Central Administrative Tribunal - Delhi
Rohit Goel vs North Delhi Municipal Corporation on 20 September, 2024
1
OA No.3679 /2016
Court No.2 (item No.48)
Central Administrative Tribunal
Principal Bench
OA No. 3679/2016
Reserved on:08.08.2024
Pronounced on : 20 .09.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Rohit Goel, JE,
S/o Shri S.N. Goel
Aged about 38 years
R/o F-26/3, Sector-7
Rohini, Delhi - Applicant
(Through Advocate: Mr. Apurab Lal with Ms. Rinku
Shah)
Versus
1. North Delhi Municipal Corporation
Through its: Commissioner
4th Floor, Dr. S.P.M. Civic Centre
J.L.N. Marg, Minto Road,
New Delhi.
2. Lt. Governor, GNCTD
Raj Niwas,
Raj Niwas Marg, Civil Lines,
Delhi-110054
3. The Enquiry Officer
Director (Inquiries)
North Delhi Municipal Corporation
16, Rajpur Road, Delhi-110054
-Respondents
(Through Advocate: Mrs. Anupama Bansal, Mr.R.K.
Jain)
2
OA No.3679 /2016
Court No.2 (item No.48)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., as per para 8 of the OA, the following relief(s) have been sought:-
"(i) Set aside the Inquiry Report dated 31.03.2015, impugned order dated 03.09.2015 passed by Respondent No.1 and order dated 17.08.2016 passed by Respondent No.2 in view of the above submission.
(ii) Call for the record of the case.
(iii) pass such other and further order as may deem fit and proper."
2. The factual matrix of the present case is that the applicant joined the services of the respondents in the year 2003 as a Junior Engineer (Civil). The respondent No.1 awarded a work order vide W.O. No.EE/CSE/VIII/2003/48 dated 24.2.2003 for improvement of Titarpur Drain in W.No.24, Raghubir Nagar and another Work Order No. W.O. No.EE/CSE/7/GW/49 dated 24.02.2003 for improvement of Titarpur Drain from Tagore Garden, Taxi Stand to Four storeyed flats in C-24/West Zone to a Contractor for completion of the aforesaid work on or 3 OA No.3679 /2016 Court No.2 (item No.48) before 04.06.2003. The applicant took over charge in the month of April, 2003 from his predecessor Shri Hari Om, JE, while the work was in progress. The concerned Executive Engineer sought permission for closing the work in question due to unauthorised occupancy of Juggi dwellers, vide note dated 31.5.2004. A charge sheet was issued to the applicant on 19.10.2007 (Annexure A-3). An Enquiry Officer was appointed vide order dated 11.01.2008 to inquire in the charges framed against the applicant. The inquiry proceeding commenced with effect from 17.09.2009 after one year eight months from the date of appointment of Inquiry Officer. The applicant submitted a detailed written arguments stating that no case of misconduct is made out against him on the basis of the evidence led before the respondent No.3 and he further stated that on 31.03.2015, respondent no.3 submitted the Inquiry Report. The applicant contents that the respondent No.1, on the basis of the Inquiry Report without applying his mind proposed to impose penalty of stoppage of three annual increments with cumulative effect for 3 years without giving any opportunity to the applicant to make his comments on 4 OA No.3679 /2016 Court No.2 (item No.48) the Inquiry Report in compliance of the rules. The applicant submitted his detailed reply stating that respondent no. 3 i.e. the Enquiry Officer, Director (Inquiries) North Delhi Municipal Corporation has committed serious illegalities while proving the charge against him. On 03.9.2015, the respondent No.1 imposed the penalty of stoppage of 3 annual increments with cumulative effect for 3 years by a non-
speaking order. The applicant (Shri Rohit Goel, JE) preferred an appeal before the Respondent No.2 against the order of punishment passed by the Respondent ( No.1), the said order of punishment was confirmed by the respondent no.2. Hence, aggrieved by the said order of punishment, the applicant (Shri Rohit Goel, JE) filed the present Original Application, seeking the aforementioned relief(s).
3. On admission of the present Original Application, notices were issued to the respondents and the respondents have filed their reply to which the applicant has also filed rejoinder to the reply filed them.
