1. MUHAMMAD YUSUF SARAF, J.---The facts of this writ petition which are undisputed are that the petitioner, an A. S. I. In the Police Department, was suspended for misconduct on the 25th of September 1968 and was, after an enquiry, held largely behind his back, dismissed on the. 1st of September 1969. His appeal against the said dismissal was accepted by the Chief Secretary on the 10th of March 1971. He found the charges unproved and ordered his re-Instatement from the date of his suspension. On the 4th of December 1971, the President was pleased to confirm the decision of the Chief Secretary. While re-instating the petitioner, the Chief Secretary ordered that the period falling between the dates of his suspension and re-instatement be treated as leave which has been interpreted to mean as leave without pay minus the period to which be was entitled to leave with pay; the entitlement for the latter being only 41 days, the remaining 3 years and 28 days have been treated as leave without pay.
2. ''(b) If the suspension of an officer as a penalty for misconduct is upon reconsideration or appeal held to have been unjustifiable or not wholly justifiable, or in an officer dismissed from office or suspended pending enquiry into his alleged misconduct is, after enquiry or upon reconsideration or appeal, re-instated, then the revising, or appellate authority may grant to the officer for the period of his absence from duty:-
(i) If the officer is honourably acquitted, an allowance equal to the full salary to which he would have been entitled if he had continued to hold the appointment from which he was dismissed;
(ii) otherwise, an allowance equal to such proportion of the full salary as aforesaid, as to the revising or appellate authority may seem expedient.
3. Note 1.---Special care should be taken not to fill up the appointment of a person under suspension permanently until his case has been enquired into and decided."
4. It was strenuously urged on behalf of the Government that the use of the word "may" indicated that it has been left entirely to the discretion of the appellate authority to pass any order it deems fit in the case; that it may not award the pay for the intervening period; it may award an allowance equal to the full salary in case of an honourable acquittal and in other cases, an allowance equal to such proportion of the full salary as such authority may deem proper. It was further contended that since the Rule-making Authority has left the discretion to the appellate authority which has chosen not to exercise it in favour of the petitioner, interference by this Court would frustrate the intention of the Rule-making Authority. It was also contended that the salary of a Government Servant was a bounty of the State and no claim could therefore be laid against the Government on that account.
5. It is no doubt correct that the word "may", in isolation from the context in which it is used in a statute, would be treated as permissive in nature and thus import a discretionary power but the difficulty with a Court of law is that it cannot just ignore A the context and make the power thus conferred subservient to the ordinary meaning of the word "may" or "shall". That is why the proposition that the word "may" has sometimes to be read as imposing a duty, is no longer open to doubt.
6. What is the test to determine as to whether the word, as used in a particular statute, is merely directory or has a mandatory implication? In this connection, reference may be made to the following passage in Craies on Statute Law, page 285 : - "It is, however, a well-recognised canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford, that 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised'. And Lord Blackburn said: 'The enabling words are construed as com--pulsory whenever the object of the power is to effectuate a legal right'. In R. v. Bishop of Oxford, Cockburn, C. J., said: 'So long ago as the year 1693, it was decided in the case of R. v. Barlow, that when a statute authorises the doing a thing for the sake of justice or the public good, the word 'may' means 'shall', and that rule has been acted upon to the present time . . . . . . . And of course the same rule will apply to the words 'it shall be lawful'.
7. "That," said James L. J. In Re : Neath and Brecon Ry., 'is the usual courtesy of the Legislature in dealing with the judicature'. But, when so employed, this expression, 'it shall be lawful', as James L. J.
