TMI Blog1993 (10) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... sions are taken and orders made from the date and does not apply to all the matters which either have become final or are pending decision at the appellate forum or in the High Court or the Tribunal or in this Court. - Appeal (civil) 3056 of 1991 - - - Dated:- 1-10-1993 - M. Venkatachaliah, P. Sawant, K. Ramaswamy, S. Mohan And B. J. Reddy, JJ. ORDER P.B. Sawant, J. 1. This group of matters is at the instance of various parties, viz., Union of India, Public Sector Corporations, Public Sector banks, State Governments and two private parties. By an order dated 5th August, 1991 in Managing Director, Electronic Corporation of India v. B.Karunakar , a three Judge Bench of this Court referred that matter to the Chief Justice for being placed before a Larger Bench, for the Bench found a conflict in the two decisions of this Court, viz., Kailash Chander Asthana etc. etc. v. State of U.P. and Ors. etc. etc. , and Union of India and Ors. etc. etc. v. Mohd. Ramzan Khan both delivered by the Benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of SLP (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the law prior to the Public Servants (Inquiries) Act, 1850 which for the first time made uniform, the law regulating inquiries into the behaviour of public servants who were not removable from their appointments without the sanction of the Government. It provided for a formal and public inquiry into the imputations of misbehaviour against the public servant. Either the Government, if it thought fit conducted the prosecution or left it to the accuser to conduct it after requiring him to furnish reasonable security. The Act also provided that the inquiry may be committed either to the Court, Board or any other authority to which the accused public servant was subordinate, or to any other person or persons to be specially appointed as Commissioners for the purpose. Section 25 of the Act, however, saved the authority of the Government for suspending or removing any such public servant for any cause without an inquiry under the Act. While the said Act continued to be on the statute book, the Government of India Act, 1919 was enacted and Sub-section (2) of Section 96B of that Act authorised the Secretary of State in Council to make rules for regulating, the classification of the civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion "reasonable opportunity to show cause" was accordingly interpreted to mean an opportunity at the stage to represent to the authority against the tentative findings both with regard to the guilt and the proposed punishment. It was, therefore, held that in order that the employee had an effective opportunity to show cause against the finding of guilt and the punishment proposed, he should, at that stage be furnished with a copy of the findings of the inquiring authority. It is in this context that the furnishing of the Inquiry Officer's report at that stage was held to be obligatory. It is, however, necessary to note that though the provisions of Section 240(3) of the Government of India Act stated that they would apply only when the employee was sought to be dismissed or reduced in rank which were the major punishments, the same were interpreted to mean that they would also apply when the employee was sought to be removed. These provisions of Section 240(3) of the GOI Act were incorporated bodily in Article 311(2) of the Constitution with a specific addition of the case of "removal" of the employee to the cases of dismissal and reduction in rank. This addition did not make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on" of course meant the person who was to be dismissed or removed or reduced in rank. In other words, the 42nd Amendment of the Constitution while retaining the expanded scope of the reasonable opportunity at the first stage, viz., during the inquiry as introduced by the 15th Amendment of the Constitution, did way with the opportunity of making representation against the penalty proposed after the inquiry. It is this Amendment to Article 311(2) which has given rise to the controversy as to whether when the Inquiry Officer is other than the disciplinary authority, the employee is entitled to a copy of the findings recorded by him, before the disciplinary authority applies its mind to the findings and the evidence recorded, or whether the employee is entitled to the copy of the findings of the Inquiry Officer only at the second stage, viz., when the disciplinary authority had arrived at its conclusions and proposed the penalty. Upon answer to question depends the answer to the other question flowing form, it viz., whether the employee was entitled to make representation against such finding before the penalty was proposed even when Article 311(2) stood as it was prior to the 15th Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntatively and proposed a particular punishment. It was necessary to state so, since in that case no notice was served upon the appellant there when the competent authority accepted the report of the Inquiry Officer and confirmed the opinion that the punishment of dismissal should be inflicted on him, and no cause, therefore, could be shown by him. On the other hand, by the first notice itself which communicated the charges, the appellant was called upon to show cause as to why he should not be dismissed from service, although the notice further called upon the appellant to state in reply whether he wished to be heard in person and whether he would produce his defence. What are the duties of the Inquiry Officer appointed by the disciplinary authority to conduct the inquiry, is the next question and this Court in A.N. D'Silva v. Union of India [1962] Supp. 