Full Text
HIGH COURT OF DELHI
Date of Decision: 14th November, 2024
K.A. GUPTA .....Petitioner
Through: Mr. Apoorv Singhal, Mr. R.
Venktaraman, Mr. Tanuj Agarwal and Mr. Mohd.
Ashfaq, Advocates.
Through: Mr. Bhagwan Swarup Shukla, CGSC
Ms. Madhurima Tatia, Advocate for R-3.
JUDGEMENT
JYOTI SINGH, J. (ORAL)
JUDGMENT
1. This writ petition has been preferred on behalf of the Petitioner seeking quashing of the Revisional Order dated 08.05.2001, Appellate Order dated 27.05.1996, Part-II Order dated 21.06.1996 and order dated 08.11.1994 imposing penalty on the Petitioner. Petitioner has also claimed relief of reinstatement with consequential benefits with a direction to treat the period of suspension ‘on duty’ with consequential pay and allowances for the said period.
2. Case of the Petitioner as set out in the writ petition is that Petitioner joined Cantonment Fund Service at Meerut Cantt. as Junior Engineer (Civil) (JE) in the year 1977 and was promoted as AE (Civil) in October, 1991. There was no complaint in the entire period against the Petitioner of any nature whatsoever. On 17.03.1993, Petitioner was placed under suspension in contemplation of disciplinary proceedings and this was followed by issuance of charge sheet dated 27.05.1993, wherein allegations were that during Petitioner’s tenure as AE (Civil) excess consumption of stores was found apart from incorrect measurements of the work done, which itself was of a poor quality and that Petitioner misappropriated the stores; did not maintain proper records and stock books; made bogus entries; and issued stores far in excess of actual requirements etc.
3. It is averred in the petition that vide letter dated 10.08.1993, a Committee was constituted by Respondent No. 2 under Rule 14 of Cantonment Account Code, 1924 to inquire into the suspected loss of stores in the Cantonment in the years 1991-92 and 1992-93. On 07.06.1993, Petitioner wrote to the Cantonment Executive Officer (‘CEO’), his Disciplinary Authority and denied the charges levelled against him. He also sought permission to lead evidence and cross-examine the witnesses cited in the list of witnesses along with the charge sheet. By an order dated 03.07.1993, CEO appointed Lt. Col. R.C. Joshi as the Inquiry Officer (‘IO’) to inquire into the charges. Inquiry commenced on 01.11.1993 and concluded on 27.06.1994.
4. On 30.03.1994, the Committee constituted under Rule 14 submitted its report, largely fixing the responsibility of the alleged irregularities on AE (E/M), Sh. Govind Ram Kukreja and Petitioner’s dereliction was limited to non-entry of receipt of one hammer in the stores and lack of control and supervision over his JE, who was a probationer. As per the Petitioner, an order was passed by Respondent No. 2 directing that the inquiry report rendered by the IO in the departmental inquiry will have no effect since another Committee had been constituted to make investigations and its findings will hold the field.
5. It is stated that Lt. Col. Joshi, the IO, however, rendered his report and the same was furnished to the Petitioner, who submitted his representation dated 11.10.1994 pointing out various defects in the report and challenging the findings. Instead of examining the objections, the CEO imposed the penalty of dismissal from service w.e.f. 02.11.1994, vide order dated 08.11.1994. Petitioner filed an appeal against the penalty order on 01.12.1994 which was partially allowed by order dated 27.05.1996 and penalty of dismissal was reduced to reduction of pay by two stages for a period of two years with the effect of postponing the future increments. Suspension period was treated as ‘dies non’ and pay and allowances were restricted to subsistence allowance for the said period. To give effect to the Appellate Authority’s order, CEO issued Part-II order No. 401 dated 21.06.1996 for reinstating the Petitioner and giving effect to the reduced penalty. Revision filed against the said order was dismissed on 08.05.2001 by the competent authority in the Ministry of Defence.
