ORDER
Raju, J.
1. The short but of late often raised question that arises for consideration in these cases is as to whether the failure to furnish a copy of the report of the Enquiry Officer to the delinquent employee in a disciplinary proceeding before the Disciplinary or the Punishing Authority, as the case may be, makes up its mind and records the finding of guilt as against him, would constitute violation of the principles of natural justice or the relevant statutory regulations? In the instant case, relevant regulations are ‘Tamil Nadu Electricity Board Employees’ Discipline and Appeal Regulations (hereinafter referred to as The Regulations’).
2. The Writ Appeal No. 1033 of 1990 has been filed against the order of the learned single Judge dated 31.7.1990 in W.P. No. 6487 of l986where under the learned Judge allowed the writ petition filed by the respondent herein seeking to quash the proceedings of the appellant in B.P. Ms. (FB) 46 (Administrative Branch), dated 5.6.1986 following his earlier order in W.P. No. 2690 of l986 dated 27.6.1990. W.A.No.1142 of 1990 has been filed against the order in W.P. No. 2690 of 1986 supra.
3. The salient features of the case pertaining to W.A.No.1033 of 1990 relevant for the purpose of deciding the issue raised before us are as follows:
The respondent was working as an Assistant Divisional Engineer/East/Arni in the services of the appellant and alleging certain irregularities in effecting ‘on the line services’ to the Agricultural Pumpsets in contravention of the instructions then in force, a charge memo dated 13/20-8-1985 was issued framing two charges. A questionnaire form was also enclosed to that charge memo to resubmit the same along with his explanation. He submitted his explanation dated 25.10.1985 and also resubmitted the questionnaire form duly filled opting for an oral enquiry. The Divisional Engineer, Tiruvannamalai was appointed as Enquiry Officer who conducted an enquiry into the charges and the respondent participated in the same. The enquiry officer ultimately submitted his report finding charge No. 1 as not proved and charge No. 2 as proved. On receipt of the report of the Enquiry Officer as above, the appellant Board appears to have decided to disagree with the findings of the Enquiry Officer in respect of charge No. l and treated the said charge also as having been proved. Consequently, after a consideration of the case with the connected records, the Board came to the conclusion that the respondent may be dismissed from the service of the Board and accordingly ordered his dismissal from service. The decision of the Board was communicated to the appellant in its B.P.Ms. (F.B.) No. 46 (Administrative Branch) dated 5.6.1986 and along with it, a copy of the enquiry findings submitted by the Enquiry Officer was also forwarded.
4. Thereupon, the respondent filed W.P. No. 6487 of 1986 praying for a writ of certiorari to quash the proceedings dated 5.6.1986 dismissing the respondent from service. Apart from other grounds of challenge with which we are not concerned presently in the appeal before us, two of the grounds require to be mentioned. One of those grounds is that the minutes of the Enquiry Officer or his findings was not furnished to the respondent and therefore he had no opportunity to rebut the charges. It was also contended that the order of dismissal was against the principles of natural justice and that he has not been given any opportunity before reversing the finding of the Enquiry Officer in respect of charge No. 1. The second ground raised regarding the procedure adopted was based on Regulation No. 8(b) of the Tamil Nadu Electricity Board Employees’ Discipline and Appeal Regulations. After referring to the said Regulation, it was contended that the failure to issue a second show-cause notice and that though in respect of some of the employees, such a notice was being issued, in the case of the respondent, straightaway a dismissal order has been passed without any opportunity, that he should have been also given such an opportunity to state his case and the failure to do so, violated Articles 14 and 16 of the Constitution of India.
5. The appellant filed a counter affidavit in which, while traversing the various claims made in the affidavit of the respondent, it was submitted that Regulation 8(b) referred to and relied upon by the respondent in his affidavit, was the one which stood prior to its amendment in the year 1980 and that paragraph 2 of Regulation 8(b) had been amended in G.O. Ms. No. 368, (Secretariat Branch), dated 7.7.1980 and after such amendment, not only the provision for the second show-cause notice has been deleted, but it “enabled the punishing authority to make an order imposing such penalty as it deemed fit and it shall not be necessary to give the person charged any opportunity of making a representation on the penalty proposed to be imposed. On the basis of the amended regulation, it was contended by the appellant that no second show-cause notice was issued and that the final order issued enclosing a copy of the findings with that, was in order and valid. It was also contended that in respect of Class II Officers like the respondent, it was only the Discipline and Appeal Regulations that applied and having regard to the terms of the amended regulation, the failure to issue a second show cause notice unlike in the case of workmen who are governed by the Standing Orders which provided for the issue of a second show-cause notice, no question of discrimination arose.
