A MANAGING DIRECTOR, ECIL, HYDERABAD ETC. ETC. B v. B. KARUNAKAR AND ORS. ETC. ETC. OCTOBER 1, 1993 [M.N. VENKATACHALIAH, 0., AND P.B. SAWANT, K. RAMASWAMY, S. MOHAN AND B.P. JEEVAN REDDY, JJ.) Constitution of India, 1950: Article 311 (2)-First proviso (As amended by Forty Second Amendment) Delinquent Employee-Inquiry-Inquiry Of- C ficer not Disciplinary Authority-Right of Employee to receive copy of Inquiry Officer's report before disciplinary authority arrives at its conclusions as to guilt or innocence of employee-Employee held entitled to report-Denial of Report is denial of reasonable opportunity to employee to prove in- nocence-Rules denying report are against principles of natural justice-Report D should be supplied even if rules do not pennit-Report should be given not- withstanding the nature of punishment-Failure of employee to ask for report is not waiver.
Failure to supply Report-Effect of--Distinction should be made where non-furnishing has caused prejudice to employee and where it has E not-whether infact prejudice has been caused depends on facts of each case. Genesis of the law on the subject of furnishing the report of the Inquiry officer/authority to the delinquent employee-Referred to-Effect of 42nd Amendment explained. F Article 141-Supreme Court-Power to make the law laid down prospective in operation-Doctrine of prospective overruling.
Law laid down in Mohd. Ramzan Khan's case-Held applicable to all employees in all establishments whether Government or non-Government, G public or private-Rule in Mohd. Ramzan Khan's case is applicable prospec- tively-Only Exception is where the rules themselves provide for supply of copy of report to employees-Grant of relief by Supreme Court to parties in Ramzan Khan's case held per incuriam. By an order dated 5th August, 1991 passed in Managing Director, H Electronic Corporation of India v.
B. Karunakar, J.T. 1992 (3) S.C. 605, a 576 l MANAGING DIRECTOR, ECIL v. KARUNAKAR 577 three Judge Bench of this Court referred that matter for being placed A before a larger bench, as the Bench found a conflict in the two decisions of this Court, viz., Kai/ash Chander Asthana etc. etc. v. State of U.P and Ors etc. etc., [1988] 3 S.C.C. 600 and Union of India and Ors. v. Mohd. Ramzan Khan, [1991] 1 S.C.C.
588.
Accordingly that matter along with other connected matters were heard by the Constitution Bench on the question B whether the Report of the Inquiry Officer/Authority who/which is ap- pointed by the Disciplinary Authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be C awarded to him.
Disposing the matters, this Court HELD : By the Court : D (i) 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. A denial of the Inquiry Officer's report the discipli· nary authority takes its decision on the charges, is a denial of reasonable E opportunity to the employee to prove his innocence and is a breach of the principle of natural justice. [611-E-F] (ii) Statutory rules, if any, which deny the report to the employee are against the principles of natural justice and therefore, invalid.
Employee is entitled to report even if the rules do not permit the furnishing of the report. [611-HJ (iii) The delinquent employee has the right to receive the Inquiry Officer's report notwithstanding the nature of punishment. [612-E] F G (iv) Failure of the employee to ask for the report is not to be con- strued as waiver of his right. [612-F] (v) Effect of non-furnishing of the enquiry report to delinquent employee on the order of punishment and relief to be granted in such cases depends on the prejudice caused to the employee. [613-D-F] H 578 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.
A
Per Sawant, J. (For himself, CJ, S. Mohan and B.P. Jeevan Reddy, J.J.).
1. 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 conclusions on the basis of B 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. [610-C-D] c 2. 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 D 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 conclusions.
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 E at the second stage with was taken away by the 42nd Amendment. [608-H, 609-A-B] F G 3. 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 a principle of natural justice is that 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 conclusions.
It is difficult to say in advance, to what extent the said findings including the punishment, if any, rec11mmended in the report would influence the disciplinary authority while drawing its con- clusions. The findings further might have been recorded without consider- ing the 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 to meet, explain and controvert it before he is condemned.
Thus, it is the negation of the tenets of justice H and a denial of fair opportunity to the employee to consider the findings MANAGING DIRECTOR, ECIL v. KARUNAKAR 579 recorded by a third party like the Inquiry Officer without giving the A employee an opportunity to reply to it. [609-C-F] 3.1. 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 tru~ t)iat the disciplinary authority takes into B 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 additfonal material before the C disciplinary authority of which the delinquent employee has no knowledge.