5 OA No.3679 /2016Court No.2 (item No.48)
4. The respondents in their reply filed on 19.07.2017 have stated that major penalty proceedings were initiated against S/Shri (i) Rohit H.W.Madan(AE), (ii) Rohit Goel (applicant in OA) & (iii) Hari Om (Jr. Engineer) in RDA case No.1/107/2007. Charge Sheets were issued and served upon them on 19.07.2007. It was alleged that while working with the respondents-
DEMS Dept., West Zone of erstwhile MCD during 2003, a complaint from CVC alleging misuse of public funds by officials of MCD in C.No.24, Raghubir Nagar, West Zone was received in Vigilance Department and an investigation into the matter was conducted by the respondents (Vigilance Department as well as by Quality Control). The investigation revealed that the work for improvement of Titarpur Drain in W.No.24 Raghubir Nagar was awarded to the Contractor vide W.O. No. EE/CSE/VII/2004/GW/48 dated 24.2.2003 and for improvement of Titarpur Drain from Tagore Garden, Tax Stand to four storeyed flats in C-24, West Zone vide W.O. No.EE/CSE/VII/GW/49 dated 24.2.2003. Both work orders were checked by the Quality Control Cell and a number of discrepancies 6 OA No.3679 /2016 Court No.2 (item No.48) were found. On the basis of the aforesaid allegations, following Charges were framed against the applicant:-
"While working in C.No. 24, DEMS Deptt., West Zone during the year 2003, he failed to maintain absolute integrity, devotion to duty and committed gross misconduct on the following counts:
1. He failed to follow the instructions laid down in the CPWD Manual and in work order No. EE/CSE/VIII/2004/48 dated 24.2.2003 for the improvement of Titarpur drain in as much as he did not get tested steel samples.
2. He also failed to prepare the cement and steel register in the prescribed printed form. The register prepared in rough shape was not got authenticated by the Divisional Acct. & EE.
3. He also failed to provide MB NO. 769 for checking before quality control Cell, the investigating agency which contained the record entry pertaining to IInd running bill.
4. He also failed to maintain the thickness of RCC slab as per approved standards for the works.
5. He also failed to produce SLF slips for silt claimed as removed in work order No. 49 for inspection before the investigating team of Quality Control Department.
6. He also failed to produce the SLF slips for claim of Malba removal in work order No. 48 & 49 before Quality Control Department for inspection.
7. He sent only one sample of brick for testing as against norms of two in view of the usage volumes.
He thereby contravened Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of MCD."
5. They further contended that the Disciplinary Authority after considering the Inquiry Report and allied record of the case vide his orders dated 14.5.2015, proposed to impose penalty of 'stoppage of three annual increments with cumulative effect for 7 OA No.3679 /2016 Court No.2 (item No.48) three years' upon both the COs namely S/Shri Rohit Goel & Hari Om, JEs. Respondent No.1 issued a show cause notice dated 21.5.2015 along with Inquiry Report dated 31.3.2015 and served upon the applicant. The Disciplinary Authority vide order dated 14.5.2015 proposed to inflict penalty of stoppage of three increments with cumulative effect for three years upon the applicant. The applicant submitted his reply dated 9.6.2015, wherein, the applicant also requested for personal hearing. Thereafter, the Disciplinary Authority after considering the reply submitted by the applicant and allied record of the case has observed that the applicant has been given ample opportunity to defend his case before the Inquiry Officer and rejected the request of personal hearing and confirmed the proposed penalty of 'stoppage of three annual increments with cumulative effect for three years' upon the applicant, vide order dated 25.8.2015. Aggrieved by the said penalty order, the applicant had preferred an appeal dated 15.10.2015. The Appellate Authority, after having gone through the facts and circumstances of the case, has observed that the averments made by the applicant in his appeal are devoid of merit and 8 OA No.3679 /2016 Court No.2 (item No.48) therefore, found no reason to interfere with the impugned penalty order passed by the Disciplinary Authority and thereby rejected the appeal preferred by the applicant, vide his order dated 17.8.2016 The respondent contends that in view of above facts and circumstances, stated hereinabove, the applicant does not deserve any relief(s) from the Hon'ble Tribunal and the action of the respondents is fully justified and in accordance with law and they further state that the present OA is not maintainable in the eyes of law and liable to be dismissed.
