Gujarat High Court
T.S. Rabari vs Government Of Gujarat And Anr. on 5 August, 1991
Equivalent citations: (1991)2GLR1035
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. A substantial question of general public importance having far-reaching effect has been raised in the present group of petitions. In view of the challenge to the constitutional validity of certain statutory rules, some petitions were placed for admission as well as for final hearing before the Division Bench. In view of the fact that a similar question was pending before the Division Bench, the learned single Judge has also referred some petitions to the Division Bench and that is how all these matters are before us for final hearing.
Facts:
2. For the purpose of appreciating the controversy in question, it may be necessary to state facts in the first petition briefly. In Special Civil Application No. 1816 of 1989, it is the case of the petitioner that he was appointed as Range Forest Officer Class III on November 2, 1974 and was promoted to the post of Assistant Conservation of Forests, Class II which is a gazetted post. A charge-sheet dated August 21, 1984 was served upon him in respect of an incident said to have taken place in the month of March 1982 when he was working as Range Forest Officer. The inquiry was held wherein the petitioner submitted his explanation. Therefore, nothing was done further in the matter. However, it is the case of the petitioner that he had reliably learnt that an order terminating his services by way of penalty was passed. It is his case that before taking such action, the principles of natural justice have not been observed and he has not been supplied a copy of the report submitted by the Enquiry Officer and, therefore, the impugned order is contrary to law and requires to be quashed and set aside. The petitioner has also challenged the constitutional validity of the Rule 10(4) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 as amended in 1986 as arbitrary, unreasonable and ultra vires Articles 14 & 16 of the Constitution of India. In other petitions similar provisions in Rules and/or Regulations framed by the Nationalised Banks, Insurance Company or National Textile Corporation have been challenged as ultra vires and unconstitutional.
Statutory Provisions:
3. Before we decide whether supply of report of the Enquiry Officer is necessary and whether it is incumbent on the part of the authorities to supply a copy to the delinquent, it is necessary to consider the relevant provisions of the Constitution of India. Part XIV of the Constitution of India relates to the services under the Union and the States. Article 309 of the Constitution provides that subject to the provisions of the Constitution an appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The proviso to the said Article states that until a provision is made by an appropriate Legislature, it shall be competent for the President or Governor to make rules regulating recruitment and conditions of service of such persons. Article 310 enacts the pleasure doctrine. Article 311 which is material for our purpose provides for dismissal, removal and reduction in rank of persons employed in civil services in certain circumstances. The relevant part of Article 311 as it originally stood read as under:
(1)...
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him;....
By the Constitution (Fifteenth Amendment) Act, 1963, Clause (2) was substituted as under:
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
By the Constitution (Forty-Second Amendment) Act, 1976, a substantial change was effected in Clause (2) of Article 311 with effect from January 1, 1977. After the Amendment, the new Clause (2) reads as under:
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided 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.
4. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and with the previous approval of the Central Government under the proviso to Sub-section (6) of Section 81 of the Bombay Reorganisation Act, 1960 the Governor of Gujarat framed rules known as Gujarat Civil Services (Discipline & Appeal) Rules, 1971 (hereinafter referred to as 'the Rules'). The Disciplinary Authority is defined in Rule 2(c) as 'the authority competent under these Rules to impose on a Government servant any of the penalties specified in Rule 6.' Rule 6 lays down certain penalties. Two types of penalties have been provided by the Rule, viz., (i) Minor Penalties; and (ii) Major Penalties. In the present petitions we are concerned with the major penalties which include compulsory retirement, removal and dismissal. Rule 9 provides for the procedure for imposing major penalties. It enacts that no order imposing any major penalty specified in items (4) to (8) of Rule 6 shall be passed except after an inquiry, held as may be, in the manner provided in Rules 9 and 10. Such an inquiry may be held by the Disciplinary Authority itself or by the Inquiry Authority. If the Disciplinary Authority itself does not hold the inquiry and appoints an Inquiry Authority for the said purpose, necessary procedure will be followed by the Inquiry Authority of serving the delinquent a copy of the articles of charges levelled against him, asking for an explanation and affording reasonable opportunity of being heard. After following the procedure laid down in the rules, the Inquiry Authority will prepare its report by recording its findings and submit the record of inquiry to the Disciplinary Authority which shall include (a) the report prepared by it; (b) written statement of the defence, if any submitted by the delinquent; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and (e) the orders, if any, made by the Disciplinary Authority and the Inquiry Authority in regard to the inquiry. Rule 10 provides for action on the inquiry report. It empowers the Disciplinary Authority either to accept the report or findings recorded by the Inquiry Authority or to disagree with the finding on all or any of the charges and invests him with the power to remit the case to the Inquiry Authority for further inquiry and for a report in case of necessity. Clause (4) of Rule 10 as it was originally enacted prior to the first amendment is relevant and requires to be quoted:
10(4)(i). If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in terms (4) to (8) of Rule 6 should be imposed on the Government servant, it shall.
(a) furnish to the Government servant a copy of the report of the inquiry held by it and its finding on each article of charge, or where the inquiry has been held by an Inquiry Authority, appointed by it, a copy of the report of such authority and statement of its findings on each article of charge together with brief reasons for its disagreement if any, with the findings of the Inquiry Authority.
(b) give to the Government servant a notice stating the penalties proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish make on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 9.
(ii)(a) In every case in which it is necessary to consult the commission the record of the inquiry, together with a copy of the notice given under Sub-clause (b) of Clause (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice. (b) The Disciplinary Authority shall after considering the representation if any, made by the Government servant, and the advice given by the Commission determine what penalty, if any, should be imposed on the Government servant and make such order as may deem fit.
(iii) Where it is not necessary to consult the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under Sub-clause (b) of Clause (i) and determine what penalty, if any, should be imposed on him and make such order as it may deem fit.
5. After the Forty-Second Amendment of the Constitution, the Rules were amended by the Gujarat Civil Services (Discipline & Appeal) (First Amendment) Rules, 1986 (hereinafter referred to as 'the Amended Rules'). Sub-rule (4) of Rule 10 as amended by the First Amendment reads as under:
10(4). If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in items (4) to (8) of Rule 6 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission the record of the enquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and the advice shall be taken into consideration before making an order imposing any such penalty, as may be imposed on the Government servant.
6. Looking to the provisions of Sub-rule (4) prior to the First Amendment, it becomes clear that it provided for a second notice in accordance with the provisions of Article 311(2) of the Constitution, regarding proposed penalty on the basis of the evidence adduced during the departmental inquiry which was required to be given to the delinquent and he was required to be heard before imposing punishment on him. By the Constitution (Forty-Second Amendment) Act, 1976, however, the said opportunity has been dispensed with in case of 'Civil Servant' and now it is not necessary that after the inquiry and before imposition of the penalty on the basis of such inquiry a notice should be given to the delinquent to show cause why a particular punishment should not be imposed on him.
7. Rule 12 provides for communication of the orders made by the Disciplinary Authority and it reads as under:
12. Communication of orders-Orders made by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiry, if any, held by the Disciplinary Authority and a copy of its findings on each article of charge, or where the Disciplinary Authority is not the Inquiry Authority, a copy of the report of the Inquiry Authority and a statement of the findings of the Disciplinary Authority together with brief reasons for its disagreement, if any, with the findings of the Inquiry Authority (unless they have already been supplied to him) and also a copy of the advice, if any, given by the Commission and, when the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance.
8. Part V provides for appeals. Rule 18 enacts that in certain circumstances a Government servant may prefer an appeal against the orders mentioned therein. Rules 22 to 24 lay down procedure for review in certain cases. Rule 26 provides for supply of a copy of the Commission's advice, and it reads as under:
Supply of copy of Commissioner's advice-Wherever the Commission is consulted as provided in these Rules, a copy of the advice by the Commission and, where such advice has not been accepted, also brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned along with a copy of the order passed in the cases by the authority making the order.
9. Similar provisions are found in respect of employees in service of the Nationalised Banks, Insurance Company and the National Textile Corporation (NTC). So far as Dena Bank, is concerned, in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1976, the Board of Directors of Dena Bank in consultation with the Reserve Bank of India and with the previous sanction of the Central Government, framed regulations known as 'Dena Bank Officer Employees' (Discipline & Appeal) Regulations, 1976. More or less all these regulations are similar to those of the statutory rules framed by the State of Gujarat and referred to us hereinabove. It is, therefore, not necessary for us to produce in extenso the Regulations. However, we will refer to only two Regulations since they are relevant for the purpose of the questions raised in these group of petitions. Regulation 7 provides for taking action on the inquiry report, while Regulation 9 provides for communication of the orders. It reads as under:
9. Communication of orders: Orders made by the Disciplinary Authority under Regulation 7 or Regulation 8 shall be communicated to the officer employee concerned, who shall also be supplied with a copy of the report of inquiry, if any.
10. Regulation 17 speaks of appeals while Regulation 18 provides for review. Regulation 19 directs the Disciplinary Authority to consult central vigilance commission and it reads as under:
19. Consultation with Central Vigilance Commission:
The Bank shall consult the Central Vigilance Commission wherever necessary, in respect of all disciplinary cases having a vigilance angle.
The provisions in respect of the employees in service with the State Bank of India, Bank of Baroda, Union Bank of India and United Bank of India are analogous and, therefore, it is not necessary to reproduce them and to discuss in detail regulations framed by those Banks.
