Jagdish Lall vs The Bihar State Electricity Board and Others

Chandramauli Kr. Prasad, J.—This application has been filed for quashing the order dated 7.5.2002 (Annexure-7) whereby the Petitioner has been visited with the penalty of censure, withholding of five increments with cumulative effect, withholding of promotion for three years from the due date and denying further payment, other than the subsistence allowance for the period of suspension. His further prayer is to quash the order dated 20.11.2002 (Annexure-11) whereby the appellate authority while maintaining other penalties, reduced the penalty to withholding of three increments with cumulative effect and stoppage of promotion for three years to one year from the due date.

Shorn of unnecessary details, facts giving rise to the present application are that while the Petitioner was posted as Assistant Electrical Engineer, a departmental proceeding was initiated against him in relation to purported misconduct committed by him during the period when he was posted as Junior Electrical Engineer, Nasriganj. In altogether five charges were levelled against him. The Enquiry Officer submitted his report dated 5.1.2001 (Annexure-4) exonerating the Petitioner from all the charges. The disciplinary authority disgreeing with the conclusion of the Enquiry Officer and after holding that all the charges have been proved against the Petitioner gave second show cause notice in the follows words:

Whereas, it has been proposed to award him the following punishment.

(i) To censure him.

(ii) Withholding of his five increments with cumulative effect.

(iii) No promotion for three years from the date he becomes otherwise eligible.

(iv) No payment other than subsistence allowance for the period of suspension. But to treat the period of suspension spent as on duty for the purpose of post retirement benefits.

Accordingly, while enclosing a copy of enquiry report of Enquiring Officer, second show cause notice is served upon Sri Jagdish Lal, Asst. Elecl. engineer asking him to submit his reply within fifteen days as to why the proposed punishment should not be awarded to him. If he fails to submit reply within stipulated period it will be deemed that he has nothing to say in his defence.

Petitioner submitted his reply dated 6.4.2001 (Annexure-6) but the disciplinary authority by the impugned order inflicted the penalty as referred to above and the appeal preferred by the Petitioner against the order of the disciplinary authority was partly allowed with modification in the penalty quoted above.

Mr. Ajey Kumar appearing on behalf of the Petitioner submits that the orders of the disciplinary authority as well as of the appellate authority are illegal as the disciplinary authority before passing the impugned order did not give any opportunity to the Petitioner to satisfy that finding recorded by the Enquiry Officer is just and proper. He submits that the disciplinary authority was obliged to give tentative reasons for disagreement and opportunity to the delinquent employee to satisfy that the finding recorded by the Enquiry Officer is correct. Learned Counsel highlights that failure to do the same renders the impugned orders illegal in the eye of law. Reliance has been placed on a decision of the Supreme Court in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, and my attention has been drawn to the following passage from the said judgment.

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer en opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charge framed against the officer.

Another decision on which reliance has been placed is the decision of the Supreme Court in the case of Yoginath D. Bagde Vs. State of Maharashtra and Another, and my attention has been drawn to paragraph 37 of the judgment which reads as follows:

The contention apparently appears to be sound but a little attention would reveal that it sound like the reverberations from an empty vessel. What is ignored by the learned Counsel is that a final decision with regard to the charges levelled against the Appellant had already been taken by the Disciplinary committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary committee merely issued a notice to the Appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.

Mr. Ajay Kumar submits that in a case where the delinquent employee is given show cause notice against the proposed punishment without giving opportunity to him to satisfy that the finding of the Enquiry Officer was justified, a Division Bench of this Court in L.P.A. No. 792 of 1999 (Jai Kumar Singh v. State Bank of India and Ors.), held the order of punishment to be bad and my attention has been drawn to the following observation in this connection.

xxx He thereafter gave an opportunity of hearing regarding nature of proposed punishment and called upon the Appellant to show cause why the proposed punishment should not be inflicted upon him.

xxx There was, therefore, no scope for the Appellant to represent that the finding of the enquiry officer was justified in the facts and circumstances of the case and that the reasons for disagreement as recorded in the order were not adequate to disturb the finding re orded by the enquiry officer. All that the office provided was that the Appellant should represent against the proposed punishment.