6. The learned single Judge, after hearing the submissions made before him, considered that the ratio of an earlier order passed in W.P. No. 2690 of 1986, dated 27.6.1990 (which itself is the subject matter of W.A. No. 1142 of 1990 before us) on the question of an opportunity to be given before passing a final order of punishment, squarely applied to the present case in favour of the respondent therein and allowed the writ petition on that solitary ground and ordered the setting aside of the order of dismissal. It may be relevant to point out at this stage that in W.P. No. 2690 of 1986, Govindasamy, J. held that it was obligatory on the part of the Electricity Board, namely, the Disciplinary Authority, to forward a copy of the Enquiring Officer’s report before the Disciplinary Authority considers the entire materials for the purpose of taking a decision on the disciplinary proceedings initiated against the delinquent officer and the failure to forward the report of the Enquiring Authority before the Disciplinary Authority passed final orders of punishment, resulted in deprivation of an opportunity to make a representation with reference to the findings passed by the Disciplinary Authority. Aggrieved, the appellant filed the above appeal.
7. The relevant facts pertaining to W.A. No. 1142 of 1990 are as follows:
The respondent, who entered the services of the first appellant-Board as Load Surveyor in Papanasam Electricity System, secured in course of time successive promotions and at the relevant point of time he was working as Assistant Divisional Engineer. While discharging duties as such, disciplinary proceedings were initiated against him for wilful insubordination or disobedience and for dishonesty with the Board’s business as per Section 5-AoftheDisciplineand Appeal Regulations of the Board and for neglect of work as per Section 10 of the said Regulations. After the submission of his explanation, an enquiry has been conducted and the Enquiry Officer also submitted his report finding that all the three charges framed against the respondent were proved, On the basis of the report of Enquiring Authority, the Disciplinary Authority, by its order dated 24.2.1986, ordered the dismissal of the respondent. The main grievance of the respondent was that the report of the Enquiring Authority was not forwarded to the respondent before passing the order of punishment and that this constituted deprivation of an effective opportunity to defend himself. The writ petition filed challenging the order of dismissal was allowed sustaining the plea that the non-furnishing of the report before the passing of the final order of punishment deprived the respondent of an effective opportunity to make his representation.
8. Before proceeding with the consideration of the issue raised before us, it is necessary to deal with the development of law relating to delinquent officer who is a Government servant and who is governed by, Article 311 of the Constitution of India, inasmuch as the counsel appearing on either side relied upon the ratio laid down by the apex court in a series of cases pertaining to such Government servants to substantiate their respective viewpoints in construing Regulation 8(b) of the Discipline and Appeal Regulations and the extent, scope and substances of the right secured to an employee of the appellant thereunder.
9. Mr. M.R. Narayanaswami, learned Senior counsel appearing on behalf of the appellant Board contended as follows:
The learned single Judge was not right in holding that it was obligatory on the part of the appellant, the Disciplinary Authority, to forward the copy of the enquiry report to the delinquent Officer before considering the entire materials for the purpose of taking a decision on the disciplinary proceedings initiated. It was the submission of the learned Counsel that after the amendment to Regulation No. 8(b) by B.P. Ms. No. 368, (Secretariat Branch), dated 7.7.1980, it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed and consequently there was no necessity, scope or obligation to forward the report of the Enquiry Officer and give any opportunity before passing final orders on the disciplinary proceedings initiated against the delinquent Officer. The learned Counsel further submitted that the ratio of the decisions referred to and relied upon by the learned Judge are not really decisive of the matter and that there are other decisions of the Supreme Court and that of this Court the ratio of which, according to the learned Counsel, were more binding upon him than those followed by the learned Judge. In other words, the submission of the learned Counsel was that there are other decisions of larger Bench taking a contrary view and that the conclusions rendered by the learned Judge cannot be sustained in law. In reply to the plea of the respondent placing reliance upon the decision of the latest pronouncement of the Supreme Court reported in Union of India and Ors. v. Mohamed Ramzan Khan (1991)1 L.L.J. 29, the learned Counsel for the appellant contended that the said decision should be taken to have been rendered per incuriam and therefore does not operate as an effective and binding precedent and that the earlier decisions reported in Union of India v. Tulsiram P. Patel and Kailash Chander v. State of U.P. , alone should be taken to have finally decided the issue and still holding the field as well as governing the present case.
10. Mr. R. Krishnamoorthy, learned Senior counsel appearing for the respondent countered the submissions on behalf of the appellant and submitted that the learned single judge was right in his conclusions that the latest pronouncement in Mohamed Ramzan Khan ‘s case (1991)1 L.L.J. 29, authoritatively lays down the position of law and fortifies the conclusions of the learned single Judge and that the plea based on the principle of per incuriam had no relevance or application to the case on hand and that no interference is called for with the well-considered order of the learned single Judge in the above appeal. It was also submitted that there was no conflict of the said decision with any other decision and particularly the two decisions referred to on behalf of the appellant.
