MALIMATH, J. ( 1 ) THIS Writ petition has come be fore this Division Bench on a reference made by Rama Jois, J. , on the ground that this case involves important questions regarding interpretation of Art. 311 (2) of the Constitution of India. ( 2 ) THE petitioner Sri M. P. Naik held a civil post under the State government as Senior Chemist in the Government Sandal Wood Oil factory. Shimoga. Alleging that he is guilty of certain mis-conduct, certain charges were framed against him and an enquiry was held by the enquiry Officer appointed for the purpose by the State Government. The Enquiry Officer appears to have submitted his report after conclusion of the enauiry on the 1st of June 1976 1976. Nearly four years thereafter the State Government passed the impugned order on 9. 7. 80 (Annex- ure-B) holding the petitioner guilty of certain charges and imposing the penalty of rpmoval from service with immediate effect. It is the said order that is challenged by the petitioner in this writ petition. After the report of the enquiry officer was submitted to the State government and before the Government passed the impugned order art. 311 (2) of the Constitution was amended by the Constitution forty Second Amendment) Act 1976. The amended Art. 311 (2) came into force with effect from 3. 1. 77. ( 3 ) BY the said amendment the words '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 penally proposed but only on the basis of the evidence adduced during such enquiry' were omit ed, and for the words 'provided that this clause shall not apply' the following words were substituted:"providedthatwhere it is proposed after suchinquiry to impose upon himanysuch penalty,such penalty may be imposed onthe basis of theevidence adduced during suchinquiryand it shall not be necessary togive suchperson anyopportunity ofmakingrepresentation on thepenalty proposed: provided further that this clause shallnot apply-"beforetheamendment Art. 311 (2) required that a reasonableopportunity ofmaking representationon thepenaltyproposedshouldbe afforded. Bythe amendmentit is expressly provided thatit isnot necessary to affordanopportunity to make representationat the second stage of inquiryinregard tothe penalty proposedto be imposed. ( 4 ) THE procedure for holding disciplinary enquiries is governed by the Karnataka Civil Services (Classification, Control and Appeals) Rules 1957 (hereinafter referred to as the rules) made by the. Bythe amendmentit is expressly provided thatit isnot necessary to affordanopportunity to make representationat the second stage of inquiryinregard tothe penalty proposedto be imposed. ( 4 ) THE procedure for holding disciplinary enquiries is governed by the Karnataka Civil Services (Classification, Control and Appeals) Rules 1957 (hereinafter referred to as the rules) made by the. Governor in exercise of the powers conferred by proviso to Art. 309 of the Constitution. Rules 11 and 11a of the Rules are the principal rules that regulate the procedure for the 'imposition of major penalties like dismissal removal and reduction in rank. Rules 11 and 11a contained detailed provisions in the matter of holding disciplinary proceedings consistent with the provisions of Art. 311 of the Constitution before its amendment. After Art 311 (2) was amended with effect from 3-1-1977 the Governor amended sub- rule (3) of Rule 11a and deleted sub- rule (4) of Rule 11a by the Karnataka civil Services (Classification, Control and Appeal) (Amendment) Rules 1977, which came into force on the 20th January 1977, the date on which the said Rules were published in the karna,taka Gazette. ( 5 ) SUB-RULE (2) of Rule 11 of the rules provides that where the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into or appoint an authority to inquire into the truth there of. Sub-rules (3) to (18) contain derailed provisions from the stage of framing charges to the stage of production of evidenre. Sub-rule (19) provides that the Inquiring Authority may after completion of production of evidence hear the Presenting Officer, if any, appointed and the Government servant or permit them to file written briefs of their respective cases, if they so desire. Sub-rule (20) enables the Inquiring Authority to hold an enquiry ex-parte in certain circumstances. Sub-rule (21) prescribes the procedure to be followed when the disciplinary authority who is competent to impose minor penalties comes to the conclusion that any of the major penalties specified in clauses (v) to (viii) of Rule-8 are, required to be imposed. Sub-rule (22) prescribes the procedure to be followed when an Inquiring Authority after having heard and recorded the whole or any part of the evidence ceases to exercise jurisdiction and he is succeeded by another Inquiring authority. Sub-rule (22) prescribes the procedure to be followed when an Inquiring Authority after having heard and recorded the whole or any part of the evidence ceases to exercise jurisdiction and he is succeeded by another Inquiring authority. Sub-rule (23) provides that after the conclusion of the enquiry a report shall be prepared which shall contain: (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour, (b) the defence of the government servant in respect of each Articles of charge, (c) an assessment of the evidence in respect of each articles of charge, and (d) the, findings on each article of charge, and the reasons therefor. The explanation to this sub-rule empowers the Inquiring Authority to record findings on a charge different from the original article of charge after giving the Government servant an opportunity of defending himself against such article of charge. This sub-rule further provides that the inquiring Authority where it is not itself the Disciplinary Authority shall forward to the Disciplinary authority the records of the Inquiry, which shall include: (a) the report prepared by it under clause (i), (b) the written statement of defence, if any, submited by the Government servant, (c) the oral and documentary evidence produced in the course of the inquiry, (d) written briefs if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry, and (e) the orders, if any, made by the disciplinary Authority and the inquiring Authority in regard to the inquiry. ( 6 ) RULE 11a of the Rules which is the next rule prescribes the procedure to be followed by the disciplinary Authority on receipt of the. Enquiry report. Sub-rule (i) empowers the Disciplinary Authority to remit the case to the Inquiring authority for further enquiry and report if the circumstances of the case justify such