No Acts & Articles mentioned in this case
A MANAGING DIRECTOR, ECIL, HYDERABAD ETC. ETC.
B
v.
B. KARUNAKAR AND ORS. ETC. ETC.
OCTOBER 1, 1993
[M.N. VENKATACHALIAH, 0., AND P.B. SAWANT, K.
RAMASWAMY, S. MOHAN AND B.P. JEEVAN REDDY, JJ.)
Constitution of India, 1950: Article 311 (2)-First proviso (As amended
by Forty Second Amendment) Delinquent Employee-Inquiry-Inquiry Of-
C ficer not Disciplinary Authority-Right of Employee to receive copy of Inquiry
Officer's report before disciplinary authority
arrives at its conclusions as to
guilt or innocence
of employee-Employee held entitled to report-Denial of
Report is denial of reasonable opportunity to employee to prove
in
nocence-Rules denying report are against principles of natural justice-Report
D should be supplied even if rules do not pennit-Report should be given not
withstanding the nature
of punishment-Failure of employee to ask for report
is
not waiver.
Failure to supply Report-Effect of--Distinction should be made where
non-furnishing has caused prejudice to employee
and where it has
E
not-whether inf act prejudice has been caused depends on facts of each case.
Genesis of the law on the subject of furnishing the report of the Inquiry
officer/authority to the delinquent employee-Referred to-Effect of 42nd
Amendment explained.
F Article 141-Supreme Court-Power to make the law laid down
prospective
in operation-Doctrine of prospective overruling.
Law laid down in Mohd. Ramzan Khan's case-Held applicable to all
employees
in all establishments whether Government or non-Government,
G public or private-Rule in Mohd. Ramzan Khan's case is applicable prospec
tively-Only Exception is where the rules themselves provide for supply of copy
of report to employees-Grant of relief by Supreme Court to parties in
Ramzan Khan's case held per incuriam.
By an order dated 5th August, 1991 passed in Managing Director,
H Electronic Corporation of India v. B. Karunakar, J.T. 1992 (3) S.C.
605, a
576
l
MANAGING DIRECTOR, ECIL v. KARUNAKAR 577
three Judge Bench of this Court referred that matter for being placed A
before a larger bench, as the Bench found a conflict in the two decisions
of this Court,
viz., Kai/ash Chander Asthana etc. etc. v.
State of U.P and Ors
etc. etc., [1988] 3 S.C.C. 600 and Union of India and Ors. v. Mohd. Ramzan
Khan,
[1991] 1 S.C.C. 588. Accordingly that matter along with other
connected matters were heard
by the Constitution Bench on the question B
whether the Report of the Inquiry Officer/Authority who/which is
ap
pointed by the Disciplinary Authority to hold an inquiry into the charges
against the delinquent employee, is required to
be furnished to the
employee to enable him to make proper representation to the disciplinary
authority before such authority arrives
at
its finding with regard to the
guilt or otherwise of the employee
and the punishment, if any, to be C
awarded to him.
Disposing the matters, this Court
HELD : By the Court :
D
(i) When the Inquiry
Officer is not the disciplinary authority, the
delinquent employee has a right to receive a copy of the Inquiry Officer's
report before the disciplinary authority arrives at its conclusions with
regard to the
guilt or innocence of the employee with regard to the charges
levelled against him. A denial of the Inquiry
Officer's report the discipli·
nary authority takes its decision on the charges, is a denial of reasonable E
opportunity to the employee to prove his innocence and is a breach of the
principle of natural justice. [ 611-E-F]
(ii) Statutory rules, if any, which deny the report to the employee are
against the principles of natural justice and therefore, invalid. Employee is
entitled to report
even if the rules do not permit the furnishing of the
report.
[611-HJ
(iii) The delinquent employee has the right to receive the Inquiry
Officer's report notwithstanding the nature of punishment. [ 612-E]
F
G
(iv) Failure of the employee to ask for the report is not to be con-
strued as waiver of his right. [612-F]
(v) Effect of non-furnishing of the enquiry report to delinquent
employee
on the order of punishment and relief to be granted in such cases
depends on the prejudice caused to the employee. [613-D-F]
H
578 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A Per Sawant, J. (For himself, CJ, S. Mohan and B.P. Jeevan Reddy,
J.J.).
1. Where the Inquiry Officer is other than the disciplinary authority,
the disciplinary proceedings break into
two stages. The first stage ends
when the disciplinary authority arrives
at its conclusions on the basis of
B the evidence. Inquiry
Officer's report and the delinquent employee's reply
to it. The second stage begins when the disciplinary authority decides to
impose penalty on the basis of its conclusions.
If the disciplinary authority
decides to drop the disciplinary proceedings the second stage is not even
reached.
[610-C-D]
c
2. While the right to represent against the findings in the report is
part of the reasonable opportunity available during the first stage of the
inquiry, viz., before the disciplinary authority takes into consideration the
findings in the report, the right to show cause against the penalty proposed
belongs to the second stage when the disciplinary authority has considered
D the findings in the report and has come to the conclusion with regard to
the guilt of the employee
and proposes to award penalty on the basis of its
conclusions. The first right is the right to prove innocence. The second
right is to plead for either no penalty
or a lesser penalty although the
conclusion regarding the guilt is accepted.
It is the second right exercisable
E at the second stage with was taken away by the 42nd Amendment.
[608-H, 609-A-B]
F
G
3. The reason why the right to receive the report of the Inquiry
Officer is considered an essential part of the reasonable opportunity at the
first stage
and also a principle of natural justice is that findings recorded
by the Inquiry
Officer form an important material before the disciplinary
authority which along with the evidence is taken into consideration
by it
to come to its conclusions. It is difficult to say in advance, to what extent
the said findings including the punishment,
if any,
rec11mmended in the
report would influence the disciplinary authority while drawing its con-
clusions. The findings further might have been recorded without consider-
ing the relevant evidence
on record, or by misconstruing it or unsupported
by it. If such a finding is to be one of the documents to be considered by
the disciplinary authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain
and controvert
it before he is condemned. Thus, it is the negation of the tenets of justice
H and a denial of fair opportunity to the employee to consider the findings
MANAGING DIRECTOR, ECIL v. KARUNAKAR 579
recorded by a third party like the Inquiry Officer without giving the A
employee an opportunity to reply to it. [ 609-C-F]
3.1. Although it is true that the disciplinary authority is supposed to
arrive
at its own findings on the basis of the evidence recorded
'in the
inquiry, it is also equally tru~ t)iat the disciplinary authority takes into B
consideration the findings recorded by the Inquiry Officer along with the
evidence on record. In the circumstances, the findings of the Inquiry
Officer do constitute an important material before the disciplinary
authority which is likely to influence its conclusions.
If the Inquiry
Officer
were only to record the evidence and forward the same to the disciplinary
authority, that would not constitute any additfonal material before the
C
disciplinary authority of which the delinquent employee has no knowledge.
However,
when the Inquiry
Officer goes further and records his findings.
which may or may not
be based on the evidence on record or are contrary
to the same or in ignorance of its, such findings are an additional material
unknown to the employee but are taken into consideration
by the discipli-D
nary authority while arriving at its conclusions. Both the dictates of the
reasonable opportunity as
well as the principles of natural justice,
there
fore, require that before the disciplinary authority comes to its won con
clusions, the delinquent employee should have an opportunity to reply to
the hiquiry Officer's findings. The disciplinary authority is then required
to consider the evidence, the report of the Inquiry Officer and the repre- E
sentation of the employee against it. [609-F -H, 610-A-B]
4. The position in law can also be looked atfrom a slightly different
angle.Article ~1.1(2) says that the employee shal.I be given a 'reasonable
opportunity ~f being heard in respect of tbe charges against him'. The
findings on the charges given
by a third person like the Inquiry Officer,
particularly when they are not borne out
by the evidence or are arrived at
by overlooking the evidence of misconstruing it, could themselves
con
stitute new unwarranted imputations. The proviso to Article 311(2) in
effect accepts
two successive stags of differing scope. Since the penalty is
F
to be proposed after the inquiry, which inquiry in effect it to be carried out G
by the disciplinary authority (the Inquiry
Officer being only his delegate
appointed to hold the inquiry and to assist him), the employee's reply to
the Inquiry officer's report and consideration of such reply
by the
discipli·
nary. authority also constitute an integral part of such inquiry.
[610-F, H, 611-A] H
580 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A The second stage follows the inquiry so carried out and it consists
of the issuance of the notice to show cause against the proposed penalty
and of considering the reply to the notice an deciding upon the penalty.
What is dispensed with
is the opportunity of making representation on the
penalty proposed and not of opportunity of making representation on the
B report of the Inquiry
Officer. The latter right was always there. But before
the the 42nd Amendment of the Constitution, the point of time
at which it
was to be exercised has stood deferred till the second stage viz., the stage
of considering the penalty. Till that time, the conclusions that the
discipli
nary authority might have arrived at both with regard to the guilt of the
C employee and the penalty to be imposed were only tentative. All that has
happened after the 42nd Amendment
of the Constitution is to advance the
point of time
at which the representation of the employee against the
inquiry
Officer's report would be considered. Now, the disciplinary
authority has to consider the representation of the employee against the
report before it arrives at its conclusion with regard to his guilt of
D innocence of the charges. (611-A-D]
Kham Chand v.
Union of India & Ors., (1958] S.C.R. 1080; A.N.
D'Silva
v.
Union of India, (1962] Supp.1S.C.R.968; Union of India v. H.C.
Goel, (1964] 4 S.C.R. 718; Avtar Singh, Police Constable v. Punjab, (1968)
E S.L.R. 131; State of Gujarat v. R. G. Teredesai & Anr., (1970] 1 S.C.R. 251;
General Manager, Eastern Railway & Anr. v. Jawala Prasad Singh, (1970] 3
S.C.R.
271;
Uttar Pradesh Government v. Sabir Hussain, (1975) Supp. S.C.R.
354; Union of India & Anr. v. Tulsiram Patel & Ors., (1985] Supp. 2 S.C.R.
131; Secretary, Central Board of Excise & Customs & Ors. v. K.S. Mahalin-
F gam, [1986] 3 S.C.R. 35; Ram Chander v. Union of India & Ors., (1986] 3
S.C.R. 103; Union of India & Ors., v. E. Bashyan, [1988] 3 S.C.C. 209; A.K.
Kraipak & Ors. etc. v. Union of India & Ors., (1970] 1 S.C.R. 457; Chairman,
Board of Mining Examination & Anr. v. Ramjee, [1977) 2 S.C.R. 904;
In~titution of Chartered Accountants of India v. L.K. Ratna & Ors.,
A.l.R.(1987) S.C. 71; Charan Lal Sahu etc. etc. v. Union of India & Ors.,
G
[1990] S.C.C. 613;. C.B. Gautam v. Union of India & Ors., (1993] 1 S.C.C.
78 and Managing Director, ECIL v. B. Karunakar, J.T. (1992) 3 S.C. 605,
referred to.
R. Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 55
H and Secretary of State for India v. l.M. Lall, (1945) F.C.R. 103, cited.
MANAGING DIRECTOR, ECIL v. KARVNAKAR 581
K.C. Asthana etc. etc. v. State of U.P. & Ors. etc. etc. [1988] 3 S.C.C. A
600, disting0ished.
Union of India & Ors. v. Mohd. Ramzan Khan, [1991] 1 S.C.C. 588,
affirmed.
5 Hence
when the Inquiry Officer is not he disciplinary authority, B
the delinquent employee has a right to receive a copy of the Inquiry
Officer's report before the disciplinary authority arrives at its conclusions
with regard to the guilt or innocence of the employee with regard to the
charges levelled against him. That right is a
part of the employee's right
to defend himself against the charges levelled against him. A denial of the
C
Inquiry Officer's report before the disciplinary authority takes its decision
on the charges, is a denial reasonable opportunity to the employee to prove
his innocence and is a breach of the principles of natural justice. [ 611-E-F]
5.1. Statutory rules, if any, which deny the report to the employee are
against the principles of natural justice and, therefore, invalid. The delin-
D
quent employee will, therefore, be entitled to a copy of the report even if
the statutory rules
do not permit the furnishing of the report or are silent
on the subject.
[611-H; 612-A]
5.2. Article 311(2) cannot be construed to mean that it prevents or
prohibits the inquiry
when punishment other than that of dismissal, E
removal or reduction in rank is awarded. The procedure to be followed in
awarding other punishments
is laid down in the service rules governing
the employee. In the matter of all punishments both Government servants
and other are governed by
their service rules. whenever, therefore, the
service rules contemplate an inquiry before a punishment is awarded, and
F
when Inquiry Officer is not the disciplinary authority the delinquent
employee
will have the right to receive the
Inquiry Officer's report not
withstanding the nature of the punishment. [612-C, El
5.3. Since it is the right of the employee to have the report to defend
himself effectively, and he would not know in advance whether the report is
G
in his favour or against him, it
will not be proper to construe his failure to ,
ask for the report, as the waiver ·of his right. Whether, therefore, the
employee asks for the report or not, the report has to
be furnished to him.
[612-F]
5.4. The answer to the question as to what is the effect on the order H
582 SUPREME COURT REPORTS [1993) SUPP.2 S.C.R.
A of punishment when the report of the Inquiry Office is not furnished to
the employee and what relief should
be granted to him has to be relative
to the punishment awarded. When the employee is dismissed
or removed
from service
and the inquiry is set aside because the report is not furnished
to him, in some cases the non-furnishing of the report may have prejudiced
B
him gravely while in other cases it may have made no difference to the
ultimate punishment awarded to him. Hence to direct reinstatement of the
employee with back-wages in all cases is to reduce the rules of justice to a
mechanical ritual. Whether in fact, prejudice has been caused to the
employee
or not on account of the denial to him of the report, has to be
considered on the facts
and circumstances of each case. Where, therefore,
C even after the furnishing of the report, no different consequence would
have followed,
it would be a perversion of justice to permit the employee
to resume duty
and to get all the consequential benefits. [
613-C-E]
5.4.1. Hence, in all cases where the Inquiry Officer's report is not
D furnished to the delinquent employee in the disciplinary proceedings, the
Courts and Tribunals should cause the copy of the report to be furnished to
the aggrieved employee
if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or
her case was prejudiced because of the non-supply of the report. If afkr
hearing, the parties, the Court/Tribunal comes to the conclusion that the
E non-supply of the report would have made no difference to the ultimate
findings
and the punishment given, the
Court/Tribunal should not interfere
with the order of punishment. The Court/Tribunal should not mechanically
set aside the order of punishment
on the ground that the report was not
furnished.
It is only if the
Court/Tribunal finds that the furnishing of the
F report would have made a difference to the result in the case that it should
set aside the order of punishment. [613-G-H,
614-A, 614-C]
5.4.2. Where after following the above procedure, the
Court/Tribunal
sets aside the order of punishment, the proper relief that should be
granted is to direct reinstatement of the employee with liberty to the
G authority/management to proceed with the inquiry, by placing the employee
under suspension
and continuing the inquiry from the stage of furnishing
him with the report. The question whether the employee would be entitled
to the back-wages and other benefits from the date of his dismissal to the
date of his reinstatement
if ultimately ordered, should invariably be left to
H be decided by the authority concerned according to law, after
the culmina-
MANAGING DIRECTOR, ECIL v. KARUNAKAR 583
tion of the proceedings and depending on the final outcome. If the A
employee succeeds in the fresh inquiry and is directed to be reinstated,
the authority should
be at liberty to decide according to law how it will
treat the period form the date of dismissal till the reinstatement and to
what benefits, if any and the extent of the benefits,
he will be entitled. The
reinstatement made as a result of the setting aside of the inquiry for failure
B
to furnish the report, should be treated as a reinstatement for the purpose
of holding the fresh inquiry from the stage of furnishing the report and no
more, where such fresh inquiry is held. That
will also be the correct
position in law. [614-C-F]
State Bank of India v. Shri N. Sundara Money, [1976) 3 S.C.R. 160, C
referred to.
6. Till 20th November, 1990, i.e., the day on which Mohd. Ramzan
Khan's
case was decided, the position of law on the subject was not settled
by this Court. It is for the first time in Mohd. Ramzan Khan's case that D
this Court laid down the law and made it prospective in operation, i.e.,
applicable to the orders of punishment passed after
20th November, 1990.
Since the decision made the law expressly prospective in operation the law
laid
down there will apply only to those orders of punishment which are
passed
by the disciplinary authority after
20th November, 1990. This is so,
notwithstanding the ultimate relief which was granted there which was
per E
incuriam. No order of punishment passed before that date would be
challengeable on the ground that there was a failure to furnish the inquiry
report to the delinquent employee. The proceedings pending in
courts/Tribunals in respect of orders of punishment passed prior to
20th
November, 1990 .will have to be decided according to the law that prevailed
prior to the said date which did not require the authority to supply a copy
F
of the Inquiry Officer's report to the employee. The only exception to this
was where the service rules with regard to the disciplinary proceedings
themselves made
it obligatory to supply a copy of the . report to the
employee. [615-G,
621-B·C, 616-A]
7. In view of the unsettled position of the law on the subject, the
authorities/managements all over the country
had proceeded on the basis
that there was no need to furnish a copy of the report of the Inquiry Officer
G
to the delinquent employee and innumerable employees have been
punished without giving them the copies of the reports. In some of the
H
584 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A cases, the orders of punishment have long since become final while other
cases are pending in courts
at different stages. However, both
administra
tive reality and public interests do not re11uire that the orders of punish
ment passed prior to the decision in Mohd. Ramzan Khan's case without
furnishing the report of the Inquiry Officer should be disturbed and the
B
disciplinary proceedings which gave rise to the said orders should be
reopened on that account. [621-D-E, G]
8. While Mohd. Ramzan Khan's case made the law laid down there
prospective in operation, while disposing of the cases which were before
the Court, the Court through inadvertence
gave relief to the employees
C concerned in those cases by allowing tbeir appeals and setting aside the
disciplinary proceedings. The relief granted was obviously
per incuriam.
The said relief has, therefor, to be confined only to the employees
con
cerned in those appeals. The law which is expressly made prospective in
operation there, cannot
be applied retrospectively on account of the said
]) error. [616-8-C]
9. The law laid down in Mohd. Ramzan Khan's case should apply to
employees in all establishments whether Government
or non-Government,
public
or private. This will be the case whether there are rules governing
the disciplinary proceeding
or not and whether they e.xpressly prohibit the
E furnishing of the copy of the report or are silent on the subject. Whatever
the nature of punishment, further,
when ever the rules require an inquiry
to be held, for inflicting the punishment in question, the delinquent
employee should have the benefit of the report of the Inquiry
Officer before
the disciplinary authority records its findings on the charges levelled
p against him. [612-H, 613-A-B]
G
10. There is no contradiction between the view taken in Mohd.
Ramzan Khan's
case and the view taken
by this Court in the earlier cases,
and the reliance placed on K.C. Asthana's case to contend that a contrary
view was taken there is not well-merited. [620-G]
Union of India v. Mohd. Ramzan Khan's, [1991] 1 S.C.C. 588, af
firmed.
K.C. Asthana etc. etc. v. State of U.P. & Ors., [1988] 3 S.C.C. 600,
H distinguished.
MANAGING DIRECTOR, ECIL v. KARUNAKAR 585
Union of India & Ors. v. E. Bashyan, [1988] 3 S.C.C. 209; S.P. A
Viswanathan (I) v. Union of India & Ors., (1991] Suppl. 2 S.C.C. 269; Union
of India & ·Ors. v. A.K. Chatterjee, [1993] 2 S.C.C. 191 and Managing
Director, Food Corporation of India & Ors. v. Narendra Kumar Jain, (1993]
2 S.C.C. 400, referred to.
R.K. Vashisht v. Union of India & Ors., [1993] Suppl. 1 S.C.C. 431, B
explained.