1 SCR 968 at 977 has in terms held that the question of imposing punishment can arise after inquiry is made and the report of the Inquiry Officer is received. It is for the punishing authority to propose the punishment and not for the inquiring authority to do so. The latter has, when so required, to appraise the evidence, to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report. If the report makes a finding in favour of the public servant and the Government agree with the said finding, nothing more remains to be done, and the public servant who may have been suspended is entitled to reinstated with consequential reliefs. If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed in the public servant and proceed to issue a second notice against him in that behalf. If the Inquiry Officer makes findings, some of which are in favour of the public servant and some against him, the Government is entitled to consider the whole matter and if it holds that some or all the charges framed against the public servant are, in its opinion, prima facie established against him, then also the government has to decide provisionally what punishment should be imposed on the public servant and give him notice accordingly. The Court then proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed to hold an inquiry so required, the Inquiry Officer need not make any recommendations as to the punishment to be imposed. If, however, the Inquiry Officer makes any recommendations in that behalf, the said recommendations like his findings on the merits, are intended merely to supply appropriate material for the considerations are binding on the Government. In Avtar Singh, Police Constable v. The Inspector General of Police, Punjab (1968) SLR 131 admittedly the findings of the Inquiry Officer were not communicated to the delinquent employee and he was only orally told that it was proposed to dismiss him. The Court in this context held that every public servant is entitled to have the whole of the matter brought to his notice before he was asked to show cause why particular punishment should not be meted out to him, The Court has explained what it meant by "the whole of the matter" by stating that it is the findings on the charges against him which should be made known to him. In State of Gujarat v. R.G. Teredesai and Anr. this Court held that the requirement of a reasonable opportunity would not be satisfied unless the entire report of the Inquiry Officer including his v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road test of "reasonable opportunity" is whether in the given case the show cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable him to clear himself of the guilt, if possible, even at that stage or in the alternative to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge established against him. In Union of India and Anr. v. Tulsiram Pateland Ors. [1985] Supp. 2 SCR 131, this Court had specifically to consider the legal position arising out of the 42nd Amendment of the Constitution by which Clause (2) of Article 311 was amended and the part of the said clause, viz., "and where it is proposed, after such inquiry, to impose on him any such penalty 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 deleted. In that decision, this Court has not dealt with the procedure to be followed by the disciplinary authority after the Inquiry Officer's report is received by it. The question whether the delinquent employee should be heard by the disciplinary authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 311(2) of the Constitution and also of the principles of natural justice. It was opined that in the event of failure to furnish the report of the Inquiry Officer, the delinquent employee is deprived of crucial and critical material which is taken into account by the real authority which holds him guilty, viz., the disciplinary authority. According to the Court, it is the real authority because the Inquiry Officer does no more than act as a delegate and furnishes the relevant material including his own assessment regarding the guilt, to assist the disciplinary authority who alone records the effective finding. The non-supply of the copy of the report would, therefor, constitute violation of the principles of natural justice and accordingly will be tantamount to denial of reasonable opportunity within meaning of Article 311(2) of the Constitution. It was observed that there could be glaring errors and omissions in the report or it may have been based on no evidence or rendered in disregard of or by overlooking evidence. If the report is not made available to the delinquent employee, this crucial material which enters into the consideration of the disciplinary authority never comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have vitiated the subsequent proceedings including the impugned order of punishment. In this connection, a reference was made to the explanation to Sub-rule (3) of Rule 9 of the said Rule providing that a copy of the recommendations of the Tribunal as to the penalty should be furnished to the charged Government servant. As against this, the learned Counsel for the respondent-State of U.P. and others pointed out that after the 42nd Amendment of the Constitution the said Explanation was dropped. The Court, therefore, observed as follows: The question of service of copy of the report arose on account of a right of a second show cause notice to the government servant before the 42nd Amendment and since present disciplinary proceeding was held later, the petitioner cannot legitimately demand a second opportunity. That being the position, non-service of a copy of the report is immaterial. In this view of the matter, the Court dismissed the writ petition. It would thus be clear that the contention before this Court in that case was that the copy of the report of the inquiring authority was necessary to show cause at the second stage, i.e., against the penalty proposed. That was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady made, as stated above, by a Bench of three learned Judges. The anomaly has thus lent another dimension to the question to be resolved in the present case. 6. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak and Ors. etc. v. Union of India and Ors. , it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative inquires from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than decision in quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the inquiry officer's report since, as held by the Court, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the 'reasonable opportunity' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the Inquiry Officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the 42nd Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to shown cause against the proposed penalty was issued. If the disciplinary authority after considering the Inquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment. (iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. (iv) In the view that we have taken, viz., that the right to make repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the Courts/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post "today" de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any. Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges, before the 42nd Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law laid down by them prospective in operation lo prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well-known decision on the point. In I.C. Golak Nath and Ors. v. State of Punjab and Anr. , dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, the Court took into consideration the fact that between 1950 and 1967, as many as twenty amendments were made in the Constitution and the legislatures of various States had made laws bringing about an agrarian revolution in the country. These amendments and legislations were made on the basis of the correctness of the decisions in Sri Sankari Prasad Singh Deo etc. v. Union of India and State of Bihar etc. [1952] SCR 89 and Sajjan Singh v. State of Rajasthan viz., that the Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside the judicial scrutiny on the ground they infringed the said rights. The Court then stated that as the highest Court in the land, it must evolve some reasonable principle to meet the said extra-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for retroactivity in respect of a subject matter that had been finally decided between the parties. The Court pointed out that the Courts in this land also, by interpretation, reject retroactivity of statutory provisions though couched in general terms on the ground that they affect vested rights. The Court then referred to Articles 141 and 142 to point out that they are coached in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice. These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. The Court then held that in the circumstances to deny the power to the Supreme Court to declare the operation of law prospectively on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective a powerful instrument of justice placed in the hands of the highest judiciary of this land. The Court then observing that it was for the first time called upon to apply the doctrine of prospective overruling evolved in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he invalidity of the levy need not automatically result in a direction for a refund of all collections thereof made earlier. The Court held that the declaration regarding the invalidity of a provision of the Act enabling levy and the determination of the relief to be granted were two different things and, in the latter sphere, the Court had, and it must be held to have, a certain amount of discretion. It is open to the Court to grant moulded restricted relief in a manner most appropriate to the situation before it and in such a way as to advance the interest of justice. It is not always possible in all situations to give a logical and complete effect to a finding. On this view, the Court refused to give a direction to refund to the assessees any of the amounts of cess collected until the date of the decision since such refund would work hardship and injustice to the State. We may also in this connection refer to Victor Linkletter v. Victor G. Walker 381 U.S. 618, 14 L.ed. 2d 601, where it was held that a ruling which is purely prospective does not apply even to the parties before the court. The Court held that in appropriate cases a court may in the interest of justice make its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly challenged, the other decisions taking the same view were under challenge before this Court both before Mohd. Ramzan Khan's case (supra) was decided and thereafter. In fact, as stated in the beginning, the reference to this Bench was made in one such case as late as on the 5th August, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan's case (supra), the law on the subject was in a flux. Indeed, it is contended on behalf of the appellants/petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan's case (supra) and the view taken by this Court in the earlier cases, and the reliance placed on K.C. Asthana's case (supra) to contend that a contrary view was taken there was not well-merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave to the said orders should be reopened on that account. Hence we hold as above. In the view we have taken, we direct that all the appeals