11. So far as the National Textile Corporation (NTC) is concerned, Rules are known as National Textile Corporation (Gujarat) Ltd. Employees Conduct, Discipline & Appeal Rules, 1974. Rule 23 provides for penalty and Rules 25 lays down procedure for imposing major penalty. Rules 28 lays down procedure for communication of the orders passed by the Disciplinary Authority pursuant to the inquiry held by the Enquiry Officer and it reads as under:
Rule 28. Communication of orders:
Orders made by the Disciplinary Authority under Rule 26 or Rule 27 shall be communicated to the employees concerned, who shall also be supplied with a copy of the report of inquiry, if any.
Rule 32 provides for appeal, while Rule 33 provides for review.
12. In respect of the Employees of the Insurance Company, The New India Assurance Company Limited has framed Rules known as 'General Insurance (Conduct, Discipline & Appeal) Rules, 1975. Rule 23 provides penalty, major and minor, Rule 25 lays down procedure for imposing major penalty and Rule 26 provides for action on the Enquiry report. Rule 28 lays down procedure for communication of the order and it reads as under:
28. Commenication of order:
Orders made by the Competent Authority under Rule 26 or Rule 27 shall be communicated to the employees concerned who shall also be supplied with a copy of the report of inquiry, if any.
All communications under Rules 23, 24, 25, 26 and 27 and copies of orders passed thereunder may be delivered personally to the employee if he is attending the office; otherwise they shall be sent by registered post to the address noted in the service record. Where such communications or copies of orders cannot be served on him personally or by registered post, copies thereof shall be affixed on the notice board of the office in which the employee is employed, and on such affixing, such communications and orders shall be deemed to have been properly served on him.
Rules 31 to 38 provides appeal while Rule 39 provides for review.
13. One of the questions which is raised before us is what is the effect of the Forty-Second Amendment of the Constitution and whether in spite of the Forty-Second Amendment of the Constitution, the delinquent is entitled to a copy of the report of the Enquiry Officer, holding him guilty and before imposition of punishment on him by the Disciplinary Authority?
14. It is contended by the Counsel on behalf of the petitioners that the point is concluded by a number of judgments of the Supreme Court as well as of this Court and particularly by a recent pronouncement of the Supreme Court in the case of Union of India v. Mohd. Ramzan Khan . According to them, after considering the earlier decisions as well as the amendments in Clause (2) of Article 311 of the Constitution, including the Forty-Second Amendment, a Division Bench of three Judges of the Supreme Court came to the conclusion that notwithstanding the Forty-Second Amendment of the Constitution, the delinquent is entitled to a copy of the Enquiry Officer's report in case of the Enquiry Officer and the Disciplinary Authority are different.
15. On the other hand, it is contended on behalf of the respondents that after the Forty-Second Amendment of the Constitution, supply of a copy of the Enquiry Officer's report is not necessary and it cannot be clained by the delinquent as of right, and if such copy is not supplied, an order of punishment cannot be held to be bad or illegal on that count. It is also submitted that if a provision is made that such a report would be supplied to the delinquent alongwith the final order of punishment, such Rule or provision cannot be held ultra vires or unconstitutional. According to them, the point is covered by a number of pronouncements of the Supreme Court, including a judgment delivered by the Constitution Bench of the Supreme Court in the leading case of Union of India v. Tulsiram Patel also of this Court.
16. It is also contended on behalf of the Counsel appearing for the Insurance Company, National Textile Corporation (NTC) and Nationalised Banks that in Mohd. Ramzan Khan, the Supreme Court was concerned only with 'Civil servants' governed by Part XIV of the Constitution of India and the ratio laid down by the Court in Mohd. Ramzan Khan should be restricted to the facts of the case, and all observations made therein should apply only to Civil servants and the principles cannot be extended or applied to employees who cannot be said to be "Civil servants" but who are employees of a Corporation or other instrumentality which is the "state" within the meaning of Article 12 of the Constitution.
17. In view of the above controversy between the parties, the questions which fall for our consideration are: Whether it is necessary to supply a copy of the report of the Enquiry Officer to the delinquent before he is held guilty and penalty is imposed on him by the Disciplinary Authority? Whether the principle applicable to "Civil servants" would also apply to employees of Statutory Corporations, Nationalised Banks, Insurance Companies and other instrumentalities of the 'State'? Whether the Forty-Second Amendment of the Constitution has effected any change in the legal position in regard to supply of a copy of the report of the Enquiry Officer? and What is the effect of non-supply of a copy of the report of the Enquiry Officer in case this Court comes to the conclusion that supply thereof is necessary?
18. On behalf of the petitioners, heavy reliance was placed on three decisions of the Supreme Court. In the case of State of Maharashtra v. B.A. Joshi , the plaintiff, a Senior Jailor was dismissed from service by the Inspector General of Prisons on account of acceptance of illegal gratification from one prisoner. It was contended by the plaintiff that a copy of the Enquiry Officer's report was not supplied to him and consequently he had not been given reasonable opportunity of being heard within the meaning of Article 311 of the Constitution (as it then stood) and the order was, thererfore, liable to be quashed. The High Court held that non-supply of a copy of the report of the Enquiry Officer amounted to denial of reasonable opportunity and the order of punishment was, therefore, liable to be quashed. The State approached the Supreme Court; dismissing the appeal and holding that the High Court had come to a correct conclusion, the Supreme Court observed:
It is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in the very rare cases in deed in which it could be said that the Government servant is not prejudiced by non-supply of the report of the Enquiry Officer.
(Emphasis supplied)
19. Almost an identical question arose once again immediately after the decision in B.A. Joshi, in the case of State of Gujarat v. R.G. Teredesai . In that case also, after a departmental inquiry, the petitioner-Sales Tax Officer, Class III-was dismissed from service. There too, the petitioner-delinquent was not supplied a copy of the report of the Enquiry Officer and this Court took the view that failure to supply a report of the Enquiry Officer amounted to denial of reasonable opportunity as provided under Article 311(2) of the Constitution and the order of dismissal was quashed and set aside. The State approached the Supreme Court. After following the decisions of the Constitution Bench in case of the Union of India v. H.C. Goel , the Supreme Court observed as under:
Now it is correct that the Enquiry Officer is 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 is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. But if the Enquiry Officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. In other words, since such recommendations form part of his record and constitute appropriate material for consideration of the Government it would be essential that the material should not be withheld from him so that he could, while showing cause against the proposed punishment make a proper representation. The entire object of supplying a copy of the report of the Enquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. If the Enquiry Officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Enquiry Officer including his views in the matter of punishment are disclossed to the delinquent servant.
(Emphasis supplied)
20. It is no doubt true that both the cases were decided by the Supreme Court prior to the Forty-Second Amendment of the Constitution, an opportunity of hearing which was required to be afforded to the delinquent in respect of one of the three punishments mentioned in Article 311(1) of the Constitution has been dispensed with. The question, however, is whether the Forty-Second Amendment of the Constitution has brought about any change in the position in the matter of supply of a copy of the report of the Enquiry Officer to the delinquent. The Supreme Court was called upon to decide this question once again in the case of Union of India v. Mohd. Ramzan Khan . A Division Bench of three Judges, after considering the provisions of Section 240 of the Government of India Act, 1935, Article 311 of the Constitution as originally enacted and as amended after the Fifteenth Amendment of 1963, the Forty-Second Amendment of 1976 and after referring to a number of cases including the case decided by the Privy Council in High Commissioner of India v. I.M. Lal, and of the Supreme Court in H.C. Goel, B.A. Joshi and R.G. Teredesai, came to the conclusion that the Forty-Second Amendment has not brought about any change in the position regarding supply of a copy of the report of the Enquiry Officer to the delinquent and even after the Forty-Second Amendment of the Constitution, the delinquent is entitled to a copy of the report of the Enquiry Officer, in case the Disciplinary Authority is other than the Inquiry Authority.
21. In view of the above decision, it is contended on behalf of the petitioners that the point is no longer res integra and the authorities are under a legal obligation and bound to supply a copy of the report of the Enquiry Officer to the delinquent, before the final order of penalty is imposed. If such a report is not supplied, it would vitiate the order of punishment and such an order requires to be quashed and set aside.
22. It is submitted on behalf of the respondents, on the other hand, that in view of the Forty-Second Amendment of the Constitution, the delinquent is now not entitled to a notice regarding proposed penalty to be imposed on him. Consequently, he is also not entitled to ask for a copy of the report submitted by the Enquiry Officer. It is also submitted that the Constitution Bench of the Supreme Court in Tulsiram, has finally concluded the point and, therefore, the petitioners now cannot contend that if a copy of the report of the Enquiry Officer is not supplied, the impugned orders are liable to be quashed and set aside.
23. It is, however, submitted by the learned Counsel for the petitioners that supply of a copy of the report of the Enquiry Officer has nothing to do with the second opportunity. According to them, supply of a copy of the report of the Enquiry Officer would fall within the first stage of the inquiry and the said stage would continue upto the recording of final verdict of guilt against the delinquent by the Disciplinary Authority.
24. We have already referred to the decision of the Supreme Court in B.A. Joshi and R.G. Teredesai. The learned Counsel for the petitioners submitted that though both the above decisions have been rendered by the Supreme Court prior to the Forty-Second Amendment of the Constitution, the principle laid down therein has not at all changed. It is also submitted that supply of a copy of the report of the Enquiry Officer is part and parcel of the connotation 'reasonable opportunity of being heard' as contemplated in Article 311(2) of the Constitution. The Constitution Bench of the Supreme Court in H.C. Goel, has also taken the same view. In Mohd. Ramzan Khan, it is held that supply of a copy of the report of the Enquiry Officer must be considered to be part and parcel of natural justice and that the Forty-second Amendment of the Constitution has not made any change whatsoever regarding supply of a copy of the Enquiry Officer's report to the delinquent. In these circumstances, according to the petitioners, as per the decision in Mohd. Ramzan Khan, a copy of the report of the Enquiry Officer must be supplied to the delinquent before holding him guilty and imposing punishment on him.
