P L D 1964 Dacca 671 (PLP)

CHOWDHURY, C. J.‑These two petitions under Article 98 of the Constitution are by the same petitioner. The Petition No. 417 of 1963 is against the order dated 14‑10‑63 suspending the petitioner from his service as preliminary to the departmental proceedings drawn against him and the other Petition No. 426 of 1963 is against the proceedings drawn up against him for inefficiency, mal‑practice, disobedience and misconduct. Both the actions have been taken by the Board of Trustees, Dacca Improvement Trust, hereinafter referred to as D. I. T. in pursu ance of the resolution of the Board dated 8‑10‑63, which runs as follows:-- "The Board discussed in detail the letter received from the Local Government, Government of East Pakistan, regarding actions to be taken against Mr. Noman, Chief Engineer, D. I. T. In view of the resolution taken by the Board of Trustees at their meeting held on 1‑8‑63 and also of the report of the Chairman placed before the Board, the Board was fully con vinced that a prima facie case has been made out against Mr. M. Noman, Chief Engineer, D. I. T. for his inefficiency, mal practice, disobedience and miscoc duct. The Board further resolved that in the best interest of the D. I. T. Mr. M. Noman, C. E., D. I. T. be suspended with immediate effect. Formal proceedings on the aforesaid charges be drawn against Mr. Noman immediately for taking further action. The Board further resolved that Mr. Noman be directed to hand over charges to an officer whom the Chairman thinks fit." In the first petition the petitioner prays for declaration that the resolution dated 8‑10‑63 by the respondents and the other dated 14‑10‑63 suspending the petitioner in pursuance of that resolution are without lawful authority and of no legal effect. In the second petition the petitioner prays for a declaration that the proceedings drawn and the charges framed in pursuance of the resolution dated 8‑10‑63 by the Board of Trustees are without lawful authority and of no legal effect. The petitioner obtained rule in both the petitions. As both the petitions involve common question of law and facts, we have taken up both the petitions for hearing simultane ously and dispose of by one and the same judgment. Mr. Khondkar, the learned Advocate for the petitioner, raised the following questions for determination in both the rules :‑

(1) That the order of suspension and the proceedings drawn against the petitioner are orders under section 34 of the Town Improvement Act, and under section 35(c) of the Act they are subject to the previous sanction of the Provincial Govern ment but no such sanction having been obtained, those orders are bad and without lawful authority ; (2) that, at any rate, section 34 contemplates rules subject to which the power under section 34 is to be exercised and that in the absence of any such rules framed under section 102 regulating the conditions of service of the employees, the Board of Trustees is not competent either to pass any order of suspension or to draw up proceedings against the petitioner ; (3) that the action taken against the petitioner are mala fide ; and (4) that the meeting in which the resolution is said to have been passed was no meeting according to law for defect of notice as well as for want of quorum. I am taking up the last point first for consideration as it goes to the root of the matter. Under section 2 (b) "Board" means the Board of Trustees constituted under section 4 of the Act (The Town Improvement Act.) Under section 2 (m) "Trustee" means a member of the Board. Under section 4, the Board shall consist of 9 trustees as mentioned in that section ; but under section 9, if the provision of the Act is extended to Narayanganj Municipality, the number of trustees of the Board shall be increased by two as mentioned in that section and in that case the number of trustees will be eleven. Section 19 provides different period for different trustees. Section 20 (1) (d) provides that no business shall be trans acted at any meeting unless at least half the member of the trustees then in office, are present from the beginning to the end of the meeting. Section 20 (1) (a) and (b) provides that an ordinary meeting shall be held at least once a month and the Chairman may, whenever he thinks fit, call a special meeting. From the proceedings of the meeting in which the resolution was passed, it appears that there were five trustees present includ ing the Chairman. Mr. N. Ruda, a member of the Board of Trustees, was nominated on 30‑11‑59 and his term of three years expired on 30‑11‑62 and since then he ceased to be a member of the Board. Then there remains ten members out of which, half the number, i.e., five members were present, including the Chairman. It also appears that three new members were nominated in place of the three out‑going members. They are K. B. Jasimuddin, Mvi. Mollah Abdul Majid and Khondkar Mahbub Hussain, vide Notification No. S‑VII/IT‑4/63/1099, dated 3rd October 1963, published in the Dacca Gazette, dated October 10, 1963 that is, after the date of the meeting on 8‑10‑

63. So the notice of the meeting could not have been served on them. The outgoing members on whom notice of the meeting was served could not attend as they ceased to be members. Excluding those three outgoing members, there remains only 7 members of the Board and out of these seven, five attended the meeting as it appears from the proceedings of the meeting held on 8‑10‑

63. Further section 173 of the Act provides that no act done or any proceeding taken under the Act shall be questioned on the ground of (e) any omission, defect, or irregularity not affecting the merit of the case. It is then contended by the learned Advocate for the petitioner that the Chairman, who is the whole‑time permanent officer, is not a trustee. That is not correct, as the Constitution of the Board in section 4 read with the definition of the Board in section 2 (b) and section 19 of the Act shows. Therefore, there is no defect in the meeting in which the resolution was passed either on account of the lack of quorum or for defect of notice. It is said that the proceeding of the meeting held on 1‑8 63 was not confirmed in the subsequent meeting, but the proceeding of the meeting on 10‑8‑63 shows that the members present confirmed it. Now coming to the first point, with reference to the proceedings drawn against the petitioner, it is not correct to say that it is an order under section 34 of the Act, to come within "All orders passed by the Board under section 34" in section 35(c), because orders under section 34 must relate to appointment, promotion etc. of the employees of the Board and of censuring, fining, withholding promotion, reducing, suspending or dismissing them. The order for drawing up proceedings is not such an order, though it is a step‑in‑aid to the punishment, but by itself is not a punishment. Even if it is considered a sort of punishment in a very broad sense, it is excepted "except orders granting leave to or imposing punishment" in section 35 (c), to be subject to the previous sanction of the Provincial Government. The same consideration will apply in respect of suspension also. The word "suspension" finds place in section 34 of the Act, but that is by way of punishment after departmental proceedings, if any, and not suspension as preliminary to and for facilitating the departmental proceeding. Even if it is punishment in a broad sense of the term, then also it comes under the exception to section 35 (c) of the Act. It is then contended that if it is not a punishment to come under section 34 of the Act, then, the Board has no power to pass an order suspending the petitioner from service in the absence of any law or rule having the force of law. We are unable to accept this contention as correct. In the absence of any rule the power to appoint carries with it the power of suspension. This principle has been accepted by the Supreme Court of India in Kapur's Appeal, reported in "The Statesman" dated 20‑11‑63 filed by the learned Advocate for the petitioner along with an application for acceptance of the report in this case. In this report it is held "On general principles the authority entitled to appoint a public servant would be entitled to suspend him pending a criminal proceeding. This power which .was available to a master in the general law of master and servant could also be exercised by the Secretary of State as the appointing authority." In the present case there is no dispute that the Board of Trustees is the appointing authority which has appointed the petitioner. So, as an appointing authority, it can suspend him as a preliminary departmental proceedings. Now coming to the second point, namely, that, at any rate, section 34 contemplates rules subject to which the power under section 34 is to be exercised and in the absence of any such rules framed under section 102 relating to the conditions of service of the employees of the Board, the Board of Trustees is not competent either to pass an order of suspension or of drawing proceedings against the petitioner ; there are several sections in the Act giving rule‑making power to the Board as well as to that Provincial Government of which section 102 of the Act is most material for our purpose. Section 102 provides that "the Provincial Government may make rules, not inconsistent with the provisions of the Act, in particular, the Provincial Government may make rules for all or any of the following matters, namely, (e) the conditions on which the employees of the Board or of the Tribunal may be appointed, reduced, suspended, dis charged, removed, dismissed or otherwise punished." It is not disputed or denied that no such rules have been framed by the Provincial Government nor the Government Service Rules have been made applicable to the employees of D.

