ISSAC JOSEPH Vs. SENIOR SUPERINTENDENT OF POST OFFICES

JUDGEMENT

(1.) THIRD January, 1977 is the crucial date, the date when art. 311 (2) was amended by the 42nd Constitution Amendment Act, 1976. Till then, "no civil servant could be dismissed, or removed or reduced in rank until he was given a reasonable opportunity of making representation on the penalty proposed. "After the amendment, "it shall not be necessary to give such person an opportunity of making representation on the penalty proposed". The question for consideration is whether this amended provision dispensing with the necessity of issuing a second show cause notice before the penalty is imposed applies to disciplinary proceedings initiated earlier, but were pending on the date of the amendment. This problem arises on the following facts and under the following circumstances.

(2.) THE appellant was a Sub Post-master in the Post and telegraphs Department. THEre were serious allegations of grave mis-conduct, including mis-appropriation of government funds against him. He was suspended pending disciplinary proceedings on 28-6-1974 and charges were framed against him on 12-12-1975 by the disciplinary authority, the Superintendent of Post offices. THE appellant denied the charges. An Assistant Superintendent of Post Offices was appointed as the Inquiring authority. He conducted an enquiry and submitted his enquiry report on 11-3-1979. He found that the appellant was guilty of the main charges and thereafter the appellant was dismissed from service by order dated 31-3-1979 with immediate effect. An appeal filed before the Director of postal Services was dismissed by order dated 9-1-1980. THE appellant challenged the dismissal order (Ext. P8) and the appellate decision (Ext. P10) under art. 226 of the Constitution. THE writ petition was dismissed and hence this appeal.

(3.) IT is in this legislative background that the decision has now to be rendered. The question that is debated is that the insistence of a second notice is merely a procedural requirement and the constitution amendment did have retrospective operation affecting proceedings which were pending on the date when the amendment came into force. IT is contended, on the other hand, that a valuable right expressly conferred by the Constitution in 1963 has been taken away in 1977 and thus the right which accrued to the parties when the proceedings commenced is preserved, notwithstanding the amendment in 1977. Strong reliance is made on decisions holding that a substantial right of appeal available, at the time a suit was instituted, was preserved throughout the rest of the career of the suit unless that right was expressly taken away or excluded by necessary implication. IT was also brought to our notice that where the Constitution amendment was intended to have retrospective operation, there was provision to that effect and the absence of any such positive provision or any indication that this amendment was intended to be retroactive showed that the object was only to enforce the provision prospectively. So run the contentions.