1. This is a petition under Article 226 of the Constitution by a Sub Deputy Collector and Anchal Adhikari of the Government of Orissa, challenging the validity of the order of the Government, in RevenueDepartment Resolution No. Con-l/58-21-R (C.S.) dated 25-1-1958, dismissing him from Government service.
2. While the petitioner was working as Anchal Adhikari at Kudala from 16-12-1952 to 27-8-1954 he was placed under suspension on charges of corruption and misconduct in the discharge of his official duties. His case was referred to the sole member Tribunal (hereinafter referred to as the Tribunal) under the provisions of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 (hereinafter referred to as the Rules). The said Tribunal framed six charges against him and proceeded with the enquiry in respect of all these charges.
At the commencement of the enquiry a senior officer of the Revenue Department was co-opted by the Tribunal as an assessor to assist in enquiry. The assessor worked with the Tribunal till the recording of the entire evidence against the delinquent public servant, but when the petitioner examined witnesses in his defence the assessor's assistance was dispensed with. The enquiry was therefore completed by the sole member of the Tribunal and his findings were submitted to Government who accepted the same and dismissed the petitioner from service.
3. The sole question for consideration in this application is whether, after the Tribunal had once co-opted an assessor to assist it during the departmental enquiry, it was legal for the Tribunal to dispense with the assessor in the middle of the enquiry and complete the same un-aided by such an assessor. The petitioner, while submitting his explanation to the Government, made a grievance of this procedure adopted by the Tribunal, and the Government asked him to show how he was prejudiced by the absence of the assessor at the later stages of the enquiry. The petitioner gave some explanation which was, however, not accepted by the Government.
4. The decision of this question depends on a construction of the relevant provisions of the Rules in the light of well-known principles of statutory construction.
5. The Rules were made by the Government of Orissa on 21-9-1951 with a view to supplement the existing provisions relating to departmental enquiries against the delinquent Government servants, charged with corruption or other acts of misconduct. The Rules provide for the Constitution of an independent Tribunal to conduct the departmental proceeding and submit its recommendations to the Government which would pass final orders. No appeal was provided against the decision of the Government. Under Rule 2 (b) the expression Tribunal was defined as the 'Administrative Tribunal to be constituted by the Government under the provisions of Rule 3'. Rule 3 as it stood prior to the subsequent amendments was as follows :
'3 (1) The Tribunal shall consist of three members and one of whom shall be a member of the Board of Revenue, another a judicial officer who is or was of the status of a District Judge, and the third the Head of a Department.
(2) The members shall be nominated by the Governor for such period and for such classes of cases as the Government may deem proper.
(3) The Governor shall nominate one of the three members of the Tribunal as its Chairman.
4. Subject, to the directions of the Governor the Tribunal shall co-opt an assessor to assist it. The assessor shall be a departmental official higher in rank in the Department to the official charged. In no case shall he be an officer below gazetted rank or that of the Head of a District Office in any department :
Provided that where in the same transaction more than one delinquent official is involved thestatus of the assessor shall be determined after consideration of the status of the highest delinquent official whose conduct is under enquiry.' By Notification No. 277-Cab dated 21-3-1953 Rule 3 was amended as follows :
'For the existing Rule 3 the following new rule shall be substituted :
3 (1) The Tribunal shall consist of such number of members as may be determined from time to time by the Governor.
(2) The number of members as the case may be shall be nominated by the Governor.
(3) In cases where the Tribunal consists of more than one member the Governor shall nominate one of the members to be its Chairman.
(4) Subject to the direction of the Governor the Tribunal shall co-opt an assessor to assist it. The assessor, shall be a departmental officer higher in rank in the Department to the official charged. In no case shall he be an officer below gazetted rank or that of the Head of a district office in any department :
Provided that where in the same transaction more than one delinquent official is involved the status of the assessor shall be determined after consideration of the status of the highest delinquent official whose conduct is under enquiry.'