a course of action. Sub-rule (2) provides that the Disciplinary Authority shall if it disagrees with the findings of the Inquiring Authority - on any articles of charge to record its reasons for such disagreement and record its own findings if the "evidence on record is sufficient for the purpose. Sub-rule (2) provides that the Disciplinary Authority shall if it disagrees with the findings of the Inquiring Authority - on any articles of charge to record its reasons for such disagreement and record its own findings if the "evidence on record is sufficient for the purpose. Sub-rule (3) before it was amended in January 1977 provided that if the disciplinary authority having regard to its findings on all or, any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 8 of the Rules should be imposed, it shall notwithstanding any thing contained in rule 12 make an order imposing such penalty. The proviso to the said rule provides that in every case where it is necessary to consult the Commission, the records of the Inquiry shall be forwarded to the Commission by the disciplinary Authority for its advice on the penalties to be imposed on the Government servant and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. Sub-rule (4) before its deletion in January 1977 read as follows: (I) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (v) to (viii) of rule 8 should be imposed on the Government servant, it shall- (a) furnish tothegovernment servant a copyof the report of the enquiry held by itand its findings on each ar'icle of charge, or where the inquiry hasbeen held by an inquiringauthority, appointed by it, a copy of the report of such authorityand astatement ofits findings oneacharticle of charge togetherwith brief reasonsfor its disagreement,ifany, with the findings of theinquiring Authority and wheretheinquiry is held by thevigilancecommissionunder rule14a, a copyof the findings of theinquiring Officer withthe recommendationsof thevigilance commissioner, and (b) give the Government servant a notice statingthe penaltyproposed to be imposedon himand calling upon him tosubmit within fifteen days of receipt of the notice or such furthertime not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the Inquiry held under rule. 11. 11. (II) (a) In every case in which it is necessary to consult the Commission, the record of the notice given under Clause- (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the Disciplinary authority to the Commission for its advice on the penalties proposed to be imposed on the Government servant. (b) The Disciplinary Authority shall after considering the representation, if any, made by the government servant and the advice given by the Commission, determine what penalty, if any, should be imposed on the Government servant and make such order as it may deem fit. (iii) Where it is not necessary to consult the Commission. the disciplinary Authority shall consider the representation, if any, made by the Government servant in pursuance of the notice given to him under clause (i) and determine what penalty, if any, should be imposed on him and make such order as it may deem fit. "as already stated this sub-rule (4) of rule 11a has been deleted with effect from 20. 1. 77. So far as sub-rule (3) is concerned, the words 'any of the penalties specified in clause (i) to (iva) of rule 8' are" substituted- by the words 'one or more of the penalties specified in rule 8. ( 7 ) THE clear effect of the amendment made to the Rules to bring them in tune with the amended Art. 311 (2) of the Constitution is to do away with the procedure prescribed by rule 11a (4) and to provide that after receipt of the Enquiry Officer's report, the Disciplinaryauthority may proceed to record itsfindings on the charges and to imposeon the Government servantone ormore of the penalties including themajorpenalties ofremoval, dismissalorreduction in rank provided by rule-8 of the Rules. If the Disciplinary Authority is himself theinquiring Authority, theexplanationtosub-rule (2) of Rule-11provides that the reference in sub-rule (7)tosub-rule (20) and in sub-rule (22) to theinquiring authority shall beconstrued as a reference to thedisciplinary Authority. Consequently if followsthat when the Disciplinary Authority himself the Inquiringauthority,it has to follow the procedure prescribed urder sub-rule (19) of Rule-11, which providesthatafter produc don of evidence, it should hearthe presenting Officerappointedand the governmentservant orpermit them to file written briefsof their respective cases, if they so desire. Consequently if followsthat when the Disciplinary Authority himself the Inquiringauthority,it has to follow the procedure prescribed urder sub-rule (19) of Rule-11, which providesthatafter produc don of evidence, it should hearthe presenting Officerappointedand the governmentservant orpermit them to file written briefsof their respective cases, if they so desire. It is after giving an opportunity of hearing to the presentingofficerandthe government Servant thatthedisciplinaryauthority canproceedto record its findings andto impose any of thepenaltiescontemplated be rule 8 as providedby Rule 11a (3) as amended. Ifthedisciplinary authorityis not theinquiring authority itself has togive an opportunity ofhearing ascontemplated bysub-rule (19)of Rule-11 and submit itsreportafter the completionoftheinquiry to the disciplinary Authority ascontemplated by sub-rule (23)of Rule-11. Before rule11awas amended the disciplinary Authorityonreceipt of such a report wasrequired to arrive at tentativefindingson the charges framedafterconsidering the report of the Inquiringauthorityand the material collected during the course of the Inquiry. Thereafter it was required to furnish tothe government a copy of the report of the inquiry held, a statement of its findings on each article of charge, with brief reasons for its disagree ment if any, with the findings of the Inquiring authority and a notice stating the penalty proposed to be imposed on him and calling upon him 10 submit his representation within the specified time. It is after considering the cause shown by the Government servant both in regard to the merits of the charges and in regard to the proposed penalty, that the disciplinary Authority was required to arrive at its final conclusion in regard to the charges and record its findings. if found guilty it could impose appro priae penalty. The amendment of rule 11a in January 1977 makes it appear that the Disciplinary Authority is no required to follow any such procedure after receiving the