Central Administrative Tribunal - Delhi
H. L. Sharma S/O Ram Sarup Sharma vs Delhi Development Authority Through ... on 8 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application Nos.45/2007,50/2007, 51/2007, 52/2007 & 90/2007 This the 8th day of March, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) TA No.45/2007 H. L. Sharma S/o Ram Sarup Sharma, R/o Flat No.7, Above Super Bazar, Rajouri Garden Extension, New Delhi-110027. Applicant Versus Delhi Development Authority through its Vice-Chairman, Vikas Sadan, INA, New Delhi. Respondent TA No.50/2007 R. K. Khera S/o Nihal Chand Khera, R/o 1, Indra Park, P.O. Krishna Nagar, Delhi-110051. Applicant Versus 1. Delhi Development Authority through its Vice-Chairman, Vikas Sadan, Near INA Market, New Delhi. 2. The Vice-Chairman, Delhi Development Authority, Vikas Sadan, Near INA Market, New Delhi. Respondents TA No.51/2007 J. K. Mittal S/o V. C. Mittal, R/o F-33, Prashant Vihar, Sector 14, Rohini, New Delhi. Applicant Versus 1. Delhi Development Authority through its Vice-Chairman, Vikas Sadan, Near INA Market, New Delhi. 2. The Vice-Chairman, Delhi Development Authority, Vikas Sadan, Near INA Market, New Delhi. Respondents TA No.52/2007 G. S. Gujaral, Assistant Engineer, Circle 4 (Stores), Delhi Development Authority, Lakhar Mandi, Kirtinagar, New Delhi. Applicant Versus 1. Lt. Governor of Delhi and Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi. 2. Delhi Development Authority through its Secretary, Vikas Sadan, INA, New Delhi. 3. Vice-Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi. 4. Shri R. K. Gupta, OSD (Personnel), Personnel Department, Delhi Development Authority, Vikas Sadan, INA, New Delhi. Respondents TA No.90/2007 S. P. Bhandari S/p O. P. Bhandari, R/o B-148 Vivek Vihar, New Delhi-110095. Applicant Versus Delhi Development Authority through its Vice-Chairman, Vikas Sadan, INA, New Delhi. Respondent Advocates: Shri G. D. Gupta, Sr. Advocate and with him Shri Apurb Lal, Ms. Alka, Shri Daleep Singh, Advocates, for Applicants. Shri Arun Birbal, Advocate, for Respondents O R D E R Justice V. K. Bali, Chairman:
By this common order, we propose to dispose of five connected Transferred Applications bearing numbers 45/2007, 50/2007, 51/2007, 52/2007 and 90/2007, as common questions of law and facts are involved in all cases. Learned counsel representing the parties also suggest likewise. The facts in all their details would be extracted from TA No.51/2007 in the matter of J. K. Mittal v Delhi Development Authority, whereas as regards other cases, the facts shall be mentioned in brevity.
2. J. K. Mittal, the applicant herein, has been inflicted the penalty of removal from service. He seeks quashing of chargesheet dated 15.5.1987, order dated 26.4.1988 issued under regulation 18 of the Delhi Development Authority (Salary, Allowances and Conditions of Service) Regulations, 1961 (hereinafter to be referred as the Regulations of 1961), and the final order dated 6.8.1991 imposing upon him the penalty as mentioned above. The applicant filed a writ petition under Article 226 of the Constitution before the Honble High Court of Delhi way back in 1991 challenging the proceedings and orders as mentioned above. The proceedings in the High Court would reveal that the arguments were heard on number of occasions, but remained inconclusive, and meanwhile, when notification dated 25.7.2007 came to be issued by the Department of Personnel & Training, whereby the primary jurisdiction to deal with all service matters of the employees working in the respondent Authority came to be vested with the Central Administrative Tribunal, vide order dated 28.9.2007 all these writ petitions came to be transferred to this Tribunal and were numbered as mentioned above. The matter came to be listed before the Bench of the Tribunal on 7.12.2007, whereafter on consent of the counsel representing the parties the matter had to be adjourned on number of occasions. Arguments could be concluded on 11.1.2011 when judgment was reserved. Whereas, written arguments were submitted by respondent DDA on 19.1.2011, the same were submitted by the applicants on 24.1.2011.
3. The facts as extracted from TA No.51/2007 reveal that the applicant was initially appointed as Junior Engineer in BHEL. In the year 1968, however, he joined the respondent Delhi Development Authority (DDA) on deputation basis as Junior Engineer (Civil). In July, 1978 DDA decided to absorb the applicant and his other colleagues who had come along with him from BHEL permanently in its service. It was decided that the applicant would get assumed seniority with effect from 9.1.1973. He along with other colleagues filed a writ petition before the High Court bearing WP(C) No.1384/1978 challenging inter alia the aforesaid assumed seniority with effect from 9.1.1973. The High Court held that the applicant and his other colleagues were entitled to seniority from various dates from which they joined the DDA in 1968. Even though, the applicant was appointed as Junior Engineer on deputation from BHEL in the year 1968, yet he and his other colleagues who had also come on deputation from BHEL, were permanently absorbed and/or appointed to the regular cadre of Junior Engineer (Civil) in the service of DDA by the Authority vide resolution dated 15.7.1978. On the basis of the said resolution, formal order was issued on 22.8.1978. The applicant was appointed as Junior Engineer on regular basis by the Authority. Later, in the light of judgment and order of the Honble High Court, the applicant was restored seniority as Junior Engineer (Civil) with effect from 1968 vide resolution dated 3.4.1985. He was thereafter confirmed on the post of Junior Engineer (Civil) vide order dated 25.11.1983. He was then promoted as Assistant Engineer (Civil) on the recommendation of the Departmental Promotion Committee (DPC) to officiate on ad hoc and purely temporary basis vide order dated 14.7.1983. He was given appointment as Assistant Engineer (Civil) and consequent seniority from 15.12.1978 vide resolution dated 30.6.1986. While so working, a chargesheet came to be issued on 15.5.1987. The charge against the applicant was that while he was working as Assistant Engineer, H.D. XIX during the year 1983, the work of C/o 960 LIG houses at Dilshad Garden (balance work) he exhibited negligence in performance of his official duties and his integrity was not found above board inasmuch as, in an inspection of the above noted work carried out by QC wing of DDA on 26.8.1983, shortage of nearly 40 lakhs of bricks costing approx Rs.10.08 lakhs against the secured advance paid to the contractor M/s Vikas Engineering Co., was noticed at site. The charge was of overpayment of approx Rs.10.08 lakhs, which was recommended by the applicant in his capacity as Assistant Engineer to the contractor, thereby acting against the interest of DDA and favouring the contractor. A chargesheet on similar allegations also came to be issued against one Shri R. K. Khera, Junior Engineer. Inasmuch as, the applicant as also Shri Khera were involved in the same incident, DDA sought to hold a joint enquiry against them by passing an order under regulation 18 of the Regulations of 1961, vide order dated 26.4.1988. The said order was passed by Vice-Chairman, DDA. When the proceedings commenced before the enquiry officer, an objection to the effect that the appointing authority of the applicant was the Authority and, therefore, Vice-Chairman would not have competence or jurisdiction to issue the chargesheet, was taken by the applicant. It is the case of the applicant that as per regulation 18 of the Regulations aforesaid, the only authority that could pass the order for enquiry would be the Authority who would have jurisdiction over all the employees concerned in the joint enquiry, and that since the applicant was appointed by the Authority as Junior Engineer and was also confirmed by the Authority as such, and since he was also holding the post of Assistant Engineer only on ad hoc and purely temporary basis, the Authority alone could pass the order for joint enquiry and could issue the chargesheet. This objection was taken before the enquiry officer on 5.2.1990. The applicant received no reply to his detailed objections. In the meanwhile, the enquiry was held. The enquiry officer found the applicant guilty of charges leveled against him vide his report dated 31.10.1990. He was given a show cause notice dated 12.2.1991 whereby the penalty of removal from service was proposed. Initially, the applicant submitted his interim reply to the show cause notice on 21.2.1991, but later on he filed a detailed reply as well. In the reply, the applicant mainly dealt with the aspects relating to the merits of the case. Insofar as, the objection relating to competence of Vice-Chairman in issuing the chargesheet is concerned, the applicant had already taken his objection in that regard vide detailed objections dated 16.2.1990. He was advised that the same must have been sent to the disciplinary authority by the enquiry officer along with the record of the enquiry. It is the case of the applicant that he was under a bona fide impression that the said aspect would be dealt with by the disciplinary authority while passing the final order. However, when the disciplinary authority passed the impugned order dated 6.8.1991, the applicant found that there was no reference to his aforesaid objection in the order. Even though, the applicant had the remedy of appeal, but he chose to approach the Honble High Court at that stage, because the impugned order, as per his case, was without jurisdiction inasmuch as, the very chargesheet as well as the order dated 26.4.1988 passed under regulation 18 of the Regulations of 1961, and the impugned order imposing the penalty of removal from service had been passed by an authority which could not be said to be competent to pass the same, and the only authority which could be said to be competent was the Authority, who did not pass any of the orders aforesaid. The objection of the applicant related to the very jurisdiction of the authority who passed the orders. The applicant thus filed the writ petition and challenged the orders as referred to above.