25. We are of the opinion that the contention raised on behalf of the petitioners is well founded. After considering the decisions of the Constitution Bench in H.C. Goel and also decisions in B.A. Joshi and Teredesai, the Supreme Court in Mohd. Ramzan Kha, observed as under:
Deletion of the second opportunity from the scheme of Article311(2) of the Constitution has nothing to do with providing of a copy ofthe report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Enquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by not affected by the 42nd Amendment. We, therefore, come to the conclusion, that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.
(Emphasis supplied)
26. An argument was advanced before the Supreme Court in Mohd. Ramzan Khan, that whatever might have been the legal position prior to 1976, after the Forty-Second Amendment of the Constitution, it is not necessary to supply a copy of the report of the Enquiry Officer to the delinquent. The Supreme Court, however, rejected the said contention raised by the authorities. It held that after the Forty-Second Amendment to the Constitution, the position regarding issuance of the notice for the proposed penalty has definitely changed and the said requirement was dispensed with but it has not affected in any manner supply of the copy of the report of the Enquiry Officer. This Court is in respectful agreement with the observations made by the Supreme Court in Mohmed Ramzan Khan and bound to hold that even after the Forty-Second Amendment of the Constitution, before holding the delinquent guilty and before imposing any penalty on him a copy of the report of the Enquiry Officer requires to be supplied to him.
27. The matter can, however, be looked at from of different angle as well. In Mohd. Ramzan Khan, the Supreme Court has observed that with the Forty-Second Amendment, the delinquent is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Enquiry Officer to come to his conclusion. In case his conclusions are kept away from the delinquent and the Enquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority.
(Emphasis supplied)
28. The Supreme Court also held that the report is an adverse material if the Enquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter if the delinquent is precluded from knowing the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, the rules of natural justice would be violated. Therefore, the Supreme Court held that in case the Disciplinary Authority is other than the Inquiry Authority, the delinquent is required to be given an opportunity of hearing by the Enquiry Officer. But then, as soon as the inquiry is over and the arguments have been advanced by the delinquent the matter comes to an end so far as the proceedings before the Enquiry Officer are concerned. However, it cannot be gainsaid that a report prepared by Enquiry Officer and submitted to the Disciplinary Authority is a 'material' at the inquiry. By no stretch of imagination it can be said to be innocuous material. The report of the Enquiry Officer has rightly been described by the Supreme Court as 'basic', 'vital, and 'crucial' material. If the report is adverse to the delinquent, the principles of natural justice require that it must be supplied to the delinquent inasmuch as the said material which is adverse to him will be placed before the Disciplinary Authority which is the final authority for the purpose of imposing penalty on the delinquent. Certainly, the Disciplinary Authority will have to apply its mind on the said material and, therefore, fairness requires that the delinquent should not be deprived of the said material. We are, therefore, of the view that the ratio laid down in Mohd. Ramzan Khan, that the delinquent is entitled to a copy of the report of the Enquiry Officer, so as to enable him to make a representation to the Disciplinary Authority before the Disciplinary Authority holds him guilty and imposes punishment on him on that basis.
29. The matter can be looked at from still a different angle. The contention of the respondent-authorities proceeds on the basis that a copy of the report of the Enquiry Officer is necessary in view of the fact that prior to the Forty-Second Amendment of the Constitution, a second opportunity regarding quantum of punishment was available to the delinquent officer after he was held guilty by the Disciplinary Authority. In view of the fact that the said opportunity is no more available because of amendment in Article 311(2) of the Constitution, a copy of the report of the Enquiry Officer need not be supplied to the delinquent. But in Mohd. Ramzan Khan, the Supreme Court observed that abolition of the second stage of inquiry under Article 311(2) of the Constitution has nothing to do with supply of the report of the Enquiry Officer. In this connection, the following pertinent observations are relevant and material:
We have already noticed the position that the Forty-second Amendment has deleted the second stage of the enquiry which would commence with the service of a notice proposing one of the three punishments mentioned in Article 311(2) and the delinquent officer would represent against the same and on the basis of such representation and/or oral hearing granted the disciplinary authority decides about the punishment. Deletion of this part from the concept of reasonable opportunity in Article 311(2), in our opinion, does not bring about any material charge in regard to requiring the copy of the report to be provided to the delinquent.
(Emphasis supplied) From the above observations, it becomes clear that according to the Supreme Court, there are two stages of an inquiry and the second stage commence with the service of the notice of the proposed penalty. Now, if the contention of the respondent-authorities is upheld that the first stage of inquiry would be over as soon as the delinquent makes his submission before the Enquiry Officer, an anamolous situation would arise. According to the ratio laid down by the Supreme Court in Mohd. Ramzan Khan, the second stage would commence only with the service of the notice of proposed penalty to the delinquent officer. If we were to hold accepting the contention of the respondent-authorities that the first stage of enquiry would be over as soon as the inquiry before the Enquiry Officer is completed, there would be a vacuum and interregnum for some time after submissions were made by the delinquent before the Enquiry Officer and before issuance of show cause notice regarding the proposed penalty. If the second stage commences with the service of show cause notice of the proposed penalty, it necessarily means that the first stage would continue till the issuance of notice regarding proposed penalty. In other words, the first stage would continue till the report prepared by Enquiry Officer, is submitted to the Disciplinary Authority and the Disciplinary Authority on the basis of the report submitted by the Enquiry Officer and after application of mind, comes to his own conclusion by recording his findings on the basis of the evidence and the materials placed before him. That is the only manner in which both the stages can be reconciled. If that is so, in the light of the observations in Mohd. Ramzan Khan, the delinquent is entitled to get a copy of the report of the Enquiry Officer.
30. Our attention was drawn on behalf of the respondents to the following observations of the Supreme Court in Mohd. Ramzan Khan:
There have been several decisions in different High Courts which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the enquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two Judges Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective appliccation and no punishment imposed shall be open to challenge on this ground.
31. It is submitted that the decision in Mohd. Ramzan Khan is per incuriam inasmuch as some binding decisions of the Supreme Court have not been considered therein. It is contended that Tusiram was decided by the Constitution Bench and a Bench of three Judges was bound by that decision. However, the attention of the Court was not drawn to the said case. Similarly, a decision of the three Judges Bench of the Court in Kailash Chander v. State of U.P. , was also not brought to the notice of the Court. In the said decision, a co-ordinate Bench has clearly laid down that a copy of the report of the Enquiry Officer is not required to be supplied to the delinquent Government servant after the Forty-Second Amendment of the Constitution.
32. We are not impressed by the said argument. So far as Tulsiram is concerned, the ratio laid down in the said decision has no application to the facts and circumstances of the cases on hand and the controversy raised in the present group of petitions. In Tulsiram, the Supreme Court was called upon to decide the validiy of the second proviso to Article 311(2) of the Constitution as to under what circumstances, the inquiry contemplated under Article 311(2) of the Constitution could be dispensed with. The said decision has nothing to do with supply of the report of the Enquiry Officer to the delinquent Goverment servant. In Kailash Chander, as stated by us above the Supreme Court proceeded on the basis that supply of a copy of the report of the Enquiry Officer was not necessary in view of the Forty-Second Amendment of the Constitution which dispensed with an apportunity to make representation and submissions against the proposed penalty. This is clear if one care fully reads the decision in that case. Speaking for the Court. Sharma, J. observed as under:
The question of service of copy of the report arose on account of a right of a second show cause notice to the Government servant before the 42nd Amendment and since present disciplinary proceeding was held later, the petitioner cannot legitimately demand a second opportunitty. That being the position, non-service of a copy of the report is immaterial.
33. Therefore, in none of the decisions, the question was directly raised as was raised in Mohd. Ramzan Khan. In any case, even if it is assumed that there is some conflict between Mohmed Ramzan Khan and Kailash Chander, since both the cases are decided by a Bench of three Judges a co-ordinate Court as per the binding decision of this Court in Gujarat Housing Board v. Nagjibhai Laxmanbhai and Ors. , we are bound to follow the later decision. In Nagjibhai, attention of this Court was invited to certain decisions of the Supreme Court conflicting in nature, interpreting the connotation 'person aggrieved'. After referred to those decisions, the Full Bench pronounced as under:
We also declare that when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decisions should be followed by the High Courts and other Courts.
34. We are sitting as a Division Bench of two Judges and as such, we are bound by the above decision of the Full Bench. Therefore, even if the contention of the respondent has some substance, we are bound to follow the ratio laid down in Mohd. Ramzan Khan, which is a subsequent decision.
Natural Justice
35. Arguments at considerable length have been advanced by both the sides on applicability of the principles of natural justice. The learned Counsel for the petitioners submitted that apart from the constitutional or statutory provisions, even on the basis of the application of the principles of natural justice, a copy of the report submitted by the Enquiry Officer is required to be supplied to the delinquent. It is submitted that it is not necessary that there must be constitutional or statutory provision to that effect. On the other hand, it was submitted on behalf of the respondents that supply of a copy of the report of the Enquiry Officer is not a part and parcel of natural justice. It is not disputed, and in our opinion cannot be disputed, that for application of natural justice it is not necessary that there must be specific provision in a statute to that effect. In fact the settled principles of law is that in absence of a statutory provision the principles of natural justice would apply and are deemed to have been encompassed within the statute. As early as in 1863, in the powerful pronouncement of Byles, J. in Cooper v. Wandsworth Board of Works reported in (1863) 14 CB (NS) 180 at page 194, it is observed:
A long course of decisions, beginning with Dr. Bentley's case and ending with some very recent cases, establish that although there are not positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the commission of the legislature.