H.G. Patel v. Dr. (Mrs.) K.S. Parikh & Ors. (1985) 2 G.L.R. (XXVI)
1385 and Premnath K. Shanna v. Union of India & Ors. (1988) 2 A.S.L.J.
449,approved. C:
11. The courts' can make the law laid down by them prospective in
operation to prevent unsettlement ·of the settled positions, to prevent
administrative chaos and· to meet the ends of justice. The doctrine of
Prospective Overruling has since been extended to the interpretation of
ordinary statutes as well. [616-D, 618-E] D
J.C. Golak Nath & Ors. v.State of Punjab &Anr., [1967) 2 S.C.C. 762;
Waman Rao & Ors. etc. etc. v. Union of India & Ors., [1981] 2 S.C.R. 1;
Atam Prakash v. State of Haryana & Ors., [1986] 2 S.C.C. 249; Orissa
Cement Ltd. etc. etc. v. State of Orissa & Ors. etc. etc., [1991] Suppl.1 S.C.C. E
430 and. Victor Linkletter v. Victor G. Walker, 381 U.S. 618, 14 L.Ed. 2d 601,
referred to
Sri Sankari Prasad Singh Deo etc. v. Union of India, [1952] S.C.R.
89; Sajjan Singh v. State of Rajasthan, (1965] 1 S.C.R. 933 and Great
Northern Railway v. Sunburst Oil Ref Co., [1932] 287 U.S. 358, 77 L.Ed. F
360, cited.
Per Ramaswamy, 1. (Partly dissenting)
1. The supply of the copy of the enquiry
report is an integral part of
the penultimate stage of the
enquiry before the disciplinary authority G
considers the material and the report on th"e proof of the charge and the
nature of the .Punishment to
be imposed. Non-compliance is denial of
reasonable opportunity, violating Article 311(2)
and unfair, unjust and
illegal procedure offending Articles 14 and 21 of the Constitution and the
principles of
natural justice. [633-E] H
586 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A 2. The findings or recommended punishment by the enquiry officer
are likely to affect the mind of the disciplinary authority in his concluding
the guilt
or penalty to be imposed. The delinquent is, therefore, entitled to
meet the reasoning, controvert the conclusions reached
by the enquiry
officer
or is entitled to explain the effect of the evidence recorded. Unless
B the copy of the report is supplied to him, to would be in dark to know the
findings, the reasons in support thereof the nature of the recommendation
on penalty. The supply of the copy of the report is neither an empty
formality,
nor a ritual, but aims to
'.tigress the direction of the disciplinary
authority from his derivative conclus;ons from the report to the palliative
part of fair consideration. [629-D-E, H, 630-A]
c
Khem Chand v. Union of India, [N:i71 S.C.R. 1080; Bachhittar Singh
v. State of Punjab, A.l.R. (1963) S.C. 395; Khardah Co. Ltd. v. Their
Workmen, [1964] S.C.R., 506; Union of India v. H.C. Goel, [1964] 3 S.C.R.
718; State of Maharashtra v.BA. Joshi, [1969] 3 S.C.R. 917, State of Gujarat
D v. R.G. Teredesai, [1970] 1 S.C.R. 251; State of U.P. v. Shabir Hussain,
[1975] Suppl. S.C.R. 354; State of Madras v.A.R. Srinivasan, A.I.R. (1966)
S.C.
1827;
State of Assam v. Mohan Chandra Kalita, A.I.R. (1972) S.C. 2535;
A.N. Silva v. Union of India, [1962] Suppl.1 S.C.R. 968;Avtar Singh v. I.G.
of Police, Punjab, (1968) 2 S.L.R. 131.; The Calcutta Dock Labour Board v.
E Jaffar Imam, (1965) 2 L.LJ. 113; Union of India v. KR. Memon, [1969] 2
S.C.R. 343;
Lakshmiratan Cotton Mills Co. Ltd. v. Its Workmen, [1975] 2
S.C.R.
761; Tara Chand Khatri v. Municipal Corporation of Delhi, [1977] 2
S.C.R.
198;
P. Joseph John v. State of Travencore, Cochin, [1955] 1 S.C.R.
1011 and Krishna Chandra Tandon v. Union of India, [1974] 4 S.C.C. 380,
referred to.
F
3. The disciplinary authority by whatever name called, has power and
jurisdiction to enquire into the misconduct by himself or by his delegate
and to impose the penalty for proved misconduct of a delinquent. Doubt
less that the enquiry officer is a delegate of the disciplinary authority, he
G conducts the enquiry into the misconduct and submits his report, but his
fmdings or conclusions on the proof of charges and his recommendations
on the penalty would create formidable impressions almost to be believed
and acceptable unless they are controverted vehemently by the delinquent
officer. Therefore, non-supply of the copy of the
report to the delinquent
H
'Yould cause him grave prejudice. (624-B, 632-C)
'
MANAGING DIRECTOR, ECIL v. KARUNAKAR 587
Suresh Koshy George v. University of Kera/a, [1969) S.C.R. 317; Keshav A
Mills Co. Ltd. v. Union of India, [1973) 3 S.C.R. 22; Shadi Lal Gupta v. State
of Punjab, [1973) 3 S.C.R. 637; Hiranath Misra v. Principal Rajendra Medical
College. Ranchi, A.I.R. (1973) S.C 1260; Satyavir Singh v. Union of India,
A.I.R. (1986) S.C. 555; Secretary, Central Board of Excise & Customs v. KS.
Mahalingam, [1986) 2 S.C.R. 742 and Union of India v. Tztlsi Ram Pate4
[1985) Suppl. 2 S.C.R. 131; held inapplicable.
4. The denial of the supply of the copy, therefore causes. to the
delinquent a grave prejudice and avoidable injustice which cannot.be ·cured
B
or mitigated in appeal or at the c~allelige under Article 226 of the Con
stitution or Section 19 of the Tribunal Act or other relevant provisions. Ex C
post facto opportunity does not efface the past impression formed by the
disciplinary authority against the delinquent, however professedly to
be
fair to the delinquent. The.lurking suspicion always lingers in the minds
of the delinquent that the disciplinary authority
was not objective and he
was treated unfairly. To alleviate such an impression and to prevent D
injustice of miscarriage of justice at the threshold, the disciplinary
authority should supply the
~opy of the report, consider objectively the
records, the evidence, the report
and the explanation offered by the
delin
quent and make up his mind of proof of the charge or the nature of the
penalty. The supply of the copy of the report is thus a sine qua non for a
valid, fair,
just and proper procedure to defend the delinquent himself E
effectively and efficaciously.
[630-A-D]
5. Principles of natural justice are integral part of Article 14. No
decision prejudicial to a party should be taken without affording an
opportunity or supplying the material/which is basis for the decision. The
F
enquiry report constitutes fresh material which has great persuasive force
or effect
on the mind of the disciplinary authority. The supply of the report
along with the final order is like. a post-mortem certificate with purifying
odour. The failure to supply copy thereof to the delinquent would
be unfair
procedure offending not only Articles
14, 21and311(2) of the Constitution,
but also, the principles of natural justice.
[631-C-D] G
5.1. It is not correct to say that the report is not evidence adduced
during such enquiry envisaged under proviso to Article
311 (2). Evidence
Act has no application to the enquiry conducted
during the disciplinary
proceedings. The evidence adduced is not in strict confirmity with Indian
H
588 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A Evidence Act, though the essential principle of fair play envisaged in the
Evidence
Act are applicable. What was meant by 'evidence' in the proviso
to Article
311 (2) is the totality of the material collected during the enquiry
including the report of the enquiry officer forming
part of that material.
Therefore, when reliance is sought to
be placed, by the disciplinary
B
authority, on the report of the enquiry officer for proof of the charge or
for imposition of the penalty, then it is incumbent that the copy thereof
should
be supplied before reaching any conclusion either on proof of the
charge or the nature of the penalty to
be imposed on the proved charge or
on both. [631-E-G]
C 6.
Section 44 of the Forty Second Amendment Act has don away with
supply of the copy of the report in the proposed punishment but
was not
intended to deny fair,
just and reasonable opportunity to the delinquent,
but to
be a reminder to the disciplinary authority that he is still not
absolved of his duty to consider the material
on records, the evidence along
D with the report, but before he does so, he must equally accord to the
delinquent, a fair and reasonable opportunity of his say on the report when
the disciplinary authority seeks
to rely thereon. [631-A-B]
7. The emerging effect of the holding that the delinquent is entitled
to the supply of the
copy of the report would generate yearning for hearing
E before deciding on proof of charge or penalty which 42nd Amendment
Act had advisedly avoided.
So while interpreting Article 311 (2) or relevant
rule the court/tribunal should make
no attempt to bring on the rail by back
track the opportunity of hearing. The attempt must
be nailed squarely.
Prior to the 42nd Amendment Act the delinquent has no right of hearing
p before disciplinary authority either on proof of charge or penalty. So after
42nd Amendment Act it would not
be put no higher pedestal. However, the
disciplinary authority has an
objectiYe duty and adjudicatory respon
sibility to consider and impose proper penalty consistent with the
roagnitude or the gravity of the misconduct. Each case must be considered
in the light of its
own scenario. In a given case if the penalty was
G proved to be disproportionate or there is no case even to find the charges
proved
or the charges are based on no evidence, that would be for the
court/the tribunal to consider on merits, not as court of appeal, but within
its parameters of supervisory jurisdiction and to
give appropriate relief.
But this would not
be a ground to extend hearing at the stage of considera-
H
tioa by the disciplinary authority either on proof of the charge of on
MANAGING DIRECTOR, ECIL v. KARUNAKAR 589
imposition of the penalty. [633-F-H, 634-C-D] A
8. Though by far the legislature must be responsible for the formula-
tion of principles
of conduct which are of general, and prospective
ap
plicability to a given community for an indeterminate number of situations,
administrators must apply such general and often specific principles
within the community ·even though administrative orders and regulations B
often have certain legislative aspects, and the courts must also apply the
prescriptions of legislators, or the generalised principles deduced from a
series of precedents to individual disputes. Such a separation of functions
is not confined to the democratic doctrine of separation of powers, it is
part of the essential structure of any developed legal system. [636-B] C
8.1. In a democratic society, the process of administration,
legisla
tion and adjudication are more clearly distinct than in a totalitarian
society. The courts can act when indeed called upon to adjust the rights
and law in accordance with the changing tenets of public policy and needs
of the society. Equally discretion assumes freedom to choose among
D
several lawful alternatives of which the judge is entitled to choose the one
that most appeals to him, not a choice between two decision, one of which
may
be said to be almost certainly right and the other almost certainly
wrong, but a choice so nicely balanced that
when once it is announced, a
new right and a new wrong will emerge in the announcement. [636-C-D]
9. When judicial discretion has been exercised to establish a new
norm, the question emerges whether it would be applied retrospectively to
the past transactions
of prospectively to the transactions in future only.
This process
is limited not only to common law traditions, but exists in all
the jurisdictions.
[636-G]
Candler v. Crame Christmas & Co., [1951] 2 K.B. 164; Hedley Byrene
& Co. Ltd. v. Heller & Paltners Ltd., 1964 A.C. 465; Rook v.
Bernard, [1964]
A.C. 465; Cfolter Handwoven Hanis Tweed Co. v. Veith, (1941) A.C. 435
and Milangas v. George Textiles Ltd., [1976] A.C. 443, referred to.
10. As a matter of constitutional law, retrospective operation of an
overruling decision
is neither required nor prohibited by the Constitution
E
F
G
but is one of judicial attitude depending on the facts and circumstances in
each case, the nature and purpose of the particular overruling decision
seeks to serve. The court would look into the justifiable reliance on the
H
590 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A overruled case by the administration, ability to effectuate the new rule
adopted in the overruling case without doing injustice; the likelihood of its
operation whether substantially burdens the administration of justice
or
retard the purpose. All these factors are to be taken into
acco·unt while
overruling the earlier decision of laying
down a new principle. The benefit
B
of the decision must be given to the parties before the Court even though
applied to further cases form
that date prospectively would not be ex
tended
to the parties whose adjudication either had become final or matters
are pending trial or in appeal. [642-D-F]
10.1 The crucial cut-off date for giving prospective operation is the
C date of the judgment and not the date of the case of action of a particular
litigation given rise to the principle culminated in the overruling decision.
There
is no distinction between civil and criminal litigation. Equally no
distinction could
be made between claims involving constitutional right,
statutory right or common law right.
It also emerges that the new rule
would not
be applied to ex post facto laws nor acceded to plea of denial
D of equality. This Court would adopt retroactive of non-retroactive effect of
a decision not as a matter of constitutional compulsion but as a matter of
judicial policy determined in each case after evaluating the merits
and
demerits of the particular case by looking to the prior history of the rule
in question, its purpose
and effect and whether retroactive operation will
E accelerate or retard its operation. The reliance on the old rule and the cost
of the burden of the administration are equally germane and taken into
account in deciding to
give effect to prospective or retrospective operation.
[642-F-H,
643-A]
Birimingham City Co. v.West Midland Baptist
(Trost) Ass., [1969] 3
F All. E.R. 172; Jones v.5ecretary of States for Social Science, [1972) A.C. 944;
Great Northern Railway Co. v. Sunburst Oil & Refining Co., [287) U.S. 358,
77 L.Ed. 360 [1932); Dollree Map v.Ohio, [367) U.S. 643, 12 L.Ed. 2nd 1081,
[1961]; Victor Linkletter v. Victor G. Walker, [381] U.S. 618, 14 L.Ed. 2nd
601, (1965); E1mesto A. Miranda v. State of Arizona, [384] U.S. 436, 16 L.Ed.
2nd
694, [1966]; Danny Escobedo v. lllinois, 378
U.S. 478, 12 L.Ed. 2nd 977;
G Sylvester Johnson v. State of New Jersey,384 U.S. 719, 16 L.Ed. 2nd 882,
(1966); TA. Jenkins v. State of De/ware, 395 U.S. 213, 23 L.Ed. 2nd 253,
[1969]; P.B. Rodrique v.Aetna Casualty Co., 395 U.S. 352, 23 L.Ed. 2nd 360
[1969]; Chevron Oil Co. v. Gaines Ted Huson, 404 U.S. 97, 30 L.Ed. 2nd
296; Northern Pipeline Construction Co. v. Marathan Pipeline Co., 458 U.S.
H SO, 73 L.Ed 2nd 598, [1982]; U.S. "·James Robert Peltier, 422 U.S. 51, 45
MANAGING DIRECTOR, ECIL v. KARUNAKAR 591
L.Ed. 2nd 374(1975]; Almeida Sahchez v. U.S., 413 U.S. 266 37 L.Ed. 2nd A
596, Bowen v. U.S. 422 U.S. 816, 45 L.Ed. 2nd 641; United States v. Raymond
Eugene Johnson, 457 U.S. 537, 73 L.Ed. 2nd 202, (1982]; Rayton v. New
York, (1980] 445 U.S. 573, 63 L.Ed. 2nd 639; Golak Nath & Ors. v. State of
Punjab & Anr., (1967] 2 S.C.R. 762; Sankari Prasad v. Union of India,
(1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan, (1965] 1 S.C.R. B
933, referred to.
Lord Devlin, 'iudges and Law Makers', 39 Mod. L.R.1 [1976]; W.
Friedmann, 'Limits of the Judicial lawmaking and Prospective Ovenuling', 29
Mod, L.R.593 (1966]; A. G.L. Nicol, Prospective Ovenuling: A new device for
English Courts, 39 Mod, L.R. 542 [1976], referred to.; C
Blackstone, Commentaries of the laws of England, Lord LLyod of
Hampstead,
Introduction to Jurisprndence, 4th Edn. 1979, Rupert Cross
and
Harris, Precedent in English Law, Oxford 4d Edn. (1991) Lon L. fuller,
Anatomy of the Law, John Wigmore, Judicial Function; Justice Cordozo;
Selected Writings; Louis L. Jaffe, English and American Judges as Law D
Makers, 1969 Oxford Edn., P.S. Atiyah and R.S. Summers, Fann and
Substance
in Anglo American Law, [1987]
Oxford Ed.; Prof. Baker, Judicial
Discretion, [1993] Ed.; referred to. ·
11. Prospective overruling, therefore, limits to future situations and E
exclude application to situations which have arisen before the decision
was evolved. It is, therefore, for the court to decide, on a balance of all
relevant considerations, whether a decision overruling a previous principle
should
be applied retrospectively or not. (637-H, 638-AJ
12. Mohd. Ramzan Khan's ratio giving the benefit to him and
com· F
panion appellants was valid in law and not, therefore, per incuriam and
was legally given the reliefs.
(643-G]
12.L It is not correct to says that the denial of Ramzan Khan's ratio to
the pending matters offend Article
14. Placing reliance on the existing law
till date of Ramzan Khan, the employers treated that under law they had no G
obligation to supply a copy of the enquiry report before imposing the
penalty. Reversing the orders and directing to proceed from that stage
would
be a needless heavy burden on the administration and at times
encourage the delinquent to abuse the
office till final orders are passed.
Accordingly the ratio in
Mohd. Ramzan Khan's case would apply
prospec· H
592 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A tively from the date of the judgment only to the cases in which decisions are
taken and orders made that date and does not apply to all the matters which
either have become final of are pending decision
at the appellate forum or
in the High court or the Tribunal or in this Court. [643-H, 644-A-B]
B
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 3056 of
1991 etc. etc.
From the Judgment and Order dated 29.3.1991 of the Andhra
Pradesh High Court in Writ Appeal No. 1835 of 1988.
C V.C. Mahajan, N.N. Goswamy , Dr. Anand Prakash, J.R. Murthy,
V.R. Reddy, Altaf Ahmed and K.T.S. Tulsi, Addi. Solicitor Generals, H.N.
Salve, P.P. Rao, G. Ramaswamy, Dr. N.M. Ghatate, A.K. Ganguly, S.S.
Javali, P.K. Goswami, M.N. Bhatkal, Arun Jaitley, K. Madhva Reddy, A.S.
Nambiar, Ms. Indira Jaising and Govinda Mukhoty, V. Shekhar, C.V.Subba
D Rao, A.K. Srivastava, Ms. Indu Goswami, R.P. Shrivastava, V.K. Verma,
B.K. Prasad, S.N. Terdol, Ms. Sushma Suri Vimal Dave, Sushi! Kumar Jain,
A.V. Rangam, Kailash Vasdev, Uma Dutta, Ashok Bhan, Ms. Anil Katiyar,
B.Y. Kulkarni, S.K, Agnihotri, Kirit Rawal, Raiankarnajawal, Mrs. Manik
Karanjawala, P.K. Mullick, T.V.S.N. Chari, Atul K. Bandhu, S.D. Kelkar,
A. Rangagathan,
B. Mohmmed Ali, G.K. Bansal, R.K. Mehta, Anil Chopra,
E
S.K. Mehta, Dhruv Mehta, Aman Vachher, P. Narsimhan, V.G. Pragasam,
G. Nageswara Reddy, Ms. Kusum Chaudhary, Ms. Lira Goswami, Ms.
Alpana Poddar, S. Atreya, A.P. Dhamija, S.K. Jain, B. Rajeshwar Rao,
Pawan K. Bahl, T.C. Sharma, Manoj Prasad S.N. Sikka, Ms. Kitty Kumar
.mangalam, P. Parmeswaran, Hemant Sharma, Maninder Singh, Ms. Rach-
F ha Gupta, S.R. Bhat, Balbir Singh Gupta, R. Mohan Jitender Sharma, R.K.
Kapoor, B.R. Kapoor, Anis Ahmed Khan, B.V. Bairam Das,
B.