1. T. by notification. Section 34, while giving power of appointment and punishment, subjected it to "any rules for the time being in force." Now the question is whether in the absence of any such rules, the employees of the Board can be punished or any proceedings for that purpose can be drawn up ; and if they can, then, what is the procedure to be followed for the purpose. Mr. Hamidul Huq Chowdhury, the learned Advocate for the respondents, contends that the power of appointment carries with it the power of punishment and in the absence of any rule, the rule of natural justice is to be followed. This contention of Mr. Chowdhury overlooks that there is a specific provision in the Act providing for making rules relating to the condition of service of the Board's employees in section 102 of the Act. Had there been no such rule‑making provision in the Act under which the employees are appointed, then, the contention of Mr. Chowdhury might have some force. Mr. Chowdhury's contention is that the rule‑making provisions in section 102 are only enabling provisions and the Provincial Government may or may not make rules and that if rules are made then those rules are to be followed and in the absence of any such rules, the rule of natural justice has to be followed and it has been followed in this case by giving the petitioner opportunity to defend himself against the charges framed against him. This contention of Mr. Chowdhury leads us to see if the rule‑making provisions of the Act are mere directory or mandatory. It is no doubt true that the words used are "The Provincial Government may make rules" and "may make rules for all or any of the following matters" including the condition on which the employees of the Board may be appointed or punished in section 102 (e). These proposed rules relate to the rights, privileges and liabilities of the Board's employees. These rights and liabilities, as the scheme of the Act shows, are not intended to be left to the whims of their employer. Section 155 of the Act shows that if any rule Is framed under section 102, it shall be published by the Provincial Government by notification and such publication shall be conclusive proof that the rule has been duly made. Section 2(i) says "Notification means notification published in the official Gazette." Section 34 provides that the power of appointing and punishing shall be subject to any rules for the time being in force. What follows then is no rule no power‑one presupposing the other. Then it is contended by Mr. Chowdhury for the respon dents that in that case the appointment of the petitioner is also not valid in the absence of any rule. But sections 32 and 33 and some other sections of the Act give power also to the Board to frame rules. Section 102 speaks of the rules relating to the condition of service to be made by the Government and not the power of appointment which has been made under the rules framed by the Board under the rule‑making power of the Board. Therefore, what follows from the whole scheme of the Act and its aim and purpose and the various provisions of the Act is that the rules contemplated in section 102 are rules relating to the rights and privileges of the employees of the Board and the power of making rules relating to the condition of service given to the Government is an obligatory one though couched in the word "may" which means "must". I am fortified in my view by the decision of the House of Lords in the case of Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford (5 A C 214) where the Lord Chancellor (Earl Cairns) with reference to the enabling words used in a statute, at page 222‑223 of the report observed "But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power Is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." and at page 225 of the report, quoted with approval what Mr. Justice Coleridge has said in Reg v. Tithe Commissioners (14 Q B 459) which runs as follows: "The words undoubtedly are only empowering but it has been so often decided as to have become an axiom that in public statute words only directory, promissory or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice." Then the Lord Chancellor at the same page of the report commented: "The only axiom Mr. Justice Coleridge spoke of was, that, under certain circumstances, enabling words might have a compulsory force." With this view of the Lord Chancellor, the other Lords in the case agreed. Lord Penzance after reviewing cases on the point observed at page 231 of the report: "In all these instances the Courts decided that the power conferred was one which was intended by the Legislature to be exercised ; and that although the statute in terms had only conferred a power, the circumstances were such as to create a duty." Lord Blackburn after considering what Mr. Justice Coleridge has really said in the case of Reg v. Tithe Commissioners, observed at page 244 of the report :‑

