WPSS/3478/2018 of DEVI PRASAD JOSHI Vs STATE OF UTTARAKHAND THROUGH PRINCIPAL SECRETARY FOOD AND CIVIL SUPPLY UTTARAKHAND SHASHAN

IN HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No.3478 of 2018 (S/S)

Devi Prasad Joshi (Male)

..…Petitioner

State of Uttarakhand and others

…Respondents

Advocate: Mr. Pankaj Purohit, Advocate for the petitioner.

Mrs. Anjali Bhargawa, Addl. C.S.C. for the State of Uttarakhand.

Hon’ble Sharad Kumar Sharma, J.

Brief facts of the case are that the petitioner to the present writ petition has put challenge to the two orders i.e. the order dated 01.08.2016 which has been passed by respondent no.3 by virtue of which the special adverse entry was recorded in the service records of the petitioner and simultaneously by the same order, the salary increment of the petitioner has been terminated for two years with cumulative effect and he has not been given the benefit increment for the year 2017-2018, 2018-2019 and the salary increments after the said period, was also directed to be withheld.

2. The brief facts are that the petitioner, who was initially appointed with the respondents as clerk, he was given posting as an Assistant In-charge/ Food Officer, by the then District Supply Officer in the Food Grains Godown, Tharali, District Chamoli. For certain set of allegations with regards to the professional misconduct, the then District Supply Officer in the Food Grains Department, Tharali, District Chamoli, had lodged the FIR against the petitioner, with the set of allegations that during his employment in the centre as observed therein its that in the year 2006-2007, he recorded storage of 459 quintal of sugar and 110 quintals of rice in the stock register; but by the end of the financial year ending on 31.03.2007 when the stock was taken and when the statement was prepared with regards to the said centre, it was found that the stock which was thus found to be recorded in the stock register, that had already been removed earlier and the entries made in the stock register were fake and fabricated. Consequently, it was observed, that the petitioner has indulged

himself in commission of the criminal offences, to be tried under Sections 420, 409, 406 and 120-B I.P.C. It was further contended that as consequence of the distribution of large number of stock beyond the prescribed limit, which was assessed as to be 3638.95 quintal, it was valued by the respondents that the respondents’ organization has suffered as loss of Rs.40,98,000/- under the scheme called as “Sampurna Gramin Rojgar Yojna”, it wasthe benefit, which was otherwise, was supposed to be extended to the public at large. It was further submitted that the distribution of the food grain stock thus made by the petitioner, in the set of allegations was contrary to the provisions of the scheme and without there being any prior permission for the distribution of the said stock, which was maintained in the centre where the petitioner was posted.

3. Upon the said set of allegations, the petitioner was placed under suspension by respondent no.3, by an order dated 24.06.2007 and the disciplinary proceedings is said to have been contemplated to be taken against the petitioner; and respondent no.3 had appointed Sub Divisional Magistrate, Chamoli as an Inquiry Officer to complete the inquiry into the said matter and to submit his report; within period of two months and for the said period, the petitioner was supposed to be remunerated as per Rule 53 of the Financial Hand Book Part II to IV. The Inquiry Officer prepared the charge sheet in which three basic charges were formulated against the petitioner and the charge sheet thus submitted on 04.01.2008, the following charges were formulated.

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savkjki l[;k 01& vki jktdh; vUu Hk.Mkj Fkjkyh esa izHkkjh lgk;d [kk|kUu fufj{kd ds in ij rSukr Fks] rks vkids dk;Zdky ds nkSjku foRrh; o"kZ 2006&07 esa jktdh; vUu Hk.Mkj Fkjkyh esa 459-00 dqUry phuh 110-00 dq0 pkoy vUR;ksn; dh izkfIr vfHkys[kksa esa vafdr dh x;h o o"kZ ds vUr esa fnukad 31&03&2007 ds ekfld fooj.k esa ;g fVIi.kh fy[k dj [kkfjt dj nh x;h fd mijksDr ek=k dk [kk|kUu@phuh <qyku Bsdsnkj }kjk izkIr ugha djk;h x;hA

tks fdlh Hkh izdkj ls fof/k lEer ugha gSa o Li"V :i ls xcu fd;s tkus dh iqf"V gksrh gSA