36. In England, the above principle is treated as well settled, de Smith says that where a statute authorising interference with property or civil rights is silent on the question of notice and hearing, the Courts would apply the Rule as it is 'of universal application founded on the plainest principles of natural justice'. Wade also states that Rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of the power. He adds, 'the presumption is that natural justice will always apply, however, silent about it the statute may be'.
37. Coming to the home-land, in K.I. Shephard v. Union of India reported in AIR 1988 SC 686, the Supreme Court approved the following observations of Netheim: "Formerly the presumption had been that there was no obligation to give a hearing unless the statute itself indicated such an obligation; now the presumption is that there is such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power, in subjective terms in a Minister responsible to Parliament." In the historic case of A.K. Kraipak v. Union of India , speaking for the Supreme Court, Hegde, J. made the following oft-quoted observations:
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in area not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.... Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the Rules of natural justice. The validity of that limitation is now questioned. If the purpose of the Rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry.
(Emphasis supplied)
38. In view of the law laid down by English as well as Indian Courts, there is no doubt in our minds that even if there is no statutory provision and the statute is silent about the application of the principles of natural justice, these principles would apply. In fact, the settled legal position appears to be that the principles of natural justice would operate only in areas not covered by the law validly made. In other words, they do not supplant the law of the land, but supplement it. If there is a statutory provision for giving of notice, of calling for explanation or affording an opportunity of hearing, those requirements must be complied with not because natural justice requires but because the statute commands. It is only in cases where there is no statutory provision that the Court would invoke the principles of natural justice by directing the authorities to give reasonable opportunity to the person concerned against whom an action prejudicially affecting him is sought to be taken.
39. It is, however, submitted on behalf of the respondents that supply of a copy of the Enquiry Officer's report cannot be said to be part and parcel of natural justice. It is merely a statutory right and if the right is not conferred under the relevant statute, it cannot be claimed by the delinquent. It is also submitted that the point is concluded not only by English judgments, but by decisions of the Supreme Court as well as of this Court.
40. We will not burden our judgment by referring to English decisions which have been cited before us. However, it is necessary to refer to a leading decision in the case of New Prakash Transport Co. Ltd v. New Sewarna Transport Co. Ltd. reported . In that case, the first respondent held certain permits for running buses on a particular route as a sole proprietor. It applied for additional permit for that route. The appellant had also applied for a similar permit alongwith one Navjivan Transport Service. The Regional Transport Authority heard all the applicants and finally granted a permit in favour of the first respondent. The application of the appellant was rejected on the ground that the police report was against it. The correctness of the said decision was challenged by it inter alia on the ground that a copy of the police report said to have been made against the appellant-Company and relied upon by the Regional Transport Authority, was not supplied to the appellant and thus, the principles of natural justice were violated. Upholding the said contention, the appellate authority set aside the decision of the Regional Transport Authority and ordered permit to be issued to the appellant. The respondents moved the High Court for a writ of certiorari under Article 226 of the Constitution. The learned single Judge dismissed the petition, but the Division Bench allowed the Letters Patent Appeal, remanded the matter to the appellate authority directing it to decide the same in accordance with law. The appellant approached the Supreme Court. The question before the Supreme Court was whether supply of the police report was a part of natural justice. Referring to a number of English authorities including the leading case of Board of Education v. Rice, reported in 1911 AC 179, the Constitution Bench observed as under:
(T)he statutory provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a Court of law. They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for. They took into consideration all the relevant matters and came to their decision which has not been attacked as partial or preverse. The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had not been satisfied. The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the Police, though it had not been placed into the hands of the parties. That report did not directly contain any allegations against the first respondent. Hence there was nothing in that report which it could be called upon to meet. The only effect of that report was that many of the objections raised against the suitability of the appellant had been withdrawn by the Police on further consideration of their records. The Police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits. In our opinion, therefore, the fact that Appellate Authority had read out the contents of the Police report was enough compliance with the Rules of natural justice.
(Emphasis supplied) In view of the above observations, the Court held that the judgment of the High Court in appeal was erroneous and was required to be quashed and set aside.
41. Relying on the above decision, the learned Counsel for the respondents submitted that supply of a copy of the report of the Enquiry Officer cannot be said to be a component of natural justice and non-supply of it cannot vitiate the action. Reliance was also placed in this connection on behalf of the respondents on the following decisions of the Supreme Court: State of Assam v. M.K Das ; Suresh Koshi v. University of Kerala ; Hira Nath Mishra v. Rqjendra Medical College ; The Kesava Mills Co. Ltd. v. Union of India ; Laxmi Khandsari v. State of U.P. ; Minerva Mills Ltd. v. Union of India AIR 1985 SC 2030; Shadi Lal v. State of Punjab ; Sunil Kumar v. State of W.B. ; Bishnu Ram Borah v. Parag Saikia .
42. A special reference was made to the decision of the Division Bench of this Court in the case of Jayant Shukla v. Ahmedabad Municipal Corporation reported in 1976 (2) SLR 242. It was submitted that the Division Bench consisting of two eminent Judges of this Court, after considering the law on the point, has ruled that it is not necessary for the Municipal Corporation to supply a copy of the report of the Enquiry Officer and it cannot be said to be a part of natural justice. It is contended that the said decision holds the field even today and is binding to this Court. It is submitted that if this Bench doubts the correctness of the ratio laid down in Jayant Shukla, the matter requires to be referred to the larger Bench.
43. It is further submitted by the learned Counsel for the respondents that the point is squarely concluded by the decision of the Supreme Court in Tulsiram and in view of the fact that the said decision is of the Constitution Bench of five Judges, this Court is bound to follow the said decision. It is argued that in Mohd. Ramzan Khan. Tulsiram was not considered or even referred to by the Court and in these circumstances, the judgment of the Supreme Court, in Mohd. Ramzan Khan cannot be said to be laying down correct law on the point. In view of the fact that Tulsiram is decided prior in point of time by the Supreme Court and Mohd. Ramzan Khan has not made any reference to Tulsiram, the latter can be said to be a per incuriam decision and cannot bind this Court as a precedent. It is finally submitted that Tulsiram was decided by the Constitution Bench of five Judges while Mohd. Ramzan Khan was decided by a Division Bench of three Judges and on that ground also, this Court is bound by Tulsiram being of a larger Bench than Mohd. Ramzan Khan of a Division Bench.
44. In our opinion, the contentions raised on behalf of the respondents cannot be accepted. In our judgment, in Tulsiram, the question of supply of the copy of the report of the Enquiry Officer was not in issue at all. In fact, the said decision has nothing to do with the conduct of the inquiry inasmuch as the Supreme Court was called upon to decide the validity of the second proviso to Article 311(2) of the Constitution and dispensing with an inquiry in certain circumstances mentioned in Clauses (a), (b) and (c) of Article 311(2) of the Constitution. Our attention has not been invited by any of the Counsel on behalf of the respondents to any statement of law made by the Constitution Bench in Tulsiram, holding or even observing that it was not necessary to supply a copy of the report of the Enquiry Officer to the delinquent. In these circumstances, in our opinion, reference to the decision in Tulsiram cannot be said to be material for the purpose of the present controversy raised before us and therefore, that decision is of no assistance to the respondents.
45. In Jayant Shukla, no doubt, the Division Bench of this Court has held that supply of the report of the Enquiry Officer to the delinquent is not necessary but, then, it cannot be ignored that all throughout what was considered the Division Bench was the concept and doctrine of the second opportunity which was available to 'civil servants' under Article 311(2) of the Constitution, and since the petitioner in that case was not a 'civil servant' covered by Part XIV of the Constitution, but an employee of a local authority, he was not entitled to the second notice regarding proposed penalty under Article 311(2). It is in the light of that material circumstances that certain observations came to be made by the Division Bench. As discussed hereinabove, now even that distinction does not survive. The said decision, operates in different field and, therefore, cannot help the respondents. Moreover, in view of the ratio laid down in Mohd. Ramzan Khan in our opinion its even if we may not go to the extent of observing that Jayant Shukla no longer holds the field or does not lay down correct law, it can certainly be said that the principles laid down in Jayant Shukla has been considerably eroded by Mohd. Ramzan Khan.
46. Reliance was placed on behalf of the respondents on the decision of a Bench of three Judges of the Supreme Court in the case of Kailash Chander referred to above. In that case, a Munsif was removed from service and before the final order was passed, he was not supplied with a copy of the report of the Enquiry Officer. His contention that before imposition of penalty, a copy of the report of the Enquiry Officer ought to have been supplied to him negatived by the Court and the petition was dismissed. It cannot, however, be forgotten that like Jayant Shukla in Kailash Chander also, it was contended on behalf of the delinquent that a copy of the Enquiry Officer's report must be supplied to him so that he can make representation against the proposed penalty. Following the decision of the Constitution Bench in Tulsiram, a three Judges Bench of the Supreme Court held that after the Forty-Second Amendment of the Constitution, the second opportunity had come to an end, and when that provision was held to be valid, no argument on the basis of the second opportunity was available to the delinquent and the petition was required to be dismissed.