and special leave petitions be now placed before an appropriate Bench of this Court for decision according to the law laid down here. K. Ramaswamy, J. 9. I have the benefit of reading the draft judgment of my learned brother P.B. Sawant, J.. While broadly agreeing with his interpretation of Article 311(2), I disagree with his conclusion that the application of Mohd. Ramzan Khan's ratio to him and his companions was per incuriam To deal with certain aspects which would flow from our judgment in this batch too. I feel it expedient to express my views. Since my learned brother has critically examined in extenso the historical development and the interpretation given to Section 240(3) of the Govt. of India Act, 1935 and Article 311(2) of the Constitution of India vis-a-vis the Constitution 15th Amendment Act, 1963 and the Constitution 42nd Amendment Act, 1976. I would desist to tread the path once over. For continuity of thought. I would broadly sketch t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violates the principles of natural justice. In Civil Appeal No. 239 of 1994 (arising out of S.L.P. (C) No. 13813 of 1992) State of M.P. v. A. Sheshagiri Rao, the respondent, while working as Executive Engineer, was suspended by order dated 21st July, 1983. On October 21,1983 he was served with a chargesheet. After conducting an enquiry the enquiry officer submitted his report and the disciplinary authority while agreeing with the findings of guilt, reverted him by an order dated October 21, 1987 as an Asstt. Engineer, It was set aside by the Tribunal, holding that non-supply of the enquiry report was denial of opportunity under Article 311(2) and it violates the principle of natural justice. In S.L.P. (C) No. 17484 of 1991) Union of India v. Mohammed Naimulla, the respondent was working as an electrical fitter. On March 11, 1983, a chargesheet was issued. The enquiry officer had given him reasonable opportunity and after completing the enquiry submitted his report that the charges were proved against the respondent. The disciplinary authority by an order dated April 29, 1988 removed him from service. On appeal, it was confirmed. The Tribunal set aside the order. In all these cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons and findings or conclusions in support of the proof or disproof of each of the charge or charges, as the case may be. He shall transmit the record of enquiry and his report to the disciplinary authority. 12. In Khem Chand v. Union of India [1957] SCR 1080, it was held thus: If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to the established, for it is only then that he will be able to put forward his defence. It the purpose of this provision is to give the Govt. servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le opportunity envisaged under Article 311(2) and also violates the principle of natural justice. If the dismissal order is based on no evidence then the order of dismissal is clearly illegal. In State of Maharashtra v. B. A. Joshi , this Court held that the report of the enquiry officer is found to influence the disciplinary authority; to deprive the plaintiff of a copy of the report was a handicap to the delinquent and he was not knowing what material had influenced the disciplinary authority. Therefore it was held that it would be in a rare case in which it can be said that the govt. servant was not prejudiced by the non-supply of the report of the enquiry officer. Accordingly finding of the High Court holding that non-supply of the report violates to principles of natural justice and the statutory provision was uphold by a bench of three judges. In State of Gujarat v. R.G. Teredesai , a bench of three judges held that the enquiry officer was under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry was held. Its function was merely to conduct the enquiry in accordance with the law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govt. were conjectures and there was no evidence to show that any amount was deducted by the delinquent himself or at his instance or even by his connivance. Accordingly the order of removal from service set aside by the High Court was upheld. 16. In A.N. Silva v. Union of India [1962] Suppl. 1 SCR 968 a bench of two judges held that while rules provide graded punishment consistent with the magnitude the misconduct, the rules left to the decision of the punishing authority to select the appropriate punishment have regard to the gravity of the misconduct. It is not for the enquiry officer to propose the punishment in which even the copy of the report should be supplied to the delinquent. In Avtar Singh v. I.G. of Police, Punjab (1968) 2 SLR 131 another Constitution bench found that nothing was clear from the report of the enquiry officer as to on what ground the findings were based and what the findings themselves were. In that view it was held that it is difficult to hold that there was due compliance with the requirement of Article 311(2) In Calcutta Dock Labour Board v. Jaffar Imam [1965] 2 L.L.J. 113, a bench of three judges held that the employer must lead evidence against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution bench held that when an enquiry was held and before provisional conclusions are reached, the delinquent officers is entitled to an opportunity of show cause. In Krishna Chandra Tandon v. Union of India [1974] 4 SCC 380 a bench of two judges held that the disciplinary authority is entitled to go into the findings and differ from the enquiry officer in respect of one or all the charges. 