ORDER
M. Srinivasan, J.
1. The prayer in the writ petition is for issue of a writ of mandamus to forbear the respondents from imposing any punishment on the petitioner in pursuance of the domestic enquiry conducted against him and to revoke the suspension and reinstate him with full backwages and all attendant and consequential benefits, past, present and future.
2. The petitioner is an officer of the State Bank of India in the Junior Management Grade. He was working as Accountant in the branch at Ranipet, North Arcot District, from July, 1978 to October, 1980 and as accountant and later as Branch Manager in the Branch at Royapettah, Madras from October, 1980 to January, 1985. He was suspended from service from 7-1-1985 and an investigation into alleged acts of irregularities and fraud was made and a memorandum of charges containing nine charges was issued to him in March, 1986. An enquiry was held in which evidence, oral and documentary was recorded. After the conclusion of the evidence, the petitioner submitted a written brief running to 55 pages. Thereafter; the Enquiry Officer submitted a report to the Disciplinary Authority. It is seen from the counter affidavit filed on behalf of the respondents that the enquiry officer reached the conclusion that the petitioner was guilty of the charges. According to the counter affidavit, the disciplinary authority, after full consideration of the facts and circumstances of the case, appreciation of the oral and documentary evidence recorded by the enquiry officer and the enquiry officer's report, reached the conclusion that the findings of the enquiry officer are correct and accepted the same. It is also stated in the counter affidavit that in view of the gravity of the acts of misconduct committed by the petitioner and proved at the domestic enquiry, the disciplinary authority took the decision to impose on the petitioner the punishment of dismissal from the Bank's service and accordingly passed the order dated 17.4.1989 dismissing him from service.
3. Getting scent of the order of dismissal passed against him, the petitioner filed the present writ petition with the prayer referred to earlier. In paragraph 8 of the affidavit filed in support to the writ petition it is stated as follows:
However, the enquiry came to an end in December, 1988 and the Enquiry officer seems to have submitted a report to the second respondent herein, who is the disciplinary authority. I reliably understand and believe the same to be true that on the basis of the report of the enquiry, the 2nd respondent has come to the conclusion of guilt and decided to impose the punishment of termination from service. Though I learn that the order of punishment has been passed by him, it has not yet been served upon me.
According to the counter affidavit, the petitioner deliberately evaded service of the order of punishment and came forward with the writ petition without any good faith or bona fides.
4. In the affidavit filed in support of the writ petition, allegations of mala fides against the management have been made. Besides, it is stated that the charges against the petitioner are not made out by the evidence adduced in the enquiry and that the whole enquiry proceeded on a false and hollow premises. According to the affidavit, some of the evidence addressed by the management was inadmissible in the enquiry. While asserting that there is no iota of evidence in the enquiry to find the petitioner guilty of the charges and that the conclusion of the respondents is patently perverse, it is stated that the order of termination is against the principles of natural justice inasmuch as a copy of the enquiry report was not furnished to the petitioner before the disciplinary authority made up his mind and consequently, the respondents cannot be allowed to impose the punishment of dismissal on the petitioner.
5. For contrary the respondents in their counter affidavit denied the allegations made by the petitioner in his affidavit and also questioned the maintainability of the writ petition. It is stated that the petitioner has not acquired any cause of action to file the writ petition and that he has no right to claim relief by way of mandamus in a matter where(a) the rights, duties and obligations of the parties are contractual in nature and (b) there are no statutory obligations imposed on the bank in respect of the action taken by the petitioner. According to the counter affidavit, all the proceedings taken by the bank are in accordance with the service rules governing the terms and conditions of service of the officers of the Bank which are contractual and after observing all principles of natural justice. It is also stated in the counter affidavit that after the interim order of injunction dated 5-5-1989 made by this Court, the order of termination passed against the petitioner could not be served on him.
6. When the interlocutory applications for injunction and for vacating the interim injunction came up for orders, learned Counsel for the petitioner submitted that he would argue the main writ petition itself and the respondents, counsel had no objection therefor. Counsel on both sides addressed arguments at length on the question whether the report of the enquiry officer should be furnished to the petitioner before it is considered by the disciplinary authority and a decision taken by him as to the guilt of the petitioner. Though learned Counsel for the petitioner made a short reference to the merits of the case against the petitioner, it was only with a view to impress upon us the importance of the enquiry report and the necessity to furnish the same to the petitioner before it is considered by the disciplinary authority and not with a view to invite my findings thereon. Thus, the only question to be considered in this case is whether the respondents are bound to furnish a copy of the enquiry report to the petitioner before making an order of. punishment against him and consequently, the respondents could be restrained by a Mandamus from imposing the punishment of dismissal which according to the counter affidavit has already been decided upon by the disciplinary authority by order dated 17-4-1989.