8. Went on to say, 'means in substance that it shall not be lawful to do otherwise' ."
9. A case under the Indian Income-tax Act came up before their Lordships of the Privy Council in AIR 1923 P C 138. Under section 51(1), the Chief Revenue Authority was empowered to refer a case to the High Court but here too the word used was 'may'. Both before the High Court as well as the Privy Council, it was contended that the Legislature having used the word 'may', the Chief Revenue Authority was not bound to do so even on the application of the person to be assessed if he was satisfied that the application was frivolous or that the reference was unnecessary. Their Lordships commented as follows: "No doubt that part does not say that he shall state a case, it only says that he may. And as the learned counsel for the respondent rightly urged, 'may' does not mean 'shall'. Neither are the words 'it shall be lawful' those of compulsion. Only the capacity or power is given to the Authority. But when a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. The Bishop of Oxford: '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.'
10. "The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing ft the one way or the other . . . . "
11. "(4) The question as to whether 'may' in some cases can mean 'must' has been considered by judicial decisions on several occasions. Usually the word `may' is an enabling word : it gives discretion to the person who is given the option to act in a particular manner mentioned in the section. But it is well recognised that the word 'may' in the context can mean 'shall'. If statutes authorise any specified persons to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge a duty by the statutes themselves; and, in such a case, though the word used by the Legislature may b2 'may', the intention is to impose den obligation upon the authority to discharge his duty, with the result that the word 'may' in the context means 'must' or 'shall'. Whether the authorised person as given a discretion or is under a compulsion or obligation to do a particular act would inevitably depend upon the context in which the word 'may' has been used, the scheme of the statute wherein the section using the word 'may' occurs, and such other relevant considerations."
12. The learned counsel for the Government has relied upon PLD 1964 Lah. 329, 686 and PLD 1965 Lah.
13. 23 in support of his argument that the word 'may' confers an absolute and unquestionable discretion upon the appellate authority. These cases, however, do not run counter to the proposition as contained in various citations mentioned earlier. All the three cases arose under the Rent Restriction Ordinance No. VI of 1959. In PLD 1964 Lah. 329 the Rent Controller ordered the ejectment of a tenant but the District Judge set aside that order. The landlord's second appeal too was dismissed. Considerable argument centred round the interpretation of the word 'may'. The learned Judge not only went into the grounds which had led to the dismissal of the appeal before the District Judge but has also stated:--- "It may be that in view of this principle, the word 'may' was deliberately used in subsection (2) of section 13 of Ordinance VI of 1959, leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the circumstances of the case are such that it is necessary in the interest of justice not to order so. It must be remembered, however, that it is intended drat normally in case of default an order of ejetment is to follow, and the exercise of discretion must be based on good grounds on a careful consideration of all the relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be Judicial"
14. "There may be a default and still the Rent Controller may refuse to pass an order of ejectment. The discretion to be exercised by him has to be based on judicial considerations and he has to take care that it is completely immune from the element of a personal whim and caprice. It cannot be said that the Controller has acted capriciously or arbitrarily in the present case."
15. PLD 1965 Lah. 23, the Rent Controller had declined to eject a tenant but the District Judge on appeal ordered his ejectment. The tenant's second appeal was accepted by the High Court. The facts were gone into in second appeal and one of the reasons which influenced the Court in accepting the appeal was that the word 'may' used in section 13, subsection (2) conferred a discretion on the authority. His Lordship, however, pointed out: - "I feel that in the present case, on the type of the default alleged against the appellant, his eviction was discretionary with the Rent Controller. Because of the attending circum. Stances of this case, the discretion should have been exercised judicially and more appropriately in refusing the respondent's application."
16. There is another ruling under the same Act, PLD 1965 Kar. 468 by Mr. Justice Qadeeraddin Ahmad.
17. In this case an application for ejectment of tenants was dismissed by the Rent Controller but the District Judge accepted the appeal and ordered their ejectment. The second appeals to the High Court were also dismissed. The main argument advanced in support of the order passed by the Rent Controller was that in view of the word `may', he had a discretion in the matter but it was not accepted by the High Court. The learned Judge quoted with approval the following passage from Cotton, L. J. In Baker, Nichols v. Baker (44 Ch. D 262) : "'May' never can mean 'must' so long as the English language retains its meaning ; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word 'may', it becomes his duty to exercise that power."