savkjki l[;k 02& vki }kjk foRrh; o"kZ 2005&06 ,oa 2006&07 esa 3638-95 dq0 fofHkUu ;kstukvksa dk [kk|kUu lEiw.kZ xzkeh.k jkstxkj ;kstuk esa gLrkUrfjr dj forfjr dj 'kklu dks :i;s 40]98]992-99 dh vkfFkZd {kfr igqapk;hA bl izdkj bl ;kstuk ds [kk|kUu nwljh ;kstuk esa izfrcaf/kr fd;s tkus ds ckn Hkh fcuk l{ke vf/kdkjh dh lgefr ds vius d`R;ksa dks fNikus rFkk 'kklu dks va/ksjs esa j[k dj [kk|kUu forj.k dk dk;Z fd;k x;k tks "kM;a= dh Js.kh esa vkrk gSA

savkjki l[;k 03& jktdh; vUu Hk.Mkj Fkjkyh esa dsUn z izHkkjh ds :i esa rSukrh ds nkSjku foRrh; o"kZ 2005&06 esa jsy’kh"kZ gY}kuh esa fofHkUu

;kstukvksa dk [kk|kUu yxHkx 3800-00 dq0 jktdh; vUu Hk.Mkj Fkjkyh esa izkIr ugha gqvkA ftlesa vki }kjk le; ij mPpkf/kdkfj;ksa dks voxr ugha djk;k x;k vkSj u gh <qyku Bsdsnkj dks uksfVl vkfn izsf"kr fd;s x;sA ftlls [kk|kUuksa ds O;ogj.k ,oa nqfoZfu;skx esa vkidh iw.kZr% lafyIrrk izfrr gksrh gSA^^

4.In response to the charge sheet the petitioner has submitted his reply before the Inquiry Officer on 20.02.2008, but however ultimately on culmination of inquiry the Inquiry Officer is said to have submitted the Inquiry Report on 05.03.2008, wherein it was observed that the petitioner has been held responsible for wrongfully stating the facts with regards to the distribution of Food Stock, from one Governmental Scheme to another and hence the action with regards to the derelictions in the performance of duties and causing loss to the department; and as consequence of the non delivery of 3800 quintal of Food Grains in Tharali Godowns it had resulted into an inaction on his part. Since the report thus submitted by the inquiry officer, the respondent no.3, was not satisfied with the Inquiry report submitted by the Inquiry Officer on 09.04.2008, he had directed to re-conduct the inquiry, afresh and it was further directed that the departmental proceedings to be concluded, as early as possible, preferably within month of the order dated 27.05.2008.

5. On the basis of the said order of 27.05.2008 respondent no.3, holding the petitioner as guilty of the offence, had passed the order on 01.08.2016, whereby by the order impugned following punishments have been imposed upon the petitioner, which are precisely dealt with hereunder:-

^^1& Jh nsoh izlkn tks’kh dks vxzfyf[kr izdkj ls ,d ls ,d fo’ks"k izfrdwy izfo"V iznku dh tkrh gS& ^^ Jh nsoh izlkn tks’kh }kjk o"kZ 2006&07 esa fcuk [kkn~;ku izkIr fd;s fu;e fo:} rjhds ls Hk.Mkj iaftdk esa bls vafdr djus rFkk ckn esa bls gVk nsuk] 'kklukns’kksa ds foijhr ,d ;kstuk dk [kk|kUu nwljh ;kstuk esa forfjr djus rFkk o"kZ 2005&06 esa jsy’kh"kZ gY}kuh ls [kk|kUu dks vUu Hk.Mkj Fkjkyh esa u igqWpus ij mldh lwpuk lgh le; ij mPpkf/kdkfj;ksa dks u nsus rFkk blesa vius drZO;ksa ds leqfpr fuoZgu u fd;s tkus ds dkj.k ,d fo’ks"k izfrdwy izfof"V iznku dh tkrh gSA^^

;g izfrdwy izfof"V Jh nsoh izlkn tks’kh dh lsok iqfLrdk esa vafdr dh tk;] bUgsa rFkk vU; mPpkf/kdkfj;ksa dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq izsf"kr dh tk;A 2& pwWfd Jh nsoh izlkn tks’kh ds mijksDr d`R; ls 'kklu@foHkkx dh {kfr /kwfey gqbZ gS] jktLo dks Hkkjh {kfr gqbZ gSA vr% Jh nsoh izlkn tks’kh dks ns; vkxkeh nks osru o`f) lwekIr dh tkrh gSA ;kuh Jh tks’kh dks vkxkeh osru o`f) 2017 rFkk 2018 esa ugha nh tk;sxh rFkk bUgsa 2018 esa 2019 esa fdlh izdkj dh osru o`f) ns; ugha gksxh rFkk Hkfo"; esa Hkh bldk ykHk bUgsa ugha feysxkA bUgsa vxyh osru o`f) o"kZ 2019 esa] ;fn vuqeU; gksxh rks iznku dh tk;sxhA^^

6.If the conclusion as drawn by the disciplinary authority is taken into consideration as rendered in his order of 01.08.2016, the petitioner was awarded with the punishment of special adverse entry for the year 2006-2007. Simultaneously, by the same order of punishment, the punishment was also imposed of withholding of his increment with cumulative effect including the withholdment of the increment for the year of 2018-2019.

