Virendra Prosad v. UNION OF INDIA — 1986 DIGILAW 233 (CAL)

JUDGMENT 1. THIS writ petition is directed against the issuance of an order, of suspension as also a chargesheet against Regional Provident Fund Commissioner at Calcutta. The Chargesheet however is pertaining to happenings of 1978-79 when the petitioner was posted at Bombay in the same capacity. 2. APART from the plea of malafides and a perverse action based on non-existing facts, the petitioner contended that being a quasi-judicial authority the act complained of, can at best be recorded as an error of judgment and does not constitute a misconduct. The petitioner further contended that in any event, there has been a gross delay in initiating a proceeding against the petitioner and as such, the Writ court would not permit the continuation of a state proceedings. At. this juncture, it would however be convenient to narrate the charges leveled against the petitioner as appears from the Articles of Charge as below : "that Shri V. Prosad functioned as Regional Provident fund Commissioner at Bombay 'during the period 1978-79. That one of the duties of the said Shri V. Prosad was to levy damages to the various firms/companies etc. for having defaulted in payment of Provident Fund contribution. That the said V. Prosad was authorised to recover damages not exceeding the amount of arrears. If the party failed to pay the damages so levied, action for initiation of recovery proceedings could be taken under the law. That the said Shri V. Prosad ordered the reduction of damages ordered by him earlier on review being not based on proper and admissible grounds and prima facie was intended to confer the undue benefit on the defaulting parties listed below and corresponding loss to the Employees' Provident Fund Organisation. SI. No. Name of the Employee Previous levy Revised levy and date and date 1. Mukesh Textiles, Rs. 4,49, 593. 00 Rs. 1,0 8, 7 8 4. 30 colaba,bombay. 20. 7. 1978 2. 7. 1979 2. Jolly Bros., Rs. 53, 381,. 85 \ Rs. 28, 182. 10 p. M. Rd. Bombay. 17. 5. 1978 17. 8. 1979 3. Pentagon Engg. Rs. 72,0 61. 80 Rs. 36,504. 40 madhu Mukund, 2-6. 7. 1 978 18. 4. 1979 33,sion,bombay-2 2. . ' 3. BOMBAY Furnace, Rs. 39,406. 50 Rs,13,135. 50 -Stadium House, 19. 8. 1978 22. 10. 1979 nariman Road,. Bombay-20. . 85 \ Rs. 28, 182. 10 p. M. Rd. Bombay. 17. 5. 1978 17. 8. 1979 3. Pentagon Engg. Rs. 72,0 61. 80 Rs. 36,504. 40 madhu Mukund, 2-6. 7. 1 978 18. 4. 1979 33,sion,bombay-2 2. . ' 3. BOMBAY Furnace, Rs. 39,406. 50 Rs,13,135. 50 -Stadium House, 19. 8. 1978 22. 10. 1979 nariman Road,. Bombay-20. . That the said Shri V. Prosad while functioning, as aforesaid, committed grows misconduct and tailed to maintain absolute- integrity and devotion to, duty and acted in a manner unbecoming, of a servant of the Employees1 Provident Fund Organisation and thereby contravened Rule 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of the Central civil Services. (Conduct) Rules, 1964. "4. The relevant extracts of the statement of imputation of misconduct in support of Article of Charge are also set out herein below :-"that under Section 14b of the Employees' Provident funds and Miscellaneous Provisions Act, 1952, the Regional Provident Fund Commissioner has been authorised to recover the damages not exceeding the amount of arrears. As such, the Regional Provident Fund Commissioner while levying the damages conducts quasi-judicial proceedings. After issue of the final order, levying the damages if parties fail to pay the damages as levied, section is to be taken under Section 8 of the Employees" provident Fund Act for initiation of recovery proceedings, that besides the provisions made in the Act. there are departmental circulars, according to which the Regional provident Fund Commissioner was not allowed to review his own orders, except in the following circumstances. (a) Cases involving any clerical or arithmatical mistake apparent on the face of record but detected in the order subsequent to passing the same. (b) Cases where a levy under section 14b of the Act is made on exparte basis but subsequently it is brought to the notice of the employer that he did not receive the show cause notice issued:- to him or that having received it, he was prevented by sufficient cause from sending representation in writing/appearing before. the authority concerned on the date fixed. (c) Case where the defaulting employer has got any grievance against the order of the competent authority subsequently to show that order" was not in accordance with the provisions of the Act. the authority concerned on the date fixed. (c) Case where the defaulting employer has got any grievance against the order of the competent authority subsequently to show that order" was not in accordance with the provisions of the Act. That during enquiry it was found that the said Shri V. Prosad reduced the damage ordered earlier by him on review being not based on proper' and admissible grounds and prima facie intended to confer undue benefit on the defaulting