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TMI Blog1993 (10) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law is in issue, has therefore, been referred to this Bench. 2. The basis question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, If any, to be awarded to him. This question in turn gives rise to the following incidental questions: (i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it? (ii) Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank? (iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? (iv) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the civil services, the methods of their recruitments, their condition s of service, pay and allowances and discipline and conduct. In pursuance of these powers, the Civil Services Classification Rules, 1920 were framed, and Rule XIV of the said Rules provided that without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, in all cases in which the dismissal, removal or reduction in rank of any officer is ordered, the order shall, except when it is based on facts or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusations hanging over him, be preceded by a properly recorded departmental inquiry. At such an inquiry, a definite charge in writing had to be framed in respect of each offence and explained to the accused. The evidence in support of it and any evidence which the accused may adduce in his defence had to be recorded in his presence and his defence had to be taken down in writing. Each of the charges framed had to be discussed and the finding had to be recorded on each charge. However, there was no provision made in the Rules for hearing the delinquent officer against the action proposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not make any difference to the prevailing Law. Since, as stated earlier, the Courts had already interpreted the provision to include the case of the removal of the employee as well. Probably the specific addition was on account of the interpretation placed by the courts. Article 311(2), however, underwent change with the Constitution (15th Amendment Act of 1963 which came into force from 6th October, 1963. It explained and expanded the scope of "reasonable opportunity". For the original expression "until he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him" the provision "except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry" was substituted. Consequent upon this Amendment, necessary changes were made in the proviso to Clause (2) of Article 311 which change need not detain us h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 15th Amendment of the Constitution. 4. It will be instructive to refer briefly to certain authorities on this aspect of the matter. We may first refer to the decision of this Court in Khem Chand v. Union of India and Ors. [1958] SCR 1080, where two questions squarely fell for consideration, viz., what is meant by the expression" reasonable opportunity of showing cause against the action proposed" and at what stage the notice against the proposed punishment was to be served on the delinquent employee. After referring to the decisions of the Judicial Committee in R, Venkata Rao v. Secretary of State for India L.R. (1936) 64 I.A. 55 and of the Federal Court in Secretary of State for India v. I.M. Lall (1945) FCR 103, the Court held that the reasonable opportunity envisaged by the provisions of Article 311(2) as originally enacted, was at the following stages: (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which the inquiry authority may regard as appropriate, is binding upon the punishing authority. In that case, the charge served upon the delinquent officer by the Inquiry Officer itself incorporated the proposed punishment. Hence it was also observed that in the communication addressed by the Inquiry Officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges, could not properly be set out. Two things, therefore, emerge from this decision, viz., that it is not the function of the Inquiry Officer to propose any punishment even after he records findings of guilt against the delinquent employee. Much less can the Inquiry Officer do so at the stage of serving the charges on the employee. Secondly, it is for the disciplinary authority to propose the punishment after receipt of the report of the Inquiry Officer which suggests that before the authority proposes the punishment, it must have applied its mind to the evidence and the findings recorded by the Inquiry officer. Still further question that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to observe that "it would thus be seen that the object of the second notice is to enable the public servant to satisfy the government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon is unduly severe. This position under Article 311 of the Constitution is substantially similar to the position which governed the public servants under Section 240 of the Government of India Act, 1935". The Court also observed that the decisions in The Secretary of State for India v. I.M. Lal (1945) FCR 103, High Commissioner for India and High Commissioner for Pakistan v. I.M. Lal 75 IA 225 and Khem Chand v. Union of India and Ors. [1958] SCR 1080, would show that it had never been suggested that the findings recorded by the Inquiry officer concluded the matter and the Government which appoints the Inquiry Officer and directs the inquiry is bound by the said finding and must act on the basis that the said findings are final and cannot be reopened. It is obvious that the Inquiry Officer holds the inquiry against the employee as