19. It would thus, be clear that the report together with the findings on the charge and the recommendations, if any, would constitute appropriate material for consideration by the disciplinary authority. It is not incumbent upon the enquiry officer to indicate in his report of the nature of the penalty to be imposed on the delinquent. Neither findings on merits, nor the suggested penalty binds the disciplinary authority who is enjoined to consider the record and the report. It is open to him to agree on the findings of the enquiry officer in which event he need not record elaborate consideration or reasoning in support of his conclusions, but the order must bear out his application of mind to the questions involved and brief reasons in support thereof, though not like a judgment. If he disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liative path of fair consideration. The denial of the supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Article 226 of the Constitution or Section 19 of the Tribunal Act or other relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to the delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is, thus, a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself effectively and efficaciously. The denial thereof is offending not only Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a postmortem certificate with purifying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the constitution, but also, the principles of natural justice. The contention on behalf of the Govt./management that the report is not evidence adduced during such enquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that Evidence Act has no application to the enquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with Indian Evidence Act, though the essential principle of fair play envisaged in the Evidence Act are applicable. What was meant by evidence in the proviso to Article 311(2) is the totality of the material collected during the enquiry including the report or the enquiry officer forming part of the material. Therefore, when reliance is sought to be placed, by the disciplinary authority on the report of the enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal's case Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules does not provide for the supply of copy of the report of an enquiry conducted by the fact finding authority before enquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him Under those circumstances it was held that the principle of natural justice cannot be put into an iron cast or a straight jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation of the principle of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel' ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance in S.K. George's case in Tulsiram Patel ratio renders no assistance in the light of the above discussion. Since Mahalingam's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessary the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weight the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance in Anglo American Law" [1987 Oxford ED. p.146 and Prof. Baker in his "Judicial Discretion" 254 (1993 Ed.) are the proponents of the articulation and efficacy of prospective overruling or prospective application of a new principle laid by the courts. Prof. Jafee at p.37 stated that if the law is to function as a control, it is to set the limits within which innovation is to take place, the judge should rationalise his decision. We have come to believe that where discretion is exercised, be it by administrator or judge, the requirement of rationalisation is crucial. In submitting himself to this discipline, the Judge alerts himself to the limits of his power, laying the basis for objective criticism, and enables the citizenry to anticipate and so to conform its conduct to the potentialities of the decision. This process imposes two requirements. First, the decision must be based upon a principle already found in the existing law. It may be a constitutional provision or a statute or a principle derived by the judges from common law rulings. The decision should be logically consistent with the texts on which it is founded. The second, logical consistency does not suffice to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... announced, a new right and a new wrong will emerge in the announcement. Justice Cardozo described this process in his inimitable style in selected writings that "there have been two paths, each open, though leading two different goals. The fork in the road has not been neutralised for the traveller by a barrier across one of the prongs with the label of "no thoroughfare". He must gather his wits, pluck up his courage, go forward one way or the other, and pray that he may be walking, not into ambush, morass, and darkness, but into safety, the open space, and the light". 29. When judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions or prospectively to the transactions in future only. This process is limited not only to common law traditions, but exists in all the jurisdictions. Though Lord Denning is the vocal proponent of judicial law making and the House of Lords consistently overruled him, judicial law making found its eloquent acceptance even from the House of Lords and buried the remnants of the Blackstone's doctrine in the language of Prof. Friedmann, "has long been little mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment without disturbing past transactions. 