11. Before proceeding further with the consideration of the respective submissions of the learned Counsel appearing on either side, it becomes necessary to indicate the relevant provisions of law governing the case on hand before us. The Tamil Nadu Electricity Board is no doubt ‘State’ within the meaning of Article l2of the Constitution of India, but at the same time it is to be remembered that its employees are in the services of the Board, their conditions of services being prescribed and regulated by statutory regulations made from time to time and the employees of the Board cannot be considered to be either Government servants or members of the civil service of the State Government holding any civil post under a State. Notwithstanding the same, having regard to the series of decisions referred to before us, it becomes necessary to refer to the state of law, the provisions governing the members of civil service as well as the changes those provisions underwent in stages to understand the principles underlying and the ratio laid down in the various decisions referred to and relied upon. Neither Article 311 of the Constitution of India nor the relevant service rules applicable to Government servants holding posts in civil services has any direct application to the case on hand. On the other hand, it is the Statutory Regulations made in exercise of the powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948 made by the Board, that really governs the case before us.
12. The respondent in the affidavit filed in support of the writ petition, extracted in extenso the relevant portion of Regulation 8(b) but as it existed prior to its amendment in theyear 1980. It is not in controversy before us that a portion of Regulation No. 8(b) underwent an amendment by virtue of B.P. Ms. No. 368, (Secretariat Branch), dated 7.7.1980 and it is the amended regulation alone that governs the present case. The relevant portion of Regulation No. 8(b) as amended and pertaining the procedure to be followed after enquiry as is relevant for our purpose may be usefully extracted as hereunder:
8. Procedure for imposing of penalties:
(a) ….
(b) …After the inquiry has been completed, the person charged shall be entitled to put in, if he so desires, a further written statement of his defence. Whether or not the person charged desired or had an oral enquiry he shall be heard in person at any stage if he so desires before passing of final orders. A report of the enquiry or personal hearing (as the case may be) shall be prepared by the authority holding the enquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain a sufficient record of the evidence, if any, and a statement of the findings and the grounds thereof.
After the enquiry or personal hearing referred to in Clause (b) has been completed and after the authority competent to impose the penalty mentioned in that clause has arrived at provisional conclusions in regard to the penalty to be imposed on the basis of the evidence adduced during the enquiry, he shall make an order imposing such penalty and it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed.
13. Before going into an analysis of the case law cited which were rendered in the context of a member of Government service and the provisions of law applicable to them, it will be appropriate to refer to those provisions themselves to the extent relevant for our purpose and trace the development of the law relating to the rights of a Government servant sought to be punished for his acts of commission or omission. Prior to the commencement of the Constitution of India, members of the civil services were governed by Section 240 of the Government of India Act, 1935,and Section 240(3) which is relevant for our purpose read thus:
3. No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The corresponding provision in the Constitution of India, 1950 to the said Section was Article 311(2) and in the original Constitution it read thus:
No such person as aforesaid shall be dismissed or removed or reduced in rank until ha has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The scope of the above provision came up for consideration of the Apex Court in several cases of which the following may be usefully referred to:- Khemchand v. Union of India , State of Assam v. Bimal Kumar Pandit and Union of India v. Goel .
14. Then came the Constitution (Fifteenth Amendment) Act, 1963 which brought about change in Article 311(2) which read thereafter as follows:
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such enquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
15. Thereafter came the Constitution (Forty-Second Amendment) Act, 1976, under which Article 311(2) underwent a further change and the said provision thereupon read thus:
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
After such amendment, the question regaiding the rights of a civil servant came up for consideration in several decisions of the Supreme Court of which the following few have been referred to before us:
Union of India v. TuIsiram, P. Patel , Union of India v. E. Bashyam A.I.R. 1988 S.C. 1000, Kailash Chander v. State of UP. and Union of India v. Mohamed Ramzan Khan (1991) 1 L.L.J. 29. The decision of Srinivasan, J. reported in S. Kannan v. Member of the Local Board, S.B.I. (1990) 1 M.L.J. 516, confirmed on appeal in an unreported decision in W.A. No. 1011 of 1989, dated 7.12.1989 was also referred to on behalf of the appellant.
