S.H.A. Raza, J.@mdashAlthough while challenging the order of dismissal the Petitioner has taken several grounds, but the main ground, which has been vehemently argued, is that the Petitioner was not furnished with a copy of the enquiry report and hence the impugned order of removal passed against him suffers from denial of reasonable opportunity. In the case of Union of India v. Mohd. Ranzin Khan 1991 (1) SLR 159, their Lordships of the Supreme Court indicated as under:
Delegation of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the serious of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.
We may make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.
On the basis of this conclusion, the appeals are allowed and the disciplinary action ie every case is set aside. There shall be no order for costs. We would clarify that this decision may not preclude the disciplinary authority from revising the proceeding and continuing with it in accordance with law from the stage of supply of the inquiry report in cases where dismissal or removal was the punishment.
2. It was vehemently argued on behalf of the Standing Counsel that the judgment passed by Hon''ble Supreme Court is prospective in nature and in this connection the attention of this Court was drawn to paragraph 17 of the judgment where Hon''ble Mr. Justice Rang Nath Misra speaking on behalf of the Bench indicated as under:
There have been several decisions in different High Courts, which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the enquiry report to delinquent officers. Even on some occasions this Court has taken that view Since we have reached a different conclusion the judgments in the different High Court taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two Judge Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.
It is pertinent to mention here that in the case of
The true legal position in regarded to the findings recorded by an Enquiry Officer and the legal effect of his report as spelled out by us hereinabove is buttressed by a decision rendered by a Constitution Bench of this Court in Union of India v. H. C. Goel a quarter century ago wherein the following proposition have been enunciated:
(1) the Enquiry Officer holds the enquiry against the delinquent as a delegate of the government;
(2) the object of the enquiry by an Enquiry Officer is to enable the Government to hold an investigation into the charges framed against a delinquent, so that the government can, in due course consider the evidence adduced and decide whether the said charges are proved or not;
(3) "the findings on the merits" recorded by the Enquiry Officer are intended merely to supply appropriate material for the consideration of the government. Neither the findings nor the recommendations are binding on the government as held in A.N.D. ''Silva v. Union of India.
(4) the Enquiry Report along with the evidence recorded by the Enquiry Officer constitute the material on which the government has ultimately to act. That is the only purpose of the enquiry and the report which the Enquiry Officer makes as a result thereof.
It is thus evident that the findings recorded by the Enquiry Officer become infused with life only when the Disciplinary Authority applies his mind to the material which inter alia consists of the report of the Enquiry Officer along with the evidence and the record etc. If therefore the basis material comprising of the report of the Enquiry Officer which has been taken into consideration by the Disciplinary Authority for holding that the delinquent is guilty as per the view expressed by his delegate namely, Enquiry Officer, is not made available to the delinquent till the axe falls on him, can it be said that the principles of natural justice have been complied with? Can it be said that the delinquent had an opportunity to address the mind of the Disciplinary Authority who alone in reality found him guilty? Since it cannot be so asseverated it will be difficult to resist the conclusion that principles of natural justice have been violated and the delinquent has been denied reasonable opportunity.
It is no doubt true that when the Constitution Bench rendered the aforesaid decision in H.C. Goel case Article 311(2) had not yet been amended However, that makes little difference. By virtue of the amendment what has been dispensed with is merely the notice in the context of the measure of penalty proposed to be imposed The opportunity required to be given to a delinquent which must be reasonable opportunity compatible with principles of natural justice has not been dispensed with by virtue of the said amendment. Therefore the view taken in the context of the contention that the Disciplinary Authority need not afford an opportunity to the delinquent in regard to the measure of the punishment will not hold good in the context of the present argument in the background of the non supply of the report of the Enquiry Officer. In the event of the failure to furnish the report of the Enquiry Officer the delinquent is deprived of crucial and critical material which is taken into account by the real authority who holds him guilty, namely, the Disciplinary Authority. He is the real authority because the Enquiry Officer does no more than act as a delegate and furnishes the relevant material including his given assessment regarding the guilt to assist the Disciplinary Authority who alone records the effective finding in the sense that the findings recorded by the Enquiry Officer standing by themselves are lacking in force and effectiveness. Non supply of the report would therefore constitute violation of principles of natural justice and accordingly will be tantamount to denial of reasonable opportunity within the meaning of Article 311(2) of the Constitution.
The question arising in this matter is not with regard to the giving of notice limited to the question of what penalty should be imposed. The question is whether it k the right of the delinquent to persuade the authority which makes up its mind as regards the guilt of the delinquent that such a finding is not warranted in the light of the report of the Enquiry Officer. The decision of this point will affect millions of employees in service today as also those, who now enter government service hereafter for times to come. The matter thus needs careful consideration in depth, and if necessary at length. As this Bench is comprised to two Judges, we do not consider it proper prima facie we are not inclined to grant leave in view of the two recent decisions cited before us. In any view of the matter we do not think that it is proper on our part to pass any order notwithstanding the fact that it appears to us that this question was not directly in issue and has been presented not discussed in all its ramifications in the aforesaid two matters.