47. As discussed earlier, whether a copy of the report of the Enquiry Officer required to be supplied to the affected party or not depends upon the nature of inquiry, relevant provisions of the statute, the action sought to be taken on the basis of the said report, consequences likely to ensue from such action and so on. Therefore, merely on the basis that in certain circumstances, a copy of the report prepared by some other authority is not supplied and yet the action is held valid, one cannot jump to the conclusion that the said reasoning would ipso facto apply in the matter of holding departmental inquiry against a delinquent officer and supply of the report of the Enquiry Officer to him. As soon as earlier, in New Prakash Transport Co., the Constitution Bench of the Supreme Court has elaborately dealt with the question of supply of a copy of the report. A reference was made to a number of English authorities also. If the ratio laid down in the said decision, is considered in the light of the subsequent decision of the Supreme Court, it clearly appears that no straight-jacket formula can be adopted. In a case of granting of privileges, licences, etc., Courts have taken the view that it is not necessary to supply a copy of the report to the person who had made such application for grant of privilege or licence. Similarly in cases of domestic inquiry held by Universities, Colleges or other educational authorities, judiciary has not insisted upon supply of a copy of the report to the students against whom some disciplinary proceedings have been initiated. The instant case, however, is entirely of a different nature. It cannot be denied, and is in fact not denied by the respondents, that in view of the fact that the departmental proceedings have been instituted, against the petitioners, the authorities are required to act quasi-judicially and are also required to follow the principles of natural justice. In this view of the matter, this is not a case wherein a licence is to be granted to an applicant or privilege is to be conferred on him. In this connection, our attention was drawn by the learned Counsel for the petitioners to the observations of the Court in para 16 of the decision wherein Their Lordships observed as under:
There is another class of case which lay down that if a person isto be deprived of his professional status, he must be heard and be given effective opportunity of meeting any allegation made against him on the question of his fitness to pursue his profession. If the Tribunal constituted by the statute in question to decide about the fitness of an individual to pursue that profession, decides against him without giving him an opportunity of meeting any allegations, against him bearing on his capacity or qualification for the profession to which he claims admission, it has been held that it was improper for the Tribunal acting in quasi-judicial capacity to act to his prejudice upon evidence or adverse report without his having an opportunity of meeting such relevant allegations made against him. To that class belong the case of R.V. Architects Registration Tribunal 1964 (2) All ER 131 (G). In that case the King's Bench Division issued an order of certioratri to quash the Tribunal's decision refusing an application for registration as an architect.
48. Almost an indentical question arose before the Supreme Court in the case of Institute of Chartered Accountants of India v. L.K. Ratna . In that case a member of the institute was removed on the ground of misconduct. One of the questions raised before the Supreme Court was whether the member concerned was entitled to a copy of the report on the basis of which the disciplinary committee proceeded and found him guilty. It was contended on behalf of the committee that the relevant Regulation did not impose a duty to supply a copy of the report to the member and the operation of the principles of natural justice was excluded to that extent. Considering that a number of consequences would ensue in case a member of the Institute is removed, the Court came to the conclusion that a member accused of misconduct is entitled to a hearing by a Council when, on receipt of the report of the Departmental Committee it proceeded to find whether he was or was not guilty.
49. Now if a report of the Disciplinary Committee inquiring into the conduct of a member of an Institute is required to be supplied to him before he is removed as a member, we fail to understand how the said principle cannot be made applicable to the cases of employees in Government service or services under the authorities and instrumentalities of the 'State'.
50. Reliance was also placed on the referring decision of the Supreme Court in the case of Union of India and Ors. v. Bashyan reported in AIR 1988 SC 1000. The question that arose in the case before the Division Bench consisting of two Judges of the Supreme Court, was whether it was necessary to supply a copy of the report of the Enquiry Officer to the delinquent before recording the finding of guilt by the Disciplinary Authority. Describing the question as of 'great importance to the civil servants affecting millions of employees in service to-day as also those who may enter the Goverment service hereafter for times to come', the Division Bench of two Judges felt that 'the matter needed careful consideration in depth and if necessary at length' and the matter was thus referred to a larger Bench. However, while referring the matter to a larger Bench, the Division Bench expressed its opinion that it would be a startling proposition to advance that, only the authority which could really and actually hold a delinquent guilty need not afford any opportunity to the person against whom such finding of guilt was to be recorded and the material on which it acted. The Court also observed that if a copy could be supplied to the delinquent it may enable him to point out anomalies, if any, before any penalty could be imposed on him. Describing the report of the Enquiry Officer as 'basic', 'crucial' and 'critical' material, the Court posed a query whether in these circumstances, before the Disciplinary Authority comes to a conclusion of guilt, it was not necessary to supply a copy of the report of the Enquiry Officer to the delinquent and why it should not be considered as part and parcel of natural justice. Why should the delinquent not be afforded any opportunity to satisfy the Disciplinary Authority who alone in reality could find him guilty? The Court was also of the opinion that it was altogether a different aspect from serving the second show cause notice regarding the proposed penalty and it would come with the connotation of reasonable opportunity of being heard within the meaning of Article 311(2) of the Constitution of India.
51. In fact, it is on the basis of the said decision in Bashyan, that the matter was referred to a larger Bench in Mohd. Ramzan Khan and Bashyan was one of the matters placed before the Bench of the three Judges, and it was held that the delinquent is entitled to a copy of the report of the Enquiry Officer.
52. It is submitted that so far as this Court is concerned, it has consistently taken the view that a copy of the report of the Enquiry Officer requires to be supplied to the delinquent and the Forty-Second Amendment of the Constitution has not made any change in the said legal position. Our attention is invited in this connection to the decision of this Court in M.J. Ninama v. Post Master General, Ahmedabad and Anr. reported in (1984) 4 GLH 800. In that case also, a copy of the report of the Enquiry Officer was not supplied to the delinquent. A contention was taken on behalf of the authorities that it was not necessary in view of the Forty-Second Amendment of the Constitution. Negativing the said contention, the single Judge of this Court (Coram R. C. Mankad, J.) observed as under:
There was a clear distinction between two opportunities to be given to the Government servant. Whereas first is an opportunity of being heard in respect of the charges levelled against the Government servant, second opportunity is only an opportunity to make representation in regard to the penalty imposed. By the amendment, obligation to afford opportunity of making representation in regard to the proposed penalty is taken away. However, obligation to afford reasonable opportunity of being heard against the charges levelled continues without any curtailment even after the amendment of Article 331(2). Before the amendment of Article 311(2), the Government servant had to be given an opportunity of being heard in respect of the charges levelled against him as well as the penalty at the final stage. The only change which is made now is that he need not be heard on the question of penalty. However, the obligation to hear him on the charges levelled against him still remains. In my opinion, therefore, there is no change whatsoever as a result of the amendment of Article 311(2) by the Forty-Second Amendment Act so far as the obligation to hear the delinquent Government servant on the charges levelled against him is concerned, it is only at the final stage when the Disciplinary Authority in appreciation of evidence on record and after affording opportunity to the delinquent of being heard, comes to the conclusion that delinquent is guilty of the charges framed against him and that it is a case for imposing punishment, that he is not required to hear the delinquent. In other words, it is only at the final stage of imposing penalty that the Disciplinary Authority is not required to hear the delinquent. However, the obligation to hear the delinquent before he reaches the conclusion regarding the charges framed against him is not done away with by the amendment.
We are in agreement with the view taken by our learned Brother R.C. Mankad, J. that 'obligation to hear the delinquent Government servant on the charges levelled against him is not done away with by the Forty-Second Amendment of the Constitution'. It appears that the said matter was carried by the Union of India to the Division Bench by filing Letters Patent Appeal No. 125 of 1985. Some other Letters Patent Appeals were also filed where also a similar view was taken by the learned single Judge. All those appeals came to be finally disposed on in the case of Union of India v. N.N. Prajapati reported in 1985(2) XXVI (2) GLR 1406. The Division Bench confirmed the view taken by the learned single Judge and held that if the inquiry is held by a person other than the Disciplinary Authority, a copy of the report submitted by the Enquiry Officer was required to be supplied to the delinquent. Omission to supply a copy of the said report would vitiate the inquiry and punishment was liable to be quashed. Very recently in Special Civil Application No. 2579 of 1985 Kirit M. Shah v. State Bank of Saurashtra a single Judge of this Court (Coram: C.V. Jani, J.) has also taken a similar view on February 7/8, 1991. Relying on the above decisions, it is submitted on behalf of the petitioners, that as far as this Court is concerned, the consistent view is that a copy of the report of the Enquiry Officer requires to be supplied to the delinquent and the situation remained unaffected by the Forty-Second Amendment of the Constitution.
53. The learned Counsel for the respondents, however, contended that in these petitions, it is not that a copy of the report of the Enquiry Officer is not to be supplied at all. Even under the statutory provisions, such a copy is required to be supplied to the delinquent. However, a provision is made that it will be supplied at a particular stage, namely, after the inquiry is over and the Disciplinary Authority, after applying its mind to the evidence adduced at the inquiry, passes a final order of punishment. Alongwith an order of penalty, the delinquent is entitled to get a copy of the report submitted by the Enquiry Officer, which he can utilise for the purpose of filing an appeal against the order of penalty passed by the Disciplinary Authority. It is submitted that in view of the fact that a particular stage is fixed either by the legislature or by the rule-making authority, the Court has no power or jurisdiction to hold that such a report should be supplied before the said stage by invoking the principles of natural justice. It is also submitted that the competent legislature has power to limit or eeven to exclude the principles of natural justice altogether. Instead, if the authority has made a provision to supply a copy of the report of the Enquiry Officer at a particular stage, it can well be said that application of the principles of natural justice is limited and/or excluded by necessary implication so far as the earlier stage is concerned. In other words, according to the respondents, if a Rule provides that a copy of the report will be supplied to the delinquent alongwith the order of penalty, the delinquent has no right to claim such a copy before the order of penalty.
