Amulya Kumar Dutta v. Union of India — 1992 DIGILAW 421 (CAL)

Order: In the instant application under Article 226 of the Constitution of India, the petitioner inter alia, challenges an order of removal bearing Memo No. 15(262)/90-vig. dated January 7, 1992 of the Secretary, Disciplinary Authority of the Textile Committee, Government of India, Ministry of Textiles. In the application an affidavit-in-opposition has been filed by one Sri Harbhajan Singh who is the Inspection Officer of the Textile Committee and is respondent No.2 in the writ petition. A Vakalatnama has been filed by the added respondent No. 5 of the Writ petition which is signed by Sri Harbhajan Singh but no power has been filed on behalf of the Harbhajan Singh in his capacity as the Inspecting Officer of the Textile Committee and no power whatsoever has been filed by any of the respondents Nos. 1, 2, 3 and 4. Secondly, the most important paragraphs of the affidavit-in-opposition namely, paragraphs 7 to 16 are not affirmed at all. 2. For the reasons stated the affidavit-in-opposition is not acceptable to this Court specially when the said affidavit-in-opposition is deemed to have been affirmed on behalf of the respondents Nos. 1, 2, 3 and 4 none of whom has filed any power. The affidavit-in-opposition is therefore, not taken into consideration in deciding the instant writ petition. 3. The petitioner, at the relevant time was an Upper Division Clerk in the regional office of the respondent No.5, namely the Textile Committee. A charge-sheet was issued to the petitioner on or about November 5, 1990 incorporating various charges of accepting illegal gratification by the petitioner. An enquiry ensued and the petitioner was found guilty of most of the charges. The disciplinary authority on an examination of the charge and the findings of the report of enquiry found the petitioner guilty of the charges and by the impugned order removed the petitioner from service with immediate effect. This order of removal is the subject matter of the present writ petition. 4. The writ petitioner took various points namely, that documents relied upon by the disciplinary authority were not produced before the petitioner, that the disciplinary authority had not formed his own opinion on the basis of the report of the enquiry resulting in bias and the report of the enquiry was not furnished to the petitioner before the order of penalty was passed. 5. 5. I have given my anxious consideration to the facts and circumstances of the case and on a perusal of the report of enquiry, I find that reasonable opportunity was given to the petitioner to take down even extract from the documents relied on at the enquiry and that by non-furnishing of the documents to the petitioner, the petitioner has not suffered any injury defending his case. It appears that the petitioner actually cross examined the witnesses deposing at the enquiry. There seems to be no violation of the principles of natural justice in the enquiry. 6. The only point that requires consideration of this court is the non-furnishing of the report of the enquiry to the petitioner before passing of the final order by the disciplinary authority. Mr Sadananda Ganguly relied heavily on the case of Union of India & Ors. vs. Ramzan Khan reported in AIR 1091 SC 471 wherein it has been categorically stated that the furnishing of the report of the enquiry is a must before passing of the order of penalty and that the charged officer must be given an opportunity to make a representation against the report of the enquiry if he so desires. 7. Incidentally, this decision has referred to a previous decision of Mazharul Islam Hassami vs. State of U. P. reported in AIR 1979 SC 1237 wherefrom it appears that in the absence of any exclusion the principles of natural justice will require that every person must know what he is to meet and he must have an opportunity of meeting that case. In paragraph 17 of the aforesaid decision of Ramzan's case (supra) it has been held that the court in deciding Ramzan's case had not been shown any decision of a co-ordinate or a larger bench of the Hon'ble Supreme Court taking the view that following the 42nd amendment it is no longer necessary to furnish a copy of the enquiry report to the Delinquent Officer. Whereas in fact, the contrary view was expressed in the case of Kailash Chander Asthana vs. State of U. P. reported in 1988 (56) FLR 741 (SC) wherein it was held that the question of furnishing a copy of the report of enquiry in disciplinary proceeding held after 42nd amendment does not arise. Whereas in fact, the contrary view was expressed in the case of Kailash Chander Asthana vs. State of U. P. reported in 1988 (56) FLR 741 (SC) wherein it was held that the question of furnishing a copy of the report of enquiry in disciplinary proceeding held after 42nd amendment does not arise. The Bench strength both Kailash's case and Ramzan's case being the same, the earlier judgment should prevail and noting this conflict in decisions of co-ordinate Benches the Hon'ble Supreme Court in another 3-Judge decision in the case of Managing Director Electronic Corporation of India vs. B. Karunakar reported in 1992 (65) FLR 185 (SC) has referred the matter to larger Bench. So the whole matter is in a state of flux and it is not possible for this court to come to any definite conclusion on the state of law prevailing in the Republic of India. Both the judgments of the Hon'ble Supreme Court, conflicting as they are, are binding on the High Courts under Article 141 of the Constitution of India and it is extremely difficult for the High Courts to state which of the two conflicting views is correct. But according to some other decisions the earlier view of Hon'ble Supreme Court should prevail if the two decisions which are in conflict with each other are made by coordinate Benches unless the earlier decision is shown to the latter Bench, has been considered and overruled. 