"The only part of this to which objection can be taken is the use of the `public' ; if by that it is to be understood either that enabling words are always compulsory where the public are concerned or are never compulsory except where the public are concerned, I do not think either was meant. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right." Though that case relates to the interpretation of the words "it shall be lawful for the Bishop of the diocese in section 3 of the Church. Discipline Act, the principle of interpretation laid down in that case seems to be of universal application. It is the leading case on the point and followed both in England and in undivided India. I do not feel necessary to refer to and discuss those cases here nor do I think it necessary to refer to and discuss other reported cases cited at the Bar as they are not exactly on the point. So, I am of opinion that in the absence of any rules framed by the Provincial Government under section 102 and notified under section 155 of the Act, the Board has got no power to draw departmental proceedings against the petitioner or to framing any charge against him, though I have pointed out that the Board as the appointing authority has got the power of suspending the petitioner from service preliminary to or pending the departmental proceeding to facilitate the proceeding. If the departmental proceedings drawn against the petitioner cannot be sustained for want of rule to be made by the Provincial Government, the order of suspension preliminary to that proceeding cannot be maintained for indefinite period in the absence of lawful proceeding started or to be started. There remains one other point raised by the learned Advocate for the petitioner, namely, that the action taken against the petitioner was mala fide. The sum and substance of this ground, as stated in the petition (vide paragraphs 7 to 13), is that after the publication in "The Azad" newspaper about some alleged mal‑administration in the affairs of the D. I. T. the Chairman of the D. I. T. suspected the petitioner for that publication and since then he has become vindictive against the petitioner and as such he has resorted to all mala fide actions against the petitioner culminating into the suspension of the petitioner from his service and the drawing of the proceedings against him. On the other hand, it appears both from the petition of the petitioner (vide paragraphs 4 to 6) and from the affidavit‑in‑opposition filed by the respondents in the case that the Board of trustees and its Chairmen were taking actions in the day to day administration of the affairs of the Board and also against the petitioner for his inefficiency, misconduct, mismanagement and disobedience from before. These actions taken by the Chairman of the Board can be attributed to him as action taken by the Chief Executive Officer of the Board in course of the discharge of his duties for proper administration of the affairs of the Board and the action taken by the Board of Trustees against the petitioner, before and after the alleged publication in the newspaper "The Azad", culminating into the suspension of the petitioner may also be justified from that point of view. Be that as it may, we do not like to express any opinion on that point as it requires investiga tion into facts. The result, therefore, is that both the rules are made absolute against the respondents, but as against the respondent No. 2 in his capacity as Chairman of the Board, and we declare that the proceedings drawn against the petitioner are bad in law and of no legal effect and that the order of suspension of the petitioner from service is inoperative: As both the petitions succeeded on a technical ground of want of rules to be framed by the Provincial Government under section 102 of the Town Improvement Act, we do not propose to pass any order as to costs in any of these petitions. M. R. KHAN, J.‑In this case several points of law have been raised. I would give my own views on those points. Mr. M. H. Khandkar, learned Advocate for the petitioner submits that if the order suspending the petitioner pending a departmental enquiry is not a punishment, then, that order is illegal and of no legal effect, the same not having been made with the previous sanction of the Provincial Government as required by clause (c) of section 35 of the Town Improvement Act, 1953 (hereinafter called the Act). His alternative contention is that if the interim suspension is a punishment, the order is equally bad in law and of no legal effect, the same having been imposed on the petitioner without giving him any opportunity of being heard. On the other hand, Mr. Hamidul Huq Chowdhury, learned Advocate for the respondents, submits that if the interim suspen sion is a punishment, previous sanction of the Provincial Govern ment is not necessary in view of the express exception made by clause (c) of section 35 in respect of punishment. He, however, contends that an order of suspension pending depart mental enquiry is only a preliminary step towards inquiry into the charges against the person proceeded against and is not a punishment and that an order of this kind is not one under section 34 and, as such, previous sanction of the Provincial Government is not required under clause (c) of section 35 before making such an order. Before proceeding to examine the provisions of clause (c) of section 35 of the Act, it is, therefore, necessary to consider whether the order of suspension pending a departmental enquiry is or is not a punishment. Suspension pending a departmental enquiry is a step taken with a view to keeping the delinquent out of office till the passing of a final order on the completion of the inquiry into the charges levelled against him. An order of suspension is generally made in a case where the compe tent authority, in view of the gravity of the charges considers that in the interest of the enquiry, the delinquent should be debarred from further function in the office and from retaining his position till the completion of the enquiry. Thus, an order of suspension pending a departmental enquiry is essentially an interim measure and is made in the interest of the enquiry itself. The case of Hemanta Kumar Bhattacharjee v. S N. Mukherjee (58 C W N 1) which has been cited by Mr. Khandkar, gives the meaning of suspension as follows: "According to the Oxford Dictionary, `suspension' means action of debarring or state of being debarred, specially for a time, from a function or privilege ; temporary deprivation of one's office or position or again, state of being temporarily kept from doing or deprived of something. Similarly, to `suspend' means to debar, usually for a time, from the exercise of a function or a privilege : specially to deprive (temporarily) of one's office ; or again to interdict. "Suspended" means temporarily deprived of office, position or privilege, or again intermitted. Thus the basic idea underlying the root word `suspend' and all its derivatives is that a person, while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. He is intercepted in the exercise of the functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges." During the period of interim suspension, the person suspended continues to hold office and is given pay or subsistence allowance during that period, though he is debarred from actually perform ing the functions of that office. Thus, legally speaking, he remains the holder of his office and is not punished in any way till the completion of the enquiry. The punishment, if any, is imposed on him only after the completion of the enquiry and on the basis of the result of the enquiry. In that view of the matter, an order of suspension, pending a departmental enquiry is not a punishment. The question whether suspension pending an enquiry is a penalty, has been considered by superior Courts in a number of cases. In the case of The Crown v. Fida Hussain (P L D 1954 Lah. 402), cited by Mr. Khondkar, a Division Bench of the Lahore High Court held that the suspension of some police constables, pending trial for an offence under section 29 of the Police Act, was not in the nature of punishment. To the same effect is the decision in the case of Laxman v. State of Madhya Pradesh (AIR 1959 M P 295) where it has been held that an order of suspension pending a departmental enquiry is not a punishment. In the case of O. M. Prakash Gupta v. The State of Uttar Pradesh (1955 S C A 832) (this case was also cited by Mr Khondkar), a question arose whether an order of suspension passed against a civil servant pending a departmental enquiry against him lapses when as a result of the enquiry an order of dismissal is passed against such civil servant. In that case the Sul3reme Court of India held: "The order of suspension made against the appellant was clearly one made pending an enquiry. It certainly was not a penalty imposed after enquiry. As a result of the enquiry an order of dismissal by way of penalty had been passed against the appellant. With that order the order of suspension lapses." The latest case on this point that has come to notice is the case of L. D. Sugar Mills v. P. T. Rain Sarup (AIR1957SC82), in which the Supreme Court of India exhaustively dealt with the question of suspension, pending an enquiry. In that case, certain workmen were suspended by the employer, pending enquiry under the provisions of the Indian Industrial Disputes Act, 1947. In dealing with the question, the Court held: "It was contended that such suspension involved loss of pay by the respondents and being of an indefinite duration inflicted such harassment on them that it could not be deemed to be anything except a punishment. We do not accept this contention. It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permission of the Tribunal under the relevant section could not be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal had passed orders thereupon. If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all. Such suspension would of necessity be of an indefinite duration because to get a written permission of the Tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned. Orders for suspension were meant only as security measures or precautionary ones taken in the interest of the industry itself or its employees in general. These measures were sometimes called for immediately after an incident and any delay, however, small might defeat the purpose for which such measures were intended. It would therefore be necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the Management thought fit to inflict such punishment upon him. The suspension, however, would not be a punish ment by itself. The ordinary dictionary meaning of the word punish is to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence" (Concise Oxford Dictionary, 4th Ed.). Punishment can be otherwise defined vide Law Lexicon by P. R. Aiyer, 1943 Ed.) as penalty for the transgression of law, and the word "punish" denotes or signifies some offence committed by the person who is punished. Any action of the employer to the detriment of the workmen's interest would not be punishment so long as no offence was found to have been committed by the workman. The suspension under such circumstances, therefore, could not be a punishment even though it may be of an indefinite duration and would not attract the operation of section 22 of the Act. It could not be con tended, therefore, that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under section 22 of the Act before the same could be meted out to the workman." The view taken by me with regard to the nature of interim suspension finds support from the cases cited above. I, therefore, hold that the order suspending the petitioner in the present case pending a departmental enquiry against him, is not a punish ment. I shall now consider the alternative contention of Mr. Khondkar that the order suspending the petitioner Bending an enquiry requires the previous sanction of the Provincial Govern ment under section 35 (c) of the Act, even if it is not a punishment. Section 35 (c) runs thus: "All orders passed by the Board under section 34 and relating to any officer appointed to hold an office carrying a salary of more than five hundred rupees per mensem, except orders granting leave to, or imposing punishment on, any such officer, shall be subject to the previous sanction of the Provincial Government. Admittedly, the petitioner holds an office carrying a salary of more than Rs. 500 per mensem. Under section 34 of the Act, the Board, i.e., the Board of Trustees of the D. I. T. can, in respect of an officer whose monthly salary exceeds Rs. 500, pass orders regarding his appointment, promotion and leave. The Board can further impose on such officer penalties by way of censuring, finding, withholding of promotion, reducing and suspending or dismissing him for misconduct, and dispensing with his service for any reason other than misconduct. It may b observed that imposition of any of these penalties by the Boar does not require the previous sanction of the Provincial Government for the reason that an appeal against the Board's order imposing penalty lies to that Government under subsection (2) of l section