6. The applicant has filed rejoinder stating that the time to extend the work awarded under the jurisdiction of Executive Engineer and not the Junior Engineer and that the predecessor of the applicant had not submitted M.B. inspite of several reminders given by the EE concerned. Therefore, no fault or negligence can be attributed to the applicant and the respondents have failed to establish that the applicant has committed mistake, on the contrary the allegations against the applicant are based on conjuncture and surmise. The Disciplinary Authority has first passed the penalty order and thereafter issued show cause 9 OA No.3679 /2016 Court No.2 (item No.48) notice to the applicant along with Inquiry Report of his comments which is also against the Rules.
7. We have heard the learned counsels for both parties and have carefully perused pleadings available on record.
8. The learned counsel for the applicant states that the respondent no.3 did not give any opportunity to the Applicant to make his representation on the Inquiry Report before issuing the proposed penalty. The learned counsel for the respondents state that the Disciplinary Authority after considering the Inquiry Report and allied record of the case, proposed to inflict the penalty of 'stoppage of three annual increments with cumulative effect for three years' upon the applicant vide its order dated 14.5.2015. They further state that accordingly, a show cause notice dated 21.5.2015 along with a copy of Inquiry Report dated 31.3.2015 was issued to the applicant to which the applicant filed his reply dated 9.6.2015, wherein, the applicant has requested for personal hearing. The Disciplinary Authority did not accept the request of personal hearing and has officially confirmed proposed 10 OA No.3679 /2016 Court No.2 (item No.48) penalty of stoppage of three annual increments with cumulative effect for three years vide order dated 25.8.2015.
9. It is clear from the order dated 03.09.2015 (Annexure A-1 Colly) that the Disciplinary Authority has taken a decision and proposed to inflict the penalty of stoppage of three increments with cumulative effect for three years upon the applicant vide order dated 14.05.2015. Accordingly, a show cause notice was issued to the applicant on 21.5.2015, wherein the applicant was asked to submit his reply. The applicant sought personal hearing and also submitted his reply.
The request for personal hearing was not accepted by the respondents authorities. The Disciplinary Authority confirmed the penalty proposed earlier that is of stoppage of three annual increments with cumulative effect for three years upon the applicant vide order dated 21.08.2015. From the above sequences of events, it is evident that before even receipt of representation of applicant on the Inquiry Report, the Disciplinary Authority has made up his mind to inflict of penalty upon the applicant, therefore, the Disciplinary Authority has acted with pre-determined 11 OA No.3679 /2016 Court No.2 (item No.48) to impose punishment upon the applicant which is against the established principle of natural justice i.e. no-one should be condemned and unheard.
10. The applicant also states that issuance of penalty order and thereafter issuing show cause notice are against the rules. For facility of reference, the relevant portion of the order of respondent authority dated 03.09.2015 is reproduced as under:-
"....And whereas Director of Inquiries after conducting regular departmental inquiry held the charges No. 1.5.6 as proved and charges No. 2,3,4 & 7 as 'not proved' against Shri Rohit Goel, Jr. Engineer vide Inqury Report dated 31.3.2015.
And whereas Commissioner, North DMC the Competent Authority after considering the Inquiry Report and allied record of the case proposed to inflict the penalty of stoppage of three annual increments with cumulative effect for three years' upon Shri Rohit Goel. Jr. Engineer, vide his orders dated 14.5.2015 And whereas a show cause notice bearingNo.1/107/2007/Vig/P/HB/15/1123 dated 21.5.2015 was issued and served upon Shri Rohit Goel. Jr. Engineer, to which, he submitted his reply requesting therein to grant him an opportunity of personal hearing.
AND Now, Commissioner, North DMC the Competent Authority after considering reply submitted by Shri Rohit Goel, Jr. Engineer and allied record of the case has observed that he has been given ample opportunity to defend his case before the Inquiry Officer hence rejected his request of personal hearing and, has finally, confirmed the proposed penalty of stoppage of three annual increments with cumulative effect for three years' upon Shri Rohit Goel, Jr. Engineer, vide his orders dated 25.8.2015 12 OA No.3679 /2016 Court No.2 (item No.48) This is being issued and notified for information and necessary action by all concerned."
