SHARMA, J. - (1.) RAM Swaroop Raigar, the appellant herein, has filed this special appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 against the order dated January 8, 1991 of the learned Single Judge under which the learned Single Judge dismissed the writ petition filed by the appellant. In the said writ petition the appellant had challenged the order Annr. 12 and 13 passed by Rajasthan Khadi and Village Industry Board, Jaipur (for short,the Board) imposing a penalty of removal from service on the ground of proved misconduct.
(2.) THE appellant was a Supervisor in the Board at Jaipur. Under memorandum dated December 8, 1983 disciplinary proceedings were initiated against the appellant in respect of five charges. THE charges were in respect of the conduct of the appellant in wrongly verifying photos/signatures of the persons to whom loan had been sanctioned by the Board. As many as five charges were levelled against the appellant which are contained in Annr. 1, which is an annexure to the memorandum. THE appellant in the reply to the aforesaid charges did not categorically and specifically deny them and came out with the plea in respect of charge No. 1 that Demand Patra was not got prepared by him and it had been got completed in the Camp by the then District Industries Inspector in which he (appellant) was also present. It had also been verified by the Executive Officer and Administrator of the Municipal Board Kuchera and therefore he believed them to be true and without making further inquiry he verified it. A similar plea was raised by him in respect of charges No. 2,3 and 4. So far as charge No. 5 is concerned, he came out with the plea that he had filled the demand patra at the instance of Shafi Mohd. THE Inquiry Officer after having inquired into the matter submitted his report to the Board and he in his report found all the charges proved against the appellant. THE Board considered the report of the Inquiry Officer in its meeting dated November 15, 1988 and agreed with the same and a decision was taken that a penalty of removal from service be imposed on the appellant. THEreafter, an order Annr. 13 was made against the appellant imposing a penalty of removal from service. The appellant challenged the aforesaid order of imposing a penalty of removal from service by filing a writ petition in this court inter alia on the ground that it was made in patent breach of principles of natural justice in as much as the appellant was denied the opportunity to defend himself and he was not allowed the defence nominee to assist him in the inquiry; and a copy of the inquiry report which was made by the Inquiry Officer to the Board was not furnished to him. The writ petition was contested on behalf of the Board and all the allegations were traversed. The ground of challenge were contested. It was not disputed that no copy of the inquiry report was given to the appellant. A plea has been raised that the appellant did demand a copy of the inquiry report but before the same could be furnished to him, he filed the writ petition in this court. Along with the reply, a copy of the inquiry report was also filed as Annr. R/2. We have heard learned counsel for the appellant as well as learned counsel for the respondent. So far as the submission of the learned counsel for the appellant that the principles of natural justice have been violated in as much as no proper opportunity was given to the appellant to be represented by a defence nominee of his choice and further that no opportunity was given to him to produce the witnesses is concerned, we find no substance in it. It will be seen from the order of the learned Single Judge that a similar argument was advanced before him and he dealt with the same. There can be no dispute that first Shri. Mahesh Chand Agarwal was permitted to appear as a defence nominee, but he failed to appear regularly and the appellant requested for appointment of one Radhey Shyam Gupta and he too was appointed as his as defence nominee of the appellant. We are in agreement with the learned Single Judge and it can be said that on two occasions at the request of the appellant his defence nominees were not only appointed but were also changed. No delinquent officer can be allowed to go on changing his/her defence nominee during the pendency of the disciplinary inquiry. The change of the defence nominee should be for some good reasons and not for mere asking. Coming to the contention of the learned counsel for the appellant that the appellant was not given reasonable and proper opportunity to produce his defence witnesses. It will be seen and it cannot be disputed that on behalf of the appellant, besides the appellant who filed his written statement which was marked as D/1, he also examined (i) Bhagirath Mal Verma, Manager (ii) Urban Cooperative Bank Nagore and/ (iii) Safi Mohd. as his defence witnesses in the inquiry. Learned Single Judge has discussed each and every other names whom the appellant wanted to produce as his defence witnesses and observed that Hasan Mohd. had left for Iraq and could not have been available and Roshan Lal was found to be non-existent. The other witnesses had been served but they did not turn up and no person by the name of Bashir Khan was traceable. He also said that inquiry was fixed for defence evidence on June 19, 1985 and July 6, 1985 and the appellant was asked to produce defence witnesses, but he failed to do so and whosoever was present on behalf of the appellant was examined as defence witness. In the facts and circumstances of this case, we find ourselves unable to dis-agree with the learned Single Judge and it can be said that the appellant was given sufficient opportunity to defend himself. That apart, the learned Single Judge in his order has clearly stated that the appellant did not dispute that he had verified the photos and the demand patra before they had been verified by some other authority. It can therefore be said that he did not dispute that he had verified them without making due enquiry about the identity of the persons an rather as observed by the learned Single Judge it was a case of verifications of the persons other than the loanees to whom loan had been granted. It was during the course of inquiry which was held in the presence of the appellant that the persons had appeared and had said that they had not taken loans and their photos were affixed and they have wrongly been verified. Despite opportunity the appellant failed to produce the persons, namely Roshanlal and Roop Kishore who would have been the best persons. We find no merit in the submission of the learned counsel for the appellant that no adequate, reasonable, fair and proper opportunity was given to the appellant to produce his defence witnesses.