However, when the Inquiry Officer goes further and records his findings. which may or may not be based on the evidence on record or are contrary to the same or in ignorance of its, such findings are an additional material unknown to the employee but are taken into consideration by the discipli- D nary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, there- fore, require that before the disciplinary authority comes to its won con- clusions, the delinquent employee should have an opportunity to reply to the hiquiry Officer's findings.
The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the repre- E sentation of the employee against it. [609-F -H, 610-A-B] 4. The position in law can also be looked atfrom a slightly different angle.Article ~1.1(2) says that the employee shal.I be given a 'reasonable opportunity ~f being heard in respect of tbe charges against him'. The findings on the 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 of misconstruing it, could themselves con- stitute new unwarranted imputations.
The proviso to Article 311(2) in effect accepts two successive stags of differing scope. Since the penalty is F to be proposed after the inquiry, which inquiry in effect it to be carried out G 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 discipli· nary. authority also constitute an integral part of such inquiry. [610-F, H, 611-A] H 580 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.
A 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 an 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 B report of the Inquiry Officer. The latter right was always there.
But before the the 42nd Amendment of the Constitution, the point of time at which it was to be exercised has stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the discipli- nary authority might have arrived at both with regard to the guilt of the C 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 guilt of D innocence of the charges. (611-A-D] Kham Chand v. Union of India & Ors., (1958] S.C.R. 1080; A.N. D'Silva v. Union of India, (1962] Supp.1S.C.R.968; Union of India v. H.C. Goel, (1964] 4 S.C.R. 718; Avtar Singh, Police Constable v.
Punjab, (1968) E S.L.R. 131; State of Gujarat v. R. G. Teredesai & Anr., (1970] 1 S.C.R. 251; General Manager, Eastern Railway & Anr. v. Jawala Prasad Singh, (1970] 3 S.C.R. 271; Uttar Pradesh Government v. Sabir Hussain, (1975) Supp. S.C.R. 354; Union of India & Anr. v. Tulsiram Patel & Ors., (1985] Supp. 2 S.C.R. 131; Secretary, Central Board of Excise & Customs & Ors. v. K.S.
Mahalin- F gam, [1986] 3 S.C.R. 35; Ram Chander v. Union of India & Ors., (1986] 3 S.C.R. 103; Union of India & Ors., v. E. Bashyan, [1988] 3 S.C.C. 209; A.K. Kraipak & Ors. etc. v. Union of India & Ors., (1970] 1 S.C.R. 457; Chairman, Board of Mining Examination & Anr. v. Ramjee, [1977) 2 S.C.R. 904; In~titution of Chartered Accountants of India v. L.K. Ratna & Ors., A.l.R.(1987) S.C. 71; Charan Lal Sahu etc. etc. v.
Union of India & Ors., G [1990] S.C.C. 613;. C.B. Gautam v. Union of India & Ors., (1993] 1 S.C.C. 78 and Managing Director, ECIL v. B. Karunakar, J.T. (1992) 3 S.C. 605, referred to. R. Venkata Rao v. Secretary of State for India, L.R. (1936) 64 I.A. 55 H and Secretary of State for India v. l.M. Lall, (1945) F.C.R. 103, cited. MANAGING DIRECTOR, ECIL v. KARVNAKAR 581 K.C. Asthana etc. etc. v.
State of U.P. & Ors. etc. etc. [1988] 3 S.C.C. A 600, disting0ished. Union of India & Ors. v. Mohd. Ramzan Khan, [1991] 1 S.C.C. 588, affirmed. 5 Hence when the Inquiry Officer is not he disciplinary authority, B 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 C Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. [611-E-F] 5.1. Statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid.
The delin- D quent 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. [611-H; 612-A] 5.2. Article 311(2) cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, E 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.
In the matter of all punishments both Government servants and other are governed by their service rules. whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and F when Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report not- withstanding the nature of the punishment. [612-C, El 5.3.
Since it is the right of the employee to have the report to defend himself effectively, and he would not know in advance whether the report is G 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. [612-F] 5.4. The answer to the question as to what is the effect on the order H 582 SUPREME COURT REPORTS [1993) SUPP.2 S.C.R.
A of punishment when the report of the Inquiry Office is not furnished to the employee and what relief should be granted to him 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 B him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him.
Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. 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, C even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. [613-C-E] 5.4.1.