7. According to learned Counsel for the petitioner, the question is one of huge importance and has been characterised as such by the Supreme Court in an order of reference made to a larger Bench by Division Bench of two judges in Union of India v. N. Bashyam A.I.R.1988 S.C.1000. In fact, the affidavit filed in support of the writ petition has made an express reference to the said order and relied upon the same as if it is a decision of the Supreme Court. It is apparent that the inspiration for the filing of the writ petition has been derived from the said order of reference. Even at this stage it is necessary to point out that though the order of reference finds a place in the law report, it is neither a judgment of the Supreme Court within the meaning of Article 141 of the Constitution of India nor an opinion of that Court under' Article 143 of the Constitution of India. In spite of the emphatic language in which the opinion is Couched, it has no binding authority or force on any Court of law. Learned Counsel for the petitioner did realise the position and read the order of reference as a part of his argument. In short, the contention urged on behalf of the petitioner is that failure to supply a copy of the report of the Enquiry Officer which is a material considered by the Disciplinary Authority for arriving at a conclusion on the truth or otherwise of the charges framed against the petitioner, would constitute violation of principles of natural justice and tantamount to denial of reasonable opportunity to the petitioner to defend himself. While elaborating the contention, it is submitted that the principles of natural justice should be taken to be part of the services rules relating to disciplinary proceedings unless there is an express rule excluding the applicability of those principles. It is argued that the report of the Enquiry Officer will have a great weight while the Disciplinary Authority is engaged in the process of making its decision and it is a material which would influence the mind of the Disciplinary Authority and unless the delinquent is given an opportunity to point out the unsustainability or unacceptability of the findings of the Enquiry Officer it cannot be said that the delinquent had a reasonable opportunity to defend himself. It is further argued that the deletion of the provision in Article 311(2) of the Constitution and the various Service Rules, for a reasonable opportunity of making representations on the proposed penalty, will not dispense with an opportunity to the delinquent to make representations on the unacceptability of the findings of, the Enquiry Officer with regard to the establishment of the charges made against the delinquent. According to learned Counsel there is a distinction between an opportunity to make a representation against the proposed penalty and an opportunity to make a representation against the acceptance of the findings of the Enquiry Officer. It is submitted that even if there is no express provision in the service rules for supply of the report of the Enquiry Officer to the delinquent, the principles of natural justice demand and insist upon the same and in the absence of compliance with the said principle, any order made by the Disciplinary Authority will be vitiated and unenforceable. According to learned Counsel it is, therefore, open to the petitioner to approach this Court without waiting for the communication of the order of punishment and working out his remedies against the same as that course would involve waste of public funds. Learned Counsel placed reliance on some decisions of the Supreme Court and of this Court. He also invited my attention to certain unreported decisions of this Court. I will refer to those decision a little later.
8. Learned Counsel for the respondents submitted at the outset that the prayer as framed in the writ petition is wholly unsustainable and no such relief can be granted to any person by this Court under Article 226 of the Constitution of India and particularly in this case, having regard to the facts and circumstances of the case. He argued that the question of law raised by the petitioner has been decided by a Constitution Bench of the Supreme Court in Union of India v. Tulsiram Patel : (1985)IILLJ206SC and so long as the same holds the field, it is binding on this Court and the matter is not open for consideration. According to learned Counsel, the order of reference made by a Bench of two Judges in Bashyam's case A.I.R.1988 S.C.1000 relied on by the petitioner's counsel does not have any effect on the categorical pronouncement made in Tulsiram Patel's case : (1985)IILLJ206SC . It is further argued that the cry of violation of principles of natural justice is. nothing but a bubble inasmuch as the petitioner had ample opportunity to make representations culminating in a written representation running to 55 foolscap pages submitted by the petitioner after the conclusion of the evidence. According to him, by no stretch of imagination it can be denied that the petitioner had more than a reasonable opportunity. Learned Counsel submitted that under the relevant Service Rules, there is an express provision for supply of a copy of the Enquiry Officer's report to the delinquent along with the order of the Disciplinary Authority and as there is an express rule therefor, anything to the contrary is automatically excluded. Learned Counsel also dilated upon the functions of the Enquiry Officer and the value of the findings arrived at by him and pointed out that the Enquiry Officer is only a delegate to collect all the relevant materials for the consideration of the Disciplinary Authority and the findings given by him are not in any manner binding on the Disciplinary Authority. It is also argued that the writ petition is premature as no punitive action has yet been taken and the petitioner has no present grievance which can be ventilated in this Court. It is submitted by learned Counsel for the respondents that the petitioner is not entitled to get any relief under Article 226 of the Constitution of India.
9. Before considering the rival contentions, it is better to extract the relevant Service Rules. There is no dispute that the matter is governed by State Bank of India (Supervisory Staff) Service Rules. Rule 49 therein sets out the penalties which may be imposed on an employee for an act of misconduct or for any other good and sufficient reason. They are classified as 'Minor Penalties' and' 'Major Penalties'. It is not necessary to set them out in detail. Rule 50 prescribes the procedure for instituting disciplinary proceedings, holding enquiry and passing orders at the conclusion thereof. Under the rule, the Disciplinary Authority may itself, or shall when so directed by its superior authority, institute disciplinary proceedings against an employee. The Disciplinary Authority or any authority higher than the same may impose any of the penalties mentioned in Rule 49. No order imposing any of the major penalties specified in Rule 49 shall be made except after an enquiry is held in accordance with Rule 50. The rule is almost on the same lines as Civil Service Rules. What is relevant for the purpose of this case is Sub-rule (2)(xxi) of the rule. The relevant portion of the clause reads as follows:
(A) On the conclusion of the inquiry, the Inquiring Authority shall prepare a report which shall contain the following:
(1) a gist of the articles of charge and the statement of the imputations of misconduct;
(2) a gist of the defence of the employee in respect of each article of charge;
(3) an assessment of the evidence in respect of each article of charge;
(4) the findings on each article of charge and the reasons therefor.