report from the Inquiring Authority under rule (23) of Rule 11a. ( 8 ) IT was submitted by Sri B. B. Mandappa, learned High Court government Advocate that after the amendment of Rule 11a the Disciplinary Authority is not required to furnish a copy of the enquiry officer's report to the Government servant or to give an opportunity of showing cause before recording its final findings on the articles of charges framed against the government servant. He submitted that after the receipt of the Report of the inquiring Authority all that the disciplinary Authority has to do is to consider the report and arrive at a final conclusion without giving further opportunity of showing cause to the government servant either in regard to the merits' of the charges or in regard to the proposed penalty to be imposed on him. He submitted that that is the principal departure that has been brought about by the amendment of Rule 11 A, which amendment, according to him, has been brought about consistent with the amendment to art. 311 (2) of the Constitution. ( 9 ) IT is notdisputedin this case thatthe Stategovernment has followedtheprocedure precisely as indicated by the learned High Court government Advocate. The reportof the Inquiryofficerwas submitted to thedisciplinaryauthorityon 1. 6. 76. Aft Afterreceivingtha,t report, the Stale Government, which is the disciplinaryauthority didnot furnish a copy of the report of the inquiry Officertothepetitioner. What the Stategovernment did was to consider thereport of the Inquiry officer receivedby it under rule 11a (23)and to recordits findings without giving afurtheropportunity01 showingcausetothepetitioner. After recording its findings inregard to the chargeslevelled againstthe petitionerinthatmanner, the state Government has proceededto impose the penaltyof removal from servicewithout giving further opportunity of makingrepresentation in regard to the proposed penalty. ( 10 ) ONBEHALFOF the petitioner sri T. S. Ramachandra, learned advocate contended thatthe inquiry inthiscasehavingadmittedly commenced sometime in the the year 1974 when the charges were framed againstthepetitioner, the inquiry wasrequiredto be held in accordancewithart. 311 (2) of the constitution asit stood beforeits amendmentwitheffect from P. 1. 77 and inaccordance withthe un- amendedrule-11aof the Ruleshe pointed outthat it is not disputed thattheprocedureprescribed by sub-rule (4)ofrule-11a before its deletion was notfollowed by the state Governmentinthis case. He further submitted that the petitioner was not given areasonable opportunity of beingheardas required by art. 311 (2) ofthe Conslitution and that hewasalso notafforded an opportunity ofmaking representation in regard to the penalty proposed. He further contended that the inquiry in this case should have been concluded following the procedure prescribed by Rule 11a before its amendment and in accordance with sub-art. (2) of Art. 311 of the Constitution before its amendment with effect from 3. 1. 77. ( 11 ) SRIB. He further contended that the inquiry in this case should have been concluded following the procedure prescribed by Rule 11a before its amendment and in accordance with sub-art. (2) of Art. 311 of the Constitution before its amendment with effect from 3. 1. 77. ( 11 ) SRIB. B. Mandappa, learned high Courtgovernmentadvocate, on theother handcontended that sub art (2) of Art. 311 of the Constitution andsub-rules (3) and (4) of Rule 11a of therules, having been amended in theyear 1977 the stategovernmentwas right in following the amendedprovisions of art. 311 (2)and Rule11a of the rules. Sri Mandappasubmittedthat hough the disciplinary inquiry was commenced against the petitioner before the amendment of the Rules and An. 311 of the Constitution, as the inquiry had not been concluded, the State Government was right in following the procedure that was consistent with the amended Art. 311 (2) and amended - provisions of rule 11a of the Rules. But, it was maintained by the learned advocate for the petitioner that even if the provisions of amended Art. 311 (2) of the Constitution could be applied to this case, the impugned order cannot be sustained, the same having been passed without giving a reasonable opportunity of being heard, to which opportunity the petitioner is entitled to even in accordance with the amended Art. 311 (2) of the Constitution. ( 12 ) WE shall firsttake upfor consideration thequestion as to whethertheenquiry which commenced in this casebefore the amendment wasrequiredto be concluded inaccordancewith the unamended provisions of rule11a of the Rules. It wascontended by Sri t. S. Ramachandralearned Advocate for thepetitioner' that Art. 311 (2) of the Constitution has conferred a valuable right on all persons holding civil posts under the State which right being a substantive right, cannot be denied unless the amendment to Art. 311 (2) is given retrospective effect by express provision in that behalf or by necessary implication. He submitted that the constitution (Forty Second Amendment) Act, 1976 does not in express terms give retrospective effect to the amended A-1. 311 (2 ). He is also right in pointing out that there is no express provision making the amended Art. 311 (2) applicable to pending disciplinary proceedings. He further submitted that there is nothing to indicate that by necessary implication retrospective ' effect is given to amended Art. 311 (2) so as to make the same applicable to pending proceedings. Sub-art. He is also right in pointing out that there is no express provision making the amended Art. 311 (2) applicable to pending disciplinary proceedings. He further submitted that there is nothing to indicate that by necessary implication retrospective ' effect is given to amended Art. 311 (2) so as to make the same applicable to pending proceedings. Sub-art. (1) of art. 311 of the Constitution provides that a Government servant shall not be dismissed or removed by an authority subordinate to that by which he was appointed. Sub-art (2) to Art. 311 prescribes that the penalty of dismissal, removal or reduction in rank should not be imposed except after an enquiry. The unamended article of the Constitution of India provided that he should be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It further provided that where it is proposed, after such inquiry, to impose on him any such penalty, he should be given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry. It is, therefore, clear that what was contemplated by Art. 311 (2) of the Constitution was, framing of charges, affording