54. We are unable to uphold the aforesaid argument advanced on behalf of the respondents. It is undoubtedly true that the specific provision is only to supply a copy of the report of the Enquiry Officer alongwith the order of penalty passed by the Disciplinary Authority. However, if the Court is of the opinion that the principles of natural justice require that such a copy should be supplied to the delinquent before a finding of guilt is recorded and the punishment is imposed on him by the Disciplinary Authority, it must be so supplied. In such case, two alternatives are left to the Court-one to declare such provision arbitrary, unconstitutional and ultra vires, being violative of the principles of natural justice and the other is to read the principles of natural justice therein by interpreting the provision in a manner which would be consistent with the principles of natural justice. Such a situation is not unknown to the legal world. We need not refer to various decisions on the point. However, a special reference requires to be made to the leading case of the Supreme Court in Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. reported in AIR 1986 SC 180. In that case, the Constitution Bench of the Supreme Court was called upon to decide the validity of Section 314 of the Bombay Provincial Municipal Corporations Act, 1888 which empowered the Commissioner to get illegal construction and structure removed or demolished without notice. It was contended that the said provision was arbitrary and unreasonable inasmuch as it did not provide for giving of notice and hearing before the removal of encroachment. On the contrary, it expressly provided removal of so-called encroachment 'without notice'. Holding the provisions intra vires and reading the principles of natural justice therein, the Court observed:
Considered in its proper perspective, Section 314 is in the nature of an enabling provision and not of a compulsive character. It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What Section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law, Reading Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.
(Emphasis supplied)
55. We are in respectful agreement with the above observations of the Supreme Court. In spite of the fact that the statute authorised the Commissioner to get an illegal construction and structure removed or demolished without notice, the Supreme Court read natural justice into the section by incorporating by logic an element of reasonableness therein. Observing that it was a discretionary power vested in the Commissioner, the Court held that it should not be treated as 'command' not to issue notice before the removal of encroachment, because construing it as a command would make the law invalid and unconstitutional.
56. A similar question arose before the Division Bench of this Court in Apexa Co-operative Bank v. State of Gujarat and Ors. Special Civil Application No. 2236 of 1979 decided by P.D. Desai, J. (as he then was) and G.T. Nanavati, J., on December 26, 27, 28, 1979. In that case the constitutional validity of Section 107 of the Gujarat Co-operative Societies Act, 1961 was challenged. Section 107 empowered the Registrar in certain circumstances to pass an interim order directing a particular society to be wound up. Sub-section (3) of Section 107 read as under:
The Registrar, after giving an opportunity to the society of being heard, shall make a final order vacating or confirming the interim order.
An interim order of winding up of society was passed without issuing notice, without calling for explanation or affording opportunity of hearing, which was challenged by the society by filing the above petitioner inter alia, on the ground that the action was taken without following the principles of natural justice and, therefore, it was required to be quashed and set aside. It was contended on behalf of the respondents that reading sub-sees. (1) and (3) of Section 107 conjointly, it was absolutely clear, that at the time of passing an interim order it was not necessary to comply with the Rules of natural justice and it was not the legislative intendment. This would become clear when Sub-section (3) is read which specifically provided for application of natural justice. It was, therefore, contended that legislature was conscious of the principles of natural justice but they were to be applied only at the second stage when interim order of winding up was either required to be vacated or confirmed and the final order was to be passed. Thus, by necessary implication, at the first stage, the application of the principles of natural justice was excluded. The Division Bench of this Court did not uphold the said contention of the respondents and came to the conclusion that even at the first stage, when interim order was to be passed by the Registrar, he was bound to observe the principles of natural justice. The Division Bench also observed that if the contention of the State would be accepted, the provision itself might have to be declared as unconstitutional. Instead, the Court import and read natural justice into it and may uphold the provision as constitutional.
57. Speaking for the Court, P.D. Deasi, J. (as he then was) observed:
We are not impressed by the argument that merely because a hearing is provided at the stage of making of a final order, the right to prior notice and hearing must be deemed to have been excluded at the stage of making of an interim order.
After considering various circumstances, the Court concluded:
(T)he right of prior notice and hearing cannot be jettisoned by implication, save in very exceptional circumstances where compulsive necessity so demands on grounds such as when public injury is likely to flow from the least delay or dire social necessity. The onus on those who urge implied exclusion of hearing at the stage of making of an interim order cannot be discharged by merely pointing out the provision with regard to a full fledged hearing at a totally different stage of the proceeding.
58. In the leading case of Swadeshi Cotton Mills v. Union of India reported in AIR 1981 SC 818 after referring a number of cases. Sarkaria, J. propounded the following principles of Law on the question of pre-decisional hearing:
In short, the general principle-as distinguished from an absolute rule of uniform application-seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excuding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that is provided, Courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shown of all its formal trappings and dilatory features at the pre-decisional stage, unless viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fair play "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands." The Court must make every effort to salvage this cardinal rule to the maximum extent possible, this situational modifications.
(Emphasis supplied)
59. In view of the above legal position we are clearly of the view that in the facts and circumstances of the case, a delinquent officer is entitled to get a copy of the report submitted by the Enquiry Officer prior to the final decision is taken by the Disciplinary Authority and there are not circumstances justifying withholding of the said material from the delinquent.
Ambit of Article 21
60. It is submitted on behalf of the petitioners that an employee has a right to be retained in service in accordance with law till he attains the age of superannuation. It is not a bounty, prerogative or privilege conferred on him by an employer. In fact, the right to life under Article 21 of the Constitution embraces in it not only physical or animal existence but also the quality of life. Before more than 100 years, in the case of Munn v. Illinois reported in 1876 (94) US 113, Field, J. has held that 'Life means something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed'. The above American view is accepted by the Indian Courts also. Kharak Singh v. State of U.P.. After the leading decisions in Maneka Gandhi v. Union of India , Francis Coralie v. Khambra reported in AIR 1981 SC 746; State of Maharashtra v. Chandrabhan , Olga Tellis v. Bombay Municipal Corporation and other cases, there cannot be two opinions about the said proposition of law.
61. A recent decision of the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress requires to be noted here. In that case, a number of permanent employees of the Delhi Road Transport Authority were removed from service without assigning any reason on the basis of the regulations framed by the Transport Authority. That action was challenged being arbitrary, discriminatory, unreasonable and violative of Articles 14, 16, 19 and 21 of the Constitution of India. The majority upheld the said contention. Sawant, J., in the concurring judgment observed as under
The right to life includes right to livelihood. The right to livelihood, therefore, cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain application. That will be mockery of them.
Referring to Munn v. Illinois; K. Ramaswamy, J. also observed:
The right to life, a basic human right assured by Article 21 of the Constitution comprehends something more than mere animal existence, i.e., dignity of the individual.... If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.... That, which alone can make it possible to live, leave aside which makes life liveable, must be deemed to be an integral component of the right of life.
62. From all these decisions, it becomes clear that there is considerable expansion of the concept of the right to life under Article 21 of the Constitution of India. Considering the right to work as fundamental in nature, Courts have protected it. Statutory provisions which have empowered the authorities to remove employees or to dispense with their services without observing the principles of natural justice, and/or without affording reasonable opportunity of being heard have been held ultra vires and unconstitutional and unreasonable. Such provisions are described as Henry VIII clause, vide Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. ; West Bengal State Electricity Board v. Desh Bandhu Ghosh ; Central Inland Water Transport Corporation v. Brojo Nath Ganguly ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress .
63. In these circumstances, there is no doubt in our minds that as per the ratio laid down in Mohd. Ramzan Khan, a copy of the report of the Enquiry Officer requires to be supplied to the delinquent before he is held guilty of the charges levelled against him by Disciplinary Authority and before any punishment is inflicted on him on that basis.
Right of Appeal
64. It is also contended on behalf of the respondents that a substantive right of appeal is conferred on the delinquent against whom an order of imposition of penalty is passed. Similarly, a provision is made under the relevant Rules that a copy of the report submitted by the Enquiry Officer will be supplied to the delinquent alongwith the order of penalty passed by the Disciplinary Authority. It is, therefore, argued that no prejudice can be said to have been caused to the delinquent by non-supply of the report of the Enquiry Officer at an earlier stage inasmuch as at the time of filing of an appeal and also at the time of hearing of the appeal, he can take all contentions before the appellate authority including the contentions based on the so-called findings recorded by the Enquiry Officer. The matter is open at large before the appellate authority and therefore, even if the contention of the petitioner is correct that supply of the report of the Enquiry Officer is necessary, that grievance will not survive when the matter will be argued by him before the appellate authority where he can make all submissions. It is also contended that it is not always necessary that a pre-decisional hearing must be granted to a person against whom an action is sought to be taken. It is settled principle of law particularly after the decision of the Supreme Court in Maneka Gandhi, that post-decisional or remedial hearing may, in the facts and circumstances of the case, be said to be 'hearing' in the eye of law and the action can be upheld. It is also submitted that even if hearing has not been afforded at the initial stage, when a right of appeal is conferred by a statute and if the aggrieved party can avail himself of such opportunity of being heard at the appellate stage, the defect of such opportunity of natural justice can be said to have been cured. We are of the opinion that the contention is not well founded and cannot be accepted. In Institute of Chartered Accountants, this argument was advanced and it was contended that even if the removal of a member of the Institute was contrary to the principles of natural justice inasmuch as the action was taken before affording reasonable opportunity of being heard at the initial stage, a right of appeal had been conferred on such member and he could avail himself of that opportunity of being heard at the appellate stage. Negativing the contention and relying upon English and Australian decisions, the Supreme Court observed:
There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffer penalty the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a men's professional reputation is still his most sensitive pride. In such a case after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.