(b) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to' the Disciplinary Authority the records of inquiry which shall include:
(1) The report of the inquiry prepared by it under (a) above:
(2) the written statement of defence, if any, submitted by the employee referred to in Clause (xv);
(3) the oral and documentary evidence produced in the course of the inquiry;
(4) written briefs referred to in Clause (xviii), if any; and
(5) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the Inquiry.
Under Sub-rule (3) of the rule, the Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority under certain circumstances and shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. Under Clause (iii) of Sub-rule (3) of the rule, 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 Rule 49 should be imposed on the employee, it shall make an order imposing such penalty. Under Clause (iv) of Sub-rule (3) of the Rule, if the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned. Under Sub-rule (5) of the Rule, orders made by the Disciplinary Authority or the Appointing Authority as the case may be, under Sub-rules (3) and (4) shall be communicated to the employee concerned, who shall be also be supplied with a copy of the report of the inquiry, if any. Rule 51 provides for an appeal to the Appellate Authority against an order imposing any of the penalties specified in Rule 49 or against an order of suspension referred to in Rule 50-A.
10. A perusal of the relevant rules as extracted above shows that it is the duty of the Disciplinary Authority to consider all the records mentioned in Sub-rule (2)(xxi)(b) of Rule 50 and arrive at its own findings. It is significant to note that Sub-rule (3)(iii) and Sub-rule (3)(iv) expressly refer to the findings of the Disciplinary Authority. It is also to be noted that a copy of the report of the enquiry shall be communicated to the employee concerned only after an order is made by the Disciplinary Authority under Sub-rules (3) and (4) of Rule 50. Thus, there is an express provision in the rules with reference to the stage at which the employee is entitled to get a copy of the report of inquiry. It is quite obvious that the rules do not contemplate or provide for supply of the said copy at any prior stage. The validity of the rules as such has not been challenged. In the absence of a specific rule requiring the respondents to furnish a copy of the inquiry report to the petitioner, this Court cannot issue a mandamus or give a direction to the respondents to do so. Though the express prayer in the writ petition is not for issue of such a mandamus or direction, the real and effective prayer which is latest in the writ petition is to direct the respondents to provide the petitioner with a copy of the inquiry report before passing an order of punishment against him. Looking at it from another angle, it can be said that the prayer of the petitioner is to quash the order of punishment made on 17-4-1989, though it has not been served on the petitioner yet, on the ground that it is invalid on account of non supply of the Inquiry Officer's report to the petitioner.
11. Under the Service Rules, the findings of the Enquiry Officer have insignificant value unless they are accepted by the Disciplinary Authority, who cart agree or disagree with such findings only after perusing the entire evidence on record. After all, the Enquiry Officer is collecting all the evidence on behalf of the Disciplinary Authority as his delegate and placing the same before him to that he may consider all the materials and come to a conclusion one way or the other, irrespective of the opinion of the Enquiry Officer as expressed in the findings in his report. It has been held in Union of India v. H.C. Goel : (1964)ILLJ38SC that findings of facts recorded by an Enquiry officer entrusted with the work of holding a departmental enquiry into misconduct of a Government servant, are not binding on the Government. The petition will be the same under the concerned Service Rules in this case. The findings of the Enquiry Officer are not binding on the Disciplinary Authority. There is no question of denial of a reasonable opportunity or violation of the principles of natural justice in the non-supply of such a report of the Enquiry Officer to the employee.