of a reasonable opportunity of being heard in respect of the charges and of affording a reasonable opportunity of making a representation in regard to the penalty proposed. ( 13 ) ALL these steps contemplated by Art. 311 of the Constitution pertain to the procedure in the matter of holding disciplinary inquiry. The essential character of the provision of Art. 311 (2), which is procedural in character, cannot become otherwise merely because this procedural requirement is engrafted in the Constitution itself. It is necessary to state that in none of the decisions of the Supreme Court to which our attention was drawn in this behalf has Article 311 (2) been described as conferring a substantive right on holders of civil posts. In khem Chand v. Union of India (1 ). Art. 311 (2) has been described as a constitutional protection or safeguard. Though it is a Constitutional protection or safeguard, it appears to us that it is a protection or safeguard guaranteed by the Constitution in the matter of procedure to be followed in a disciplinary inquiry. In khem Chand v. Union of India (1 ). Art. 311 (2) has been described as a constitutional protection or safeguard. Though it is a Constitutional protection or safeguard, it appears to us that it is a protection or safeguard guaranteed by the Constitution in the matter of procedure to be followed in a disciplinary inquiry. In Parshotham lal Dhingra v. Union of India (2), it has been observed that certain amount of security of tenure is provided by Art. 311 (2) of the constitution. The Supreme Court has observed that Art. 311 (2) has the effect of giving certain amount of security of tenure inasmuch as the services of holders of civil posts cannot be terminated in an arbitrary manner and can be dealt with only by following the procedure prescribed by Art. 311 (2) of the Constitution. In Dattatraya Govind v. State of maharastra (3) the Supreme Court dealing with the second proviso to Art. 31a (1) held that though by the said proviso limitation, has been imposed on the power of the legislation, the limitation on the" power of the legislation from the point of view of the State, isconferment of right from the point of view of the holder of the landwithin the ceiling limit. Onthebasis ofthe saiddecisionitwascontended that thelimitationon the power of theappointing authority imposed by Art. 311 (2)hastheeffect of conferring apositiveright on the holder of a civil post. Theanalogy in our opinion is not very apt. Art. 31 occurs in Part IIIof the Constitution which in expressterms containsthe fundamental rights guaranteedbytheconstitution. It ir clear that whathas been conferred by Art31 is afundamental right. Merely becausethe said right has beenconferredbyimposing lirmtatior on thelegislativepower of thestate,the essential character of the conferment ofthe right on a citizen doesnotget altered hence, it is not possible to apply the principle laid down indattatraya govnid's case for construing Art 311 (2) of theconstitution. Reliance was placedbvsri Ramachandra on the decisionofthebombay High court in S. Framji v. Union of India, (4 ). It is observedinthe said case that Art. 311conferscertainconstitutional rights upon a civil servant and undoubtedly a breach or infringement of anyof thestatutory rights afforded to a civil servant under Art 311 confers a right upon him and he can come to Courtandcomplain of the breach or infringement. It is observedinthe said case that Art. 311conferscertainconstitutional rights upon a civil servant and undoubtedly a breach or infringement of anyof thestatutory rights afforded to a civil servant under Art 311 confers a right upon him and he can come to Courtandcomplain of the breach or infringement. The High court of Bombay was not required in that case toconsideras to whether art311deals withprocedural safeguards orwithconferment of sub- stantive rights Theobservation regarding confermentofright is not madewithreferenceto sub-article (2) of Art. 311,buthas been made with reference to Art. 311 as a whole. Tt is no doubt truethat a breach of the provision ofart. 311 (2)on titles the concerned holder of a civil post to complain about the breach and secure appropriate reliefs. Whenever there is a breach, the concerned holder of a civil post gets a right for redressal of his grievance. But that does not mean that sub-art (2) of Art. 311 does not deal with procedural matter but confers substantive rights on holders of civil posts. Our attention was also drawn to the decision of the Supreme Court in Bachhittar Singh v. State of Punjab (5 ). The Supreme Court dealing with sub-Art (2) of Art. 311 has observed that departmental proceedings taken against a Government servant are not divisible and that there is just one continuous proceedings and that none of them can be regarded as administrative and therefore, the order made cannot be regarded as an administrative order. As Art. 311 (2) of the Constitution requires a notice to be given to the person concerned as also an opportunity of being heard and having regard to the nature of the enquiry, it was held that the proceeding is judicial in character and not administrative. This observation of the supreme Court does not convey that Art 311 (2) does not deal with procedure, but deals with substantive rights. The reasons given by the Supreme Court clearly indicate that the stages contemplated by Art. 311 (2) are necessarily stages which are taken in proceedings akin to judicial proceedings. None of the decisions relied upon by Sri Ramachandra, in our opinion, help us to come to the conclusion that Art, 311 (2) confers substantive rights and does not deal with procedure. ( 14 ) IT is well settled that amendments to procedural law have retrospective efect and therefore, govern pending proceedings as well. As art. None of the decisions relied upon by Sri Ramachandra, in our opinion, help us to come to the conclusion that Art, 311 (2) confers substantive rights and does not deal with procedure. ( 14 ) IT is well settled that amendments to procedural law have retrospective efect and therefore, govern pending proceedings as well. As art. 311 (2) prescribes only the procedure to be followed in the matter of holding disciplinary inquiry, amendment of the same which pertains in procedure will have retrospective efect Therefore, the amended provisions have to be followed ir. respect of pending proceedings. ( 15 ) EVEN assumingforthe sake of argumentthatsri Ramachandra 1 right inhis contentionthat the constitutionalsafeguards orprotections conferred byart311 (2) or the Constitution have the status of a substantiveright;we may examine as to whether the amended Art 311 (2)would governpending pro paedingsthe amendmentsaffecting substantive rights canbe givenretrospectiveeffecteither by express provision to thateffect or by nece ary implication. It is no doubt true that there is noexpress provision givingretrospectiveeffectto the amendedprovisions ofart. 