parties and correspondent loss to the Employees' provident Fund Organisation. " 4. BEFORE dealing with the rival contentions, the issue as regards the power to review the orders passed by the Regional Povident Fund Commissioner under the Employees' Provident fund and Miscellaneous Provisions Act ought to be noticed. While it is true that there is no statutory provisions for review of the Commissioner's own orders, but admittedly such a review has been made permissible, under the various. administrative circulars and instructions. Reference may be made in this context to a Circular being No. FB/e/128 (2940) Dam/74 dated 24th October, 1974. Sub-paragraph (g) of the aforesaid circular is of some consequences in the matter and as such the same is set out herein below :-" (g) However, if the employer subsequently satisfied the Regional Commissioner that he did not receive the show cause notice, or otherwise shows good cause (emphasis supplied), the Regional Commissioner may reopen the case and afford hum an opportunity to adduce evidence against the levy of damages and the Regional Commissioner may pass fresh orders levying damages at such rates as deem fit cancelling the earlier orders after taking into account the evidence adduced by the defaulting establishment. In case the fresh orders issued by the regional Commissioner are at variance with the rates prescribed under the table, a copy of the fresh orders should be sent simultaneously to the Central Office (This procedure shall apply to old cases as well as those under the revised procedures. Mrs. In case the fresh orders issued by the regional Commissioner are at variance with the rates prescribed under the table, a copy of the fresh orders should be sent simultaneously to the Central Office (This procedure shall apply to old cases as well as those under the revised procedures. Mrs. Sanyal appearing for the respondent-authority strenuously contended that the words "otherwise show good cause" have to be read ejusdum generis and would include in its ambit such cause as may be akin to the non-receipt of the notice and as such, it was contended that the question of reopening of the matter can only take place where the employer is prevented from represent ting his case before the Commissioner for sufficient reason and the words "otherwise -show good cause" cannot be constructed to provide the power of general review as otherwise the administrative instruction will ultra vires the provisions of the Act of 1 952. It is only a procedural review which can, as Mrs. Sanyal contended, be embraced within the purview of the power to review under the above noted circular. In support of her contention Mrs. Sanyal strongly relied on the decision of the supreme Court in the case of Grindlays bank Ltd. vs. Central Government Industrial Tribunal and Ors., reported in 1981 LAB. I. e. 155. In that decision the Supreme court repelled the contention that the Tribunal had become functious officio and, therefore, had no jurisdiction to set aside the exparte award and the Central Government alone could set it aside. The Supreme Court however, observed:-"sub-section (3) of Section 20 of the Act provides that the proceedings before the Tribunal would be deemed to continue till the date on which the award becomes enforceable under Section 17a. Under Section 17a of the Act, an award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. The proceedings with regard to a reference under Section 10 of tile Act are, therefore, not deemed to be concluded until the expiry of 30 days from the publication of the award. Till then the tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17a. " 5. Till then the tribunal retains jurisdiction over the dispute referred to it for adjudication and upto that date it has the power to entertain an application in connection with such dispute. That stage is not reached till the award becomes enforceable under Section 17a. " 5. THE Supreme Court further observed: "there is no finality attached to an exparte award because it is always subject to its being set aside on sufficient cause being shown. The Tribunal had the power' to deal with an application, properly made before it for setting aside the ex parte award and pass suitable orders. " 6. IN. Grindlays Bank's case (supra) the Supreme Court while distinguishing the case of Narshi Thakershi vs. Pradyumansinghji reported in 1970 S. C. 1273 observed on the question of review as follows : "the expression 'review' Ls used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or tribunal to. set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense' that the court in Narshi Thakershi "s case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or tribunal. " Relying on the aforesaid decision Mrs. sanyal submitted that by reason of lack of power to review his own order under the statute, the review can only be affected for procedural reasons only but not otherwise. I am, however, unable to accept the contention of Mrs. Sanyal. The Supreme Court decision is