7. Aggrieved against this order of punishment dated 01.08.2016 the petitioner had preferred departmental appeal, under Rule 11 of the Uttarakhand Government Servant (Discipline and Appeal) Rules 2003, and the appeal too has been dismissed by the appellate authority i.e. Commissioner Garhwal Division; by one of the impugned orders dated 26.02.2018. There are multi fold arguments, which has been extended by the learned counsel for the petitioner, while putting the challenge to the impugned orders before this Court:-

1.He submits, that the impugned order of punishment of imposing “special adverse entry”, is beyond the competence of the disciplinary authority, because it is not penalty, which is contemplated under Rule 3 of the Rules and since the Rule itself, does not contemplate an imposition of the special adverse entry and when there exists no such legal concept of punishment under service law of imposing the special adverse entry, the same would be bad in the eyes of law. Being beyond the Rules of 2003. adverse entry”, is beyond the competence of the disciplinary authority, because it is not penalty, which is contemplated under Rule 3 of the Rules and since the Rule itself, does not contemplate an imposition of the special adverse entry and when there exists no such legal concept of punishment under service law of imposing the special adverse entry, the same would be bad in the eyes of law. Being beyond the Rules of 2003.2.Secondly, he submits, that while considering the aspect of imposition of an adverse entry, as well as while considering the aspect pertaining to the imposition of punishment for withholdment of an increment, there are two distinct aspects, which are to be dealt with separately by the respondents and composite order of imposing the special adverse entry and withholdment of increment could not have been passed by the respondents, as they are governed by different part of Rules of 2003, as made applicable on the public servants employed in the services of the State. an adverse entry, as well as while considering the aspect pertaining to the imposition of punishment for withholdment of an increment, there are two distinct aspects, which are to be dealt with separately by the respondents and composite order of imposing the special adverse entry and withholdment of increment could not have been passed by the respondents, as they are governed by different part of Rules of 2003, as made applicable on the public servants employed in the services of the State.

3.Thirdly, he submits that if the second limb of the order, where it confines the imposition of punishment of withholdment of increments for the year the imposition of punishment of withholdment of increments for the year

2017-2018, 2018-2019 is concerned, in that eventuality had the order was limited itself to that extent the punishment would fall within the ambit of Clause 3A(II) i.e. it will be “minor penalty”; but as soon as the second penalty had been imposed by the impugned order, once it extends the imposition of withholdment of increment with future effect, then it will fall to be under the classification of penalties which are provided under Sub Clause (b) of Rule 13-I, which will fall to be “major penalty”.

4.Hence, he submits, that once the nature of an order falls as to be within the ambit of Sub Clause (I) of Clause-b of Rule 3, in that eventuality, it was mandatory on part of the respondents to have complied with the provisions contained under Rule 7 of the Rules of 2003, which deals with the procedure, which has to be mandatorily followed for the purposes of conducting an inquiry against the petitioner or any delinquent employee for the purposes of imposing major penalty. the ambit of Sub Clause (I) of Clause-b of Rule 3, in that eventuality, it was mandatory on part of the respondents to have complied with the provisions contained under Rule 7 of the Rules of 2003, which deals with the procedure, which has to be mandatorily followed for the purposes of conducting an inquiry against the petitioner or any delinquent employee for the purposes of imposing major penalty.

5.He submits, that the entire action of the respondents would be in violative of the judgment of AIR 1994 Supreme Court 1074, Managing Director, ECIL and others vs. Karunakar and Others, wherein on culmination of the proceedings for the purposes of imposition of the major penalty, whether the delinquent officer demands the copy of inquiry report or not, he ought to have been furnished with the inquiry report and before imposition of the punishment, show cause notice was mandatorily required to be given to the petitioner in order to enable him to have his say and to justify the stand of the respondents; as to whether under the given set of circumstances, the major penalty at all was called for to be imposed on the petitioner. of the judgment of AIR 1994 Supreme Court 1074, Managing Director, ECIL and others vs. Karunakar and Others, wherein on culmination of the proceedings for the purposes of imposition of the major penalty, whether the delinquent officer demands the copy of inquiry report or not, he ought to have been furnished with the inquiry report and before imposition of the punishment, show cause notice was mandatorily required to be given to the petitioner in order to enable him to have his say and to justify the stand of the respondents; as to whether under the given set of circumstances, the major penalty at all was called for to be imposed on the petitioner.6.He further submits that the action of the respondents would be legally bad for the reason being, that when on the same set of charges both criminal and disciplinary proceedings, are having been taken together, as would be apparent from the “charge sheet”of the departmental proceedings and in accordance with the writ petition and the “charge” framed by the criminal court, which has been made as part of the record of the writ for the reason being, that when on the same set of charges both criminal and disciplinary proceedings, are having been taken together, as would be apparent from the “charge sheet”of the departmental proceedings and in accordance with the writ petition and the “charge” framed by the criminal court, which has been made as part of the record of the writ