4. During pendency of the writ petition before the High Court, an application for amendment of the writ petition came to be filed, which was allowed. In that regard, it is pleaded that when the writ petition came up for final hearing before the High Court on 15.3.1999, learned counsel representing DDA, suddenly, for the first time, brought to the notice of the Court that Delhi Development Authority (Validation of Disciplinary Powers) Act, 1998 (hereinafter to be referred as the Act of 1998) purported to have received the consent of the President on 8.1.1999 had been passed. A copy of the Act aforesaid has been attached with the petition. It is averred that the Act purports to provide for validation of disciplinary powers exercised by the Vice-Chairman of DDA during the period 1979 to 1994. The said Act has been challenge on the grounds of which we may make a mention hereinafter. We may, however, mention at this stage that there are no arguments at all on the merits of the controversy. Nothing at all has been pointed out during the course of arguments which would show that the procedure adopted was illegal or there was violation of principles of natural justice, or the evidence led by the department would not entail an order of punishment. The sole controversy raised during the course of arguments is as regards challenge to the Validation Act of 1998.
5. R. K. Khera, who filed WP(C) No.2574/1991 which has been re-numbered as TA No.50/2007, was jointly tried with J. K. Mittal. There may be no need to refer to the pleadings made by him in the Application. Suffice it may, however, to say that his case stands on exactly the same footings as that of J. K. Mittal.
6. H. L. Sharma filed WP (C) No.14573/2006, now re-numbered as TA No.45/2007. Sequel to a departmental enquiry held against him he was dismissed from service vide orders dated 16.4.1985. It was a case of joint departmental enquiry against the applicant, M. L. Varshney and Dellip Singh. An appeal preferred by the applicant against the order aforesaid was dismissed by the appellate authority vide order dated 21.4.1987. Aggrieved, he filed a writ petition, which was allowed vide orders dated 25.2.1999. In the judgment that came to be recorded in favour of the applicant, the learned single Judge relied upon an earlier judgment in WP(C) No.1091/1985. Reliance was placed upon the judgment which was in the case of M. L. Varshney decided by a learned single Judge of the Honble High Court. It would appear from the order passed by the High Court in WP(C) No.1091/1985 that the same in turn was decided on the basis of the judgment in WP(C) No.2402/1991 decided on 23.9.1993 by a Division Bench. Against the judgment of the Division Bench, an SLP came to be filed before the Honble Supreme Court which was withdrawn. Against the order passed by the learned single Judge in favour of the applicant herein, an LPA came to be filed, which is pending disposal before the High Court. Operation of the order passed by the learned single Judge has been stayed. The proceedings in the LPA Bench, it appears, have been adjourned awaiting decision of the present cases. It would further appear that in the LPA the respondents relied upon the Validation Act of 1998, and inasmuch as separate writ petitions challenging the said Act have since already been filed and which in turn have been transferred to this Tribunal, it came to be observed by the Division Bench of the High court on 8.9.2008 as follows:
In view of the aforesaid, it would be appropriate that the present matter be listed for directions to await the fate of the challenge to the validation act before the CAT. Learned counsels for the parties to inform the CAT about the pendency of different cases arising from this challenge so that the matter can be taken up expeditiously.
7. S. P. Bhandari, who filed WP(C) No.2662/1996, re-numbered as TA No.90/2007, sequel to a departmental enquiry has been compulsorily retired vide order dated 31.3.1994. The appeal preferred by the applicant against the order aforesaid has since been dismissed by the appellate authority vide order dated 8.10.1995. These are the orders under challenge. In this case it appears, however, that no application seeking amendment so as to challenge the Validation Act of 1998 was filed.
8. G. S. Gujaral, who filed WP (C) No.1312/1991, re-numbered as TA No.52/2007, sequel to a departmental enquiry has been reduced to the lower grade vide order dated 13.2.1991. He has amended the petition to challenge the Act of 1998.
9. We are not making a mention of the pleadings made in the counter replies filed in any of the cases, as the only question debated before this Tribunal by the learned counsel representing the parties is as regards validity of the Validation Act of 1998. Before we may take into consideration the rival contentions of the learned counsel for parties on the issue aforesaid, we may make a mention of some of the relevant provisions governing departmental enquiries in the DDA, and the judgments that were rendered by the Honble High Court of Delhi from time to time, which would be all in favour of the employees, and for which reason the Act of 1998 came to be passed.
10. Delhi Development Authority is governed by the Act known as Delhi Development Act, 1957. By virtue of provisions contained in Section 57, the Authority, with previous approval of the Central Government, may, by notification in the official gazette make regulations consistent with the Act and the rules made thereunder, to carry out the purposes of the Act. Clause (c) of sub-section (1) of Section 57 authorizes the Authority to make regulations as regards salaries, allowances and conditions of services of the secretary, chief accounts officer and other officers and employees. We may also make a mention of Section 52 dealing with power to delegate, relevant part whereof reads as follows:
(1) The Authority may, by Notification in the official Gazette, direct that any power exercisable by it under the Act except the power to make regulations may also be exercised by such officer or local authority or committee constituted under section 5A as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein.
(2) The Central Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act, except the power to make rules, may also be exercised by such officer as may be mentioned therein, in such cases and subject to such conditions, if any, as may be specified therein. In exercise of powers conferred by Section 57 of the Delhi Development Act, 1957 (hereinafter to be referred as the Act of 1957), the Delhi Development Authority, with previous approval of the Central Government, made the regulations known as Delhi Development authority (Salaries, Allowances and Conditions of Service) Regulations, 1961. In view of the provisions contained in regulation 2(2), Authority means Delhi Development Authority constituted under Section 3 of the Act of 1957. Disciplinary authority, in view of sub-regulation (4) of regulation 2, is defined as follows:
(4) disciplinary authority in relation to the imposition of a penalty on a member of the service, means the authority competent under these regulations to impose on him that penalty; Vice-chairman, as per regulation 2(8), would mean the Vice-chairman of the Authority. Part-III of the Regulations deals with classification, control and appeals. In view of provisions contained in regulation 12, the services and posts under the Authority shall, for purposes of appointment, control and discipline, insofar as the same may be relevant, are classified as follows:
Sl.
No. Description of posts Classification of posts (1) A post carrying a pay of, or a scale of pay the maximum of which is, not less than Rs.950.00 Class I (2) A post carrying a pay of, or a scale of pay the maximum of which is, not less than Rs.575.00 but is less than Rs.950.00 Class II (3) A post carrying a pay of, or a scale of pay the maximum of which is, not less than Rs.110.00 but less than Rs.575.00 Class III (4) A post carrying a pay of, or a scale of pay the maximum of which is, less than 110.00 Class IV In view of provisions contained in regulation 15(1), subject to the provisions of sub-regulation (2) of regulation 16, and to the condition that no officer or employee may be removed or dismissed of reduced in rank by an authority subordinate to that by which he was appointed, the authorities specified in the schedule may impose the penalties specified in that schedule upon officers and employees of the Authority included in that schedule. Joint enquiries have been dealt in regulation 18, which reads as follows:
18. Joint Inquiry (1) Where two or more officers or employees of the Authority are concerned in any case, the authority competent to impose the penalty of dismissal from service on all such officers and servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding.