11. During the course of arguments, the learned counsel for the applicant has placed reliance on the judgment of the Supreme Court of India in the case of Managing Director, ECIL v. B. Karunakar (AIR 1994 SC 1074 ) and copy of the said judgment supplied to the Bench. For facility of reference, the relevant paras are as follows:-
"7. What emerges from the above survey of the law on the subject is as follows:
Since the Government of India Act, 1935 till the 42nd Amendment of the Constitution, the Government servant had always the right to receive report of the Inquiry Officer/authority and to represent against the findings recorded in it when the Inquiry Officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the inquiry Officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the reasonable opportunity, incorporated earlier in Section 240 (3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the Inquiry Officer's report and to show cause against the findings in the report 13 OA No.3679 /2016 Court No.2 (item No.48) was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the 42nd Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the Inquiry Officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the 42nd Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other.
While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on 14 OA No.3679 /2016 Court No.2 (item No.48) the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.
The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority 15 OA No.3679 /2016 Court No.2 (item No.48) which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.
It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.16 OA No.3679 /2016
Court No.2 (item No.48) The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt 17 OA No.3679 /2016 Court No.2 (item No.48) of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges.
Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
Hence the incidental questions raised above may be answered as follows:
(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
(ii) The relevant portion of Article 311(2) of the Constitution is as follows:18 OA No.3679 /2016
Court No.2 (item No.48) "(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.
(iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him.
(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 19 OA No.3679 /2016 Court No.2 (item No.48) SC 471) (supra) should apply to employees in all establishments whether Government or non- Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non- furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating 20 OA No.3679 /2016 Court No.2 (item No.48) limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice.
Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court., Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment.
The Court/Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be 21 OA No.3679 /2016 Court No.2 (item No.48) decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.
In this connection we may refer to a decision of this court in State Bank of India v. N. Sundara Money, (1976) 3 SCR 160: (AIR 1976 SC 1111) where the Court has shown the proper course to be adopted where the termination of service of an employee is faulted on a technical ground. This was a case where an employee was appointed as Cashier off and on by the State Bank of India between July 31, 1973 and August 29. 1973. Together with the earlier employment, this nine days, employment during the said period had ripen into 240 days of broken bits of service. The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post "today" de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.
Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the 22 OA No.3679 /2016 Court No.2 (item No.48) delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges. before 42nd Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by, the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E. Bashyan's case (AIR 1988 SC 1000) (supra) by the two learned Judges of this Court who referred the question to the larger Bench. lt has also been pointed out that in K. C. Asthana's case (AIR 1988 SC 1338) (supra), no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) that the question squarely fell for decision before this Court. Hence till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case (supra) was decided, the position of law, on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan's case (supra) that this court laid down the law. That decision made the law, laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry Officer's report to the employee. The only exception to this was where the service rules with regard to the disciplinary 23 OA No.3679 /2016 Court No.2 (item No.48) proceedings themselves made it obligatory to supply a copy of the report to the employee.
However, it cannot be gainsaid that while Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) made the law laid down there prospective in operation, while disposing of the cases which were before the Court, the Court through inadvertence gave relief to the employees concerned in those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned in those appeals. The law which is expressly made prospective in operation there cannot be applied retrospectively on account of the said error. It is now well settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well-known decisions on the point.