Parthasar
thy, B.P. Tanna, Ms. Mahrook N.Kaarawala, Mukul Mudgal, H.S. Parihar,
A.Mariaputtam (for Arputham Aruna & Co.), H.M. Singh, Ms. H. Wahi,
Uma Dutt, H.K. Puri, D.P. Mukherjee, H.A. Raichura, S.A. Syed, D.M.
Nargolkar,
Ms.
Sarla Chandra, Ms. S Janani, Mukul Mudgal, M. Aparna
G Bhat, M.N. Shroff, K.K. Gupta, Raj Kumar gupta, P.C. Kapoor, Mrs.
Lalitha Kaushik, Ms. Sheela Goel, R.K. Kaukal, S.K. Gupta, P.R.
Seetharaman, M.A. Chinnasami, Kuldip Parihar, S.R. Barnt, Anil Srivas
tava, N.N. Johari and H.S., Munjral, for the appearing parties.
H The Judgment of the Court were delivered by
MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.] 593
SAWJ.NT, J. This group of matters is at the instance of various A
parties, viz., Union of India, Public Sector Corporations , Public Sector
banks, State Governments and two private parties. By an order dated 5th
August,
1991 in Managing Director, Electronic Corporation of India v.
B.Kanmakar JT (1992) 3
S.C. 605, a three Judge Bench of this Court
referred that matter to the Chief Justice for being placed.before a Larger
B
Bench, for the Bench found a conflict in the two decisions of this Court,
viz., Kailash Chander Asthana etc. etc. v. State of
U.P. & Ors. etc. etc. (1988]
3 SCC 600, and Union of India & Ors. etc. etc. v. Mohd. Ramzan Khan,
(1991] 1 SCC 588 both delivered by the Benches of three learned Judges.
Civil Appeal
No.
3056of1991 arising out of SLP (Civil) No. 12103of1991
along with the other matters in which the same question of law
is in issue, C
has therefore, been referred to this Bench.
2. The basis question of law which arises in these matters is whether
the report of the Inquiry Officer/authority who/which
is appointed by the
disciplinary authority to hold an inquiry into
the. charges against the
delinquent employee,
is required to be furnished to the employee to enable D
him to make proper representation to the disciplinary authority before such
authority arrives at its
own finding with regard to the guilt or otherwise of
the employee and the punishment,
If any, to be awarded to him. This
question in turn
gives rise to the following incidental questions :
(i) Whether the report should
be furnished to the employee even
when the statutory rules laying down the procedure for holding the
disciplinary inquiry are silent on the subject or are against it?
E
(ii) Whether the report of the Inquiry Officer is required to be
furnished to the delinquent employee even when the punishment
F
imposed is other than the major punishment of dismissal, removal
or reduction in rank?
(iii) Whether the obligation to furnish the report
is· only when the
employee asks for the same or whether it exists even otherwise?
G
(iv) Whether the law laid down in Mohd. Ramzan Khan's case (Supra) will apply to all estabiishments -Government and non
Government, public and private sector undertakings,
(v) What is the effect of the non-furnishing of the report on the H
A
B
c
594 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
order of punishment and what relief should be granted to the
employee in such cases?
(vi) From what date the law requiring furnishing of the report,
should come into operation?
(vii)
Since the decision in Ramzan Khan's case (supra) has made
the
law laid down there prospective in operation, i.e., applicable
to the orders of punishment passed after
20th November, 1990 on
which day the said decision
was delivered, this question in turn
also raises another question,
viz., what was the law prevailing prior
to
20th November, 1990?
3. In order to appreciate fully the significance of the basic question,it
is necessary to refer briefly to the genesis of the law on the subject of
furnishing the report of the Inquiry Officer/authority to the delinquent
D employee. In this country, the law on the subject has developed along two
paths,
viz., the statute and the principles of natural justice. We may first
refer to the statutory development of the
law. It is not necessary to refer
to the law prior to the
Public Servants (Inquiries) Act, 1850 which for the
first time made uniform, the law regulating inquiries into the behaviour of
E
F
public servants who were not removable from their appointments without
the sanction of the Government.
It provided for a formal and public inquiry
into the imputations of misbehaviour against the public servant. Either the
Government,
if it thought fit conducted the prosecution or left it to the
accuser to conduct
it after requiring him to furnish reasonable security.
The Act also provided that the inquiry may be committed either to the
Court, Board or any other authority to which the accused public servant
was subordinate, or to any other person or persons to be specially ap-
pointed
as Commissioners for the purpose.
Section 25 of the Act, however,
saved the authority of the Government for suspending or removing any
such public servant for
any cause without an inquiry under the Act. While
the said Act continued to be on the statute book, the Government of India
G Act, 1919 was enacted and sub-section (2) of
Section 96B of that Act
authorised the Secretary of State in Council to make rules for regulating.
the classification of the
civil services, the methods of their recruitments,
their condition s of service, pay and allowances and discipline and conduct.
In pursuance of these powers, the Civil Services Classification Rules,
1920
H . were framed, and Rule XIV of the said Rules provided that without I
MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.] 595
prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, in A
all cases in which the dismissal, removal or reduction in rank of any .officer
is ordered, the order shall, except when it is based on facts or conclusions
established at a judicial trial, or when the officer concerned bas absconded
with the accusations hanging over
him, be preceded by a. properly recorded
departmental inquiry. At such an inquiry, a definite charge in writing had
B
to be framed in respect of each offence and explained to the accused. The
evidence in support of it and any evidence which the accused may adduce
in his defence had to be recorded in
his presence and his defence had to
be taken down in writing. Each of the charges framed had to be discussed
and the finding had to be recorded on each charge. However, there was
no provision made in the Rules for hearing the delinquent officer against
C
the action proposed to be taken on the basis of the fmding arrived at in
the inquiry. All that Rule XVI of the Rules provided was that any officer
against whom an order
was passed and who thought himself wronged
thereby wouid be entitled to prefer at least one appeal against such order.
These rules were followed
by the Civil Services (Classification, Control and D
Appeal) Rules,
1930 also framed under Section 96B of the Government of
India Act,
1919. Rule 55 thereof contained the same provisions as those
contained in Rule XIV of
1920 Rules and made no difference to the earlier
position of law on the subject.
It cannot, therefore, be gainsaid that the
seeds of the law
on· the subject were laid by Section 240 (3) of the
Government of India Act,
1935 (the 'GOI Act'). It stated that the civil E
servant shall not
be dismissed or reduced in rank until he had been given
"reasonable opportunity to show cause against action proposed to
be taken
in regard to
him". The expression "against action proposed to be taken" was
uniformly interpreted by the courts to mean the stage at which the dis
ciplinary authority had arrived at its tentative conclusion with regard to F
the guilt of and the punishment to be awarded to, the employee. The
expression "reasonable opportunity to show cause" was accordingly inter
preted to mean an opportunity at the stage to represent to the authority
against the tentative findings both with regard to the guilt and the proposed
punishment.
It was, therefore, held that in order that the employee had an
effective opportunity to show cause against the finding of guilt and the
G
punishment proposed, he should, at that stage be furnished with a copy of
the findings of the inquiring authority.
It is in this context that the furnish-
ing of the Inquiry Officer's report at that stage
was held to be obligatory.
It is, however, necessary to note that though the provisions of Section
240
H
596 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A (3) of the Government of India Act stated that they would apply only when
the employee
was sought to be dismissed or reduced in rank which were
the major punishments, the same were interpreted to mean that they would
also apply when the employee
was sought to be removed.
B
These provisions of Section
240 (3) of the GOI Act were incor-
porated bodily in Article
311 (2) of the Constitution with a specific
addition of the case of
"removal" of the employee to the cases of dismissal
and reduction in rank. This addition did not make any difference to the
prevailing Law. Since,
as stated earlier, the Courts had already interpreted
the provision to include the case of the removal of the employee
as well.
C
Probably the specific addition was on account of the interpretation placed
by the courts. Article 311 (2), however, underwent change with the Con
stitution (15th Amendment Act of 1963 which came into force from 6th
October,
1963. It explained and expanded the scope of "reasonable
oppor
tunity". For the original expression "until he has been given reasonable
opportunity of showing cause against the action proposed to be taken in
D regard to him" the provision "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
reasonable opportunity of making representation on the penalty proposed,
E but only on the basis of the evidence adduced during such
inquiry" was
substituted. Consequent upon this Amendment, necessary changes were
made in the proviso to clause
(2) of Article 311 which change need not
detain
us here. It would thus be apparent that the 15th Amendment for the
first time in terms provided for holding of an inquiry into the specific
F
charges of which information was given to the delinquent employee in
advance and in which he
was given reasonable opportunity to defend
·himself against those charges. The Amendment also provided for a second
opportunity to the employee to show cause against the penalty if it
was
proposed as a result of the inquiry. The courts held that while exercising
his second opportunity of showing cause against the penalty, the employee
was also entitled to represent against the findings on charges, as well.
G What is necessary to note for our present purpose is that in spite of this
change, the stage at which the employee
was held to be entitled to a copy
of the report,
was the stage at which the penalty was proposed, was the
case prior to the said Amendment.
H The provisions of clause (2) of Article 311 were further amended by
MANAGINGDIRECTOR,ECIL v. KARUNAKAR[SAWANT,J.] 597
the Constitution (42nd Amendment) Act of 1976. It came into force from A
1st January, 1977. It expressly stated that "it shall not be necessary to give
such person any opportunity of making representation on the penalty
proposed". The words "such person" of course meant the person who was
to be dismissed or removed or reduced in rank. In other words, the 42nd
Amendment of the Constitution while retaining the expanded scope of the
B
reasonable opportunity at the first stage, viz., during the inquiry as intro
duced by the 15th Amendment of the Constitution, did
way with the
opportunity of making representation against the penalty proposed after
the inquiry.
It is this Amendment to Article 311 (2) which has given rise
to the controversy
as to whether when the Inquiry Officer is other than the
disciplinary authority, the employee
is entitled to a copy of the findings C
recorded by him, before the disciplinary authority applies its mind to the
fmdings and the evidence recorded, or whether the employee is entitled to
the copy of the fmdings of the Inquiry Officer only at the second stage,
viz., when the disciplinary authority had arrived at its conclusions and
proposed the penalty.
Upon answer to question depends the answer to the D
other question flowing form, it viz., whether the employee was entitled to
make representation against such finding before the penalty
was proposed
even when Article
311 (2) stood as it was prior to the 15th Amendment of
the Constitution.
4. It will be instructive to refer briefly to certain authorities on this E
aspect of the matter. We may first refer to the decision of this Court in
Khem Chand v. Union of India & Ors., [1958] SCR
1080, where two
questions squarely fell for consideration, viz., what is meant by the expres
sion" reasonable opportunity of showing cause against the action proposed"
and at what stage the notice against the proposed punishment was to be F
served on the delinquent employee. After referring to the decisions of the
Judicial Committee in
R. Venkata Rao v.
Secretary·of State for India, L.R.
(1936) 641.A.
55 and of the Federal Court in Secretary of State for India v.
J.M. Lall, (1945) FCR
103, the Court held that the reasonable opportunity
envisaged
by the provisions of Article 311 (2) as originally enacted, was at G
the following stages:
"(a) An opportunity to deny his guilt and establish his innocence,
which he can only do if he
is told what the charges levelled against
him are and the allegations on which such charges are based; H
A
B
c
598 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
(b) an opportunity to defend himself by cross-examining the wit
nesses produced against him and
by examining himself or any other
witnesses in support of his defence; and finally
( c) an opportunity to make his representation
as to why the
proposed punishment should not be inflicted on him, which he can
only do
if the competent authority, after the inquiry is over and
after applying
his mind to the gravity or otherwise of the charges
proved against the government servant tentatively proposes to
inflict one of the three punishments and communicates the same
to the government servant.."
The Court further held that the substance of the protection provided
by rules like Rule
55 of the Civil
Services (Classification, Control and
Appeal) Rules promulgated on May
27,
1930 under Section 96-B of the
Government of India Act,
1915 (sic), was bodily lifted out of the said Rules
D and together with an additional opportunity embodied in
Section 240 (3)
of the GOI Act, was incorporated in Article 311 (2) so as to convert the
protection into a constitutional safeguard. The Court also held that the
opportunity to show cause against the penalty proposed should
be given
after a stage has been reached where the charges had been established and
the competent authority had applied its mind to the gravity or otherwise
E of the proved charges tentatively and proposed a particular punishment. It
was necessary to state so, since in that case no notice was served upon the
appellant there when the competent authority accepted the report of the
Inquiry Officer and confirmed the opinion that the punishment of dismissal
should be inflicted on him, and
no cause, therefore, could be shown by him.
F
On the other hand, by the first notice itself which communicated the
charges, the appellant
was called upon to show cause as to why he should
not be dismissed from service, although the notice further called upon the
appellant to state in reply whether
he wished to be heard in person and
whether he would produce his defence.
G
What are the duties of the Inquiry Officer appointed by the discipli
nary authority to conduct the inquiry,
is the next question and this Court
in A.N. D'Silva
v. Union of India, [1962)
Supp. 1 SCR 968 at 977 has in
terms held that the question of imposing punishment can arise after inquiry
is made and the report of the Inquiry Officer is received. It is for the
H punishing authority to propose the punishment and not for the inquiring
MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.] 599
authority to do so. The latter has, when so .required, to appraise the A
evidence, to record its conclusion and if it thinks proper to suggest the
appropriate punishment. But neither the conclusion on the evidence nor
the punishment which the inquiry authority
may regard as appropriate, is
binding upon the punishing authority. In that case, the charge served upon
the delinquent officer
by the Inquiry Officer itself incorporated the
proposed punishment. Hence it
was also observed that in the
communica
tion addressed by the Inquiry Officer the punishment proposed to be
imposed upon the appellant if he
was found guilty of the charges, could
not properly be set out.
Two things, therefore, emerge from this decision,
viz., that it is not the function of the Inquiry Officer to propose any
punishment even after he records findings of guilt against the delinquent
employee. Much less can the Inquiry Officer do
so at the stage of serving
the charges on the employee. Secondly, it
is for
the disciplinary authority
B
c
to propose the punishment after receipt of the report of the Inquiry Officer
which suggests that before the authority proposes the punishment, it must
have applied its mind to the evidence and the findings recorded
by the D
Inquiry officer.
Still further question that
was required to be answered was whether
when the disciplinary authority issued notice to the employee to show cause
against the punishment, proposed, the employee had the right also to
represent that he
was not guilty of the charge itself and the findings
recorded against him were wrong. This question
was squarely answered by
this Court in
Union of India v. H.C. Goel, [1964] 4 SCR 718. The Court
pointed out there that it was well-settled that the public servantentitled to
the protection of Article
311 must get two opportunities to defend himself.
He must have a clear notice of the charge which he is called upon to meet
before the departmental inquiry commences, and after he gets a notice and
is given the opportunity to offer his explanation, the inquiry must be
conducted according to the rules and consistently with the requirements,
of natural justice. At the end of the inquiry, the Inquiry Officer appreciates
E
F
the evidence, records his conclusions and submits his report to the
Govern
ment concerned. That is the first stage of the inquiry. After the report is G
received by the Government, the Government is entitled to consider the
report and the evidence laid against the delinquent public servant. The
Government
may agree with the report or may differ, either wholly or
partially, from the conclusions recorded in the report.
If the report makes
a finding in favour of the public servant and the Government agree with
H
600 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A the said finding, nothing more remains to be done, and the public servant
who
may have been suspended is entitled to reinstated with consequential
reliefs.
If the report makes findings in favour of the public servant and the
Government disagrees with the said findings and holds that the charges
framed against the public servant
-.re prima f acie proved, the Government
B
c
should decide provisionally what punishment should be imposed in the
public servant and proceed to issue a second notice against him in that
behalf.
If the Inquiry
Officer makes findings, some. of which are in favour
of the public servant and some against
him, the Government is entitled to
consider the whole matter and if it holds that some or all the charges
framed against the public servant are, in its opinion,
prim a f acie established
against
him, then also the government has to decide provisionally what
punishment should be imposed on the public servant and
give him notice
accordingly. The Court then proceeded to observe that
"it would thus be
seen that the object of the second notice is to enable the public servant to
satisfy the government on both the counts, one that he
is innocent of the
D charges framed against him and the other that even if the charges are held
proved against him, the punishment proposed to
be inflicted upon is unduly
severe. This position under Article
311 of the Constitution is substantially
similar to the position which governed the public servants under s.240 of
the Government of India Act,
1935". The Court also observed that the
E
F
decisions in The Secretary of State for India v. J.M. Lal, (1945) FCR
103,
High Commissioner for India and High Commissioner for Pakistan v. J.M.
Lal (75 IA 225) and Khem Chand v. Union of India & Ors.,[1958) SCR
1080, would show that it had never been suggested that the findings
recorded by the Inquiry officer concluded the matter and the Government
which appoints the Inquiry Officer and directs the inquiry is bound by the
said finding and must act on the basis that the said findings are final and
cannot be reopened.
It is obvious that the Inquiry
Officer holds the inquiry
against the employee
as a delegate of the disciplinary authority. The object
of the
is plan. It is to enable the Government to hold an investigation into
charges framed against the employee so that the Government can in due
G course consider the evidence adduced and decide whether the said charges
are proved or not. The interposition of the inquiry which
is held by a duly
appointed Inquiry
Officer does not alter the true legal position that the
charges are framed by the Government and it
is the Government which is
empowered to impose punishment on the delinquent public servant.
H Repelling the contention that the Government is bound to accept the
(
MANAGING DIRECTOR, ECIL v. KARVNAKAR [SA WANT, J.] 601
findings of the Inquiry Officer, the Court pointed out that if that argument A
was valid, the second notice would serve very little purpm.e. For at the
second stage, the opportunity which
is intended to be given to the public
servant
is to show cause not only against the proposed punishment but also
against the finding recorded against him and that opportunity would be
defeated because the Government cannot alter the said finding even if the
employee shows that the findings are incorrect. The Court then went on to
B
add that unless the statutory rule or the specific order under which the
officer
is appointed to hold an inquiry so required, the Inquiry Officer need
not make any recommendations
as to the punishment to be imposed. If,
however, the Inquiry Officer makes any recommendations in that behalf,
the said recommendations like his findings on the merits, are intended
merely to supply appropriate material for the considerations are binding
on the Government.
c
In Avtar
Singh, Police Constable v. The Inspector General of Police,_
Punjab, (1968) SLR 131 admittedly the findings of the Inquiry Officer were D
not communicated to the delinquent employee and he was only orally told
that it
was proposed to dismiss him. The Court in this context held that
every public servant
is entitled to have the whole of the matter brought to
his notice before he
was asked to show cause why particular punishment
should not be meted out to him, The Court has explained what it meant
by
"the whole of the matter" by stating that it is the findings on the charges E
against him which should be made known to him.
In State of Gujarat v. R.G. Teredesai & Anr., [1970] 1 SCR 251 this
Court held that the requirement of a reasonable opportunity would not be
satisfied unless the entire report of the Inquiry Officer including his
views F
in the matter of punishment were disclosed to the delinquent public
servant. The Inquiry Officer
is under no obligation or duty to make any
recommendations in the matter of punishment and his function merely
is
to conduct the inquiry in accordance with law
arid to submit the records
along with his findings. But if he has also made recommendations in the
matter of punishment "that
is likely to affect the mind of the punishing G
authority with regard to penalty or punishment to be
imposed" it must be
disclosed to the delinquent officer. Since such recommendations form part
of the record and constitute appropriate material for consideration of the
Government it would be essential that material should not be withheld
from him so that he could, while showing cause against the proposed H
602 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A punishment, make a proper representation. The entire object of supplying
a
copy of the report of the Inquiry 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".
