The main legal point established in the judgment is that the amendment to Art.311(2) by the 42nd Amendment, which dispensed with the requirement of a second notice before imposing a penalty, did not have retrospective operation and did not affect rights accrued prior to the amendment.

1. Third January, 1977 is the crucial date, the date when Art.311(2) was amended by the 42nd Constitution Amendment Act, 1976. Till then, "no civil servant could be dismissed, or removed or reduced in rank until he was given a reasonable opportunity of making representation on the penalty proposed." After the amendment, "it shall not be necessary to give such person an opportunity of making representation on the penalty proposed". The question for consideration is whether this amended provision dispensing with the necessity of issuing a second show cause notice before the penalty is imposed applies to disciplinary proceedings initiated earlier, but were pending on the date of the amendment. This problem arises on the following facts and under the following circumstances.

2. The appellant was a Sub Post-master in the Post and Telegraphs Department. There were serious allegations of grave mis-conduct, including mis-appropriation of government funds against him. He was suspended pending disciplinary proceedings on 28-6-1974 and charges were framed against him on 12-12-1975 by the disciplinary authority, the Superintendent of Post Offices. The appellant denied the charges. An Assistant Superintendent of Post Offices was appointed as the Inquiring authority. He conducted an enquiry and submitted his enquiry report on 11-3-1979. He found that the appellant was guilty of the main charges and thereafter the appellant was dismissed from service by order dated 31-3-1979 with immediate effect. An appeal filed before the Director of Postal Services was dismissed by order dated 9-1-1980. The appellant challenged the dismissal order (Ext. P8) and the appellate decision (Ext. P10) under Art.226 of the Constitution. The writ petition was dismissed and hence this appeal.

3. It is admitted that a second notice against the penalty sought to be imposed was not issued to the appellant. He, therefore, contended that there was a violation of the provisions of Art.311(2) of the Constitution and the dismissal order was wrong and unconstitutional. The dismissal order was issued after the amendment came into force. But the disciplinary proceedings were pending when the amendment was made on 3-1-1977. It is, therefore, contended that the amendment effected from 3-1-1977 did not affect the disciplinary proceedings initiated against the petitioner prior to the said amendment and that he was entitled to protection of Art.311 (2) as it stood prior to the amendment. This plea was met by the Department with the contention that the procedural requirement under Art.311 (2) has been dispensed with by the 42nd amendment which came into effect from 3-1-1977 and that the amendment is retrospective in operation and the appellant was bound by the law as it stood on the date when the dismissal order was passed in 1979 when the amendment had already come into force. A learned single judge of this Court, M. P. Menon, J. rejected the contention stating thus:

"The second opportunity rule in Art.311 (2), as it stood before 1977, was a matter of procedure. Its thrust was against the imposition of major penalties except in accordance with the procedure of giving the delinquents an opportunity to show cause against the specific penalty proposed, besides an opportunity of being heard at the enquiry stage. It may be possible to suggest that the provisions imposed a disability on the disciplinary authority to impose major penalties and conferred corresponding rights on delinquent Government servants, but the nature of the 'right' was essentially procedural. If this is the true position, the rule against retrospectivity can have little application to the second opportunity rule.

Even otherwise the new proviso to Art.311 (2) introduced by the Forty-second Amendment states in express terms that "it shall not be necessary" to give any opportunity of making representation against the penalty proposed. The same kind of negative language is used in the amended sub-rule (4) of