(2) Any such order shall specify -
(i) the authority which may function as the disciplinary authority for the purpose of such common proceeding;
(ii) the penalties specified in Regulation 14 which such disciplinary authority shall be competent to impose; and
(iii) whether the procedure prescribed in Regulation 16 or Regulation 17 may be followed in the proceeding.
11. J. K. Mittal, applicant in TA No.51/2007, and R. K. Khera, applicant in TA No.50/2007, faced a joint departmental enquiry. Shri Mittal was, at the relevant time, working on the post of Assistant Engineer, whereas Shri Khera was working on the post of Junior Engineer. Insofar as, H. L. Sharma, applicant in TA No.45/2007 is concerned, he was working at the relevant time on the post of Junior Engineer. He faced a joint departmental enquiry along with M. L. Varshney, who was an Executive Engineer, and Dellip Singh, an Assistant engineer, at that time. S. P. Bhandari, applicant in TA No.90/2007 was working on the post of Executive Engineer. Vice-chairman, DDA issued a chargesheet to the applicant on 6.11.1985. It does not appear that in his case it was a case of joint departmental enquiry. C. S. Gujaral, applicant in TA No.52/2007, was working as Assistant Engineer when a chargesheet dated 26.3.1987 came to be issued to him. In his case as well, it appears, no one was jointly departmentally tried with him.
12. The primary plea raised in support of the Applications before the Validation Act of 1998 came into being, as regards applicants S. P. Bhandari and C. S. Gujaral, who were not put to joint departmental enquiries, was that their disciplinary authority would be the Authority and, therefore, the orders for proceeding against them and the punishment inflicted upon them by the Vice-Chairman, DDA would be illegal. The case of others, who were jointly tried, has been that once it was a case of joint enquiry, which included Class-I officers whose disciplinary authority was the Authority or the Government, even though they themselves may be holding Class-II posts, and their disciplinary authority may be the Vice-chairman, the orders as per regulation 18 of the Regulations of 1961 had to be passed by the Authority or the Government, as the case may be.
13. Having seen the factual background of the case and the service regulations governing the field, it would be appropriate to first make a note of the judicial precedents turning in favour of the cause of the applicants, necessitating passing of the Validation Act of 1998. The first judgment on the issue is by a Division Bench of the Honble High Court of Delhi in the matter of R. P. Sharma v DDA [1994 (2) SLR 95]. The facts of the said case reveal that R. P. Sharma, vide orders dated 13.2.1991 passed by Vice-Chairman, DDA, in exercise of powers conferred under regulation 16 of the Regulations of 1961, was imposed a penalty of reduction to the next lower grade/time scale on the minimum of that grade/time scale for a period of two years without cumulative effect. He filed a writ petition against the order aforesaid and sought declaration that the Regulations of 1961 were in force and binding upon the respondent DDA, and further to declare that powers to initiate disciplinary action for major penalty against Class-I officers, in which category he was placed, would vest only in the Central Government and not the Vice-Chairman, DDA. It was urged that under Section 57 of the Act of 1957, with the previous approval of the Central Government service regulations have been framed governing salaries, allowances and conditions of service of the secretary, chief account officer and other officers and employees. The said Regulations were made with the approval of the Central Government, and inasmuch as, the competent authority in his case, as per the service regulations, to inflict an order of punishment, was the Central Government, the said exercise could not be taken by the Vice-Chairman, DDA. The respondent DDA would defend the impugned orders on the dint of notification of 1979 amending the Regulations of 1961, wherein it was provided that for persons in Group A posts with a maximum pay of `2,000/-, the authority empowered to appoint would be the Chairman with prior approval of the Central Government, but the disciplinary authority empowered to impose penalties of (a) reduction to a lower service, grade or post, or to a lower time scale of pay, or to a lower stage in a time scale, (b) compulsory retirement, (c) removal, and (d) dismissal, would again be the Central Government. For persons in Grade A posts with a maximum pay of `1,600/- and above and up to `2,000/-, the authority empowered to appoint would be the Vice-Chairman who is also the authority to impose all the penalties, and in that case appeal would lie to Chairman, DDA. Same would be the case as regards persons holding Group A posts, but with a maximum pay of `1,600/-. This notification was issued under sub-section (1) of Section 52 and not under Section 57 of the Act of 1957 with prior approval of the Central Government. The plea raised on behalf of the petitioner was that there could not be any amendment in the service regulations without the prior approval of the Central Government. Section 21 of the General Clauses Act was pressed into service for the plea as mentioned above. The Division Bench found merit in the contention raised on behalf of the petitioner that when a law requires a thing to be done in a particular manner, it cannot be done in any other manner, and that any amendment to the Regulations could be done only with prior approval of the Central Government, and the notification of 1979 which did not have prior approval of the Central Government, could not be pressed into service by DDA. The Division Bench observed as follows:
We are of the opinion that Mr. Gupta is right in his submission. When a law requires a thing to be done in a particular manner it cannot be done in any other manner. Any amendment to the Regulations has to be done with the prior approval of the Central Government. This is Regulation 57. D.D.A. could not assume power under Section 52 of the Act to amend the regulations. It could have done so only if Section 57 of the Act provided otherwise and specific power was with the D.D.A. for the purpose. Mr. Jaitley, however, said that under Sub-section (2) of Section 4 of the Act the Executive Engineer would be one of the employees of the D.D.A. and it would be D.D.A. who is authorized to appoint him with a necessary consequence to take action against him. Though it may be true that posts are to be created by the authority under Sub-section (2) of Section 4 of the Act, but the argument of Mr. Jaitley misses the point that the salaries, allowances and conditions of service of these employees are to be governed by regulations framed under Section 57 of the Act with the prior approval of the Central Government.
9. In view of our discussion made above, the Vice-Chairman, D.D.A., was not competent to impose this penalty on Mr. R.P. Sharma, the petitioner. It was submitted before us that in case we took the view that Vice-Chairman, D.D.A., had no power to impose any penalty on employees holding class I post as provided in the Regulations, then many such orders in other cases will fall. This is hardly a consideration for us not to interpret the law as it stands.
10. In this view of the matter the petition is allowed. The order imposing the penalty on the petitioner by the Vice-Chairman, D.D.A., as per order dated 13 February 1991 is quashed. It is held that the Delhi Development Authority (Salaries, Allowances and conditions of Service) Regulations, 1961 are applicable in the case of the petitioner, and the amendment to these Regulations made by sub-section (1) of Section 52 of the Act under which the D.D.A. delegated such of its powers to such of its members, officers as mentioned in the Schedule attached thereto has no effect. However, our order should not be understood to have debarred the D.D.A. from taking action against the petitioner on account of charges levied against him culminating in the impugned order, if permissible under the law. There will be no order as to costs. Rule is made absolute. The DDA challenged the order of the Division Bench by filing SLP No.20926/1993 before the Honble Supreme Court, which was dismissed as withdrawn vide order dated 5.12.1994, which reads as follows:
Mr. Arun Jaitley, learned senior advocate fairly states that in view of the Standing Order 207(E) dated 1.3.1994 the petitioner, DDA will take action under the said Notification. He prays for leave to withdraw. Leave is granted without prejudice to the right of the petitioner, to take action against the respondent under the said Notification.