Mr. Kumar points out that the effect giving opportunity only against the prosed punishment and not giving opportunity to the delinquent employee to satisfy the disciplinary authority that the finding of (sic)oneration is correct and lawful has been considered by this Court in the case of Jitendra Kumar Vs. Central Bank of India and Others, and in he said case it has been held as follows:

This Court is unable to accept the said submission of the learned Counsel for the Bank. Admittedly, the Petitioner was not given opportunity before the Disciplinary Authority passed order dated 7.1.1994 (Annexure-6) differing with the findings of the Enquiry Officer. In view of the law settled in the case of Punjab National Bank v. Kunj Bihari Mishra (supra), the Disciplinary authority was obliged to give opportunity while differing with the findings of the Enquiry Officer. By the order contained in Annexure-6, the Petitioner was simply given an opportunity as against the proposed punishment and not to meet the ground for differing with the findings of the Enquiry Officer. As such, the impugned orders on this ground alone cannot be sustained. xxx

Similar is the view taken by this Court in the case of Braj Kishore Singh Vs. The State of Bihar and Others, contends Mr. Kumar. In thesaid case it has been observed as follows:

It is not the case of the Respondents that the disciplinary authority while disagreeing with the findings of the enquiry officer ever gave such opportunity to the Petitioner except that after recording finding the Petitioner was given second show cause notice only against the proposed punishment. Learned Counsel for the Respondents has also failed to show that the Petitioner was ever given any such opportunity as per the aforementioned principle decided by the Apex Court. Thus, the impugned orders are vitiated on this ground alone:

Yet another decision which according to the learned Counsel for the Petitioner squarely answers the point is the decision of this Court in the case of Bihar State Electricity Board Vs. Braj Kishore Singh and Others and my attention has been drawn to the following passage from paragraph 6 of the judgment which reads thus:

After the disciplinary authority found himself in disagreement with the findings recorded by the enquiry officer, he should have recorded his tentative grounds of disagreement which ought to have conveyed to the delinquent employee and he ought to have been allowed to represent against those. In that view of the matter, we agree with this part of the impugned order, and hold that the orders dt. 30.10.98 (Annexure-6), passed by the disciplinary authority, and that of the appellate authority dt. 29.9.99 (Annexure-7), have been rightly set aside.

Mr. Kumar points out that this Court had the occasion to consider the question falling for consideration in the present case in the case of Ranjan Kumar Vs. Nalanda Gramin Bank and Others and my pointed attention has been drawn to paragraph 12 of the judgment which reads as follows:

From the authorities of the Supreme Court and the decision of this Court referred to above, it is evident that in case, the disciplinary authority disagrees with the findings of the enquiry officer, he has to record tentative reasons and communicate the same to the delinquent employee giving opportunity to him to satisfy that the finding recorded by the enquiry officer is just and proper. At this stage, the disciplinary authority cannot record a conclusive finding even after assigning the reasons and in case, he does so and gives opportunity to the delinquent employee, to show cause only against the proposed punishment, same shall vitiate the order of punishment as in such a situation, the disciplinary authority had recorded the finding of guilt in disagreement with the conclusion of the enquiry officer without giving opportunity to the delinquent employee. In my opinion, mere recording of reasons of disagreement does not satisfy the requirement of principle of natural justice but the principle of natural justice demands that before recording the finding of guilt in disagreement with the opinion of the enquiry officer, opportunity must be given to the delinquent employee. Here, in the present case, the disciplinary had stepped into the second stage of asking show cause against the proposed punishment without taking the first step of giving opportunity to the delinquent employee to satisfy that the finding of the enquiry officer is correct.

Mr. Mihir Kumar Jha appearing on behalf of the Respondents very fairly states that the passing the impugned order the disciplinary authority had not made available to the Petitioner the tentative reason for disagreement with the finding of the Enquiry Officer and further opportunity to him to justify that the finding recorded by the Enquiry Officer is just and proper and the principles laid down by the Supreme Court in the case of Kunj Behari Mishra (supra) and others judgments referred to above following Kunj Bihari Mishra (supra) have not been adhered to but he submits that the decision in Kunj Behari Mishra (supra) is a judgment in per incuriam as the same has been rendered by the Supreme Court without referring to it earlier Constitution Bench decision in the case of Union of India (UOI) Vs. H.C. Goel, and my attention has been drawn to paragraph 19 of the judgment which reads as follows:

The same comment has to be made about the observations made by S.R. Das, C.J. in the case of Khem Chand Vs. The Union of India (UOI )and Others, Summarising his conclusions, the learned Chief Justice observed, inter alia, that the second opportunity to which a public servant is entitled can be effective only if "the competent authority after the enquiry is over and after applying its mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant." It is obvious that when the learned Chief Justice refers to the charges proved against the Government servant, it is not intended to be suggested that the findings made by the enquiry officer in that behalf are final. The enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer as the report which he makes as a result the said enquiry. Therefore, we have hesitation in holding that the High Court was in error in coming to the con(sic) that the Appellant was not just (sic) differing from the findings record the enquiry officer. As we have (sic) indicated, if it is held that the (sic) the enquiry officer is not (sic) Government, then the constitution guard afforded by Article 311 ((sic) cannot be said to have been (sic) vened by the Appellant and (sic) ance made by the respondnet behalf must fail.