8. In this context a reference may also be made to the case of Union of India & Anr. vs. Reghubir Singh (dead) by LRS etc., reported in (1989) 2 SCC 754 . This was a decision of a Bench comprising 5 Hon'ble Judges of the Supreme Court. Paragraph 27 of the aforesaid judgment states as follows:- "What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior court, the ideal condition would be that the entire court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority develops by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges." Paragraph 28 of the aforesaid judgment states as follows:- "We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court." 9. In view of the aforesaid judgment delivered by a Bench consisting of 5 Hon'ble judges there can be no doubt that the decision in Asthanas's case (supra) was binding on the Bench deciding Md. Ramzan Khan's case (supra). It has also been decided in the case of A. R. Antulay vs. R. S. Nayak & Anr. In view of the aforesaid judgment delivered by a Bench consisting of 5 Hon'ble judges there can be no doubt that the decision in Asthanas's case (supra) was binding on the Bench deciding Md. Ramzan Khan's case (supra). It has also been decided in the case of A. R. Antulay vs. R. S. Nayak & Anr. reported in (1988) 2 SCC 602 that in such case of conflicting decisions of the Hon'ble Supreme Court delivered by two Benches of equal strength when before the latter Bench the judgment of the earlier Bench has not been cited or discussed the judgment delivered by the latter Bench would be regarded as a judgment 'per incuriam'. 10. When this court is confronted with the views expressed in the case of Raghubir Sinah (supra) and A. R. Antulay (supra) no option is left to this court but to declare the judgment rendered in Ramzan Khan's case as a judgment 'per incuriam'. 11. In the circumstances, this court is constrained to hold that Ramzan Khan's case does not hold the filed so far as the furnishing of the enquiry report is concerned and the ratio of the decision in Asthana's case (supra) prevails. 12. There is another aspect of the matter. Even in the Ramzan Khan's case (supra) it has been held that the furnishing of the enquiry report is a must unless such furnishing of the enquiry report is excluded by any legislative provision. In the instant case Regulation 12 of the Textile Committees 'Employees' (Disciplinary & Appeal) Regulation 1986 provides that the report of enquiry is to be communicated to the Delinquent Officer along with a copy of the report of the enquiry. By necessary implications this excludes the furnishing of the enquiry report before the communication of the order of the disciplinary authority. It is too late in the day to contend that regulations made under the powers conferred by a statute has not the same force of law as a statute enacted by a competent legislation. In this connection a reference may be made to the case of State of Tamil Nadu vs. Hind Stone & Ors. reported in (1981) II SCC 205. It is needless to point out that the regulations of the Textile Committee have been framed in exercise of the powers conferred by section 23 of the Textile Committee Act; 1963 and have the force of law. 13. reported in (1981) II SCC 205. It is needless to point out that the regulations of the Textile Committee have been framed in exercise of the powers conferred by section 23 of the Textile Committee Act; 1963 and have the force of law. 13. For the reasons stated above this court is constrained to hold that the decision in Kailash's case (supra) holds the filed and till both the judgments in Kailash's case (supra) and Ramzans' case (supra) are considered by a subsequent larger Bench and the matter is set at rest, the decision in Kailash's case (supra) will hold the field. This is apart from the question of the binding force of a judgment on a subsequent decision as discussed earlier. It is very aptly stated by some eminent jurist that it is better that the law should be clear than that the law should be clever. 14. Another point was sought to be urged with some force by the petitioner that even when the disciplinary authority agrees with the findings of the Enquiry Officer, he has to give adequate reasons in support of the order that the disciplinary authority proposes to pass but the law seems to be well settled now that when the disciplinary authority agrees with the findings of the Enquiry Officer no separate reasons need be categorically repeated by the authority. It was so held in the case of Tarachand Khatree vs. Municipal Corporation of Delhi & Ors. reported in AIR 1977 SC 567 . This view was relied on in the decision of S. N. Mukherjee vs. Union of India reported in AIR 1990 SC 1984 . The 5-Judge Bench in S. N. Mukherjee's case (supra) categorically expressed the same view. 15. For the reasons stated above this contention of the petitioner also fails. 16. In the circumstances, the two principal points raised by the petitioner not being tenable for reasons mentioned hereinabove the instant writ petition has no merit and fails and is rejected. There will be no order as to costs. Petition rejected.