Prasad Biswas v. State Of Tripura And 3 ORS.

IN
THE
HIGH
COURT
OF
TRIPURA
A
G
A
R
T
A
L
A

W.P(C)
No.331
of
2011






Shri
Prasad
Biswas,



     

  

 
         



 


        Petitioner
-
V
e
r
s
u
s
-

1.
The
State
of
Tripura,


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  (

  )
 *    +
   2.
The
Secretary,

#$  %  $  $ "   &$' (

 

  (

  )
 *    +
   3.
The
District
Magistrate
&
Collector,

   


    , -  4.
The
Additional
Commissioner,

 $  ./  
    *    #-

 

 

(

  )
 *    +
      Respondents

B
E
F
O
R
E
THE
HON'BLE
MR.
JUSTICE
S.
TALAPATRA

0  
 :
1* $ -*"

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 0

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22345326738235326   ! :16.12.2015
9$7  +  :



YES NO

√

[2]

JUDGMENT
&
ORDER
!$ 

     


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 C ".....
it
is
clearly
evident
that
the
Government
suffered
this
loss
due
to
negligence
of
duty
by
Sri
Prasad
Biswas.
Therefore,
it
is
hereby
decided
that
said
Sri
Prasad
Biswas
should
compensate
for
the
loss.
However,
keeping
a
lenient
view
seeing
past
record
Sri
Prasad
Biswas
a
penalty
Rs.15,000/B
(Rupees
fifteen
thousand)
only
is
hereby
awarded
to
Sri
Prasad
Biswas
so
as
to
ensure
greater
care
and
sincerity
in
discharging
official
duties
in
future."



  


 
 $ 

"$ $  

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- 
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[3] -  
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C ArticleBI
"That
Shri
Prasad
Biswas
while
functioning
as
Junior
Engineer
in
BDO's
office,
Gournagar
had
unauthorisedly
/illegally
distributed
260
Nos.
of
RCC
pillars
valued
Rs.91,598/B
among
the
people
of
Noorpur
G.P.
without
any
permission/authority/
knowledge
of
the
BDO
and
also
without
issue
of
work
order.
While
the
BDO,
Gournagar
directed
Shri
Biswas
position
said
pillars
at
manufacturing
site,
he
failed
to
comply
the
same.
Further
when
order
was
issued
by
the
BDO
directing
Shri
Biswas
to
refund
Rs.91,598/B
for
his
aforesaid
illegal
act,
he
did
not
comply
the
same
wilfully.

ArticleBII
That
Shri
Prasad
Biswas
while
functioning
as
Junior
Engineer
in
BDO's
office,
Gournagar
was
engaged
as
Implementing
Officer
for
construction
of
OBB
building
at
Rangauti
under
EAS
during
2001B2002
vide
work
order
No.6640B62
dated
12.10.01.
But
owing
to
subBstandard
execution
of
work
due
to
wilful
negligence
by
said
Shri
Biswas
constructed
building
had
collapsed
on
26.04.2002
causing
serious
loss
of
invested
fund
of
the
Govt.
On
enquiry
the
estimated
loss
was
found
to
be
Rs.43,268/B

ArticleBIII
That
Shri
Prasad
Biswas
while
functioning
as
Junior
Engineer
in
BDO's
office,
Gournagar
was
engaged
as
Implementing
Officer
for
construction
of
a
culvert
in
Tillagaon
Gaon
Panchayet
under
RD
Scheme
during
2000B2001.

While
executing
the
work
as
Implementing
Officer
he
had
certified
2
Nos.
of
bills
against
claimed
supply
of
18000
1st

class
brick
in
each
for
payment
to
M/S
Soma
Brick
Industry,
Kumarghat.

[4] found
that
only
15757
Nos.
of
1st

class
brick
and
1476
Nos.
of
Jhama
bricks
were
utilized
in

the
work.
No
proof
found
about
consumption
of
balance
bricks
14767
Nos.
costing
Rs.37,656/B.
Moreover,
total
value
of
executed
work
was
found
Rs.87,436/B
against
estimated
cost
Rs.1,85,000/B.
Cement
and
cash
wages
lifted
&
received
by
the
Implementing
Officer
in
excess
were
recovered
from
said
Shri
Biswas,
JE.
A
Memo
was
issued
to
said
Shri
Biswas
on
27.01.03
by
BDO,
Gournagar
on
preliminary
assessment
directing
him
refund
Rs.35,700/B
as
cost
unButilized
14,000/B
bricks
which
he
failed
to
comply.