34. Mr. Khondkar submits that even if interim suspension is not a penalty, an order of that kind is an order under section 34 of the Act for which reason the order requires the previous sanction of the Provincial Government under section 35 (c). I am unable to accept this contention as correct. The Board's order under section 34 In respect of an officer whose monthly salary exceeds Rs. 500 must be an order relating to appointment, promotion, leave and punishment of such officer, but interim suspension not being a punishment, an order of such suspension is not one under that section, although it is made by the Board in its capacity as the appointing and punishing authority. Mr. Khondkar then challenged that the Board, in the absence of any law or rule expressly empowering it to pass an order suspending an officer pending a departmental enquiry against him, is not competent to make an order of interim suspension. In this connection, Mr. Khondkar has referred to rule 1711 of the Railway Establishment Code, rules contained in the General Regulations, Volume II of the Post and Telegraph Manual and rules contained in section 4 of appendix III to the Fundamental Rules, Volume It and submitted that all these rules have made express provisions empowering the competent authority to pass an order of suspension, pending an enquiry. It is true that the said rules referred to by Mr. Khondkar have made express provisions in this regard, but that does not mean that, in the absence of such rules, the authority empowered to appoint and punish cannot pass an order of interim suspension. The appointing and punishing authority, in my opinion, has inherent power to pass an order of suspension pending enquiry. This power flows from his power to make appointment and impose penalty. The "Statesman", dated 20‑11‑63 containing a report of the decision of the Supreme Court of India has been filed in this case by Mr. Khondkar for a different purpose with which I shall deal hereinafter at the appropriate place. In that case, the Supreme Court of India held: "On general principles the authority entitled to appoint a public servant would be entitled to suspend him, pending a criminal proceeding." This clearly supports that even in the absence of rules expressly empowering the competent authority to pass an order of interim suspension, such order can be validly made by it. Going back to the question of previous sanction of the Provincial Government under section 35 (c), it is thus found that although the Board makes orders regarding appointment, promotion, leave and punishment under section 34, an order suspending an office pending a departmental enquiry, is indeed made by the Board not under that section but in the exercise of its inherent power as the appointing and punishing authority. That being so, the order of the Board suspending the petitioner pending enquiry against him cannot be said to be an order made under section 34 and, as such, the previous sanction of the Provincial Government under section 35(c) was not necessary before making that order. Section 35(c) provides that it shall not be necessary for the Board to obtain previous sanction of the Provincial Government before imposing punishment on an officer whose monthly salary exceeds Rs.

