Baleshwar Prasad v. Managing Committee — 1961 DIGILAW 1 (ALL)

JUDGMENT Jagdish Sahai, J. - The petitioner was appointed an assistant teacher in Maha Bodhi Higher Secondary School, Sarnath in 1943. In 1952 he was appointed as the officiating Principal of the school and on 24th of February 1954 he was confirmed on that post. On 19th December 1959 he was suspended and charge-sheeted. He submitted his explanation to the charges. The respondent no. 1, the managing committee of the school, on 13th of January 1960 passed a resolution purporting to terminate the services of the petitioner. A copy of the resolution was sent to the District Inspector of Schools, hereinafter referred to as the Inspector, for approval as required by Section 16-G of the Intermediate Education Act, hereinafter referred to as the Act. The Inspector after perusing the file of the petitioners case issued a show cause notice to the petitioner to which the latter submitted an explanation. By his order dated the 25th Feb. 1960 the Inspector refusing to confirm the order terminating the services of the petitioner ordered the withholding of his three increments with cumulative effect and also directed an adverse remark to be entered in his character roll. Both the petitioner and the management filed appeals before respondent no. 3, the Regional Appellate Committee constituted under Section 16-G of the Act, hereinafter referred to as the Committee. The respondent No. 3 directed the petitioner to submit an explanation which the petitioner did. The respondent No. 4, the Deputy Director of Education, Varanasi, informed the petitioner by means of a letter dated 18th of April 1960 that 20th of May 1960 had been fixed for the hearing of the appeals by respondent No. 3. After being adjourned twice the two appeals were heard on 17th June 1960. On 18th of June 1960 the respondent No. 3 pronounced its order reverting the petitioner to the post of an assistant teacher from that of the Principal and directed the payment of a subsistence allowance to the petitioner for the period he was under suspension but not his salary and further ordered that his salary as an assistant teacher will be paid in the scale and grade which he was getting in 1952, i.e., before becoming the Principal. It is against this order that the present petition has been filed. It is against this order that the present petition has been filed. The only submission made on behalf of the petitioner is that the respondent No. 3 had no jurisdiction to enhance the punishment approved by the Inspector. No other submission has been made before me. 2. Section 16-G (3) (c) deals with matters relating to appeals. The relevant parts of that section read as follows:- "16-G (3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the Inspector shall be communicated within the period to be prescribed by regulations. (b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management: Provided that in the cases of punishment, before passing orders, the Inspector shall give an opportunity to the Principal the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why proposed punishment should not be inflicted. (c) An appeal against the order of the Inspector under Cl. (b) may be made to the Regional Appellate Committee constituted under Cl. (d) within one month from the date of such order being communicated to the parties concerned and the Regional Appellate Committee may, after such enquiry as it considers necessary, confirm the order or set aside or `modify' it, and the order passed by the Regional Appellate Committee shall be final." From the provisions of Section 16-G (3) (c) of the Act it is clear that the Committee could either confirm or set aside or `modify' the order passed by the Inspector. It has been contended that in the present case neither the order has been confirmed nor set aside and even though it purports to have been modified it was in fact not even modified but the punishment has been enhanced. 3. It is common ground, in fact the section itself is clear, that he Committee could do any of the three things, i.e., it could either set aside the order or confirm the same or `modify' it. The question for consideration is therefore whether in the instant case the respondent no. 3 has modified the order. 3. It is common ground, in fact the section itself is clear, that he Committee could do any of the three things, i.e., it could either set aside the order or confirm the same or `modify' it. The question for consideration is therefore whether in the instant case the respondent no. 3 has modified the order. It is contended that the word `modify' includes reduction but not enhancement. In Websters New International Dictionary, second edition, amongst others, the following meanings have been given to the word modify. "1. To limit; also, to mitigate; assuage. 2. To reduce in extent or degree; to moderate; qualify: lower, as, to `modify' heat, pain punishment. 3. . . . . . . . . . 4. To change somewhat the form or qualities of, to alter somewhat; as to `modify' the terms of a contract." 4. In Shorter Oxford English Dictionary, second edition, amongst others, the following meanings have been given to the word modify. "1. To limit, restrain; to assuage. 2. To make less severe, rigorous, or decided: to tone down. 3. To give (an object) its particular modality or form of being. 4. To make partial changes in; to alter without radical transformation." 5. It is true that ordinarily the word `modify' is used in the sense of reducing the rigidity or severity and not in the sense of enhancing a punishment. But it cannot be said that `modify' is a synonym for reduce. In the case of Imperatrix v. Rama Prema, I.L.R. 4 Bom. 239 while considering the question whether the word `modify' occurring in Section 18, Cl. 2 Cr. P.C. could include the power to enhance the sentence. The learned Judges observed as follows:- "The Court is of opinion that a Sessions Judge has no such power. The words used in the last sentence of Cl. 2 of Section 18, Cr. P. C. are; The Sessions Judge may either confirm, `modify' or annul such sentence of the Assistant Sessions Judge,. We do not consider that the word `modify' includes, or can have been intended to include, the power of enhancing the sentence." 6. In the matter of Delhi Laws Act case the word modification again came up for interpretation. P. C. are; The Sessions Judge may either confirm, `modify' or annul such sentence of the Assistant Sessions Judge,. We do not consider that the word `modify' includes, or can have been intended to include, the power of enhancing the sentence." 