12. The basic principle of natural justice relevant in the context is audi alteram partem (here the other side). How can it be said that the employee has not been heard or a reasonable opportunity has not been afforded to him to have his say when all the evidence intended to be used against him is made known to him and he has had the opportunity not only to comment on it but also rebut it by evidence on his side? Is it right to say that the Enquiry Officer's report is a material which might be, used against him and he must be allowed to have his say on the same? What is the status of the said report? Can it be exalted to the place of evidence? Certainly not. The report may at best be an analysis of the evidence on record with the opinion of the Enquiry Officer. As against that, the employee has already given a written brief, wherein he discusses the entire evidence on record. The Disciplinary Authority has to consider the correctness of the submissions made by the employee in the written brief as well as the findings of the Enquiry Officer in the report purely on the basis of the evidence on record. It is not possible for him to accept or reject either of them without going into the evidence. When the opinion of the Enquiry Officer has no value whatever, why should it be made known to the employee before hand? It is not necessary that the findings of the Enquiry Officer should always be against the employee. For example, in a case where the Enquiry officer's findings are in favour of the employee, but the Disciplinary Authority comes to a different conclusion on the evidence on record, is it necessary to inform the employee before an order is passed that the Disciplinary Authority is going to differ from the Enquiry Officer? What is the remedy of the employee if the findings of the Enquiry Officer in his favour are based on the evidence on record, but the findings of the Disciplinary Authority against him are not supported by the evidence? Naturally, he will have to canvass the correctness of the same in an appeal. Can it be said that the principles of natural justice are violated because the employee was not informed by the Disciplinary Authority that he would differ from the findings of the Enquiry officer? It has been held by the Supreme Court that an opportunity in an appeal to contest the correctness of the findings against the employee is also sufficient to meet the requirements of natural justice. In Union of India v. Tulsiram Patel : (1985)IILLJ206SC , the Supreme Court ruled as follows in paragraph 102 of page 1463 while dealing with the Second Proviso to Article 311(2) of the Constitution of India:.Thus, where the Second Proviso applies, though there is no prior opportunity to a government servant to defend himself against the charges made against him, he has the opportunity to show in an appeal filed by him that the charges made against him are not true. This would be a sufficient compliance with the requirement of natural justice. In Menaka Gandhi's case : [1978]2SCR621 and in Liberty Oil Mills v. Union of India : [1984]3SCR676 , the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy to as a right of making a representation.
13. I hold that a real and effective opportunity to the petitioner to deal with or meet the case against him has been given to him in this case as prescribed by the Service Rules and there is no warrant for the argument that a reasonable opportunity to defend has not forwarded to him. There is no justification whatever to make an addition to the rules by giving a direction to the respondents as desired by the petitioner, particularly when the service rules have expressly fixed the stage at which the report should be sent to the petitioner.
14. Now, I shall consider the rulings cited at the Bar. As it is contended that the matter is concluded by the decision of the Constitution Bench of the Supreme Court in Tulsiram Patel's case : (1985)IILLJ206SC and no longer open for consideration by the High Court, I will refer to it immediately. In that case, the Supreme Court decided a large number of points. The conclusions have been conveniently summarised topicwise by Mohan, J. in Satyavir Singh v. Union of India and Ors. A.I.R.1986 S.C.533. It has to be noted that the majority judgment in Tulsiram Patel's case : (1985)IILLJ206SC was delivered by the same learned Judge. The following propositions as summarised in the later judgment are relevant for this case:
6. The conclusions reached by the majority in Tulsiram Patel's case : (1985)IILLJ206SC were:. ... ...
III. The inquiry under Article 311(2).
15. Clause (2) of Article 311 gives a constitutional mandate to the principles of Natural justice and the audi alteram partem rule by providing that civil servant shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges.
17. The nature of this inquiry has been elaborately set out by this Court in Khan Chand v. Union of India : (1959)ILLJ167SC and even after the Constitution (Forty-second Amendment) Act, 1976, the inquiry required by Clause (2) of Article 311 would be the same except that it would not be necessary to give to a civil servant an opportunity to make a representation with respect to the penalty proposed to be imposed upon him.
18. As held in Suresh Koshy George v. University of Kerala : [1969]1SCR317 and Associated Cement Companies Ltd. v. T.C. Srivastava : (1984)IILLJ105SC , apart from Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act, 1976, it is not necessary either under the ordinary law of the land or under industrial law to give a second opportunity to show cause against the penalty proposed to be imposed upon an employee.
IV. The Second Proviso to Article 311(2).
(22) The governing words of the Second Proviso to Clause (2) of Article 311, namely, 'this clause shall not apply', are mandatory and not directory and are in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned civil servant in a case where one of the three clauses of the Second Proviso becomes applicable. There is thus no scope for introducing into the Second Proviso some kind of inquiry or opportunity to show cause by a process of inference or implication. The maxim 'expressum facit cessare tacitum, (where there is express mention of certain things, then anything mentioned is excluded') not applies to this case. This well known maxim is principle of logic and common sense and not merely a technical rule of construction as pointed out in R. Shankara Rao Badami v. State of Mysore : [1969]3SCR1 .
V. Article 14 and the Second Proviso.
(24) The principle of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the begetter of the principles of natural justice but is their constitutional guardian.
(25) The principle of natural justice consist primarily of two main rules, namely, 'nemo judex in, causa sua' ('no man shall be a judge in his own cause') and audi alteram partem ('hear the other side'). The corollary deduced from the above two rules and particularly the audi alteram partem rule was qui eliquid statuerit pane inaudite altera, sequum licet dixerit hawd seques fuerit ('who shall decide anything without the other side having been heard, although he may have said that is right will not have done what is right') or as is now expressed 'justice should not only be done but should manifestly be seen to be done'.
These two rules and their corollary are neither new nor were they the discovery of Indian judges but were recognised in many civilisation and even many centuries.
(27) The principles of natural justice apply both to quasi-judicial as well as administrative inquiries entailing civil consequences.