In L. C. Golak Nath v. State of Punjab, (1967) 2 SCR 762 : (AIR 1967 SC 1643), dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, the Court took into consideration the fact that between 1950 and 1967, as many as twenty amendments were made in the Constitution and the legislatures of various States had made laws bringing about an agrarian revolution in the country. These amendments and legislations were made on the basis of the correctness of the decisions in Sankari Prasad Singh Deo v. Union of India, 1952 SCR 89: (AIR 1951 SC 458) and Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 : (AIR 1965 SC 845) viz., that the Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside the judicial scrutiny on the ground they infringed the said rights. The Court then stated that as the highest Court in the land, it must evolve some reasonable principle to meet the said extraordinary situation. The Court pointed out 24 OA No.3679 /2016 Court No.2 (item No.48) that there was an essential distinction between the Constitution and the statutes. The Courts are expected to and they should interpret the terms of the Constitution without doing violence to the language to suit the expanding needs of the society. In this process and in a real sense, they make laws. Though it is not admitted, such role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive. To meet the then extraordinary situation that may be caused by the said decision, the Court felt that it must evolve some doctrine which had roots in reason and precedents so that the past may be preserved and the future protected. The Court then referred to two doctrines familiar to American Jurisprudence, viz., Blackstonian view that the Court was not to pronounce a new rule but to maintain and expound the old one and, therefore, the Judge did not make law but only discovered or found the true law. That view would necessarily make the law laid down by the Courts retrospective in operation. The Court, therefore, preferred the opinion of Justice Cardozo which tried to harmonise the doctrine of prospective overruling with that of stare decisis expressed in Great Northern Railway v. Sunburst Oil and Ref. Co., (1932) 287 US 358, 77 Led 360. The Court also referred to the decisions subsequent to Sunburst and to the "Practice Statement (Judicial Precedent)" issued by the House of Lords recorded in (1966) 1 WLR 1234 and pointed out that the modern doctrine as opposed to the Blackstonian theory was suitable for a fast moving society. It was a pragmatic solution reconciling the two doctrines. It found law but restricted its operation to the future and thus enabled the Court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It was left to the discretion of the court to prescribe the limits of the retroactivity. There by, it enabled the court to mould the reliefs to meet the ends of justice. The Court then pointed out that there was no statutory prohibition against the Court refusing to give retroactivity to the law 25 OA No.3679 /2016 Court No.2 (item No.48) declared by it. The doctrine of res judicata precluded any scope for retroactivity in respect of a subject matter that had been finally decided between the parties. The Court pointed out that the Courts in this land also, by interpretation, reject retroactivity of statutory provisions though couched in general terms on the ground that they affect vested rights. The Court then referred to Articles 141 and 142 to point out that they are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice. These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. The Court then held that in the circumstances to deny the power to the Supreme Court to declare the operation of law prospectively on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective a powerful instrument of justice placed in the hands of the highest judiciary of this land. The Court then observing that it was for the first time called upon to apply the doctrine of prospective overruling evolved in a different country under different circumstances, stated that it would like to move warily in the beginning. Proceeding further, the Court laid down the following propositions :
"(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution (2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."
The Court then declared that the said decision will not affect the validity of the Constitution 26 OA No.3679 /2016 Court No.2 (item No.48) (Seventeenth Amendment) Act, 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. The Court also declared that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.
Accepting the lead given in the above decision, this Court has since extended the doctrine to the interpretation of ordinary statutes as well.
In Waman Rao v. Union of India, (1981) 2 SCR 1 : (AIR 1981 SC 271), the question involved was of the validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and again the device of prospective overruling was resorted to.
In Atam Prakash v. State of Haryana, (1986) 2 SCC 249 : (AIR 1986 SC 859), the question was of the validity of the Punjab Pre-emption Act, 1913. The Court while holding that the relevant provisions of the Act were ultra vires the Constitution gave a direction that the suits and appeals which were pending in various courts will be disposed of in accordance with the declaration made in the said decision, Where, however, the decrees had become final they were directed to be binding inter partes and it was held that the declaration granted by the Court with regard to the invalidity of the provisions of the Act would be of no avail to the parties to such decree.
In Orissa Cement Ltd, v. State of Orissa, 1991 Supp 1 SCC 430: (AIR 1991 SC 1676), the question involved was about the validity of the royalty and related charges for mining leases. Although the Court held that the levy was invalid since its inception, the Court held that a finding regarding the invalidity of the levy need not automatically result in a direction for a refund of all collections thereof made earlier. The Court held that the declaration regarding the invalidity of a provision of the Act enabling levy and the determination of the relief to be granted were two different things and, in the latter sphere, the Court had, and it must be held to have, a certain amount of discretion. It is open to the Court to grant moulded 27 OA No.3679 /2016 Court No.2 (item No.48) or restricted relief in a manner most appropriate to the situation before it and in such a way as to advance the interest of justice. It is not always possible in all situations to give a logical and complete effect to a finding. On this view, the Court refused to give a direction to refund to the assessees any of the amounts of cess collected until the date of the decision since such refund would work hardship and injustice to the State. We may also in this connection refer to Victor Linkletter v. Victor G. Walker,(l965) 381 US 618 :14 Law ed 2d 601, where it was held that a ruling which is purely prospective does not apply even to the parties before the court. The Court held that in appropriate cases a court may in the interest of justice make its ruling prospective and this applies in the constitutional area where the exigencies of the situation require such an application.