6. Learned counsel for the Petitioner assails the impugned orders including the revised penalty inter alia on the ground that the disciplinary inquiry was initiated on the basis of findings of a Committee constituted by the then President, Cantonment Board, comprising of Col. V.K. Azad and Dinesh Goel, for carrying out a surprise check of the Central and Section Stores of Cantonment Board, Meerut. Sh. A. Aruldhas GE (South), Meerut was also detailed for carrying out physical verification of certain works executed under the authority of the Board. Committee detected certain shortages and other alleged irregularities such as excess measurements etc. Another expert team was constituted by GOC-in-C for investigation into the matter and this intimation was given to the President, Cantonment Board vide letter dated 24.05.1993 with a further direction that any action taken by the Board should be held in abeyance until the Special Team rendered its report. Notwithstanding this direction, the Board on its own proceeded with the disciplinary action and charge sheeted the Petitioner. It is urged that the trigger of the departmental inquiry was the preliminary investigation report rendered by the Committee comprising of Dinesh Goel and Col. V.K. Azad wherein A. Aruldhas also played an important role, yet they were first nominated as prosecution witnesses and later as members of the Board for considering the inquiry report and deciding the punishment.
7. Learned counsel submits that perusal of the list of witnesses and the inquiry report leaves no doubt that Col. V.K. Azad, Dinesh Goel and A. Aruldhas were prosecution witnesses and that they were cross-examined by the defence. Further, minutes of Board Resolution dated 02.11.1994 would evidence that all the 03 officers were part of the Board which took a decision to accept the report of the IO and impose the penalty of dismissal on the Petitioner. In fact, all the 03 officers voted for the Resolution while there were 05 others who had voted against the Resolution, as they had to support their stand taken in the inquiry in favour of the Respondent. This according to learned counsel vitiates the entire inquiry, as no person who is a witness in a case can either initiate disciplinary proceedings or pass an order of punishment. It is pointed out that this stand was categorically taken by the Petitioner in his appeal dated 01.12.1994 before the Appellate Authority but no heed was paid to this crucial issue, which goes to the root of the matter and renders the inquiry void.
8. Learned counsel for Respondent No. 3, per contra, denies that Col. V.K. Azad, Dinesh Goel and A. Aruldhas were prosecution witnesses and asserts that these were witnesses produced by the defence. Without prejudice, it is further contended that assuming that the 03 officers were prosecution witnesses, this has not prejudiced the Petitioner since the IO has primarily proceeded on documentary evidence and the witnesses did not have much role. The ultimate findings of the IO, which formed the basis of the punishment imposed by the Board as a Disciplinary Authority, were predicated largely on documentary evidence.
9. Heard learned counsels for the parties and examined their rival contentions.
10. Facts are not disputed to the extent that pursuant to disciplinary proceedings initiated against the Petitioner vide charge memorandum dated 27.05.1993, Petitioner was found guilty of Articles of Charges-I, II and IV by the IO. Basis this report, the Disciplinary Authority imposed the penalty of dismissal from service vide order dated 08.11.1994. The period of suspension was treated as ‘dies non’ and only subsistence allowance was held to be payable for this period. In the appeal filed by the Petitioner, however, the Appellate Authority reduced the penalty from dismissal to reduction of pay by two stages for a period of two years with the effect of postponing the future increments and directed reinstatement of the Petitioner with immediate effect as JE (Civil).
11. Petitioner has flagged a crucial issue for examination by this Court. At the cost of repetition, it is urged that 03 officers namely, Col. V.K. Azad, Dinesh Goel and A. Aruldhas were initially a part of the Committee which conducted the preliminary investigation and it is this report which triggered the disciplinary proceedings. Thereafter, all the 3 officers were nominated as prosecution witnesses during the inquiry proceedings and the matter did not rest here as all the 3 were subsequently a part of the Board, which considered the findings of the IO and decided to impose the penalty of dismissal. Beyond a trace of doubt the three officers had adorned 3 hats and the question is whether they could legally play the 3 roles in the same investigation/inquiry and does go to the root of the matter. I am therefore considering this as the first and foremost issue because if this is decided in favour of the Petitioner, the entire inquiry proceeding will vitiate and it will be unnecessary to delve into any other challenge to the proceedings and/or the penalty order.