3. It has been the consistent view of the this Court in numerous cases that due to the non-submission of the enquiry report to the Petitioner, order of removal was vitiated. A Division Bench of this Court in the case of B.P. Chaurasia v. State of U.P. 1983 LCD 169 indicated as under:
Although under the amended Article 311(2) of Constitution, it is not necessary to give to delinquent a second opportunity of showing cause against the proposed penalty, and only one opportunity is given at the stage of enquiry, yet the proceeding being quasi-judicial in nature, it is expected that the final order would be speaking order. The order, annexure-12 is a non peaking order inasmuch as it does not discuss either the evidence or the reasons for the conclusion arrived at by the Tribunal, nor does it make the inquiry report a part of the dismissal order. Mere statement of conclusion is different from reasons for the conclusion. The order merely states the conclusion, without giving any reasons there for and without enclosing the inquiry report either. As such it is a non speaking order. It must, therefore, be held to be illegal.
4. The aforesaid judgment was relied upon by another Division Bench of this Court in Onkar Singh v. State of U.P. 1984 (2) LCD 397. In the case of Avtar Singh v. State of U.P. 1989 LCD 199 a Division Bench of this Court indicated as under:
As a copy of the enquiry report has not been given to the Petitioner, the order of punishment cannot be said to be duly communicated to him. He has thus been deprived of the benefit available to him to either file an appeal or a memorial before the highest revisional forums and other forums which may be available to him.
5. Undoubtedly, in the case of Union of India v. Mohd. Ranizan Khan (supra) it has been indicated that the observation shrill have prospective application and no punishment imposed shall be open to challenge on that ground, but a perusal of the observations of;, Hon''ble Supreme Court clearly indicated that this prospective application was limited to those cases where the matter has either not been challenged before the High Court or Supreme Court or where the High Court or Supreme Court had taken a contrary view earlier. In the instant case the Petitioner had approached this Court under Article 226 of the Constitution of India by filing this writ petition, hence the observations made in Mohd. Kamzan Khan (supra) cannot be made applicable in respect of such orders of punishment, against which either the appeal or revision is pending or subjudice before any Court of Law or Tribunal. A similar question was raised in the case of Devilal Shah v. Union of India 1991 (1) UP LB EC 490 Mr Justice R.R.K. Trivedi in this case indicated as under:
In my opinion the submission of Shri Sinha misconceived. It is well settled principle of law that the decision of question of law on which the judgment or order is based, if reversed or modified by the subsequent decision of the superior court in any other case cannot be a ground for review of such judgment or order. This principle has also been incorporated in Explanation to Rule 1 of Order XLVII CPC it appears that Hon''ble the Supreme Court has allowed only a prospective application of the aforesaid judgment keeping in view the aforesaid principle. It is also necessary as a matter of public policy not to disturb the finality of the orders. The said observations in para 17 of the judgment, however, cannot be applicable in respect of such orders awarding punishment, which are subjudice in appeal revision of any other legal proceedings. It can also not affect those orders in respect of which limitation for filing appeal has not expired, or even in such cases where limitation has expired but the delay caused is subsequently condoned by the competent authority in accordance with law. In the present case admittedly this writ petition was filed and is pending when this judgment interpreting the position of law has been given by Hon''ble the Supreme Court The Petitioner is thus fully entitled for the benefit of legal position expressed in the judgment of Hon''ble Supreme Court and the impugned order cannot be sustained.
6. In view of the fact that the writ petition filed by the Petitioner is pending, the case of Union of India v. Mohd. Ramzan Khan (supra) has full application and it cannot be said that the application of the said case was only prospective in nature, in the manner it was argued.
7. In this view of the matter the writ petition succeeds only on the point as indicated above, as such, there exists no reason for this Court to enter into other questions which have been raised in this writ petition The points raised and the grounds, which have been taken in this writ petition may well be raised before the punishing authority, who may consider the same in its final orders.
8. In view of what has been indicated above, the writ petition succeeds, A writ in the nature of certiorari is issued quashing the impugned order of dismissal dated 22-8-1984 contained in Annexure-1. A writ in the nature of mandamus is also issued directing the opposite parties to pay to the Petitioner all the consequential benefits arising out of the quashing of the impugned order However, it is clarified that this decision may not preclude the disciplinary authority from revising the proceedings and continuing with it in accordance with law, from the stage of supply of the inquiry report in cases where dismissal or removal was the punishment. No. order is made as to costs.