The direction with regard to the prospective operation of the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) was followed by various Benches of this Court, viz., S. P. Viswanathan v. Union of India, (1991) Supp 2 SCC 269 : (1991 AIR SCW 730); Union of India v. A. K. Chatterjee (1993) 2 SCC 191 and Managing Director, Food Corporation of India v. Narendra Kumar Jam, (1993) 2 SCC 400.
The apparent departure was in R. K. Vashisht v. Union of India, (1993) Supp 1 SCC 431. However, the employee there had made a request for a copy of the inquiry report but it was not furnished to him prior to the issue of the order of dismissal. It is in these circumstances that this Court, relying upon the proposition of law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) held that the order of dismissal was vitiated. lt is not clear from the decision whether the rules in that case required furnishing of the copy and at what stage.
However, it has to be noticed that although it is in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) that this Court for the First time accepted 28 OA No.3679 /2016 Court No.2 (item No.48) and laid down the law that the delinquent employee is entitled to the copy of the report before the disciplinary authority takes its decision on the charges levelled against him, Gujarat High Court in a decision rendered on 18th July, 1985 in Dr. H. G. Patel v. Dr. (Mrs.) K. S. Parikh, (1985) (2) 26 Guj LR 1385 and a full Bench of the Central Administrative Tribunal in its decision rendered on 6-11-1987 in Premnath K. Sharma v. Union of India, (1988)2 ASLJ 449. had taken a similar view on the subject. It also appears that some High Courts and some Benches of the Central Administrative Tribunal have given retrospective effect to the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) notwithstanding the fact that the said decision itself had expressly made the law prospective in operation. The fact, however, remains that although the judgments in H. G. Patel's case and Premnath K. Sharma's case (supra) as well as some of the decisions of the High Courts and of the Benches of the Central Administrative Tribunal were either taking a similar view prior to the decision in Mohd.
Ramzan Khan's case (supra) or giving retrospective effect to the said view and those decisions were not specifically challenged, the other decisions taking the same view were under challenge before this Court both before Mohd. Ramzan Khan's case (supra) was decided and thereafter. In fact as stated in the beginning, the reference to this Bench was made in one such case as late as on the 5th August, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra), the law on the subject was in a flux. Indeed, it is contended on behalf of the appellants! petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan's case (AIR 1991 29 OA No.3679 /2016 Court No.2 (item No.48) SC 471) (supra) and the view taken by this court in the earlier cases, and the reliance placed on K. C. Asthana's case (AIR 1988 SC 1338) (supra) to contend that a contrary view was taken there was not well merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative Tribunal in Premnath K. Sharma's case (1988 (2) ASLJ 449) (supra) and of the Gujarat High Court in H. G. Patel's case (1985 (2) 26 Guj LR 1385) (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan Khan's case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra). This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R. K. Vashist's case, (1993 Supp (I) SCC 431) (supra).
8. The need to make the law laid down in Mohd. Ramzan Khan's case, (AIR 1991 SC 471) (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/ managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies 30 OA No.3679 /2016 Court No.2 (item No.48) of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above.
In the view we have taken, we direct that all the appeals and special leave petitions be now placed before an appropriate Bench of this Court for decision according to the law laid down here.
9. K. RAMASWAMY, J.:- I have had the benefit of reading the draft judgment of my learned brother P. B. Sawant, J.. While broadly agreeing with his interpretation of Art. 311(2), I disagree with his conclusion that the application of Mohd. Ramzan Khan's ratio to him and his companions was per incuriam. To deal with certain aspects which would flow from our judgment in this batch too. I feel it expedient to express my views. Since my learned brother has critically examined in extenso the historical development and the interpretation given to S. 240(3) of the Government of India Act, 1935 and Art. 311(2) of the Constitution of India vis-a-vis the Constitution 15th Amendment Act, 1963 and the Constitution 42th Amendment Act, 1976. I would desist to tread the path once over. For continuity of thought, I would broadly sketch the scope of the phrase "reasonable opportunity of being heard" at an enquiry into a charge and the action proposed to be taken against a member of a civil service or holder of a civil post engrafted 31 OA No.3679 /2016 Court No.2 (item No.48) in Art. 311 of the Constitution and the concept of the principles of natural justice embedded as its part at an enquiry into the charges against an employee or workman/ officer of an authority under Art. 12 of the Constitution, a workman/officer of an employer compendiously called "the delinquent" as the same principles are applicable to them all. Before doing so it is necessary to state facts, in brief in some sample cases.