By
doing
such
act,
Shri
Prasad
Biswas,
Junior
Engineer
has
proved
his
negligence
in
Govt.

Duty,
lack
of
devotion,
lack
of
integrity
and
violated
relevant
provisions
of
rule
of
the
TCS
(Conduct)
Rules,
1988
which
warrants
disciplinary
action."



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  "& ..  C DThe
BDO/GNR
ordered
the
undersigned
to
raise
the
plinth
height
by
0.5
meter
which
was
against
my
will.
Consequently,
the
extra
load
caused
by
the
raising
of
plinth
height
made
the
plinth
sink
into
the
soft
soil.
Ultimately,
high
tension
produced
thereof
caused
the
damage
of
the
building.
For
such
faulty
and
poor
wind
resistive
height
this
building
once
again
this
year
damaged
under
storm."

E 
 
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!  
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!G   !



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 !
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  $ C "The
prosecution
alleged
that
due
to
sub
standard
work,
the
concerned
OBBB
building
had
collapsed
for
which
the
then
DM
&
Collector
awarded
a
penalty
of
Rs.15,000/B
against
the
A.O.
taking
lenient
view
considering
past
record
of
the
A.O.
The
prosecution
led
no
technical
evidence
to
show
that
due
to
sub
standard
of
work
executed
by
the
A.O,
the
constructed
OBB
building
had
collapsed."


[5]


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[6] 
$  !   
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C
"(i)
Reduction
to
a
lower
in
the
time
scale
of
pay
for
5(five)
years
w.e.f.
the
date
issue
of
the
order.
During
the
said
period
the
A.O
will
not
earn
any
increment.
He
will
however,
earn
increment
after
expiry
of
5
years.

(ii)
Recovery
of
Rs.28,268/B
[Rs.
43,268/B
minus
Rs.15,000/B)
already
recovered
vide
Note
No.15(13)/DND/2001B02/1169
dated
10.05.02]
with
simple
interest
should
be
made
from
the
A.O
in
two
equal
instalment."

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[7]

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"              "!   / !     $
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     "
     "   ' "  Managing
Director,
ECIL,
Hyderabad
vs.
B.
Karunakar,
 AIR
1994
SC
1074
 
 
C "7.
What
emerges
from
the
above
survey
of
the
law
on
the
subject
is
as
follows:
Since
the
Government
of
India
Act,
1935
till
42nd
Amendment
Constitution,
the
Government
servant
had
always
the
right
to
receive
report
of
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
right
represent
against
findings
on
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
Constitution
as
originally
enacted.



[8] 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
disciplinary
authority
after
considering
the
Inquiry
officer's
report
had
dropped
the
proceedings
or
had
decided
to
impose
a
penalty
other
than
that
of
dismissal,
removal
or
reduction
in
rank,
there
was
no
occasion
for
issuance
of
the
notice
to
show
cause
against
the
proposed
penalty.

In
that
case,
the
employee
had
neither
the
right
to
receive
the
report
and
represent
against
the
finding
of
guilt
not
the
right
to
show
cause
against
the
proposed
penalty.
The
right
receive
report
and
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
Constitution
dispensed
with
the
issuance
of
the
notice
show
cause
against
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
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
guilt
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.



[9] The
reason
why
the
right
to
receive
the
report
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
come
its
conclusion.
It
is
difficult
to
say
in
advance,
to
what
extent
the
said
findings
including
punishment,
if
any,
recommended
in
report
would
influence
the
disciplinary
authority
while
drawing
its
conclusions.
The
findings
further
might
have
been
recorded
without
considering
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
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
consider
findings
recorded
by
a
third
party
like
the
Inquiry
Officer
without
giving
the
employee
an
opportunity
to
reply
to
it.

Although
it
is
true
that
the
disciplinary
authority
is
supposed
to
arrive
at
its
own
findings
on
the
basis
of
the
evidence
recorded
in
the
inquiry,
it
is
also
equally
true
that
the
disciplinary
authority
takes
into
consideration
the
findings
recorded
by
Inquiry
Officer
along
with
evidence
on
record.
In
circumstances,
findings
Inquiry
Officer
do
constitute
an
important
material
before
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
disciplinary
authority
which
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.



