JUDGMENT
Nagendra Rai and R.S. Garg, JJ.
1. Letters Patent Appeal No. 94 of 1998 has been filed against the judgment dated 19th December, 1997 passed by the learned Single Judge in CWJC No. 5569 of 1996 by which the writ petition filed by the writ petitioner-respondent No. 1 against the order of his dismissal, and writ petitioner-respondent No. 2 against the order in reduction of pension has been allowed.
2. Letters Patent Appeal No. 1476 of 1999 has been filed against the order passed by the learned Single Judge in CWJC No. 10745 of 1998 whereby the writ application filed by one of the private respondents, namely, Brij Mohan Prasad has been allowed and a direction has been issued to pay his retiral dues with an interest at the rate of 10% per annum on the remaining admitted dues from due date till the payment is made and further a cost of Rs. 10,000 (ten thousand) has been imposed.
3. The factual matrix are that at the relevant time the respondent No. 1, Brij Mohan Prasad, was posted as an Administrative Officer and the respondent No. 2 was posted as an Issue Superintendent under the Bihar State Electricity Board. An advertisement was issued for appointment on the post of Electrical Assistant/Executive Engineer, in pursuance of which a written test was held on 7.10.1990. During the holding of the written test it was found that some of the candidates were allowed to sit in Room No. 12 at a particular centre which was not fixed for their sitting. Admittedly these respondents were Invigilators in the aforesaid examination specially at Room No. 12.
4. An explanation was called for from the writ petitioner – respondents with regard to the aforesaid misconduct at the time of examination on 17.12.1990. They filed their show cause on 26.12.1990 and the authority not being satisfied with their show cause decided to initiate a departmental proceeding against them and on 28.12.1991 charges were framed against both of them by resolution Nos. 1215 and 1217. The Superintending Engineer was appointed as an Inquiry Officer. The charges levelled against the writ petitioner/respondents are as follows :–
“They (Sri B.M. Prasad, Admn. Officer and Sri Ratneshwar Prasad, Issue Superintendent) allowed the following seven candidates to sit in Room No. 12 and take their examination although as per the sitting arrangement these roll numbers were allotted sitting arrangements in different rooms. In the room No. 12 candidates from Roll No. 3072 to 3112 only were to be allowed to sit but the following roll numbers were also allowed in the said room in total disregard to all norms with ulterior motive. These Roil Nos. are 1820, 1875, 2297, 2667, 2214, 2284 and 2116.
Charge No. 2
The Invigilators of the particular room was supplied with the computerised attendance sheet showing Room No., Roll number and name of the candidate against which the individual candidate was required to put his signature in token of the proof that be appeared in the test. The invigilators were also required to put the signature on the attendance sheet but the two charged officers, named above did not put their signature with ulterior motive.
Charge No. 3
Sri B.M. Prasad, Shri Ratneshwar Prasad were called for explanation in Board’s letter No. 161/Stt. dated 17.12.1990 as to why they did not seek instructions from the Superintendent of the centre before allowing the seven candidates to sit in room No. 12 to which they replied that they did so under the instructions from the Secretary, which is not supported by any written order. In terms of the instruction issued to them they should have sought instructions from the Centre Superintendent in case of any difficulty or doubt but they did not follow the instructions which amounts to dereliction of duty.
Charge No. 4
As per sitting arrangement the roll No. 3079 was to sit in room No. 12 of which the aforesaid officer were invigilators but in the computerised attendance sheet earmarked for the said room the candidate has been marked absent whereas on a separate loose paper his attendance has been taken to show that he was present in the said room. It amounts to gross negligence of duty on their part.”
5. The enquiry proceeded and both sides adduced evidence in support of their stands. Thereafter the Inquiry Officer submitted a report on 15.12.1992 exonerating the writ petitioners – respondents from the charges levelled against them. The Disciplinary authority (Bihar State Electricity Board) thereafter accepted the report of the Inquiry Officer and exonerated them from all the charges by order dated 15.12.1992 and thereafter they were given promotion with retrospective effect by the orders issued by the concerned authority.
6. It appears that seven candidates who were sitting in room No. 12 in the examination were disqualified and they filed CWJC Nos. 7420/90, 7425/90, 7438/90 and 1441/1991 and other writ applications. The said writ applications were heard by the learned Single Judge and were dismissed by order dated 5.4.1993.
The matter was challenged by them before the Supreme Court in SLP Nos. 9473, 9486 and 9487 of 1993 and one of the points urged before the Hon’ble Supreme Court was that the concerned officer namely, writ petitioner – respondents of this case were exonerated in the departmental proceeding and, as such, the High Court was not justified in dismissing their writ applications. It appears that in the meantime the Board has taken a decision to hold a fresh enquiry on 3.1.1994. Thereafter the Apex Court adjourned the matter awaiting report of the second enquiry and the matter was finally disposed of by the Apex Court on 12.8.1996 by passing the following orders :
“The Enquiry Report has indicted the Invigilators. The original ground of the petitioners that if the Invigilators are cleared of the charge, they would derive benefit therefor is no longer available. We have no reason to differ from the view taken by the High Court. Special leave petitions are dismissed.”