16. A Constitution Bench of the Supreme Court, in a decision reported in Goel’s case , analysed and highlighted the basic principles underlying the constitutional safeguard in Article 311 of the Constitution of India and opined:
Article 311 consists of two sub-articles and their effect is no longer in doubt. The question about the safeguards provided to the public servants in the matter of their dismissal, removal or reduction in rank by the Constitutional provision contained in Article 311, has been examined by this Court on several occasions. It is now well-settled that a public servant who is entitled to the protection of Article 311 must get two opportunities to defend himself. He must have a clear notice of the charge which he is called upon to meet before the departmental enquiry commences, and after he gets such notice and is given the opportunity to offer his explanation, the enquiry must be conducted according to the rules and consistently with the requirements of natural justice. At the end of enquiry, the enquiry officer appreciates the evidence, records his conclusions and submits his report to the Government concerned. That is the first stage of the enquiry, and this stage can validly begin only after charge has been served on the delinquent public servant.
After the report is received by the Government, the Government is entitled to consider the report and the evidence led against the delinquent public servant. The Government may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report. If the report makes findings in favour of the public servant, and the Government agrees with the said findings, nothing more remains to be done, and the public servant who may have been suspended is entitled to reinstatement and consequential reliefs. If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf. If the enquiry officer makes findings, some of which are in favour of the public servant and some against him, the Government is entitled to consider the whole matter and if it holds that some of all the charges framed against the public servant are, in its opinion, prima facie established against him, then also the Government has to decide provisionally what punishment should be imposed on the public servant and give him notice accordingly. It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government on both the counts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him the punishment proposed to be inflicted upon him is unduly severe. This position under Article 311 of the Constitution is substantially similar to the position which governed the public servants under Section 240 of the Government of India Act, 1935. The scope and effect of the provisions of Section 240 of the Government of India Act, 1935, as well as the scope and effect of Article 311 of the Constitution have been considered by judicial decisions on several occasions and it is unnecessary to deal with this point in detail, vide The Secretary of State for India v. I.M. Lal (1945) F.C.R. 103, High Commissioner for India and High Commissioner for Pakistan v. I.M. Lal 75 I.A. 225 and Khem Chand v. Union of India (1958) S.C.R. 1080.
(Emphasis supplied).
17. Regarding the nature and efficacy of the report of the Enquiry Officer, the Apex Court in Goel’s case had stated thus:
In this connection, we may add that unless the statutory rule or the specific order under which an officer is appointed to hold an enquiry so requires, the enquiry officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry; if, however, the enquiry officer makes any recommendations, the said recommendations like his findings on the merits are intended merely to supply, appropriate materials for the consideration of the Government. Neither the Findings, nor the recommendations are binding on the Government vide A.N. D’Silva v. Union of India (1962) 1 S.C.R. (Supp.) 968.
18. Another Constitution Bench of the Apex Court in Bimal Kumar Pandit case , to which a reference has also been made in
Goel’s case had also an occasion to declare the position of law as to the duties of the disciplinary authority and the rights of the delinquent officer at different stages of the proceedings in the following manner:
Article 311(1) provides, inter alia, that no person covered by the said sub-article shall be dismissed or removed by an authority subordinate to that by which he was appointed. We are not concerned with this sub-article in the present appeal. Article 311(2) provides that no such person as specified in Article 311(1), shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. An enquiry must be held and it must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice. At this enquiry, the public officer concerned would be entitled to test the evidence adduced against him by cross-examination, where necessary, and to lead his own evidence. In other words, at the first stage of the proceedings he is entitled to have an opportunity to defend himself. When the enquiry is over and the enquiring officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings, in the report are against the public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show why disciplinary action should not be taken against him. In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice. The public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not in dispute.
[Emphasis supplied].
We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In. such a case, it would obviously be necessary that dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice.
In this category of cases. The action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2). It is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice and so, reading the notice in a common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in their entirely.
[Emphasis supplied].
It was thus held that the enquiry report along with the evidence recorded constitutes the material on which the Government or the Punishing Authority has ultimately to act and that is the only purpose of the enquiry held by the competent officer and the report which he makes as a result of the said enquiry.
19. That being the position of law pertaining to the protection of a civil servant under Article 311 of the Constitution of India, even prior to the Constitution (Fifteenth Amendment) Act, 1963, the amendments introduced in the year 1963, as could be seen from the above, merely and substantially gave statutory effect to the principles laid down by the Apex court in Khemchand v. Union of India , and the other cases referred to above, which further clarified the legal position with great clarity. Then came the Constitution (Forty-Second Amendment) Act, 1976 under which Article 311(2) underwent substantial alteration and after such amendment, the Article read thus:
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
The question that is now raised before us for our determination came up in the same form and manner directly for consideration of the Apex Court after the amendment in 1976 before a Division Bench of three learned Judges presided over by the learned Chief Justice in a decision reported in
Union of India v. Mohamad Ramzan Khan (1991) 1 L.L.J. 29. Ranganath Mishra, C.J., who spoke for the Bench, held the position to be thus:
9. Where, however, the Inquiry Officer furnishes a report with or without proposal of punishment the report of the Inquiry Officer does constitute an additional material which would be taken into account by the disciplinary authority in dealing with the matter. In cases where punishment is proposed there is an assessment of the material and a tentative conclusion is reached for consideration of the disciplinary authority and that action is one where the prejudicial material against the delinquent is all the more pronounced.