clearly distinguishable on fact since the Administrative circular recorded that review or reopening of the order of damages can be effected on good cause being shown. Mrs. Sanyal 's submission that the words "otherwise show good cause" ought to be read 'ejusdum genesis' and would include in its ambit such cause as may be akin to "the non-receipt of the notice, cannot also be accepted. Mrs. Sanyal 's submission that the words "otherwise show good cause" ought to be read 'ejusdum genesis' and would include in its ambit such cause as may be akin to "the non-receipt of the notice, cannot also be accepted. Had it been so, then the words "or otherwise show good cause" would not have been included in the administrative circular dated 24th October 1975. The intent of the Authority is clear enough to indicate that review or reopening of the earlier order can be effected on two points both on procedural aspect as well as on merits. One of the golden rule of construction of documents is that a maker would not use an expression or expressions uselessly or carrying no meaning whatsoever. The golden rule prescribes that the maker of the document uses words to give a proper meaning to every word and proper meaning would be the ordinary-dictionary meaning of the words used. In that view of the matter the words "or otherwise show good cause" cannot, in my view, be read to mean cause akin to non-receipt of the notice, in the view I have taken, I need rot further deal with the case of Ratanlal vs. . RPFC reported in 1977 LAB. IC. 1765 or the case of Eastern Stoxes, Madras v. R. P. F. C. reported in 1 974 L.-A. B. I. C. 699. Suffice it to say that the same has no manner of application in the facts of the case under consideration. 7. COMING back to the statement of imputations at this stage, it would be convenient to deal with the submission of Mr. Mitra 'appearing for the petitioner that the subsequent orders of the Regional Provident Fund Commisioner cannot in any event-be termed to be a misconduct within the meaning of Rule 3 (1)of the Central Civil Services (Conduct) Rules, but at best an arror of judgment. On this score, Mr. Mitra placed very strong reliance on the decision of the Supreme Court in the case of Union of India and Ors. vs. J. Ahmed reported in AIR 1979 SC 1022 . In that decision the Supreme Court observed :-"it is however difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. vs. J. Ahmed reported in AIR 1979 SC 1022 . In that decision the Supreme Court observed :-"it is however difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating a developing situation may be negligence in discharge of duty, but would not constitute misconduct unless the consequences directly attributable' to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of raore harm than deliberate wickedness or malevolence But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule "3 of the Conduct Rules as would indicate lack of devotion to duty. " 8. THE Supreme Court however further observed that habitual negligence in performance of duty may not involve mensrea as held by the High Court, but may still constitute misconduct for disciplinary proceedings. The word "misconduct" is of very wide amplitude and meaning. "misconduct" in common parlance means bad conduct and some sort of an ill motive or bad motive is an essential ingredient in imputing misconduct on to an individual. In my view, mere error of judgment or a mere negligent way of dealing in the matter cannot by itself be termed to be misconduct. It must be coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication. Habitual acts of negligence however can be termed t be misconduct and gross negligence also falls within the sane category. In order to bring home the charge of misconduct in justification of nuisance of a chargesheet within the ratio of the Supreme Court decision in Ahmed's case (supra), Mrs. Habitual acts of negligence however can be termed t be misconduct and gross negligence also falls within the sane category. In order to bring home the charge of misconduct in justification of nuisance of a chargesheet within the ratio of the Supreme Court decision in Ahmed's case (supra), Mrs. Sanyal submitted that the past conduct of the petitioner was also blameworthy by reason where for disciplinary proceedings have had to be initiated against the petitioner, but I am afraid by reason of the order of the Bombay High Court in quashing the disciplinary proceedings, the same cannot be taken into consideration at this stage. It is however pertinent to note here that full, text of the judgment was not made available to this Court but only the factum of dismissal of. disciplinary proceedings against the petitioner by the High 'court at Bombay. In the premises, I refrain myself from dealing with the matter in detail. Suffice it to say here that the earlier acts of misconduct, if any, by reason of the Bombay high Court decision cannot and ought not to be taken into account for the purpose of evidencing or bringing home