....xx....
13. In Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, another Constitution Bench held that the departmental proceedings taken against the Govt. servant are not divisible into two compartments. There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges raised against the Govt. servant have been established or not and the second is reached only if it is found that they are established. That stage deals with the action to be taken against the Govt. servant concerned. Therefore, from the stage of service of the charge- sheet till the imposition of punishment was considered to be a continuous whole process consisting of the proof of the charge and imposition of the punishment on the proved charge. In Dr. M. N. Dasanna v. State of A.P., (1973)2 SCC 378 at p.383:(AIR 1973 SC 2275 at p. 2278), a Bench of three Judges held that the enquiry consists of recording evidence admitting documents and generally completing the records upon which the finding would be based. It is only after all the material has been placed on record by both the sides, the stage of recording a finding would arise. In Khardah Co. Ltd. v. Their Workmen, (1964) 3 SCR 506: (AIR 1964 SC 719), a Bench of three Judges held that it is the duty of the inquiry officer to record clearly and precisely his conclusions and to indicate briefly the reasons therefor, so that the Industrial Tribunal can judge whether they are basically erroneous or perverse. In that case since the reasons were not specifically 32 OA No.3679 /2016 Court No.2 (item No.48) recorded the court quashed the order of termination. In Union of India v. H. C. Goel, (1964) 4 SCR 718 : (AIR 1964 SC 364), another Constitution Bench held that the enquiry report along with the evidence recorded constitute the material on which the Govt. has ultimately to act, i.e. only the purpose for the enquiry held by the competent officer and the report on which he makes as a result of the said enquiry. The non- supply of the copy of the report contravenes the principle of reasonable opportunity envisaged under Article 311(2) and also violates the principle of natural justice. If the dismissal order is based on no evidence then the order of dismissal is clearly illegal. In State of Maharashtra v. B. A. Joshi, (1969)3 SCR 917 (AIR 1969 SC 1302), this Court held that the report of the enquiry officer is bound to influence the disciplinary authority: to deprive the plaintiff of a copy of the report was handicap to the delinquent and he was not knowing what material had influenced the disciplinary authority. Therefore, it was held that it would be in a rare case in which it can be said that the Govt. servant was not prejudiced by the non- supply of the report of the enquiry officer. Accordingly the finding of the High Court holding that non-supply of the report violates the principles of natural justice and the statutory provision was upheld by a Bench of three Judges. In State of Gujarat v. R. G. Teredesai, (1970) 1 SCR 251:
(AIR 1969 SC 1294), a Bench of three Judges held that the enquiry officer was under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry was held. Its function was merely to conduct the enquiry in accordance with the law and to submit the record along with his findings or conclusions on the delinquent. If the enquiry officer has also made recommendation in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to the penalty or punishment to be imposed on such officer, it must be disclosed to the delinquent. Since such recommendation form part of the record and constitutes appropriate material for consideration, it would be essential 33 OA No.3679 /2016 Court No.2 (item No.48) that the material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. The entire object of supplying a copy of the report of the enquiry officer is to enable the delinquent to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe.
12. In view of the position explained above and in view of law laid down by the Hon'ble Supreme Court (supra), we hold that the action of Disciplinary Authority and Appellate Authority are not in accordance with law laid down by the Hon'ble Apex Court. Accordingly, the following order in this case is issued:-
(i) The OA is allowed. The impugned order dated 03.09.2015 (Colly A-1) passed by the respondent No. 1 and order dated 17.8.2016 (Colly A-1) of the respondents No.2 are quashed and set aside.
(ii) The applicant shall be entitled to all consequential benefits. The respondents are directed to settle all consequential benefits of applicant within 10 weeks from the date of receipt of a certified copy of this order.34 OA No.3679 /2016
Court No.2 (item No.48)
(iii) No order as to costs. Pending all MAs, if any, shall stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/