(Emphasis supplied) Thus, in the opinion of the Supreme Court, there are cases where an order may cause serious injury 'as soon as it is made', an injury not capable of being entirely erased when error is corrected on subsequent appeal and "all the King's horses and all the King's men" can never salvaged such a situation. In 1957, in the case of State of U.P. v. Mohd. Nooh reported in AIR 1958 SC 86, the Supreme Court held that if an order passed by a subordinate Court or an inferior Tribunal of first instance was null and void, that vice could not be obliterated or cured on appeal or revision. Wade vividly described the sutuation thus, "If the natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing, instead of fair trial followed by appeal, the procedure is reduced to unfair trial, followed by fair appeal'.
(Emphasis supplied)
65. The following observations of Megary, J., in the leading case of Leary v. National Union of Vehicle Builders reported in 1970 (2) All ER 717 at page 720 are worth quoting:
If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be powerful result to be achieved by what in law is a mere nullity; and it is no more triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.
Therefore, in our opinion, except for matters of public interest, security of State, or for such compelling reasons, a pre-decisional hearing must be a principle of natural justice. A person must be given fair trial as well as fair appeal.
66. There is another reason also why ordinarily the above normal rule requires to be followed. As observed by the Supreme Court in Shephard v. Union of India , 'it is common experience that once a decision has been taken, there is a tendency to uphold it and the representation may not yield any useful purpose'. Therefore, if the decision has already been taken by the authority, the post-decisional or remedial hearing may become an empty formality. If post-decisional or remedial hearing is not afforded by the same authority, a person against whom an order is passed is deprived of convincing the authority who had passed order against him. In that case, the position would be that he had no fair trial though he may be able to get a fair right of appeal. Normally, a person should get both a right of fair trial as well as right of fair appeal.
67. In the facts and circumstances of the case, we are of the opinion that furnishing a report of the Enquiry Officer is considered to be a part and parcel of natural justice which the Supreme Court had held in no uncertain terms in Mohd. Ramzan Khan, a copy of such report must be made available to the delinquent officer before a finding of guilt is recorded by the Disciplinary Authority and before the final order of punishment is imposed on him. It has nothing to do with his right to file an appeal against that order. That stage is still to come. It may be that after receiving a copy of the report of the Enquiry Officer, he may be able to satisfy the Disciplinary Authority that the findings recorded by the Enquiry Officer against him were not justified; that the reasons recorded by him were not legal, proper or in accordance with law; that there was 'no evidence' against him; that the approach adopted by the Enquiry Officer was perverse; that in the facts and circumstances of the case, no reasonable man would reach a conclusion which the Enquiry Officer has reached, etc. The above circumstances, are merely illustrative and by no means exhaustive. What we want to emphasise is that even prior to the filing of an appeal before the appellate authority, ordinarily a delinquent must get a right to satisfy the Disciplinary Authority. For that purpose, supply of a copy of the report of the Enquiry Officer is necessary. Therefore, we are not at all impressed by the argument that since the right of appeal is available to the delinquent and since before filing an appeal, the delinquent would be supplied with a copy of the report of the Enquiry Officer it may not be necessary for the authority to supply a copy of such report to the delinquent before finding him guilty, and before passing the final order of punishment on him. Hence we reject this argument.
Other Materials:
68. It is also submitted that over and above the report of the Enquiry Officer as per the decision of the Supreme Court in Triloknath v. Union of India reported in 1967 SLR 759; State of Punjab v. Bhagatram ; State of U.P. v. Mohmad Sharif and Kashinath Dixit v. Union of India the delinquent is also entitled to all the documents, statements and materials on which reliance is placed by the Disciplinary Authority. Therefore, if the Disciplinary Authority has sought opinion of the Public Service Commission. Vigilance Commission or any other body or authority, it must be supplied to the delinquent. Similarly after the submission of the report by the Enquiry Officer, if he has received any document or material and has forwarded it to the Disciplinary Authority or the Disciplinary Authority has received any such document or material either from the Enquiry Offficer or from any one else, it is required to be supplied to the delinquent. In our opinion, the submission is well founded and requires to be accepted. According to us, whatever material is placed before the Disciplinary Authority and/or any other material on which reliance is placed by the Disciplinary Authority for the purpose of holding a delinquent guilty and to punish him on the basis of that material, the same must be supplied to the delinquent, before holding him guilty and awarding punishment.
Employees of Instrumentalities of the State:
69. It is, however, contended on behalf of the learned Counsel appearing for Nationalised Banks, Insurance Company and National Textile Corporation (NTC) that even if this Court takes the view that Mohd. Ramzan Khan, has finally decided the point in issue, the ratio laid down therein would apply only to "civil servants" governed by Part XIV of the Constitution of India and it cannot be made applicable to the employees serving with instrumentalities of the 'State' within the meaning of Article 12 of the Constitution. It is submitted that the employees of Nationalised Banks, National Textile Corporation or Insurance Company cannot be said to be 'civil servants' and the provisions of Article 311 of the Constitution cannot apply to them. This last proposition of law re: Article 311 is not disputed even by the petitioners. However, in this connection, two arguments have been put forward on behalf of the petitioners. Firstly, it is stated that if supply of a copy of the report of the Enquiry Officer can be considered as part and parcel of natural justice and if the said point is concluded by Mohd. Ramzan Khan, all employees notwithstanding that they are civil servants within the meaning of Article 311 of the Constitution of India or not, are entitled to a copy of such report by invoking the principles of natural justice. It is also stated that in theory, there is no distinction between the employees under the Services of the Union and the States (civil servants) and the employees employed by an instrumentality of the State. In this connection, our attention has been invited by the learned Counsel for the petitioners to two decisions of the Supreme Court. In Uttar Pradesh Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee , an employee of the Uttar Pradesh State Warehousing Corporation was dismissed from service. He approached the High Court by filing a petition under Article 226 of the Constitution on the ground that the action was taken without observing the principles of natural justice. The Court upheld the contention and granted reinstatement. One of the questions raised before the Court was whether in absence of statutory regulations, non-observance of the principles of natural justice by a statutory corporation would entitle an employee to get reinstatement in service. The Court answered that question in the affirmative. In the concurring judgment, Chinnappa Reddy, J. observed as under:
I find it very hard indeed to discover any distinction on principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or incorporated but wholly owned by the Government. It is self-evident and trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure 'social, economic and political justice', to preserve 'liberty of thought, expression, belief, faith and worship', and to ensure 'equality of status and of opportunity'. That is the proclamation of the people in the Preamble to the Constitution. The desire to attain these objectives has necessarily resulted in intense Government activity in manifold ways. Legislative and executive activity have reached very far and have touched very many aspects of a citizens' life. The Government, directly or through the Corporations, set up by it or owned by it, now owns or manages, a large number of industries and institutions. It is the biggest builder in the Country, Mammoth and minor irrigation projects, heavy and light engineering projects, projects of various kinds are undertaken by the Government. The Government is also the biggest trader in the country. The State and the multitudinous agencies and Corporations set up by it are the principal purchasers of the produce of distribution. The Government, its agencies and instrumentalities, Corporations set up by the Government under statutes and Corporations incorporated under the Companies Act but owned by the Government have thus become the biggest employers in the country. There is no good reason why, if Government is bound to observe the equality clauses of the Constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. In a country like ours which teems with population, where the State, its agencies, its, instrumentalities and its Corporations are the biggest employers and where millions seek employment and security, to confine the applicability of the equality causes of the Constitution, in relation to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people. Some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a Court to enforce a contract of employment and denies him the protection of Articles 14 and 16 of the Constitution. After all employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to our country's economy. In growing realisation of the importance of employment in the public sector, Parliament and the Legislature of the State have declared persons in the service of local authorities. Government Companies and statutory Corporations as public servants, and, extended to them by express enactment the protection usually extended to civil servants from suits and prosecution. It is, therefore, but right that the independence and integrity of those employed in the public sector should be secured as such as the independence and integrity of civil servants.
70. Therefore, according to Chinnappa Reddy, J., there is no good reason to draw a distinction on principle between a person directly under the employment of the Government, and a person under the employment of an agency or instrumentality of the Government or a Corporation set up under a statute or incorporated but wholly owned by the Government. The observations came to be approved by a three Judges Bench of the Supreme Court in A.L. Kalra v. Project Equipment Corporation Ltd. . After quoting the observations of Chinnappa Reddy, J., in Vijay Narayan Vajpayee, Desai, J. observed:
Therefore, distinction sought to be drawn between protection of Part XIV of the Constitution and Part III has no significance.
The above reasoning is again approved by the Supreme Court in Delhi Transport Corporation case, referred to above.
