JUDGMENT
R.K. Nehru, J.
1. This judgment disposes of C.W.P. Nos. 9605 of 1990, 17973 of 1991 and 7067 of 1992.
2. Sadhu Singh Chahal, Junior Engineer, Provincial Division No. 1, Public Works Department (B & R. Branch), Rampura Phool, district Bathinda (Petitioner in CWP No. 9605 of 1990) and Harnek Singh, Ex-Sub Divisional Engineer, Construction Sub Division No. 2, Malerkotla (Petitioner in CWP No. 7067 of 1992) have challenged the charge memos contained in Memo No. 8698-BRI(I)-85, dated October 11, 1985 (bearing the same number) and the appointment of Shri G.S. Sodhi, Superintending Engineer, Chandigarh Construction Circle, Punjab, Public Works Department (B & R Branch), Chandigarh as Inquiry Officer under Rule 8(2) of the Punjab Civil Service (Punishment & Appeal) Rules, 1970 (for short, the Rules) for holding joint enquiry against them and Sarvshri Sarabjit Singh, Executive Engineer, Hans Raj Dewan, Executive Engineer (Retd.) and Darshan Singh, Junior Engineer. In C.W.P. No. 17973 of 1991, Harnek Singh has sought a mandate to the State of Punjab through the Secretary, Public Works Department (B&R Branch), Chandigarh and the Chief Engineer, Punjab, Public Works Department (B&R Branch), Patiala, to regularise his pension and release him gratuity, commuted pension, leave encashment, etc. along with 12 per cent compound interest.
3. C.W.P. No. 17973 of 1991 came up for motion hearing before Hon’ble the Chief Justice and Ashok Bhan, J. on January 29, 1992, which passed the following order :-
” Notice of motion was issued. Prayer for adjournment is opposed. Counsel heard. Counsel for the petitioner brought to the notice of this Court a Division Bench decision in K.N. Datt v. State of Haryana, 1991(1) SLR 223. The decision undoubtedly supports the contention raised. We, however, find that in that Division Bench judgment, there is no mention of Rule 2.2(c) of the Punjab C.S.R., Volume II, which specifically provides that pending an enquiry against a Government employee initiated during the service or after his retirement, the amount of gratuity may not be paid until the final disposal of the proceedings. That being so, the decision relied upon by the learned counsel needs reconsideration. Admitted to DB.”
On April 22, 1993, when this petition came up for hearing before us, it was brought to our notice that the charge memo served upon this petitioner was challenged in Civil Writ Petition No. 7067 of 1992. It was also brought to our notice that Sh. Sadhu Singh, a Junior Engineer, had also challenged the identical charge memo in Civil Writ Petition No. 9605 of 1990. We accordingly directed that Civil Writ Petitions No. 7067 of 1992 and 9605 of 1990 be set down for hearing along with C.W.P. No. 17973 of 1991. It is how these three writ petitions have been placed before us.
4. Reference to the relevant facts is necessary:
Petitioners in C.W.P. Nos. 7067 of 1992 and 9605 of 1990 worked as Sub Divisional Engineer, Provincial Sub Division, Sangrur, and Sectional Officer, Quarry Sub Division, Sunam, respectively, in the year 1973. Charge memos were served upon them for committing irregularities during the period from January 18, 1971 to April 31, 1974, vide Memo No. 10/363/79-2AI (6)-79, dated November 17, 1979 and Memo No. 5365, dated October 9, 1979, respectively. The charge memos in the case of petitioner in CWP No. 7067 of 1992 were withdrawn vide order No. 3830-BRI (4)/4520, dated nil from the Secretary to Government, Punjab, Department of Public Works (B&R Branch) to Chief Engineer, Punjab, P.W.D. B&R. Branch, Patiala, and in C.W.P. No. 9605 of 1990 vide Memo No. 11569/P, dated November 25, 1985, addressed by the Chief Engineer, Punjab Works Department, B&R Branch, Patiala to the writ petitioner.
Fresh charge memos were prepared and served upon the petitioners in C.W.P. Nos. 7067 of 1992 and 9605 of 1990 vide Memo No. 8698-BRI (I)-85, dated October 11, 1985, who filed replies thereto, and after considering the same, respondent No. 1 finding that a prima facie case having been made out appointed Shri G.S. Sodhi, Superintending Engineer, Chandigarh Construction Circle, Punjab, P.W.D., B&R Branch, Chandigarh as Inquiry Officer for holding joint enquiry against them and three others.