B
In General Manager, Eastern Railway and Anr. v. Jawala Prasad Singh,
(1970] 3 SCR 271 it is reiterated that the Inquiry Officer ends with the
making of the report. The disciplinary authority has to consider the record
of the inquiry and arrive at its own conclusion on each charge. Even if the
inquiry committee makes a report absolving the employee of the charges
C against him, the disciplinary authority may on considering the entire record
come to a different conclusion and impose a penalty. A reference
is made
in this connection to
H.C. Gael's case (supra).
In
Uttar
Pradesh Govemment v. Sabir Hussain, (1975] Supp. SCR 354,
D it was held that in the absence of furnishing the copy of the report of the
Inquiry Officer, the plaintiff had been denied a reasonable opportunity of
showing cause against his removal.
It was also held that although Section
240 (3) of the GOI Act did not cover a case of\emoval", it did not mean
that the protection given
by the said section did not cover the case of "removal". From the constitutional stand-point "removal" and "dismissal"
E stand on the same footing except as to future employment. In the context
of section 240 (3), removal and dismissal are synonymous terms -the
former being only species of the latter. The broad test of "reasonable
opportunity" is whether in the given case the show cause notice issued to
the delinquent servant contained or
was accompanied by so much infor-
F mation as was necessary to
enable him to clear himself of the guilt, if
possible, even at that stage or in the alternative to show that the penalty
proposed
was much too harsh and disproportionate to the nature of the
charge established against him.
In
Union of India &Anr. v. Tulsiram
Patel & Ors., (1985] Supp. 2 SCR
G 131, this Court had specifically to consider the legal position arising out of
the 42nd Amendment of the Constitution
by which clause (2) of Article
311 was amended and the part of the said clause, viz.,
"and where it is
proposed, after such inquiry, to impose on him any such penalty he has
been given reasonable opportunity of making representation on the penalty
H proposed, but only on the basis of the evidence adduced during such
r
. MANAGING DIRECTOR, ECIL v. KARUNAKAR[SAWANT,J.] 603
inquiry" was deleted. In that decision, this Court has not dealt with the A
procedure to be followed by the disciplinary authority after the Inquiry
Officer's report
is received by it. The question whether the delinquent
employee should be heard
by the disciplinary authority to prove his in
nocence of the charges levelled against him when they are held to have
been proved
by the
Inquiry·Officer, although he need not be heard on the B
question of the proposed penalty, was neither raised nor answered. This
decision, therefore,
is not helpful for deciding the said question.
In
Secretary, Central Board of Excise & Customs Ors. v. K.S. Mahalin
gam, [ 1986) 3
SCR 35, again the question did not arise as to whether the
report of the Inquiry Officer should be furnished to the delinquent
C
employee as a part of the reasonable opportunity at the first stage, viz.,
before the disciplinary authority took its decision on the said report and
came to its own conclusions with regard to the guilt or innocence of the
employee. The contention raised there
was with regard to the non-supply
of the report to show cause against the penalty proposed.
Since it was D
raised in ignorance of the 42nd Amendment of the Constitution, this Court
rejected the said contention.
In
Ram Chander v. Union of India & Ors., [1986)
3 SCR 103 which
is a decision of two learned Judges of this Court, it was lamented that after
the 42nd Amendment of the Constitution, the question still remained
as to E
the stage when the delinquent Government servant would get the oppor
tunity of showing that he had not been guilty of any misconduct so
as to
deserve
any punishment or that the charge proved against him were not of
such a character
as to merit the extreme penalty of dismissal or even of
removal or reduction in rank and that
any of the lesser punishments ought F
to have been sufficient in his case. The Court, however, felt that it was
bound by the majority decision in Tulsiram Patel's case( supra). The Court
further went on to observe that in
view of the constitutional change and
the decision of the majority in
Tulsiram Patel's case (supra), the only stage
at which now a
civil servant can exercise the said valuable right was by
enforcing his remedy by way of a departmental appeal or revision or by G
way of judicial review.
In
Union of India &
Ors. v. E. Bashyan,(1988).3 SCC 209, the question
squarely arose before a Bench of
two learned Judges of this Court as to
whether the failure to supply a copy of the report of the Inquiry Officer to H
604 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A the delinquent employee before the disciplinary authority makes up its
mind and records the finding of guilt, would constitute violation of Article
311 (2) of the Constitution and also of the principles of natural justice. It
was opined that in the
event of failure to furnish the report of the Inquiry
Officer, the delinquent employee
is deprived of crucial and critical material
B
which is taken into account by the real authority which holds him guilty,
viz., the disciplinary authority. According to the Court, it is the real
authority because the Inquiry Officer does no more than act
as a delegate
and furnishes the relevant material including
his own assessment regarding
the guilt, to assist the disciplinary authority who alone records the effective
finding. The non-supply of the copy of the report would, therefor, con-
C stitute violation of the principles of natural justice and accordingly will be
tantamount to denial of reasonable opportunity within meaning of Article
311 (2) of the Constitution. It was observed that there could be glaring
errors and omissions in the report or it may have been based on no
evidence or rendered in disregard of or by overlooking evidence.
If the
D report is not made available to the delinquent employee, this crucial
material which enters into the consideration of the disciplinary authority
never comes to be known to the delinquent and he gets no opportunity to
point
out such errors and omissions and to disabuse the mind of the
disciplinary authority before he
is held guilty. The Court then specifically
pointed out that serving a copy of the inquiry report on the delinquent,
E employee to enable him to point out anomaly, if any before finding of guilt
is recorded by the disciplinary authority, is altogether a different matter
from serving a second show cause notice against the penalty to be imposed
which has been dispensed with by virtue of the amendment of Article
311
(2) by the 42nd Amendment of the Constitution. The Court then found that
F
the
sa:J point required consideration by a larger Bench and referred the
matter to Hon'ble the Chief Justice for placing it before a larger bench.
5.
Since it is contended that in K. C. Asthana etc. etc. v. State of U.P.
& Ors. etc. etc., [1988] 3 SCC 600, a Bench of three learned Judges has
taken a
view that it is not necessary to furnish the report of the Inquiry
G Officer to the delinquent employee before the disciplinary authority arrives
at its conclusions, it
is necessary to consider the said authority a little
closely.
In that case, pursuant to the direction of the High Court, an inquiry
was conducted by the Administrative Tribunal under the Uttar
Pradesh
Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 against the
H petitioner who was a Munsiff Magistrate. The charge against him was that
..:.
MANAGINGDIRECTOR,ECIL v. KARUNAKAR[SAWANT,J.] 605
he had demanded bribe from a plaintiff in a suit pending before him. After A
completion of the inquiry, the entire matter was considered by the Full
Court of the High Court which approved the findings of the Administrative
Tribunal holding the writ petitioner guilty. The High Court thereafter
requested the Governor to remove the petitioner from service and the
impugned order terminating the services of the petitioner was accordingly
passed. The petitioner challenged the order under Article 32 of the Con
stitution. The petitioner had also filed and application under Article
226
B
of the Constitution before the Allahabad High Court
which· was. dismissed
in limine. The appeal against the said order was also heard along with the
writ petition. One of the contentions raised before this Court by the counsel
for the petitioner
was that a copy of the report of the Administrative
Tribunal
was not made available to the petitioner and this must be held to
have vitiated the subsequent proceedings including the impugned order of
punishment. In this
connection, a reference was made to the explanation
c
to sub-rule (3) of Rule 9 of the said Rule providing that a copy of the
recommendations of the Tribunal
as to the penalty should be furnished to D
the charged Government servant. As against this, the
learned counsel for
the respondent-State of U.P. and others pointed out that after the 42nd
Amendment of the Constitution the said Explanation
was dropped. The
Court, therefore, observed
as follows: "The question of service of copy of the report arose on account of E
a right of a second show cause notice to the government servant
before the 42nd Amendment and since present disciplinary
proceeding was held later, the petitioner cannot legitimately
demand a second opportunity. That being the position, non-service
of a copy of the report
is
immaterial." F
In this view of the matter, the Court dismi&Sed the writ petition. It
would thus be clear that the contention before this Court in that case was
that the copy of the report of the inquiring authority
was necessary to
show
cause at the second stage, i.e., against the penalty proposed. That was also
how the contention was understood by this Court. The contention was not G
and at least it was not understood to mean by this Court, that a copy of
the report was necessary to prove the innocence of the employee before
the disciplinary authority arrived at its conclusion with regard to the guilt
or otherwise on the basis of the said report. Hence,
we read nothing in this
decision which has taken a
view contrary to the view expressed in E. H
,
606 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A Bashyan's case (supra) by a Bench of two learned Judges or to the view
taken by three learned Judges in Union of India & India Ors. v. Mohd.
Rarnzan Khan, [1991] 1 SCC 588.
B
In Mohd. Rarnzan Khan's case (supra), the question squarely fell for
consideration before a Bench of three learned Judges of this Court,
viz.,
that although on account of the 42nd Amendment of the Constitution, it
was no longer necessary to issue a notice to the delinquent employee to
show cause against the punishment proposed and, therefore, to furnish a
copy of the Inquiry Officer's report along with the notice to make repre
sentation against the penalty, whether it
was still necessary to furnish a copy
C of the report to him to enable him to make representation against the
findings recorded against him in the report before the disciplinary authority
took its
own decision with regard to the guilt or otherwise of the employee
by taking into consideration the said report. The Court held that whenever
the Inquiry Officer
is other than the disciplinary authority and the report
D of the Inquiry Officer holds the employee guilty of all or any of the charges
with proposal for any punishment or not, the delinquent employee
is
entitled to a copy of the report to enable him to made a representation to
the disciplinary authority against it and the non-furnishing of the report
amounts to a violation of the rules of natural justice. However, after taking
this
view, the Court directed that the law laid down there shall have
E prospective application and the punishment which is already imposed shall
not be open to challenge on that ground. Unfortunately, the Court by
mistake allowed all the appeals which were before it and thus set aside the
disciplinary action in every case, by failing to notice that
the. actions in those
cases were prior to the said decision. This anomaly was noticed at a later
F
stage but before the final order could be reviewed and rectified, the present
reference
was already made, as stated above, by a Bench of three learned
Judges. The anomaly has thus lent another dimension to the question to
be resolved in the present case.
6. The origins of the law can also be traced to the principles of
G natural justice, as developed in the following cases: In A.K Kraipak & Ors.
etc. v.
Union of India & Ors., [1970] 1 SCR 457, it was held that the rules
of natural justice operate in areas not covered by any
law. They do not
supplant the law of the land but supplement
it. They are not embodied
rules and their
aim is to secure justice or to prevent miscarriage of justice.
H If that is their purpose, there is no reason why they should not be ap-
MANAGING DIRECTOR, ECIL v. KARUNAKAR[SAWANT,J.] 607
plicable to administrative proceedings also especially when it is not easy to A
draw the line that demarcates administrative inquires from quasi-judicial
ones.
An unjust decision in an administrative inquiry may have a more far
reaching effect than decision in quasi-judicial inquiry. It
was further ob
served that the concept of natural justice has undergone a great
deal of
change in recent years.
What particular rule of natural justice should apply
B
. to a given case must depend to a great extent on the facts and circumstan
ces of that case, the framework of the law under which the inquiry
is held
and the constitution of the tribunal or the body of persons appointed for
that purpose. Whenever a complaint
is made before a Court that some
principle of natural justice has been contravened, the Court has to decide
whether the observance of that rule
was necessary for a just decision on
the facts of that case. The rule that inquiry must be held in good faith and
without bias and not arbitrarily or unreasonably is now included among the
principles of natural justice. c
In Chainnan, Board of Mining Examination & Another v. Ramjee, D
(1977] 2
SCR 904, the Court has observed that natural justice is not an
unruly horse, no lurking land-mine, nor a judicial cure-all.
If fairness is
shown by the decision-maker to the man proceeded against, the
fol"'T!
features and the fundamentals of such essential processual propriety being
conditioned by the facts and. circumstances of each situation, no breach of
natural justice can be complained of. Unnatural expansion of natural
E
justice, without reference to the administrative realities and other factors
·
of a given case, can be exasperating. The Courts cannot look at law in the
abstra~t or natural justice as a mere artifact. Nor can they fit into a rigid
mould the concept of reasonable opportunity.
If the totality of circumstan-
ces satisfies
the. Court that the party visited with adverse order has not F
suffered from denial of reasonable opportunity, the Court will decline to
be punctilious or fanatical as if the rules of natural justice were sacred
scriptures.
In Institution of Chartered Accountants of India v. L.K. Ratna and G
Others,AIR (1987)
SC 71, Charan Lal Sahu etc. etc. v. Union of India &
Ors., (1990] 1 SCC 613 [Bhopal Gas leak disaster Cases) and C:B. Gautam
v. Union of India & Others, (1993] 1 SCC 78, the doctrine that the principles
of natura} justice must be applied in the unoccupied interstices of the
statute unless there is a clear mandate to the contrary, is reiterated.
H
608 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A 7. What emerges from the above survey of the law on the subject is
B
c
as follows:
Since the Government of India Act, 1935 till the 42nd Amendment
of the Constitution, the Government servant had
always the right to receive
report of the Inquiry Officer/authority and to represent against the findings
recorded in it when the Inquiry Officer/authority
was not the disciplinary
authority. This right
was however, exercisable by him at the second stage
of the disciplinary proceedings
viz., when he was served with a notice to
show cause against the proposed penalty. The issuance of the notice to
show cause against the penalty necessarily required the furnishing of a copy
of the inquiry officer's report since,
as held by the Court, the right to show
cause against the penalty also implied the right to represent against the
findings on the charges. This
was considered to be an essentiar part of the
'reasonable opportunity' incorporated earlier in Section
240 (3) of the GOI
Act and later in Article
311 (2) of the Constitution as originally enacted.
D The right to receive the Inquiry Officer's report and to show cause against
the findings in the report
was independent of the right to show cause
against the penalty proposed. The
two rights came to be confused with each
other because
as the law stood prior to the 42nd Amendment of the
Constitution, the
two rights arose simultaneously only at the stage when a
notice to shown cause against the proposed penalty
was issued. If the
E disciplinary authority after considering the Inquiry officer's report had
dropped the proceedings or had decided to impose a penalty other than
that of dismissal, removal or reduction in rank, there
was no occasion for
issuance of the notice to show cause against the proposed penalty.
In that
case, the employee had neither the right to receive the report and represent
F
against the finding of guilt not the right to show cause against the proposed
penalty. The right to receive the report and to represent against the
findings recorded in it
was thus inextricably connected with the acceptance
of the report by the disciplinary authority and the nature of the penalty
proposed. Since the 42nd Amendment of the Constitution dispensed with
the issuance of the notice
to show cause against the penalty proposed even
G if it was dismissal, removal or reduction in rank, some courts took view that
the Government servant
was deprived of his right to represent against the
findings of guilt
as well. The error occurred on account of the failure to
distinguish the
two rights which were independent of each other.
H While the right to represent against the findings in the report is part
I
MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.] 609
of the reasonable opportunity available during the first stage of the inquiry A
viz., before the disciplinary authority takes into consideration the -findings
in the report, the right
to show cause against the penalty proposed belongs
to the second stage when the disciplinary authority has considered the
findings
in the report and has come to the conclusion with regard to the
guilt of the employee and proposes
to award penalty on the basis of its
conclusion. The first right
is the right to prove innocence. The second right
is
to plead for either no penalty or a lesser penalty although the conclusion
regarding. the guilt
is accepted. It is the second right exercisable at the
second stage which
was taken away by the 42nd Amendment.
The reason
why the right to receive the report of the Inquiry
Officer
is considered an ess.ential part of the reasonable opportunity at the first
stage and also principle of natural justice
is that the findings recorded by
B
c
the Inquiry
Officer form an important material before the disciplinary
authority which along with the evidence
is taken into consideration by it to
come to its conclusion. It is difficult to say in advance, to what
exlent the. D
said findings including the punishment, if any, recommended in the report
would influence the disciplinary authority while drawing its conclusions.
The findings further might have been recorded without considering the
relevant evidence on record, or by misconstruing it or unsupported by it.
If such a finding is to be one of the documents to be considered by the
disciplinary authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain and controvert it
before he
is condemned. It is the negation of the tenets of justice and a
denial of fair opportunity
to the employee to consider the findings recorded
by a third party like the Inquiry
Officer without giving the employee an
opportunity
to reply to it. Although it is true that the disciplinary authority
E
F
is supposed to arrive at its own findings on the basis of the evidence
recorded in the inquiry, it
is also equally true that the disciplinary authority
takes into consideration the findings recorded by the Inquiry
Officer along
with the evidence on record. In the circumstances, the findings of the
Inquiry Officer do constitute an important material before the disciplinary
authority which
is likely to influence its conclusions. If the Inquiry
Officer G
were only to record the evidence and forward the same to the disciplinary
authority, that would not constitute any additional material before the
disciplinary authority of which the delinquent employee has no knowledge.
However, when the Inquiry Officer goes further and records his findings,
as stated above, which may or may not be based on the evidence on record H
610 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A or are contrary to the same or in ignorance of it, such findings are an
additional material unknown to the employee but are taken into considera
tion
by the disciplinary authority while arriving at its conclusions. Both the
dictates of the reasonable opportunity
as well as the principles of natural
justice, therefore, require that before the disciplinary authority comes to
B
its own conclusion, the delinquent employee should have an opportunity to
reply to the Inquiry Officer's findings. The disciplinary authority
is then
required to consider the
e"idence, the report of the Inquiry Officer and
the representation of the employee against
it.
It will thus be seen that where the Inquiry Officer is other than the
C disciplinary authority, the disciplinary proceedings break into two stages.
The first stage ends when the disciplinary authority arrives at its conclusion
on the basis of the evidence, Inquiry Officer's report and the delinquent
employee's reply to it. The second stage begins when the disciplinary
authority decides to impose penalty on the basis of its conclusions.
If the
D disciplinary authority decides to drop the disciplinary proceedings, the
second stage
is not even reached. The employee's right to receive the
report
is thus, a part of the reasonable opportunity of defending himself in
the first stage of the inquiry.
If this right is denied to him, he is in effect
denied the right to defend himself and to prove his innocence in the
disciplinary proceedings.
E
The position in law can also be looked at from a slightly different
angle. Article
311 (2) says that the employee shall be given a
"reasonable
opportunity of being heard in respect of the charges against him". The
findings on the charges given
by a third person like the Inquiry Officer,
F particularly when they are not borne out
by the evidence or are arrived at
by overlooking the evidence or misconstruing it, could themselves con
stitute
new unwarranted imputation. What is further, when the proviso to
the said Article states that
"where it is proposed after such inquiry to
impose upon him
any such penalty such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not be
G necessary to
give such person any opportunity of making representation on
the penalty
proposed", it in effect accepts two successive stages of differing
scope. Since the penalty is to be proposed after the inquiry, which inquiry
in effect
is to be carried out by the disciplinary authority (the Inquiry
Officer being
only his delegate appointed to hold the inquiry and to assist
H him), the employee's reply to the Inquiry Officer's report and consideration
::r.l"
MANAGING DIRECTOR, ECIL v. KARUNAKAR (SAWANT,J.) 611
of such reply by the disciplinary authority also constitute an integral part A
of such inquiry. The second stage follows the inquiry so carried out and it
consists of the issuance of the notice to show cause against the proposed
penalty and of considering the reply to the notice and deciding upon the
penalty. What
is dispensed with is the opportunity of making representation
on the penalty proposed and not of opportunity
of making representation B
on the report of the Inquiry Officer. The latter right was always there. But
before the 42nd Amendment of the Constitution, the point of time at which
it
was to be exercised had stood deferred till the second stage viz., the stage
of considering the penalty. Till that time, the conclusions that the discipli
nary authority might have arrived at both with regard to the guilt of the
employee and the penalty to
be imposed were only tentative. All that has C
happened after the 42nd Amendment of the Constitution is to advance the
point of time at which the representation of the employee against the
Inquiry Officer's report would be considered. Now, the disciplinary
authority has to consider the representation of the employee against the
report before it arrives at its conclusion with regard to
his guilty or D
innocence of the charges.