the charge of misconduct against the petitioner as an act of habitual negligence in performance of duty. 9. IT will thus have to be seen whether the acts complained of can be said to be of such a nature as to be categorised as a misconduct justifying the issuance of a chargesheet against the petitioner from the articles of charge framed against the petitioner, it appears that the petitioner on four diverse occasions in the year 1978 passed Certain orders' as against-four different organisations and subsequently between _july 1979 and October 1979 the aforesaid four orders were reviewed and quantum of damages was reduced substantially varrying between 33% to 50% approximately. It is to be noticed at this juncture however that in one such case referred to in the charge, the party concerned applied before the Central Board for a review of the order and the Central Board in its turn remitted the matter to the petitioner for appropriate action in the case and the petitioner in his turn dealt with the matter and passed orders reducing the quantum of damages within the percentage noted above. Three other organisations subsequently made application for [review directly to the petitioner and upon hearing as appears from records, the matters were disposed of by way of reduction of the quantum of damages. The chargesheet records that the petitioner"reduced the damage ordered earlier by him on review being not based on proper and admissible grounds and prima facie intended to confer undue benefit on defaulting parties and corresponding Loss to the Employees' Provident Fund Organisation. " 10. IN the view I have taken: as regards the power of review as noted earlier, it will have to be seen therefore as to whether in any event undue benefit has been given to the defaulting parties resulting thereby a corresponding loss to the Provident Fund Organisation. Through the Circular No. FP/e. 128 (294)Dam/74 dated 29th december, 1976 it has been made known to all Regional Provident fund Commissioners and Asst. Commissioners that for the purpose of provision for levying damages under section 14b of the act, the following clarification ought to be noted :-"in certain cases, this office had advised some Regional provident Fund Commissioners to review the matter of levy of damages and to restrict the amount of damages to the loss to the Fund by way of interest. It may be clarified that the term 'loss of interest of the fund' evidently means the amount of interest which the Fund would have earned, had the amounts been remitted in time by the employers, but which income by way of interest has been lost by the fund on account of the belated remittances. The rate of such interest would be that which the investments would have fetched, had the employers remitted the statutory dues in time into the fund and had the Employees' Provident Fund Organisation invested these Provident Fund % mounts in time, that is at 10% per annum for the relevant: period of delay. If the delay is for more than six months, this rate should be calculated at half yearly interests, compound rate. " 11. THE Circular No. FP/e128 (294) Dam,/74 provided the detailed procedure for levy of penal damages and also enclosing therewith the standard table for the levy of damages to be adopted by the appropriate authority for the defaults subsequent to 31st October, 1973. " 11. THE Circular No. FP/e128 (294) Dam,/74 provided the detailed procedure for levy of penal damages and also enclosing therewith the standard table for the levy of damages to be adopted by the appropriate authority for the defaults subsequent to 31st October, 1973. The table enclosed with the Notification provides that in the event of default of payment over two months: and upto three months, damages ought to be levied for the first default at the rate of 10% and for second to twelfth defaults, on a gratrated scale for the same period, from 15% to 65%. Admittedly, the revised levy was at a much higher rate than 10% as was prescribed under the circulars noted above; whereas, for Mahesh Textiles loss of interest @ 10% amounts to Rs. 32 796. 90 the revised levy was to the extent of Rs. 108784. 30. For Jolly Brothers, another organisation on whom undue favour was said to be shown, loss of interest was Rs. 5720. 71, the revised levy was to the extent of Rs. 2 8182. 10 for Pentagon Engineering the loss of interest was Rs. 8150. 06, the revised levy being Rs. 1650 4. 40 and for Bombay Furnace loss of interest at the rate of 10% amounted to Rs. 547 1. 3 1 but the revised levy was Rs. 13135. 50. It is to be noted at this juncture that apart from the defaults noted above there was no further default so as to attract the gratuated scale of penalty noted in the above referred circular. 