A challenge to the charge memos and inquiry proceedings has been made principally on the ground that belated enquiry is not likely to be fair and that the stale matter has been raked up after 18 years. The alleged irregularities were committed during the period 1971-74, while the departmental proceedings were initiated in the year 1985.
C.W.P. No. 7067 of 1992 was admitted to hearing on October 22, 1992 and the enquiry proceedings were stayed.
C.W.P. No. 9605 of 1990 was admitted to hearing on March 11, 1991 and it was directed that enquiry proceedings might continue but final order be not passed.
5. It appears that the State counsel who had appeared for the respondents in C.W.P. No. 7067 of 1992 did not bring to the notice of the Bench the fact that the enquiry proceedings had been allowed to continue but the passing of the final order had been stayed by the Motion Bench in C.W.P. No. 9605 of 1990 by order dated March 11, 1991.
6. In C.W.P. No. 7067 of 1992, written statement on behalf of the respondents has been filed by Sh. M.S. Guram, Chief Engineer, Punjab, P.W.D., B&R Branch, Patiala, and in C.W.P. No. 9605 of 1990 by Shri Gurmel Bhatwa, Chief Engineer, Punjab, PWD, B&R, Patiala. The defence offered in these two writ petitions is almost identical. It was stated that the charge-sheets were served upon the petitioners in these two writ petitions under Rule 8 of the Rules by the Secretary to Government, Punjab, P.W.D., B&R Branch, Chandigarh, vide Memo dated November 17, 1979 in the case of petitioner in CWP No. 7067 of 1992 and vide Memo dated October 8, 1979 in the case of petitioner in CWP No. 9605 of 1990. On receipt of replies to the charge memos, certain new facts relating to the incidents of negligence came to the notice of the respondents. It was decided to constitute a fact finding committee consisting of senior officers of the rank of Superintending Engineers. After receipt of the report from the three Superintending Engineers and the test report from the Central Road Research Institute, New Delhi and Punjab Engineering College, it was decided to charge-sheet Sarvshri Sarabjit Singh, Executive Engineer, Hans Raj Dewan, Executive Engineer (Retired), Darshan Singh, Junior Engineer and the petitioners. The petitioner in CWP No. 7067 of 1992 was prima facie found responsible for causing a loss of Rs. 5.66 lacs to the State Government. Accordingly fresh charges were served upon the petitioners on the basis of the aforementioned reports. The Inquiry Officer has completed the enquiry and submitted his report dated May 11, 1992 and found the petitioners guilty of charges served upon them. It appears that the State counsel did not bring the fact to the notice of the Motion Bench that the enquiry against the petitioner stood concluded on May 11, 1992 when the Motion Bench passed the order staying enquiry proceedings on October 22, 1992. The petitioner in C.W.P. No. 9605 of 1990 participated in the enquiry proceedings before the Inquiry Officer, but did not bring to his notice that the passing of the final order had been stayed by this Court vide its interim order dated March 11, 1991. The enquiry with regard to the charges against the petitioners has concluded and the Inquiry Officer has submitted his report on May 11, 1992.
7. On these proved facts, it cannot be said that the second charge memos and initiation of enquiry proceedings pursuant thereto are vitiated. Departmental proceedings initiated against employees should be finalised expeditiously. But delay in completing the departmental enquiry within the time fixed in accordance with the policy decisions of the State Government does not confer any right on the employee for the enforcement of the guidelines and quashing of enquiry proceedings. However, the employee, may, in a fit case, approach the Court if the enquiry has been delayed to an unreasonable extent by the employer himself. See in this connection, a Full Bench decision of this Court in Jagir Singh v. State of Punjab, 1993(1) S.L.R. 1. As observed earlier, on the proved facts of the instant case, the delay in concluding the enquiry proceedings is per se no ground to quash the charge memo, more particularly when the enquiry has been held, report submitted and the petitioners have been held guilty for the charges levelled against them.
8. In C.W.P. No. 17973 of 1991 (Petitioner also in C.W.P. No. 7067 of 1992) retired from service on March 31, 1990. He had been released provisional pension with effect from April 1, 1990 by the Chief Engineer, Pun jab, P.W.D. (B & R Branch), Patiala vide office order No. 561/GAC, dated December 28, 1990. The same reads thus:
“In superssion of this office order No. 241/GAC, dated 1.5.90, sanction is hereby accorded to the grant of 100% revised provisional pension @ Rs. 1715/- PM (Rs. one thousand, seven hundred and fifteen only) plus adhoc relief as admissible to Sh. Harnek Singh, Sub Divisional Engineer (Retired) in terms of Punjab Govt. Finance Department letter No. 675-76/36493, dated 16.12.1976 and No. 48-60-I-5 PP-78/31438, dated 16.8.1978 and 1-15/89-FR-III/8081, dated 31.8.89. The grant of revision of provisional pension shall commence from 1.4.90 and same will be payable at Ludhiana Treasury. The pension will be charged to Head “2071-Pension and other retirement benefits – 101 -Superannuation and Retirement Allowances.”