Hence it has to be held that when the Inquiry
Officer is not the
disciplinary authority, the delinquent employee has a right to receive a copy
of the Inquiry Officer's report before the disciplinary authority arrives at
its conclusions with regard to the guilt or innocence of the employee with
E
regard to the charges levelled against him. That right is a part of the
employee's right to defend himself against the charges levelled against him.
A denial of the Inquiry Officer's report before the disciplinary authority
takes its decision on the charges,
is a denial of reasonable opportunity to
the employee to prove his innocence and
is a breach of the principles of F
natural justice.
Hence the incidental question raised above may be answered
as
follows:
(i) Since the denial of the report of the Inquiry
Officer is a denial G
of reasonable opportunity and a breach of the principles of natural
justice, it follows that the statutory rules
if any, which deny the
report to the employee are against the principles of natural justice
and, therefore, invalid. The delinquent employee
will, therefore be
entitled to a copy of the report even
if the statutory rules do not H
A
B
c
612
SUPREME COUR'i' REPORTS (1993) SUPP. 2 S.C.R.
permit the furnishing of the report or are silent on the subject.
(ii) The relevant portion of Article 311(2) of the Constitution
is a
follows: "(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an enquiry in which
he has been informed of the charges against liim and given a
reasonable opportunity of being heard in respect of those
charges."
Thus the Article makes it obligatory to hold an inquiry before the employee
is dismissed or removed or reduced in rank. The Article, however, cannot
be construed to mean that it prevents or prohibits the inquiry when
punishment other than that of <l;smissal, removal or reduction in rank is
awarded. The procedure to be followed in awarding other punishments is
laid down in the service rules governing the employee. What is further,
D Article 311 (2) applies only to members of the civ:l services of the Union
or an all-India service or a civil service of a State or to the holders of the
civil posts under the Union or a State. In the matter of all punishments
both Government servants and others are governed by their service rules.
Whenever, therefore, the service rules contemplate an inquiry before a
E
F
punishment is awarded, and when the Inquiry Officer is not the disciplinary
.
authority the de .. uquent employee will have the right to receive the Inquiry
Officer's report notwithstanding the nature of the punishment.
(iii) Since it is the right of the employee to have the report to defend
himself effectively, and he would not known in advance whether the report
is in his favour or against him, it will not be proper to construe his failure
to ask for the report,
as the waiver of his right. Whether, therefore, the
·employee asks for the report or not, the report has to be furnished to him.
(iv) In the view that we have taken, viz., that the right to make
representation to the disciplinary authority against the findings recorded
G in the inquiry report is an integral part of the opportunity of defence
against the charges and
is a breach of principles of natural justice to deny
the said right, it is
only appropriate that the law laid down in Mohd.
Ramzan Khan's case (supra) should apply to employees in all estab
lishments whether Government or non-Government, public or private. This
H will be the case whether there are rules governing the disciplinary proceed-
·
MANAGING DIRECTOR, ECIL v. KARVNAKAR (SAWANT,J.) 613
ing or not and whether they expressly prohibit the furnishing of the copy A
of the report or are silent on the subject. Whether the nature of punish
ment, further, whenever the rules require an inquiry to be held, for inflict-
ing the punishment in question, the delinquent employee should have the
benefit of the report of the Inquiry Officer before the disciplinary authority
records its findings
on the charges levelled against him. Hence question
(iv) is answered accordingly.
(v) The next question to be answered is what is the effect on the
order of punishment when the report of the Inquiry Officer
is not furnished
to the employee and what relief should be granted to him in such cases.
The answer to this question has to be relative to the punishment awarded.
When the employee
is dismissed or removed from service and the inquiry
B
c
is set aside because the report is not furnished to him, in some cases the
non-furnishing of the report
may have prejudiced him gravely while in
other cases it may have made no difference to the ultimate punishment
awarded
to him. Since to direct reinstatement of the employee with back- D
wages in all cases is to reduce the rules of justice is a mechanical ritual the
theory of reasonable opportunity and the principles of natural justice have
been evolved to uphold the rule of law and to assist the individual to
vindicate his just rights. They are not incantations to be invoked nor rites
to be performed on
all and sundry occasions. Whether in fact, prejudice
has been caused to the employee or not on account of the denial to
him
of the report, has to be considered on the facts and circumstances of each
case. Where, therefore, even after the furnishing of the report, no different
consequence would have followed, it would
be perversion of justice to
permit the employee to resume duty and to get
'an the consequential
benefits.
It amounts to rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and exasperating limits.
It
amounts to an
"unnatural expansion of natural jus,tice" which in its~lf is
antithetical to justice.
E
F
Hence, in all cases where the Inquiry Officer's report is not furnished
to the delinquent employee in the disciplinary proceedings, the Courts and
G
Tribunals should cause the copy of the report to be furnished to the
aggrieved employee
if he has not already secured it before coming to the
Court(fribunal, and give the employee an opportunity to show how his or
her case
was prejudiced because of the non-supply of the report. If after
hearing the parties, The
Court(fribunal comes to the conclusion that the H
614
SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A non-supply of the report would have made no difference to the ultimate
findings and the punishment
given, the Court/Tribunal should not interfere
with the order of punishment. the Courts/Tribunal should not mechanically
set aside the order of punishment on the ground that the report was not
furnished
as is regrettably being done at present. The courts should avoid
B resorting to short-cuts.
Since it is the Court/Tribunals which will apply their
judicial mind to the question and
give their reasons for setting aside or
not setting aside the order of punishment, (and not any internal appellate
of revisional authority), there would be neither a breach of the principles
of natural justice nor a denial of the reasonable opportunity. It
is only if
the Court/Tribunal finds that the furnishing of the repcrt would have made
C a difference to the result in the case that it should set aside the order of
punishment. Where after following the above procedure, the
Court/Tribunal sets aside the order of punishment, the proper relief that
should be granted
is to direct reinstatement of the employee with liberty
to the authority/management to proceed with the inquiry,
by placing the
D employee under suspension and continuing the inquiry from the stage of
furnishing
him with the report. The question whether the employee would
be entitled to the back-wages and other benefits from the date of his
dismissal to the date of
his reinstatement if ultimately ordered, should
invariably
be left to be decided by the authority concerned according to
law, after the culmination of the proceedings and depending on the final
E outcome. If the employee succeeds in the fresh inquiry and is directed to
be reinstated, the authority should be at liberty to decide according to law
how it
will treat the period from the date of dismissal till the reinstatement
and to what benefits,
if any and the extent of the benefits, he will be
entitled. The reinstatement made
as a result of the setting aside of the
F inquiry for failure to furnish the report, should be treated as a reinstate
ment for the purpose of holding the fresh inquiry from the stage of
furnishing the report and no more, where such fresh inquiry
is held. That
will also be the correct position in law.
In this connection we may refer to a decision of this Court in State
G Bank of India v. Shri N. Sundara Money, [1976] 3
SCR 160, where the Court
has shown the proper course to be adopted where the termination of
service of an employee
is faulted on a technical ground. This was a case
where an employee
was appointed as Cashier off and on by the
State Bank
of India between July
31, 1973 and August 29, 1973. Together with the
H earlier employment, this nine days' employment during the said period had
MANAGING DIRECTOR, ECIL v. KARVNAKAR [SA WANT, J.] 615
ripened into 240 days of broken bits of service. The employment, however, A
was terminated without notice or payment of retrenchment compensation.
The Court moulded the relief taking into consideration the long period
which had passed and directed that the employee would be put back to the
same position where he left
off, but his new salary will
b_e what he would
draw were he to be appointed in the same post "today''
de novo. He was B
further directed to be ranked below all permanent employees in that cadre . and to be deemed to be a temporary hand till that time. He was not allowed
to claim
any advantages in the matter of seniority. As for the emoluments,
he
was left to pursue other remedies, if any.
Questions (vi) and (vii) may be considered together. As has been C
discussed earlier, although the furnishing of the Inquiry Officer's report to
the delinquent employee
is a part of the reasonable opportunity available
to him to defend himself against the charges, before the 42nd Amendment
of the Constitution, the stage at which the said opportunity became
avail-
able to the employee had stood deferred till the second notice requiring D
him to show cause
against the penalty, was issued to him. The right to prove
his innocence to the disciplinary authority
was to be exercised by the
employee along with his right to show cause
as
to why no penalty or lesser
penalty should be awarded. The proposition of law that the
two rights were
independent of
each other and in fact belonged to two different stages in
the inquiry came into sharp focus only after the 42nd Amendment of the
E
Constitution which abolished the second stage of the inquiry, viz., the
inquiry into the nature of punishment.
As pointed out earlier, it was
mooted but not decided in E. Bashyan's case (supra) by the
learned Judges
of this Court who referred the question to the larger Bench.
It has also
been pointed out that in
K.C. Asthana's Case( supra), no such question was p
either raised or decided. It was for the first time in Mohd. Ramzan Khan's
case
(supra) that the question squarely fell for decision before this Court.
Hence till
20th November, 1990, i.e., the day on which Mohd. Ramzan
Khan's case
(supra) was decided, the position of law on
·the subject was
not settled by this Court. It is for the first time in Mohd. Ramzan Khan's
case
(supra) that this Court laid down the law. That decision made the law G
laid down there prospective in operation, i.e., applicable to the orders of
punishment passed after
20th November, 1990. The law laid down was no
applicable to the orders of punishment passed before that date not
withstanding the fact that the proceedings arising out of the same were
pending in courts after that date. The said proceedings had to be decided H
616 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A according to the law prevalent prior to the said date which did not require
the authority
to supply a copy of the Inquiry
Officer's report to the
employee. The
only exception to this was where the service rules with
regard
to the disciplinary proceedings themselves made it obligatory to
supply a copy
of the report to the employee.
B
c
However, it cannot be gainsaid that while Mohd. Ramzan Khan's case
(supra) made the law laid down there prospective in operation, while
disposing of the cases which were before the Court the Court through
inadvertence
gave relief to the employees concerned in those cases by
allowing their appeals and setting aside the disciplinary proceedings. The
relief granted
was obviously per incuriam. The said relief has, therefore,
to be confined
only to the employees concerned in those appeals. The law
which
is expressly made prospective in operation there, cannot be applied
retrospectively.gn account of the said error. It is now well-settled that the
courts can make the law laid down by them prospective in operation to
D prevent unsettlement of the settled positions, to prevent administrative
chaos 1nd to meet the ends of justice. In this connection,
we may refer to
some well-known decision on the point.
In
I.C. Golak Nath & Ors. v. State of Punjab & Anr., [1967] 2 SCR
762, dealing with the question as to whether the decision in that case should
E be given prospective or retrospective operation, the Court took into con
sideration the fact that between 1950 and 1967, as many as twenty amend
ments were made
in the Constitution and the legislatures of various
States
had made laws bringing about an agrarian revolution in the country. These
amendments and legislations were made on the basis of the correctness of
p the decisions in
Sri Sankari Prasad Singh Deo etc. v. Union of India and
State of Bihar etc., [1952] SCR 89 and Sajjan Singh v. State of Rajasthan,
[1965] 1 SCR 933 viz., that the Parliament had the power to amend the
fundamental rights and that Acts in regard to estates were outside the
judicial scrutiny on the ground they infringed the said rights. The Court
then stated that
as the highest Court in the land, it must evolve some
G reasonable principle to meet
the said extra-ordinary situation. The Court
pointed out that there
was an essential distinction between the Constitution
and the statutes. The Courts are expected to
and they should interpret the
terms of the Constitution without doing violence to the language to suit the
expending needs of the society.
In this process and in a real sense, they
H make laws. Though it is not admitted, such role of this Court is effective
MANAGING DIRECTOR, ECIL v. KARUNAKAR[SAWANT,J.] 611
and cannot be ignored. Even in the realm of ordinary statutes, the subtle A
working of the process is apparent though the approach is more conserva-
tive and inhibitive. To meet the then extraordinary situation that may be
caused by the said decision, the Court felt that it must evolve some doctrine
which had roots in reason and precedents
so that the cast may be preserved
and the future protected. The Court then referred to
two doctrines familiar B
to American Jurisprudence, viz., Blackstonian view that the Court was not
to pronounce a new rule but to maintain and expound the old one and,
therefore, the Judge did not make law but
only discovered of found the
true
law. That view would necessarily make the law laid down by the Courts
retrospective in operation. The Court, therefore, preferred the opinion.
The Court, therefore, preferred the opinion of justice Cardozo which tried
C
to harmonise the .doctrine of prospective over-ruling with that of Stare
decisis expressed in Great Northern Railway v. Sunburst
Oil & Ref Co.,
[1932] 2537 U.S. 358, 77 L.ed. 360. The court also referred to the decisions
subsequent to
Sunburst and to the
"Practice Statement (Judicial Prece
dent)" issued by the House of Lords recorded in (1966) 1 W.L.R. 1234 and D
pointed out that the modern doctrine as opposed to the Blackstonian
theory
was suitable for a fast moving society. It was a pragmatic solution
reconciling the
two doctrines.
The Court found law but restricted its
operation to the future thus enabling it to bring about a smooth transition
by correcting its errors without disturbing the impact of those errors on
the past transactions. It was left to the discretion of the court to prescribe E
the limits of the retroactivity. Thereby, it enabled the Court to mould the
reliefs to meet the ends of justice. The Court then pointed out that there
was no statutory prohibition against the Court refusing to give retroactivity
to the law declared
by it. The doctrine
cif res judicata precluded any scope
for retroactivity in respect of a subject matter that had been finally decided
p
between the parties. The Court pointed out that the Courts in this land
also,
by interpretation, reject retroactivity of statutory provisions though
couched in general terms on the ground that they affect vested rights. The
Court then referred to Articles
141 and 142 to point out that they are
conched in such wide and elastic terms
as to enable this Court to formulate
legal doctrines to meet the ends of justice. The only limitation therein
is G
reason, restraint and injustice. These Articles are designedly made com
prehensive to enable the Supreme Court to declare
law and to give such
direction or pass such order
as is necessary to do complete justice. The
Court then held that in the circumstances to deny the power to the
H
618
SUPREME COURT REPORTS (1993] SUPP.2S.C.R.
A Supreme Court to declare the operation of law prospectively on the basis
of some outmoded theory that the Court only finds law but does not make
it
is to make ineffective a powerful instrument of justice placed in the
hands of the highest judiciary of this land. The
Court then observing that
it
was for the first time called upon to apply the doctrine of prospective
B overruling evolved in a different country under different circumstances,
stated that it would like
to move warily in the beginning.
Proceeding
further, the Court laid down the following propositions:
c
D
"(1) The doctrine of prospective over-ruling can be invoked· only
in matters arising under our Constitution;
(2) it can be applied
only by the highest court of the country, i.e., the
Supreme Court
as it has the constitutional jurisdiction to declare law binding on
all the courts in India; (3) the scope of the retroactive operation
of the law declared
by the
Supreme Court superseding its earlier
decisions
is left to its discretion to be moulded in accordance with
the justice of the cause or matter before
it."
The Court then declared that the said decision will not affect the
validity of the Constitution (Seventeenth Amendment) Act,
1964 or other
amendments made to the Constitution taking
away or abridging the fun
damental rights. The
Court also declared that in future Parliament will
E have no power to amend Part III of the Constitution so as to take away or
abridge the fundamental rights.
Accepting the lead given in the above decision, this Court has since
extended the doctrine
to the interpretation of ordinary statutes as well.
F In Warnan Rao &
Ors. etc. etc. v. Union of India & Ors., [1981] 2 SCR
1, the question involved was of the validity of the Maharashtra Agricultural
Lands (Ceiling on Holdings) Act,
1961 and again the device of prospective
overruling
was resorted to.
In
Atarn Prakash v. State of Haryana &
Ors., (1986] 2 SCC 249, the
G question was of the validity of the Punjab Pre-emption Act, 1913. The
Court while holding that the relevant provisions of the Act were
ultra vires
the Constitution gave direction that the suits and appeals which were
pending in various courts
will be disposed of in accordance with the
declaration made in the said decision. Where, however, the decrees had
H become final they were directed to be
binding inter-parties and it was held
. MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.) 619
that the declaration granted by the Court with regard to the invalidity of A
the provisions of the Act would be of no avail to the parties to such decrees.
In
Orissa Cement Ltd. etc. etc. v. State of Orissa & Ors. etc. etc., [Supp.
1
sec
430, the question involved was about the validity of the royalty and
related charge
for
mining leases. Although the Court held that the levy was
invalid since its inception, the Court held that a finding regarding the B
invalidity of the levy need not automatically result in a direction for a
refund of all collections thereof made earlier. The Court held that the
declaration regarding the invalidity of a provision of the Act enabling
levy
and the determination of the relief to be granted were two different things
and, in the latter sphere,
th.e Court had, and it must be held to have, a C
certain amount of discretion. It is open to the Court to grant moulded
restricted relief in a manner most appropriate to the situation before it and
in such a
way as to advanc.e the interest of justice. It is not always possible
in all situations to
give a logical and complete effect to a finding.
On this
view, the Court refused to give a direction to refund to the assessees any .
of the amounts of cess collected until the date of the decision since such D
refund would work hardship and injustice to the State.
We may also in this connection refer to
Victor Linkletter v. Victor G.
Walker, 381
US 618, _14 L.ed. 2d 601, where it was held that a ruling which
is purely prospective does not apply even to the parties before the court. E
The Court held that in appropriate cases a court may in the interest of
justice make its ruling prospective and this applies in the constitutional
area where the exigencies of the situation require such an application.
The direction with regard to the prospective operation of the law laid
down in
Mohd. Ramzan Khan's case (supra) was followed by various F
Benches of this Court, viz.,
S.P. Viswanathan (I) v. Union of India & Ors.,
(1991] Supp. 2 SCC 269, Union of India & Ors. v. A.K Chatterjee, [1993] 2
SCC 191 and Managing DireCtor, Food' Corporation of India & Ors. v.
Narendra Kumar Jain, [1992] 2 SCC 400.
The apparent departure was in R.K. Vashisht v. Union of India & G
Ors., (1993] Supp. 1 SCC 431.. However, the employee there had made a
request for a copy of the inquiry report but it was not furnished to
him
prior to the issue of the order of dismissal. It is in these circumstances that
this Court, relying upon the proposition of law laid down in
Mohd. Ramzan
Khan's
case (supra) held that the order of dismissal
was vitiated. It is not H
620 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A clear from the decision whether the rules in that case required furnishing
of the copy and at what stage.
However, it has to be noticed that although
it is in Mohd. Ramzan
Khan's
case (supra) that this Court for the first time accepted and laid
B down the law that the delinquent employee is entitled to the copy of the
report before the disciplinary authority takes its decision on the charges
levelled against
him, Gujarat High Court in a decision rendered on 18th
July,
1985 in Dr. H.G.
Patel v. Dr. (Mrs.) K.S. Parikh & Ors., [1985] 2 GLR
(XXVI)
1385 and a full Bench of the Central Administrative Tribunal in
its decision rendered on
6.11.1987 in Premnath K. Shanna v.
Union of India
C & Ors.,(1988] 2 ASLJ 449 had taken a similar view on the subject. It also
appears that some High Courts and some Benches of the Central Ad
ministrative Tribunal have given retrospective effect to the law laid down
in
Mohd. Ramzan Khan's case (supra) notwithstanding the fact that the said
decision itself had expressly made the law prospective in operation. The
D fact, however, remains that a
1
though the judgments inH.G.