[10] principles
of
natural
justice,
therefore,
require
that
before
disciplinary
authority
comes
to
its
own
conclusion,
the
delinquent
employee
should
have
an
opportunity
reply
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
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
drop
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
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
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
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
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
making
representation
on
the
penalty
proposed",
it
in
effect
accepts
two
successive
stages
of
differing
scope.



[11] the
employee's
reply
to
the
Inquiry
Officer's
report
and
consideration
of
such
reply
by
the
disciplinary
authority
also
constitute
an
integral
part
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
42nd
Amendment
Constitution,
point
of
time
at
which
it
was
to
be
exercised
had
stood
deferred
till
the
second
stage
viz.

,
stage
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,
disciplinary
authority
has
consider
representation
of
the
employee
against
report
before
it
arrives
at
its
conclusion
with
regard
to
his
guilt
or
innocence
of
the
charges.

Hence
it
has
to
be
held
that
when
the
Inquiry
Officer
is
not
the
disciplinary
authority,
the
delinquent
employee
has
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
Inquiry
Officer's
report
before
the
disciplinary
authority
takes
its
decision
on
the
charges,
is
a
denial
of
reasonable
opportunity
to
the
employee
to
prove
his
innocence
and
is
a
breach
of
the
principles
of
natural
justice.

[12] that
the
statutory
rules
if
any,
which
deny
the
report
to
the
employee
are
against
the
principles
of
natural
justice
and,
therefore,
invalid.
The
delinquent
employee
will,
therefore
be
entitled
to
a
copy
of
the
report
even
if
the
statutory
rules
do
not
permit
the
furnishing
of
the
report
or
are
silent
on
the
subject.
(ii)
The
relevant
portion
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
him
and
given
a
reasonable
opportunity
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
allBIndia
service
or
a
civil
service
of
a
State
or
to
the
holders
of
the
civil
posts
under
the
Union
or
a
State.
In
the
matter
of
all
punishments
both
Government
servants
and
others
are
governed
by
their
service
rules.

Whenever,
therefore,
the
service
rules
contemplate
an
inquiry
before
a
punishment
is
awarded,
and
when
the
Inquiry
Officer
is
not
the
disciplinary
authority
the
delinquent
employee
will
have
the
right
to
receive
the
Inquiry
Officer's
report
notwithstanding
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.

[13] (iv)
In
the
view
that
we
have
taken,
viz.,
that
the
right
to
make
representation
to
the
disciplinary
authority
against
the
findings
recorded
in
the
inquiry
report
is
an
integral
part
of
the
opportunity
of
defence
against
the
charges
and
is
a
breach
of
principles
of
natural
justice
to
deny
the
said
right,
it
is
only
appropriate
that
the
law
laid
down
in
Mohd.
Ramzan
Khan's
case
(supra)
should
apply
to
employees
in
all
establishments
whether
Government
or
nonBGovernment,
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
nature
punishment,
further,
whenever
the
rules
require
an
inquiry
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
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
nonBfurnishing
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
backBwages
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
him
report,
has
be
considered
on
facts
and
circumstances
each
case.

[14] perversion
justice
permit
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
illogical
and
exasperating
limits.
It
amounts
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
nonBsupply
of
the
report.

If
after
hearing
parties,
The
Court/Tribunal
comes
to
the
conclusion
that
the
nonBsupply
of
the
report
would
have
made
no
difference
to
the
ultimate
findings
and
the
punishment
given,
the
Court/Tribunal
should
not
interfere
with
order
punishment
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
shortBcuts.

Since
it
is
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
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
report
would
have
made
a
difference
to
the
result
in
the
case
that
it
should
set
aside
order
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
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.



[15] should
invariably
be
left
to
be
decided
by
the
authority
concerned
according
to
law,
after
culmination
proceedings
and
depending
on
the
final
outcome.
If
the
employee
succeeds
in
the
fresh
inquiry
and
is
directed
to
be
reinstated,
the
authority
should
be
at
liberty
to
decide
according
to
law
how
it
will
treat
the
period
from
the
date
of
dismissal
till
the
reinstatement
and
to
what
benefits,
if
any
and
the
extent
of
the
benefits,
he
will
be
entitled.
The
reinstatement
made
as
a
result
of
the
setting
aside
of
the
inquiry
for
failure
to
furnish
the
report,
should
be
treated
as
a
reinstatement
for
the
purpose
of
holding
the
fresh
inquiry
from
the
stage
of
furnishing
the
report
and
no
more,
where
such
fresh
inquiry
is
held.
That
will
also
be
the
correct
position
in
law.
In
this
connection
we
may
refer
to
a
decision
of
this
Court
in

  



 
  
       
 ,
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
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
retrenchment
compensation.

