- (1.) THE respondent in this appeal was dismissed from Government service on several charge on which enquiry was held and this dismissal was challenged by him in a writ petition which was allowed by the learned Single Judge on 30. 07. 1991. This decision of the learned Single Judge - has been challenged by the appellant in this special appeal.
(2.) THE respondent was a UDC in the Appellant Organisation Board of Indian Medicine Raj. An enquiry against him was held on as many as 16 charges. THE enquiry officer submitted his report and the disciplinary authority passed an order of dismissal on 1. 10. 1988. One of the grounds raised in the writ petition was that the petitioner was not given the copy of the enquiry report before passing the order of dismissal and as such he was not given an opportunity of making a representation against the findings recorded by the enquiry officer. This point was argued and reliance was placed on the Supreme Court decision in Union of India vs. Mohd. Ramjan Khan (1 ). In this case their Lordships have held that by virtue of 42nd amendment of the Constitution, the only requirement which has been dispensed with is in relation to giving of show cause notice before the proposed punishment. Supply of copy of the enquiry report by the disciplinary authority where the enquiry has been held by a person other than the disciplinary authority is an implicit requirement of principles of natural justice. In view of this it was held that there was a violation of principles of natural justice and also the provisions of Rule 16 of the CCA Rules. In view of this conclusion the other questions raised in the writ petition were not decided and the order of dismissal was quashed, giving a direction to reinstate the petitioner in service. THE appellant was given liberty to pass appropriate orders according to law, after giving notice to the respondent to make a representation against the enquiry report. Against this decision the Board organisation has filed this special appeal and at the stage of admission both sides have been heard on the point on which the learned Single Judge has decided the writ petition. We may refer to the relevant provisions on the basis of which the matter is to be decided. Article 311 of the Constitution of India was amended by the 42nd Amendment Act of 1976 and thereafter it reads as under : 311. (1) No person who is a member of civil service of the Union or an all India service or a civil service under the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges: Provided 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 imposed: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove a person or to reduce his rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. The following words which were part of this Article earlier were deleted : "and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. " The object of the deletion of this part is to do away with the second opportunity of making the representation at the stage of penalty after completion of enquiry. This has been considered and it has been so held in Union of India vs. Tulsiram Patel (2 ). Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter to be referred to as the Rules of 1958) provides for the procedure for imposing major penalties and it contains the stage at which the opportunity to show cause has to be given to the employee. Sub rule (10) of Rule 16 of the Rules of 1958 reads as under : " (10) (i) If the Disciplinary authority, having regard to its finding on the charges is of the opinion that any of the penalties specified in clause (iv) to (vii) of rule 14 should be imposed, it shall- (a) Furnish to the Government servant a copy of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority ; and (b) give a notice stating the penalty proposed to be imposed on him calling upon him to submit within a specified time such representation as he may wish to make on the proposed penalty, provided that such representation shall be based only on the evidence adduced during the inquiry. (ii ). . . . . . :. (iii ). . . . . . . After the amendment in Article 311 by the 42nd Amendment Act of 1976 in the Constitution sub rule (10) of Rule 16 was substituted by the Notification dated 21. 6. 1983 and now it reads as under : (10) If the Disciplinary Authority having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of rule 14 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant, any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case in which it is necessary to consult the commission the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for it's advise and such advise shall be taken into consideration before making an order imposing such penalty on the Government servant. " That part of the rule by which it was provided for furnishing to the Government servant the copy of the report of the enquiry authority has been deleted. In this background it has been argued that after the amendment of Rule 16 (10) of the Rules of 1958 and Article 311 of the Constitution of India, the copy of the report of the Enquiry report has to be furnished only when the Government servant makes a request for the same and when it has not been demanded then the Government servant cannot make a grievance. This is such a right which can be waived and it is contended that the decision in the case of Union of India vs. Mohd. Ramzan Khan (3) can have only prospective effect and it will not be applicable to matters which have already been decided. On the other hand the learned counsel for the delinquent has contended that if the decision in the case of Mohd. Ramzan Khan (supra) is to be given prospective operation then atleast the court cases which have already been decided will not be reopened, but those which are to be decided after this decision are to be based on it.
(3.) MUCH has been argued on behalf of both the sides about the applicability and nature of the decision in Mohd. Ramzan Khan's case, as to whether it can be followed in the properly of contrary decision of larger Bench. Then attempt has also been made to show as to which is the direct authority which can be said to be applicable to the present case and emphasis, has been made on the principles of natural justice. As the point involved in the case is very important a general notice was given in the cause list and Mr. K. K. Mehrish, Mr. Manish Bhandari, Mr. S. C. agrawal, Mr. Vinrendra Bandhu, Mr. P. V. Calla and Mr. R. K. Pareek have also addressed this court and cited several decisions. It has been argued that amendment in sub-rule (10) of Rule 16 of the Rules of 1958 became necessary after the 42nd Amendment of the Constitution. It is contended that the several decisions of the Supreme Court itself were not brought to the notice of the Bench which decided Ramzan Khan's case, as such it cannot be said to have over ruled other decisions. However, others have argued that the decision in Ramzan Khan's case is not the last word and the latest decisions have to be followed. We will refer to the other decisions which have been cited before us and it may be said that after the decision in the case of Mohd. Ramzan Khan similar matters have arisen before the Supreme Court wherein the decision in Mohd. Ramzan Khan has been held to be prospective to be applicable to the matters which have been decided after the decision in Ramzan Khan's case. ;