(28) It is well established both in 'England and in India that the principles of natural justice yield to and change with the exigencies of different situations and do not apply in the same manner to situations which are not alike. They are neither cast in a rigid mould nor can they be put in a legal strait jacket. They are not immutable but flexible and can be adopted, modified or excluded by statute and statutory rules as also by the constitution of the tribunal which has to decide a particular matter and the rules by which such tribunal is governed. Instances of cases in which it has been so held are Norwest Hoist Ltd. v. Secretary of State for Trade (1978) 1 Ch. 201 Suresh Koshy George v. University of Kerala : [1969]1SCR317 A.K. Kripak v. Union of India : [1970]1SCR457 , Union of India v. J.N. Sinha : (1970)IILLJ284SC , Swadeshi. Cotton Mills v. Union of India : [1981]2SCR533 , J. Mohapatra and Co., v. State of Orissa : [1985]1SCR322 and Maneka Gandhi v. Union of India : [1978]2SCR621 .
(29) If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution such as the Second Proviso to Article 311(2).
(30) The audi alterant partam rule having been excluded by a constitutional provision, namely, the Second Proviso to Article 311(2) there is no scope for reintroducing it by a side door to provide once again the same inquiry which the constitutional provision has expressly prohibited.
(31) A right of making a representation after an action is taken against a person has been held by this Court in Maneka Gandhi's case : [1978]2SCR621 and in Liberty Oil Mills v. Union of India : [1984]3SCR676 to be a sufficient compliance with the requirements of natural justice. In the case of a civil servant to whom the provisions of the Second Proviso to Article 311(2) have been applied, he had the right of a departmental appeal in which he can show that the charges made against him are not true and an appeal is a wider and more effective remedy than a right of making a representation.
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(34) The principles of natural justice must be confined within their proper limits and not allowed to run wild. The concept of natural justice is a magnificent thorough-bred on which this nation gallops forwards towards its proclaimed and destined goal of 'justice, social, economic and political'. This thoroughbred must not be allowed to turn into a wild and unruly horse, careering off where it lists, unsaddling its rider and bursting into fields where the sign 'no pasaran' is put up. VI. Service Rules and Acts
(35) Article 309. is expressly made subject to the provisions of the Constitution. Rules under the proviso to Article 309, Acts referable to that articles, and rules made under such Acts are, therefore, subject both to Article 310(1) as also to Article 311. If any such rule or Act impinges upon or restricts the operation of the pleasure doctrine embodied in Article 310(1) except as expressly provided in the Constitution or restricts or takes away the safeguards provided to civil servants by Clauses (1) and (2) of Article 311, it would be void and unconstitutional as contravening the provisions of Article 310(1) or Clause (1) or Clause (2) of Article 311 as the case may be. Any such Act or rule which provides for dismissal, removal or reduction in rank of a civil servant without holding an enquiry as contemplated by Clause (2) of Article 311 except in the three cases specified in the Second Proviso to that clause would, therefore, be unconstitutional and void as contravening Article 311(2).
(36) In the same way, for an Act or a rule to provide that in a case where the Second Proviso to Article 311(2) applies, any of the Safeguards excluded by that Proviso will be available to a civil servant would be void and unconstitutional as impinging upon the pleasure of the President or the Governor, as the case may be.
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IX. The Scope of the Second Proviso.
(51) Where a situation envisaged in one of the clauses of the Second Proviso to Article 311(2) exists, it is not mandatory that the punishment of dismissal, removal or reduction in rank should be imposed upon a civil servant. The disciplinary authority will first have to decide what punishment is warranted by the facts and circumstances of the case. Such consideration would, however, be ex parte and without hearing the concerned civil servant. If the disciplinary authority comes to the conclusion that the punishment which is called for is that of dismissal, removal or reduction in rank, it must dispense with the inquiry and then decide for itself which of the aforesaid three penalties should be imposed.
15. Before parting with Tulsiram Patel's case : (1985)IILLJ206SC , it is necessary to extract a portion of paragraph 70 of the judgment on which reliance was placed by counsel on both sides:
The position which emerges from the above discussion is that the key words of the Second Proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase 'this clause shall not apply' is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) 'or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the Second Proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim 'expressum facit cessare taciturn' ('when there is express mention of certain things, then anything not mentioned is excluded') applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore : [1969]3SCR1 , this well-known maxim is a principle of logic and common sense and not merely a technical rule of construction. The Second Proviso expressly mentioned that Clause (2) shall not apply where one of the clauses of that proviso become applicable. This express mention excludes everything that Clause (2) contains and there can be no scope for once again introducing the opportunities provided by Clauses (2) or any one of them into the Second Proviso. In Atkinson v. United States of America Government 1971 A.C.197 Lord Reid said (at page 232):It is now well recognised that the Court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament.