a delegate of the disciplin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views in the matter of punishment were disclosed to the delinquent public servant. The Inquiry Officer is under no obligation or duty to make any recommendations in the matter of punishment and his function merely is to conduct the inquiry in accordance with law and to submit the records along with his findings. But if he has also made recommendations in the matter of punishment "that is likely to affect the mind of the punishing authority with regard to penalty or punishment to be imposed" it must be disclosed to the delinquent officer. Since such recommendations form part of the record and constitute appropriate material for consideration of the Government it would be essential that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. The entire object of supplying a copy of the report of the Inquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved, the punishment proposed to be inflicted is unduly severe". In General Manager, Eastern Railway and Anr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove his innocence of the charges levelled against him when they are held to have been proved by the Inquiry Officer, although he need not be heard on the question of the proposed penalty, was neither raised nor answered. This decision, therefore, is not helpful for deciding the said question. In Secretary, Central Board of Excise and Customs Ors. v. K.S. Mahalin-gam [1986] 3 SCR 35, again the question did not arise as to whether the report of the Inquiry Officer should be furnished to the delinquent employee as a part of the reasonable opportunity at the first stage, viz., before the disciplinary authority took its decision on the said report and came to its own conclusions with regard to the guilt or innocence of the employee. The contention raised there was with regard to the non-supply of the report to show cause against the penalty proposed. Since it was raised in ignorance of the 42nd Amendment of the Constitution, this Court rejected the said contention. In Ram Chander v. Union of India and Ors. [1986] 3 SCR 103 which is a decision of two learned Judges of this Court, it was lamented that after the 42nd Amendment of the Constitution, the question still remained as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nown to the delinquent and he gets no opportunity to point out such errors and omissions and to disabuse the mind of the disciplinary authority before he is held guilty. The Court then specifically pointed out that serving a copy of the inquiry report on the delinquent, employee to enable him to point out anomaly, if any before finding of guilt is recorded by the disciplinary authority, is altogether a different matter from serving a second show cause notice against the penalty to be imposed which has been dispensed with by virtue of the amendment of Article 311(2) by the 42nd Amendment of the Constitution. The Court then found that the said point required consideration by a larger Bench and referred the matter to Hon'ble the Chief Justice for placing it before a larger bench. 5. Since it is contended that in K.C. Asthana etc. etc. v. State of U.P. and Ors. etc. etc. , a Bench of three learned Judges has taken a view that it is not necessary to furnish the report of the Inquiry Officer to the delinquent employee before the disciplinary authority arrives at its conclusions, it is necessary to consider the said authority a little closely. In that case, pursuant to the direction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention was understood by this Court. The contention was not and at least it was not understood to mean by this Court, that a copy of the report was necessary to prove the innocence of the employee before the disciplinary authority arrived at its conclusion with regard to the guilt or otherwise on the basis of the said report. Hence, we read nothing in this decision which has taken a view contrary to the view expressed in E. Bashyan's case (supra) by a Bench of two learned Judges or to the view taken by three learned Judges in Union of India and India Ors. v. Mohd. Ramzan Khan . In Mohd. Ramzan Khan's case (supra), the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the 42nd Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the Inquiry Officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk of the law under which the inquiry is held and the Constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. In Chairman, Board of Mining Examination and Anr. v. Ramjee , the Court has observed that natural justice is not an unruly horse, no lurking land-mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt not the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the 42nd Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusion on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the Inquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilty or innocence of the charges. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting aside or not setting aside the order of punishment, (and not any internal appellate of revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E. Bashyan's case (supra) by the learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K.C. Asthana's Case(supra), no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan's case (supra) that the question squarely fell for decision before this Court. Hence till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case (supra) was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan's case (supra) that this Court laid down the law. That decision made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990. The law laid down was no applicable to the orders of punishment passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that there was an essential distinction between the Constitution and the statutes. The Courts are expected to and they should interpret the terms of the Constitution without doing violence to the language to suit the expending needs of the society. In this process and in a real sense, they make laws. Though it is not admitted, such role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive. To meet the then extraordinary situation that may be caused by the said decision, the Court felt that it must evolve some doctrine which had roots in reason and precedents so that the cast may be preserved and the future protected. The Court then referred to two doctrines familiar to American Jurisprudence, viz., Blackstonian view that the Court was not to pronounce a new rule but to maintain and expound the old one and, therefore, the Judge did not make law but only discovered of found the true law. That view would necessarily make the law laid down by the Courts retrospective in operation. The Court, therefore, preferred the opinion. The Court, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, stated that it would like to move warily in the beginning. Proceeding further, the Court laid down the following propositions: (1) The doctrine of prospective over-ruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. The Court then declared that the said decision will not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. The Court also declared that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights. Accepting the lead given in the above decision, this Court has since extended the doctrine to the interpretation of ordinary statutes as well. In Woman Rao an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional area where the exigencies of the situation require such an application. The direction with regard to the prospective operation of the law laid down in Mohd. Ramzan Khan's case (supra) was followed by various Benches of this Court, viz., S.P. Viswanathan (I) v. Union of India and Ors. [1991] Supp. 2 SCC 269, Union of India and Ors. v. A.K. Chatterjee and Managing Director, Food Corporation of India and Ors. v. Narendra Kumar Jain [1992] 2 SCC 400. The apparent departure was in R.K. Vashisht v. Union of India and Ors. [1993] Supp. 1 SCC 431. However, the employee there had made a request for a copy of the inquiry report but it was not furnished to him prior to the issue of the order of dismissal. It is in these circumstances that this Court, relying upon the proposition of law laid down in Mohd. Ramzan Khan's case (supra) held that the order of dismissal was vitiated. It is not clear from the decision whether the rules in that case required furnishing of the copy and at what stage. However, it has to be noticed that although it is in Mohd. Ramzan Khan's case (supra) that this Court for the first time accepted and laid down the law that the delinquent employee is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gujarat High Court in Premnath K. Sharma's case (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan khan's case was decided. Since the said decision made the law expressly prospective in operation made the law expressly laid down there will only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in court/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan's case (supra). This is so notwithstanding the view taken by the different Benches of the Central Administrative Tribunal or by the High Courts or by this Court in R.K. Vashist's case (supra). 8. The nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being heard" at an enquiry into a charge and the action proposed to be taken against a member of a civil service or holder of a civil post engrafted in Article 311 of the Constitution and the concept of the principles of natural justice embedded as its part at an enquiry into the charges against an employee of workman/officer of an authority under Article 12 of the Constitution, a workman/officer of an employer compendiously called "the delinquent" as the same principles are applicable to them all. Before doing so it is necessary to state facts in brief in some sample cases. 10. The respondent B. Karunakar in the main appeal while working as a Sr. Technical Officer, was served on December 27,1986 with a Memorandum of Charges setting out the misconduct, said to have been committed by him, with details thereof that he had unauthorisedly sold T.V. sets. The enquiry officer appointed in this behalf conducted the enquiry, recorded the evidence, given him adequate opportunity to rebut the evidence. On March 13, 1987 the enquiry officer submitted his report finding that the respondent acted fraudulently and dishonestly in conducting the business of the appellant company and acted thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 1992, Bank of India v. Vinodchandra Balkrishan Pandit, the respondent was served with a chargesheet on 10th August, 1982 accusing him of having misconduct by taking illegal gratification in his discharge of official duties. The enquiry officer after giving full opportunity found him to have received illegal gratification in the stated instances and was guilty of the charges. The disciplinary authority agreed with the findings of the enquiry officer; removed him from service by supplying him a copy of the enquiry report along with the order of removal as required under Regulation 9 of the Bank of India Employees (Disciplinary Appeal) Regulations, 1976. Following the Ramzan Khan's case, the order was set aside. These facts have been stated with a view to illustrate that Ramzan Khan's ratio was applied by the Court/Tribunals to the cases where rules are either absent, or Statutory Rules were amended after Constitution 42nd Amendment Act, 1976, omitting the obligation to supply a copy of the enquiry report. The Banking Regulations enjoins to supply it along with the order when served. 