311 (2) sri Mandappa,learnedhighcourt governmentadvocatehowever, maintained that having regard to the intendmentofthe amendment and the languageemployed,it is abundantly clear that by necessary implicationretrospectiveeffect has been given to Art311 (2)and that therefore, theamended Article applies even topending proceedings in Gannatha Prasad v. State of U. P (6) the Supremecourt was required to examine as to whether Art. 311 (2) of the Constitutionappliesto P departmental inquirycommenced before thecominginto force of the constitution andconcludedafter the constitutioncameintoforce In that case enquirywas commenced against apoliceofficer under the u. P Disciplinary Proceedings (Administraiivetribunal) RUles1947 tinder rule 10 ofthesaid Rules the governor wasenjoined topass an order of punishment intermsrecommendedby the Tribunalthough an inquiryhadcommenced in that casebefore the commencement of the constitution,the Governor'sorder came to bepassedafter theconstitution came intoforce. It is necessary topoint out that the Police officerswerenotentitled tosafeguards similar tothoseprovided by art311 oftheconstitution. In that case thesupremecourt held rule 10 oftheu. It is necessary topoint out that the Police officerswerenotentitled tosafeguards similar tothoseprovided by art311 oftheconstitution. In that case thesupremecourt held rule 10 oftheu. P Disciplinary proceedings (Administrativetribunal)Rules, totheextent it made it obligatoryonthepart of the governor to accept the recommendation of the Tribunal isbad on the coming intoforce of the Constitutionasthesame is inconsistent with Art. 311ofthe Constitution as that part of the rule was found to be severableandas the Supreme court cametothe conclusion tha,t the Governor madethe order on the basis that he was not bound by the recommendation ofthe Tribunal, the order wasupheldthesupreme court held that the Police Officer in that case wasentitled to protection under Art. 311 of the Constitution, even thoughtheenquiry commencedbeforethe Constitution as the order ofdismissal was passed aftertheconstitutioncame into force) It is clear from this decision of the Supremecourtthat inregard to pending disciplinary proceedings commencedbeforethe Constitution, the provisions ofart311 (2)were held to be applicable, the order of dismissal havingbeen passed after the constitution came into force The language employed inart. 311 makes it abundantlyclear that on the coming into forceoftheconstitution,no holder of a civil post can be dealt with otherwise than in accordance with Article 311 of the Constitution it is because of this mandate of Art. 311 that the Supreme Court came to the conclusion that though the inquiry had commenced before the constitution came into force, the order of dismissal having been made after the Constitution came into force, the same could be passed only after complying with the provisions of Art. 311 of the Constitution. In Government of AP v. Mohammed Mominuddin (7) the decision of the Supreme court in Jagannatha Prasad Sharma's case was followed and it was held that art. 311 applies to an inquiry which was commenced before the Constitution came into force, as the final order was passed after the Constitution came into force. ( 16 ) SRI T. S. Ramachandra, learned counsel for the petitioner, contended that if the Parliament intended that the amended Art. 311 (2) should govern pending proceedings, it would have made an express provision to that effect similar to the one which was made under the Constitution (Forty-second, amendment) Act, by which Art. 226 was also amended. Sec. 58 of the Constitution CForty Second Amendment) act makes special provision as to pending proceedings under Art. 226 of the constitution. But there is no such express provision so far as Art. 311 is concerned. Sec. 58 of the Constitution CForty Second Amendment) act makes special provision as to pending proceedings under Art. 226 of the constitution. But there is no such express provision so far as Art. 311 is concerned. In Shripatrao Dajisaheb v. The State of Maharashtra (8) the Bom bay High Court dealing with the amendment of Art. 227 of the Constitution which was also brought about by the Fortv-second Amendment Act, held that the fact that there was no express provision making the amended art 227 applicable to pending proceedings leads to the inference that the parliament did not intend that the amended Art. 227 should govern the proceedings pending under Art. 227 of theconstitution onthe date of the amendment. Though there is express provision providing that the amended art. 226 shall be applicable to pending proceedings, there is no such express provision in regard to Art. 227 or 311 (2)of theconstitution. But in our opinion thesaidcircumstancecannot be regardedas a conclusivecircumstance for coming to the conclusion that the amended provisions of Art. 311 (2) are not applicable to pending proceedings. Each provision has to be examined in the context in which it occurs and having regard to the object sought to be achieved. Before the amendment of Art. 311 (2), an opportunity" of making representationinregard tothe punishment proposed was required to be given. This opportunity was required to be given after the Government servant was informed of thecharges and an inquiry was held giving him a reasonable opportunity of being heard in respect of thosecharges. In the statement of objects pertaining to the amendment of Art. 311 (2) of the Constitution, it is stated thatthis clause seeks to amend Art. 311 (2)denying the Government servant an opportunity of making a representation at the ser cond stage of the inquiry against the penalty proposed to be imposed on him. The object of the amendment is only to deny tothe Governmentservant an opportunity of making arepresentation in regard to the proposed penalty. It is obvious that it was considered unnecessary to give an opportunity to the government servant of making a representationinregard to theproposed penalty. The Parliament has eliminated one step in the inquiry so that the disciplinary proceedings can. be concluded expeditiously. It is obvious that it was considered unnecessary to give an opportunity to