By virtue of this amendment Government took power to constitute a single member Tribunal, instead of having three members, as under the old Rule 3. But even under this new Rule, the co-opting of an assessor was made mandatory, subject to the directions of the Governor. It was in exercise of the powers conferred by Sub-rule (4) of Rule 3 as amended aforesaid, that a Revenue Officer was co-opted as an assessor to assist the Tribunal while conducting the proceedings against the petitioner. While the proceedings were pending before the Tribunal, the Government of Orissa in Cabinet Deportment notification No. 3326 dated 25-11-1955 made a further amendment to Rule 3 as follows.
'The 25th November 1955.
No. 3326-Can : In exercise of the powers conferred by the proviso to Article 309 of the Constitution the-Governor of Orissa is pleased to direct that the following amendment shall be made in the Disciplinary Proceedings (Administrative Tribunal) Rules 1951, namely --
In the said Rule:
In Sub-rule (4) of Rule 3 for the words 'the Tribunal shall co-opt an assessor' the: words 'the Tribunal may co-opt an assessor' shall be substituted.' Apparently, the object of this amendment was to make it discretionary for the Tribunal either to co-opt an assessor to assist it, or not to have an assessor. But this notification came into force only on 25-11-1955 and there were no express words in It to indicate that it was given retrospective effect so as to affect pending departmental proceedings.
6. The learned Advocate General contended that notwithstanding the absence of express words in the said notification, retrospective effect should be given to the amendment inasmuch as the co-opting of an assessor was a matter of procedure and it was well settled that procedural amendments have prima facie retrospective effect. Mr. G. K. Misra on behalf of the petitioner, on the other hand, contended that the co-opting of an assessor was not a mere matter of procedure but affected the jurisdiction of the Tribunal and consequently the amendment should not be given retrospective effect so as to affect pending proceedings.
7. A careful scrutiny of Rules 2 and 3 would show that the Tribunal is a body distinct from the assessor. The constitution of the Tribunal is dealt within Sub-rule (1) of Rule 3. Under Sub-rule (4) of that Rule an assessor is co-opted to 'assist' the Tribunal, That sub-rule further provides that he should be departmental officer higher in rank in the Department than the delinquent public servant concerned, Tha-impression which the Government appears to have about the functions of an assessor may be gathered from their letter No. 1160 AT dated 29-10-1958, addressed to the petitioner which reads as follows:
'With reference to the last paragraph 'of page 62 of your explanation dated 16-9-1956, I am directed to say that the assessor appointed under the Disciplinary Proceedings (Administrative Tribunal) Rules as only to advise the Tribunal at his request on any particular point regarding the procedure to be followed or rules prevalent in the Department to which, the delinquent officer belongs.
I am therefore to request you kindly to specify in what manner you have been prejudiced by the absence of the assessor.'
8. If the view expressed in this letter, to the effect that the assessor was required only to 'advise the Tribunal at his request on any particular point regarding the procedure to be followed, or the rules prevalent in that department to which the delinquent official belongs' be taken as correct, then there may be some justification for the argument of the learned Advocate General that the provision in the Rules for the co-option of the assessor deals with a matter of procedure. But I am unable to find support for the aforesaid view of Government in the language of the Rules. Sub-rule (4) of Rule 3 says that 'the Tribunal shall co-opt an assessor to assist it.'
No limiting words are found, restricting the scope and the nature of the assistance that the assessor is required to give. It is not correct to say that the assistance is to be limited solely to matters of procedure to be followed or to the rules prevalent in the Department to which the delinquent official belongs. By giving a natural construction to the words in the aforesaid sub-rule I must hold that the 'assistance' contemplated will include not only assistance regarding the procedure to be followed in conducting the enquiry, but also assistance in assessing the evidence of witnesses at its proper worth, in giving proper weight to the documents that may be proved during the enquiry and also arriving at a finding regarding the guilt or otherwise of the officer concerned.