500. The order of interim suspension being only a step to facilitate the holding of enquiry, it does not stand to reason that the previous sanction of the Provincial Government should be necessary in such a case when even the imposition of punishment as a result of the enquiry does not require such sanction. If the contention of Mr. Khondkar is correct, than, every step required to be taken in connection with the enquiry, such as, framing of charges, issue of notice asking the delinquent to show cause against the charges etc. will require the previous sanction of the Provincial Government, these steps themselves not amounting to punishment. But such a contention, I think, is absurd and cannot hold good. I, therefore, maintain my view that the Board's order suspending the petitioner pending a departmental enquiry did not require the previous sanction of the Provincial Government. Mr. Khondkar then submits that before passing the order suspending the petitioner and drawing up proceedings against him, .he should have been given an opportunity of showing cause against the proposed action and cites the cases of A. R. S. Chowdhury v. Union of India (60 C W N 933) and The State of Uttar Prudish v. Bahu Ram Upadhya (1961 S C A 593) in support of that contention. These reported case, however, do not really support this point of view. In the former case, it has been observed: "In order to frame a charge, it is permissible to have a preliminary enquiry. This preliminary enquiry may be ex parte and it would be permissible to interrogate the delinquent. Such a preliminary enquiry is not permissible but is a desirable step." The above observation itself goes to show that while a preliminary enquiry before the framing of charges is desirable, such enquiry is not indispensable and may be ex parte, if at all held. The latter case is irrelevant because it speaks of `opportunity of showing cause' not before the institution of proceedings but before passing an order of reduction in rank or dismissal after the trial of enquiry has been concluded. The next point urged on behalf of the petitioner is that the Board's Resolution, dated 8‑10‑63 in pursuance of which the order of interim suspension was made and the charges were framed, is illegal for two reasons. Firstly, the Board's earlier resolution, dated 1‑8‑63 on which the said resolution of 8‑10‑63 was said to be based had been called without giving the trustees the requisite 24 hours' notice and without previously announcing the agenda as required by rules 3 and 7 of the Board's rules. Moreover, the resolution made in the meeting of 1‑8‑60 was not confirmed in any subsequent meeting of the Board. These contentions have been emphatically denied by the respon dents in their affidavits‑in‑opposition. In the affidavits‑in- opposition, the respondents categorically stated that the Board's meeting of 1‑8‑63 was duly called after proper notice and that the resolution passed in that meeting was also confirmed in a subsequent meeting of the Board. It appears from the Board's resolution, dated 8‑10‑63 at page 37 of Writ Petition No. 417 of 1963 and at page 54 of Writ Petition No. 426 of 1963 that the said Resolution was not really based on the Board's earlier Resolution of 1‑8‑63, but it only made a reference to that resolution with approval which virtually amounted to confirmation of the earlier Resolution. However, these are mere technical defects and these, even if true, are cured by the provisions of section 173 of the Act according to which such technical defects cannot be taken as grounds for nullifying the act done or proceedings taken by the Board. The petitioner's second attack against the Board's Resolution, dated 8‑10‑63 is that half the number of the Trustees did not attend that meeting and remain present in the meeting from the beginning to the end as required under section 20(1)(d) of the Act for which the said Resolution is illegal. The petitioner's further contention is that Mr.Panaullah Ahmed, one of the Trustees left the meeting long before the end of the meeting. The respondents have, in their affidavits‑in‑opposition, emphati cally denied these allegations and stated that more than half the number of Trustees did attend the Board's meeting held on 8‑10‑63 and that Mr. Panaullah Ahmed did, in fact, remain present in that meeting throughout. It is admitted in the writ petitions that the Board's meeting held on 8‑10‑63 was a close -door meeting. As the petitioner had no access to that meeting, he is not competent to say at what point of time the Resolution was passed and who participated in it. The Act was extended to the Narayanganj Municipality by Notification No. 161‑Dev., dated the 6th May 1957 issued under subsection (2) of section 1, and the said notification was published in the official Gazette on the 16th May 1957, thus, having regard to the provisions of sections 4 and 9, the maximum number of trustees of the Board is 11, including the Chairman. It appears that three vacancies in the office of the trustees were existing from before the Board's meeting, dated 8‑10‑63, and these vacancies were filled by appointment, by Notification No. S‑VII/ IT‑4/63/1099, dated the 3rd October, 1963, which as required by section 5, read with the definition of "Notification" in section 2(i) of the Act, was published in the Dacca Gazette of the 10th October 1963. Thus, the appointment of the three newly appointed members became effected from 10‑10‑63, i.e. two days after the date of the impugned Resolution. Thus, on the date of the impugned Resolution on 8‑10‑63, there were at the most, only 8 trustees in office, including the Chairman. It appears from the proceedings of the Board's meeting of the said date as appended to the writ petitions, as many gas five trustees including the Chairman attended the Board's meeting held on 8‑10‑63 at which the impugned Resolution was passed. As there were only eight trustees in office on the said date, more than half the trustees did, in fact, attend and participate in that meeting. Even if Mr. Panaullah Ahmed, one of the trustees is left out on the alleged ground of his not remaining present in the meeting from the beginning to the end, there were four trustees out of 8 then in office, and this clearly satisfied the requirement of section 20(1)(d). That being so, the Resolution made at the Board's meeting held on 8‑i0‑63 is perfectly valid. Mr. Khondker then submits that the Chairman is not a trustee of the Board. This contention has no substance whatever. Section 4 of the Act begins with the expression "The Board shall consist of "a Chairman etc." The word "Board" as defined in section 2(b) means "the Board of Trustees constituted under section 4". Next, "trustee", as defined in section 2(m) means "a member of the Board". Section 19(1) which prescribes the term of office of trustees clearly implies that the Chairman is also ''a trustee. According to section 20(1), the Chairman is required to preside over the meeting of the Board and that he has a second or casting vote in all cases of equality of votes. These provisions leave no room for doubt that the Chairman, for the purpose of making a Resolution at a meeting of the Board, is a trustee. I am, therefore, of the opinion that the Board's Resolution made at its meeting on 8‑10‑63 is perfectly valid. Consequently, the order suspending the petitioner pending a departmental enquiry against him made in pursuance of that Resolution is also valid. The last point urged on behalf of the petitioner is that no disciplinary rules in respect of the D. I. T. employees having been made so far under section 102, read with section 155 and section 2(i) of the Act, the proceedings drawn up against the petitioner are illegal and liable to be quashed. This point of law came up for consideration under some peculiar circumstances. This point was not taken as a ground in any of the two writ petitions. On the contrary, it was stated in para. 22 of Writ Petition No. 426 of 1963 as follows: "The service conditions of the officials of the Dacca Improve ment Trust are governed by the Government Service Rules (now the East Pakistan Government Servants Efficiency and Discipline Rules, 1960)". Further, in order to establish the alleged illegality of the depart mental proceedings, the petitioner relied on the said Government Servants Efficiency and Discipline Rules and took ground No. VII in the said writ petition as follows: "VII‑For that the proceedings by the impugned charges having been taken in utter disregard violation of the provisions made for taking disciplinary action by the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 which are applicable to officials of the Dacca Improvement Trust cannot be proceeded with to the prejudice of the petitioner inasmuch as the same disclosed a clear lack of jurisdiction in the matter and as such is liable to be prohibited by an appropriate order (in the nature of a writ of prohibition." The petitioner also admitted in para. 21 of Writ Petition No. 417 of 1963 that the Government Service Rules have been applied in the case of the D. I. T. employees. In the course of hearing of Writ Petition No. 426 of 1963, we from the Bench, for the first time, pointed out that disciplinary rules in respect of the D. I. T. employees are required to be made under section 102 (e) and (h), read with section 155 and section 2(i) of the Act, by notification published in the official Gazette. The learned Advocate for the petitioner being unaware of these legal provisions took time to make an enquiry about such rules. On enquiry by the petitioner and also by the Registrar of this Court, it transpired that no such rules were made, but the Provincial Government issued only executive instructions in the matter in a letter to the D. I. T. to which I shall refer presently. The petitioner then, with the leave of the Court, filed a supple mentary affidavit in each of the writ petitions explaining that his admission in those writ petitions as to the applicability of Government Servants Efficiency and Disciplinary Rules in the case of the D. I. T. employees was a bona fide mistake and that no disciplinary rules in respect of, those employees were made by the Provincial Government in the exercise of its power under section 102(e) and (h) of the Act, by notification published in the official Gazette. The supplementary affidavits further stated that the Provincial Government, by its Memo. No. S‑VII/1E‑28/62/403(3) dated 5‑4‑63, issued only executive instructions to the D. I. T. to follow the Government Service Rules in the case of the employees of the D. I. T. No copy of the said Memo. was filed along with any of the supplementary affidavits. Incidentally, the said Memo. of the Provincial Government as mentioned in the supplementary affidavits does not bear the correct number and date. According to the information obtained by the Court through the Registrar, the Memo. bears number S‑VII/2E‑2/63/1164 and is dated 16‑10‑

63. This Memo. runs as follows: "Confidential. Government of East Pakistan. Basic Democracies and Local Govt. Department. No. S‑VII/2E‑2/63/1164. dated 16‑10‑

