Judgment:
R.K.K. Trivedi, J.
1. By means of this writ petition, the petitioner has challenged the order dated March 15, 1990 (Annexure 16) by which he has been removed from service. The petitioner was serving as Inspector in the Railway Protection Force.
2. In this petition counter and rejoinder affidavits have been exchanged and the learned counsel for the parties are agreed that the petition may be disposed of finally at this stage.
3. The learned counsel for the petitioner Shri. L.P. Naithani has pressed this petition on the point that the enquiry report submitted by the enquiry officer was not supplied to the petitioner before passing the impugned order. This averment has been made in paragaraph 30 of the writ petition. Shri Lal Ji Sinha, appearing for the respondents, has relied on paragraph 34 of the counter affidavit wherein it has been stated that the report was not given along with the impugned order but it was supplied to the petitioner subsequently. In my opinion, the other questions raised in the writ petition are not necessary to be decided as on this short question this writ petition deserves to be allowed.
4. The Supreme Court in its judgment reported in (1991-I-LLJ-29) Union of India and Anr. v. Mohammad Ramzan Khan has held that in enquiry a copy of the report proposing punishment has to be given and an opportunity of representation against it should also be given to the charged employee. In case of failure it amounts to violation of rules of natural justice. There is no dispute between the parties about the fact that this enquiry report was not supplied to the petitioner before passing the impugned order. Shri Lal Ji Sinha has, however, invited my attention to para 17 of the aforesaid judgment and submitted that the judgment has only propectivc application and no punishment imposed before this judgment can be open for challenge on this ground. In my opinion, the submission of Shri Sinha is misconveived. It is well settled principle of law that the decision on question of law on which the judgment or order is based, if reversed or modified by the subsequent decision of the superior court in any other case, cannot be aground for review of such judgment or order. This principle has also been incorporated in Explanation to Rule 1 of Order 47 C.P.C. It appears that Hon'ble the Supreme Court has allowed only a prospective application of the aforesaid judgment keeping in view the aforesaid principle. It is also necessary as a matter of public policy not to disturb the finality of the orders. The said observations in para 17 of the judgment, however, cannot be applicable in respect of such orders awarding punishment, which are sub-judice in appeal, revision or any other legal proceedings. It can also not affect those orders in respect of which limitation for filing appeal has not expired or even in such cases where limitation has expired but the delay caused is subsequently condoned by the competent authority in accordance with law. In the present case admittedly this writ petiton was filed and is pending when this judgment interpreting the position of law has been given by Hon'ble the Supreme Court. The petitioner is thus fully entitled for the benefit of legal position expressed in the judgment of Hon'ble Supreme Court and the impugned order cannot be sustained.
5. Shri Lal Ji Sinha has also referred to Rule 154 (2) Railway Protection Force Rules, 1987 (hereinafter referred to as the Rules) which reads as below:-
'While communicating the order proposing the punishment a copy of the findings of the enquiry officer shall also be given to the party charged.'
Relying on this Rule Shri Sinha submitted that there is no violation as under this Rule the purpose is to supply the copy of the enquiry report for being used in filing appeal and as the copy of the report was subsequently supplied to the petitioner the requirements of the Rule have been complied with. I am not impressed by this submission also of Shri Sinha as the use of the report by the charged employee should be permitted before the disciplinary authority also and not before the appellate authority alone. The purpose of Rule 154 appears to be that the copy of the report should be given to the employee before passing the order so that the employee may make his submissions against the report of the enquiry officer also. Though the Rule is not happily worded but it has to be interpreted in the manner that it is in consonance with the principles of natural justice. The copy of the report if given before passing of the impugned order the charged employee may make submission before the disciplinary authority also and he may record reasons for accepting or not accepting the same. If this procedure is adopted the appellate authority could be in a better position to appreciate the submission of the employee in appeal. The words 'while communicationg the order proposing punishment' used in Rule 154(2) of the Rules refer to the period between receipt of the report of enquiry officer and communication of order for supplying the report to the charged employee during which period the disciplinary authority was seized of the matter for making assessment about the report for passing order. The phraseology used in Rule 154(2) would hve been entirely different had the intention of legislative authority was different i.e. to give copy of report along with the order.
6. In my opinion, under Rule 154(2) the report ought to have been given before passing the impugned order. This view is fully fortified by the view taken by the Hon'ble Supreme Court that this is a requirement of the principles of natural justice that report relied upon against an employee should be supplied to him and he should also be at liberty to make a representation against the same.
7. Shri Sinha also submitted that the petitioner has an alternative remedy by way of appeal and this writ petition is liable to be dismissed on this ground alone. It is established position that an alternative remedy is not absolute bar for exercising power under Article 226 of the Constitution. In the facts and circumstances of the present case, I feel that as the violation of the principles of natural justice is established and no investigation of facts is required, the relief can be granted to the petitioner though he may have the lternative remedy in law.
8. For the reasons stated above, this writ petition is allowed. The impugned order dated March 15, 1990, Annexure 16 to the writ petition, is hereby quashed. It will be open to the disciplinary authority to proceed afresh from the stage a copy of the enquiry report is given to the petitioner. It is further made clear that since the impugned order has been quashed, the petitioner shall be deemed to be in service and shall be entitled to his salary. There would be no order as to costs.