Hence, in all cases where the Inquiry Officer's report is not D 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 afkr hearing, the parties, the Court/Tribunal comes to the conclusion that the E 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 Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. It is only if the Court/Tribunal finds that the furnishing of the F report would have made a difference to the result in the case that it should set aside the order of punishment. [613-G-H, 614-A, 614-C] 5.4.2.
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 G 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 H be decided by the authority concerned according to law, after the culmina- MANAGING DIRECTOR, ECIL v.
KARUNAKAR 583 tion of the proceedings and depending on the final outcome. If the A 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 form 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 B 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. [614-C-F] State Bank of India v. Shri N. Sundara Money, [1976) 3 S.C.R. 160, C referred to.
6. Till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case 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 that D this Court laid down the law and made it prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990.
Since the decision made the law expressly prospective in operation the law laid down there will apply 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 was per E 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 to the delinquent employee.
The proceedings pending in courts/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 which did not require the authority to supply a copy F 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 a copy of the . report to the employee. [615-G, 621-B·C, 616-A] 7.
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 a copy of the report of the Inquiry Officer G to the delinquent employee and innumerable employees have been punished without giving them the copies of the reports. In some of the H 584 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R. A cases, the orders of punishment have long since become final while other cases are pending in courts at different stages.
However, both administra- tive reality and public interests do not re11uire that the orders of punish- ment passed prior to the decision in Mohd. Ramzan Khan's case without furnishing the report of the Inquiry Officer should be disturbed and the B disciplinary proceedings which gave rise to the said orders should be reopened on that account. [621-D-E, G] 8. While Mohd. Ramzan Khan's case 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 C concerned in those cases by allowing tbeir appeals and setting aside the disciplinary proceedings.
The relief granted was obviously per incuriam. The said relief has, therefor, to be confined only to the employees con- cerned in those appeals. The law which is expressly made prospective in operation there, cannot be applied retrospectively on account of the said ]) error. [616-8-C] 9. The law laid down in Mohd. Ramzan Khan's case 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 e.xpressly prohibit the E furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, when ever 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 p against him. [612-H, 613-A-B] G 10.
There is no contradiction between the view taken in Mohd. Ramzan Khan's case and the view taken by this Court in the earlier cases, and the reliance placed on K.C. Asthana's case to contend that a contrary view was taken there is not well-merited. [620-G] Union of India v. Mohd. Ramzan Khan's, [1991] 1 S.C.C. 588, af- firmed. K.C. Asthana etc. etc. v. State of U.P. & Ors., [1988] 3 S.C.C. 600, H distinguished.
MANAGING DIRECTOR, ECIL v. KARUNAKAR 585 Union of India & Ors. v. E. Bashyan, [1988] 3 S.C.C. 209; S.P. A Viswanathan (I) v. Union of India & Ors., (1991] Suppl. 2 S.C.C. 269; Union of India & ·Ors. v. A.K. Chatterjee, [1993] 2 S.C.C. 191 and Managing Director, Food Corporation of India & Ors. v. Narendra Kumar Jain, (1993] 2 S.C.C. 400, referred to. R.K. Vashisht v. Union of India & Ors., [1993] Suppl. 1 S.C.C. 431, B explained.
H.G. Patel v. Dr. (Mrs.) K.S. Parikh & Ors. (1985) 2 G.L.R. (XXVI) 1385 and Premnath K. Shanna v. Union of India & Ors. (1988) 2 A.S.L.J. 449,approved. C:
11. 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. The doctrine of Prospective Overruling has since been extended to the interpretation of ordinary statutes as well. [616-D, 618-E] D J.C.
Golak Nath & Ors. v.State of Punjab &Anr., [1967) 2 S.C.C. 762; Waman Rao & Ors. etc. etc. v. Union of India & Ors., [1981] 2 S.C.R. 1; Atam Prakash v. State of Haryana & Ors., [1986] 2 S.C.C. 249; Orissa Cement Ltd. etc. etc. v. State of Orissa & Ors. etc. etc., [1991] Suppl.1 S.C.C. E 430 and. Victor Linkletter v. Victor G. Walker, 381 U.S. 618, 14 L.Ed. 2d 601, referred to Sri Sankari Prasad Singh Deo etc. v.
Union of India, [1952] S.C.R. 89; Sajjan Singh v. State of Rajasthan, (1965] 1 S.C.R. 933 and Great Northern Railway v. Sunburst Oil Ref Co., [1932] 287 U.S. 358, 77 L.Ed. F 360, cited. Per Ramaswamy, 1. (Partly dissenting) 1. The supply of the copy of the enquiry report is an integral part of the penultimate stage of the enquiry before the disciplinary authority G considers the material and the report on th"e proof of the charge and the nature of the .Punishment to be imposed.
Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice. [633-E] H 586 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R. A 2. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary authority in his concluding the guilt or penalty to be imposed.
The delinquent is, therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless B the copy of the report is supplied to him, to would be in dark to know the findings, the reasons in support thereof the nature of the recommendation on penalty. The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to '.tigress the direction of the disciplinary authority from his derivative conclus;ons from the report to the palliative part of fair consideration. [629-D-E, H, 630-A] c Khem Chand v.
Union of India, [N:i71 S.C.R. 1080; Bachhittar Singh v. State of Punjab, A.l.R. (1963) S.C. 395; Khardah Co. Ltd. v. Their Workmen, [1964] S.C.R., 506; Union of India v. H.C. Goel, [1964] 3 S.C.R. 718; State of Maharashtra v.BA. Joshi, [1969] 3 S.C.R. 917, State of Gujarat D v. R.G. Teredesai, [1970] 1 S.C.R. 251; State of U.P. v. Shabir Hussain, [1975] Suppl. S.C.R. 354; State of Madras v.A.R. Srinivasan, A.I.R. (1966) S.C. 1827; State of Assam v.
Mohan Chandra Kalita, A.I.R. (1972) S.C. 2535; A.N. Silva v. Union of India, [1962] Suppl.1 S.C.R. 968;Avtar Singh v. I.G. of Police, Punjab, (1968) 2 S.L.R. 131.; The Calcutta Dock Labour Board v. E Jaffar Imam, (1965) 2 L.LJ. 113; Union of India v. KR. Memon, [1969] 2 S.C.R. 343; Lakshmiratan Cotton Mills Co. Ltd. v. Its Workmen, [1975] 2 S.C.R. 761; Tara Chand Khatri v. Municipal Corporation of Delhi, [1977] 2 S.C.R. 198; P.
Joseph John v. State of Travencore, Cochin, [1955] 1 S.C.R. 1011 and Krishna Chandra Tandon v. Union of India, [1974] 4 S.C.C. 380, referred to. F 3. The disciplinary authority by whatever name called, has power and jurisdiction to enquire into the misconduct by himself or by his delegate and to impose the penalty for proved misconduct of a delinquent. Doubt- less that the enquiry officer is a delegate of the disciplinary authority, he G conducts the enquiry into the misconduct and submits his report, but his fmdings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer.
Therefore, non-supply of the copy of the report to the delinquent H 'Yould cause him grave prejudice. (624-B, 632-C) ' MANAGING DIRECTOR, ECIL v. KARUNAKAR 587 Suresh Koshy George v. University of Kera/a, [1969) S.C.R. 317; Keshav A Mills Co. Ltd. v. Union of India, [1973) 3 S.C.R. 22; Shadi Lal Gupta v. State of Punjab, [1973) 3 S.C.R. 637; Hiranath Misra v. Principal Rajendra Medical College. Ranchi, A.I.R. (1973) S.C 1260; Satyavir Singh v.
Union of India, A.I.R. (1986) S.C. 555; Secretary, Central Board of Excise & Customs v. KS. Mahalingam, [1986) 2 S.C.R. 742 and Union of India v. Tztlsi Ram Pate4 [1985) Suppl. 2 S.C.R. 131; held inapplicable.
4. The denial of the supply of the copy, therefore causes. to the delinquent a grave prejudice and avoidable injustice which cannot.be ·cured B or mitigated in appeal or at the c~allelige under Article 226 of the Con- stitution or Section 19 of the Tribunal Act or other relevant provisions.
Ex C post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however professedly to be fair to the delinquent. The.lurking suspicion always lingers in the minds of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent D injustice of miscarriage of justice at the threshold, the disciplinary authority should supply the ~opy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delin- quent and make up his mind of proof of the charge or the nature of the penalty.
The supply of the copy of the report is thus a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself E effectively and efficaciously. [630-A-D] 5. Principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material/which is basis for the decision. The F enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority.
The supply of the report along with the final order is like. a post-mortem certificate with purifying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21and311(2) of the Constitution, but also, the principles of natural justice. [631-C-D] G 5.1. It is not correct to say that the report is not evidence adduced during such enquiry envisaged under proviso to Article 311 (2).