Patel's case and
Premnath K. Shanna's case (supra) as well as some of the decision of the
High Courts and of the Benches of the Central Administrative Tribunal
were either taking a similar
view prior to the decision in Mohd. Ramzan
Khan's
cast" (supra) or giving retrospective effect to the said view and those
decisions were not specifically challenged, the other decisions taking the
E same view were under challenge before this Court both before Mohd.
Ramzan Khan's case (supra) was decided and thereafter. In fact, as stated
in the beginning, the reference to this Bench
was made in one such case
as late as on the 5th August, 1991 and the matters before us have raised
the same question of
law. It has, therefore, to be accepted that at least till
p this Court took
the view in question in Mohd. Ramzan Khan's case (supra),
the law on the subject
was in a flux. Indeed, it is contended on behalf of
the appellants/petitioners before
us that the law on the subject is not settled
even till this day in
view of the apparent conflict in decisions of this Court.
The learned Judges who referred the matter to this Bench had also taken
the same
view. We have pointed out that there was no contradiction
G between the view.taken in Mohd. Ramzan Khan's case (supra) and the view
taken by this Court in the earlier cases, and the reliance placed on K.
C.
Asthana's case (supra) to contend that a contrary view was taken there was
not well-merited. It will, therefore, have to be held that notwithstanding
the decision of the Central Administrative Tribunal in
H.G.
Patel's case
H (supra) and of the Gujarat High Court in Premnath K. Shanna's case
· MANAGING DIRECTOR, ECIL v. KARUNAKAR [SA WANT, J.] 621
(supra) and of the other courts and tribunals, the law was in an unsettled A
condition till at least 20th November, 1990 on which day the Mohd. Ramzan
khan's case
was decided. Since the said decision made the law expressly
prospective in operation made the
law expressly laid down there will only
to those orders of punishment which are passed
by the disciplinary
authority after
20th November, 1990. This is so, notwithstanding the ul
timate relief which was granted there which, as pointed out earlier, was per
incuriam. No order of punishment passed before that date would be
challengeable on the ground that there
was a failure to furnish the inquiry
report to the delinquent employee. The proceedings pending in
court/tribunals in respect of orders of punishment passed prior to
20th
November, 1990 will have to be decided according to the law that prevailed
prior to the said date and not according to the law laid down in
Mohd.
Ramzan Khan's case
(supra). This is so notwithstanding the view taken by
the different Benches of the Central Administrative Tribunal or by the
High Courts or by this Court in
R.K Vashist's case (supra).
3. The need to take the law laid down in Mohd. Ramzan Khan's case
(supra) prospective in operation requires no emphasis. As pointed out
above, in
view of the unsettled position of the law on the subject, the
authorities/managements all over the country had proceeded on the basis
B
c
D
that there was no need to furnish a copy of the report of the Inquiry
Officer to the delinquent employee, and innumerable employees have been E
punished without giving them the copies of the reports. In some of the
cases, the orders of punishment have long since become final while other
cases are pending in courts at different stages. In many of the cases, the
misconduct has been grave and in others the deriial on the part of the
management to furnish the report would ultimately prove to be no more
F
than a technical mistake. To reopen all the disciplinary proceedings now
would result in grave prejudice to administration
_which will far outweigh
the benefit to the employees concerned. Both administrative reality and
public interests do not, therefore, require that the orders of punishment
passed prior to the decision in
Mohd. Ramzan Khan's case (supra) without
furnishing the report of the Inquiry
Officer should be disturbed and the G
disciplinary proceedings which gave to the said orders should be reopened
on that account. Hence
we hold as above.
In the
view we have taken, we direct that all the appeals and special
leave petitions be now placed before an appropriate Bench of this Court
H
622 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A for decision according to the law laid down here.
K.
RAMASWAMY, J. I have the benefit of reading the draft judg
ment of
my learned brother
P.B. Sawant, J.. While broadly agreeing with
his interpretation of Art.
311 (2), I disagree with his conclusion that the
application of
Mohd. Ramzan Khan's ratio to him and his companions was
B per incuriam To deal with certain aspects which would flow from our
judgment in this batch too. I feel
it expedient to express my views.
Since
my learned brother has critically examined in extenso the historical
development and the interpretation
given to
s.240(3) of the Govt. of India
Act,
1935 and Art. 311(2) of the Constitution of India vis-a-vis the Con-
C stitution 15th Amendment Act, 1963 and the Constitution 42nd Amend
ment Act,
1976. I would desist to tread the path once over. For continuity
of thought. I would broadly sketch the scope of the phrase "reasonable
opportunity of being
heard" at an enquiry into a charge and the action
proposed to be taken against a member of a
civil service or holder of a
D civil post engrafted in Art. 311 of the Constitution and the concept of the
principles of natural justice embedded as its part at an enquiry into the
charges against an employee of workman/officer of an authority under
Art.
12 of the Constitution, a workman/officer of an employer compendiously
called
"the delinquent" as the same principles are applicable to them all.
Before doing so it is necessary to state facts in brief in some sample cases.
E
The respondent B. Karunakar in the main appeal while working a&
a Sr. Technical Officer, was served on December 27, 1986 with a Memoran
dum of Charges setting out the misconduct, said to have been committed
by
him, with details thereof that he had unauthorisedly sold
T.V. sets. The
p enquiry officer appointed in this behalf conducted the enquiry, recorded
the evidence, given
him adequate opportunity to rebut the evidence.
On
March 13, 1987 the enquiry officer submitted his report finding that the
respondent acted fraudulently and dishonestly in conducting the business
of the appellant company and acted thereby prejudicially to the interest of
the company. On its consideration and agreeing with the findings, the
G disciplinary authority, by proceedings dated April 27, 1987, removed him
from service and on appeal it
was confirmed. The
Single Judge of the
Andhra Pradesh High Court dismissed his writ petition but on appeal, the
Division Bench,
by judgment dated March 29, 1991 relying on the Union
of India v. Mohd. Ramzan Khan,[1991] 1
SCC 588, allowed it. In this case
H the rules framed by the company does not require the supply of the report
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.] 623
to the delinquent. In civil Appeal No. 4148/91 Union of India v .. AJ. Shah, A
the respondent, while working as T.T.E. in S.E. Railway, was found to have
collected excess amounts from the passengers. Enquiry officer, after
giving
an opportunity to th respondent, submitted his report and the disciplinary
authority
ag~ee in with the findings of guilt recorded by the enquiry officer,
reverted
him to the grade of Ticket Collector in the pay
scale of Rs. 950 -B
1500 fixing his initial pay as Rs. 950. The CAT at Cuttack set it aside as
the enquiry report was not supplied to him holding that it resulted in denial
·of opportunity and violates the principles of natural justice. In Civil Appeal
No. 239of1994 (arising out of S.L.P. (C) No. 13813 of 1992) State of M.P.
v. A. Sheshagiri Rao, the respondent, while working as Executive Engineer,
was suspended by order dated 21st July, 1983. On October 21, 1983 he was C
served with a chargesheet. After conducting an enquiry the enquiry officer
submitted his report and the disciplinary authority while agreeing with the
findings of guilt, reverted him by an order dated October 21, 1987 as an
Asstt. Engineer.
It was set aside by the
Tribunal, holding that non-supply
of the enquiry report
was denial of opportunity under Art. 311(2) and it D
violates the principle of natural justice. In
S.L.P. (C) No. 17484 of 1991)
Union of India v. Mohammed Naimulla, the respondent was working as an
electrical fitter. On March 11, 1983, a chargesheet was issued. The enquiry
officer had given him reasonable opportunity and after completing the
enquiry subm_itted his report that the charges were proved against the
respondent. The disciplinary authority by an order dated April
29, 1988 E
removed him from service.
On appeal, it was confirmed. The Tribunal set
aside the order. In all these cases the enquiry report was not supplied. In
C.A. No. 302 of 1992, Bank of India v. Vinodchandra Balkrishan Pandit, the
respondent was served with a chargesheet on 10th August, 1982 accusing
him of having misconduct by taking illegal gratification in his discharge of F
official duties. The enquiry officer after giving full opportunity found him
to have received illegal gratification in the stated instances and was guilty
of the charges. The disciplinary authority agreed with the findings of the
enquiry officer; removed him from service by supplying
him a copy of the
enquiry report
along with the order of re~oval as required under Regula-
tion 9 of the Bank of India Employees (Disciplinary Appeal) Regulations, G
1976. Following the Ramzan Khan's case, the order was set aside. These
facts have been stated with a view to illustrate that
Ramzan Khan's ratio
was applied by the Court/Tribunals to the cases where rules are either
absent,
9r Statutory Rules were amended after Constitution 42nd Amend-
H
624 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A ment Act, 1976, omitting the obligation to supply a copy of the enquiry
report. The Banking Regulations enjoins
to supply it along with the order
when served.
B
c
"
D
E
F
G
H
It is settled law that the disciplinary authority, by whatever name
called, has power and jurisdiction to enquire into the misconduct
by him
self or
by his delegate and to impose the penalty for proved misconduct of
a delinquent. It
is a condition precedent that the chargesheet, statement of
facts, in support thereof and the record, if
any, need to be supplied to the
delinquent. The record,
if, bulky and not having been supplied, an oppor
tunity for inspection and to have copies thereof at his expenses, be given
as per rules, regulation or standing orders. The delinquent must be given
reasonable opportunity to submit his written statement. In case he denies
the charges and claims for enquiry, disciplinary authority or the enquiry
officer, if appointed, shall conduct the enquiry. The department should
examine the witness or prove the documents to establish the charge of the
imputed misconduct. The delinquent shall be
given an opportunity to
cross-examine the witnesses, if he
so desires to examine himself and to
examine his witnesses in rebuttal. After
giving an opportunity of being
heard the enquiry officer should consider the entire records and the
evidence and should submit his report to the disciplinary authority with
reasons and findings or conclusions in support of the proof or disproof of
each of the charge or charges,
as the case may be. He shall transmit the
record of enquiry and his report to the disciplinary authority.
In
Khem Chand v.
Union of India, [1957] SCR 1080, it was held thus:
"If the opportunity to show cause is to be a reasonable one it is
clear that he should be informed about the charge or charges
levelled against
him and the evidence by which it is sought to the
established, for it
is only then that he will be able to put forward
his defence.
It the purpose of this provision is to give the Govt.
servant an opportunity to exonerate himself from the charge and
if this opportunity
is to be a reasonable one he should be allowed
to show that the evidence against him
is not worthy of credence
or consideration and that he can only do if he
is given a chance
to cross-examine the witnesses called against him and to examine
himself or
any other
. witness in support of his defence. All this
appears to
us to be implicit in the language used in the clause, but
1
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.] 625
this does not exhaust his rights. In addition to showing that he has A
not been guilty of any misconduct so as to merit any punishment,
it
is reasonable that he should also have an opportunity to contend
that the charges proved against him do not necessarily require the
particular punishment proposed to be meted out to him.
He may
say, for instance, that although he has been guilty of some miscon- B
duct, it is not of such a character as to merit the extreme punish
ment of dismissal or even of removal or reduction in rank and that
any of the lesser punishments ought to be sufficient in his
case."
In Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 another
Constitution Bench held that the departmental proceedings taken against
C
the Govt. servant are not divisible into two compartments. There is just one
continuous proceeding though there are two stages in it. The first
is corning
to a conclusion on the evidence as to whether the charges raised against
the Govt. servant have been established of not and the second
is reached
only if it
is found that they are established. That stage deals with the action D
to be taken against the Govt. servant concerned. Therefore, from the stage
of service of the chargesheet till the imposition of punishment was con
sidered to be a continuous whole process consisting of the proof of the
charge and imposition of the punishment on the proved charge. In
Dr. M.N.
Dasanna
v. State of A.P., [1973) 2
SCC 378 at 383 a bench of three judges
held that the enquiry consists of recording evidence admitting documents
E
and generally completing the records
upon which the fmding would be
based.
It is. only after all the material has been placed on record by both
the sides, the stage of recording a finding would arise. In
Khardah Co. Ltd.
v. Their Workmen, [1964) 3
SCR 506 a Bench of three Judges held that it
is the duty of the inquiry officer to record clearly and precisely his con-p
clusions and to indicate briefly the reasons therefor, so that the Industrial
Tribunal can judge whether they are basically erroneous or perverse. In
that case since the reasons were not specifically recorded the court
quashed the order of termination. In
Union of India v.
H.C. Goel, [1964) 4
SCR 718, another Constitution bench held that the enquiry report along G
with the evidence recorded constitute the material on which the govt. has
ultimately to act, i.e. only the purpose for
the enquiry held by the com
petent officer and the report on which he makes as a result of the said
enquiry. The non-supply of
the copy of the report contravenes the principle
of reasonable opportunity envisaged under Art. 311(2) and also violates the
principle of natural justice.
If the dismissal order is based on no evidence H
626 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A then the order of dismissal is clearly illegal. In State of Maharashtra v. BA.
B
Joshi, (1969) 3 SCR 917, this court held that the report of the enquiry
officer
is found to influence the disciplinary authority; to deprive the
plaintiff of a copy of the report
was a handicap to the delinquent and he
was not knowing what material had influenced the
disciplinary· authority.
Therefore it
was held that it would be in a rare case in which it can be said
that the
govt. servant was not prejudiced by the non-supply of the report
of the enquiry officer. Accordingly finding of the High Court holding that
non-supply of the report violates to principles of natural justice and the
statutory provision
was uphold by a bench of three judges. In State of
Gujarat v. R.G. Teredesai, (1970] 1 SCR251, a bench of three judges held
C that the enquiry officer was under no obligation or duty to make any
recommendations
in the matter of punishment to be imposed on the
servant against whom the departmental enquiry
was held. Its function was
merely to conduct the enquiry in accordance with the law and to submit
the record along with his findings or conclusions on the delinquent.
If the
D enquiry officer has also made recommendation in the matter of punish
ment, that
is likely to affect the mind of the punishing authority with regard
to the penalty or punishment to be imposed on such officer, it must be
disclosed to the delinquent. Since such recommendation from part of the
record and constitutes appropriate material for consideration, it would be
essential that the material should not be withheld from him so that he
E could, while showing cause against the proposed punishment, make a
proper representation. The entire object of supplying a copy of the report
of the enquiry officer
is to enable the delinquent to satisfy the punishing
authority that he
is innocent of the charges framed against him that even
if the charges are held to have been proved the punishment proposed to
F be inflicted is unduly severe.
In
State of U.P. v. Sabir Hussain, (1975) Suppl. SCR 354 a bench o_f
three judges held that the supply of the report of the enquiry officer is a
part of reasonable opportunity under Art. 311(2) of the Constitution. In
G State of Madras v.A.R. Srinivasan,AIR (1966)
SC 1827 another constitution
bench held that
in case the Govt. agrees with the findings of the Tribunal,
it
was not obligatory on the part of the Govt. to give reasons in support of
the order imposing penalty on the delinquent. While Govt. does not accept
the findings of the Tribunal and proposes to impose the penalty, it should
give reasons as to why it differ from the conclusions of the Tribunal though
H even in such a case it is not necessary that the reasons should be detailed
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY,J.] 627
or it be judgment. A
In State of Assam v. Mohan Chandra kalita, AIR (1972) SC 2535 the
respondent
was charged for illegal collection of money from the villagers
while distributing compensation amount due to them. There
is no evidence
for proof thereof, but evidence adduced established that the had not made
full amount to those entitled to compensation. There
was no charge in that B
behalf,
nor any charge that he has authorised anyone to collect any fee
which
was sought to be set up in the evidence. The enquiry officer recom
mended for removal of the respondent on the finding that he had taken un;wthorised collection of the amount by way of fee. This court held that
the conclusion reached by the enquiry officer and the action taken by the
C
Govt. were conjectures and there was no evidence to show that any amount
was deducted by the delinquent himself or at his instance or even by his
connivance. Accordingly the order of removal from service set aside
by the
High Court was upheld.
In
A.N. Silva v. Union of India, [1962]
Suppl. 1 S~R 968 a bench of
two judges held that while rules provide graded punishment consistent with
the magnitude the misconduct, the rules left to the decision of the punish-
D
ing authority to select the appropriate punishment have regard to the
gravity of the misconduct. It
is not for the enquiry officer to propose the
punishment in which even the copy of the report should be supplied to the
E
delinquent. In Avtar Singh v. J.G. of Police, Punjab, (1968) 2
SLR 131
another constitution bench found that nothing was clear from the report
of the enquiry officer as to on what ground the fllldings were based and
what the findings themselves were.
In that view it was held that it is difficult
to hold that there
was due compliance with the requirement of Art.311 (2) F
In Calcutta Dock Labour Board v. Jaffar Imam, [1965] 2 L.L.J. 113, a bench
of three judges held that the employer must lead evidence against the
concerned employee giving him reasonable chance to test the said
evidence, allow him liberty to lead evidence in defence and then come to
a decision of his
own.
Such an enquiry is described by the requirements of
natural justice and in that case since that
was not complied with it held G
that the enquiry was vitated by the principles of natural justice.
In Union of India v. K.R. Memon, [1969] 2
SCR 343, a bench of two
judges held that the rule does no lay down any particular fot:m or manner
in which the disciplinary authority should record its findings on each
H
628 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A charge. The record of enquiry should be considered and disciplinary
authority should proceed
to give its findings of each charge. It is not
obligatory to discuss the evidence and the facts and circumstances estab
lished at the enquiry in detail and to write
as if it were an order on the
judicial
tribunal. If the disciplinary authority agrees with the findings of the
B
enquiry officer on the charges mentioned in the chargesheet had been
established,
it must be construed that the he was affirming the findings on
each charge and that would certainly fulfill the requirements of the prin
ciple of natural justice. In
Lakshmiratan Cotton Mills Co. Ltd. v. Its
Workmen, [1975] 2
SCR 761, a bench of three judges held that workmen
may show that the findings of the enquiry officer are not justified on the
C evidence on record or that even if the findings are justified, they do not
warrant dismissal from service having regard to the nature or gravity of the
misconduct, the past record of the workman or
any other extenuating
circumstances. The notice must, therefore,
give a reasonable opportunity
to the workman. That
is a condition precedent, which must be satisfied.
D before an order of dismissal can validity be passed by the employer.
In
Tara Chand Khatri v. Municipal Corporation of Delhi, (1977] 2
SCR
198 a bench of three judges held that although it may be necessary for the
disciplinary authority to record its provisional conclusions in the notice
calling upon the delinquent to show cause
why the proposed punishment
E be not imposed upon him, unless it differs from the findings arrived at by
the enquiry officer with regard to the charge, in which event it
is obligatory
to record reasons, in case the disciplinary authority concurs with the
findings of the enquiry officer he need not record reasons. In
P. Joseph
John v. State of Travanoore, Cochin, [1955] 1 SCR 1011, another constitu-
F tion bench held that when an enquiry was held and before provisional
conclusions are reached, the delinquent officers is entitled to an oppor
tunity of show cause.
In Krishna Chandra Tandon v.
Union of India, [1974]
4 sec 380 a bench of two judges held that the disciplinary authority is
entitled to go into the findings and differ from the enquiry officer in respect
of one or
all the charges.
G
It
would thus, be clear that the report together with the findings on
the charge and the recommendations, if
any, would constitute appropriate
material for consideration
by the disciplinary authority. It is not incumbent
upon the enquiry officer to indicate in his report of the nature of the
H penalty to be imposed on the delinquent. Neither findings on merits,
nor
MANAGING DIRECTOR, ECIL v. KARUNAKAR (RAMASWAMY,J.] 629
the suggested penalty binds the disciplinary authority who is enjoined to A
consider the record and the report. It
is open to him
to· agree on the
findings
of the enquiry officer in
whic~ event he need not record elaborate
consideration or reasoning in support of
his conclusions, but the order
must bear out
his application of mind to the questions involved and brief
reasons
in support thereof, though not like a judgment. If he disagree on
some or
all of the findings or reasons of the enquiry officer then he is
enjoined to
re9ord the reasons for his disagreement. On the nature of the
penalty, though it
is discretionary, the discretion must be exercised
reasonably, consistent with the gravity of the misconduct having indelible
effect on the discipline or morale of the service, etc. and adequate punish
ment
be imposed on the delinquent. Brief reasons in this behalf also always
lend assurance of the application of the mind and consideration given to
B
c
the case by the disciplinary authority which would be a factor the High
Court of the Tribunal would take into consideration even on the nature of
the penalty.