7. Then second enquiry proceeded and after the enquiry it was found that the writ petitioner – respondents were guilty of the charges, second show cause notice was issued. Thereafter the writ petitioner-respondents filed writ application before this Court and during the pendency of the writ application the final orders of dismissal and reduction as stated above were passed against both of them.
8. The learned Single Judge after hearing both the parties quashed the second enquiry as well as the consequential orders passed during the pendency of the writ application on the ground that once the earlier proceeding has concluded by passing a final order exonerating the writ petitioner – respondents the second enquiry was not permissible in law.
9. The learned counsel appearing for the Bihar State Electricity Board contended that the learned Single Judge was not correct in law in holding that once the departmental proceeding has come to an end the same cannot be reopened in any circumstances. In support of the aforesaid submissions he relied upon two judgments of the Supreme Court reported in (1996) 8 SCC 461, Janardan Dubey v. State of Bihar and (1999)1 SCC 733, Union of India v. P. Thayagarajan. He also submitted that in any view of the matter when the writ petitioner-respondents participated in the second enquiry and they did not challenge the same earlier now at a belated stage (when the second show cause was issued) they cannot be allowed to challenge the proceeding.
10. Learned counsel appearing for the writ petitioners – respondents combated both the submissions and submitted that once the enquiry has been completed by following all the procedures and the enquiry does not suffer from any procedural or legal infirmity or violative of the principle of natural justice or any legal lacuna, the second proceeding cannot be initiated for the sake of holding second enquiry on the basis of having given a second thought in the matter. In support of his submission he has relied upon a decision of the Supreme Court, which has already been noticed by the learned Single Judge, in the case of State of Assam and Ors. v. J.N. Biswas, reported in AIR 1975 SC 2277. He further submitted that when the initiation of the second enquiry is without jurisdiction, the participation in the same itself will not be a ground not to challenge the proceeding as being without jurisdiction.
11. Thus two questions arise for consideration in these cases. We would like to consider them in seriatim.
12. To decide the first question the admitted facts are to be stated : It is an admitted fact that the rules in the case of Government employees of the State of Bihar are applicable in the case of Board as the Board has adopted the said rules. Thus the rules which is applicable in this case is Civil Services (Classification, Control and Appeal) Rules. It is also an admitted position that under the said rules there is no provision empowering the disciplinary authority to review its earlier final order passed in a departmental proceeding. In other words the power of review of the final order passed in departmental proceeding is not vested in the concerned authority under the rules.
13. The question as stated above for consideration is whether in absence of any rule authorising an authority to review its earlier order passed in the concluded departmental proceeding cannot be reviewed in any circumstances.
14. It cannot be laid down as absolute proposition of law that in absence of the rule in no case the authority can review or revise the earlier order passed in a concluded departmental proceeding. The situation may arise whether the earlier order has been passed either in total breach of principles of natural justice or in breach of the Rules regarding conduct of the disciplinary proceeding or is based on forged and fabricated documents or suppression of material evidence. In such a situation second enquiry is not barred. But in absence of rule, the authority cannot have power to reopen the concluded departmental proceeding only for the purpose of reconsideration of the matter on the ground that on reconsideration a different view could be taken or that after a second thought a decision has been taken to reopen the proceeding. In the case of J.N. Roy Biswas, (supra) the rule did not permit to reopen finally concluded departmental proceeding. Dealing with the said matter the Apex Court held that in absence of the rule once a Disciplinary proceeding concluded and employee has been exonerated the proceeding cannot be reopened or reviewed except in special circumstances showing deadly defect on the record i.e. if some technical and other procedural or other good ground or infirmities were there in the earlier proceeding. In this connection it is useful to refer paragraph 4 of the judgment which runs as follows :–
“We may however make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official re-instated, presumably on full exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record.”