12. THE question, therefore, now to be considered is whether from the narration of the facts as above is whether the petitioner can be said to be guilty of the misconduct contrary to the rules or the conditions' of the service. Is it blameworthy to such an extent so as to suffer the consequences of a charge and an order of suspension or can it be termed to be exercise of discretion in the exercise of quasi-judicial powers ? In my view, in the facts and circumstances of the case under consideration, the conduct cannot be termed to be so blameworthy as to warrant a chargesheet and an order of suspension. In my view, in the facts and circumstances of the case under consideration, the conduct cannot be termed to be so blameworthy as to warrant a chargesheet and an order of suspension. While, it is true that an employee conducting himself in a way inconsistent with due and faithful discharge of his duty in service may be said to be guilty of misconduct but the facts indicate otherwise in the case under consideration. The test seems to be whether it is unsafe for employer to keep him in his employment or whether the servant's conduct is so grossly immoral that all reasonable man would say that he cannot be trusted. If the answer is in the affirmative, there ought not to be any hesitation in regard to the initiation of any disciplinary proceedings and the Law Courts ought not to interfere therewith. This view finds support from the observation of Lord Esher M. R. in the case of Pierce vs. Foster reported in (1886) 17 QBD 536. The other aspect of the matter ought also to be noted. The petitioner being the quasijudicial authority having had reasons to review his earlier order on the application of the aforesaid four parties used his discretion not inconsistent with the standards by which he professes his action and the respondent authority, as is contended by Mr. Mitra for the petitioner, have issued the chargesheet on mere suspicion. I find considerable force in the submission of Mr. Mitra, as there ought to be some evidence on record culminating in the issuance of a charge-sheet. Mere user of discretion resulting in the reduction in' the penalty under Section 14b of the act of 1952 for reasons recorded in writing cannot arm the authority to issue a charge-sheet or an order of suspension without any evidence or any cogent evidence on record. Nothing has been produced before this Court to suggest even that there is any such evidence against the petitioner. Mere suspicion would not be enough, but there must be some cogent evidence or at least prima -facie evidence to foist the liability on to the petitioner, without which a disciplinary proceeding is liable to denigrate into a weapon of harassment. The evidence on record, which was placed before the Court at the time of hearing, does not satisfy such a test. 13. The evidence on record, which was placed before the Court at the time of hearing, does not satisfy such a test. 13. IN that view of the matter, I am of the view that there existed no evidence or at least no sufficient evidence for the issuance of charge-sheet against the petitioner. There must be a reasonable nexius and the evidence ought not to be too remote to foist the liability on to the petitioner. This view however finds support from the decision of this court in the case of Samarendxa Narayan Ghosh v. State of west Bengal reported in 1984 (1) C. L. J. 56. 14. ADMITTEDLY, the quantum of penalty imposed by the petitioner after the review application falls above the standard prescribed under the circular issued by the proper authority for the guidance of the Regional Provider1: Fund Commissioner. The amendment to the statute entitling the Regional Provident fund Commissioners to levy damages upto the 100% of the quantum- of default however was incorporated in the statute after the acts of misconduct complained of against the petitioner. As such, strictly speaking, there cannot be, any infraction of the staturory provisions or of any administrative circular in so far as the conduct of the writ petitioner is concerned. In the view I have taken, I need not deal with the other contentions raised by Mr. Mitra, viz. (i) charges are stale in nature; (ii) charge-sheet is biased, and (iii) Quasi judicial decision cannot be subjected to Executive and Administrative scrutiny. But a judicial conscience dictate a brief reference to the same since elaborate submissions have been made by both the parties. 15. TURNING on to the last contention first I am unable to accept the contention of- Mr. Mitra that at no stage decisions of the quasi-judicial authority can be subjected to administrative scrutiny. Such a broad proposition, in my view, would lead to a social disaster in the event of there being a corrupt officer. As regards the contention of stale charges, I find that there is some substance in Mr. Mitra's contention. No sufficient evidence has been produced before this Court to justify initiation of a disciplinary proceeding in the year 1985 as against an offence said to have been committed in the year 1978-79. As regards the contention of stale charges, I find that there is some substance in Mr. Mitra's contention. No sufficient evidence has been produced before this Court to justify initiation of a disciplinary proceeding in the year 1985 as against an offence said to have been committed in the year 1978-79. There is no evidence available on record as to when the information was given to the Central Bureau of Investigation for the first time and it is only on 15th" february 1985 that C. B. I, has informed the disciplinary authority about the offence. Simply by saying that a detailed procedure has been involved in the matter as has been contended by Mrs. Sanyal appearing for the respondent-authority, in my view, would not explain the delay. Regarding the contention of biased charge-sheet, I am of the view that no proper evidence has been adduced for such a complaint against the petitioner. 