(3.) LASTLY, it was contended that a copy of the report of inquiry was not furnished to appellant and it was a case where the Inquiry Officer was a person other than Disciplinary Authority and the report of the inquiry officer is an adverse material and unless the same is furnished the penalty imposed on a delinquent is not in accordance with law. According to the learned counsel, the principles of natural justice require that to enable the delinquent officer to meet the findings of the Inquiry Officer before it is considered by the Disciplinary Authority a reasonable opportunity should be given to the delinquent. In support of his contention learned counsel for the appellant has referred to a number of cases, a reference of which shall be made hereinafter. Learned counsel for the respondent Board has contended that the Apex Court while laying down that in a case where the Inquiry Officer is other than the Disciplinary Authority, the report of the Inquiry Officer consists of adverse material and therefore the principles of natural justice demand that a copy of the report of the Inquiry Officer should be furnished to the delinquent officer, held that the said ratio shall have prospective (application and no punishment imposed will be open to be challenged on the ground that no copy of the report of Inquiry Officer was furnished to him. He therefore contends that the penalty of removal has been imposed on the appellant by the Board under its order Annr. 12/13 dated November 15, 1988 and December 5,-1988 respectively. Under the aforesaid view of the Apex Court furnishing a copy of the inquiry report was not necessary and on the ground that the report of Inquiry Officer was not furnished to the appellant, the penalty of removal should not be and cannot be set aside. In the ease of Union of India V. Mohd. Ramzan Khan (1), the Apex Court examined the question whether with the alteration of the provisions of Article 311 (2) under 42nd Constitutional Amendment doing away with the opportunity of showing cause against the proposed punishment, the delinquent has lost his right to be entitled to a copy of the report of inquiry in the disciplinary proceedings ? and in para 18 the Apex Court said- "we make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at that conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also been entitled to make representation against it, if he so desires, and non-furnishing of natural justice and make the final order liable to challenge hereafter. " It will therefore be clear that in the aforesaid case of Mohd. Ramzan the judgment was delivered on November 20, 1990 and it was held that the alteration of the provisions of Article 311 (2) of the Constitution of India under the 42nd Constitutional Amendment has not made any difference and the delinquent has a right to get a copy of the report of inquiry in the disciplinary proceedings where the Inquiry Officer is other than the Disciplinary Authority. But the Apex Court in para 17 of the judgment said that - "there have been several decisions in different High Court which, following the Forty-second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger bench of this court taking this view. Therefore, the conclusion to the contrary reached by any two Judges bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground. " The Apex Court therefore made it clear that the decision in the case of Ramzan Khan (supra) will have only prospective application and not retrospective application and no punishment imposed will be set aside on that ground. Despite the aforesaid decision of the Apex Court in the case of Ramzan Khan (supra) making the ration of that case applicable prospectively, there have been decisions of this Court where even in cases no doubt it appears that copy of the inquiry report was not furnished in a case where the Inquiry Officer was other than Disciplinary Authority, the punishment imposed has been set aside. In the case of M. K. Soni V. State of Rajasthan & others (2), a learned Single Judge of this Court (M. R. Calla, J.) sitting singly after referring to the aforesaid para 17 from the case of Mohd. Ramzan Khan said that the observations of the Apex Court about prospective application in his opinion meant to cover only such cases which have become final. Learned Judge has said - "once it has been held by the Supreme Court that the furnishing of the copy of the inquiry report is a condition precedent it will be reasonable to apply this proposition against all those orders of punishment which have not attained the finality and it sounds reasonable and plausible to apply the observations made by the Supreme Court in the context in which the observations have been made. Had the intention of the Supreme Court been to cover all those punishment orders which have been imposed prior to the date of this judgment on the basis of prospectively, the Supreme Court would not have interfered with the order passed in the case which was there before the Supreme Court itself and this reasoning lends strength to the proposition th|at the observation about prospective application made by the Supreme Court means to cover only those cases in which the punishment orders have already become final had have already withstood the challenge before the court of law. The observation in. this Supreme Court decision that' it will have prospective application and no punishment imposed shall be open to challenge on this ground' in my opinion means to cover only those cases which have already become final and which are not facing any challenge before any authority or in a pending case at any stage before any court. " Learned Judge has therefore applied the aforesaid ratio of the case of Mohd. Ramzan (supra) so far as prospective application is concerned, only to those cases which have become final in as much as were not facing any challenge before any authority or were not pending in any court at any stage. With due respect to the learned Judge, the said approach does not appear to be correct. ;