petition by way of supplementary affidavit dated 11.12.2007, if that is taken into consideration, in fact the foundation of the departmental proceedings “charge sheet”, in the disciplinary proceedings and “charges” in the criminal proceedings are based upon almost the same set of allegations, which was principally levelled against the petitioner and hence in the light of the observations made in para 34 of the judgment of (1999) 3 Supreme Court 679 M. Paul Anthony vs. Bharat Gold Mines Ltd. and Others, the impact of an acquittal of petitioner in criminal proceedings will have direct bearing over the decision to be taken by disciplinary authority on culmination of disciplinary proceedings.

8. On the other hand, learned counsel for the respondents was called upon to answer the query of the Court, as well as the arguments which had been extended by the counsel for the petitioner, as to whether there could be composite order of imposing of punishment i.e. the special adverse entry and simultaneously imposing an order of withholdment of annual increments with future effect, in fact any plausible reply was not forthcoming from the respondents and even if on scrutinization of the Rules, when the question was posed as to whether the impugned order which is under challenge; whether it would be falling to be major penalty or minor penalty or not. In fact on simplicitor reading of the language of the Rules, the counsel for the respondents was unable to satisfy the Court, that the nature of punishment which was imposed by Clause 2 of the impugned order passed by the disciplinary authority, would fall to be class of major penalty falling under Sub Clause (b) of Rule 3 of the Rules of 2003. In that eventuality, if the findings recorded in the impugned order is taken into consideration, apparently, it does not reflect, that the respondents at all have cared to have followed with the prescribed procedure provided under the Rule 7 of the Rules of 2003, which is mandated for the purpose of regulating the procedure for imposition of major punishment, on the employee, on set of charges which has been levelled against him on the disciplinary side and hence, the judgment would be vitiated.

9. The learned Addl. C.S.C. lastly has submitted that the disciplinary proceedings, which has ultimately culminated into passing of the impugned order, which stood affirmed by the appellate authority; if that is taken into

consideration, since it has proceeded under the Uttarakhand Government Servant (Discipline and Appeal) Rules 2003, according to the contention of the learned counsel for the respondents, it would be revisable under Rule 13 of the Rules of 2003, hence, what she wanted to postulate is that the petitioner has got remedy of preferring of departmental revision. This Court feels to be necessary to deal with this limb of argument of learned counsel for the respondent at this stage itself.

10. The fact of the matter is that the writ petition as against the impugned order was instituted way back on 13.10.2018. When the matter was argued, at an admission stage, the respondents were heard and it was on the request which was made by the respondents themselves that they were directed to file counter affidavit by an order passed by the Coordinate Bench on 06.10.2018 and thereafter the pleadings have been exchanged. The plea of availability of remedy of revision was never pressed into argument when the writ petition was heard at the admission stage, rather the State counsel themselves prayed for time to file counter affidavit, thus this plea is not acceptable by this Court at this Stage.

11. Learned counsel for the respondents submits that merely inviting of counter affidavit or exchange of pleading without the writ petition, being admitted an embargo of availability of an alternative remedy of revision will not created bar. In relation thereto, in order to answer the preliminary objection taken by the respondents, the reference of the judgment reported in (AIR) 1969 Supreme Court 556, Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad becomes necessary to be considered which in its para 3 has dealt with the aspect with regards to the availability of statutory remedy and its exertion. It has held that in its para 4 that when the matter has travelled to the Court after availing of an appellate remedy though under the taxing laws therein, the availability of remedy of revision before the superior forum may not be statutorily creating bar in its strict sense, because the bar of an alternative remedy is only self imposed restriction on the Constitutional Courts under Article 226 of the Constitution of India, but where in those circumstances it apparently reveals to the Court that the procedure resorted to by the respondents for the purposes of imposition of punishment happens to be in controversy to the

settled principles or Rules of law applicable governing the service conditions of an employee, the availability of revisional remedy, after availing of an alternative remedy may not be strictly and absolutely be creating bar in invoking the writ jurisdiction under Article 226 of the Constitution of India. Para 3 and 4 are extracted hereunder:-