(13) …There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi-judicial and attract the principles of natural justice. As this court rightly pointed out in the Gujarat case, (supra) the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.
15. Deletion 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 repon 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 the 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, furnishinga copy of the report becomes necessary and to have the proceedings 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 put or truncates nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the, 42nd Amendment. We, there come to the conclusion that supply of a copy of the inquiry report along with 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.
[emphasis supplied]
(17) There have been several decisions in different High Courts which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion, the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger Bench of this court taking this view. Therefore, the conclusions to the contrary reached by any two Judge Bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.
18. We make it clear that wherever there has been an inquiry officer and he hits 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.
[Emphasis supplied]
20. The above decision of the Apex Court, in our view, has finally settled the proposition in most absolute and clear terms in respect of the rights of a civil servant under Article 311of the Constitution of India. But the learned Counsel appearing for the appellants seeks to draw inspiration from the observations made at paragraph 17 that their Lordships have not been shown any decision of a coordinateor a larger Bench of that Court taking a contrary view and, therefore, wants to re-agitate the very issue once again before us relying upon the decision of the Apex Court reported in Union of India v. Tulsiram P. Patel and Kailash Chander v. State of U.P. contending that the decision in Union of India v. Mohamed Ramzan Khan (1991) 1 L.L.J. 29 offends both against the principles of ‘stare decisis’ and ‘per incurium’.
21. Before going into the aspect of the applicability of the principle of ‘perincurium’ as above.it will be useful to refer to the two decisions referred to by the learned Counsel for the appellant to consider whether there was really any conflict as claimed on behalf of the appellant. In Tulsiram Patel’s case A.I.R. 1985 S.C. 1416, a Constitution Bench of the Apex Court was considering the question of the validity and scope of the second proviso to Article 311(2) and the rival submissions noticed in paragraphs 32 and 33of the judgment would more than clearly indicate the issues that were directly under consideration for the determination of the Apex Court. In that context and in the course of discussion and consideration, the court made an observation as follows:
The question which then arises is, whether the Constitution (Forty-Second Amendment) Act, 1976, which further amended substituted Clause (2)of Article 311 with effect from 1st January, 1977, has made any change in the law? The amendments made by this Act are that in Clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a Government Servant was deleted and in its place the first proviso was inserted, which expressly provides that it is not necessary to give to a delinquent Government servant any opportunity of making representation on the proposed penalty. Does this affect the operation of the original proviso which by the Constitution (Forty-Second Amendment) Act became the second proviso. Such obviously was not and could not have been the intention of Parliament:- vide para 68).
That is how the further consideration of the issues before that Court continued and it is vis-a-vis the second proviso to Article 311(2) that all further aspects of the case were actually considered. The second proviso to Article 311(2) deals with only situations where no enquiry was called for as well as where the enquiry can be dispensed with. The other decisions of the Supreme Court report in Satyavir Singh v. Union of India , Shivaji Atmaji Sowant v. State of Maharashtra and Ors. , were also cases dealing with the applicability of the second proviso to Article 311(2) in the context of cases where the very enquiry had been dispensed with.
22. The next case was that of the Apex Court in Kailash Chander Case A.I.R 1958 S.C. 1338, where a Division Bench of that Court consisting of three learned Judges considered a claim made on behalf of a Government servant relying upon Explanation to Sub-rule (3) of Rule 9 of the UP. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 which provided that a copy of the recommendation of the tribunal as to the penalty should be furnished to the charged Government servant. While repelling such a plea, the Apex Court observed that the question of service of copy of report arose on account of a second show cause notice to the Government servant before the 42nd Amendment and since the proceedings in that case was one initiated after the 42nd Amendment, the petitioner cannot legitimately demand a second opportunity. The true and real nature, extent and scope of the second opportunity and as to the extent the 42nd Amendment really curtailed or abolished it was never the subject matter of direct consideration of the learned Judges in that case, nor were the learned Judges obliged to express any opinion on the applicability of the principle of natural justice which became the basis and the theme of the judgment in Mohamed Ramzan Khans case (1991) 1 L.L.J. 29.