12. It is no longer res integra that a person who is a witness in a case can neither initiate the disciplinary proceedings nor pass an order of punishment. Constitution Bench of the Supreme Court in State of U.P. v. Mohammad Nooh, 1957 SCC OnLine SC 21, negated the plea of the State that no illegality can be found in a procedure where Presiding Officer of a Tribunal appears as a witness and decides the same case. Relevant paragraph is as follows:-
of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”
13. The legal principle that a person cannot be a witness and a disciplinary authority was reiterated and reaffirmed by the Supreme Court in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co- Education) Higher Secondary School and Others, (1993) 4 SCC 10. This issue again came up before the Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh and Others, (2010) 10 SCC 539, where the Commandant appeared as a witness and proved the allegation of disobedience of his order of imposition of punishments. After appearing as a witness in the inquiry, he passed the order of dismissal pursuant to the said inquiry. Issue was agitated by the Appellant before the concerned authorities but was not looked into. The Supreme Court held that an order in violation of principles of natural justice may be void in the facts and circumstances of the case and observed that the initiation of disciplinary proceedings against the appellant and conclusion thereof by imposition of punishment by the Commandant, who had himself been a witness, was in flagrant violation of principles of natural justice and stood vitiated and therefore, all consequential orders passed in appeal etc. will become inconsequential. The Supreme Court emphasised on the legal maxim nemo debet esse judex in propria causa i.e. no man shall be a judge in his own cause and held that this principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof is treated as violation of principles of natural justice. I may refer to the relevant passages as follows:- “23. A Constitution Bench of this Court in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86] rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case, observing as under: (AIR p. 91, para 7) “7. … The two roles could not obviously be played by one and the same person. … the act of Shri B.N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”
24. A similar view was taken by this Court in Rattan Lal Sharma v. Dr. Hari Ram (Co-education) Higher Secondary School [(1993) 4 SCC 10: 1993 SCC (L&S) 1106: (1993) 25 ATC 449] observing that a person cannot be a witness in the enquiry as well as the enquiry officer.
25. The legal maxim nemo debet esse judex in propria causa (no man shall be a judge in his own cause) is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof is treated as a violation of the principles of natural justice. (Vide Secy. to Govt., Transport Deptt. v. Munuswamy Mudaliar [1988 Supp SCC 651: AIR 1988 SC 2232], Meenglas Tea Estate v. Workmen [AIR 1963 SC 1719] and Mineral Development Ltd. v. State of Bihar [AIR 1960 SC 468].)
26. This Court in A.U. Kureshi v. High Court of Gujarat [(2009) 11 SCC 84: (2009) 2 SCC (L&S) 567] placed reliance upon the judgment in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417: 1986 SCC (L&S) 88] and held that no person should adjudicate a dispute which he or she has dealt with in any capacity. The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision.
27. The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459: 1973 SCC (L&S) 580: AIR 1973 SC 2701] and Tilak Chand Magatram Obhan v. Kamala Prasad Shukla [1995 Supp (1) SCC 21: 1995 SCC (L&S) 251].)
28. In Arjun Chaubey v. Union of India [(1984) 2 SCC 578: 1984 SCC (L&S) 290: AIR 1984 SC 1356] a Constitution Bench of this Court dealt with an identical case wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the Court should deny the relief to the employee, even if the Court comes to the conclusion that the order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Anyone who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The Court further held that in such a case it could not be considered that the employee did not deserve any relief from the Court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it.
29. Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an enquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null and void.
30. In the instant case, Shri Arvind Kumar Upadhyaya, IPS, Commandant, 30th PAC Battalion, Gonda appeared as a witness and proved the disobedience of his orders of imposition of punishment, first as of punishment drill and subsequently of confinement to a cell. However, after appearing as a witness in the enquiry, he also passed the order of punishment i.e. dismissal of the appellant from service on 8-4-2003. This issue has been agitated by the appellant throughout but none of the authorities or the courts below had taken it into consideration. The appellant has made crystal clear pleadings before this Court also in this regard and the same have not been denied in the counter-affidavit by the respondents, rather a very vague and evasive reply has been filed stating that the disciplinary proceedings had been concluded strictly in accordance with law.