“3. It is well-established proposition of law that when an alternative and equally efficacious remedy is open to litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue prerogative writ. It is true that the existence of statutory remedy does not affect the jurisdiction of the High Court to issue writ. But, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, "the existence of an adequate legal remedy is thing to be taken into consideration in the matter of granting writs" and where such remedy exists it will be sound exercise of discretion to refuse to interfere in writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before writ is granted is rule of self-imposed limitation, rule of policy, and discretion rather than rule of law and the Court may therefore in exceptional cases issue writ such as writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595, 605= (AIR 1958 SC 86, 93), S. R. Das, C. J., speaking for the Court, observed:

"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. II, p. 180 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at conclusion as to whether it should, in exercise of its discretion, issue writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is rule of policy, convenience and discretion rather than rule of law and instances are numerous where writ of certiorari has been issued in spite of the fact that the aggrieved

party had other adequate legal remedies. In the King v. Postmaster-General Ex parte Carmichael, (1928) (1) KB 291 certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior Court will readily issue certiorari in case where there has been denial of natural justice before Court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read, 1942 (1) KB 281 is an authority in point. In that case man had been convicted in Court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."

There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before Tribunal under provision of law, which is ultra vires it is open to party aggrieved thereby to move the High Court under Article. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. -(See the decisions of this Court in Carl Still G. m. b. H. v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. Ltd. vs. State of Bihar, (1955) 2 SCR 603=(AIR 1955 SC 661). In the second place, the doctrine has no application in case where the impugned order has been made in violation of the principles of natural justice.(See 1958 SCR 595, 605= (AIR 1958 SC 86, 93).

4. It is manifest in the present case that the appellant had alleged in the writ petition that the Taxing Officer had no authority to impose the tax and there was no validly constituted Antarim Zila Parishad after December 31, 1959. It was further alleged that Sections 114 & 124 of the U. P. District Boards Act No. X of 1922 violated Article 14 of the, Constitution as arbitrary power was granted to District Boards as well as the State Government to exempt any person or class of persons or any property or class of properties from the scope of the Act. There is also an allegation that the imposition of the tax violated the provisions of Article 276 of the Constitution and that the Antarim Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/- per annum prescribed in that Article. It was further contended on behalf of the appellant that the procedure for assessment of the tax was not followed and there was violation of the principles of natural justice. In view of the allegations of the appellant that the taxing provisions are ultra vires and that there was violation of the principles of natural justice, we think that the High Court was in error in summarily dismissing the writ petition on the ground that the appellant had an alternative remedy of statutory appeal. It was

contended by Mr. Chagla on behalf of the respondent that in dismissing the writ petition the High Court was acting in its discretion. But it is manifest in the present case that the discretion of the High Court has not been exercised in accordance with law and the judgments of the Division Bench dated March 27, 1964 and of the learned Single Judge dated February 13, 1964 summarily dismissing the writ petition are defective in law.”

12. There is yet an another judgment reported in (2004) 13 Supreme Court 665, Durga Enterprises (P) Ltd. and Another vs. Principal Secretary, Govt. of U.P. and Others, wherein the Hon’ble Apex Court had observed in its para 2, 3, 4 & 6, that when the matter has been pending consideration before the Court for quite sufficient long time and the pleadings have been called for by the Court to be exchanged, it will amount to that the High Court since having entertained the writ petition and had ventured into the pleadings which were otherwise also complete, which was mandate which was casted on the High Court that it ought to have decided the case on its own merit, instead of relegating the parties to an alternative remedy. The relevant observations made in the aforesaid paragraphs 2, 3, 4 and 6 are extracted hereunder:-

“2. By the impugned order the writ petition, which was pending for long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents’ alleged right of re-entry on the disputed property in accordance with sub-rules(2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid Rules contain mechanism for adjudication of the dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved.

3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to civil suit.

4. We, therefore, set aside the impugned order of High Court and remit the matter to it for taking decision on merits, after hearing the parties, within the earliest possible period.

6. During the pendency of the writ petition in the High Court, the status quo as today, with regard to possession of the property in question, shall be maintained and the parties will not create any third-party rights.”

13. In view of the aforesaid, the principal contention which has been raised by the learned Additional C.S.C., with regards to the availability of an alternative remedy which would be available to the petitioner, I am of the view that once the writ petition has been entertained, and it has been kept pending for sufficient long time, when the pleadings were permitted to be exchanged by the High Court, then it cast duty on the High Court to have decided the writ petition on its own merits, rather than belatedly relegating the petitioner to an alternative forum; because that will amount to be an abuse of judicial proceedings.