The
Court
moulded
relief
taking
into
consideration
the
long
period
which
had
passed
and
directed
that
the
employee
would
be
put
back
to
the
same
position
where
he
left
off,
but
his
new
salary
will
be
what
he
would
draw
were
he
to
be
appointed
in
the
same
post
"today"
de
novo.
He
was
further
directed
to
be
ranked
below
all
permanent
employees
in
that
cadre
and
to
be
deemed
to
be
a
temporary
hand
till
that
time.
He
was
not
allowed
to
claim
any
advantages
in
the
matter
seniority.
As
for
emoluments,
he
was
left
to
pursue
other
remedies,
if
any.
Questions
(vi)
and
(vii)
may
be
considered
together.



[16] 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
42nd
Amendment
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

 !(supra)
 ""
 ###
by
the
learned
Judges
of
this
Court
who
referred
the
question
to
the
larger
Bench.
It
has
also
been
pointed
out
that
in
$   (supra):

AIR
1988
SC
1338,
no
such
question
was
either
raised
or
decided.
It
was
for
the
first
time
in
   %& $  ! (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
   %& $  !
(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
a
copy
of
Inquiry
Officer's
report
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.
However,
it
cannot
he
gainsaid
that
while
  %&$ !



[17] the
Court
through
inadvertence
gave
relief
to
the
employees
concerned
in
those
cases
by
allowing
their
appeals
and
setting
aside
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
wellBsettled
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
ends
justice.
In
this
connection,
we
may
refer
to
some
wellB known
decision
on
the
point.
In
  ) *    + 
  ,-.

   .
:
[1967]
2
SCR
762,
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
legislatures
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

 
 , 
/0 !



 
  !23
 " 
--
/
 -   2 
 44 &.,
that
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
extraBordinary
situation.
The
Court
pointed
out
that
there
was
an
essential
distinction
between
Constitution
and
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
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
approach
is
more
conservative
and
inhibitive.



[18] 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
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
opinion.

The
Court,
therefore,
preferred
opinion
justice
Cardozo
which
tried
to
harmonise
the
doctrine
of
prospective
overBruling
with
that
of
Stare
decisis
expressed
in
)  *5
.+ *6   7438 3" 1
 42"(  9  #
The
court
also
referred
to
the
decisions
subsequent
to
Sunburst
and
to
'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
*!  
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
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
a
subject
matter
that
had
been
finally
decided
between
the
parties.

The
Court
pointed
out
that
the
Courts
in
this
land
also,
by
interpretation,
reject
retroactivity
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.



[19] 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
declare
operation
law
prospectively
on
the
basis
of
some
outmoded
theory
that
the
Court
only
finds
law
but
does
not
make
it
is
to
make
ineffective
a
powerful
instrument
of
justice
placed
in
the
hands
of
the
highest
judiciary
of
this
land.
The
Court
then
observing
that
it
was
for
the
first
time
called
upon
to
apply
the
doctrine
of
prospective
overruling
evolved
in
a
different
country
under
different
circumstances,
stated
that
it
would
like
move
warily
in
beginning.

Proceeding
further,
the
Court
laid
down
the
following
propositions:

(1)
The
doctrine
of
prospective
overBruling
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
constitutional
jurisdiction
to
declare
law
binding
on
all
the
courts
in
India;
(3)
the
scope
of
the
retroactive
operation
law
declared
by
Supreme
Court
superseding
its
earlier
decisions
is
left
to
its
discretion
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
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
: %     + ! !

   +    "
3
,
the
question
involved
was
of
the



[20] validity
of
the
Maharashtra
Agricultural
Lands
(Ceiling
on
Holdings)
Act,
1961
and
again
the
device
of
prospective
overruling
was
resorted
to.
In
%,
 ;  +  7"

8 3

 3',
the
question
was
of
the
validity
of
the
Punjab
PreB 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
declaration
made
in
said
decision.
Where,
however,
the
decrees
had
become
final
they
were
directed
to
be
binding
interB
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
+  %9 !!
  +    +
etc.
1991
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
a
finding
regarding
the
invalidity
of
the
levy
need
not
automatically
result
in
a
direction
for
a
refund
of
all
collections
thereof
made
earlier.
The
Court
held
that
declaration
regarding
the
invalidity
of
a
provision
of
the
Act
enabling
levy
and
the
determination
of
the
relief
to
be
granted
were
two
different
things
and,
in
the
latter
sphere,
the
Court
had,
and
it
must
be
held
to
have,
a
certain
amount
of
discretion.