(underlining mine)

Mr. Jha highlights (sic) decision of the Supreme Court bind this Court and to (sic) been placed on a (sic)Court in the case of (sic) Nayak and (sic) my attention (sic) following passage.

But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A co-ordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen-nor has the overruling Bench any jurisdiction so to do that the finality of the operative order, inter partes, in the previous decision is over-turned. In this context the word ''decision'' means only the reason for the previous order and not the operative order in the previous decision, binding inter partes. Even if a previous decision is over-ruled by a larger Bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed inter partes. Even if the earlier decision of the Five Judge Bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done.

(underlining mine)

To drive home the point, Mr. Jha has also referred to a decision of the Supreme Court in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, and my attention has been drawn to the following passage from the said judgment:

We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In The Bengal Immunity Company Limited Vs. The State of Bihar and Others, it was held that the words of Article 141, "binding all Courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawson''s Settlement Lloyds Bank Ltd. v. Dawson (1966) 1 WLR 1456 : (1966) All ER 68), on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

Mr. Jha submits that doctrine of precedent and judicial discipline demand that I ignore the judgment of the Supreme Court in the case of Kunj Bihari Mishra invoking the principle of per incuriam and follow the judgment of the Constitution Bench in the case of H.C. Goel (supra). He submits that this course is open to me in view of the judgment of the Supreme Court in the case of State of U.P. and another Vs. C.L. Agrawal and another, etc., In the said case it has been held as follows:

We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue "notwithstanding the aforesaid pronouncement of the Full Bench judgment....". If the judgments in the cases of Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, and M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, were cited and the Respondents to the said writ petition submitted that the Full Bench judgment was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court.

Neither on principle nor on precedent I am inclined to accept the submission advanced by Mr. Jha. In my opinion per incuriam are those decisions given in ignorance of forgetfulness of some relevant statutory provision or on some binding precedent on the Court concerned so that some part of the decision or some of the subject in the reasonings on which it is based is found on that count to be demonstratively wrong. But the question is as to whether a Court exercising inferior jurisdiction can term a judgment of the Supreme Court to be per incuriam. Salmond on jurisprudence 12th Edition by P.J. Fitzgerald, at pages 150, 151 has considered the effect of per incuriam judgment in these words:

Ignorance of statute - A precedent is not binding if it was rendered in igno rance of a statute or a rule having the force of statute i.e., delegated legislation.

This rule was laid down for the House of Lords by Lords Halsbury in the leading case (infra 28) and for the Court of Appeal it was given as the leading example of a decision per incuriam which would not be binding on the Court. The rule apparently applies even though the earlier Court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. Similarly, a Court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuriam as to vitiate the decision. Even a lower Court can impugn a precedent on such grounds.

The mere fact that (as is contended) the earlier Court misconstrued a statute, or ignored a rule of construction, is no ground for impugning the authority of the precedent. A precedent on the construction of a statute is as much binding as any other, and the fact that it was mistaken in its reasoning does not destroy its binding force.

Seervai in his Constitutional Law of India, Fourth Edition, Vol. 3 at pages 2676 and 2677 has written as follows:

No judgment of our Supreme Court contain a full discussion of the circumstances under which a judgment is (sic) binding; but in Jaisri Sahu v. Rajdev Dubey, Venkatarama Aiyer J. cited (sic) approval a passage from Halsbury is judgments per incuriam were not (sic) ing on the Court of Appeal-though (sic) incuriam there considered was of (sic) evant judgments. But if "precedents was enunciate rules of law from the (sic)tion of administration of justice us our system", it is well settled in English doctrine of precedents the judgment rendered in ignorance (sic) statute, or a rule having statutory is which would have affected the (sic) not binding on a Court otherwise by its own decisions. In London Street Tramways Co. v. London Country Council the House of Lords recognised that such a judgment was an exception to its ruling that the House of Lords was absolutely bound by its own judgments. The reason given for the exception was that in such a case the House had committed a mistake of fact and when in a subsequent case the mistake was pointed out, the House would not be bound by its earlier decision. The same exception was recognised by the Court of Appeal in the Bristol Aeroplane Case but the explanation given for the exception is more satisfactory:

It cannot ... be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own when that provision was not present to its mind. Cases of this description are examples of decision given per incuriam.