63. From : S. D. Khan, Esq., B. A. T. Q. A. Special Offier and Deputy Secretary. To : Abdul Ehsan, Esqr., C. S. P., Chairman, Dacca Improvement Trust, Dacca. Sub.:‑Suspension of Mr. M. Noman, Chief Engineer, D. I T. The undersigned is directed to say that from a perusal of the proceedings of the special meeting of Board of Trustees of D. I. T. held on 8‑10‑63, it appears that alternative action in place of suspension could also be considered by the Board. Mr. Noman could be required to proceed on such leave, instead, as is admissible to him. Such action is permissible under amended Rule 10 of the East Pakistan Government Servants (Efficiency and Disciplinary) Rules, 1960. Pending framing of separate rules the said East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, should be followed by the D. I. T. in matters of disciplinary measure against its employees. (Sd.) S. D. KHAN, 6‑10‑63 Special Officer and Dy. Secretary." The respondents have, in their affidavits‑in‑opposition, admitted that the Provincial Government issued a letter to the D. I. T. on 16‑10‑63 and quoted the contents of that letter in the affidavits‑in- opposition, which are the same as reproduced above. In the affidavits‑in‑opposition, the respondent, however, characterised the said Government letter as "It is nothing more than an advice or expression of unsought opinion." It then comes to this that no disciplinary rules concerning the D. I. T. employees have been made so far by notification published in the official Gazette as required by section 102(e) and (h) read with section 155 and section 2(i) of the Act. As there is no estoppel against a statute, the point of law, namely, whether the proceedings drawn up against the petitioner are bad in law on account of non‑making of disciplinary rules, calls for our consideration in spite of the petitioner's admission in his writ petition that the Government Servants Efficiency and Disciplinary Rules were applied in the case of the D. I. T. employees. The Town Improvement Act, 1953, is a beneficial legislation. The duty of carrying out the purposes of the Act rests with a Board of Trustees which is a body corporate. Section 34 of the Act empowers the Chairman of the Board to appoint, promote and punish its officers whose monthly basic salary does not exceed Rs.

100. The Chairman cart also grant leave to such officers. These powers, in other cases, vest in the Board. Against any order of the Chairman imposing penalty, an appeal lies to the Board. In case of a penalty imposed by the Board, an appeal against such order lies to the Provincial Government. Section 34 however, has not prescribed the conditions of service of the D. I. T. employees, including conditions on which penalties can be imposed on such employees nor has the said section prescribed the procedure for preferring appeals against the orders of the Board, imposing, penalties, and these matters, among others, have been left to be prescribed by the Provincial Government by making rules under section 102 of the Act. Section 102 runs thus :‑--

102. The Provincial Government may make rules, not inconsistent with the provisions of this Act, for carrying out the purposes of this Act. In particular, and without prejudice to the generality of the foregoing power, the Provincial Government may make rules for all on any of the following matters, namely :‑ (a) .

(b) .

(c) .

(d) .

(e) the conditions on which employees of the Board or of the Tribunal may be appointed, reduced, suspended, discharged, removed, dismissed or otherwise punished ; (g)

. (h) the procedure for preferring appeals to Provincial Govern ment under the provisions of the Act Section 155 of the Act provides that where any rule has been made under section 102, it shall be published by the Pro vincial Government by `notification' which, according to its definition in section 2 (i), means notification published in the official Gazette. Admittedly, no rules under section 102 have been made so far by the Provincial Government. It is further admitted that the Provincial Government issued only a letter to the D. I. T. on 16‑10‑63 advising it to follow the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, in the case of its employees. The question, therefore, arises whether the proceedings drawn up against the petitioner are, in the absence of disciplinary rules under section 102(e) and (h), bad in law and of no legal effect. An answer to this question depends upon whether the provisions of section 102 are directory or mandatory. Statutes enacted for the purpose of enabling something to be done are usually expressed in permissive language by using the words "may", "it shall be lawful" or "may be done" etc. Thus section 102 itself contains the auxiliary verb "may" Prima facie, these words import a discretion, and they should be construed as discretionary unless there be weighty reason to show that they are meant to be imperative. Mr. Khondkar has cited the case of Julius v. Bishop of Oxford a case decided by the House of Lords. In that case, the words "it shall be lawful" occurring in section 3 of the British Church Discipline Act called for interpretation. The Lord Chancellor expressed his views as follows :‑

The words "it shall be lawful" are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not or themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power then called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words "it shall be lawful" being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation." Lord Penzance, at page 230 of the report said :‑

"If the matter were to be decided by previous definitions, I should prefer that of the Lord Chief Justice Jervis, who said, in the case of Reg v. York and North Midland Railway, that such words "it shall be lawful" were to be understood as permissive only, unless some "absurdity or injustice" would follow from giving them that, their natural meaning." The opinion expressed by Lord Selborne at page 235 of the report is :‑

"The question whether a Judge or a Public Officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power." In the same report at page 243, Lord Blackburn said :‑ ..though giving a power is prima facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right call upon him so to do." In the Bishop's Case decided by the House of Lords, the view taken in the case of Rex v. Barlow (91E R 516) on the same point was referred to with approval. The view expressed in that case is :‑‑ "Where a Statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall." Mr. Khondkar cited another case, namely, Province of Bombay v. Khusaldas, S. Advani (86 C I. J 330), which was decided by the Supreme Court of India. In that case, at page 424, Das, J., relying on the case of Julius v. Bishop of Oxford observed :‑ "The authorities show that in construing a power the Court will read the word "may" as "must" when the exercise of the power will be in furtherance of the interest of a third person for securing which the power was given. Enabling words are always potential and never in themselves significant of any obligation. They are read as compulsory where they are words to effectuate a legal right." Some more reported cases relevant to the point under consideration, besides those cited on behalf of the petitioner, have come to notice, and two of them are nearest to the present case. I shall deal with them one by one. In (1929) 2 K B 180, the words "may order" occurring in section 138 of the British County Courts Act, 1888, called for interpretation. The King's Bench Division, relying on Julius v. Bishop, said :‑

"Now, it is quite true that the language of the Act is permis sive and not compulsory. It has often been said, and it is possibly a convenient abbreviation, but like all inaccurate expressions it often leads to misunderstanding, that in many statutes the word "may" means "must". I think it has been pointed out once for all in Julius v. Bishop of Oxford (5 App. Case 214, 222, 229, 235, 241). That is an inaccurate expression. "May" always means may. "May" is a permis sive or enabling expression ; but there are cases in which, for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it. One of those cases is where he is applied to use the power which the Act gives him in order to enforce the legal right of the applicant." The next case is Lachmi Chand Suchanti v. Ram Pratap Chowdhury, (A I R 1934 Pat. 670). In this case, section 138 of the Bihar and Orissa Self‑Government Act which, like section 102 of our Town Improvement Act, empowered the Local Government to make rules for carrying out the purposes of that Act, called for the Court's consideration. The material part of the said section 138 is as follows :‑