31. An order in violation of the principles of natural justice may be void depending on the facts and circumstances of the case. (Vide Jagdambika Pratap Narain Singh v. CBDT [(1975) 4 SCC 578: 1975 SCC (Tax) 356: AIR 1975 SC 1816], Maneka Gandhi v. Union of India [(1978) 1 SCC 248: AIR 1978 SC 597], Krishan Lal v. State of J&K [(1994) 4 SCC 422: 1994 SCC (L&S) 885: (1994) 27 ATC 590], State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364: 1996 SCC (L&S) 717: AIR 1996 SC 1669], Union of India v. Mustafa & Najibai Trading Co. [(1998) 6 SCC 79] and Vishnu Dutt v. State of Rajasthan [(2005) 13 SCC 592].) xxx xxx xxx
33. We are of the considered opinion that the initiation of disciplinary proceedings against the appellant and the conclusion thereof by the imposition of the punishment by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural justice and thus, stood vitiated. “Principles of natural justice are to some minds burdensome but this price—a small price indeed—has to be paid if we desire a society governed by the rule of law.” All other consequential orders passed in appeal, etc. remained inconsequential. More so, a protest/disobedience against an illegal order may not be termed as misconduct in every case. In an appropriate case, it may be termed as revolting to one's sense of justice. In view of the above, we are of the considered opinion that the protest raised by the appellant against the punishment imposed for his absence could not give rise to a cause of action for initiating the disciplinary proceedings.”
14. Applying the aforesaid principle elucidated by the Supreme Court and the legal maxim that no man shall be a judge in his own cause, this Court finds merit in the submission of the counsel for the Petitioner that the inquiry stands vitiated on the ground that the three officers who were prosecution witnesses in the inquiry were also part of the Board which was to decide whether or not to accept the inquiry report and take a decision on the punishment and infact voted in favour of the Resolution to award the penalty of dismissal. Contention of the learned counsel for Respondent NO. 3 that these officers were not prosecution witnesses is completely belied by the list of witnesses which shows that Dinesh Goel, A. Aruldhas and Col. V.K. Azad were the witnesses for the prosecution as SW-1, SW-2 and SW-
4. For ready reference, list of witnesses is scanned and placed below:-
15. This position is also fortified from the report of the IO in which it is clearly brought out that defence counsel cross-examined these three officers and the defence witnesses were different officers namely, Shri Janki Nath Suri, Shri Deepak Allen and Shri Rahul Dua. It is also pertinent to note that the entire inquiry report is replete with references to these three prosecution witnesses and is largely predicated on the report submitted by them. This is manifest from the following portions of the inquiry report which I quote only illustratively:- “Charge No. I (a) During the year 1991-92 & 1992-93, the Cantt Board carried out various construction works through Shri K.A. Gupta, the charged official. It was found that most of the work is of sub-standard quality and estimates were blown up resulting in huge financial loss to the Cantt. Board. The report of Shri Aruldhas, Garrison Engineer, is cited in support of the charge. … Charge II … (b) The Preliminary Investigation Report submitted by Col VK Azad and Shri Dinesh Goel has been cited in support. Special reference is made to the notes No 1,2,4,5,6,7,[8] & 9 of the said report. … Charge III … (b) The report of Shri Aruldhas, Garrison Engineer is cited in support. It is argued that para 3(a),(B),(C),(1)(i) to (iii), (D),(E),(F),(G) and (H) clearly show large number of procedural lapses and discrepancies/variations in measurements between the work said to have been done and the work actually carried out at site. … Charge IV … (b) The Preliminary Investigation Report submitted by Col VK Azad and Shri Dinesh Goel against the charged official was a confidential document. …
THE CASE FOR THE DEFENCE … The Defence Counsel cross-examined the following witnesses:a) Shri Dinesh Goel, Elected Member;-, Cantt Board. (b) Shri Aruldhas, Garrison Engineer, Ex-officio Member, Cantt Board.
(c) Shri Raj Kumar Gupta, Elected Member, Cantt Board.
(d) Col VK Azad, Nominated Member, Cantt Board.
(e) Shri B Chandramouli, ex-Joint CEO, Cantt Board was produced for cross-examination but the learned Defence Counsel declined to do so. The following witnesses were produced in defence of the charged official:- (a) Shri Janki Nath Suri, Elected Member, Cantt Board. (b) Shri Deepak Allen, Elected Member, Cantt Board.
(c) Shri Rahul Dua, Ex-CEO Cantt Board, Meerut Cantt.