Evidence Act has no application to the enquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict confirmity with Indian H 588 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R. A Evidence Act, though the essential principle of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311 (2) is the totality of the material collected during the enquiry including the report of the enquiry officer forming part of that material.
Therefore, when reliance is sought to be placed, by the disciplinary B authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both. [631-E-G] C 6. Section 44 of the Forty Second Amendment Act has don away with supply of the copy of the report in the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to consider the material on records, the evidence along D with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon. [631-A-B] 7.
The emerging effect of the holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing E before deciding on proof of charge or penalty which 42nd Amendment Act had advisedly avoided. So while interpreting Article 311 (2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing. The attempt must be nailed squarely.
Prior to the 42nd Amendment Act the delinquent has no right of hearing p before disciplinary authority either on proof of charge or penalty. So after 42nd Amendment Act it would not be put no higher pedestal. However, the disciplinary authority has an objectiYe duty and adjudicatory respon- sibility to consider and impose proper penalty consistent with the roagnitude or the gravity of the misconduct.
Each case must be considered in the light of its own scenario. In a given case if the penalty was G proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of considera- H tioa by the disciplinary authority either on proof of the charge of on MANAGING DIRECTOR, ECIL v.
KARUNAKAR 589 imposition of the penalty. [633-F-H, 634-C-D] A 8. Though by far the legislature must be responsible for the formula- tion of principles of conduct which are of general, and prospective ap- plicability to a given community for an indeterminate number of situations, administrators must apply such general and often specific principles within the community ·even though administrative orders and regulations B often have certain legislative aspects, and the courts must also apply the prescriptions of legislators, or the generalised principles deduced from a series of precedents to individual disputes.
Such a separation of functions is not confined to the democratic doctrine of separation of powers, it is part of the essential structure of any developed legal system. [636-B] C 8.1. In a democratic society, the process of administration, legisla- tion and adjudication are more clearly distinct than in a totalitarian society. The courts can act when indeed called upon to adjust the rights and law in accordance with the changing tenets of public policy and needs of the society.
Equally discretion assumes freedom to choose among D several lawful alternatives of which the judge is entitled to choose the one that most appeals to him, not a choice between two decision, one of which may be said to be almost certainly right and the other almost certainly wrong, but a choice so nicely balanced that when once it is announced, a new right and a new wrong will emerge in the announcement. [636-C-D] 9.
When judicial discretion has been exercised to establish a new norm, the question emerges whether it would be applied retrospectively to the past transactions of prospectively to the transactions in future only. This process is limited not only to common law traditions, but exists in all the jurisdictions. [636-G] Candler v. Crame Christmas & Co., [1951] 2 K.B. 164; Hedley Byrene & Co. Ltd. v.
Heller & Paltners Ltd., 1964 A.C. 465; Rook v. Bernard, [1964] A.C. 465; Cfolter Handwoven Hanis Tweed Co. v. Veith, (1941) A.C. 435 and Milangas v. George Textiles Ltd., [1976] A.C. 443, referred to.
10. As a matter of constitutional law, retrospective operation of an overruling decision is neither required nor prohibited by the Constitution E F G but is one of judicial attitude depending on the facts and circumstances in each case, the nature and purpose of the particular overruling decision seeks to serve.
The court would look into the justifiable reliance on the H 590 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R. A overruled case by the administration, ability to effectuate the new rule adopted in the overruling case without doing injustice; the likelihood of its operation whether substantially burdens the administration of justice or retard the purpose. All these factors are to be taken into acco·unt while overruling the earlier decision of laying down a new principle.
The benefit B of the decision must be given to the parties before the Court even though applied to further cases form that date prospectively would not be ex- tended to the parties whose adjudication either had become final or matters are pending trial or in appeal. [642-D-F] 10.1 The crucial cut-off date for giving prospective operation is the C date of the judgment and not the date of the case of action of a particular litigation given rise to the principle culminated in the overruling decision.
There is no distinction between civil and criminal litigation. Equally no distinction could be made between claims involving constitutional right, statutory right or common law right. It also emerges that the new rule would not be applied to ex post facto laws nor acceded to plea of denial D of equality. This Court would adopt retroactive of non-retroactive effect of a decision not as a matter of constitutional compulsion but as a matter of judicial policy determined in each case after evaluating the merits and demerits of the particular case by looking to the prior history of the rule in question, its purpose and effect and whether retroactive operation will E accelerate or retard its operation.