71. On the basis of the above authorities, it was submitted that no artificial distinction can be made between services under the Union and the States on the one hand, and services under a Corporation or other authorities or instrumentalities of the State on the other hand. If the principles of natural justice are required to be observed by the 'State', such protection must be extended to employees who might have been employed by an agent or instrumentality of the State. We are of the opinion that the contention is well founded and must be upheld. When departmental proceedings are instituted against any employee, the adjudicating authority can be said to be exercising quasi-judicial functions and, therefore, that authority is required to follow the principles of natural justice. Application of these principles has nothing to do with the services under the Union and the State on one hand and services under the instrumentality of the State on the other hand. Therefore, the contention that in case of an instrumentality of the State, the principles of natural justice need not be observed is misconceived and the same cannot be accepted.
72. Secondly, it is submitted on behalf of the petitioners that in Mohmed Ramzan Khan, the Supreme Court has also made it clear that the ratio laid down in that case should not be restricted to the cases arising under Civil Services of the Union or the States. The principle must be extended to all enquiries wherein the Enquiry Officer is appointed who has prepared a report and submitted to the Disciplinary Authority and some action is required to be taken by the Disciplinary Authority on the basis of the said report. This is clear from the following observations:
We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the Disciplinary Authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.
73. Relying on the above observations, it is submitted on behalf of the petitioners that even this point is concluded by the Court in favour of the employees serving under agency or instrumentality of the State and the employees of such instrumentality of the State are also entitled to get a copy of the report of the Enquiry Officer. The learned Counsel for the respondents, however, submitted that these observations were not strictly necessary in view of the fact that the point at issue before the Court was whether even after the Forty-Second Amendment of the Constitution, doing away with the opportunity of showing cause against the proposed penalty, the delinquent has a right to insist for a copy of the report of the Enquiry Officer. For that purpose the learned Counsel for the respondents have placed reliance on paragraph 2 of the judgment. According to the learned Counsel, therefore, at the most the observations made by the Supreme Court in para 18 of the decision can be said to be obiter. We are afraid we cannot uphold the said contention. First of all, looking to the number of appeals, which came to be decided by the Supreme Court, it is clear that many employees had approached the Court. Unfortunately, however, none of the parties had brought to our notice whether any employee of a Corporation or an instrumentality of the State was involved in the litigation. But even if it is assumed that the observations are obiter in nature, we are bound by those observations inasmuch as they are of the final Court of the country. In our opinion, it appears that the Supreme Court has made these observations with a view to finally concluding the issue. Finally, as discussed by us above, there is no distinction in principle for application of the principles of natural justice to the employees directly under the services of the Union or the States and the employees under the services of a Corporation or an instrumentality of the State. For all these reasons we are of the opinion that even this contention of the respondents requires to be rejected.
Applicability of Mohmed Ramzan Khan
74. Finally, it is argued that the ratio laid down in Mohmed Ramzan Khan can be made applicable only in future litigation but so far as the present petitions are concerned, they are required to be dismissed. For the said purpose, reliance on the following observations:
(T)he conclusion to the contrary reached by any two Judges Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.
(Emphasis supplied)
75. It is submitted that since only prospective application was given to the decision, the present petitions cannot be governed by the law laid down in Mohmed Ramzan Khan. It is also submitted that the Court had made it explicity clear that no punishment imposed shall be open to challenge on the ground that a copy of the report of the Enquiry Officer has not been supplied to the delinquent. It is, therefore, argued that if an order of punishment is imposed without supply of a copy of the report of the Enquiry Officer, and even if the Court holds the principles of natural justice have been violated, such order is not vulnerable inasmuch as the punishment has already been imposed. It is also submitted that the Supreme Court had made it clear that non-furnishing of the report would amount to violation of the Rules of natural justice and makes the final order liable to be challenged "hereafter". In other words, according to the learned Counsel, such an order can be challenged, if passed by the Disciplinary Authority only after the decision in Mohmed Ramzan Khan. In this connection, our attention is invited to the leading case of Golaknath v. State of Punjab . We are, however, unable to agree with the arguments advanced on behalf of the respondents. The doctrine of prospective overruling is well-known. As per that doctrine, a Court may not overrule its earlier decision, if it is of the opinion that future progress of the country and happiness of the people will be at stake. In fact, in Golaknath though the majority took the view that Parliament had no power to curtail Fundamental Rights by amending the Constitution, the Court did not grant relief in favour of the petitioner who was before the Court. The present case is not governed nor affected by the ratio laid down in Golaknath. In Mohmed Ramzan Khan Supreme Court had granted relief in favour of Mohmed Ramzan Khan who approached the Supreme Court in 1984 against the decision of the Division Bench of J & K High Court in Letters Patent Appeal No. 10 of 1983 decided on June 26, 1984. It is, therefore, clear that Mohmed Ramzan Khan must have been dismissed from service prior to 1983. In spite of that, an order of punishment which was passed against him without supplying a copy of the report of the Enquiry Officer was treated as breach of natural justice, and was quashed and set aside. Similarly, Civil Appeals of 1982, 1985, 1988 and 1990 came to be disposed of by the Supreme Court along with the case of Mohmed Ramzan Khan. In all of them the dismissed employees were granted relief. In these circumstances, it cannot be said that though the Supreme Court had granted relief in favour of those persons, it directed other Courts not to grant such reliefs. Such an interpretation would not advance the cause of justice but would thwart it and unless there are compelling circumstances or reasons, such interpretation cannot be accepted by this Court. Again, looking to the above two paragraphs, we are of the opinion that what the Supreme Court intended by these observations is that if the matter is already settled then by applying the principle laid down in Mohmed Ramzan Khan, it should not be opened once again. In other words, settled matters should not once again get unsettled. This is clear if one reads both the paragraphs cited earlier closely, and particularly the expression 'final order' used by the Court.
76. In our opinion, therefore, so far as the present cases are concerned, they are governed by the principles laid down in Mohmed Ramzan Khan and they are entitled to get relief on the basis of the law laid down by the Supreme Court in Mohmed Ramzan Khan.
77. Again, in our opinion, the learned Counsel for the petitioners are right in submitting that so far as this Court is concerned, the law is well settled since the decision in M.J. Ninama, decided in 1984 by the single Judge and confirmed by the Division Bench, wherein this Court has specifically held that a delinquent is entitled to a copy of the report of the Enquiry Officer and that the Fortysecond Amendment of the Constitution has not altered the said position. Thus, even prior to and in absence of Mohmed Ramzan Khan, the respondents were bound to supply a copy of the Enquiry Officer's report to a delinquent. Therefore, it is not open to the respondents to advance such an argument ignoring and keeping aside the law laid down by this Court.
Conclusion
78. In view of the above legal position, we are of the view that all the petitions are required to be allowed. In this view of the matter, the contentions of Mr. K.N. Raval, appearing on behalf of Dena Bank in Special Civil Application No. 8417 of 1990 and Special Civil Application No. 8418 of 1990 that all action including the final order was made or taken by Dena Bank prior to the decision in Mohmed Ramzan Khan and, therefore, the petitions are required to be dismissed, cannot be upheld. At the cost of repetition, we may say that so far as this Court is concerned, since 1984, the law is settled that notwithstanding the Fortysecond Amendment of the Constitution, a delinquent is entitled to a copy of the report of the Enquiry Officer. Therefore, even prior to Mohmed Ramzan Khan, the respondent-Bank was bound to follow the decision of this Court in M.J. Ninama. Even otherwise, on a true interpretation of the ratio laid down in Mohmed Ramzan Khan, we are of the opinion that the petitioners are entitled to get the benefit of the said decision.
79. Similarly, we also cannot upheld the contention of Mr. P.G. Desai, for Mr. G.N. Desai, appearing on behalf of the State Bank of India when he contends, placing reliance on certain decisions of the High Court of Madras, that the petitioners are not entitled to get a copy of the report of the Enquiry Officer. As stated hereinabove, even prior to Mohmed Ramzan Khan, this Court has taken the same view as early as in 1984 which holds the field till today. Therefore, even if contrary view is taken by the High Court of Madras, the same cannot be pressed into service by the learned Counsel and we hold accordingly.
Final Order
80. In the result, all these petitions are partly allowed. The Constitutional validity of the relevant statutory provisions is upheld and the prayer to declare those provisions as ultra vires and unconstitutional is rejected. However, since all those provisions are required to be interpreted in consonance with the principles of natural justice, the disciplinary action and final order passed by the Disciplinary Authority in every petition is hereby quashed and set aside. We hold that delinquents are entitled to be supplied a copy of the report submitted by the Enquiry Officer and also any other material which the Enquiry Officer has sent to the Disciplinary Authority in respect of the report submitted by the Enquiry Officer, before they are held guilty by the Disciplinary Authority and before any penalty is imposed on them. We also hold that the Fortysecond Amendment of the Constitution has not made any change so far as the above legal position is concerned and all rules and regulations must be read in the light of our conclusions in this group of petitions.
81. We also hold that if the Disciplinary Authority has received any material on which reliance is placed by him or which he may take into consideration for the purpose of holding delinquents guilty and to award punishment on them is also required to be supplied to the delinquents. We however, make it clear that our decision will not preclude the Disciplinary Authority from reviving the proceedings from the stage of supply of the copy of the report of the Enquiry Officer alongwith other material and ultimately to pass an appropriate order in accordance with law.
Rule is accordingly made absolute with no order as to costs.
82. The learned Counsel for most of the respondents have prayed that operation and implementation of the order passed by us be stayed for three months, so as to enable them to approach the Supreme Court of India. The said prayer is contested and objected by the learned Counsels for the petitioners. However, in the facts and circumstances, we are of the opinion that reasonable time should be granted to the respondents to approach the higher forum. In the facts and circumstances of the case the time is granted upto 16th September, 1991.