the government servant of making a representationinregard to theproposed penalty. The Parliament has eliminated one step in the inquiry so that the disciplinary proceedings can. be concluded expeditiously. As the Government servant is entitled to a reasonable opportunity of being heard in respect of the charges framed against him, giving further opportunity inthe matter of making representation about the proposed penalty appears - to have been considered asunnecessary. Asthe object is of ensuring speedy disposal of disciplinary proceedings, there is no good reason to continue the applicability of the amended provision only to proceedings initiated after the amendment. All Government servants will be treated alike if it is held that the amendment governs pending proceed- ceedings. No hardship or injustice will also be caused to those against whom proceedings were pending on the date of the amendment. Imposition of penalty depends on the gravity of the offence and the circumstances of the case. When reasonable opportunity of being heard in respect of the charges is afforded, the Government servant is not precluded from putting forth his submission in regard to the penalty as well. Having regard to the clear object of the Parliament to deny opportunity of making representation in the matter of imposition of punishment, it is reasonable to hold that the intention of the Parliament was that Art. 311 (2) as amended should govern pending proceedings as well. Even assuming for the sake of argument that what is conferred by Art. 311 (2) is a substantive right, the Parliament has by necessary implication given retrospective, effect to the amended provision to make it applicable to pending proceedings as well. We have therefore, no hesitation in taking the view that the amended provisions of Art. 311 (2) govern pending proceedings also. ( 17 ) THE next question for consideration is as to whether the impugned order has been passed in accordance with the amended provisions of Art. 31! of the Constitution. We have already pointed out that the impugned order has been made by the State Government in accordance with the amended provision of Rule 11 A, which amendment was made with a view to bring the Rules in tune with the amended provisions of Art. 311 (2) of the Constitution. of the Constitution. We have already pointed out that the impugned order has been made by the State Government in accordance with the amended provision of Rule 11 A, which amendment was made with a view to bring the Rules in tune with the amended provisions of Art. 311 (2) of the Constitution. In this case after receiving the report of the Inquiry authority, the State Government has proceeded to hold the petitioner guilty of certain charges and to impose the penatly ot removal from service. Before taking such action, the State Government did not give any opportunity of showing cause to the petitioner. Sri mandappa submitted that the State government was not required to give such an opportunity. He submitted that reasonable opportunity as contemplated by Art. 311 (2) has been afforded to the petitioner as the petitioner was permitted to cross-examine the witnesses for the Department, to produce evidence in support of his case and was actually heard by the Inquiring Authority. The Inquiring Authority in this case is not the disciplinary authority, but is an authority subordinate to the disciplinary authority. Arter receiving the report of the Inquiring Authority, the disciplinary authority considered the same, recorded its findings and passed the final order imposing the penalty. The peititioner was not given any opportunity of showing cause as to why the report of the Inquiring Authority should not be taken into consideration or relied upon. As the disciplinary authority took into consideration the Inquiry officer's report, to meet which the petitioner was not given any opportunity whatsoever, it cannot be said that the petitioner was afforded reasonable opportunity as required by Art. 311 (2) of the Constitution. In State of Maharashtra v. Bhaishankar Avalram Joshi (9) the Supreme Court has observed as follows in paragraphs 6, 7, 8 and 9:"6. THE High Court held that the failure on the part of the competent authority to providetheplaintiff with a copy of the report of the Enquiry Officer amounted to denial of reasonableopportunitycontemplat- ed by Art. 311 (2) of the Constitution. 7. It seems to us that the High court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. 7. It seems to us that the High court came to a correct conclusion. The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector general from accepting the report of the Enquiry Officer. Moreover, as pointed out by the High Court, the inspector General of Prisons had the report before him and the tentative conclusion? arrived at by the Enquiry officer were bound to influence him, and in depriving the plaintiff of a copy of the report h'e was handicapped in not knowing what material was influencing the Inspector General of Prisons. 8. As observedby Gajendragad- kar, J. , as he then was in Union of india v. H, C. Goel. 1964-4 SCR 718 at p. 728 - ( AIR 1964 SC 364 ) at p. 368, "the enquiry reportalong with the evidence recorded constitute the material onwhichthegovernment has ultimately to act That is the only purposeof the enquiry held by competent officer and the report he makes as a result of the said enquiry. " 9. It is true that the question whe- her reasonable opportunityhas or has not been afforded to the Government servant mustdepend onthe facts of each case, but it would be in verv rare cases indeedin which it could be said that thegovernment servant is not prejudiced by the non- supply of the report of the Enquiry officer. "it is thus clear from the decision of the supreme Court that the petitioner has been denied reasonable opportunity, he not having been furnished with the enquiry Officer's report which the Disciplinary Authority has taken into consideration. We have, therefore, no hesitation in coming to the conclusion that the final order made by the State government is in violation of Art. 311 (2) of the Constitution. ( 18 ) IT is nodoubttrue that Rule 11a afteritsamendment does not contemplate furnishing of copy of the inquiry Officer's report and giving an opportunityofshowing cause to the government servant inthe light of the Inquiry Officer's report. ( 18 ) IT is nodoubttrue that Rule 11a afteritsamendment does not contemplate furnishing of copy of the inquiry Officer's report and giving an opportunityofshowing cause to the