) (supra) which was subsequently followed in Gulab Chand Pandey v. Dy. Director of Education (1977 All LR 114), was based on a wrong premise, that the legislature having assigned the enquiry to a named person it could not have been conducted by any other person. The learned Judges took the view that the mention of the Enquiry Officer in the regulation amounted to ‘assignment’. In our opinion Regulation 35 only empowers the Committee of Management to delegate its authority to enquire into the charges against teachers and other employees to the Head Master or Principal or Manager and in the case of Head Master or Principal to a small sub-committee. The view taken in R.P Dixit's case (supra) is contrary to the law pronounced by the Supreme Court in Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, (AIR 1956 SC 285). In that case the Supreme Court held:—

“…… The exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise thereof.

It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power.

As pointed out by the House of Lords in ‘Board of Education v. Rice’ 1911 AC 179 at p. 182, a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party “has a fair opportunity to correct or contradict any relevant and prejudicial material.”

13. In Regulation 35 there is no assignment but only a delegation of power of the Committee of Management. In legal parlance to assign means to make or set over to another, to transfer or to assign property or some interest therein. In case of assignment the assignor is deprived of the right transferred and it vests in the assignee. On the other hand, the term ‘delegation’ does not imply deprivation of one's authority. In Huth v. Clarke ((1890) 25 QBD 391) interpreting the word ‘delegation’ Wills, J. observed:

“In my opinion the word, in its general sense and as generally used, does not imply, or point to, a giving up of authority, but rather the conferring of authority upon some one else.”

14. In Stroud's Judicial Dictionary, Fourth Edition, it has been explained as “to ‘delegate’ to another is not to denude yourself.”

15. In Roop Chand v. State of Punjab (AIR 1963 SC 1503) while interpreting the provisions of Sections 21(4) and 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act the Supreme Court held that when the Government delegates its power to entertain and decide an appeal under S. 21(4) to an officer and the officer pursuant to such delegation hears the appeal and makes an order, it is the order of the Government. The aforesaid Act enables the Government to delegate its power but such a power when delegated remains the power of the Government. When the delegate exercises the power, he does so for the Government. Under S. 16-G of the Act the Committee of Management is the appointing authority. The power to punish vests in the Committee, Regulation 35 enables it to delegate its power of enquiry to a named Officer or to a sub-committee. Even in the case of a teacher where the enquiry is to be conducted by a named officer it would substantially comply with the requirement of law if the power to conduct the enquiry is delegated to a sub-committee.

16. Regulation 35 uses the word ‘may’.

17. The use of that word may not be determinative of the nature of the provision but keeping in view the nature and object of the statutory provision and the intention behind it the provision must be held to be directory.

18. No other point was pressed before us for consideration during the course of healing.

19. In the result this petition succeeds and is allowed. The impugned order of the Regional Deputy Director of Education dated 24-12-1977 is quashed. Parties shall bear their own costs.

20. Petition allowed.

Hindu National Schoo... v. Deputy Director Of E...