While learned Counsel for the petitioner places reliance on the quotation from Lord Reid's judgment and submits that the Supreme Court has accepted the proposition contained therein, learned Counsel for the respondents relies on the reference to the maxim 'expressum facit cessare taciturn' and submits that the same would apply to the present case in view of the express rule that a copy of the report of the enquiry officer should be sent to the employee along with the order of the Disciplinary Authority. I agree with learned Counsel for the respondents that the said maxim would apply to the present case and the proposition laid down by Lord Reid has no applicability to this case. The matter has been dealt with more elaborately in paragraphs 100 and 101 of the judgment. It is worthwhile extracting the relevant portions thereof:
In Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 Chinnappa Reddy,' J., in his dissenting Judgment summarised the position in law on this point as follows at page 591 of S.C.R.: or P.846-47 of A.I.R.
The principles of natural justice have taken deep, root in the judicial conscience of our people, nurtured by Binapani : (1967)IILLJ266SC , Kraipak : [1970]1SCR457 , Mohindeer Singh Gill : [1978]2SCR272 , Maneka Gandhi : [1978]2SCR621 etc. etc. They are now considered so fundamental as to be 'implicit in the concept of ordered liberty' and , therefore, implicit in every decision making function, call it judicial, quasi-judicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in the manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive it may be excluded by express words of statue or by necessary intendment. Where the conflict is between the public interest and the private interest the presumption must necessarily be weak and may therefore be readily displaced.
(Emphasis supplied).
101. Not only, therefore, can the principles of natural justice he modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa : [1985]1SCR322 . So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partam rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case : [1978]2SCR621 .
16. In Ram Chander v. Union of India : (1986)IILLJ334SC another Bench of two Judges considered the effect of the ruling in Tulsiram Patel's case : (1985)IILLJ206SC and observed as follows:
There has been considerable fluctuation of judicial opinion in England as to whether a right of appeal is really a substitute for the insistence upon the requirements of a fair hearing or the observance of natural justice which implies 'the duty to act judicially'. Natural justice does not require that there should be a right of appeal from any decision. This is an inevitable corollary of the fact 'that there is no right of appeal against a statutory authority unless the statute so provides, Professor H.W.R. Wade in his Administrative Law, 5th Edn., at p.487 observes:
Whether a hearing given an appeal is an acceptable substitute for a hearing not given, or not properly given, before the initial decision is in some cases an arguable question. In principle there ought to be an observance of natural judice equally at both stages.... If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing, instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed to Negarry, J's dictum in a trade union expulsion case holding that, as a general rule, a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in the appellate body, the learned author observes:
Nevertheless it is always possible that some statutory scheme may imply that the 'appeal' is to be the only hearing necessary.24. Professor D. Smith at p.242-43 refers to the recent greater readiness of the Courts to find a breach of natural justice 'cured' by a subsequent hearing before an appellate tribunal. In Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 although the Majority held that the expression that immediate action is necessary in Section 18AA(1)(a) of the Industries (Development and Regulation) Act, 1951, does not exclude absolutely, by necessary implication the application of the audi alteram partem rule, Chinnappa Reddy, J. dissented with the view and expressed that the expression 'immediate action' may in certain situations mean exclusion of the application of the rules of natural justice and a post decisional hearing provided by the statute itself may be sufficient substitute. It is not necessary for our purposes to go into the vexed question whether a post-decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case : (1985)IILLJ206SC unequivocally lays down that the only stage at which a Government servant gets a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. i.e., An opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved against him are not such a character as to merit the nature penalty of dismissal or removal or reduction in Rank and that any of the lesser punishment ought to have been sufficient in this case, is at stage of hearing a departmental appeal.
(Underlining mine).
There is no doubt whatever that the point now put forward vehemently by learned Counsel for the petitioner stands negatived by the above ruling inasmuch as it is held that the opportunity to exonerate himself from the charge by showing that the evidence adduced at the enquiry is not worthy of credence or consideration, is only at the stage of hearing of departmental appeal. Hence, there is no substance in the argument that by the non supply of the Enquiry Officer's report to the employee before it is considered by the Disciplinary Authority, the opportunity to convince the Disciplinary Authority of his innocence has been denied or that the principles of natural justice are violated thereby.
17. Again in The Secretary Central Board of Excise and Customs and Ors. v. K.S. Mahalingam : (1986)IILLJ434SC , another Division bench of the Supreme Court consisting of two judges made the following observations with reference to Rule 15(4) (as amended in 1976) of the Central Civil Services (Classification, Control and Appeal) Rules (1965).After the amendment, the requirement of Clause (2) will be satisfied by holding inquiry in which the Government Servant has been informed of the charge against him and given a reasonable opportunity of being heard. In the instant case such an opportunity has been given to the respondent. It is also not disputed that after the order of dismissal was passed, the respondent was supplied with a copy of the report of the Inquiry Officer which enabled him to prefer an Appeal to the Appellate Authority against the order of dismissal.
Thus, it is seen that the Bench took the view that supplying the employer with a copy of the Inquiry Officer's report after the dismissal is sufficient compliance with the principles of natural justice.