It is equally settled law that where the Court has constructed a statute, or a rule having statutory force, the judgment is binding on co-ordinate or subordinate Courts however erroneous the construction may be, unless such a judgment falls within other exceptions to the binding authority of a judgment.

It is submitted that the law in India is the same, and the Supreme Court judgment fendered in ignorance of a relevant constitutional or statutory provision is not binding on any Court in India. The Constitution and the laws are the law on the subjects covered by them; and the Supreme Court cannot be said to "declare the law" on those subjects if the relevant provisions are not present to its mind. The observations of Shah J. that "the decision (of the Supreme Court) was binding on the High Court, and the High Court could not ignore it because they thought that relevant provisions were not brought to the notice of the (Supreme) Court" do not lay down the proposition that if the Supreme Court had in fact overlooked the relevant provisions, its judgment would still be binding. Shah J. proceeded to show that the High Court mistakenly thought that the relevant provisions had been overlooked, when in fact they had not been overlooked. If the observations are read to mean that even if the Supreme Court delivered a judgment in ignorance of the relevant constitutional or statutory provisions, the judgment would still be binding on subordinate Courts, it is submitted that the observations would be clearly wrong and opposed to the total volume of authority on the binding force of precedents. The observations would also be opposed to the obvious proposition that the Constitution and the laws bind every Court in India, and that though the Courts are free to overlook or disregard the Constitution and the laws.

(underlining mine)

Having given my most anxious consideration I am firmly of the view that the law laid down by the Supreme Court has a constitutional status and Article 141 of the Constitution makes the law declared by the Supreme Court binding on all Courts within the territory of India. In my opinion, binding effect of the judgment of the Supreme Court under Article 141 of the Constitution as also under the doctrine of binding precedent cannot be withheld down on the principle of judgment being rendered per incuriam. Reference in this connection can be made to the decision of the Supreme Court in the case of Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, in, which it has been succinctly stated as follows:

The first question is concluded by the judgment of this Court in Bharat Kala Bhandar Ltd. Vs. Municipal Committee, Dhamangaon, That case arose under the C.P. and Berar Municipalities Act, 1922. The right of a Municipality governed by that Act of levy u/s 66(1)(b) a tax on basis of cotton ginned at the prescribed rate was challenged by a taxpayer. This Court held that levy of tax on cotton ginned by the taxpayer in excess of the amount pre scribed by Article 276 of the Constitution was invalid, and since the Municipality had no authority to levy the tax in excess of the rate permitted by the Constitution, the assessment proceedings levying tax in excess of the permissible limit were invalid, and a suit for refund of tax in excess of the amount permitted by Article 276 was maintainable. The decision was binding on the High Court and the High Court could not ignore it because the "relevant provisions were not brought to the notice of the Court.

(Underlining mine)

In the case of A.R. Antulay (supra) question considered was the power of a co-ordinate Bench or a larger Bench of the Supreme Court in ignoring the judgment rendered by it, invoking the principle of per incuriam judgment. Said judgment, in no way, can be read to mean that the power of the Supreme Court can be exercised by the High Court. In fact, in the case of B.M. Lakhani (supra) the Supreme Court has clearly ruled and stated very emphatically that the decision of the Supreme Court cannot be ignored by the High Court applying the principle of per incuriam judgment.

In the case of Cassell and Co. Ltd. v. Broome and Anr. (1972) AC 1027, this question was considered by the House of Lords and Lord Hailsham at page 1052 spoke as follows:

But the decision of appeal did not stop at dismissing the appeal on these grounds. Whether or not they were encouraged by the zeal of Plaintiff''s counsel, they put in the forefront of their judgments the view that Rookes v. Barnard (1964) A.C. 1129 was wrongly decided by the House of Lords and was not binding even on the Court of Appeal. It was, so they said, arrived at per incuriam, and without argument from counsel.