The findings or recommended punishment by the enquiry officer are
likely to affect the mind of the disciplinary authority in his concluding the
guilt or penalty to be imposed. The delinquent is therefore, entitled to meet
the reasoning, controvert the conclusions reached by the enquiry officer or
is entitled to explain the effect of the evidence recorded.
Unless the copy
of the report is supplied to him, he would be in dark to know the findings,
the reasons in support thereof or nature of the recommendation on penalty.
He would point out all the factual or legal errors committed by the enquiry
officer. He may also persuade the disciplinary
authprity that the finding is
based on no evidence or the relevant material evidence was not considered
or overlooked by the enquiry officer in coming to the conclusions with a
view to persuade the disciplinary authority to disagree with the enquiry
officer and to consider
his innocence of the charge, or even that the guilt
as to the misconduct has not been established on the evidence on records
D
E
F
or disabuse the initial impression formed in the minds of the disciplinary
authority on consideration of the enquiry report. Even if the disciplinary
authority comes to the conclusion that charge or charges is/are proved, the
G
case may not warrant imposition of any penalty. He may plead mitigating
or extenuating circumstances to impose no punishment or a lesser punish
ment. For this purpose the delinquent needs reasonable opportunity of fair
play in action. The supply of the copy of the report
is neither an empty
formality, nor a ritual, but aims to digress the direction of the disciplinary
H
630 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A authority form his derivative conclusions from the report to the palliative
path of
fair consideration. The denial of the supply of the copy, therefore,
causes to the delinquent a grave prejudice and avoidable injustice which
cannot be cured or mitigated in appeal or at a challenge under Art.
226 of
the Constitution or
s.19 of the Tribunal Act or other relevant provisions.
B Ex post facto opportunity does not efface the past impression formed by
the disciplinary authority against the delinquent, however, professedly to
be
fair to the delinquent. The lurking suspicion always lingers in the mind
of the delinquent that the disciplinary authority
was not objective and he
was treated unfairly. To alleviate such an impression and to prevent
injus
tice or miscarriage of justice at the threshold, the disciplinary authority
C should supply the copy of the report, consider objectively the records, the
evidence, the report and the explanation offered
by the delinquent and
make up his mind on proof of the charge or the nature of the penalty. The
supply of the copy of the report
is, thus, a sine qua non for a valid, fair,
just and proper procedure to defend the delinquent himself effectively and
D efficaciously. The denial thereof is offending not only Art. 311(2) but also
violate Arts.
14 and 21 of the Constitution.
The contention, therefore, of
Sri Salve that supply of the enquiry
report
was part of the later clause of Art. 311 (2) i.e. to impose penalty
which requirement
was dispensed with by the constitution fortysecond
E amendment Act,
Sect. 44 thereof, deleting the necessity of issuance of
second show cause notice on the proposed punishment to the delinquent
does not merit consideration The reasons are self evident.
Even prior to the constitution fortysecond amendment Act the entire
proceedings
was considered as an integral whole and on receipt of the
F report of the enquiry officer the disciplinary authority was required to
consider the record and to arrive at a provisional conclusions thereon; a
show cause notice with the proposed punishment
was a part of the
reasonable opportunity envisaged under Art. 311(2). The supply of the
copy of the report at that stage
was made an integral part of the reasonable
G opportunity.
On receipt thereof the delinquent officer got the opportunity
to controvert even the fmdings recorded, their correctness and legality
showing that the charges which were held proved
by the enquiry officer
could not be sustained for the reasons set forth in the reply to the show
cause notice. Alternatively he
was entitled to show mitigating or extenuat
ing circumstances including previous conduct or record or service for
H dropping the action or to impose lesser punishment.
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY,J.) 631
Section 44 of the Fortysecond Amendment Act done away with A
supply of the copy of the report on the proposed punishment but was not
intended
to deny fair, just and reasonable opportunity to the delinquent,
but to be a reminder to the disciplinary authority that he
is still not
absolved of
his duty to consider the material on records, the evidence along
with the report, but before he does
so, he must equally accord to the B
delinquent, a fair and reasonable opportunity of his say on the report when
the disciplinary authority seeks to rely thereon.
It is now settled law that the proceedings must be just, fair and
reasonable and negation thereof offend Arts.
14 & 21. It is well settled law
that principle of natural justice are integral part of Art. 14. No decision C
prejudicial to a party should be taken without affording an opportunity or
supplying the material, which
is the basis for the decision. The enquiry
report constitutes fresh material which has great persuasive force or effect
on the mind of the disciplinary authority. The supply of the report along
with the final order
is like a postmortem certificate with purifying odour. D
The failure to supply copy thereof to the delinquent would be
unfair
procedure offending not only Arts. 14. 21 and 311 (2) of the constitution,
but also, the principles of natural justice. The contention on behalf of the
Govt/management that the report
is not evidence adduced during such
enquiry envisaged under proviso to Art. 311(2)
is also devoid of substance.
It is settled law that Evidence Act has no application to the enquiry E
conducted during the disciplinary proceedings. The evidence adduced is
not in strict conformity with Indian Evidence Act, though the essential
principle of fair play envisaged in the Evidence Act are applicable. What
was meant by evidence in the proviso to Art. 311(2) is the totality of the
material collected during the enquiry including the report or the enquiry
F
officer forming part of the material. Therefore, when reliance is sought to
be placed,
by the disciplinary authority on the report of the enquiry officer
for proof of the charge or for imposition of the penalty, then it
is incumbent
that the copy thereof should be supplied . before reaching.
any conclusion
either on proof of the charge or the nature of the penalty to be imposed
on the proved charged or on both.
G
Shri P .P. Rao obviously realising this effect, contended that the
enquiry officer being a delegate of the disciplinary authority
is not bound
by the de legatee's recommendations and it is not a material unless it is by
the disciplinary authority. Therefore, the need to supply does not arise and
H
632 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A the principles of natural justice need not be extended to that stage as the
officer/workman had opportunity at the enquiry. In support thereof he
placed strong reliance on
Suresh Koshy George v. University of Kera/a,
(1969) 1
SCR 317, Shadi Lal Gupta v. State of Punjab, (1973) 3 SCR 637,
Hira Nath Mishra v. Principal Rajendra Medical College, Ranchi, AIR
B
c
(1973) SC 1260; Satyavir Singh v. Union of India, AIR (1986) SC 555,
Secretary, Central Board
of Excise & Customs v.
KS. Mahalingam, (1986) 2
SCR 742 and Union of India v. Tulsiram Patel, (1985) Suppl. 2 SCR 131. I
am unable to agree with
his contentions. Doubtless that the enquiry officer
is a delegate of the disciplinary authority, he conducts the enquiry into the
misconduct and submits
his report, but his findings or conclusions on the
proof of charges and his recommendations
on the penalty would create
formidable impressions almost to be believed and acceptable unless they
are controverted vehemently by the delinquent officer.
At this stage non
supply of the copy of the report to the delinquent would cause him grave
prejudice.
S.K George's case renders no assistance. It is only an enquiry
D against mal-practice at an examination conducted by the University under
executive instruction. Therein the students were given an opportunity of
hearing and they were supplied with all the material, the foundation for
the report. The observations of the bench of
two Judges with regard to the
E
F
theory of two stages in the enquiry under Art. 311 also bears little impor
tance for the foregoing consideration in this case.
It is already seen that
this court held that the enquiry from the stage of chargesheet till the stage
of punishment
is a continuous one and cannot be split into two. The
reliance in
The Keshav Mills Co. Ltd. v. Union of India, (1973) 3
SCR 22 is
also of no avail. Therein it was pointed out that under s.18-A of the I.D.R.
Act there
was no scope of enquiry at two stages and the omission to supply
enquiry report, before taking the action, did not vitiate the ultimate
decision taken. In
Shadi Lat's case rule 8 of the
Punjab Civil Service
(Punishment and Appeal) Rules does not provide for the supply of copy
of the report of an enquiry conducted by the fact finding authority before
enquiry.
It was held that the delinquent officer was supplied with all the
G materials and was given opportunity to make representation and the same
was considered. The report did not indicate anything in addition to what
was already supplied to him
Under those circumstances it was held that
the principle of natural justice cannot be put into an iron cast or a straight
jacket formula. Each case has to be considered and the principles applied
H in the light of the facts in each case. The effect of the violation of the
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.] 633
principle of natural justice on the facts of the case on hand needs to be A
considered and visualised. The effect of Tulsiram Patel' ratio was con
sidered
by my brother Sawant, J. and it needs no reiteration. The reliance
in
S.K George's case in Tulsiram
Patel ratio renders no assistance in the
light of the above discussion. Since Mahalingam's case which was after the
fortysecond amendment Act, the need to supply second show cause notice
B
was dispensed with, regarding punishment, and therefore, that ratio
renders
no assistance to the case. Hira Lal Mishra's case
also, if of no avail
since the enquiry
was conducted relating to misbehaviour with the
girl
students by the erring boys. The security of the girls was of paramount
consideration, and therefore, the disclosure of the names of the girl stu
dents given in the report or their evidence would jeoparadise their safety
C
and so was withheld. Accordingly this court on the facts situation upheld
the action of the Medical College.
Satyavir Singh's ratio also is of no
assistance
as the action was taken under proviso to Art. 311 (2) and rule
199 of the
C.C.A. Rules. The enquiry into insubordination by police force
was dispensed with as the offending acts of the police force would generate D
deleterious effect on the discipline of the service. Ashtana's case was
considered by
my brother Sawant, J. in which the report was not supplied
and it
was upheld. It should, thus be concluded that the supply of the copy
of the enquiry report
is an
integral part of the penultimate stage of the
enquiry before the disciplinary authority considers the material and the
report on the proof of the charge and the nature of the punishment to be
imposed. Non-compliance
is denial of reasonable opportunity, violating
Art. 311(2) and unfair, unjust and illegal procedure offending Arts.
14 and
21 of the Constitution and the principles of natural justice.
E
The emerging effect of our holding that the delinquent is entitled to F
the supply of the copy of the report
would generate yearning for hearing
before deciding on proof of charge or penalty which 42nd amendment Act
had advisedly avoided. So while interpreting Art. 311(2) or relevant rule
the court/tribunal should make no attempt to bring on the rail by back track
the opportunity of hearing
as was portended by the Gujarat High Court.
The attempt must be nailed squarely.
Prior to the 42nd Amendment Act G
the delinquent has no right of hearing before disciplinary authority either
on proof of charge or penalty. So after 42nd Amendment Act it would not
be put on higher pedestal. The Gujarat High Court's decision is , therefore,
not a good
law. However, the disciplinary authority has an objective duty
and adjudicatory responsibility to consider and impose proper penalty
H
634 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A consistent with the magnitude or the gravity of the misconduct. The statute
or statutory rules gave graded power and authority to the disciplinary
authority to impose either of the penalties enumerated in the relevant
provisions.
It is not necessary the maximum or the
minimuIQ.. Based on the
facts, circumstances, the nature of imputation, the gravity of misconduct,
B the indelible effect or impact on the discipline or morale of the employees,
the previous record or conduct of the delinquent and the severity to which
the delinquent will
be subjected to, may be some of the factors to be
considered. They cannot be eulogised but could be visualised. Each case
must be considered in the light of its own scenario. Therefore, a duty
and
C responsibility has been cast on the disciplinary authority to weight the pros
and cons, consider the case and impose appropriate punishment. In a given
case if the penalty was proved to be disproportionate or there is no case
even to find the charges proved or the charges are based
on no evidence,
that would be for the
courUthe tribunal to consider on merits, not as court
of appeal, but within its parameters of supervisory jurisdiction and to give
D appropriate relief. But this would not be a ground to extend hearing at the
stage of consideration by the disciplinary authority either on proof of the
charge or on imposition of the penalty. I respectfully agree with my brother
Sawant,
J. in other respects in the draft judgment proposed by him.
E The next question is whether Mohd. Ramzan Khan ratio in its grant
of relief to
him and his companions is per incuriam? Adherence to
prece
dents and retrospective overruling has its legacy from the declaratory
theory of precedent propounded
by Blackstone that the duty of the court
is not to "pronounce a new law but to maintain and expound the old
one"
and the "if it is to be found that the former decision is manifestly unjust or
F absurd, it is declared, not that such sentence was bad law, but that it was
not the law" Vide his Commentaries pp. 69-70. Steadfast adherence to stare
decisis
is being advocated for stability, consistence and certainty as
in
herent values on the premise that it is much more conducive to the law'
self-respect and it provides greatest deterrenr~ to judicial creativity
G tampering with the restraining influence of certainity. Lord Reid in Birmin
gham City Co. v. West Midland Baptist (Trnst) Ass., (1969) All. E.R. 172 at
180, Lord Simon in Johns v. Secretary of States for Social Science, (1972)
A.C. 944 at 1026-27, Lord Devlin in his Article "J\ldges and Law Makers"
(39 Modern Law Review p.1 at 11), Lord Lloyd of Hamnstead in his
"Introduction to Jurisprudence, 4th Edn.
1979
P. 858" Prof. Rupert Cross
H and Harris, "Precedent in English Law" (Oxford 4d. ed., 1991) pp.228-232,
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.) 635
W. Friedmann, "Limits of the Judicial Lawmaking and Prospective Over-A
ruling" (29 M.L.R. 593(1966)] and Anatomy of the Law by Leon. L. Fuller;
A.G
.L. Nicol in prospective overruling new device for English courts (39
M.L.R. 542 at 548 (1976)] opposed the application of prospective overrul-
ing.
On the other hand Prof. John Wigmore as early as in 1917 in "Judicial
Function," is Science of Legal Method at p.27 and Justice Cardozo in
"Selected Writings", 1947 Edn., p.35, Trayner in his Qua Vadis "Prospective B
overruling" .. A question Judicial Responsibility [ ( 1975) 39 M.L.R. 542];
Marsh in "What is wrong with the Law (2nd Edn.); English and American
Judges
as Law Makers by Louis L. Jafee (1969
Oxford Edn.); Prof. P.S.
Atiyah and R.S. Summers "Form and Substance in Anglo American Law"
(1987 Oxford ED. p.146 and Prof. Baker in his "Judicial Discretion" 254 C
(1993 Ed.) are the proponents of the articulation and efficacy of prospec-
tive overruling or prospective application of a new principle laid by the
courts. Prof. J afee at p.37 stated that if the law is to function as a control,
it
is to set the limits within which innovation is to take place, the judge
should rationalise his decision. We have come to believe that where dis
cretion
is exercised, be it by administrator or judge, the requirement of D
rationalisation is crucial. In
subtnitting himself to this discipline, the Judge
alerts himself to the limits of his power, laying the basis for objective
criticism, and enables the citizenry to anticipate and so to conform its
conduct to the potentialities of the decision. This process imposes
two
requirements. First, the decision must be based upon a principle already
found in the existing
law. It may be a constitutional provision or a statute E
or a principle derived by the judges from common law rulings. The decision
should be logically consistent with the texts on which it
is founded. The
second, logical consistency does not suffice to establish legitimacy.
Since
the authoritative legal texts will usually allow more than one conclusion,
the choice must be rational in terms consistent with accepted modes of
F
legal reasoning. At p.57 it was further stated that there are occasions where
judicial innovation
is valuable and appropriate. The legislatures are not
perfectly organised to make
law; they are not always well informed, articu-
late majorities inciting our legislatures to action. Even an alert society
needs leaders and teachers to formulate its objectives and to galvanise it
into action. Inevitably a court,
as is true of all our political organisations, G
will represent important minority interests. In a society overwhelmed by a
consciousness of the vastness and variety of its tasks, there
is opportunity
for social responsibility in all branches of Govt.
It may be true that judicial
intervention occasionally relieves the legislamre of tasks better performed
by them. Atiyah at p.
146 stated that the solution appears to be to
H
636 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A overruling only prospectively.
B
c
Though by far the legislature must be responsible for the formulation
and promulgation
of principles of conduct which are of general, and
prospective applicability to a given community for an indeterminate num
ber of situation, administrators must apply such general and often specific
Principles within the community -even though administrative orders and
regulations often have certain legislative aspect;
and the courts must also
apply the prescriptions of legislators, or the generalised principles deduced
from a series of precedents to individual disputes.
Such a separation of
functions is not confined to the democratic doctrine of separation of
powers; it is
part of the essential structure of any developed legal system.
In a democratic society, the process of administration, legislation and
adjudication are more clearly distinct than in a totalitarian society. The
courts can act when indeed called upon to adjust the rights and law in
accordance with the changing
tenet~ of public policy and needs of the
society. Equally discretion assumes freedom to choose among several
D lawful alternatives of which the judge is entitled to choose the one that
most appeals to him, not a choice between two decisions, one
of which may
be said to be almost certainly right and the other almost certainly wrong,
but a choice so nicely balanced that when once it
is announced, a new right
and a new wrong will emerge in the announcement. Justice Cardozo
E
F
described this process in his inimitable style in selected writings that "there
have
been two paths, each open, though leading two different goals. The
fork in the
road has not been neutralised for the traveller by a barrier
across one of the prongs with the label of
"no thoroughfare". He must
gather his wits, pluck up his courage, go forward one way or the other, and
pray that he may
be walking, not into ambush, morass, and darkness, but
into safety, the open space, and the light".
When judicial discretion has
been exercised to establish a new norm,
the question emerges whether it would
be applied retrospectively to the
past transactions or prospectively to the transactions in future only. This
process
is limited not only to common law traditions, but exists in all the
G jurisdictions. Though Lord Denning is the vocal proponent of judicial law
making and the House
of Lords consistently overruled him, judicial law
making found its eloquent acceptance even from the House of Lords and
hurried the remnants
of the Blackstone's doctrine in the language of
Prof.
Friedmann, "has long been little more than a ghost". In Candler v. Crane,
H Christmas & Co. (1951) 2 K.B. 164 the dissenting opinion of Denning, L.J.
MANAGING DIRECTOR, ECIL v. KARUNAKAR (RAMASWAMY, J.] 637
as he then was, has now received approval and Candler was overruled by A
the House of Lords in Hedley Byrene & Co. Ltd. v. Heller & Partners Ltd.
(1964) A.C. 465 interpreting whether a banker has a special relationship
of duty of care
in making careless misrepresentations, Lord Devlin held
that the duty of care arises where the responsibility
is voluntarily accepted
or undertaken either generally, where a general relationship
is created, or B
specifically in relation to a particular transaction, the law hitherto was
existing. But, per majority held that the banker, though honest misrepresen
tation, spoken or written, was negligent, and it may
give rise to an action
for damages for financial loss caused thereby, any contract or fiduciary
relationship apart, since
"law will imply a duty of care when a party seeking C
information from a party possessed of a special skill trusts him to exercise
due care, and that party knew or ought to have known that reliance
was
being placed on his skill and
judgment". Without holding prospective
operation of Hedley ratio, the House of Lords while setting aside the
previous precedents laid new liability impliedly applicable
to future con
tracts.