18. The learned Judge then went on to say:- "The Judges must be knowledgeable and not whimsical men to be able to soundly interpret law because they have to get over the flaws of human language, which is the vehicle of legislative thought, as well as to get over the inevitable imperfections of legislative comprehensiveness."
19. "I know for myself that for the past thirty years and more a great part of my daily business has been to give opinions, to argue or to decide as to the meaning of words. These disputes are by no means always barren logomachies. Great questions of principle may turn upon a word and valuable rights and interests depend on the meaning assigned to it. The difficulty of interpretation arises, as I have said, from the imperfection and inexactitude of language as a vehicle of ideas. If words are the currency of our business, they suffer from the defects which has always affected human currency.
20. Their value in exchange is unstable, and they not only undergo changes in time but at any one moment the precise content is often indeterminable."
21. An analysis of the rulings cited above would show that the word 'may' has is the following circumstances, been treated as a binding obligation on the authority invested with the permissive power:
(1) When the power is given for the benefit of persons who are specifically pointed out and the condition upon which it is to be exercised has also been provided for.
(2) If it is to effectuate a legal right.
(3) If it authorises the doing of a thing for the sake of justice.
(4) If it authorises the doing of a thing for public good.
(5) In the light of the consequences that would follow by construing it one way or the other.
22. Now suppose an employee is unjustly or illegally dismissed say without being heard or suppose he is dismissed for certain cooked up charges which are ultimately found to be false and the appellate authority accepts his appeal and re-instates him from the date of his dismissal; is it open to such authority to deprive him of the pay which he would have drawn for the intervening period if he had not been dismissed? The argument that he did not perform any duty during this period is of no avail to the Government for the simple reason that the non-performance of duty resulted from its own action and the action being wrongful, the victim cannot be made to suffer the loss. One may usefully quote Milton when he said:- "They also serve who only stand and wait."
23. If he can even then be deprived of his pay for the said period, it would mean that those responsible for his illegal or unjust dismissal have still been able to inflict upon him a terrible injury-despite his innocence. It would amount to putting premium on a wrongful dismissal of a public servant.
24. The argument advanced on behalf of the Government that if the word 'may' was interpreted as imposing a duty to be exercised in favour of the public servant, it would hamper its authority to deal with the services is really misplaced, It is not the whole truth to condemn public servants as a powerful class. With the increasing 'familiarity' of our people with freedom, there has been a corresponding erosion of their power and prestige. They have largely become a class deserving sympathy because it has become fashionable in the East to make them scape-goats for all sorts of Governmental or national failures and shortcomings. On the other hand, the interpretation sought to be placed on the word on behalf of the Government, would, if accepted, adversely affect the morale of the services. Frankly speaking, such a result-the right to deprive an innocent public servant re-instated after dismissal, of his salary for the period of such dismissal-is revolting to one's judicial conscience and we are unable to be persuaded to believe that the framers of the Rules could have intended such an unjust result with such consequences as are bound to follow from such an uninvited and undeserved injury.
25. Dealing with a similar point as to whether a Government servant dismissed from service but whose dismissal is ultimately held to be unlawful is entitled to his or her pay for the interven--ing period which in the case was nearly 21 years, the Supreme Court has held that she was entitled to such pay but that if he bad accepted other employment or engaged in other profitable business, then the amount so earned has to be set off against this salary due from the Government. Hamoodur Rahman, C. J. Who delivered the judgment of the Court (PLD 1970 SC 415) held: - "The next question that arises is as to what is to happen in cases where a person is dismissed from service but subsequently the dismissal is held to be unlawful? Should a Government servant be entitled to recover his pay for the full period he was kept out of service? It seems to me that if the dismissal was wrongful, then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service.
26. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government, serve any other master or engage in any other business and secondly because on general principles too, a person cannot be allowed to reap a double advantage."
(1) if he has been honourably acquitted; and
(2) if he is re-instated.