11. It is settled law that the disciplinary authority, by whatever name called, has power and ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct, it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case. 13. In Bachhittar Singh v. State of Punjab another Constitution Bench held that the departmental proceedings taken against the Govt. servant are not divisible into two compartments. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges raised against the Govt. servant have been established of not and the second is reached only if it is found that they are established. That stage deals with the action to be taken against the Govt. servant concerned. Therefore, from the stage of service of the chargesheet till the imposition of punishment was considered to be a continuous whole process consisting of the proof of the charge and imposition of the punishment on the proved charge. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons on the delinquent. If the enquiry officer has also made recommendation in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to the penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent. Since such recommendation from part of the record and constitutes appropriate material for consideration, it would be essential that the material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. The entire object of supplying a copy of the report of the enquiry officer is to enable the delinquent to satisfy the punishing authority that he is innocent of the charges framed against him that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. 14. In State of U.P. v. Sabir Hussain [1975] Suppl. SCR 354 a bench of three judges held that the supply of the report of the enquiry officer is a part of reasonable opportunity under Article 311(2) of the Constitution. In State of Madras v. A.R. Srinivasan another Constitution bench held that in case the Govt. agrees with the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said evidence, allow him liberty to lead evidence in defence and then come to a decision of his own. Such an enquiry is described by the requirements of natural justice and in that case since that was not complied with it held that the enquiry was vitiated by the principles of natural justice. 17. In Union of India v. K.R. Memon , a bench of two judges held that the rule does no lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. The record of enquiry should be considered and disciplinary authority should proceed to give its findings of each charge. It is not obligatory to discuss the evidence and the facts and circumstances established at the enquiry in detail and to write as if it were an order on the judicial tribunal. If the disciplinary authority agrees with the findings of the enquiry officer on the charges mentioned in the chargesheet had been established, it must be construed that the he was affirming the findings on each charge and that would certainly fulfill the requirements of the principle of natural justice. In Lakshmiratan Cotton Mills Co. Ltd. v. Its Workmen , a bench of three judges held that wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer then he is enjoined to record the reasons for his disagreement. On the nature of the penalty, though it is discretionary, the discretion must be exercised reasonably, consistent with the gravity of the misconduct having indelible effect on the discipline or morale of the service, etc. and adequate punishment be imposed on the delinquent. Brief reasons in this behalf also always lend assurance of the application of the mind and consideration given to the case by the disciplinary authority which would be a factor the High Court of the Tribunal would take into consideration even on the nature of the penalty. 20. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary authority in his concluding the guilt or penalty to be imposed. The delinquent is therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless the copy of the report is supplied to him, he would be in dark to know the findings, the reasons in support thereof or nature of the recommendation on penalty. He would point out all the factual or legal errors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21. The contention, therefore, of Sri Salve that supply of the enquiry report was part of the later clause of Article 311(2) i.e. to impose penalty which requirement was dispensed with by the Constitution forty second amendment Act, Sect. 44 thereof, deleting the necessity of issuance of second show cause notice on the proposed punishment to the delinquent does not merit consideration The reasons are self evident. 22. Even prior to the Constitution forty second amendment Act the entire proceedings was considered as an integral whole and on receipt of the report of the enquiry officer the disciplinary authority was required to consider the record and to arrive at a provisional conclusions thereon; a show cause notice with the proposed punishment was a part of the reasonable opportunity envisaged under Article 311(2). The supply of the copy of the report at that stage was made an integral part of the reasonable opportunity. On receipt thereof the delinquent officer got the opportunity to controvert even the findings recorded, their correctness and legality showing that the charges which were held proved by the enquiry officer could not be sustained for the reasons set forth in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charged or on both. 25. Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is by the disciplinary authority. Therefore, the need to supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the enquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala , Shadi Lal Gupta v. State of Punjab , Hira Nath Mishra v. Principal Rajendra Medical College, Ranchi ; Satyavir Singh v. Union of India , Secretary, Central Board of Excise & Customs v. K.S. Mahalingam and Union of India v. Tulsiram Patel [1985] Suppl. 2 SCR 131. I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the enquiry into the misconduct and submits his report, but his findings or conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply second show cause notice was dispensed with, regarding punishment, and therefore, that ratio renders no assistance to the case. Hira Lal Mishra's case also, if of no avail since the enquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration, and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardize their safety and so was withheld. Accordingly this Court on the facts situation upheld the action of the Medical College. Satyavir Singh's ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the C.C.A. Rules. The enquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Ashtana's case was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the enquiry before the disciplinary authority considers the material an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him. 27. The next question is whether Mohd. Ramzan Khan ratio in its grant of relief to him and his companions is per incuriam? Adherence to precedents and retrospective overruling has its legacy from the declaratory theory of precedent propounded by Blackstone that the duty of the court is not to "pronounce a new law but to maintain and expound the old one" and the "if it is to be found that the former decision is manifestly unjust or absurd, it is declared, not that such sentence was bad law, but that it was not the law" Vide his Commentaries pp. 69-70. Steadfast adherence to stare decisis is being advocated for stability, consistence and certainty as inherent values on the premise that it is much more conducive to the law' self-respect and it provides greatest deterrence to judicial creativity tampering with the restraining influence of certainity. Lord Reid in Birmingham City Co. v. West Midland Baptist (Trust) Ass. (1969) Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than one conclusion, the choice must be rational in terms consistent with accepted modes of legal reasoning. At p.57 it was further stated that there are occasions where judicial innovation is valuable and appropriate. The legislatures are not perfectly organised to make law; they are not always well informed, articulate majorities inciting our legislatures to action. Even an alert society needs leaders and teachers to formulate its objectives and to galvanise it into action. Inevitably a court, as is true of all our political organisations, will represent important minority interests. In a society overwhelmed by a consciousness of the vastness and variety of its tasks, there is opportunity for social responsibility in all branches of Govt. It may be true that judicial intervention occasionally relieves the legislature of tasks better performed by them. Atiyah at p. 146 stated that the solution appears to be to overruling only prospectively. 28. Though by far the legislature must be responsible for the formulation and promulgation of principles of conduct which are of general, and prospective applicability to a given community for an indeterminate number of situation, admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dissenting opinion of Denning, L.J, as he then was, has now received approval and Candler was overruled by the House of Lords in Hedley Byrene & Co. Ltd. v. Heller & Panners Ltd. (1964) A.C. 465 interpreting whether a banker has a special relationship of duty of care in making careless misrepresentations, Lord Devlin held that the duty of care arises where the responsibility is voluntarily accepted or undertaken either generally, where a general relationship is created, or specifically in relation to a particular transaction, the law hitherto was existing. But, per majority held that the banker, though honest misrepresentation, spoken or written, was negligent, and it may give rise to an action for damages for financial loss caused thereby, any contract or fiduciary relationship apart, since "law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment". Without holding prospective operation of Hedley ratio, the House of Lords while setting aside the previous precedents laid new liability impliedly applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "we have no occasion to consider whether this division in time of the effects of a decision as a sound or an unsound application of a doctrine of stare decisis as known to the common law. Sound or unsound, there involved in it no denial of a right protected by the Federal constitution. This is not a case where a court in overruling an earlier decision, has given to a new ruling a retroactive bearing, and thereby has made invalid what was valid in the