The above orders are, however, subject to the condition that the petitioner shall have to refund the amount to the Govt. if on scrutiny of his pension by the Accountant General, Punjab, any amount already paid to him is found in excess to that he is actually entitled.”
The gratuity has been withheld under Rule 2.2(c) of the Punjab Civil Services Rules, Vol. II. The same reads thus :-
“2.2(c).
(1) Where any departmental or ‘judicial’ proceeding is instituted under Clause (b) of Rule 2.2 or where a departmental proceeding is continued under Clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement or if he was under suspension on the date of retirement upto the date immediately preceding to the date on which he was placed under suspension; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and of final orders thereon.
The gratuity, if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of final orders by the competent authority.”
9. Learned counsel for the petitioner-Harnek Singh maintains that the respondents were not justified in withholding the gratuity, and in support of his submission he relied upon a Division Bench judgment of this Court reported as K.N. Datt v. State of Haryana and Ors., 1991(1) S.L.R. 223. In that case, Sh. K.N. Datt, writ petitioner, retired from the service of Haryana Irrigation Department on November 30, 1989. A day preceding to his retirement, he was served with a statement of charges/allegations; released provisional pension till the conclusion of the enquiry proceedings; also released the benefit of cash equivalent to his salary for 242 days earned leave; and informed on July 17, 1990 that pending the disciplinary proceedings, he could not be allowed gratuity and commutation of his pension. This order was challenged by him in Civil Writ Petition No. 12654 of 1990. The writ petition came up for hearing before a Bench of this Court comprising of M.R. Agnihotri and K.P. Bhandari, JJ. They allowed the writ petition observing thus :-
“2. After hearing the learned counsel for the parties and having gone through the material on the record, we find that the plea taken by the respondents is not sustainable in law. Even if the State is competent to initiate departmental proceedings immediately before or after retirement of a Government servant, it has no authority in law to withhold the pensionary benefits of the employee. Since the petitioner has retired from service, he is entitled to full pension and gratuity etc. regardless of the fact that the departmental proceedings have been initiated against him. If ultimately any amount is found due against the petitioner, the State Government can proceed against him for the recovery of that amount in accordance with law. But postponing the payment of pension and withholding the amount of gratuity and commutation of pensionary benefits etc. is not permissible in law and is wholly unwarranted under the statutory service rules.
3. Accordingly, the respondents are directed to release to the petitioner all pensionary benefits, that is, arrears of pension, gratuity and commutation of pension, etc., to which he would have been entitled under the rules had the statement of allegations/charges not been served on him on 29th November, 1989, that is, a day preceding the date of his retirement on attaining the age of superannuation. Since the payment has been delayed unnecessarily and without any authority of law, the petitioner shall be entitled to payment of this amount with 12 per cent interest from the date the amount became due till the date of actual payment. The respondents are directed to clear the arrears within one month. Subsequently, this writ petition stands allowed, with no order as to costs.”
10. A reading of paragraph 2 of the judgment in K.N. Datt’s case (supra) indicates that the provisions of Rule 2.2 (c) of the Punjab Civil Ser vices Rules, Vol. II as applicable to the State of Haryana (for short, the Service Rules) were not brought to the notice of the Bench. This rule has been reproduced in the earlier part of this judgment. The rule expressly says that an employee who has retired from service or has been compulsorily retired from service and against whom departmental proceedings are instituted is not entitled to the release of gratuity or death-cum-retirement gratuity till the conclusion of the enquiry proceedings. The observations of the Bench, to which emphasis has been laid, indicate that the celebrated provisions of Rule 2.2(c) of the Service Rules were not brought to the notice of the Bench. The power to withhold gratuity is conferred on the competent authority under the statutary rules. It cannot even be remotely suggested that the action of the competent authority was without any legal sanction. A writ of mandamus can be issued to compel an authority to act according to law, but no direction can be issued to it to act in derrogation of it. The judgment in K.N. Datt’s case (supra) was rendered by the Bench on the assumed position of law. The decision is not an authority for what was assumed. It will not be a binding precedent. A decision given sub silentio, i.e., on assumed position of law and not on arguments will not be a binding precedent. A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it does not refer to, and had not present to its mind, the precise terms of the statute. Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. (See in this connection, Yeshbhai and Anr. v. Ganpat Irappa Jangam and Anr., A.I.R. 1975 Bom. 20).