23. Apart from the decision in the latest Mohamed Ramzan Khan’s case (1991) 1 L.L.J. 29, reliance was also placed for the respondents on the decision of the Supreme Court inE. Bashyam ‘s case A.I.R. 1988 S.C. 1000, wherein the question arose directly for consideration as to whether the supply of copy of report of the Enquiry Officer to the delinquent is necessary before the disciplinary authority records a finding of guilt. Considering the relevance as well as the importance of the question and the necessity to have the same adjudicated by a larger Bench, while recommending consideration of referring the matter to a larger Bench, the learned Judges observed as follows:
The question arising in this matter is not with regard to the giving of notice limited to the question of what penalty should be imposed. The question is whether it is the right of the delinquent to persuade the authority which makes up its mind as regards the guilt of the delinquent that such a finding is not warranted in the light of the report of the Enquiry Officer. (vide para 6 of the judgment)
On a careful consideration of the decision in Tulsiram Patel’s case and Secretary Central Board of Excise and Customs v. KS. Mahalingam , the Apex Court pointed out in categorical terms that Clause (2) of Article 311 required that before a Government servant was dismissed, removed or reduced in rank, an inquiry must be held in which he should be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It was also pointed out that the nature of the hearing to be given to a government servant under Clause (2) of Article 311 has been elaborately set out by this Court in Khem Chand’s case , and that though that case related to the original Clause (2) of Article 311, the same applied to the present Clause (2) of Article 311 except for the fact that now a government servant has no right to make any representation against the penalty proposed to be imposed upon him. See para 96 of Tulsiram Patel’s case . The first proviso to Article 311(2) after the 42nd Amendment also states that “it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
24. There can, therefore, be no serious controversy over the fact that more than one Constitution Benches of the Apex Court consistently and repeatedly laid down the position of law that the first stage of the enquiry is upto the stage of the submission of the report to the Government or the Disciplinary Authority by the Enquiry Authority after appreciating the evidence and recording his conclusions in the form of a report and that the second stage of the inquiry involved the formation of an opinion or arriving at aprima facie conclusion regarding the proof or otherwise of the charges levelled or the guilt of the delinquent officer as it is called and provisionally propose the punishment and give an opportunity to the delinquent officer to show cause against the further course of action proposed. This opportunity has been invariably held to include not only an opportunity to show cause against the imposition of the punishment or its severity alone but also, against the proof or otherwise of the charges and thereby the very guilt of the delinquent officer. Consequently, the opportunity at that stage included a right to show that he is innocent of the charges framed against him before the Punishing Authority or Disciplinary Authority and that the charges were themselves not proved against him. When that was the position of law prevailing on the eve of the 42nd Amendment and the amendment specifically and guardedly used the phraseology “making representation on the penalty proposed”, can it be allowed to contend that such amendment had the effect of depriving the delinquent officer the opportunity he had to show cause or make representation against the proof or otherwise of the charges themselves which itself was held to be a substantial right of the government servant. Is it open to assume ignorance on the part of those concerned with the Forty-Second Amendment of the prevailing state of law and take it for granted that the phraseology carefully chosen and deliberately used had no significance or meaning whatsoever. If that were the intention or object sought to be achieved, it could have been made clear that the delinquent officer or government servant shall not be entitled to any further opportunity after the stage of enquiry or that there was no need to give any second or further show cause notice or opportunity after the conclusion of the enquiry. It is a well accepted proposition that the object of the enquiry by a person other than the Disciplinary Authority itself is not merely to collect the materials and simply forward them, but appreciate the evidence and record his conclusions and submit them in the form of a report which by itself constitutes as a material for the Disciplinary Authority to take further action. Though the report as such is not binding upon the Disciplinary Authority and it is open to such authority either to agree or disagree with the findings of the Enquiry Officer, the fact that the findings or conclusions in the report influences the mind of the Disciplinary Authority considerably and form as basic material having great persuasive value cannot be ruled out. That being the position, the relevant question that necessarily required to be decided will be whether the Disciplinary Authority can act upon such a report received behind the back of the delinquent officer even before the same was communicated to him and such officer was given an opportunity to explain anything said adverse against him in the report before arriving at a finding of guilt or otherwise or holding the charges proved or not, on the basis of such a report. That is what we are concerned with in the matter before us and the question in that form directly was posed only in E. Bashyam ‘s case A.I.R. 1988 S.C. 1000, though not answered but came to be ultimately decided in the latest pronouncement in Mohamed Ramzan Khan’s case (1991)1 L.L.J. 29.
