Gauhati High Court
Trd Nair And G.N. Kurup vs Union Of India (Uoi) And Ors. on 4 February, 1992
Equivalent citations: [1992(65)FLR836], (1993)ILLJ868GAU
JUDGMENT Manisana, J.
1. In this application under Article 226 of the Constitution of India, the petitioners TRD Nair and GN Kurup who were HAV/Cips of the 29 Assam Rifles have challenged the order of the Commandant made on April 12, 1989 dismissing them from their services.
2. The charges of misconduct against the petitioner were -(1) While they were functioning as HAV/Cips in 29 Assam Rifles during the period April 87-July 88, they actively took part in an unauthorised organisation, namely, Assam Rifles Combatant Personnel Association with a view to bringing a bad name to Assam Rifles, and (2) during the aforesaid period the petitioners operated a joint clandestine Bank Account No. C/180 in the State Bank of India Manja with a view to assisting in the conduct of subversive activities, and had money in the bank disproportionate to their income.
3. An inquiring officer was appointed and the inquiring officer submitted his report to the disciplinary authority (Commandant) to the effect that the charge No. 2 and a part of charge No. 1 had been proved. The Commandant, after considering the report of the inquiring officer, evidence on record and the statements made by the petitioners came to the conclusion that the petitioners had committed an offence of operating a joint account referred to above in respect of the contributions received from Assam Rifles personnel, thereby accumulating those funds disproportionate to their income and used the monies for payment of Advocate's Fee and the petitioners had accumulated cash assets beyond their means by receiving contributions from Assam Rifles personnel without prior permission of the competent authority for the progressing of the case in the Court. Thereafter, the petitioners were awarded penalty of dismissal by the Commanding Officer.
4. Mr. B.K. Das, learned counsel for the petitioners, has contended that (1) the report of the inquiring officer was not furnished to the petitioners, therefore, there was violation of principles of natural justice in view of the decision of the Supreme Court in Union of India v. Ramzan Khan 1991-I-LLJ-29 and (2) the contribution received for the purpose of payment of Advocates's Fee is not an offence as has been held by the commandant.
5. With regard to furnishing copy of the report of the inquiring officer, a three-Judge Bench of the Supreme Court has, in Union of India v. Mohd. Ramzan Khan (supra) observed that the delinquent's right or entitlement to a copy of the report of the inquiring officer is not lost after the 42nd Amendment and that the applicability of the Rule of natural justice to the disciplinary inquiry is not affected by the 42 Amendment; and that the delinquent is entitled to know the adverse report of the inquiring officer. In other words, supply of a copy of the inquiry report along with recommendations, if any in the matter of proposed punishment to be inflicted would be within the meaning of the rules of natural justice and, therefore, the delinquent would be entitled to be supplied with a copy thereof. Therefore, in para-18 the Supreme Court concluded thus :
"We make it clear wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority al the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."
6. On the basis of the above conclusion, the Supreme Court allowed the appeals and set aside the disciplinary action.
7. Mr. D.N. Choudhury, learned counsel for the respondents, has contended that the decision of the Supreme Court referred to above shall not be applied to the present case in view of observations made by the Supreme Court in paragraph 17 of the Judgment.
Para 17 runs as follows: (p. 34) "There have been several decisions in different High Courts which, following the Forty Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-Judge Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground."
8. In Paragraph 18 of the Judgment it has been held that non-furnishing of the report would amount to violation of the rules of natural justice and make the final order liable to challenge hereafter. But in Para 17 of the Judgment the Supreme Court has held that the decision in Ramzan Khan's case shall have prospective application and no punishment imposed shall be open to challenge on the ground of non-furnishing of report of the inquiring officer. A reading of Paragraphs 17 and 18 of the Judgment, we are of the view that the law laid down by the Supreme Court in Ramzan Khan's case shall apply to the pending cases, not to the closed cases, in view of the decision of the Supreme Court in Mohanlal v. Tribhovan AIR 1963 SC. 358 that the Court is bound to apply the law as it found on the date of its Judgment. Therefore, the contention of Mr. Choudhury has to be rejected.
9. Coming to the case on hand, admittedly the report of the inquiring officer was not furnished to the petitioners. Therefore, applying the principles laid down by the Supreme Court in Ramzan Khan's case the impugned orders of dismissal of the petitioners are liable to be quashed.
10. The next question which arises for consideration is whether the receipt of contributions from the Assam Rifles personnel without prior permission from the competent authority for the payment of Advocate's fee is misconduct. We are not expressing our opinion whether the question is relevant or not keeping the charges levelled against the petitioners in view. The question is left open for the decision of the disciplinary authority.
11. For the reason stated above, the impugned orders dated April 12, 1989 dismissing the petitioners are quashed and the matter is sent back to the disciplinary authority (Commandant of 29 Assam Rifles) for continuance of the disciplinary proceeding from the stage of supply of the report of the inquiry officer.
12. With the above observations and direction, the petition is disposed of. No costs.