Interim order will continue for a period of three weeks to enable the DDA to initiate action under the said Notification. We make it clear that by this order we have not gone into the question of law involved in this case. [[
14. M. L. Varshney, departmentally tried along with applicant H. L. Sharma and Dellip Singh, filed a writ petition bearing WP(C) No.1091/1985 which was allowed vide order dated 20.9.1995. Challenge in the writ petition aforesaid was to passing of the impugned order of dismissal from service by an authority, which, as per the case of the petitioner, was not competent to pass the same. It was urged that the Central Government would be the competent authority for passing the order of dismissal from service. The learned single Judge relying upon the judgment of the Division Bench in R. P. Sharma (supra) held, The Division Bench of this court in that case held that the Vice-Chairman of DDA is not the competent authority to impose the penalty of removal from service of Class-I officers. A Special Leave Petition was taken out by the respondent-DDA against the said order but the same was withdrawn. Applicant H. L. Sharma filed WP(C) No.2863/1997 which came up for hearing before the learned single Judge and was allowed vide orders dated 25.2.1999. The matter was found to be covered in favour of the petitioner by judgment of the co-ordinate Bench in WP(C) No.1091/1985 in the matter of Varshney. It is pertinent to mention here that the applicant had also raised a point that when it may be a case of joint enquiry and one of the officers may be of higher rank, in whose case the disciplinary authority may be the Authority or the Government, it is only the Authority or the Government which could proceed departmentally, but this question was not gone into, inasmuch as the Honble Bench finding the matter covered in favour of the applicant by the judgment in WP(C) No.1091/1985 in the matter of Varshney, allowed the writ petition and left open the question as mentioned above. Against the order of the learned single Judge, LPA under clause 10 of Letters patent was filed, wherein the operation of the order passed by the learned single Judge has been stayed. In support of the appeal seeking setting aside the judgment of the learned single Judge, DDA relied upon the Validation Act of 1998. It is in these circumstances, as mentioned above, that another writ petition bearing WP(C) No.14573/2006 came to be filed by the applicant, which has since been transferred to this Tribunal and numbered as TA No.45/2007.
15. After the judgment of the Delhi High Court in R. P. Sharma (supra) and withdrawal of the SLP, the schedule attached to the Regulations of 1961 was amended by the DDA vide notification dated 1.3.1994. The notification aforesaid was got issued after following the procedure laid down under Section 57 of the Act of 1957. The notification was prospective and applicable for the period after 1.3.1994. However, it appears, so as to save the orders passed by various disciplinary authorities for the period starting from 22.11.1979, i.e., the date of issue of the notification mentioned above, which did not have prior approval of the Central Government, and up to 1.3.1994, the impugned Act, i.e., the Delhi Development Authority (Validation of Disciplinary Powers) Act of 1998 came to be passed. It is an Act of Parliament, which received the assent of the President on 8.1.1999, to provide for validation of disciplinary powers exercised by the Vice-Chairman and officers of the Authority. Authority, as per Section 2(a) of the said Act, has been defined to mean the Delhi Development Authority established under Section 3 of the Act of 1957. Section 3 of the Act aforesaid, which is relevant, reads as follows:
3. Notwithstanding any judgment, decree or order of any Court or Tribunal or other Authority to the contrary, where any disciplinary powers or action which the Central Government or the Authority may exercise or take under the Delhi Development Authority (Salaries, Allowances and Conditions of Service) Regulations, 1961 had been exercised or taken by the Vice-Chairman or other officers of the authority during the period on and from the 22nd day of November, 1979 to the 1st day of March, 1994, such disciplinary powers or action shall be deemed to have been validly and effectively exercised or taken by the Vice- Chairman or such other officer as if the Vice-Chairman or such other officer had been specified, with the previous approval of the Central Government in the said Delhi Development Authority (Salaries, Allowances and Conditions of Service) Regulations in that behalf and accordingly, no suit or other proceeding shall be instituted, maintained or continued in any Court or Tribunal or before other authority on the ground that the Vice-Chairman or such other officer was not competent to exercise such disciplinary power or take such action.
16. Having seen the relevant factual background of the cases, the provisions of the Act of 1957, and the regulations of 1961, as also the judicial precedents that came into being prior to the Validation Act of 1998, time is now ripe to take into consideration, evaluate and comment upon the rival contentions of the learned counsel representing the parties.
17. Shri G. D. Gupta, sr. counsel, representing the applicants would contend that there is absolutely no reason for passing the Validation Act of 1998, since no court has found any defect in the Regulations of 1961, which prescribe the authority for Class-I officers, which posts are concerned in the present batch of matters, and that the court has only found that the orders were not passed in compliance of the provisions of the Regulations of 1961; hence, non-compliance of the provisions of the said Regulations would not be a defect, and would rather be a procedural error. He further contends that it was only with a view to wriggle out of the case of R. P. Sharma that the said Validation Act has been passed. Be it the case of R. P. Sharma or M. L. Varshney, no defect ever came to be pointed out by the court in the provisions requiring the Central Government to be the competent authority for Class-I/Group-A posts, and once there was no defect pointed out by the court in the Regulations, and once the court has not expressed any opinion in understanding or applying the said provisions, there was no reason to resort to passing the Validation Act. The other point involved in the case of R. P. Sharma was that the respondent DDA would rely upon the notification of 1979 amending the Regulations of 1961 without prior concurrence or approval of the Central Government, which was not legally sustainable. It is urged that the court simply held that the amendment was invalid as it was not effected with the prior approval of the Central Government. This would not be a defect in the Regulations, thus contends the learned counsel. The only other point raised in support of the Applications is that the Validation Act is even otherwise discriminatory as it is confined to the period from 22.11.1979 to 1.3.1994, and cases of the period prior to November, 1979 have not been touched or covered.
18. Per contra, Shri Arun Birbal, learned counsel representing the respondent DDA would contend that a competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured, and that such a validation law can also be made retrospective, and further that if in the light of such validating and curative exercise made by the legislature, granting legislative competence, the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision, and all that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant.
19. We have given our anxious thoughts to the rival contentions of the learned counsel representing the parties as noted above. Before we may give our o[pinion on the contentions of the learned counsel as noted above, we may first make a mention of the judicial precedents relied upon by the learned counsel in support of their contentions. We may first make a mention of such judicial precedents on which reliance is placed upon by both parties. The first judgment commonly relied upon by the learned counsel for parties is the judgment of the Honble Supreme Court in National Agricultural Co-operative marketing Federation of India Ltd. & another v Union of India & others [AIR 2003 SC 1329]. The issue raised by the appellant cooperative society before the Supreme Court related to construction and constitutional validity of Section 80-P(2)(a)(iii) of the Income-tax Act, 1961, and grant of deduction of the profits made by the societies by the marketing of agricultural produce. Under the Income-tax Act, 1922, exemption was granted in respect of profits and gains of business of co-operative societies, including societies engaged in the marketing of the agricultural produce of its members. The Income-tax Act, 1961 continued this exemption under Section 81(1)(c). By the Finance Act (No.II) 1967, Section 81 was omitted and its provisions re-enacted as Section 80-P of the 1961 Act. According to the appellant society, prior to 1994 several High Courts as well as the Supreme Court had construed Section 81(1)(c) and Section 80-P(2)(a)(iii) and held that the benefit of exemption was available to all the co-operative societies from the village to the apex level. This was also the view taken by the Kerala High Court. This view was reversed by the Bench of Supreme Court in Assam Co-operative Marketing Society v CIT (Additional) [1994 (Supp) 2 SCC 96], wherein it was held that the object of Section 81 was to encourage basic level societies and that, therefore, the phrase produce of its members must refer to agricultural produce actually produced by its members. It was held that unless this interpretation was given, co-operative societies of traders would also become entitled to exemption, which could not have been the intention of Parliament. As per the case of the appellant, as a result of the decision in Assam Co-op. Society case, the appellant who had enjoyed the deduction under Section 80-P till then, was re-assessed to tax on its profits and the assessments in respect of the assessment years from 1986-87 to 1994-95 were re-opened. Following the decision of the Supreme Court in Assam Co-op. Society (supra), the Kerala High Court reversed its earlier view while deciding the issue raised by the Kerala Co-operative Marketing Federation in respect of a subsequent year, and denied the said Federation the deduction under Section 80-P. The view expressed in Assam Co-operative Society (supra) came to be reconsidered by a larger Bench in 1998, and the Supreme Court by its decision in Kerala Co-operative Marketing Federation Ltd. v Commissioner of Income Tax [(1998) 5 SCC 48] over-ruled the Assam Co-operatives case and held that the word of in Section 80-P(2)(a)(iii) had been too restrictively construed in Assam Co-operatives. On interpretation of the provisions of Section 80-P and having regard to the object with which the provisions had been introduced, it was held that the legislature did not intend to limit the scope of exemption only to primary societies, and that the phrase produce of its members must be construed as including any society engaged in marketing and agricultural produce belonging to its members. Immediately after its decision aforesaid, Section 80-P(2)(a)(iii) was sought to be amended by the Income-tax Act (2nd Amendment) Bill N.169 of 1998. The reason for the amendment was stated in clause 6 of the statement of objects and reasons, wherein it was clearly mentioned that the interpretation given by the Supreme Court to the use of the words in the provision was not in accordance with the legislative intent of the existing provision, and that in respect of income arising from transactions with non-members, the co-operatives would not be different from other assesses, and such co-operatives were required to be taxed in the same manner as companies or other assesses engaged in marketing of agricultural produce, and further that if an amendment in Section 80-P(2)(a)(iii) was not made, it was likely to have serious impact on revenues. The Bill was passed after obtaining the assent of the President and it became the Income-tax (2nd Amendment) Act, 1999. This was the Act which was under challenge before the Supreme Court. The Supreme Court held that there is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment, and that some times this is done by providing for jurisdiction where jurisdiction had not been properly invested before, and some times this is done by re-enacting retrospectively a valid and legal taxing provision, and then by fiction making the tax already collected to stand under the re-enacted law, whereas some times the legislature may give its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts, and that the legislative may follow any one method or all of them. It was further held that a validating clause coupled with a substantive statutory change is, therefore, only one of the methods of leave actions unsustainable under the unamended statute, and consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent. The Apex Court held that it was permissible for the legislature to give intent to the words used in the statute which were interpreted differently by courts, by amending the Act retrospectively. This judgment, in our view, would support the contention raised by the learned counsel representing the respondents and not by the applicants.