6. In the matter of Delhi Laws Act case the word modification again came up for interpretation. Mukerjea, J. observed as follows: "The dictionary meaning of the expression to `modify' is to tone down or to soften the rigidity of the thing or to make partial changes without any radical alterations; It would be quite reasonable to hold that the word modification in Section 7 of the Delhi Laws Act means and signifies changes of such character as are necessary to make the statute which is sought to be extended suitable to the local conditions of the province do not think that the executive Government is entitled to change the whole nature or policy underlying any particular Act or take different portions from different statutes and prepare what has been described before us as amalgam of several laws." 7. In the same judgment Bose, J. observed as follows: "The power to restrict and `modify' does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the state, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely, the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered." 8. On the basis of the cases mentioned above it must be held that ordinarily the word `modify' is used in the sense of alterations of a minor character and toning down or softening the rigidity of a thing. The question, however, still remains as to in what sense the word `modify' has been used in Section 16-G (3) (c) of the Act. In any judgment the word `modify' in the context of Section 16-G (3) (c) of the Act has been used in a broader sense including the power to enhance. The question, however, still remains as to in what sense the word `modify' has been used in Section 16-G (3) (c) of the Act. In any judgment the word `modify' in the context of Section 16-G (3) (c) of the Act has been used in a broader sense including the power to enhance. The reason why I have come to this conclusion is that the right of appeal has I been given both to the management as also to the teacher. There is nothing in Section 16-G (3) (c) of the Act to show that the right of the management is any the less extensive than that of the teacher in connection with the filing of appeals. The right of the management has not been confined to certain matters only and is not qualified in any manner. There is nothing in the Act to show that though the teacher can file an appeal and pray either for the setting aside or the modification of the order the management cannot file an appeal for the enhancement of the punishment imposed. The language of the section does not justify any such restriction on the right of the management. Indeed if it was held that the management cannot file an appeal for the purpose of enhancement of the I punishment the right conferred upon the management would become illusory. In practice the management would not be interested in getting the I order of punishment set aside or in getting the punishment reduced. It would only be interested in either getting the punishment enhanced or in case where no punishment has been approved to get the order refusing to approve the award of punishment set aside and substituted by an order awarding some punishment. Inasmuch as the Legislature has given the management the right to file an appeal and the committee to entertain such an appeal, it must be held that such an appeal can be filed for purposes of either enhancing the punishment or for imposing a punishment where none has been awarded. If the word `modify' were given its limited meaning for all practical purposes the management would not be able to file an appeal with the result that the right given to it would become illusory and would stand negatived. Sometimes the word `modify' is used in the sense of enhancing also. If the word `modify' were given its limited meaning for all practical purposes the management would not be able to file an appeal with the result that the right given to it would become illusory and would stand negatived. Sometimes the word `modify' is used in the sense of enhancing also. In any case it appears to me that in the context in which the word is used it includes enhancement also. 9. Considering the context in which the word is used it can be given an enlarged meaning. There is good authority for the proposition that: "It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what commonsense would show as obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even in the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to `modify' the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided." See Shamrao v. District Magistrate's Thana, A.I.R. 1952 SC 324. See also Greg v. Pearson, (1857) 6 HLC 61 at 106, Narayana Swami v. Emperor, A.I.R. 1939 PC 47 and Salmon v. Duncombe, (1886) 11 AC 627 at page 634, which have been referred to by their Lordships of the Supreme Court. 10. Inasmuch as, if to the word `modify' an enlarged meaning is not given the ends of the Act would be defeated, it appears to me permissible, to depart from the ordinary meaning given to the word modify. The word `modify' can in some cases bear the meaning which I am giving to it, i.e. to include enhancement also, and in the present case in doing so it would not be the recasting of the section but only to properly interpret that word. In the case of W.I. Theatres v. Municipal Corporation, Poona, A.I.R. 1959 SC 586 the word `modify' was held to mean other alternatives also than those of reduction and even to enhance. In my opinion therefore, respondent No. 3 had the jurisdiction to pass the order that it did pass. In the case of W.I. Theatres v. Municipal Corporation, Poona, A.I.R. 1959 SC 586 the word `modify' was held to mean other alternatives also than those of reduction and even to enhance. In my opinion therefore, respondent No. 3 had the jurisdiction to pass the order that it did pass. 11. In coming to this conclusion have also been influenced by the consideration that normally the powers of the appellate authority are co-extensive with that of the original authority and if it is the intention of the legislature to restrict the powers of an appellate authority it says so in plain words. See Nagendra Nath v. Commissioner of Hills Divisions, A.I.R. 1958 SC 398. Even if the order had been erroneous on facts or improper, though it is not so in the present case, no writ could have been issued because the committee had the jurisdiction to pass the order that it did. See Parry & Co. Ltd. v. C. E. Association, A.I.R. 1952 SC 179. 12. No other point has been argued before me. The order of the Committee does not suffer from any defect of jurisdiction. 13. For the reasons mentioned above the petition is dismissed but there is no order as to costs.