The reliance on the old rule and the cost of the burden of the administration are equally germane and taken into account in deciding to give effect to prospective or retrospective operation. [642-F-H, 643-A] Birimingham City Co. v.West Midland Baptist (Trost) Ass., [1969] 3 F All. E.R. 172; Jones v.5ecretary of States for Social Science, [1972) A.C. 944; Great Northern Railway Co. v. Sunburst Oil & Refining Co., [287) U.S. 358, 77 L.Ed. 360 [1932); Dollree Map v.Ohio, [367) U.S. 643, 12 L.Ed. 2nd 1081, [1961]; Victor Linkletter v.
Victor G. Walker, [381] U.S. 618, 14 L.Ed. 2nd 601, (1965); E1mesto A. Miranda v. State of Arizona, [384] U.S. 436, 16 L.Ed. 2nd 694, [1966]; Danny Escobedo v. lllinois, 378 U.S. 478, 12 L.Ed. 2nd 977; G Sylvester Johnson v. State of New Jersey,384 U.S. 719, 16 L.Ed. 2nd 882, (1966); TA. Jenkins v. State of De/ware, 395 U.S. 213, 23 L.Ed. 2nd 253, [1969]; P.B. Rodrique v.Aetna Casualty Co., 395 U.S. 352, 23 L.Ed. 2nd 360 [1969]; Chevron Oil Co. v.
Gaines Ted Huson, 404 U.S. 97, 30 L.Ed. 2nd 296; Northern Pipeline Construction Co. v. Marathan Pipeline Co., 458 U.S. H SO, 73 L.Ed 2nd 598, [1982]; U.S. "·James Robert Peltier, 422 U.S. 51, 45 MANAGING DIRECTOR, ECIL v. KARUNAKAR 591 L.Ed. 2nd 374(1975]; Almeida Sahchez v. U.S., 413 U.S. 266 37 L.Ed. 2nd A 596, Bowen v. U.S. 422 U.S. 816, 45 L.Ed. 2nd 641; United States v. Raymond Eugene Johnson, 457 U.S. 537, 73 L.Ed. 2nd 202, (1982]; Rayton v.
New York, (1980] 445 U.S. 573, 63 L.Ed. 2nd 639; Golak Nath & Ors. v. State of Punjab & Anr., (1967] 2 S.C.R. 762; Sankari Prasad v. Union of India, (1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan, (1965] 1 S.C.R. B 933, referred to. Lord Devlin, 'iudges and Law Makers', 39 Mod. L.R.1 [1976]; W. Friedmann, 'Limits of the Judicial lawmaking and Prospective Ovenuling', 29 Mod, L.R.593 (1966]; A.
G.L. Nicol, Prospective Ovenuling: A new device for English Courts, 39 Mod, L.R. 542 [1976], referred to.; C Blackstone, Commentaries of the laws of England, Lord LLyod of Hampstead, Introduction to Jurisprndence, 4th Edn. 1979, Rupert Cross and Harris, Precedent in English Law, Oxford 4d Edn. (1991) Lon L. fuller, Anatomy of the Law, John Wigmore, Judicial Function; Justice Cordozo; Selected Writings; Louis L.
Jaffe, English and American Judges as Law D Makers, 1969 Oxford Edn., P.S. Atiyah and R.S. Summers, Fann and Substance in Anglo American Law, [1987] Oxford Ed.; Prof. Baker, Judicial Discretion, [1993] Ed.; referred to. · 11. Prospective overruling, therefore, limits to future situations and E exclude application to situations which have arisen before the decision was evolved. It is, therefore, for the court to decide, on a balance of all relevant considerations, whether a decision overruling a previous principle should be applied retrospectively or not. (637-H, 638-AJ 12.
Mohd. Ramzan Khan's ratio giving the benefit to him and com· F panion appellants was valid in law and not, therefore, per incuriam and was legally given the reliefs. (643-G] 12.L It is not correct to says that the denial of Ramzan Khan's ratio to the pending matters offend Article 14. Placing reliance on the existing law till date of Ramzan Khan, the employers treated that under law they had no G obligation to supply a copy of the enquiry report before imposing the penalty.
Reversing the orders and directing to proceed from that stage would be a needless heavy burden on the administration and at times encourage the delinquent to abuse the office till final orders are passed. Accordingly the ratio in Mohd. Ramzan Khan's case would apply prospec· H 592 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R. A tively from the date of the judgment only to the cases in which decisions are taken and orders made that date and does not apply to all the matters which either have become final of are pending decision at the appellate forum or in the High court or the Tribunal or in this Court. [643-H, 644-A-B] B