25. That apart, considering the judgments relied upon by the learned Counsel for the appellants as well as the latest decision of the Apex Court in Mohamed Ramzan Khan’s case (1991)1 L.L.J. 29, we do not find either the fact, situation or the question directly involved therein are one and the same. To find out the ratio of a decision of a case, it is not enough to merely pick up a word or a sentence from a judgment and treat it as the complete exposition of law on the subject unmindful of the facts and circumstances of the case or the context in which those observations were made. The Apex court has not only cautioned against such practice but indicated that such sentences or words divorced of the situation and purpose cannot be considered as binding precedents themselves. No doubt, Article 141 of the Constitution of India man dates that the law laid down by the Supreme Court is binding on all other Courts but it is not that every observation can be treated as the full and complete exposition of law. Madhav Rao Scindia v. Union of India , In yet another decision reported in P.A. Shah v. State of Gujarat , the Apex court opined that while applying a decision to a later case, the court which is dealing with it, should carefully try to ascertain the true principle laid down by the previous decision and that the fact that a decision often takes its colour from the question involved in that case in which it was rendered cannot be ignored and the scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. We have already considered and expressed our views as to the ratio of the various decisions referred to and our conclusions in that regard will go to show that there is absolutely no scope for even contending that the latest decision in Mohamed Ramzan Khan ‘s case (1991)1 L.L.J. 29, conflicts with any other decision of a coordinate or larger Bench of the Apex Court.
26. Viewed thus, as it ought to be, we find that there was no scope or occasion for visualising any conflict as suggested on behalf of the appellants. The decisions referred to and relied upon by the learned Counsel for the appellants are not authorities for the proposition that rules of natural justice have no application in such cases and that the delinquent officer or government servant is not entitled to have an opportunity to explain the conclusions or findings against him by the Enquiry Officer, to the Disciplinary Authority before such authority arrives at a finding of guilt or otherwise of the delinquent officer holding the charges proved or not proved. That being the position, we see no conflict of the view expressed or ratio laid down by the learned Chief Justice of India in the latest pronouncement in Mohamed Ramzan Khan’s case (1991) 1 L.L.J. 29, with the ratio of the earlier decisions referred to on behalf of the appellants. It was observed at para 17 of the above case thus:
(17) There have been several decisions in different High Courts which, following the Forty-Second Amendment, have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion, the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a co-ordinate or a larger Bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-judge Bench in this Court will also no longer to be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.
The above observation, in our view, only is indicative of the fact that all relevant decisions have been, though not referred to, considered and there was no judgment of the Apex Court rendered by a coordinate or a Larger Bench taking a view contra to the one taken by them in regard, particularly to, the requirement of the supply of the enquiry report as a necessary requirement of the supply of the enquiry report as a necessary requirement for the due compliance with the principles of natural justice. The earlier judgment had not looked at the provisions and requirement of the supply of the copy of the report from that angle. This, according to us also fortifies our view that in the cases relied upon on behalf of the appellants, the question never arose directly as in the latest pronouncement referred to supra and that it has been since authoritatively decided and the said decision is very much binding upon us having regard to the declaration contained in Article 141 of the Constitution of India. For the very same reason, we consider that the decision reported in S. Kannan v. Member of the Local Board, S.B.I. as well as the order made on an appeal from the same inW.A.No.l011 of l989, dated 7.12.1989 can any longer be said to lay down the correct position of law after the latest pronouncement of the Apex Court. That apart, we find that those decisions also turned upon the peculiar provision contained in the rules governing that case providing for service of report only along with the final orders.
27. For what all has been said above, we consider it to be unnecessary to refer to the decisions pertaining to “per inatriam” and “stare decisis” cited at the Bar on behalf of either side or deal with and adjudicate upon those submissions as they do not strictly arise in this case.
28. We consider it necessary, even at the expense of repetition to state that we had to refer to all those decisions and deal with the scope of Article 311(2) having regard to the fact that the entire gamut of case law produced oncerncd cases of Government or civil servants of the State. We were alive to the position that the cases before us pertained to employees of a Board constituted no doubt under a statute, and the rights of such employees of an undertaking were governed by statutory regulations made by the Board and not either by An.311(2) of the Constitution of India or the other rules governing civil servants of the State. The case law referred to, therefore, would be relevant, so far as the present cases are concerned, as of persuasive value and not as directly binding authority.