20. The second judgment commonly relied upon by the learned counsel representing the parties is in S. R. Bhagwat & others v State of Mysore [AIR 1996 SC 188]. The facts of the said case reveal that petitioners 1 to 5 were civil servants of the erstwhile States of Hyderabad and Bombay. Their services stood allotted to the new State of Mysore under Section 115 of the States Reorganization Act, 1956. The new State of Mysore was formed with effect from 1.11.1956 under the provisions of the Reorganization Act. Section 115 of the said Act provided for allotment of civil servants of the erstwhile States, territories of which were transferred to the successor State, by the provision of Part II of the Act and accordingly the petitioners services stood statutorily allotted to the new State of Mysore. Parliament conferred the power of integration of services on the Central Government under Section 115 (5) of the Reorganization Act, and the integration of services took effect from 1.11.1956. After reorganization of the States, the Central Government, for purposes of effecting integration of services, laid down the principles relating to equation of posts and the preparation of seniority lists. The Central Government also directed the State Government to decide provisionally the equation of posts and also to fix seniority and to call for representations from the aggrieved officials, to send the same for final decision by the Government of India. In pursuance of the directions of the Central Government, the State Government took its own time to prepare provisional inter-State seniority lists and to call for objections, and also directed the appointing authorities of the new State of Mysore to make provisional promotions on the basis of the provisional inter-State seniority lists subject to the clear condition that promotion should be revised in accordance with the ranking in the final seniority lists to be effective from 1.11.1956 as decided by the Government of India in exercise of its powers under Section 115(5) of the Reorganization Act. Sub-section (7) of Section 115 of the said Act laid down that nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State, provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approved of the Central Government. The reorganized States like the State of Mysore, were permitted to act on the basis of provisional seniority list of such employees and to effect promotions on that basis, so that the administration of the reorganized States might not suffer. Indeed, it was subject to the rider that the said provisional list would be subject to alterations when final list was to be prepared and once that happened, the concerned State Government had to give effect to the final list. Petitioners 1, 2 and 4 had joined services in the former State of Bombay and were on 31.10.1956 in the category of Deputy Conservator of Forests. Petitioner no.3 was also a Deputy Conservator of Forests in the former Hyderabad State. In the year 1957, the State Government made provisional equation. The posts of Senior Conservator of Forests and Assistant Conservator of Forests were equated with the post of Deputy Conservator of Forests coming from Hyderabad and Bombay. This was objected to by the petitioners and others. The State Government again published a list in 1960 with slight modification. However, the Central Advisory Committee to whom the representations were forwarded as per the provisions of sub-section (5) of Section 115 of the Reorganization Act, accepted the petitioners contentions, and as a result in category III only the officials, namely, Deputy Conservator of Forests of Hyderabad and Bombay, and Senior Assistant Conservator of Forests from Mysore, were included. The Government of India accepted the said equation and communicated it to the State Government on 7.11.1962. Thereafter, several writ petitions were presented before the Mysore High Court, which were disposed of. The correctness of the decision of the High Court was challenged before the Supreme Court, but the appeals were dismissed. Even thereafter in accordance with the directions of the Central Advisory committee the Union Government again considered the matter and fresh notifications were issued in May, 1969. These notifications were on the same line as the earlier notifications. A fresh batch of writ petitions was filed before the High Court of Mysore, which were dismissed in 1971. SLPs against the said decision also came to be dismissed. Thus final adjudication was made regarding the claim of petitioners and other similarly situated for equation and seniority. In the background of aforesaid settled legal position, the petitioners claimed that though they were senior in the final seniority lists to many others, their juniors had got promoted in the meantime on the basis of higher ranking in the provisional seniority list which was earlier operative till it got superseded by the final seniority list. As their claim for being granted deemed dates of promotions with all consequential benefits was not accepted by the State of Mysore, the petitioners filed writ petitions before the High Court of Karnataka. All the writ petitions came to be allowed by a Division Bench of the High Court. Pursuant to the decision of the Division Bench of the High Court, the respondent State considered the cases of all the petitioners for being granted deemed dates of promotions and they were given such deemed dates of promotions. The decision of the Division Bench attained finality between the parties. As consequential monetary benefits on the grant of deemed promotions to the petitioners as directed by the decision aforesaid were not made available, they filed contempt petitions in the High Court. In the meantime, the respondent State resorted to its legislative powers and issued the impugned Ordinance which ultimately culminated into the impugned Act. By the impugned provisions of the Ordinance and the Act the actual financial benefits directed to be made available to the petitioners pursuant to the orders of the Division Bench of the High Court which had become final, were sought to be taken away. It is under these circumstances that the petitioners filed petition under Article 32 of the Constitution for getting a declaration that the impugned provisions insofar as they tried to confiscate the financial benefits made available to them by the writs of mandamus issued by the High Court would be null and void as they amounted to legislative over-ruling of binding judicial decisions and sought to deprive the petitioners of their fundamental rights guaranteed under the Constitution. In the background of the facts as mentioned above, it was held that the impugned provision of the Act, namely, Section 11 sub-section (2) is clearly ultra vires the powers of the State Legislature as it encroaches upon the judicial field and tries to overrule the judicial decision binding between the parties and consequently the relevant sub-sections of Section 4 which are also in challenge will have to be read down as indicated hereinafter. The reasons were indicated in the later part of the judgment. We do not find the present case to be having any parity on facts with the case aforesaid. The Supreme Court was dealing with a situation where it was a pure and simple case of overruling a judgment of the Apex Court by legislative fiat without there being any defect in any of the provisions which may have been noted in the earlier judgments, and because of which only the petitioners may have got the relief. It was a pure and simple case of final list prepared by the Central Government to be operative as regards seniority, and it is because of fixation of the seniority of the petitioners that they were to get financial benefits, which could not be done away with by any enactment.