Prof. Robert Stevens of Yale University commenting on Yedley D
Bryne ratio said that common law embodying the policy that "sticks and
stones may break
my bones but words will never harm
me" has been
seriously eroded [vide
27 M.L.R. p.5 (1964)).
Similarly, in
Rook v. Bamrd, [1964)
AC. 465, the House of Lord
revived an
all but forgotten stort of intimidation, and resurrected the tort
of conspiracy for economic disputes which had been all but hurried in
Crofter Handwoven Harris Tweed Co. v. Veith [(1941)
AC. 435) establishing
a legal responsibility for damages in the case of a typical union action
instigated by a union organiser and
two fellow employees designed to
coerce the employer into certain behaviour. Similarly in
Milangas v.George
Textiles Ltd.,(1976) Appeal Cases 443, the House
,of Lords overruled the
previous decision of its
own. Accordingly the rule that on a claim for a
liquidated damages payable in foreign currency, debt has to be given for
E
F
the appropriate amount of English currency as on the date when the
payment
was due, was overruled prospectively from the date of the judg- G
ment without disturbing past
trans3:ctions.
Prospective overruling, therefore, limits to future situations and ex
clude application to situations which have arisen before the decision was
evolved. Supreme Court of United States of America in interpretation of H
638 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.
A the constitution, statutes or any common law rights, consistently held that
the constitution neither prohibits nor requires retrospective effect.
It is,
therefore, for the court to decide, on a balance of all relevant co considera
tions, whether a decision overruling a previous principle should be applied
retrospectively or not. In
Great Nonhem Railway Company v. Sunburst Oil
& Refining Co. (287
US 358, 77 L.Ed. p.360, 1932), Justice Cardozo speak-
B ing for the unanimous Supreme Court of U.S.A. for the first time applied
prospective operation of the decision from the date. of the judgment. The
Supreme Court of Montana overruled a previous decision granting ship
pers certain rights to recover excess payment regulated
by Rail-Road
Commission of intrastate freight rate. The Montana Court held that the
C statute did not create such a right. While approving the above rule it was
held that it would not apply to past contracts or carriages entered into in
reliance upon earlier decision. The Court held that
"we have no occasion
to consider whether this division in time of the effects of a decision
as a
sound or an unsound application of a doctrine of stare decisis
as known to
the common
law. Sound or unsound, there involved in it no denial of a
D
right. protected by the Federal constitution. This is not a case where a court
in overruling an earlier decision, has given to a new ruling a retroactive
bearing, and thereby has made invalid what
was valid in the doing ..... The
choice for any state may be determined by the juristic philosophy of the
judges of her courts, their conceptions of
law, its origin and nature. We
review not the wisdom of their philosophies, but the legality of their
acts."
E In Dollree Mapp. v. Ohio, 367 US 643, 12 L.Ed. 2nd 1081, (1961), it was
held that evidence seized in a search and seizure violates the Fourth
Amendment. Whether the ratio in Mapp's case could be applied retrospec
tively had come up in Victor Linkletter v. Victor G. Walker 381
US 618, 14
L.Ed. 2nd 601, (1965). Per majority it was held that though the evidence
F collected in illegal search and seizure violated Fourth Amendment, the
ratio in Mapp would apply prospectively. The court further laid down that
in determining whether to
give its decision a prospective or retrospective
operation, the court must weigh the merits and demerits in each case by
looking to the previous history of the rule in question, its purpose and
effect, and whether retrospective operation
will accelerate or retard its
G operation; this approach is particularly correct with reference to the fourth
amendment's prohibitions
as to unreasonable search and seizures. In
Ernesto A. Miranda v. State of Arizona, 384
US 436, 15 L.Ed. 2nd, 694,
(1966) the court dealt with the admissibility of the confessional statement
obtained from the accused during custodial interrogation without warnings
or counsel being present. While holding that such evidence
was inadrnis-
H
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.] 639
sible, the court per majority set aside the conviction and sentence. Similar A
was the case in Danny Escobedo v. lllinois [378 US 478, 12 L.Ed. 2nd 977].
In Svlvester Johnson v. State of New Jersey 384 US 719, 16 L.Ed. 2nd 882,
(1966), the question arose whether retrospectivity would be given to con
stitutional guarantee laid
in Miranda case. Johnson was convicted and was
sentenced to death and that became final. When certiorari was sought
placing reliance on
Escobedo and Miranda ratio, the
Court per majority B
held that even in criminal litigation court would made a new judicial rule
prospective where the exigencies of the situation require such an applica
tion. The court held that even though it involved constitutional right of
accused it would look into the purpose of the
newly evolved rule, the
reliance placed on the former rule and the effect on the administration of
C
justice of a retrospective operation of the new rule have to be considered.
The retroactivity or non-retroactivity of a new judicial rule involving a
constitutional dictate
is not automatically determined by the provision of
the constitution on which the dictata
is based. The Court must determine
in each case,
by looking to the peculiar traits of the specific rule in question D
even if the new rule has already been applied to the parties before the court
in the case in which the rule
was announced, its impact on the administra
tion of justice be taken into account, the extent to which safeguards other
than that involved in the new rule are available to protect the integrity of
the truth determining process at trial.
Such an application of new rule does
not fore-close the possibility of applying the decision only prospectively and
E
with respect to other parties. Accordingly due process in Miranda and
Escobedo ratio was denied to Johnson. In TA. Jenkins v. State of Delaware
395
US 213, 23 L.Ed. 2nd, 253, (1969), the Miranda ratio was not applied
retrospectively to the pending appeals in Jenkins case.
It was held. that
Miranda rule did not have to be applied to post Miranda
triru of a case F
originally tried prior to the Miranda decision. It was further held that there
is a large measure of judicial discretion involved in deciding the time from
which that new principle
is to be deemed controlling. In
P.B. Rodrique v.
Aetna Casualty Co. 395 US 352, 23 L.Ed. 2nd 360 (1969) at an action
brought in United States Dist. Court in Lusiana for damages for death of
the workman while in service, the Dist. Court on the basis of the Outer G
Continental Shelf Lands Act, held that damages claimed was not available.
The suit
was dismissed on appeal it was confirmed.
On certiorari, the
Supreme Court of United States reversed the decision and held that the
constitutional right
gives them the remedy for damages. In Chevron
Oil Co.
v. Gaines Ted Huson 404 US 97, 30 L.Ed. 2nd 296 a Civil action was laid H
640 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.
A in the United States Dist. Court for the Eastern in Dist. of Lusiana to
recover for personal injury prospectively
two years earlier to the date of
filling the suit. While the action
was pending in view of Rodrique inter
pretation, the Dist. Court held that one year limitation prescribed under
Lusiana Act bars the action for damage for personal injuries.
On appeal
B
c
reversed the decree and remanded the matter holding that Lusiana statute
of limitation being prospective and the remedy though barred, right to
recover
is not extinguished, the Supreme Court of
U.S.A. held on cer
tiorari, that the limitation
as interpreted in Rodrigue's case being prospec
tive, the remedy
was not extinguished and the claim was not barred as the
action
was controlled by Federal Law. It was further held that the question
of non-retroactivity application of judicial issue
is not limited to the area
of criminal process but also pertains to decisions outside a criminal area,
in both constitutional and non-constitutional cases. Where a decision of
the court could produce substantial inequitatble results, if applied
retrospectively, there
is ample basis for avoiding injustice or hardship by a
D holding of non-retrospectivity. Accordingly the Court held that the suit was
within limitation and remanded the matter for trail according to law. In
Northern Pipeline Constrnction Co v. Marathon Pipeline Co. 458
US 50, 73
L.Ed. 2nd 598, 1982, the question was whether the Bankruptcy Act 1978
and bankruptcy courts applied to Federal Dist. established earlier and the
E
F
appointments of the tenure judges by 1978 Act were contrary to Art. III
protection. While declaring, per majority, that the appointment of tenure
judges
was violative of Art. III protection offending independence of
judiciary, the court applied the
law prospectively while giving relief to the
plaintiff therein, stayed its operation until a further date affording oppor-
tunity to the Congress to amend the Law to reconstitute bankruptcy courts
or to adopt other valid means of adjudication without impairing the interim
administration of the bankruptcy
laws.
In
U.S. v. James Robert Peltier 422 U.S. 531, 45 L.Ed. 2nd 374 [1975],
the respondent was convicted for Federal Narcotics office. The Border
G Patrol Agent conducted a search at 70 air miles from the Mexican border
and seized the contraband for which he
was convicted. While the appeal
was pending in the Court of Appeal, the Supreme Court of the
United
States of America in Almeida-Sanchez v. U.S. 413 US 266, 37 L.Ed. 2nd
596, held that warrantless automobile search conducted about 25 air miles
H from the Mexican border by the Border Patrol Agent was without probable
'
MANAGING DIRECTOR, ECIL v. KARUNAKAR [RAMASWAMY, J.] 641
cause offending Fourth Amendment of the Constitution. Therefore, the A
search was declared unconstitutional and the conviction was set aside. On
concession by the State, the court of appeal set aside petitioner's conviction
·giving him the benefit of the Almeida-Sanchez rule. On appeal, the
Supreme Court of the United States of America, per majority, held that
Almeida-Sanchez's ratio would not be applied retrospectively if search
was
B
conducted prior to the date of the decision, since Border
Patrol Agents
had· acted pursuant to be statutory and regulatory authority to conduct
warrantless searches of the vehicles within 100 air miles from the border,
existing
law was that it was permissible. The same ratio was reiterated in
Bowen v.
U.S. 422 U.s. 916, 45 L.Ed. 2nd 641. In this case the ratio in
c
Almeida-Sanchez was laid while his petition for certiorari was pending
.iii consideration in the .Supreme Court of the United States of America. The
matter
was remitted to the appellate Court to consider in the light of
Almeida-Sanchez ratio. The Court of
Appeal again affirmed the appellant's
~
conviction holding that the search was conducted at traffic check point
according to the law then prevailing and, therefore, Almeida-Sanchez ratio
D
was not applicable to the search conducted prior to the date of the
decision. The Supreme Court of
U.S.A. affirmed the decision by majority
holding that Ahneida-Sanchez ratio
was not applicable retrospectively
reiterating
Peltier's ratio.
E
In United States v. Raymond Eugene Johnson 457 US 537, 73 L.Ed.
2nd 202, (1982) applying the ratio in Payton v. New York (1980) 445 US
573, 63 L.Ed. 2nd 639 it was held that warrantless arrest on suspicion at
his home and suppression of
his oral or written statements obtained on
account of
unlawful arrest offend Fourth Amendment constitutional right. F
The respondent was convicted by the District Court. The appeal was
dismissed, but an application for rehearing was pending before the appel-
late Court, before
Payton's case was decide. Thereon it was contended that
the respondent
will be entitled to the benefit of the ratio in
Payton. The
state argued that the ratio in Payton should not be applied retrospectively
G
to an arrest that had occured before Payton was decided. The court of
-1
appeal did not agree and held that Payton ratio did apply retrospectively.
On appeal the Supreme Court of the United States of America per
majority held that the rule announced in Payton's case would apply
retrospectively to pending direct appeal since Fourth Amendment Iiri-
munization ·.vas extended and the conviction was set aside. H
642 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A In Golak Nath & Ors. v. State of Punjab & Anr. [1967] 2 SCR 762,
this Court while declaring that Sankari Prasad Singh Deo v. Union of India,
[1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933 were
wrongly decided, held that the constitutional amendments offend the fun
damental rights and the Parliam.ent has no power to amend fundamental
B rights exercising the power under Art. 368, applied Golak Nath rule
prospectively and upheld the pre-existing law
as valid, Mohd. Ramzan
Khan treat on the same path.
c
It would, thus, be clear that the Supreme Court of the
United States
of America has consistently, while overruling previous law or laying a new
principle, made its operation prospective and given the relief to the party
succeeding and in some cases given retrospectively and denied the relief
in other cases. As a matter of constitutional law retrospective operation of
an overruling decision
is neither required nor prohibited by the constitution
D but is one of judicial attitude depending on the facts and circumstances in
each case, the nature and purpose of the particular overruling decision
seeks to serve. The court would look into the justifiable reliance on the
overruled case
by the administration; ability to effectuate the new rule
adopted in the overruling case without doing injustice; the likehood of its
E
F
operation whether substantially burdens the administration of justice or
retard the purpose. All these factors to be taken into account while
overruling the earlier decision or laying down a new principle. The benefit
of the decision must be given to the parties before the Court even thought
applied to future cases from that date prospectively would not
be extended
to the parties whose adjudication either had become final or matters are
pending trial or in appeal. The crucial cut off date for
giving prospective
operation
is the date of the judgment and date of the cause of action of a
particular litigation given rise to the principle culminated in the overruling
decision.
There is no distinction between civil and criminal litigation.
Equally
no distinction could be made between claims involving constitu-
G tional right, statutory right or common law right. It also emerges that the
new rule would not be applied expost facto laws nor acceded to plea of
denial of equality. This Court would adopt retroactive or non-retroactive
effect of a decision not
as a matter of constitutional compulsion but a
matter of judicial policy determined in each case after evaluating the merits
and demerits of the particular case by looking to the prior history of the
H rule in question, its purpose and effect and whether retroactive operation
'
...
MANAGING DIRECTOR, ECIL v. KARUNAKAR (RAMASWAMY, J.] 643
will accelerate or retard its operation. The reliance on the old rule and the A
cost of the burden of the administration are equally germane and be taken
into account
in deciding to give effect to prospective or retrospective
operation.
The ratio of the Supreme Court of
U.S.A. consistently given the · B
benefit of overruling decision to the successful party received commenda-
tion from the academic lawyers. In 'Introduction to Jurisprudence' 4th Ed.
Lord Lloyd of Hampstead at
p.858 stated that a strong argument against
the Sunburst approach
is that potential litigants faced with outmoded
doctrine are given
no incentive to litigate. If they win, their case is governed
by the old doctrine and new rule would apply only to disputes subsequently C
arising. Litigants who provide the courts with opportunities to rid the
normative order of outmoded doctrine are performing a social service, and
deserve some reward for their exertions. Andrew G.L. Nicol in his
'Prospective Overruling - a Text for English Courts' 39 MLR 542 at 546
also stated that 'excepting the parties to the overruling decision from the D
denial of retroactivity, the Courts which use this variation talk in terms of
reward for the party who has persuaded them to see the error of their
ways. They argued that unless the party to the instant case is given the
benefit of new decision, there
will be no incentive for him to raise the
correctness of the old decision. Finally they say that if the new rule
is not
applied in the instant case, the overruling
will be obiter only. Cross and E
Harris in their
'Precedent in English Law' have also argued on the same
lines to
give benefit to the party in the overruling case.
P.S. Atiyah and R.S.
Summers in their 'Form and Substance in Anglo-American Law' at page
146 also stated that: "if litigants who persuade the' court to overrule a bad
precedent are not themselves accorded the benefit of the new
law, would F
they have sufficient incentive to litigate such cases so that bad law is not
perpetuated". It
is, therefore, argued to extend the benefit to the successful
party in the case.
·
Mohd. Ramzan Khan's ratio giving the benefit to him and companion
appellants
was valid in law and not, therefore, per-inquarium and was G
legally given . the reliefs. The contention of the counsel for the
employees/Govt. Servants that the denial of Ramzan Khan's ratio to the
pending matters offend
Art. 14 is devoid of substance. It is seen that
placing reliance on the existing law till date of Ramzan Khan, the
employers treated that under law they had no obligation to supply a copy
H
644 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A of the enquiry report before imposing the penalty. Reversing the orders
and directing to proceed from that stage would be a needless heavy burden
on the administration and at times encourage the delinquent to abuse the
office till final orders are passed. Accordingly I hold that the ratio in
Mohd.
Ramzan Khan's case would apply prospectively from the date of the
B judgment only to the cases in which decisions are taken and orders made
from the date and does not apply to all the matters which either have
become final or are pending decision at the appellate forum or in the High
Court or the Tribunal or in this Court.
T.N.A. Matters disposed of.
The Supreme Court's Constitution Bench judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar & Ors. stands as a monumental decision in Indian service and administrative law. This landmark case, prominently featured on CaseOn, definitively settled the crucial issue surrounding the Right to Inquiry Report and its deep-seated connection to the Principles of Natural Justice. The ruling clarified that a delinquent employee has an undeniable right to receive the inquiry officer's report before the disciplinary authority reaches a final conclusion, thereby ensuring a fair and reasonable opportunity to defend themselves.
Before this judgment, the legal landscape was muddled. The 42nd Amendment to the Constitution had removed the requirement of a second show-cause notice regarding the proposed punishment, leading to ambiguity. Courts were divided on whether this also eliminated the employee's right to see the inquiry report, which formed the basis of the disciplinary action. Did the denial of this report violate the 'reasonable opportunity' guaranteed under Article 311(2) of the Constitution? Conflicting precedents, such as those in Kailash Chander Asthana and Mohd. Ramzan Khan, necessitated the formation of a five-judge Constitution Bench to provide a conclusive answer.
The Supreme Court was tasked with resolving several fundamental legal questions:
The legal framework for this case hinged on the interpretation of Article 311(2) of the Constitution of India, which guarantees a public servant a "reasonable opportunity of being heard in respect of the charges against him." The Court also invoked the foundational principles of natural justice, particularly audi alteram partem (hear the other side), which mandates that no person should be condemned unheard. The judgment had to balance this right with the changes introduced by the 42nd Amendment.
The Constitution Bench delivered a comprehensive analysis, clarifying the law with precision.
The Court explained that disciplinary proceedings are divided into two distinct stages. The first stage involves the inquiry into the charges to determine the guilt or innocence of the employee. The second stage concerns the imposition of a penalty after guilt has been established. The 42nd Amendment only did away with the employee's right to make a representation against the *quantum of punishment* (the second stage). It did not, however, curtail the right to a reasonable opportunity during the *inquiry* itself (the first stage).
The Court reasoned that the inquiry officer's report is not merely a procedural document; it is a critical piece of material that heavily influences the disciplinary authority's decision. The findings on the charges, the assessment of evidence, and any recommendations contained within it are all considered by the final authority. Therefore, denying the employee access to this report before a decision is made effectively denies them the chance to:
In essence, the right to receive the report is an indispensable part of the right to prove one's innocence.
Crucially, the Court moved away from a rigid, technical approach. It held that the non-supply of the report would not automatically nullify the punishment order. Instead, the affected employee must demonstrate that this failure caused them *prejudice*. When a case of non-supply reaches a court or tribunal, the authority should first direct the report to be furnished to the employee. The employee must then show how they would have contested the findings and how the outcome might have been different had they received it earlier. If the court finds that the non-supply made no difference to the ultimate outcome, it should not interfere with the punishment. Understanding the nuances of the 'prejudice test' and the doctrine of prospective overruling can be complex. For legal professionals pressed for time, CaseOn.in's 2-minute audio briefs provide a concise analysis of rulings like B. Karunakar, making it easier to grasp key legal shifts.
Recognizing the massive administrative disruption that would occur if all past disciplinary actions were reopened, the Court invoked the doctrine of prospective overruling. It affirmed that the law established in Mohd. Ramzan Khan's case (and clarified in this judgment) would apply only to orders of punishment passed *after* November 20, 1990. Any cases decided before this date would be governed by the law as it stood then, unless the specific service rules mandated the supply of the report.
The Supreme Court conclusively held that:
In summary, the B. Karunakar case carved out a balanced legal principle that protects an employee's right to a fair hearing without causing undue administrative hardship. It established the non-negotiable right to the inquiry report as a cornerstone of natural justice in disciplinary matters. By introducing the prejudice test, the court ensured that relief would be granted only in cases of genuine injustice, preventing the overturning of decisions on mere technicalities. Furthermore, by endorsing prospective overruling, the Court demonstrated judicial pragmatism, preventing a floodgate of litigation from derailing past administrative actions.
This judgment is essential reading for several reasons:
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. It is recommended to consult with a qualified legal professional for advice on any specific legal issue or matter.
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