16. ANOTHER interesting issue has also crept in the matter under consideration. The Administrative Tribunals Act, 1985 has come into effect on and since 1st of November 1985 under within High Court's power in entertaining writ petitions as regards service matters pertaining to certain specified heads has said to have been curtailed and the powers have been conferred on to the Administrative Tribunal in terms of Section 14 of the Act of 1985. Section 29 of the Act has provided that suits or other proceedings pending before the Court or other authority immediately before the date of establishment of a Tribunal under the Act shall stand transferred on that date to such Tribunal. Section 29 (4) (b) provides as follows "the Tribunal may, on receipt of such records,- proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an application under Section 19 from the stage which was reached before such transfer or from any earlier " stage or de novo as the Tribunal may deem fit. " The instant writ petition was moved before this Court on 7th March 1 986 and this Court upon consideration of the facts t ho tight it fit not to pass any ad-interim order excepting an order for inspection, but to. " The instant writ petition was moved before this Court on 7th March 1 986 and this Court upon consideration of the facts t ho tight it fit not to pass any ad-interim order excepting an order for inspection, but to. dispose of the matter expeditiously and as such, directions for filing affidavits were given after completion of the inspection and the affidavits, the hearing commenced and more or less completed on 7th May 1986. On that date the parties expressed a desire to file their written notes of arguments and this Court granted time till 19th of May 1986. When the matter was called on for hearing on l'9th May, it was brought to the notice of this Court by the respondent authority that by reason of a Notification dated 12th May 1 986 issued by the central Government under tire Administrative Tribunals Act, 1984, the High Court ought not to deal with the matter any further and the matter ought, to be sent back to the Tribunal for being dealt with before the Tribunal. 17. MR. Anindya. Mitra however strenuously disproved the same and contended that the word "pending. " as given in the context of other Acts are no guide for ascertaining the meaning of the word "pending" under Administrative Tribunals act, 1985. Mr. Mitra submitted that pending proceedings within the meaning of the Act of 1985 cannot mean the proceedings, hearing of which has been concluded since Section 29 (4) (b) indicates that the Tribunal would have the option in respect of the transferred proceedings to proceed from the stage which was reached before such transfer. The expression "as the case may be" has not been used at the end of Section 29 (4) (b) and as; such Mr. Mitra contended that the proceedings to be transferred must be such as would give the Tribunal the option to proceed with the matter from the stage reached before the transfer and the case of which hearing has been concluded is not therefore, contemplated under Section 2 9 and is not intended to be transferred to the Tribunal. Tribunal cannot deliver the judgment in which hearing has been concluded before the High Court. 18. MR. Mitra submitted that a proceeding under Article 226. is not covered by the Act of 1985. Tribunal cannot deliver the judgment in which hearing has been concluded before the High Court. 18. MR. Mitra submitted that a proceeding under Article 226. is not covered by the Act of 1985. No jurisdiction to hear petitions under article 226 of the Constitution has been conferred on the Administrative Tribunal. Such jurisdiction cannot be conferred by a statute but can only be conferred by the Constitution of ' India. There is no amendment of article 226 of the Constitution of India which High Court alone can entertain applications under' article 226 and Article 323a does not confer" jurisdiction upon the Tribunal to hear applications under Article 226 or under Article 32 of the Constitution of India. . It was submitted that suits and proceedings under the Act of 1985 do not cover petitions under Article 226. Mr. Mitra further contended that the ouster of jurisdiction must be in express and clear terms. The presumption is against ouster of jurisdiction of courts. Ouster