"It shall be lawful for the Local Government to make rules consisting with this Act for any District Board or Local Board or Union Committee for the purpose of determining the mode and time of appointment or election or members of Boards and Committee and determining the authority who shall decide the disputes relating to such elections." The Local Government made rules in exercise of its power under the said section, but the rules were deficient in that these did not provide for appointment of a Tribunal for deciding election disputes. The Full Bench of the Patna High Court, after citing a number of authorities including Julius v. Bishop, held :‑-- "It is true that the words at the commencement of the section are "it shall be lawful" but in construing Acts of public utility where the framing of the rules and the making of the appointment is necessary in order that the objects of the Act may be attained, such words which might otherwise be considered permissive are really mandatory. The permissive form is a mere courteous convention. The Act really imposes a duty on the executive and it is implied that a public body will carry out the duties indicated by the Legislature in order that the purpose of the Legislature may not be frustrated." Applying these principles, the Full Bench of the Patna High Court held that the rule‑making provision of section 138 of the Bihar and Orissa Self‑Government Act was mandatory. In the case of Bishan Singh v. Central Government of India (A I R 1961 Punj. 451), the consequences of non‑making of rules under an enabling provision, as in the present case, were considered by the Punjab High Court. Sections 8 and 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, as in force in India, provide for making rules. Of these, section 8(2) runs thus :‑ "For the purpose of payment of compensation under this Act, the Central Government may, by rules, provide for all or any of the following matters: (a) the classes of displaced persons to whom compensation may be paid etc." Section 40 of the said Act lays down. "The Central Government may, by notification in the official Gazette, make rules to carry out the purposes of this Act." It appears that in pursuance of the powers under sections 8 and 40 of the said Act, the Central Government of India, in fact, framed rules, but there was a lacuna in the rules, for, they did not make any provision with regard to urban agricultural land. In order to cover this lacuna, the Government of India issued a press note and a memorandum declaring the method for dealing with urban agricultural land. On these facts, the Punjab High Court held that the press‑note and the memorandum have now the force of law and they are merely executive instructions. After placing reliance on Julius v. Bishop and some other authorities, Tek Chand, J. said :‑

"The ultimate rule in construing auxiliary verbs like `may' and `shall' is to discover the legislative intent ; and the use of words `may' and `shall' is not decisive of discretion or mandate. The use of the words `may' and `shall' may help the Courts in ascertaining the legislative intent without giving to either, a controlling or a determining effect. The Courts have further to consider the subject‑matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed." Having examined the provisions of the Displaced Persons (Com pensation and Rehabilitation) Act in the light of these principles, the Court held that the provisions conferring power on the Central Government of India to make rules, though prima facie permissive, are indeed imperative. In the case of Rana Muhammad Jamil v. The Punjab Road Transport Board (P L D 1957 Lah. 1), the learned Chief Justice of the West Pakistan High Court observed :‑

"The question whether a particular provision in an enact ment, though ostensibly in the imperative form, is really mandatory or directory is a question of some nicety and no bard and fast rule can be laid down for the exact construction to be placed on such a provision in all cases. In each case, the scope and object of the Act and of the particular provision would be relevant to the real intention of the Legislature in this respect." The following passages from Maxwell's Interpretation of Statutes‑10th edition at page 374‑seems most appropriate to the point under consideration. It says :‑-- "A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power (s). Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only, in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and inoperative." The decision of the Supreme Court of the United States in the case of Supervisor v. U. S. as collected in the Maxwell's Interpretation of Statutes at page 251 of the said edition, is illuminating and is as follows :‑

"The Supreme Court of the United States similarly laid it down that that which public officers are empowered to do for a third person the law requires shall be done whenever the public interest or individual rights call for the exercise of the power, since the latter is given, nor for their benefit, but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice. In all such cases, the Court observed, the intent of the Legislature, which is the test, is, not to grant a mere discretion, but to impose a positive and absolute duty." What follows from the consideration of these authorities is that the language employed in a statute is not always a sure index of the intent of the Legislature and that there is no hard and fast rule of general application as to whether any enactment shall be considered directory only or mandatory, with an implied nullification for disobedience. It is the duty of the Court to try to gather, in each case, the real intention of the Legislature by carefully considering the scope and purposes of the Statute to be construed. In each case, the subject‑matter of the statute is to be looked into and the importance of the provision in question in relation to the object intended to be secured by the statute, is to be taken into consideration in order to see whether the provision is imperative or merely directory. The tests applied for discovering the legislative intent and generally based on considerations of the scope, object and purposes of the Statute, regard being had to justice and balance of convenience and also on a consideration whether or not the provision in question in the Statute simply gives a power or a power coupled with a duty. In the latter case, it is to be seen whether or not non‑performance of the duty is likely to impede the operation of the statute or cause hardship inconvenience, harm or injustice to persons who have no control over those who are entrusted with that duty. If the power coupled with duty is not exercised and if, in such a case, any provision of the statute cannot be carried out or any hardship, inconvenience harm or injustice is caused to others, then, the provision must be held to be mandatory. Thus, it is necessary in this case to examine the various provisions of the Town Improvement Act in the light of those principles in order to gather the real intention of the Legislature as to whether the provision of section 102 of the Act empowering the Provincial Government to make rules, though apparently permissive, is really compulsive or directory. Mr. Khondkar, learned Advocate for the petitioner, has not taken us through the various provisions of the Act for the afore said purpose. This, however, does not relieve us of our duty to examine them in order to arrive at a correct answer to the point under consideration. Before proceeding to examine the provi sions of the Act, it is necessary to deal with another contention of Mr. Khondkar made on the basis of the newspaper report of a decision of the Supreme Court of India, appearing in the "Statesman", dated 20‑11‑

63. With the leave of the Court, the newspaper report was filed by the petitioner in the course of hearing of this case. Mr. Chowdhury did not object on behalf of the respondents to the filing of that report as he himself relied on an observation in it by the Supreme Court of India to the effect that on general principles the appointing authority is competent to pass an order of suspension pending an enquiry. We took judicial notice of the newspaper report. It appears from the decision reported in P L D 1954 F C 313 at page 329 that in similar circumstances the then Federal Court took into consideration the newspaper report of a case decided by the Supreme Court of India. Be that as it may, it appears from the newspaper report filed in this case, that the Governor of Punjab, by an order, dated 18‑7‑59, suspended an old I. C. S. Officer serving in Punjab. This order of suspension was attacked in an action before Court. In that connection, the Supreme Court of India observed :‑ "No rules having been framed neither the Governor‑General nor the Governors had any power to order interim suspension of a civil servant." Mr. Khondkar relies on this observation and submits that this equally holds good in the present case. But a careful perusal of the report will show that the said observation has no application in the present case. The appointing authority in respect of old I. C. S. was the Secretary of State. The conditions of service of old I. C. S. were to be prescribed under section 247 of the Government of India Act, 1935, as originally enacted. The said section having been omitted by the India (Provisional Constitution) Order, 1947, was no more available, and no new rules under the Constitution Act having been framed by the Governor‑General, empowering the Governors of the States of India to impose penalty on old I. C. S., the Supreme Court of India made the observation quoted above. In the present case, the Board of Trustees of D. I. T. is already empowered by section 34 of the Act to impose penalties on its employees whose monthly basic salary exceeds Rs.