27. The words `honourable acquittal' seem to have been used to distinguish between an acquittal as that of the petitioner and the one granted on the basis of benefit of doubt. If even in such a case the appellate authority can deprive a public servant of his salary for the period in question, I fail to understand in what situation would then he be gracious enough to exercise this power? Surely, it would reduce the rule to a farce and frustrate the very intention of the rule-making authority. The appellate authority has, in the present case, given no reasons at all why this discretion was not exercised in his favour. The discretion had to be exercised judicially and not arbitrarily. Surely, it did not depend upon the personal whims of the authority nor was its exercise dependent upon his sweet will. When somebody's rights are involved, the authority invested with discretion, is in fact burdened with a heavy responsibility. The petitioner must have naturally suffered considerable mental torture and experienced agonising pain by experiencing a sudden social down-grading, the loosened tongues of foes, neighbours etc. And the sufferings of the dependents during the interval. All this already goes uncompensated and unnoticed but to deprive him under the guise of discretion, of his salary for the said period, would not only be unjust and capricious but a consequence that could not have been intended by the framers of the Rules. In this connection, the same rules provide a helpful guide as shown below:-
(1) Under rule 30 are enumerated the punishments to which a public servant may be subjected such as dismissal etc. One of the punishments is provided in clause (I-A) as 'fine not exceeding one month's pay'. The fact that denial or taking back of one's salary though treated as a punishment, leas been limited to one month's salary only, shows how conscious and considerate the Dogra autocrat was of the importance of a public servant's pay as the source of sustenance for himself and his dependants. How can this solicitude be reconciled with the interpretation now being put on the word `may' in Article 108 in the year 1972 ?
(2) Under rule 108 with which we are concerned in the present case is added a note already copied earlier which lays down that special care should be taken not to fill up the appointment of a person under suspension permanently until his case has been enquired into and decided. The intention of this passage clearly is that the public exchequer is sought to be protected against an additional burden. If a public servant could be deprived of his pay at will, there was no question of an additional burden on the exchequer. On the contrary, the note strengthens the argument that it has been provided to protect the public exchequer because the officer suspended could as of right claim his pay after re-instatement if honourably cleared of the charges."
28. The only point that now remains to be decided is as to whether the salary of a public servant was or was not a bounty of the State. There were conflicting rulings on the point previously but F the controversy has been finally settled by PLD 1970 SC 415 which has already been cited above. It was held in this case:- "The position, therefore, that emerges from the examination of the decisions above referred to is that a civil servant has and always had the right to recover from the Crown salary already accrued due to him, in spite of the fact that he held service during the pleasure of the Crown. The theory of the bounty of the State never applied either in England or in pre---independence India as regards arrears of pay. I am, therefore, with great respect, unable to agree with the views of the Judicial Committee of the Privy Council in I. M. Lall's case, that a civil servant had no right to arrears of pay nor could he recover tde same. It wall follow from this that I am also unable to agree with the law propounded by this Court in the case of Mehrajuddin, which appears to be based solely upon the decision of the Privy Council in I. M. Lull's case."
29. The argument of the learned counsel for the Government that in Pakistan the remuneration of a public servant was protected under Article 178 of the Constitution while in Azad Kashmir no such protection was available under the Government Act, has no force because the Supreme Court has held in this case that even without invoking the aid of the provisions of the 1962--Constitution, the bounty theory was untenable. The learned Chief Justice held:- "Upon the view I have taken as regards the applicability of the doctrine of bounty to the case of salary already accrued, due under the law prevailing at the time, the respondent filed her suit, the respondent's appeal to the High Court was bound to succeed even without invoking is aid the provisions of the Constitution of 1962."
30. I, therefore, accept the writ petition and direct the respondent to pay the petitioner an allowance equal to his full salary for the period of his suspension and dismissal; i.e. Between the 25th of September 1968 till the 4th of December 1971. However, in view of the nature of the question involved, I pass no order as to costs.
31. KHAWAJA MUHAMMAD SHARIF, C. J:----I agree.