It
is
open
to
the
Court
to
grant
moulded
restricted
relief
in
a
manner
most
appropriate
to
the
situation
before
it
and
in
such
a
way
as
to
advance
the
interest
of
justice.
It
is
not
always
possible
in
all
situations
to
give
a
logical
and
complete
effect
to
a
finding.
On
this
view,
Court
refused
give
a
direction
to
refund
to
the
assessees
any
of
the
amounts
of
cess
collected
until
the
date
of
the
decision
since
such
refund
would
work
hardship
and
injustice
to
the
State.
We
may
also
in
this
connection
refer
to
< !  *  < !  ) :*= 2>4"1
 "(
it
was
held
that
a
ruling
which
is
purely
prospective
does
not
apply
even
to
the
parties
before
court.



[21] prospective
and
this
applies
in
constitutional
area
where
the
exigencies
situation
require
such
an
application.
The
direction
with
regard
prospective
operation
of
the
law
laid
down
in
   %& $  ! (supra)
was
followed
by
various
Benches
of
this
Court,
viz.,
S.P.
Viswanathan
v.
Union
of
India
as.

:
(1991)
Supp
2
SCC
269,
Union
of
India
and
Ors.
v.
A.K.
Chatterjee
:
(1993)
2
SCC
191
and
/ / 0 ! ( ?

 @   



   +    $% A  7483

'## The
apparent
departure
was
in
$ <   1   

   + =4>
@@ 

 '4.
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
dismissal.
It
is
in
these
circumstances
that
this
Court,
relying
upon
the
proposition
of
law
laid
down
in
   %& $  !
(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
   %& $  !


(supra)
that
this
Court
for
the
first
time
accepted
and
laid
down
the
law
that
the
delinquent
employee
is
entitled
to
copy
report
before
disciplinary
authority
takes
its
decision
on
the
charges
levelled
against
him,
Gujarat
High
Court
in
a
decision
rendered
on
18th

July,
1985
in
0;),*0 =>$
, :
="2>3)-9=3 > 4"2
and
a
full
Bench
of
the
Central
Administrative
Tribunal
in
its
decision
rendered
on
6.11.

 +=""> 3 
9A ''
had
taken
a
similar
view
on
the
subject.
It
also
appears
that
some
High
Courts
and
some
Benches
of
the
Central
Administrative
Tribunal
have
given
retrospective
effect
to
the
law
laid
down
in
   %& $  ! (supra)
notwithstanding
the
fact
that
the
said
decision
itself
had
expressly
made
the
law
prospective
in
operation.
The
fact,
however,
remains
that
although
the
judgments
in
;) ,* 
! and
,% $
%  !
(supra)
as
well
as
some
of
the
decision
of
the
High
Courts
and
of
the
Benches
of
the
Central
Administrative
Tribunal
were
either

[22] taking
a
similar
view
prior
decision
in
   %& $  !
(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
   %& $  !
(supra),
the
law
on
the
subject
was
in
a
flux.

Indeed,
it
is
contended
on
behalf
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
   %& $  !
(supra)
and
the
view
taken
by
this
Court
in
the
earlier
cases,
and
the
reliance
placed
on
$    !
(supra)
to
contend
that
a
contrary
view
was
taken
there
was
not
wellBmerited.
It
will,
therefore,
have
to
be
held
that
notwithstanding
the
decision
of
the
Central
Administrative
Tribunal
in
;),* !
(supra)
and
of
the
Gujarat
High
Court
in
,%$
%  !


(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
a
failure
to
furnish
the
inquiry
report
delinquent
employee.

[23] !
(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
$<  !
(supra)."
[8]  0$
1& -

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( " "
     
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 2846
   $ $  !  ' "  Union
of
India
and
others
vs.
Mohd.
Ramzan
Khan, 
AIR
1991
SC
471 
$
   

   
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  "  
  
   Managing
Director,
ECIL,
Hyderabad
vs.
B.
Karunakar
 " 
      
 
 ! 
  % 26;5=   &&;&&*=%
2846 "$323853330$ !   ($  Union
of
India
and
others
vs.
Mohd.
Ramzan
Khan   32385333   " 

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of
India
and
others
vs.
Mohd.
Ramzan
Khan
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JUDGE