VISHNU AVTAR AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) ALTHOUGH while challenging the order of dismissal the petitioner has taken several grounds, but the main ground, which has been vehemently argued, is that the petitioner was not furnished with a' copy of the enquiry report and hence the impugned order of removal passed against him suffers from denial of reasonable opportunity. In the case of Union of India v. Mohd. Ramzan Khan, 1991 (1) SLR 159, their Lordships of the Supreme Court indicated as under :- "Delegation of the second opportunity from the scheme of Article 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the serious of pronouncements of this Court making . rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report alongwith recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty- Second Amendment has not brought about any change in this position. We may make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the 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 be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter. On the basis of this conclusion, the appeals are allowed and the disciplinary action ie every case is set aside. There shall be no order for costs. We would clarify that this decision may not preclude the disciplinary authority from revising the proceeding and continuing with it in accordance with law from the stage of supply of the inquiry report in cases where dismissal or removal was the punishment."

(2.) IT was vehemently argued on behalf of the Standing Counsel that the judgment passed by Honourable . Supreme Court is prospective in nature and in this connection the attention of this Court was drawn to paragraph 17 of the judgment where Honourable Mr. Justice Rang Nath Misra speaking on behalf of the Pench indicated as under

(3.) UNDOUBTEDLY, in the case of Union of India v. Mohd. Ramzan Khan (supra) it has been indicated that the observation shall have prospective application and no punishment imposed shall be open to challenge on that ground, but a perusal of the observations of Honourable Supreme Court clearly indicated that this prospective application was limited to those cases where the matter has either not been challenged before the High Court or Supreme Court or where the High Court or Supreme Court had taken a contrary view earlier. In the instant case the petitioner had approached this Court under Article 226 of the Constitution of India by filing this writ petition, hence the observations made in Mohd. Kamzan Khan (supra) cannot be made applicable in respect of such orders of punishment, against which either the appeal or revision is pending or subjudice before any Court of Law or Tribunal. A similar question was raised in the case of Devilal Shah v. Union of India 1991 (I) UP LB EC 480, Mr Justice R. R. K. Trivedi in this case indicated as under :-