Lord Hailsham further spoke at page 1054 as follows:

The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of Courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decision of higher tiers, where decision manifestly conflict the decision in Young v. Bristol Aeroplane Co. Ltd., (1944) K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously.

(underlining mine)

Lord Reid in his separate speech in the same case at page 1084 spoke as follows:

It seems to me obvious that the Court of Appeal failed to understand Lord Devlin''s speech, but, whether they did or not, I would have expected them to know that they had no power to give any such direction and to realise the impossible position in which they were seeking to put those Judges in advising or directing them to disregard a decision of this House. That aberration of the Court of Appeal has made it necessary to re-examine the whole subject and incidentally has greatly increased the expense to which the parties to this case have been put.

Viscount Dilhorne, in the said case, at page 1107, observed as follows:

To say that a decision of this House was given per incuriam is, to say the least, unusual and could be taken, though I cannot believe it was so intended as of a somewhat offensive character.

Lord Diplock in his lucid speech, at page 1131 wrote as follows:

My Lords, there is little that I should wish to add to what Lord Hailsham of St. Marylebone L.C. and my noble and learned friend, Lords Reid, have already said about the way the instant case was treated in the Court of appeal. It is inevitable in a hierarchical system of Courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal I sometimes thought the House of Lords was wrong in overruling me. Even since that time there ''have been occasions, of which the instant appeals itself is one, when, alone or in company, I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last words and if that last word, once spoken, is loyally accepted. The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnardby applying to it the label per incuriam. That label is relevant only to the right of an appellate Court to decline to follow one of its own previous decisions, not to its right to disregard a decision of higher appellate Court or to the right of a Judge of the High Court to disregard a decision of the Court of Appeal.

(underlining mine)

In Halsbury''s Laws of England, Fourth Edition, Vol. 26, para 557 at page (sic) the law on the subject has been summarised as follows:

House of Lords decisions-

The decision of the House of Lords upon questions of law are normally considered by the House to be binding upon itself, but because too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the proper development of the law the House will depart from previous decision when it appears right to do so, although it bears in mind the danger of disturbing (sic)etrospectively the basis upon which contact, property settlements and fiscal arrangements have been entered into and the especial need for certainty as to the criminal law. When a broad principle has been clearly decided by the House, the decision should not be weakened or frittered away by fine distinctions, and an erroneous decision of the House upon a question of law can be set right only by Act of parliament. A decision of the House of Lords occasioned by members of the house being equally divided is as binding on the House and all inferior tribunals as if it had been unanimous. Decisions of the House of Lords are binding on every Court inferior to it. It is not open to the Court of Appeal to advise Judges to ignore House of Lords decisions on the ground that they were decided per incuriam or are unworkable. But if there is no discernible ratio decidendi the Court of Appeal may adopt any reasoning which appears to it correct provided it supports the actual decision of the House.

(underlining mine)

On consideration of the aforesaid decisions, I am of the opinion that the precedents of English Courts now definitely tilt towards the view that inferior Court is not free to overlook or disregard the decision of the Superior Court on the principle of per incuriam judgment.

The Andhra Pradesh High Court in the case of Soloman Raju and Ors. v. Accountant General, A.P. (1983) LAB I.C. 230 had the occasion to consider this question and it observed as follows:

In my considered opinion the view of Seervai cannot be taken today to represent the law either in England or in India.

Further in paragraph 32, it has been held as follows:

Our duty under Article 141 of the Constitution is only to do or die though not giving up the right to ask how or why.

In fact the decision of the Supreme Court in B.M. Lakhani (supra) has settled this question so far as Courts in India are concerned.