The value of the assistance given by the assessor depends on his experience and it would be difficult to say to what extent he would influence the findings of the Tribunal. That would depend very much on the experience and receptive capacity of the Tribunal. Thus, it may so happen that a member of the Tribunal, though very senior in rank, has not much experience of judicial work especially in weighing oral evidence and in sifting truth from falsehood. For such a member the assistance of a senior officer of the Department concerned may be invaluable and may even materially affect the findings.
The petitioner can therefore reasonably contend that as the Rules stood at the commencement of the enquiry, he could compel the Tribunal to take the assistance of an assessor and that right cannot be taken away by any subsequent amendment unless that amendment is expressly given retrospective effect. In my opinion, once an assessor is co-opted by the Tribunal his influence on its decision is bound to be effective and he becomes, for all practical purposes, a part of the Tribunal itself, though, strictly speaking, in the eye of law he is a distinct entity. I am unable to accept the Advocate General'scontention that Sub-rule (4) of Rule 3 deals with a matter of procedure.
In substance, that sub-rule affects the composition of the Tribunal and the amendment should not be given retrospective effect unless there are express words to the effect or such an inference followed by necessary implication. Government were fully aware when they amended Sub-rule (4) of Rule 3 on 25-11-1955 that many proceedings against public servants were pending before the Tribunal, in which assessors had been co-opted under the said Rule; and if they wanted that these pending proceedings also should be affected, they would surely have said so in express terms in the Notification itself.
9. The nearest parallel case is reported in (1920) 2 Ch 377, Re Hale's Patent, cited at page 228 of Maxwell, Tenth Edition. There it was held that Section 8 of the Patents and Designs Act 1919 which substituted 'the Court' for the 'Treasury' as the Tribunal to determine the compensation payable for the use of a patent by a Government Department and altered the nature of the rights of the Crown and the patentee, was not retrospective so as to affect pending proceedings. The ratio of the decision seems to be that where both rights and procedural matters are dealt with together, the intention of the Legislature may well be that the old rights are determined by the old procedure and that only the new rights' created under the substituting section are to be dealt with under the new procedure.
Under Sub-rule (4) of Rule 3, as it stood at the time, the petitioner had a right to compel the Tribunal to take the assistance of an assessor while holding a departmental enquiry. This, as I have pointed out, was a valuable right which might materially affect the ultimate findings and is not a matter of procedure only. The mode of availing of the assistance to be rendered by the assessor may well be a matter of procedure. But Rule 3 deals with rights as well as procedure, and the principle laid down, in the aforesaid English decision may apply here and it will not be proper to give retrospective; effect to the amendment made in 1955 causing serious prejudice to the petitioner.
10. Mr. Misra further contended that even if, under the amended Sub-rule (4) of Rule 3 the co-opting of an assessor may be discretionary with the Tribunal, yet once an assessor is co-opted at the commencement of the departmental enquiry his assistance cannot be dispensed with until the enquiry is completed and the findings are sent to the Government. According to him, the discretion must be exercised at the commencement of the enquiry and it is not open to the Tribunal to change its mind during the middle of the enquiry. There is considerable force in this contention, but it is not necessary to decide this question here in view of my finding to the effect that the case of the petitioner is governed by old Sub-rule (4) of Rule 3.
11. I would therefore hold that after having commenced the enquiry against the petitioner with the help of an assessor, the Tribunal had no jurisdiction to dispense with his assistance at a later stage. The findings of the Tribunal must therefore be held to be invalid and the order of dismissal based on these findings must also be held to be invalid and must be set aside. The Departmental enquiry against the petitioner is restored, to the stage; at which it was prior to the withdrawal of the assistance of the assessor and the Tribunal or its successor in office is directed to complete the enquiry with the aid of that assessor and dispose of the same according to law. If the services of that assessor are no longer available, the Tribunal may select another assessor and hold the enquiry afresh. This direction, however, is not in any way intended to fetter the discretion of the Government to drop the entire proceeding if they are so advised.
12. The petition is allowed with costs. Hearing fee is assessed at Rs. 100/- (Rupees one hundred only).
G.C. Das, J.
13. I agree.