21. The third and last judgment commonly relied upon by the parties is in I. N. Saxena v State of M.P. [AIR 1976 SC 2250]. The facts of the case aforesaid reveal that the appellant before the Supreme Court was a subordinate Judge and was later promoted as District & Sessions Judge. He attained the age of 55 years on August 22, 1963 which was the age of superannuation according to FR 56 governing the civil services of the State. Prior to that, on February 28, 1963, by a memorandum the State Government raised the age of compulsory retirement for government servants to 58 years, subject to certain exceptions. Thereafter vide memorandum dated November 29, 1963, FR 56 was amended, raising the age of compulsory retirement of State civil servants to 58 years with effect from March 1, 1963, but the clause in the memorandum aforesaid empowering the Government to retire servants above the age of 55 years by giving them three months notice was not incorporated in the rule. In view of this memorandum, the appellant was allowed to continue in office after he had attained the age of 55 years. On September 11, 1963, the respondent State passed an order retiring the appellant from service with effect from December 31, 1963. The appellant challenged the said order, but his writ petition was dismissed by the High Court on the ground that FR 56 as it stood after the amendment of November 29, 1963 did not contain any provision authorizing the respondent State to retire the appellant after the attainment of 55 years of age, and that this retirement was contrary to Article 311(2) and Article 14 of the Constitution. During the pendency of the appeal before the Supreme Court, the appellant had retired. However, vide judgment dated January 23, 1967, the Supreme Court observed as follows:
The appellant will be deemed to have continued in the service of the Government in spite of that order. As, however, the appellant attained the age of 58 years, in August, 1966, it is not possible now to direct that he should be put back in service. But he will be entitled to such benefits as may accrue now to him by virtue of the success of the writ petition. The appellant will get his costs from the State throughout. Before the decision on appeal by the Supreme Court, the governor had promulgated the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 under Article 309 of the Constitution. By deeming clause, these Rules were made effective from March 1, 1963. The age of retirement was thereby raised to 58 years and under rule 6, the appointing authority was empowered to retire a government servant on his attaining the age of 55 years on three months notice without assigning any reason. By virtue of rule 8, the memorandum dated February 28, 1963 was cancelled and it was provided that notwithstanding the cancellation of the memorandum aforesaid, anything done or any action taken in pursuance of the directions contained therein, would be and would always be deemed to have been done or to have been taken under the relevant provisions of the rules. These rules were not brought to the notice of the Supreme Court when the appeal was decided. On February 10, 1967 after the judgment of the Supreme Court, the State promulgated an Ordinance which was replaced on April 20, 1963 by the Madhya Pradesh Shasakiya Seveka Anivarya Sevanivritti Ka Vidhimanayata Karan Adhiniyam, 1967, validating retirement of certain government servants, including that of the appellant, despite the judgment of the Apex Court. By virtue of the Act aforesaid, the State was vested with a right not to pay the dues of the appellant from the date of his retirement (December 3, 1963) onwards. In substance, and effect, the Act made provisions of the Compulsory Retirement Rules, 1965 applicable from March 1, 1963. This led to another petition being filed by the appellant before the High Court challenging the validity of the Act. It appears that the appellant lost his cause before the High Court. That is why he was before the Supreme Court. One of the contentions raised in support of the appeal was that the Act had been passed to overrule the decision of the Supreme Court, which the legislature has no power to do. It was urged before the Supreme Court that the right of property, being a judgment-debt, protected by Article 19(1)(f) of the Constitution, had been created by the Courts decree dated January 30, 1967 in favour of the appellant and against the State, and that since the impugned Act in effect, sought to expropriate the appellant of that right without providing for any compensation, it would be ultra vires Article 31(2) of the Constitution. It was also argued that inasmuch as the impugned Act sought to validate the retirement of the appellant and others like him by changing their service conditions with retrospective effect, the same would be ultra vires the Constitution, and that in doing so, the State legislature had overstepped the limits of legislative powers conferred in it by Article 309. The contentions as mentioned above were repelled observing that a perusal of the Courts decree would show that it was not a money decree, raising a judgment-debt; it was a declaratory decree, declaring that the respondents order dated September 11, 1963, compulsorily retiring the appellant was invalid, and consequently the appellant would be deemed to have continued in service till he attained the age of 58 years. The further declaration that he will be entitled to such benefits as may accrue to him by virtue of the success of the writ petition was held to be only incidental or ancillary to the main relief, which would fall or stand with the same. The decree, it was further held, did not create an indefeasible right of property in favour of the appellant. While dealing with the crucial issue as may be one in the present case, it was held as follows:
21. The distinction between a legislative act and a judicial act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the Court to give effect to that law.
22. While, in view of this distinction between legislature and judicial functions, the legislature cannot be a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Article 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralizing effect the conditions on which such decision is based. As pointed out by Ray C.J. in Indira Nehru Gandhi v. Raj Narain, (1975) SCC Supp 1 = (AIR 1975 SC 2299) the rendering ineffective of judgments or orders of competent Courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. This judgment of the Supreme Court, in our view, would support the contention of the respondents rather than that of the applicants.
22. Shri G. D. Gupta, learned sr. counsel, apart from the judgments referred to above, also placed reliance upon the judgment of the Honble Supreme Court in Indra Sawhney v Union of India [(2000) 1 SCC 168]. We may give the factual background of the case. The batch of cases before the Supreme Court raised common issues relating to the identification of creamy layer among the backward classes in the State of kerala, and the implementation of the law declared and the directions issued by the Apex Court in Indra Sawhney v Union of India [1992 Supp (3) SCC 217]. The State of Kerala took time for implementation of the directions in Indra Sawhney for appointment of a Commission for the purpose of identifying the creamy layer in the State, but it failed to appoint a commission or to proceed with the implementation. The Apex Court vide order dated 10.7.1995 in interlocutory applications filed by the State of kerala for seeking extension of time, etc., held that the State, represented by its Chief Secretary, was guilty of contempt, but gave a further opportunity to it to purge the contempt. It was made clear that if the directions aforesaid were not complied with, the Chief Secretary would run the risk of being sentenced. The State sought time to implement the judgment, but it rather came up with the Kerala State Backward Classes (Reservation of Appointments or Posts in the Services Under the State) Act, 1995. Section 3 of the Act aforesaid declared that having regard to known facts in existence in the State of Kerala, that there are no socially advanced sections in any backward classes who have acquired capacity to compete with forward classes and that the backward classes in the State were not adequately represented in the services under the State and they would continue to be entitled to reservation under clause (4) of Article 16 of the Constitution. The provisions of Section of the Act aforesaid continued the existing system of reservation which were in force as per rules made in 1958, and Section 6 was incorporated as a validating section with retrospective effect. On the ground that the provisions of the Act were discriminatory and violative of Articles 14 and 16, writ petitions came to be filed before the Supreme Court, which came up for hearing along with other cases. Inasmuch as, the State had failed to appoint a Commission as directed in Indra Sawhneys case, the Apex Court deemed it necessary to appoint a high level committee to gather necessary information regarding creamy layer, and requested the Chief Justice of kerala High Court to appoint a retired judge of the High Court to be the chairman of the high level committee. The said committee submitted its report on 4.8.1997 to the Supreme Court identifying the creamy layer in the backward classes of kerala State. In the background of the case as mentioned above, it was held that any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16(1) as also of Article 16(4) of the Constitution. While examining the validity of Sections 3, 4 and 6 of the impugned Validation Act, it was observed as follows:
29. In the context of the law laid down in Indra Sawhney and in Ashok Kumar Thakur if the legislature of any State does not take steps to remove the defect or effectively and realistically remove the defect to exclude the creamy layer from the backward classes then the benefits of reservations which are invalidly continued in favour of the creamy layer cannot be declared retrospectively valid merely by a legislative declaration that such creamy layer is absent as done by Section 3 of the Kerala Act. Nor can it be done by means of the validating provision contained in Section 6 of that Act. The creamy layer principle laid down in indra Sawhney cannot be ignored as done by Section 6 of the said Act. We shall elaborate these aspects later. If under the guise of elimination of the creamy layer, the legislature makes a law which is not indeed a true elimination but is seen by the Court to be a mere cloak, then the Court will necessarily strike down such a law as violative of the principle of separation of powers and of Articles 14, 16(1) and Article 16(4). What clearly emerges from the judgment of the Honble Supreme Court is that the attempt of the State of Kerala in enacting the Validation Act was in the guise of elimination of creamy layer. It was not if any defect was pointed out by the Supreme Court in its earlier judgment in Indra Sawhneys case, which the State of kerala might have tried to cure. It was a pure and simple attempt to get away with the judgment of the Supreme Court on non-existent facts. In our considered view, the facts of the case in the judgment relied upon by the learned counsel have no parity with the facts of the present case.