doing.... The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts." In Dollree Mapp. v. Ohio 367 U.S. 643, 12 L.Ed. 2nd 1081, (1961), it was held that evidence seized in a search and seizure violates the Fourth Amendment. Whether the ratio in Mapp's case could be applied retrospectively had come up in Victor Linkletter v. Victor G. Walker 381 U.S. 618 14 L.Ed. 2nd 601, (1965). Per majority it was held that though the evidence collected in illegal search and seizure violated Fourth Amendment, the ratio in Mapp would apply prospectively. The court further laid down tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of applying the decision only prospectively and with respect to other parties. Accordingly due process in Miranda and Escobedo ratio was denied to Johnson. In TA. Jenkins v. State of Delaware 395 U.S. 213, 23 L.Ed. 2nd, 253, (1969), the Miranda ratio was not applied retrospectively to the pending appeals in Jenkins case. It was held that Miranda rule did not have to be applied to post Miranda trial of a case originally tried prior to the Miranda decision. It was further held that there is a large measure of judicial discretion involved in deciding the time from which that new principle is to be deemed controlling. In P.B. Rodrique v. Aetna Casualty Co. 395 U.S. 352, 23 L.Ed. 2nd 360 (1969) at an action brought in United States Dist. Court in Lusiana for damages for death of the workman while in service, the Dist. Court on the basis of the Outer Continental Shelf Lands Act, held that damages claimed was not available. The suit was dismissed on appeal it was confirmed. On certiorari, the Supreme Court of United States reversed the decision and held that the constitutional right gives them the remedy for damages. In Chevron Oil Co. v. Gaines Ted Huson 404 U.S. 97, 30 L.Ed. 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted. While the appeal was pending in the Court of Appeal, the Supreme Court of the United States of America in Almeida-Sanchez v. U.S. 413 U.S. 266, 37 L.Ed. 2nd 596, held that warrant less automobile search conducted about 25 air miles from the Mexican border by the Border Patrol Agent was without probable cause offending Fourth Amendment of the Constitution. Therefore, the search was declared unconstitutional and the conviction was set aside. On concession by the State, the court of appeal set aside petitioner's conviction giving him the benefit of the Almeida-Sanchez rule. On appeal, the Supreme Court of the United States of America, per majority, held that Almeida-Sanchez's ratio would not be applied retrospectively if search was conducted prior to the date of the decision, since Border Patrol Agents had acted pursuant to be statutory and regulatory authority to conduct warrant less searches of the vehicles within 100 air miles from the border, existing law was that it was permissible. The same ratio was reiterated in Bowen v. U.S. 422 U.S. 916, 45 L.Ed. 2nd 641. In this case the ratio in Almeida-Sanchez was laid while his petition for certiorari was pending consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective and given the relief to the party succeeding and in some cases given retrospectively and denied the relief in other cases. As a matter of constitutional law retrospective operation of an overruling decision is neither required nor prohibited by the Constitution but is one of judicial attitude depending on the facts and circumstances in each case, the nature and purpose of the particular overruling decision seeks to serve. The court would look into the justifiable reliance on the overruled case by the administration; ability to effectuate the new rule adopted in the overruling case without doing injustice; the like hood of its operation whether substantially burdens the administration of justice or retard the purpose. All these factors to be taken into account while overruling the earlier decision or laying down a new principle. The benefit of the decision must be given to the parties before the Court even thought applied to future cases from that date prospectively would not be extended to the parties whose adjudication either had become final or matters are pending trial or in appeal. The crucial cut off date for giving prospective operation is the date of the judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same lines to give benefit to the party in the overruling case. P.S. Atiyah and R.S. Summers in their 'Form and Substance in Anglo-American Law' at page 146 also stated that: "if litigants who persuade the" court to overrule a bad precedent are not themselves accorded the benefit of the new law, would they have sufficient incentive to litigate such cases so that bad law is not perpetuated". It is, therefore, argued to extend the benefit to the successful party in the case. 37. Mohd. Ramzan Khan's ratio giving the benefit to him and companion appellants was valid in law and not, therefore, per-inquarium and was legally given the reliefs. The contention of the counsel for the employees/Govt. Servants that the denial of Ramzan Khan's ratio to the pending matters offend Article 14 is devoid of substance. It is seen that placing reliance on the existing law till date of Ramzan Khan, the employers treated that under law they had no obligation to supply a copy of the enquiry report before imposing the penalty. Reversing the orders and directing to proceed from that stage would be a needless heavy burden on the administration and at times encourage the delinquent to abuse the office til ..... X X X X Extracts X X X X X X X X Extracts X X X X
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