18. In Kailash Chander v. State of U.P. : (1988)IILLJ219SC , a Bench of three Judges reiterated the position thus:
Mr. Garg next contended that a copy of the report of the Adminsitrative Tribunal was not made available to the petitioner and this must be held to have vitiated the subsequent proceeding including the impugned order of punishment. A references was made to the Explanation to Sub-rule (3) of Rule 9 of the rules, stating that a copy of the recommendation of the Tribunal as to the penalty should be furnished to the charged Government servant. It has been pointed out by the learned Counsel for the respondents that after the amendment of Article 311 of the Constitution by the 42nd Amendment, the Explanation was dropped. The question of service of copy of the report arose on account of a right of a second show cause notice to the Government servant before the 42nd Amendment and since present disciplinary proceeding was held later, the petitioner cannot legitimately demand a second opportunity. That being the position, nonservice of a copy of the report is immaterial.
(Underlining mine).
Learned Counsel for the petitioner sought to distinguish the decision by contending that the Bench was concerned only with an opportunity to show cause against the proposed punishment and not an opportunity to make a representation as regards the acceptability of the evidence on record or the findings of the Enquiry Officer. I do not agree with learned Counsel for the petitioner that the above ruling can be distinguished on that footing. The court was aware of the categorical dictum in Tulsiram Patel's case : (1985)IILLJ206SC and proceeded on the footing that there was no violation of the principles of natural justice in non-service of a copy of the Enquiry Officer's report and that is why the Bench charaterised the same as immaterial.
19. In the face of the categoric pronouncement of the Supreme Court binding on this Court under Article 141 of the Constitution of India, the arguments based on the observations made in the order of reference in Bashyam's case A.I.R.1988 S.C.1000 however emphatic that may be, are futile and cannot be considered by this Court. Even if it could by any process of reasoning be stated to be a Judgment of the Division Bench of the Supreme Court, it is not binding on us and it cannot stand against the ruling of the Constitution Bench in Tulsiram Patel's case : 1986CriLJ836 , as has been held in N. Meera Rani v. Government of Tamil Nadu and Anr. A.I.R.1990 S.C.2027. In that case it has been laid down that if there is a decision of a Constitution Bench, all subsequent decisions should be read in the light of the same, when they are decisions by Benches comprised of lesser number of Judges and none of them could be construed as having taken a view contrary to that of the Constitution Bench, The relevant passage in the judgment is as follows:
The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 . All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of larger number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw's case (Supra)
None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw's case (supra) for the obvious reasons that all subsequent decisions were by benches comprised of lesser number Of judges.
20. Learned Counsel for the petitioner relied on the decision of a Division Bench of this Court in Chief Commercial Superintendent Southern Railway, Madras and Ors. v. Murugan and Anr. (1984) W L.R.307. Dealing with a case arising under Railway Servants (Discipline and Appeal) Rules, 1968, the Bench held on a construction of Rule 10 of the Rules, that when the disciplinary authority is not the enquiring authority and when it should render its own finding after the receipt of the report and findings of the enquiring authority, an opportunity should be given to the railway servant to assail the findings of the inquiring authority. The judgment was rendered before the pronouncement of the Supreme Court in Tulsiram Patel's case : (1985)IILLJ206SC . After the Supreme Court decision, the ruling of the Division Bench has been held to be not good law by another Division Bench of this Court in Union of India by the General Manager v. D. Ranganathan (1987) WL.R.290 I was a party to the later Bench and after referring to the judgments of the Supreme Court in Tulsiram Patel's case : (1985)IILLJ206SC Ram Chander case : (1986)IILLJ434SC , it was held by the Bench that the decision in Murugan's case 1984 WL.R.307 in no longer good law.
21. Learned Counsel for the petitioner invited my attention to another judgment by the same Division Bench which decided Murugan's case 1984 WL.R.307 in Sreedharan v. The Collector of Madurai 1984 W L.R.585 taking the same view. What applies to Murugan's case will apply with equal force to the above case also and it is not good law after the pronouncement of the Supreme Court in Tulsiram Patel's case : (1985)IILLJ206SC .
22. Learned Counsel placed reliance on an unreported judgment of a single Judge of this Court in W.P.No. 2817 of 1983 M. Palaniswami v. The Union of India Rep. by the Secretary, Ministry of Home Affairs, North Block New Delhi and Ors.. The learned Judge has followed the ruling of the Bench in Sreedharan's case 1984 W L.R.585 overlooking the judgments of the Supreme Court. As the Division Bench Judgment in itself is not good law, the judgment of the single Judge is also not good law. However, the said judgment of the single Judge has been affirmed on appeal by a Division Bench in W.A.No. 1655 of 1988. Though the Division Bench dismissed the writ appeal, the view expressed by the Division Bench is somewhat different. The relevant portion of the judgment of the Division Bench reads as follows:
So long as admittedly the enquiry officer has furnished a report, whatever may be the value of the report, whether it was relied on by the disciplinary authority or not, it has to be necessarily furnished to the delinquent officer. Otherwise, it will not be possible for him to effectively conduct the appeal while attacking the findings of the disciplinary authority. This is all the more so after the 42nd Amendment, by reason of which a second show cause notice has been dispensed with, as requirement of reasonable opportunity under Article 311.