23. Learned counsel representing the respondents, for the proposition of law as advanced by him, and as noted above, has placed reliance upon number of judgments. It may not be necessary to deal with all the judgments in detail. We will refer to one basic judgment on the issue and simply make a mention of others. The question under debate came to be focused and determined by the Honble Supreme Court in Ujagar Prints etc. v Union of India [(1988) Supp. 3 SCR 770]. The Supreme Court was dealing with Special Leave preferred against the judgments of High Court of Gujarat and High Court of Bombay in a batch of writ petitions that were directly filed before the Supreme Court under Article 32. The common question concerned the validity of the levy of duties of excise under tariff-items 19 and 22 of the Schedule to the Central Excise and Salt Act, 1944 as amended by the Central Excise and Salt Additional Duties Excise (Amendment) Act, 1980, treating as manufacture the process of bleaching, dyeing, printing, sizing, mercerising, water-proofing, rubberizing, shrink-proofing, organdie, processing, etc. done by the processors who carry out these operations in their factories on job-work basis in respect of cotton fabric and man-made fabric belonging to their customers. The Amending Act which came to be effective from 24.2.1979, sought to render the process of bleaching, dyeing, printing, sizing, mercerizing etc. as manufacture within the meaning of sub-section 2(f) of the Central Excise Act. The amendment was necessitated by the judgment of the High Court of Gujarat which had declared the levy on such processing as illegal as, according to it, the processing did not bring into being a new and commercially different article with a distinctive character and use, and did not, therefore, constitute manufacture for purposes, and within the meaning, of the charging section. The petitioner was a firm or partners having its factory at Sunder Baug, Bombay, which was equipped with machinery and plants for processing of man-made grey-fabric. The machinery and equipment installed at the petitioners factory, it was averred, was suited for and appropriate to the processing of grey-fabric and was not capable of manufacturing grey-fabric. The point that the petitioner sought to make was that the processing of the grey-fabric is not a part, or continuation, of the process of manufacture in the manufacturing-stream, but is an independent and distinct operation carried out in respect of the grey-fabric, after it has left manufacturing-stage and has become part of the common-stock of goods in the market. Prior to the Amending Act of 1980, the levy on the processors was challenged before the Gujarat High Court, which held that the processes that the processing-houses imparted to the grey-fabric did not amount to manufacture and did not attract -ad valorem duty under tariff-items 19 and 22, and that processors were liable to pay duty under tariff-entry 68 only on the value added by the processing. The Bombay High Court had given a judgment contrary to the one given by the Gujarat High Court. Whereas, against the judgment of the Gujarat High Court the State had filed the appeal, it is the processors who had filed appeal against the judgment of the Bombay High Court. One of the points that came to be focused by the Supreme Court for adjudication was as to whether the retrospective operation of the Amending Act is an unreasonable restriction on the fundamental right of the processors under Article 19(1)(g) of the Constitution. The question as mentioned above was answered, thus:
25. Re : Contention (d) There is really no substance in the grievance that the retroactivity imparted to the amendments is violative of Article 19(l)(g). A competent legislature can always validate a law which has been declared by Courts to be invalid, provided the infirmities and vitiating infactors noticed in the declaratory-judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the Legislature - granting legislative competence - the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant. (See Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388) Such legislative expedience of validation of laws is of particular significance and utility and is quite often applied, in taxing statutes. It is necessary that the legislature should be able to cure defects in statutes. No individual can acquire a vested right from a defect in a statute and seek a windfall from the legislature's mistakes. Validity of legislations retroactively curing defects in taxing statutes is well recognised and Courts except under extraordinary circumstances would be, reluctant to override the legislative judgment as to the need for and wisdom of the retrospective legislation. In Empire Industries Limited v. Union of India 1985 Supp.(1) SCR 292 at p. 327 this Court observed :
".......not only because of the paramount governmental interest in obtaining adequate revenues, but also, because taxes are not in the nature of a penalty or a contractual obligation but rather, a means of apportioning the costs of government amongst those who benefit from it".
In testing whether a retrospective imposition of a tax operates so, harshly as to violate fundamental rights, under Article l9 (1) (g) the factors considered relevant include the context in which retroactivity was contemplated such, as whether the law is one of validation of taxing statute struck down by, Courts for certain defects; the period of such retroactivity, and the degree and extent of any unforeseen or unforeseeable financial burden imposed for the past period. etc. Having regard to all the circumstances, of the present case, this Court in Empire Industries" case held that the retroactivity of the Amending provisions was not such as to incur any infirmity under Article 19(l)(g). We are in respectful agreement with that view.
There is no merit in contention (d) either. Learned counsel representing the respondents, in addition to placing reliance upon the judgments on which reliance has also been placed by the learned counsel representing the applicants, as note above, also relied upon judgments of the Honble Supreme Court in M/s Easeland Combines, Coimbatore v Collector of Central Excise, Coimbatore [AIR 2003 SC 843]; Virender Singh Hooda & others v State of Haryana & another [AIR 2005 SC 137]; State of Bihar v Bihar Pensioners Samaj [AIR 2006 SC 2100].
24. Having given our serious thoughts to the questions raised by the learned counsel representing the parties, we are of the considered view that there may not be any defect pointed out by the courts in the Regulations of 1961, but indeed there was a defect in the notification of the year 1979. In view of the provisions contained in Section 57 of the Act of 1957, the DDA can make regulations as regards service matters mentioned in clause (c) of sub-section (1) of Section 57 only with the previous approval of the Central Government. It is the common case of the parties that the Regulations of 1961 came to be validly framed after obtaining the previous approval of the Central government. Any amendment that was to be made in the Regulations could be made with the same procedure, i.e., with the previous approval or concurrence of the Central Government. It is also the common case of the parties that change in the Regulations as regards concerned authorities, who may be the disciplinary authority, was sought to be brought about by notification of 1979. The DDA with the prior concurrence of the Central Government has the power and jurisdiction to amend the Regulations. There was defect in the notification of 1979, inasmuch as while seeking to amend the existing Regulations, prior approval of the Central Government was not obtained. It is this defect that led to passing of the Validation Act of 1998. A Division Bench of the Delhi High Court in R. P. Sharma (supra) has clearly pointed out to the defect in the notification of 1979. In that regard it was observed on the basis of Section 21 of the General Clauses Act that the same procedure ought to have been followed while issuing the notification of 1979 as was followed when the Regulations were framed. The notification of 1979 was sought to be defended before the Division Bench of the High Court in R. P. Sharma (supra) on the dint of Section 52 of the Act of 1957. The schedule to the Regulations of 1961 constituted the Central Government as the disciplinary authority in case of all Class-I posts. This position was sought to be altered by the notification of the year 1979 issued under Section 52 of the Act, enabling other authorities to act as disciplinary authorities. The Division Bench while dealing with the issue held that when the law requires a thing to be done in a particular manner, it cannot be done in any other manner, and that any amendment to the Regulations could be done only with the prior approval of the Central Government. It was further held that the DDA could not assume power under Section 52 of the Act to amend the Regulations, and it could have done so only if Section 57 may have provided otherwise and specific power may have been with the DDA for the purpose. The DDA has the authority to amend the service regulations as regards competent authorities to take disciplinary action. The schedule attached to the Regulations could thus be amended to clothe the Vice-Chairman, DDA, instead of the Central Government, with the powers to take disciplinary action, but the method to do so was to amend the Regulations under Section 57 with the prior concurrence of the Central Government. The notification of the year 1979 was deficient or defective, and, therefore, the legislature was well within its powers to validate things which were not done validly. We are in agreement with the contention raised by Shri Arun Birbal, learned counsel for the respondents that a competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured, and that such a validation law can also be made retrospective. Admittedly the allegations against the applicants are of serious nature. They cannot escape the liability by pointing out defect in the legislation or defect in the amending service regulations. If the defect in the notification has been cured by the Validation Act of 1998, no exception can be had to that.