29. The provisions of law that directly apply and really govern the case are those contained in Regulation No. 8(b) of the Tamil Nadu Electricity Board Employees Discipline and Appeal Regulations made in the purported exercise of powers conferred under Section 79(c) of the Electricity (Supply) Act, 1948 referred to supra. The provision therein, that “After the enquiry has been completed, the person shall be entitled to put in, if he so desires, a further written statement of his defence, whether or not the person charged desired or had an oral enquiry, he shall be heard in person at any stage if he so desires before passing of final orders,” assumes great significance and importance in deciding the question directly in issue before us. The enquiry officer submits a report only and does not pass final orders. Therefore, before the passing of final orders by the Disciplinary Authority so far as the guilt of the delinquent officer is concerned and before the findings are arrived at finally one way or the other, the delinquent officer is entitled to “be heard”. The second para of Regulation 8(b) has to be harmoniously read with the other portion and if so read, the second para has to be limited in its operation to the stage and purpose of showing cause against the penally proposed to be imposed. Thus, the effect of the amendment introducing the second para to Regulation No. 8(b) is that the disciplinary authority is not obliged to inform beforehand the nature of the penalty proposed to be imposed and hear or give an opportunity to the delinquent officer against the imposition of such penalty and that the delinquent officer cannot claim that he should be given an opportunity to show cause against the quantum or nature of punishment before the delinquent officer being visited with such penalty. Apart from this, we are unable to either appreciate or countenance the plea of the appellants that no opportunity need be given to the delinquent officer, after receipt of the report submitted behind his back but before either agreeing or disagreeing with the findings recorded or arrived at by the enquiry officer and finding the delinquent officer guilty of the charges or condemning him. The fact that the findings recorded or conclusions arrived at by the enquiry officer are not per se binding upon the disciplinary authority has no relevance or impact upon the decision of the question before us for our consideration. The report is a material which comes into the hand is of the disciple in any authority and the conclusions and findings recorded play a vital role in condemning or exonerating the delinquent officer and that being the real position, the giving of an opportunity as prayed for becomes all the more important and necessary. Viewed either on the basis of the Regulation or on the basis of the principles of natural justice, the conclusions of ours as expressed supra become inevitable and inescapable.
30. The plea incidentally raised at some stage of the argument that the application of principles of natural justice can be excluded by a specific statutory provision equally does not appeal to us, so far as the present case is concerned. It is no doubt, by now, a well-settled principle of law that natural justice does not supplant but supplement the law and the application of those general principles cannot only be modified but also be excluded by a particular statute or statutory provision. At the same time, such exclusion ought not to be readily inferred. That is because the Apex Court on more than one occasion categorically laid down the proposition that to treat a person in violation of the principles of natural justice would amount to arbitrary and discriminatory treatment and would violate the guarantee secured under Article 14 of the Constitution of India. Principles of natural justice have since been uniformly recognised to have become part of the guarantee secured under Articles 14 of the Constitution of India. That apart, though the employees of the Board are not members of the civil service of the State, the appellant-Board is indisputably ‘State’ within the meaning of Article 12 of the Constitution of India and thus the action of the appellants shall answer the requirements of Articles l4 and 16 of the Constitution of India, which in turn will ensure compliance with the principles of reasonableness, fairness and justness as opposed to arbitrariness and acting at whimsically and capriciously. Consequently, though a law can provide for the exclusion of the principles of natural justice in a given case, yet the same is subject to scrutiny on the touchstone of Article 14 of the Constitution of India. So far as the case on hand is concerned, we are unable to agree with the submission that the second paragraph of Regulation No. 8(b) has the necessary consequence of excluding their applicability beyond the stage or purpose for which it has been designed.
31. The submissions on behalf of the appellants proceed upon fallacy that once the opportunity to make representation on the penalty proposed to be imposed has been taken away, the right of the delinquent officer to make representations against the proof or otherwise of the charges and against the finding of guilt also has been lost. The stage of imposition of penalty is the consequence of the delinquent officer having before or prior thereto found guilty. Finding of guilt is the first or anterior stage and the imposition of penalty is posterior step. That in respect of these two stages or aspects the delinquent had a right to show cause against or make his representation is not disputed before us. They are two different and distinct stages and though the destruction of the opportunity at an anterior stage may by implication sometimes be said to have resulted in deprivation of the opportunity at the later stage, the converse cannot follow or be said to be correct. The question whether a delinquent officer has to be punished at all depends upon as to whether the charges leveled have been properly substantiated and validly proved. That is not the same as to the question of what nature of punishment or quantum of punishment has to be imposed commensurate with the gravity of the charges held proved. The second paragraph of Regulation 8(b) inserted after amendment-takes away the opportunity of making representations against the nature of quantum of punishment to be imposed. Merely because in the by-gone days, having regard to the fact that it was the disciplinary or punishing authority which dealt with and handled both stages, that the matter was dealt with as a combined measure clubbing both the aspects of finding of guilt of charges and imposition of punishment together and in common, the right to make representation at and in respect of those two stages cannot be said to have been destroyed by the specific and restricted language employed for the purposes of the amendment in question. If that was really the object, we are constrained to state that those who devised the amendment have miserably missed their target and failed in achieving their objects.
32. For all the reasons stated above, we are of the view that the conclusion of the learned single Judge was correct, though for different reasons assigned by us, and we see no reason to interfere with the order of the learned Judge allowing the writ petitions. The writ appeals consequently fail and shall stand dismissed; but in the circumstances, there will be no order as to costs.