14. While dealing with the second limb of argument of the learned counsel for the petitioner, pertaining to the charges levelled in the disciplinary proceedings and the charges as were framed on the criminal side by the order of the Court dated 11.12.2007, after having comparatively scrutinized the same, this Court is satisfied that in fact, the charges and its impact over the proceedings, in both the proceedings happens to be similar in nature based upon the same set of allegations, with regards to the incident which has chanced in the financial year of 2006-2007 and in that eventuality, where there is similarity in the charges, which was being tried both on the disciplinary side and on criminal proceedings as well, ultimately on the culmination of the criminal proceedings which had resulted into the acquittal of the petitioner out of the criminal offences by the judgment rendered by the Chief Judicial Magistrate, Chamoli dated 20.05.2015, its effect has had to be considered to be made applicable over the conclusion drawn by the disciplinary authority while imposing an order of punishment under Rules of 2003 and in relation thereto the learned counsel for the petitioner had referred to judgment rendered by the Hon’ble Apex Court as reported in (1999) 3 Supreme Court 679 M. Paul Anthony vs. Bharat Gold Mines Ltd. and Others andparticularly he has drawn the attention of this Court to para 34 of the said judgment, which is extracted hereunder:-

“34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles there from.' The findings

recorded by the Inquiry Officer, copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand.”15. In fact, the Hon’ble Apex Court in the said case has observed that when delinquent employee is facing dual proceedings on the disciplinary side, as well as on the criminal proceedings and on its acquittal and particularly when both the proceedings are based on the same set of circumstances and on the same set of allegations, the judicial pronouncement of acquittal has been pronounced the same, has to be taken into consideration for the purposes of deciding the disciplinary proceedings on departmental side, because not placing reliance on the same would be unjust and unfair it would rather be oppressive to the findings which has been recorded in judicial proceedings in favour of delinquent employee, being tried under the Uttarakhand Government Servant (Discipline and Appeal) Rules 2003.

16. Reverting back to the scrutiny of the impugned order of punishment under challenge and having already observed, that once Clause 2 of the impugned order when it imposes punishment of withholding of an increment with the cumulative effect it would definitely fall to be within the purview of major penalty, and then it becomes incumbent on part of the disciplinary authority that it ought to have ensured, to have resorted to the procedure provided under Rule 2003. But there is nothing on record to show, that the strict principal and procedure as it had been laid down under Rule 7 of the Rules of 2003, was ever followed prior to imposing the major penalty.

17. Now there is yet an another stand which has been taken by the respondents in the counter affidavit that prior to imposition of punishment, the respondents have followed the principles laid down by the judgment of AIR1994 Supreme Court 1074,Managing Director, ECIL Hyderabadand others vs. Karunakar and Others, as reported in where the Constitution Bench of the Hon’ble Apex Court; has held that while drawing the implications from Article 311 to be read with Article 14 of Constitution of India, the delinquent officer, who is facing the departmental proceedings is mandatorily required to be provided with an opportunity to rebut the findings or the observations which had been made in the inquiry proceedings, if at all it is held against him and the findings of which has been derived and extracted to be applied for the purposes of imposition of punishment upon him. In the absence of and failure of an aspect on record, that on the culmination of the proceedings, the inquiry report was ever supplied to the petitioner, calling for his objection against the findings recorded in it and the petitioner was when particularly not issued with the second show cause notice to submit his reply with regards to the nature of the proposed punishment to be imposed on the petitioner, the impugned order would be apparently in derogation to the ratio laid down by the Constitutional Bench as laid down in the judgment of Managing Director, ECIL and othes vs. Karunakar and Others. Para 7 and 9 of the said judgment is extracted hereunder:-

“7. What emerges from the above survey of the law on the subject is as follows:

Since the Government of India Act, 1935 till the 42nd Amendment of the Constitution, the Government servant had always the right to receive report of the Inquiry Officer/authority and to represent against the findings recorded in it when the Inquiry Officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of 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 essential part of the 'reasonable opportunity' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the Inquiry Officer's report and to show cause against the findings in the report 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 notice to shown cause against the proposed penalty was issued. If the disciplinary authority after considering the Inquiry officer's report had dropped the proceedings or had decided to impose penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt 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 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. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on 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 lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusion. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such 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 fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and denial of fair opportunity to the employee to consider the findings recorded by third party like the Inquiry

Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its 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 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 evidence, the report of the Inquiry Officer and the representation of the employee against it.

It will thus be seen that

where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its 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 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, 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.

The position in law can also be looked at from slightly different angle. Article 311(2) says that the employee shall be given "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by third person like the Inquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted 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 necessary to give such person any opportunity of making

representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the 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 innocence of the charges.

Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive 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 part of the employee's right to defend himself against the charges levelled against him. denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is denial of reasonable opportunity to the employee to prove his innocence and is breach of the principles of 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 denial of reasonable opportunity and 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 copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is 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 him and given reasonable opportunity of being heard in respect of those charges.

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or civil service of State or to the holders of the civil posts under the Union or 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 punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not 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 in the inquiry report is an integral part of the opportunity of defence against the charges and is 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 establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed

from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is 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 all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the 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 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 breach of the principles of natural justice nor denial of the reasonable opportunity.

It is only if the Court/Tribunal finds that the furnishing of the report would have made 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 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 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 result of the setting aside of the inquiry for failure to furnish the report, should be treated as reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

In this connection we may refer to decision of this Court in State Bank of India v. Shri N. Sundara Money, (1976) 3 SCR 160: (AIR 1976 SC 1111), where the Court has shown the proper course to be adopted where the termination of service of an employee is faulted on technical ground. This was case where an employee was appointed as Cashier off and on by the State Bank of India between July 31, 1973 and August 29, 1973. Together with the earlier employment, this nine days' employment during the said period had ripened into 240 days of broken bits of service. The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post "today" de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.

Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the delinquent employee is 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 available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E. Bashyan's case (supra) by the learned Judges of this Court whoreferred the question to the larger Bench. It has also been pointed out that in K.C. Asthana's Case(supra), no such question was 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 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 notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply 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 copy of the report to the employee.

However, it cannot he 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 on account of the said error.

It is now well-settled that the courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice.

In this connection, we may refer to some well-known decision on the point.

In I.C. Golak Nath and Ors. v. State of Punjab (1967) 2 SCR 762: (AIR 1967 SC 1643), dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, the Court took into consideration the fact that between 1950 and 1967, as many as twenty amendments were made in the Constitution and the legislatures of various States had made laws bringing about an agrarian revolution in the country. These amendments and legislations were made on the basis of the correctness of the decisions in Sri Sankari Prasad Singh Deo etc. v. Union of India, 1952 SCR 89: (AIR 1951 SCR 458) and Sajjan Singh vs. State of Rajasthan, (1965) 1 SCR 933: (AIR 1965 SC 845) viz., that the Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside the judicial scrutiny on the ground they infringed the said rights.The Court then stated that as the highest Court in the land, it must evolve some reasonable principle to meet the said 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 real sense, they make laws. Though it is not admitted, such role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive. To meet the then extraordinary situation that may be caused by the said decision, the Court felt that it must evolve some doctrine which had roots in reason and precedents so that the cast may be preserved and the future protected. The Court then referred to two doctrines familiar to American Jurisprudence, viz., Blackstonian view that the Court was not to pronounce 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 to harmonise the doctrine of prospective over-ruling with that of Stare decisis expressed in Great Northern Railway v. Sunburst Oil & Ref. Co. [1932] 287 U.S. 35877 L.ed. 360 The court also referred to the decisions subsequent to Sunburst and to the "Practice Statement (Judicial Precedent)" issued by the House of Lords recorded in (1966) 1 W.L.R. 1234 and pointed out that the modern doctrine as opposed to the Blackstonian theory was suitable for fast moving society. It was pragmatic solution reconciling the two doctrines. The Court found law but restricted its operation to the future thus enabling it to bring about smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It was left to the discretion of the court to prescribe the limits of the retroactivity. 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 of res judicata precluded any scope for retroactivity in respect of subject matter that had been finally decided between the parties. The Court pointed out that the Courts in this land also, by interpretation, reject retroactivity of statutory provisions though couched in general terms on the ground that they affect vested rights. The Court then referred to Articles 141 and 142 to point out that they are coached in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice. These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. The Court then held that in the circumstances to deny the power to the Supreme Court to declare the operation of law prospectively on the basis of some outmoded

theory that the Court only finds law but does not make it is to make ineffective powerful instrument of justice placed in the hands of the highest judiciary of this land. The Court then observing that it was for the first time called upon to apply the doctrine of prospective overruling evolved in different country under different circumstances, stated that it would like to move warily in the beginning. Proceeding further, the Court laid down the following propositions:

(1) The doctrine of prospective 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 fundamental rights. The Court also declared that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.

Accepting the lead given in the above decision, this Court has since extended the doctrine to the interpretation of ordinary statutes as well.

In Woman Rao v. Union of India, (1981)2 SCR 1: (AIR 1981) SC 271), the question involved was of the validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and again the device of prospective overruling was resorted to.