100. Therefore, the above observation of the Supreme Court of India is of no assistance to the petitioner. Coming now to the provisions of the Act, we find from section 7(1) that the two Trustees of the Board under section 4 (c), that is, two Commissioners of the Dacca Municipality, "shall be elected by the Commissioners of that Municipality in the manner prescribed. The word "prescribed" according to its definition in section 2 (i), means prescribed by rules made under the Act. Thus, it seems essential to make rules regarding elections to the Board as required under clause (a) of section 102 and section 151 (1) of the Act. Section 8 provides that if any of the bodies of the electors referred to in section 7 does not, by such date as may be pres cribed by rule made in that behalf under section 151 (section 151 conferring power to make rules by the Provincial Government is also prima facie permissive because of the word "may" occurring therein), elect a person to be a trustee, the Provincial Govern ment shall by notification appoint such a trustee. Thus, it is necessary to make rules under section 151 prescribing the date by which bodies of electors must elect certain trustees of the Board. Section 17, read with section 102 (b) provides for making rules prescribing the period within which a vacancy in the office of trustees is to be filled. If no period for filling a vacancy is prescribed by rules made under section 102 (b), the Board may remain without the requisite number of trustees for indefinite period. This, however, could not be the intention of the Legislature. If the word "may" occurring in section 19 is taken to be permissive only, then, the Provincial Government may not appoint any date under that section fixing the commencement of the term of the trustees appointed or elected for the first time and thereby frustrates the Act by not bringing it into operation at all. Next, if the rules are not made by the Board under the apparently permissive provision of section 152 because of the word "may" occurring therein, then, the salutary provisions of section 21 regarding the temporary association of experts with the Board, may be frustrated. If the Provincial Government does not make any rule under section 151 (2) because of its prima facie permissive, provi sion then, there will be no limit to fees payable to a trustee during one month on account of his attending meeting of the Board which, however, will offend against the second proviso to section

24. Lastly, section 69 (3) (ip) will be rendered meaningless if the Board does not make any rule under section 152 on the ground that the rule‑making provision, because of the word "may" occurring in section 152, is directory only. Thus, the examination of the various provisions of the Act clearly shows that rules under sections 102, 151 and 152 are for carrying out the purposes of the Act, although the provisions of those sections are apparently permissive because of the word 66 may" occurring in each of those sections. Suspension of an employee of the Board pending an enquiry and proceedings drawn up against him involve a number of matters affecting him viz., pay, subsistence allowance, leave, contribution to Provident Fund and other privileges admissible during the period of interim suspension. Whether the period of interim suspension will, in case of pensionable service, count towards pension, is also involved in it. These matters are necessarily required to be provided by rules. Besides, the absence of set disciplinary rules prescribing the procedure for initiating and conduct an enquiry and the various steps to be taken in the enquiry may cause hardship, inconvenience, harm or injustice to the employee proceeded against, for, he will remain completely ignorant of the procedure that will be adopted in holding and conducting the enquiry against him, nor shall he be aware if and what opportunities will be given to him to defend himself. Mr. Chowdhury submits that the employee proceeded against will have no cause or grievance if adequate opportunities to show cause to defend himself are given to him in the enquiry on the principles of natural justice which, according to Mr. Chowdhury, are expected to be given in every case of depart mental enquiry. To apply the principles of natural justice, in the absence of set disciplinary rules, will depend upon the sweet will of the appointing and the punishing authority or the inquiring officer. In other words, the application of the principles of natural justice, in the absence of disciplinary rules, will vary according to the vagaries of different inquiring officers appointed in different cases and the trustees of the Board whose composi tion also varies from time to time. Thus, the alleged prospect of applying the principles of natural justice cannot be a safeguard against hardship, inconvenience, harm or injustice likely to be caused to the delinquent in the absence of disciplinary rules. In that view of the matter, I am of the opinion that the provision of section 102 empowering the Provincial Government to make disciplinary rules in respect of the D. I. T. employees, though apparently permissible, are really mandatory. Pointing out the word "shall" occurring in sections 20, 32 and 33 and the word "may" in sections 102, 151 and 152, Mr. Chowdhury contended that the Legislative intentionally made a distinction between the said two words for which the provisions containing the word "shall" are mandatory and those containing the word "may" are directory only. The word "shall", in view of the principles of interpretation already discussed, is not always mandatory. A glaring instance of the permissive nature of the word "shall" is to be found in Article 211 of the Constitution of 1956 which provided :‑ "Parliament shall by law provide for the determination of the area of the Federal Capital . . . . ." There can be no compulsion on the Parliament ; to make a law by Parliament depends on the will of the majority members of the Parliament and that of the authority whose assent is necessary to make laws. Hence, the words "shall" occurring in Article 211 is obviously permissive. As disciplinary rules in respect of the D. I. T. employees are yet to be made under the Act, the proceedings drawn up against him, in my opinion, are premature and bad in law and of no legal effect. The question then arises whether the order suspending the petitioner pending a departmental enquiry against him will continue to operate. No doubt, the order of interim suspension was validly made by the competent authority, namely, the Board of Trustees. But the departmental proceedings having fallen through, the interim suspension cannot continue to operate indefinitely except to the serious prejudice of the petitioner. It is uncertain when disciplinary rules will be made by the Provincial Government. No such rules were framed during the last so many years of the operation of the Act. Hardship will be cause to the petitioner if he is continued to be kept under suspension in anticipation that the Provincial Government may, in future, frame disciplinary rules. On these consideration, the order of interim suspension, though validly made, has, in my opinion, become inoperative with the fall of the departmental proceedings. As regards the petitioner's allegation that the proceedings drawn up against him are mala fide, I agree with the view taken in the matter by my Lord the Chief Justice in the judgment just delivered by him and have nothing to add. Now, comes the question as to what reliefs should be granted in the two writ petitions. Mr. Chowdhury submits that if the petitions at all succeed, no consequential relief in the shape of an order reinstating the petitioner to office should be given in this case. In this case, the petitioner was only suspended, but not removed. Hence, the question of making an order reinstating the petitioner to office does not arise. I think, a declaration to the effect that the proceedings drawn up against the petitioner are bad in law and of no legal effect and a further declaration that the order suspending the petitioner pending an enquiry has become inoperative, are sufficient in this case. As regards costs, it has been found that all the points of law canvassed on behalf of the petitioner except the question with regard to non‑making of rules that arose during the hearing of the petitions, are untenable. In the circumstances, I would not allow any costs to the petitioner. The Rule nisi issued on the two writ petitions should be made absolute in terms of the declarations as in the next preceding paragraph, without any order as to costs. I, therefore, agree with the order proposed by my Lord the Chief Justice. K.B. A. Petitions accepted.