government servant inthe light of the Inquiry Officer's report. Sub-Rule (3) of Rule 11a as amended indicates that the Disciplinary Authority can proceed to recordfindings on consideration of the report of the Inquiry officer withoutfurnishinga copy of the report to the Government servant and withoutgivingthe Government servant an opportunity to show cause in the matter. Though the action taken by the State Governmentmaybe in accordance with Rule 11a as amended, it wascontended that the same cannot be sustained, the action having been taken denyingreasonable opportunity of being heard to which the petitioneris entitledunder Art. 311 (2)of the Constitutionif the amended provisions of Rule 11a are inconsistent with the provisions of Art. 311 (2) of the Constitution, it is obvious that the inconsistent rule has to be ignored and theconstitutional provision has to be followed. ( 19 ) BUT, it was contended by Shri mandappa, learned High Courtgovernment Advocatethat the amended provisions of rule I1a of the Rules, are consistentwiththe amended provisions of Art. 311 (2) of the constitution. Hesubmitted thatin cases where an Inquiring Authority is appointed, such authorityafter completion of production of evidence is required tohearthe Presenting officer, if any,appointed and the government Servant orpermit them to submit written briefs of their respective casesifthey so desire, as provided by rule 11 (19 ). After giving such an opportunityof hearing if the report issubmittedby the Inquiring authority, it wascontended that the question of the Disciplinaryauthority giving a further opportunity at that stage does not arise. He submitted that the very purpose of amending art. 311 (2) of the Constitution is to deny the Government servant such a second opportunity. In support of his contention he relied upon the decision of the Supreme Court in the case of State of Assam v. Bimal Kumar pandit (10) and invited our pointed attention to paragraph-6 of the judgment which may be extracted as follows: art. 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-artcle in the present appeal. 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-artcle in the present appeal. Art. 311 (2) provides that no such person as specified in Art. 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 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 this 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 conclusion 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. 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. From these observations of the. Supreme Court it was contended that art. 311 (2) before its amendment contemplated two opportunities and the second opportunity consisted of giving an opportunity of showing cause against the proposed penalty. It was submitted that when such an opportunity was given the Government servant was entitled to show cause not only against the proposed penalty but also in regard to the tentative finding arrived at by the inquiring Authority. Shri Mandappa submitted that as the purpose of amendment of Art. 311 (2) is to reduce from two opportunities contemplate by the original sub-article to one opportunity, the Government servan stands deprived of the second opportunity to which thei Supreme Court has adverted to in paragraph-6 of the judgment referred to above. Art. 311 (2) before its amendment provider for giving of a reasonable opportunity of being heard in respect of the charges levelled against the Government servant and another opportunity of making representations in regard to the proposed punishment, It is necessary to point out that an essential distinction was made under art. 311 (2) of the Constitution before its amendment in regard to the nature of the two opportunities to be given to the Government servant. Whereas the first is an opportunity oi being heard in respect of the charges levelled against the Government servant, the second opportunity is only an opportunity of making representations in regard to the penalty proposed. By the amendment the obligation to afford the opportunity oi making representation in regard to the proposed penalty is taken away. Whereas the first is an opportunity oi being heard in respect of the charges levelled against the Government servant, the second opportunity is only an opportunity of making representations in regard to the penalty proposed. By the amendment the obligation to afford the opportunity oi making representation in regard to the proposed penalty is taken away. But the primary obligation of affoxain reasonable opportunity of being heard in respect of the charges levelled continues without any abridgement even after Art. 311 (2) is amended. What is the content of the reasonable opportunity of being heard has to be considered. In paragraph 6 of th judgment the Supreme Court has described how the two opportunities contemplated by Art. 311 (2) can be afforded. They were not required to examine the precise content of each of the two opportunities required, tc be given. They have not stated tha the right of the Government servan to show cause against the tentative findings is not part of the right of reasonable opportunity of being heard in respect of the charges, but is part of the right to make representations against the penalty proposed. In our opinion, though this right may conveniently be exercised on receiving a notice proposing penalty, it is really part oi the first right of being heard in respect of the charges. The opportunity is to persuade the authority to take the view that the charges levelled against the Government servanl are not satisfactorily proved and cannot therefore form part of the opportunity to persuade the authority in regard 1o the appropriate penalty. ( 20 ) IT is no doubt true that the supreme Court has stated that when an opportunity of making representation is given, the Government servant is entitled to show cause not only against the penalty proposed but also in respect of the merits of the charges levelled against the Government servant. The context in which these observations were made by the Supreme Court must not be lost sight of. What the Supreme Court was considering in paragraph-6 of its judgment is the normal procedure followed in the matter of holding disciplinary proceedings when an Enquiry Officer is appointed. It is not as though that there is an obligation in every case that the Disciplinary Authority should appoint an Inquiring Authority. What the Supreme Court was considering in paragraph-6 of its judgment is the normal procedure followed in the matter of