25. In view of the conclusion as arrived at above, no distinction could be made, be it a case of joint departmental enquiry where one of the officers may be holding Class-I post and with regard to whom the disciplinary authority may be the Central Government as per Regulations of 1961, or be it a case of a Class-I officer who may have been departmentally tried alone. However, insofar as Regulation 18 dealing with joint departmental enquiries is concerned, where one of the officers to be jointly tried may be a Class-I officer in whose case the disciplinary authority may be the Central Government, whereas others may be Class-II officers or such officers in whose case the disciplinary authority may be the Vice-Chairman, the issue came to be focused by a learned single Judge of the Delhi High Court in R. C. Kaushal v DDA [WP(C) No.120/1989 & connected matters, decided on 19.3.2007, reported as 2007 (1) ARBLR 206 Delhi]. Facts of the said case reveal that R. C. Kaushal was working as an Assistant Engineer with DDA. He was charge-sheeted on 13.8.1981 on allegations of misconduct. A joint enquiry was ordered and held. Others who faced departmental proceedings were S. C. Gupta, a Superintending Engineer and S. C. Jain, Assistant Engineer. In case of the petitioner and S. C. Jain, the disciplinary authority would be the Vice-Chairman, whereas with regard to S. C. Gupta, it would be the Central Government as per the Regulations of 1961. Before a final order of punishment could be passed against the petitioner, he filed a writ petition challenging the proceedings, wherein one of the grounds taken was precisely the same as has been taken in the cases dealt by us where joint departmental proceedings were held. While relying upon regulation 18, it was urged that when one of the officers jointly tried may be a higher officer in whose case the disciplinary authority would be the Central Government, only the Central Government could initiate the disciplinary action, and inasmuch as, the Vice-Chairman had ordered the departmental enquiry, the same would be illegal. Reliance was placed by the petitioner on the judgment of Division Bench in R. P. Sharma (supra). While referring to regulation 18 which provides that where two or more officers or employees of the Authority are concerned in any case, the authority competent to impose the penalty of dismissal from service on all such officers and servants may make an order directing that disciplinary action against all of them may be taken in one proceeding, the part of the regulation which states that the authority which may function as the disciplinary authority for purposes of such common proceeding was also taken into consideration. The plea raised by the petitioner based on regulation 18 was repelled by observing as follows:
Here too, officers of DDA are protected, in terms of Regulation 15(1) (supra) to the extent that they cannot be dismissed by any authority lower in rank than their appointing authority. If this were to be kept in mind, the futility of the contention raised by the petitioner would become apparent. The question raised in R.P. Sharma's case, in this context was different the officer was far above the rank of Asst. Engineer. Also, no order under Regulation 18 was made. The order of 11-2-1983 admittedly nominated the Vice Chairman as the disciplinary authority; the petitioner could have no grievance in that regard, because he is the highest authority in DDA, and was so, at the relevant time. Indeed, the Vice-Chairman would not fall within the prohibited category as per Regulation 15 (1). Therefore, the question of the dismissal order being a nullity, or being issued by an incompetent officer, so far as the petitioner is concerned could not have arisen. As held in Balbir Chand v Food Corporation of India 1997 (3) SCC 371, a disciplinary enquiry should not be equated with prosecution for an offence in a criminal court where the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of co-accused does not arise. Hence, the question of the impugned order being a nullity on that ground does not arise.
28. The question to be addressed by courts, whenever issues as to validity of departmental proceedings are raised, are whether the employee has being given reasonable opportunity of hearing, according to rules, and whether the conduct of such proceedings has caused prejudice to him. In State Bank of Patiala v S.K. Sharma, AIR 1996 SC 1669, it was held that in the case of violation of a procedural provision, the position is that procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment.
29. Viewed from the above standpoint, it is clear that the issuance of the impugned order by the Vice Chairman, the nominated official, as per Regulation 18, and regarding whom the petitioner does not project any grievance, except that he could not have been the competent authority in respect of Shri Gupta, could not be said to have prejudiced the petitioner. Interestingly, the substantive provision, viz. Regulation 15 (1) was not considered in R.P. Sharma's case. This aspect is significant, because as held by the Supreme Court, the protection to public servants not governed by Article 311 of the Constitution is satisfied if the authority or official issuing the order is not lower in rank than the appointing authority. I therefore, see no force in the submission on this question. I, therefore, see no force in the submission on this question. It is however made clear that the observations are not deemed to affect the rights and contentions of Shri Gupta, if his petition is pending in Court. Shri Gupta, learned sr. counsel representing the applicants, would, however, urge that the judgment passed by the Honble Single Judge is against the dictum of the Division Bench in R. P. Sharma (supra) and, therefore, needs to be ignored. We do not find any merit in the aforesaid contention of the learned counsel. The Division Bench in R. P. Sharmas case was not dealing with a case of joint departmental enquiry and, therefore, provisions as regards the same, and in particular regulations 15 and 18, were not under discussion. No issue as regards the said regulations was raised, nor discussed, nor thus even adjudicated. The decision of the Honble Division Bench as regards interpretation of regulations 15 and 18 is sub silentio, and the learned single Judge, in our view, could well determine the controversy based upon the said regulations. Judgment of the Honble single Judge is not against the law laid down by the Honble Division Bench.
26. We find the contentions raised by the learned counsel representing the applicants that the impugned Validation Act of 1998 is discriminatory to be equally devoid of merit. As mentioned above, the notification dated 1.3.1994 as regards the disciplinary authorities is prospective. The period covered under the Validation Act of 1998 is from 22.11.1979, which would be the date on which the notification of 1979 was issued, to 1.3.1994. All cases during the aforesaid period are covered. It is a case of classification based upon rational criteria. It is not a case of discrimination at all. Further, if perhaps, cases prior to 1979 were also to be covered, the same indeed would have been illegal, as surely and admittedly, there was no defect in the original Regulations of 1961. The defect has been pointed out only as regards notification of 1979 seeking to amend the Regulations of 1961. The reliance of the learned counsel representing the applicants is upon Man Singh v State of Haryana & others [(2008) 12 SCC 331] to state that it is a case of discrimination. The facts of the case aforesaid have no parity with the facts of the case in hand. The facts of the said case would reveal that the appellant and one Head Constable working under him, were required to proceed from Chandigarh to Hyderabad in connection with repair of two government vehicles. The Head Constable was driver of one of the vehicles. While passing through Rajasthan, the Head Constable purchased 12 bottles of liquor and concealed them in the dickey of the vehicle without the knowledge and consent of the appellant. The liquor was detected by the excise staff of Andhra Pradesh, which registered a criminal case against the HC. Besides, departmental proceedings were also initiated against the appellant as well as the HC. The charge against the appellant was that he failed to exercise requisite supervisory control over his subordinate. Punishment of stoppage of two increments was imposed on the appellant. His appeal and revision petitions were also rejected. However, contrary to this, the HC was acquitted in criminal case and the appellate authority also removed punishment imposed upon him. The net result, therefore, was that the appellant was punished whereas preparatory of misconduct, i.e., the HC was let-off both in criminal case as well as in departmental enquiry. It is in the facts as mentioned above that the Supreme Court held that when the main preparatory of the crime had been let off, the appellant who was only supervising and against whom the only allegation was lack of supervision, could not be punished as that would be discriminatory. As mentioned above, the facts of the present case have no parity with the facts before the Supreme Court.
27. Before we may conclude, we may mention that no distinction can be made if it be a case of proceeding against some one individually or jointly. In either case, the plea is only as regards competent authority to take disciplinary action. Whereas, in the cases individually proceeded against, it is urged that the competent authority would be the Central Government, in cases of joint departmental proceedings, it is urged that if one of the officers was of the higher rank whose disciplinary authority would be the Central Government, in respect of all those who were jointly tried, orders ought to have been passed by the Central Government. We may also mention that no other arguments are raised during the course of hearing. However, in the written arguments given to us in two cases of H. L. Sharma and J. K. Mittal, who were jointly tried, it has also been mentioned that copy of CVCs advice was not supplied, and while passing the order of removal by the respondents, no reason was assigned as to whether their representations had been considered or not. Written arguments were submitted by the applicants on 24.1.2011 when the counsel for the respondents had already submitted his written arguments. But for simply making a mention of the points as noted above, no further elaboration is forthcoming. There would be no need to deal with such questions as the same were never raised during the course of arguments and which have been raised for the first time in the written arguments, without giving a chance to the respondents to reply the same. We have gone through the pleadings in H. L. Sharmas case and find that these grounds have not even been raised in the Transferred Application.
28. Finding no merit in these Transferred Applications, the same are dismissed, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/