31. Prospective overruling, therefore, limits to future situations and exclude application to situations which have arisen before the decision was evolved. Supreme Court of United States of America in interpretation of the constitution, statutes or any common law rights, consistently held that the Constitution neither prohibits nor requires retrospective effect. It is, therefore, for the court to decide, on a balance of all relevant co considerations, whether a decision overruling a previous principle should be applied retrospectively or not. In Great Northern Railway Company v. Sunburst Oil Refining Co. 287 U.S. 358, 77 L.Ed. p.360, 1932, Justice Cardozo speaking for the unanimous Supreme Court of U.S.A. for the first time applied prospective operation of the decision from the date of the judgment. The Supreme Court of Montana overruled a previous decision granting shippers certain rights to recover excess payment regulated by Rail-Road Commission of intrastate freight rate. The Montana Court held that the statute did not create such a right. While approving the above rule it was held that it would not apply to past contracts or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th and that became final. When certiorari was sought placing reliance on Escobedo and Miranda ratio, the Court per majority held that even in criminal litigation court would made a new judicial rule prospective where the exigencies of the situation require such an application. The court held that even though it involved constitutional right of accused it would look into the purpose of the newly evolved rule, the reliance placed on the former rule and the effect on the administration of justice of a retrospective operation of the new rule have to be considered. The retroactivity or non-retroactivity of a new judicial rule involving a constitutional dictate is not automatically determined by the provision of the Constitution on which the dictate is based. The Court must determine in each case, by looking to the peculiar traits of the specific rule in question even if the new rule has already been applied to the parties before the court in the case in which the rule was announced, its impact on the administration of justice be taken into account, the extent to which safeguards other than that involved in the new rule are available to protect the integrity of the truth determining proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed retrospectively, there is ample basis for avoiding injustice or hardship by a holding of non-retrospectivity. Accordingly the Court held that the suit was within limitation and remanded the matter for trail according to law. In Northern Pipeline Construction Co v. Marathon Pipeline Co. 458 U.S. 50, 73 L.Ed. 2nd 598, 1982, the question was whether the Bankruptcy Act 1978 and bankruptcy courts applied to Federal Dist. established earlier and the appointments of the tenure judges by 1978 Act were contrary to Article III protection. While declaring, per majority, that the appointment of tenure judges was violative of Article III protection offending independence of judiciary, the court applied the law prospectively while giving relief to the plaintiff therein, stayed its operation until a further date affording opportunity to the Congress to amend the Law to reconstitute bankruptcy courts or to adopt other valid means of adjudication without impairing the interim administration of the bankruptcy laws. 32. In U.S. v. James Robert Peltier 422 U.S. 531, 45 L.Ed. 2nd 374 [1975], the respondent was convicted for Federal Narcotics office. The Border Patrol Agent conducted a search at 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was decide. Thereon it was contended that the respondent will be entitled to the benefit of the ratio in Payton. The state argued that the ratio in Payton should not be applied retrospectively to an arrest that had occurred before Payton was decided. The court of appeal did not agree and held that Payton ratio did apply retrospectively. On appeal the Supreme Court of the United States of America per majority held that the rule announced in Payton's case would apply retrospectively to pending direct appeal since Fourth Amendment Immunization was extended and the conviction was set aside. 34. In Golak Nath and Ors. v. State of Punjab and Anr. , this Court while declaring that Sankari Prusad Singh Deo v. Union of India [1952] SCR 89 and Sajjan Singh v. State of Rajasthan were wrongly decided, held that the constitutional amendments offend the fundamental rights and the Parliament has no power to amend fundamental rights exercising the power under Article 368, applied Golak Nath rule prospectively and upheld the pre-existing law as valid, Mohd. Ramzan Khan treat on the same path. 35. It would, thus, be clear that the Supreme Court of the United States of America has consistentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the successful party received commendation from the academic lawyers. In 'Introduction to Jurisprudence' 4th Ed. Lord Lloyd of Hampstead at p.858 stated that a strong argument against the Sunburst approach is that potential litigants faced with outmoded doctrine are given no incentive to litigate. If they win, their case is governed by the old doctrine and new rule would apply only to disputes subsequently arising. Litigants who provide the courts with opportunities to rid the normative order of outmoded doctrine are performing a social service, and deserve some reward for their exertions. Andrew G.L. Nicol in his 'Prospective Overruling - a Text for English Courts' 39 MLR 542 at 546 also stated that 'excepting the parties to the overruling decision from the denial of retroactivity, the courts which use this variation talk in terms of reward for the party who has persuaded them to see the error of their ways. They argued that unless the party to the instant case is given the benefit of new decision, there will be no incentive for him to raise the correctness of the old decision. Finally they say that if the new rule is not applied in the instant case, the overruling will be obiter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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