The judgment of the Division Bench cannot be construed as one supporting the argument of the learned Counsel for the petitioner. Obviously, the Division Bench intended only to lay down that a copy of the report of the enquiry officer should be furnished to the employee along with the order of the disciplinary authority so that the employee maycancass the. findings against him effectively before the appellate authority.
23. Another Division Bench of this Court has held that a second show cause notice proposing punishment on the disciplinary action is illegal and quashed the same. (vide. Dr. N. Sankara Swamanithan v. Commissioner and Secretary, Agriculture Department Government of Tamil Nadu judgment dated 8-8-1988. The following observations in that W.A.No. 215 of 1988 judgment are quite relevant:
A Division Bench of this Court in Union of India Represented, by The General Manager v. D. Ranganathan 1987 W.L.R.290 has. held that after the amendment of Article 311(92) of the Constitution, there is no duty cast on the Disciplinary Authority to hear the delinquent officer in respect of punishment. To come to this conclusion, reliance had been placed on Union of India v. Tulsiram Patel 1985 S.C.C.398 and Ramanchander v. Union of India : (1986)IILLJ334SC In Ramachander v. Union of India : (1986)IILLJ334SC , it was held that a Government servant gets a reasonable opportunity to canvass his innocence and the correctness of the order of the Disciplinary Authority, at the stage of appeal.
24. Learned Counsel also submitted that Writ Appeal No. 1263 of 1983 has been admitted and is pending in this Court on the question whether the report of the enquiry officer should be furnished to the employee before the disciplinary authority passes an order. Having regard to what I have said earlier, it is not necessary for me to wait for the disposal of W.A.No. 1263 of 1988 or post this case along with the same. So long as the decision of the Supreme Court in Tulsiram Patel's case : (1985)IILLJ206SC stands, this Court is not entitled to take a different view on this question.
25. Learned Counsel for the petitioner places reliance on the following passage in the Judgment of the Supreme Court in Maneka Gandhi v. Union of India : [1978]2SCR621 :
This Court speaking through Hegde, J. in A.K. Kraipak's case : [1970]1SCR457 , quoted with approval the above passage from the judgment of Lord Parker, C.J. and proceeded to add: (at p.156 of A.I.R.)
'The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it...till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of the limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala' : [1969]1SCR317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case. This view was reiterated and reaffirmed in a subsequent decision of this Court in D.F.O. South Kheri v. Ram Sanchi Singh : AIR1973SC205 . The law. must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.
26. The above passage does not really help the petitioner and in fact, the conclusion in. that case was that the audi alteram partam rule could be excluded in certain cases and it cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.' Apart, from that, the judgment in Maneka Gandhi's case : [1978]2SCR621 has been referred to in extense and taken into account fully in Tulsiram Patel's case : (1985)IILLJ206SC .
27. Learned Counsel for the petitioner submitted that the charges framed against the petitioner relate to the period 1978 to 1984 and there has been inordinate delay in framing the charges. He submitted that inordinate delay in issuing a charge memo is itself a denial of reasonable opportunity and would amount to violation of the principles of natural justice. In support of the said contention, he placed reliance on the judgment of a Division Bench in V.S. Ratnanarayanan v. The Food Corporation of India represented by its Zonal Manager Madras-6 1984 T.L.N.J.123. I cannot accept the contention for the following reasons: The question whether there is an inordinate delay or not has to depend on the facts and circumstances of the case including the acts of misconduct and the nature of the charges. That can be considered more appropriately by the appellate authority only. The alleged acts of misconduct are said to have spread over a period of about six years from 1978 to 1984. Without going into the merits, it is not possible for this Court to decide whether there is any delay or an inordinate delay which prevented the petitioner from effectively defending himself and thereby depriving him of a reasonable opportunity.
28. I do not think it necessary to consider the second argument advanced by learned counsel for the respondents that the writ petition is not maintainable as no punitive action has yet been taken and there is no present grievance which can be ventilated in Court. Learned Counsel for the respondents placed reliance on the decision of the Supreme Court in Charan Singh v. Registrar Co-op. Societies, Punjab and Ors. : [1976]2SCR690 wherein it has been held that a writ petition challenging the revival of disciplinary proceedings is premature as no punitive action had yet been taken. It is a matter of doubt whether the said principle would apply to the present case when admittedly the second respondent has passed an order of punishment against the petitioner dismissing him from service. In the view I have taken in this case, I do not purpose to consider that aspect of the matter any further.
29. In the result, the contentions put forward by the petitioner's learned Counsel are rejected. The petitioner ought not to have filed the writ petition knowing fully well that an order of punishment had been passed against him. He should have received a copy of the order and filed an appeal against the same under Rule 51 of the Service Rules. Instead of doing so, the petitioner has taken a short cut to this Court without adhering to the procedure prescribed in the rules. I am of the view that the discretion under Article 226 of the Constitution of India should be exercised against the petitioner in view of the efficacious remedy available to him under rule 51 of the Service Rules.
30. In the result, the writ petition fails and it is dismissed and the rule nisi is discharged. In the circumstances of the case, there will be no order as to costs.