In Atam Prakash v. State of Haryana (1986) 2 SCC 249: (AIR 1986 SC 859), the question was of the validity of the Punjab Pre-emption Act, 1913. The Court while holding that the relevant provisions of the Act were ultra vires the Constitution gave direction that the suits and appeals which were pending in various courts will be disposed of in accordance with the declaration made in the said decision. Where, however, the decrees had become final they were directed to be binding inter- parties and it was held that the declaration granted by the Court with regard to the invalidity of the provisions of the Act would be of no avail to the parties to such decrees.

In Orissa Cement Ltd. etc. etc. v. State of Orissa and Ors. etc. etc. Supp. 1 SCC 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 finding regarding the invalidity of the levy need not automatically result in direction for refund of all collections thereof made earlier. The Court held that the declaration regarding

the invalidity of provision of the Act enabling levy and the determination of the relief to be granted were two different things and, in the latter sphere, the Court had, and it must be held to have, certain amount of discretion. It is open to the Court to grant moulded restricted relief in manner most appropriate to the situation before it and in such way as to advance the interest of justice. It is not always possible in all situations to give logical and complete effect to finding. On this view, the Court refused to give direction to refund to the assessees any of the amounts of cess collected until the date of the decision since such refund would work hardship and injustice to the State.

We may also in this connection refer to Victor Linkletter v. Victor G. Walker 381 U.S. 61814 L.ed. 2d 601where it was held that ruling which is purely prospective does not apply even to the parties before the court. The Court held that in appropriate cases 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 Benches of this Court, viz., S.P. Viswanathan v. Union of India,(1991) Supp 2 SCC 269: (1991 AIR SCW 730); Union of India v. A.K. Chatterjee:(1993)2 SCC 191 and Managing Director, Food Corporation of India and Ors. v. Narendra Kumar Jain [1993] 2 SCC 400

The apparent departure was in R.K. Vashisht v. Union of India and Ors. However, the employee there had made request for 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 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 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 decision rendered on 18th July, 1985 in Dr. H.G. Patel v. Dr. (Mrs.) K.S. Parikh and Ors. and full Bench of the Central Administrative Tribunal in its decision rendered on 6.11.1987 in Premnath K. Sharma v. Union of India and Ors.[1988] 2 ASLJ 449 had taken similar view on the subject. It also appears that some High Courts and some Benches of the Central Administrative Tribunal have given retrospective effect to the law laid down in Mohd. Ramzan Khan's case (supra) notwithstanding the fact that the said decision itself had expressly made the law prospective in operation. The fact, however, remains that although the judgmentsin H.G. Patel's case and Premnath K. Sharma'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 similar view prior to the decision in Mohd. Ramzan Khan's case (supra) or giving retrospective effect to the said view and those decisions were not specifically challenged, the other decisions taking the same view were under challenge before this Court both before Mohd. Ramzan Khan's case (supra) was decided and thereafter. In fact, as stated in the beginning, the reference to this Bench was made in one such case as late as on the 5th August, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan's case (supra), the law on the subject was in flux. Indeed, it is contended on behalf of the appellants/petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan's case (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 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 (supra) and of the Gujarat High Court in Premnath K. Sharma's case (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan khan's case was decided. Since the said decision made the law expressly prospective in operation 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 ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was 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).

8. 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 that there was no need to furnish copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been 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 denial on the part of the management to furnish the report would ultimately prove to be no more than technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave to the said orders should be reopened on that account. Hence we hold as above.

In the view we have taken, we direct that all the appeals and special leave petitions be now placed before an appropriate Bench of this Court for decision according to the law laid down here.”

18. To the argument extended by the counsel for the petitioner and having gone through the records since there is an apparent non compliance of the Rule 7 of the Rules and particularly when the respondents counsel has not been able to satisfy the Court that the nature of punishment, which was being imposed upon the petitioner was falling outside the ambit of the major penalty, there is apparently non compliance of Rule 7 of the Rules of 2003. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned orders of imposing the major penalty and the order of imposing the special adverse entry, would fall to be contrary to the Rules as well as contrary, to the ratio which had been laid down precedents of the Hon’ble Apex Court, hence, they are quashed. The writ petition is allowed. The petitioner would be entitled to get all the consequential financial benefits after grant of the annual increment, which has been directed to be withheld in pursuance to the impugned order.

19. Writ petition is accordingly allowed, the impugned orders of punishment dated 01.08.2016 as passed by respondent no.3, and the appellate order dated 26.02.2018 passed by the respondent no.2 are quashed, with all consequential monetary benefits to be payable to the petitioner with its arrears. However, there would be no order as to cost.

(Sharad Kumar Sharma, J.)

27.12.2021