11. Similar view was taken by the Bombay High Court in Sitaram Hari Salunkhe v. Laxman Rambodh Dubey, AIR 1980 Bombay 55, where it was held thus :-
” Normally, as I am differing with the decision of a co-ordinate Bench of this Court, the matter should have been referred to a larger Bench. However, as the matter was decided by Joshi J. without noticing the specific provisions of the Act and the Rules, it can safely be said that the decision was delivered per incuriam and, therefore, is not binding upon me. As to when it could be said that a precedent is not binding, is by now well settled. A precedent is not binding if it was not rendered in ignorance of the statute or a Rule having the force of a statute. In such circumstances it can be said that the matter was decided per incuriam. In this context reference could usefully be made to a decision of this Court in Yeshbhai v. Ganpat Irappa Jangam, A.I.R. 1975 Bom. 20, and particularly towards the following observations in paras 27 and 28 :-
‘Now a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to and had not present to its mind the precise terms of the statute. Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of the decision being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the Court such as a statute. (See the observations in “Salmond on Jurisprudence”, Twelfth Edition, pages 150 and 169).'”
12. Identical view was expressed by the Andhra Pradesh High Court in Thuraka Onnuramm and Anr. v. Tehsildar, Kadiri, A.I.R. 1980 A.P. 267.
13. The Ratio of these judgments was followed by this Court in Sardari Lal Gupta v. Siri Krishan Aggarwal, A.I.R. 1984 Punj & Hr. 439. In that case, the Bench was considering a binding force of earlier decision of a coordinate Bench on the subject. The Bench observed thus :-
” It is thus clear that the judgment in Ganpat Rai’s case (AIR 1931 Lah 373) supra was rendered in ignorance of the position of law as existed then. The learned Judges proceeded on the basis of English Law according to which if one of the co-owners of a party-wall placed obstruction on it, the aggrieved party had himself the right to remove the obstruction. However, the law in India was different. Therefore, the said judgment is per incuriam. After noticing Salmond on Jurisprudence it has been held in Yeshbhai v. Ganpat Irappa Jangam, AIR 1975 Bom. 20, that a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. Similar view was taken in Sitaram Hari Salunkhe v. Laxman Rambodh Dubey, AIR 1980 Bomb. 55, and Thuraka Onnuramma v. Tehsildar, Kadiri, AIR 1980 Andh. Pra. 267. We are in respectful agreement with the abovesaid view. Therefore, we are not bound to follow the ratio in Ganpat Rai’s case (AIR 1931 Lah. 373). We are further of the view that in this situation it is not necessary to refer the case to a larger Bench. With great respect to the learned Judges, in our opinion, Durga Prashad’s (AIR 1954 Punj. 125) and Pritam Singh’s (1969 Cur. L.J. 627, Punj.) cases were not correctly decided and consequently these stand overruled.”
14. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 S.C.C. 102, where the question was whether a decision can be treated per in curiam if it is given in ignorance of the rule having the force of law, the apex Court observed thus :-
” A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. explains the concept of sub silentio at p. 153 in these words:
‘A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.'”
15. The apex Court again examined this question in State of U.P. and Anr. v. Synthetics and Chemicals and Anr., JT 1991(8) S.C. 268, where it was observed thus:
” ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium’. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (1944 1 KB 718, Young v. Bistol Aeroplane Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, (1962) 2 SCR 558 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words, can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub silentio. A decision passed sub silentio, in the technical sense has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind’ (Salmond, 12th Edition). In Lancester Motor Company (London) Ltd. v. Bremith Ltd. (1941 1KB 675), the Court did not feel bound by the earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur, (1989 (1) SCC 101). The Bench held that ‘precedents sub-silentio and without argument are of no moment’. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In Shama Rao v. State of Pondicherry (A.I.R. 1967 S.C. 1680) it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reasons cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint is dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.”
16. With great respect to the learned Judges, in our opinion, K.N. Datt’s case (supra) was not correctly decided and consequently, the same stands overruled.
17. For the reasons stated above, these writ petitions are dismissed, but with no order as to costs.