On principle also if one tends to ignore the judgment of the Supreme Court levelling the same to be judgment rendered in per incuriam, the same shall be fraught with danger. This will result into post-mortem of the judgment of the Supreme Court and the binding effect of the judgment, which the Constitution makers clearly have in their mind while enacting Article 141 of the Constitution, shall be rendered meaningless. Article 141 of the Constitution has been incorporated to avoid conflicts of authority and to secure certainty and uniformity in the administration of justice. If principle of per incuriam is permissible to be invoked by the High Court, in relation to the judgment of the Supreme Court, in face of Article 141 of the Constitution of India, for the parity of reasons the same shall apply to the Courts exercising inferior jurisdiction than that of the High Court. In such a situation, even though the law is declared by the Supreme Court, its status shall be in a fluid state, and it shall be difficult for anybody to speak about the status of law on a particular subject. Thus the submission advanced, if accepted will tend to cause irreparable damage and make the position of law uncertain. I am of the considered opinion that it is not permissible for any Court, which obviously includes the High Court, but not the Supreme Court, to depart from the Law laid down by the Supreme Court by calling its decision as per incuriam. Decision rendered by the Supreme Court is binding on Subordinate Courts, however erroneous the construction may be. In fact, a Court exercising inferior jurisdiction cannot call a judgment of the Supreme Court to be erroneous. To many, it may sound frustrating to say that I say emphatically that if inferior Court is allowed to disobey a judgment of the Superior Court, the entire legal system shall collapse. Judicial system can work and can work alone if someone is allowed to have the last word and if that last word once spoken is loyally accepted. Judges are under an oath to uphold the Constitution and the law, hence it is my duty in face of Article 141 of the Constitution to do or die and accept the judgment loyally. Hence, I had competence to term the judgment of the Supreme Court in Kunj Bihari Mishra (supra) per incuriam decision.

I am further of the opinion that the decision of the Supreme Court in the case of Kunj Bihari Mishra (supra) is not in conflict with its earlier decision in the case, of H.C. Goel (supra). In the case of Kunj Bihari Mishra (supra) and all those cases referred to above in no uncertain term lay down the law that the disciplinary authority before disagreeing with the finding of the Enquiry Officer is to assign tentative rea(sic) son disagreeing with the findings of the Enquiry Officer. Further it provides for (sic)ing opportunity to the delinquent employees to satisfy the disciplinary authority that the finding of exoneration is just and proper and then to pass the order of punishment. In my opinion in the case of H.C. Goel (supra) what fell for consideration before (sic) the Supreme Court was the power of the disciplinary authority to differ from the finding recorded by the Enquiry Officer and (sic) consideration of its earlier authority including the decision in the case of State of Assam and Another Vs. Bimal Kumar Pandit, it held the disciplinary authority can differ from the finding of the Enquiry Officer. In the case of Kunj Bihari Mishra (supra) and other decisions following the said decision is in the field of procedure which the disciplinary authority has to follow while inflicting punishment after differing with the finding (sic)corded by the Enquiry Officer whereas H.C. Goel''s case (supra) hinges around the power of the disciplinary authority to difficult with the finding of the Enquiry Officer. I (sic) not find any conflict between the judgment of the Supreme Court in the case of Kunj bihari Mishra (supra) and H.C. Goel (supra) and both operate in different field.

Undisputedly, Petitioner was not (sic)en an opportunity to satisfy the disciplinary authority that the finding recorded by the Enquiry Officer is just and proper but has been given show cause notice against a proposed punishment only, which unders his order illegal in the eye of law.

Mr. Jha then points out that although the disciplinary authority had not given the Petitioner the opportunity to satisfy that the finding recorded by the Enquiry Officer was just and proper but had given the reasons for disagreement and in response to the show cause notice against the proposed punishment Petitioner had submitted his reply touching upon the mer(sic) of the findings and as such no prejudice was caused to the Petitioner and hence orders impugned are not fit to be quashed the ground of infraction of principles of natural justice. Reliance has been placed in a decision of this Court in the case of Prabhu Narayan Singh Vs. State of Bihar and Others and (sic) attention has been drawn to paragraph of the judgment, which reads as follows:

In the instant case, as a matter of fact, as noted at the outset, the Petitioner filed detailed and effective show cause in response to the notice dated 19.5.98 on 3.6.98. From perusal of the show cause, copy whereof is enclosed as Annexure 7 to the writ petition, it is evident that he dealt with all the charges including charge Nos. 17, 22 and 25. He cannot therefore say that he was not given any opportunity to satisfy the authority that the conclusions of the Enquiry Officer on those charges were correct and he suffered any prejudice which is the ultimate test) on account of non-communication of the reasons for the proposed disagreement. In the above premises of fact and law, the submissions of the counsel for the Petitioner on the first point are held to be without any merit and accordingly rejected.

My attention has also been drawn to the decision of the Supreme Court in the case of Union Bank of India Vs. Vishwa Mohan, to contend that mere not giving an opportunity to the delinquent employee to satisfy the disciplinary authority that the finding of the Enquiry Officer is just and proper itself shall not vitiate the order in the absence of any prejudice. In the said case it has been observed as follows:

The High Court was required to apply its judicial mind to all the circumstances and then from its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In para 31, this Court in Managing Director, ECIL has very rightly cautioned: (SCCp. 758)

The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts.