of jurisdiction of the High Court in writ matters cannot be implied from the Act of 1 985 particularly when the. Administrative Tribunal has not been conferred with any jurisdiction to hear matters under Article 22 6 of under article 32. The crux of the problem, therefore, is can as to the meaning of the expression "pending" appearing in section 29 of the Act of 1985. The word "pending" in common English parlance mean and imply "not concluded. " Section 2 9 envisages that in a proceeding or suit as envisaged under section 29 of the Act. of 1985, suit or proceeding not concluded before the Court ought to be transferred to the Tribunal and in terms of Section 29 (4) (b) the Tribunal has the authority to proceed to deal with the. matter from the stage which reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit. 19. MRS. Sanyal appearing for the authority submitted that since the Tribunal has the power to hear the matter de novo 'and since section 29 has used "shall stand transferred", question of retaining further jurisdiction in the matter by this Court does not and cannot arise and the only course left open is to send the matter to the Tribunal for disposal in accordance with the provisions of the Act of 1985. It is true that normally expressions used by the Legislature ought to be given effect to without any variation and as such, the word "shall" appearing in section 29 in the normal circumstances ought to be read as "mandatory. " but there are numerous occasions when the Law Courts have interpreted "shall" as merely directory in nature and not mandatory and it is the duty of the Court while interpreting the expressions like "shall", "may", "should" and "must" to ascertain the intention of the Legislature. The word "shall" has been construed to mean may in various decisions on the basis of the 'legislative intent and" the proposition is so well accepted that I need not dilate in the matter any further. It. is, therefore, to be seen as to whether the word "shall" would be given a mandatory meaning or a directory meaning in accordance with the wishes of the Legislature in the facts of this case. Hearing for all practical purposes was concluded on 7th of May, 1986, but at the insistence of the party for the purpose of submissions of written notes, no judgment could be pronounced and it is at this stage that the Notification in issue has been introduced by the Central Government. 3n this context, the statements of objects and reasons of the - Act of 1 985 is to be noted. The statements of objects and reasons provided that the establishment of Administrative Tribunal under the provisions of the Statute has become necessary, since a. large number of cases relating to service matters are pending before the various Courts. The objects provide that it is expected that the setting up of such an Administrative Tribunal to deal exclusively with service matters would go a long way in not only reducing the burden of various courts and thereby giving them more time to deal with other cases expeditiously, but in also providing to the persons covered by the Administrative Tribunal speedy relief in respect of their grievances. It, therefore, appears that the -basic objects of the legislature was to reduce the pressure of work of the High court "so as to give more time to the other matters and to provide a speedy relief to the persons in respect of their grievances. It, therefore, appears that the -basic objects of the legislature was to reduce the pressure of work of the High court "so as to give more time to the other matters and to provide a speedy relief to the persons in respect of their grievances. When the High Court has heard the matter in detail for a number of days and oral submissions were concluded and the matter was kept pending only for the purpose of submissions of written notes, can it be said that twin objectives of the statute as noted above be achieved by remitting the matter to the Tribunal at this stage? Since neither Court's time would be saved nor speedy justice can be achieved by the petitioner in respect of his grievances. In my view, the answer ought to be in the negative. A de novo hearing in the matter before the Tribunal that the matter be dealt with utmost expedition cannot said to be beneficial or bring speedy relief to the person. Strict literal interpretation in a Social Welfare Legislation ought to be avoided in the event the legislative intent show a contra trend. This view finds support from the decision of the Supreme Court in the case of Workmen v. American express International Banking Corporation reported in 1985 (4)SCC 71 . In that decision the Supreme Court observed :-"the principles of statutory construction are well, settled. Words occur-mg in statutes of liberal import such as social welfare- legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian! dimensions. In construing these legislations the imposture of literal construetion must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the 'colour', the