holding disciplinary proceedings when an Enquiry Officer is appointed. It is not as though that there is an obligation in every case that the Disciplinary Authority should appoint an Inquiring Authority. The disciplinary Authority can always hold an enquiry without authorising the Inquiring Authority to make an enquiry into the matter. Paragraph- 6 deals with normal cases where an enquiry Officer is appointed by the disciplinary Authority. What is emphasized by the Supreme Court in paragraph-6 of its judgment is that the Disciplinary Authority after it receives the findings from the Inquiring authority has to arrive at a- tentative finding on consideration of the inquiring Officer's report and thereafter give an opportunity of making representation to the Government servant. The Supreme Court has emphasized that the findings arrived at, at that stage by the Disciplinary authority on consideration of the enquiry Officer's report would be tentative findings. As the findings arrived at by the Disciplinary Authority are tentative findings, it is obvious that before taking final decision by the disciplinary Authority an opportunity has to be given to the Government servant to have his say in regard to the tentative findings that the Disciplinary Authority has arrived at. It is for that purpose stated that when an opportunity of making a representation is afforded to the Government servant, he is entitled not only to show cause against the tentative findings of the Disciplinary Authority but also to show cause against the proposed penalty. Though the opportunity to show cause against the tentative findings is coupled with the opportunity of making a representation in regard to the proposed penalty, the two opportunities belong to two different realms. The first one falls in the realm of reasonable opportunity of being heard contemplated under Art. 311 (2) in respect of the charges framed against the Government servant and the second one falls in the realm of an opportunily ol making representations in regard to the proposed penalty contemplated by art 311 (2) of the Constitution. Merely because the two stages are clubbed to- gether for the sake of convenience, it cannot be said that if opportunity of making representations is taken away by the amendment, along with it the opportunity of showing cause against the tentative finding is also taken away. Merely because the two stages are clubbed to- gether for the sake of convenience, it cannot be said that if opportunity of making representations is taken away by the amendment, along with it the opportunity of showing cause against the tentative finding is also taken away. Such a conclusion will denude the reasonable opportunity of being heard which is contemplated by Art. 311 (2 ). If the Disciplinary Authority proceeds to record its final findings without furnishing copy of the Enquiry Officer's report to the Government servant and without giving the Government servant an opportunity of having his say in respect of the Enquiry Officer's report, it amounts to denying reasonable opportunity of being heard in respe-i of the charges levelled against him. If the Disciplinary Authority is relying upon the Enquiry Officer's report, the contents of which are not made known to the Government servant and if he is not given an opertunity of having his say in the matter, it is impossible to say that government Servant was given a reasonable opportunity of being heard. The Supreme Court has in categorical terms held in the case of State of maharashtra v. Bhaishankar Avalram joshi (9) that it amounts to denial of reasonable opportunity to rely upon the Enquiry Officer's report without furnishing a copy of the same and without enabling the Government servant to have his say vis-a-vis the findings recorded by the Enquiry officer in his report. We have, therefore, no hesitation in taking the view that the opportunity to show cause to be given to the Government Servant after furnishing a copy of Enquiry officer's report is a part of the reasonable opportunity of being heard contemplated by Art. 311 (2) before as well as after its amendment. What has been denied by the amendment of Art. 311 (2) is only an opportunity of making representations in regard to the proposed penalty. The amendment to Art. 311 (2) does not take away the right of the Government servant to be supplied with the copy of the report of the Enquiry Officer and to an opportunity of showing cause vis-a-vis the findings recorded by the Enquiry officer in his report. Hence, it is not possible to accept the contention of shri Mandappa that the amended provisions of rule 11a are consistent with the amended provisions of Art. 311 (2) of the Constitution. Hence, it is not possible to accept the contention of shri Mandappa that the amended provisions of rule 11a are consistent with the amended provisions of Art. 311 (2) of the Constitution. They are inconsistent to the extent that there is no provision for furnishing a copy of Enquiry Officer's report and of giving an opportunity to the Government servant of showing cause after 'furnishing a copy of Enquiry Officer's report. As the procedure prescribed by the amended provisions of rule 11a is inconsistent with the provisions of Art. 311 (2) of the Constitution, the state is under a constitutional obligation to afford to the Governmem servant the opportunity contemplated by amended Art. 311 (2), notwithstanding the deficiency in rule 11a. Hence, the petitioner is entitled to receive a copy of Enquiry Officer's report and further he is entitled to an opportunity of showing cause in that behalf. As we have come to the conclusion that rule 11a as amended is not consistent with the provisions of art. 311 (2) of the Constitution, we invite the attention of the State government to this incongruous situation so that rule 11a can be suitably amended. ( 21 ) AS this writpetition is being allowed on theground of non- compliancewiththemandatory requirements ofart. 311 (2)of the constitution, weconsider it unnecessary to go Wo the merits of the contentions urged by the petitioner. ( 22 ) FOR the reasonsstated above, this writ petition is allowed and the impugned order ofthe State Government at Annexure-Bdated9. 7. 80 is hereby quaandhed, reserving liberty to the State Government to take further action in accordance with theobservation made in the course of this order. Petitioner is entitledtoall the consequential benefitsflowing from the quashing of the impugned order. The petitioner is entitled to costs. Advocate's fees Rs. 500. 00. --- *** --- .