IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1227 of 2001. Reserved on: 23.07.2008. Decided on: 15.10.2008. Shri Dev Raj Kaundal. … … … Petitioner. Versus State of Himachal Pradesh. … … … Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ajay Sharma, Advocate. For the Respondent: Mr. Rajesh Mandhotra, Deputy Advocate General. Rajiv Sharma, Judge: The present petition is directed against order dated 17th September, 2001 passed by the Himachal Pradesh Administrative Tribunal in OA No.1431/1993. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as J.B.T. teacher with effect from Whether reporters of local papers may be allowed to see the judgment? No. - 2 - 10.6.1955. He was promoted to the post of Head Master in the year 1969. The disciplinary proceedings were initiated against him vide memorandum dated 20.11.1986. He filed reply to the memorandum of charge sheet dated 8.12.1986. The inquiry was entrusted to the Commissioner, Departmental Inquiry, Himachal Pradesh. The Disciplinary Authority on the basis of the inquiry report imposed the penalty of dismissal from service upon the petitioner on 27.6.1990. He preferred an appeal before the Appellate Authority on 7.5.1992. The Appellate Authority vide letter dated 24.9.1992 passed the following order:- “ORDER WHEREAS Sh. Dev Raj Kaundal, Headmaster was dismissed from service vide order No.Kha(3)-128/85-Edu-A- Vol-II-dated 27.6.90; 2. And whereas on reconsidering the case of the said Sh. Dev Raj Kaundal, Headmaster (dismissed) the penalty of “dismissal from service” imposed upon the said Sh. Dev Raj Kaundal vide order dated 27.6.90 as referred to above was commuted to “Removal from service” with effect from 27.6.90 vide order of even number dated 21st September, 1992; 3. Now, therefore, keeping in view the indigent circumstances of the said Sh. Dev Raj Kaundal, he is hereby allowed to receive under proviso to Rule 41 of the C.C.S (Pension) Rules, 1972, Compassionate allowance equal to two third of the pension and two third of the gratuity calculated on the amount(s) that would have been due to him had he not been removed from service with effect from 27.6.90.” - 3 - The petitioner feeling aggrieved with the order dated 24.9.1992 preferred O.A. bearing No.1431/1993 before the learned Himachal Pradesh Administrative Tribunal. The original application was dismissed by the learned Tribunal on 17.9.2001. The petitioner has primarily contended before the learned Tribunal that the copy of the inquiry report was not supplied to him before the imposition of penalty. It was also contended that the inquiry has not been conducted in accordance with law and there was violation of the principles of natural justice. The stand of the State was that there was no violation of the principles of natural justice and the petitioner was supplied with the copy of Inquiry Report before the filing of appeal. Mr. Ajay Sharma has strenuously argued that the order passed by the learned Tribunal on 17th September, 2001 is not sustainable in the eyes of law. He then contended that the petitioner was required to be supplied with the copy of inquiry report before imposition of penalty of dismissal on the basis of Managing Director, ECIL, Hyderabad versus B. Karunakar and Others, (1993) 4 SCC 727. He further contended that the order dated 24.9.1992 has been passed by the Commissioner- cum-Secretary (Education). He lastly contended that the appellate order is a non-speaking order. Mr. Rajesh Mandhotra, learned Deputy Advocate General has strenuously argued that there was no requirement to supply copy of the inquiry report if the penalty has been imposed before 20.11.1990. His further contention is that the Appellate Authority has taken sympathetic view while modifying/altering the imposition of penalty. - 4 - We have heard the learned counsel for the parties and perused the record as made available carefully. The disciplinary proceedings were initiated against the petitioner on 20.11.1986. He filed reply to the charge sheet on 8.12.1986. The Disciplinary Authority on the basis of the inquiry report has imposed the penalty of dismissal from service upon the petitioner. The penalty was imposed on 27.6.1990. Their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad versus B. Karunakar and Others, (1993) 4 SCC 727 have laid down that the proceeding pending in courts/tribunals in respect of orders of punishment passed prior to November 20, 1990 will have to be decided according to the law that prevailed prior to the said date and the delinquent cannot insist that the penalty could not be imposed before supplying the copy of inquiry report to him. Their Lordships have held as under:- ”However, it has to be noticed that although it is in Mohd. Ramzan Khan case that this Court for the first time accepted and laid down the law that the delinquent employee is entitled to the copy of the report before the disciplinary authority takes its decision on the charges levelled against him, Gujarat High Court in a decision rendered on July 18, 1985 in Union of India v. N.N. Prajapati and a Full Bench of the Central Administrative Tribunal in its decision rendered on November 6, 1987 in Premnath K. Sharma v. Union of India had taken a similar view on the subject. It also appears that some High Courts and some Benches of the Central Administrative Tribunal have given retrospective effect to the law laid down in Mohd. Ramzan Khan case notwithstanding the fact that the said decision itself had expressly made the law prospective in operation. The fact, however, remains - 5 - that although the judgments in N.N. Prajapati case and Premnath K. Sharma case as well as some of the decisions of the High Courts and of the Benches of the Central Administrative Tribunal were either taking a similar view prior to the decision in Mohd. Ramzan Khan case or giving retrospective effect to the said view and those decisions were not specifically challenged, the other decisions taking the same view were under challenge before this Court both before Mohd. Ramzan Khan case was decided and thereafter. In fact as stated in the beginning, the reference to this Bench was made in one such case as late as on the August 5, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan case the law on the subject was in a flux. Indeed, it is contended on behalf of the appellants/petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan case and the view taken by this Court in the earlier cases and the reliance placed on K. C. Asthana case to contend that a contrary view was taken there was not well merited. It will, therefore, have to be held that notwithstanding the decision of the Gujarat High Court in N.N. Prajapati case and of the Central Administrative Tribunal in Premnath K. Sharma case and of the other courts and tribunals, the law was in an unsettled condition till at least November 20, 1990 on which day the Mohd. Ramzan Khan case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary - 6 - authority after November 20, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to November 20, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan case. This is so notwithstanding the view taken by the different benches of the Central Administrative Tribunal or by the High Courts or by this Court in R. K. Vashist case. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad versus B. Karunakar and Others, (1993) 4 SCC 727 there is no force/merit in the contention of Mr. Ajay Sharma that his client was not supplied with the copy of inquiry report before imposition of penalty on 27.6.1990. Now we will advert to the second submission of Mr. Ajay Sharma that the order passed by the Appellate Authority on 24.9.1992 is a non- speaking order. We have gone through the same and in fact the same has been reproduced hereinabove for ready reference. The Appellate Authority has taken a very reasonable view while modifying the penalty imposed upon the petitioner from dismissal to removal and in peculiar facts and circumstances of the case the petitioner has been allowed compassionate allowance equal to 2/3rd of the pension and 2/3rd of the gratuity calculated on the amount(s) under Rule 41 of the C.C.S. - 7 - (Pension) Rules, 1972. The petitioner has failed to point out violation of any mandatory provisions of law at the time of holding the inquiry against him. If the petitioner was aggrieved by non-compliance of the mandatory provisions of law, he should have taken recourse to law immediately. It is clear from the order of the learned Tribunal that the appellate order has been passed by the Hon’ble Education Minister though the same has been signed by the Commissioner-cum-Secretary (Education). In view of the observations made hereinabove, there is no force in the writ petition and the same is dismissed. No order as to costs. (Deepak Gupta) Judge. (Rajiv Sharma) Judge. October 15, 2008. (sck).