content' and the 'context. ' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn vs. Simmonds. In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, insolated from the-matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. " 20. In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, insolated from the-matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. " 20. IN a very recent decision of the Supreme Court in the case of Bharat Singh vs. Management of New Delhi Tuberculosis Centre reported in AIR 1986 SC 842 similar observations have been echoed by the Supreme Court. In the last cited decision the Supreme Court observed : "in interpretation of statutes, Courts have steered clear of the rigid stand of, looking into the words of the Section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts. " Lord Denning's observation in the case of Seafood court Estates Ltd. vs. Asher (1 9492 KB 481 seems to be very opposite in this context. 21. ANOTHER aspect of the matter ought also to be considered to the effect that, after tine completion of the submissions, the matter is to be dealt with by the Court and no affection of rights can said! to be effected during the period when the matter is pending judgment before this Court. The Code of Civil Procedure though in terms has no manner of application in writ proceedings, but lends a guiding factor in a situation like this having regard to the provisions of Order 22 Rule 6. 22. THE word. "pending" in any event has received some amount of consideration by various ' High Courts and the Supreme Court. The English Courts have also considered the matter in great length. In re : Claggate Estate : Fordham vs. Glaggate (1882) Jessel M. observed that a pending matter in any Court of Justice means one in which some proceeding may still be taken. Relying on the above observations the Supreme Court in the ease; of Ajgar Ali Nazar Ali Singaporewala vs. State of Bombay observed that the case of the appellant was not concluded and the matter was pending before the learned Presidency Magistrate at the date of commencement of the impugned Act. Relying on the above observations the Supreme Court in the ease; of Ajgar Ali Nazar Ali Singaporewala vs. State of Bombay observed that the case of the appellant was not concluded and the matter was pending before the learned Presidency Magistrate at the date of commencement of the impugned Act. From the facts it appears that a case relating to an offence mentioned in section 6 (1) was triable exclusively by 1"he Special Judge was pending before a Presidency Magistrate on 2 8th July, 1952, the date of the commencement of the Act. No Special. Judge however, was appointed by the State Government till 26th of September, 1952. The only thing which remained to be done thereafter was the pronouncement of the judgment of the Presidency Magistrate who had continued with the proceedings before him. On 28th july, 1952 the prosecution had closed its case and the accused had not yet called upon to enter upon his defence. The examination of the accused persons under Section 342 of the Code of Criminal Procedure took place after that date. The accused filed his written statement on 14. 8. 1952 and the addresses by, the prosecution as well as the defence continued right upto 26th September, 1952; on those facts, the Supreme Court came to a conclusion that the matter was pending before the Court on the date of commencement of the Act. But the said decision is of no assistance to Mrs. Sanyal who have very strongly relied, upon the same inasmuch as the facts are completely different; whereas, in the case noted above, quite a number of steps have been taken after the commencement of the Act, hut in the case under consideration question of taking any further steps would not arise. Apart from final pronouncement of the judgment, nothing remained in the matter which can be said to be dealt with by this Court. In that view of the matter, I am unable to accept the contention of the respondent-authority that the High court has lost jurisdiction to entertain the matter any further. 23. IN the view I have taken, I need not go into the question as raised by Mr. In that view of the matter, I am unable to accept the contention of the respondent-authority that the High court has lost jurisdiction to entertain the matter any further. 23. IN the view I have taken, I need not go into the question as raised by Mr. Mitra that inspite of the statutory provisions as contended in the Administrative Tribunals act, 1985 having due regard to the provisions of Article 323a of the Constitution, the High Court still retains the jurisdiction in regard to the service matters for the purpose of issuance of appropriate writ or writs, more so by reason of the fact that the matter in issue does not call for any decision in that regard. 24. IN the result, this writ petition succeeds. The Charge-sheet and the Order of Suspensions are set aside and quashed. The period under suspension be treated as leave with pay. Petition allowed.