I do not find any substance in this submission of Mr. Jha. From a long line of decisions of the Supreme Court including the decision in the case of Kunj Bihari Mishra (supra) it is evident that the disciplinary authority before disagreeing with the finding of the Enquiry Officer, has to record tentative reason and communicate the same to the delinquent employee and provide him opportunity to satisfy that the finding recorded by the Enquiry Officer is just and proper, in my opinion, this requirement cannot be whittled down on the specious plea of prejudices. The decision of this Court in the case of Prabhu Narayan Singh (supra) relied on by Mr. Jha is clearly distinguishable. In the said case although reasons for disagreement was not communicated to the delinquent employee, still he filed detailed and effective show-cause and in that context it was held that no prejudice was caused, which is not the situation here.

In view of the decision of the Supreme Court in the case of State Bank of India and Others Vs. K.P. Narayanan Kutty, this point need not detain me much. In the said case it has been held as follows:

As is evident from the said paragraph, this Court having regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In para 19 of the judgment in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the Appellants that unless it is shown that some prejudice was caused to the Respondent, the order of dismissal could not be set aside by the High Court.

(underlining mine)

Mr. Jha lastly attempted to defeat the writ application on the plea that Respondents having complied the requirement substantially, the orders impugned are not fit to be struck down. Reliance has been placed on a decision of the Supreme Court in the case of State Bank of Patiala and others Vs. S.K. Sharma, and my attention has been drawn to paragraph 33 of the judgment, which reads as follows:

Now, in which of the above principles does the violation of Sub-clause (iii) concerned herein fall? In our opinion, it falls under Principles Nos. 3 and 4(a) mentioned above. Though the copies of the statements of two witnesses (Kaur Singh, Patwari and Balwant Singh were not furnished, ''the Respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The Respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross-examining the witnesses or to defend himself. The Trial Court has not found that any prejudice has resulted from the said violation. The Appellate Court has no doubt said that it has prejudiced the Respondent''s case but except merely mentioning the same, it has not specified in what manner and in what sense was the Respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all.

He submits that the theory of substantial compliance being available, the orders impugned cannot be said to be illegal. Reliance has been placed on a decision of the Supreme Court in the case of State of U.P. Vs. Harendra Arora and Another, and my attention has been drawn to paragraph 13 of the judgment, which reads as follows:

The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statues may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the enquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be Judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel v. Duke of Norfolk (1949) 1 All ER 109 (CA)] it was laid down by the Court of Appeal that the principle of natural justice cannot be produced to any hard-and-fast formulae and the same cannot be put in a strait (sic) as its applicability depends upon a context and the facts and circumstances of each case.

There is no difficulty in accepting (sic)ad submission of Mr. Jha that in act of many procedural provisions the of substantial compliance or the test prejudice can be invoked to Judge the by of an order but in my opinion when (sic)rement to follow a procedure is of (sic)ental nature which goes to the root matter, theory of substantial compli(sic) for that matter prejudice cannot be (sic) to uphold the validity of the order. case of S.S. Sharma (supra) the delinquent employee was not given the copy of the statement of the witnesses but he was allowed to peruse the same and on that situation the theory of substantial compliance was invoked. Further in the Harendra Arora (supra) the delinquent employee in the absence of the enquiry report filed his show cause and on consideration whereof order of dismissal was passed and it was not the plea of the delinquent employee that in absence of the enquiry report he could not submit an effective show cause. In such a situation the Supreme Court has invoked the theory of substantial compliance and prejudice to uphold the order of dismissal. Here in the present case as stated earlier the finding of guilt had been recorded by the disciplinary authority disagreeing with the finding of the Enquiry Officer without giving any opportunity to the Petitioner. Furnishing opportunity to the delinquent to satisfy that the finding of exoneration recorded by the Enquiry Officer is just and proper is fundamental in nature, breach whereof shall vitiate the ultimate decision and the theory of substantial compliance of prejudice cannot be invoked and the authorities relied on are clearly distinguishable.

Having held that the disciplinary authority had passed the order without following the principles of natural justice, I have no option than to quash his order as also the order of the appellate authority. However, this will not preclude the Respondents in proceeding against the Petitioner from the stage subsequent to the submission of the enquiry report in accordance with law bearing in mind the observations made above.

In the result, the writ application is allowed, impugned orders are quashed with liberty to the Respondents to proceed in the manner indicated above. No costs.