15. The learned counsel for the appellants however relied upon the aforesaid two judgments to show that such power is vested in the authority. So far as the case of Janardan Dubey (supra) is concerned that was a case where the earlier proceeding was dropped and a decision was taken to reopen the proceeding and in that context it was held by the Apex Court that though the Government has power to revise the order but no reasons have been assigned and the subsequent orders were quashed. In that case there was no concluded departmental proceeding. On the other hand proceeding was dropped and in that context the observation was made that the Government employer has unfettered power to reopen the proceeding. So far as the other case, relied upon by the petitioner, namely, Union of India, (supra) is concerned, in that case enquiry was conducted and that was placed before the disciplinary authority and he directed for de novo enquiry. In that case the departmental proceeding was conducted against the respondent and two witnesses expressed their inability who were the employees of the Central Reserve Police Force to appear in the enquiry. Taking into consideration the said fact the disciplinary authority did not agree with the enquiry report and ordered for de novo enquiry. Dealing with the said matter the Apex Court held that as admittedly the enquiry was conducted in breach of the rule the de novo enquiry can be ordered. That was not a case where the earlier proceeding has been concluded and final order has been passed by the disciplinary authority. It is well settled principle of law that the disciplinary authority is not bound by the opinion of the Enquiry Officer and can take a different view. So the said decision rendered in that case has no application in the present case.
16. Now coming to the facts of the present case it is an admitted position that earlier departmental proceeding was concluded after giving opportunity to both the parties. All materials were placed and it is not the case of the Board that any of the materials were not available at that time nor it is the case of the Board that there is some procedural irregularity. However, the decision has been taken to start a second enquiry in view of the observations made by the High Court and the Apex Court. According to the learned counsel for the appellants – Board once the Supreme Court during the pendency of the SLP directed to continue with the second enquiry that means that the Apex Court has upheld the holding of the second enquiry and the aforesaid observation made by Apex Court, though not a ratio decidendi will be obiter dictum. We find ourselves unable to agree with the aforesaid submission. The writ petitioner – respondents were not parties in the writ petitions filed in the High Court or SLP filed in the Supreme Court. Whether the second enquiry was permissible or would be conducted was not a question for consideration before the High Court or the Supreme Court. In that case the only question was whether seven of the candidates who had lost the cases before the High Court should be given relief or not. The law is well settled that all observation made by the Apex Court is neither a ratio decidendi nor a obiter dictum. If a question of law arises in the case for decision, then decision on that point is a ratio decidendi and if the question has been considered as suggested by the parties though not necessary for decision then that becomes obitor dictum which though is not binding but is to be given a considerable weight in the matter. It is well settled that observation with regard to the factual matters or casual observations made by the Apex Court have no binding force. The Apex Court in the case of Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr., reported in (2002) 4 SCC 638 in paragraph 7 has held as follows :
“So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on alt Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any findings of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law : it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see Ballabhadas Mathurdas, Lakhani v. Municipal Committee, Malkapur, AIR 1973 SC 794. When the Supreme Court decides a principle it would be the duty of the High Court or a Subordinate Court to follow the decision of the Supreme Court.”
17. In this case the Apex Court disposed of the SLPs by taking note of the fact that the enquiry has been conducted in which the writ petitioner/respondents were found guilty. The question as to whether the second enquiry was permissible in law or not was not the question for consideration before the Apex Court and not even suggested by any of the parties to decide the said question and as such observations made by the Apex Court in the SLP cannot be treated to be approval of the decision of the Board to holding a second enquiry. Accordingly, we agree with the conclusion arrived at by the learned single judge that the Board was not justified in initiating a second enquiry as in the facts of this case we find that the case did not fall within any of the categories wherein second enquiry is permissible.
18. So far as the second point is concerned if the proceeding is without jurisdiction in that case participation by itself does not debar the person to challenge the same. When the Board was not justified in initiating a second enquiry only because of their participation, the writ petitioners – respondents cannot be deprived of the right to challenge the same on the ground of lack of jurisdiction.
19. Accordingly, there is no merit in LPA No. 94 of 1998 and the same is dismissed.
20. So far as LPA No. 1476 of 1999 is concerned, the Board preferred a LPA No. 94 of 1998 against the judgment of the learned single Judge quashing the order of dismissal passed against Brij Mohan Prasad and the order of reduction of pension against the other employee Ratneshwar Prasad and during the pendency of the appeal one of the writ petitioner/respondents, namely, Brij Mohan Prasad filed an application for payment of retiral dues. The learned single Judge has directed for payment of the same primarily on the ground that there was no stay by the LPA Bench. He has awarded interest at the rate of 10% per annum and a cost of Rs. 10,000/-. It appears that the Board under bona fide belief that as the Letters Patent Appeal was pending, no retiral dues should be made to a dismissed employee, did not pay the same though his writ application was allowed by the learned single Judge. The said decision may be an error on the part of the Board but the same cannot be treated as a mala fide or deliberate intention to debar the employees from the retiral dues. Accordingly, though we do not find any infirmity in the order regarding direction for payment of retiral dues but in the facts and circumstances of the case this was not a case wherein a cost should be awarded and or interest at the rate of 10% per annum should be given. Accordingly, the rate of interest is reduced from 10% per annum to 5% per annum only on the retiral dues and imposition of cost is set aside.
21. In the result, LPA No. 94 of 1998 is dismissed and LPA No. 1476/1999 is
allowed in part as indicated above.