ANALYSIS OF EVIDENCE
(i) Regarding the validity of the appointment of Shri Aruldhas for ground check of the public works, the Court Judgement referred to above should provide the answer. During the cross-examination of Shri A Aruldhas, the C.O. & the learned Defence - Counsel were provided ample opportunity to contradict any evidence provided by the report of Shri A. Aruldhas. Regarding the objection that the report of Shri A. Aruldhas does not find the approval of the Board, it is mentioned that this document forms part of the Charge Sheet approved by the Cantt Board vide Resolution No. 36 dated 19-5-93 & hence deemed to have been approved by the Board. (n) Tho prosecution has relied on documentary evidence. The prosecution witnesses were produced by the P.O. for the cross-examination by the Defence Counsel as per the request of the C.O. dated 7-6-93. The documents marked confidential were supplied to the C.O. and are on record with his signatures acknowledging receipt. Ample opportunity has been provided to the C.O. to bring forth any evidence affecting the charges levelled against him. (o) The present Inquiry is a follow-up action based on the Preliminary Inquiry ordered to establish a prima-facie case against the C.O. Charge-I Shri K.A. Gupta, Assistant Engineer (Civil) while functioning as such is alleged to have committed gross misconduct, irresponsibilly and loss of confidence, causing loss to the Cantt. Board in respect of the work undertaken during 1991-92 & 1992-93 was conducted by Garrison Engineer (South) who is an ex-officio- Member of the Cantt Board. He was accompanied to the sites by the Officiating Cantt Executive Officer, Shri U Chandramauli and the JE, Shri Vineet Gupta. The Garrison Engineer who is equivalent to an Executive Engineer has, in his report, brought out serious drawback by way of excess consumption of stores, incorrect measurements of works done and poor quality of work. The defence has not produced any witnesses to challenge or disprove the observations made by the Garrison Engineer in his report. The charged official has made no oral statement. On the other hand, during his crossexamination by learned Defence Counsel, the witness, Shri Aruldhas, Garrison Engineer has stood by the observations made by him in his submitted to the Cantt Board. In his written statement dated 27-12-93 the charged official has replied to the observations made in the report of the Garrison Engineer. Giving the C.O. the benefit of doubt, the observations NO.(A)(1), No 3(C) (II), No 3(G) (b),3(G) (e) & 3(G)(f) are not being considered. He has, however, failed to provide satisfactory evidence to disprove other irregularities pointed out in the report. … Charge II … The prosecution has relied on the report of the Surprise Check Team consisting of Col VK Azad, Nominated Member Cantt Board and Shri Dinesh Goel, Elected Member, Cantt. Board. Both these members, when cross-examined by a defence, confirmed their findings. The prosecution has relied mainly on the report of Col VK Azad and Shri Dinesh Goel. Note I, 4,5,6,7,[8] & 9 which bring out procedural irregularities, falsification of store accounts, over-isssue and thus loss of stores & attempt at fraud have not been rebulled by the charged official. Even for explaining the charge levelled against him through Note No 2, he has made no oral statement, produced no witnesses and has just attached an annexure to his Written Statement dated 27-12-73, of the reply he is alleged to have submitted to the President, Enquiry Committee, constituted under Rule 14 of the Cantt. Accounts Code. Even in that a number of issues are made on chits which were never produced in evidence.”
16. It is thus manifestly clear that the three officers namely, Col. V.K. Azad, Dinesh Goel and A. Aruldhas, were prosecution witnesses in the inquiry and the report rendered by them was a pivotal document leading to the allegations being proved. It is also crystal clear that all the three were cross-examined by the defence. Having played a significant role as witnesses for the Respondent and being authors of preliminary investigation report against the Petitioner, it is absolutely inconceivable that these three officers could be a part of the Board which was convened to decide whether the inquiry report with its findings against the Petitioner was to be accepted and if so what would be the quantum of punishment that was to be awarded. Minutes of the Resolution are on record and clearly show that all the three officers were present in the meeting and voted in favour of the Resolution to impose punishment of dismissal. Relevant part of the resolution is as follows:-
17. In view of the above, as rightly contended by the Petitioner, the inquiry stands vitiated. There is yet another facet to this case. It needs no emphasis that when a prosecution witness acts as a Disciplinary Authority, existence of an element of bias cannot be ruled out as he/she who supports the case of the prosecution will be favourably disposed towards the prosecution. The decision to agree/disagree with IOs findings as also the quantum of punishment will be coloured with a conviction that the charged officer is guilty of the charges levelled and this would be enough to render the entire inquiry proceedings void, as held in Mohd. Yunus Khan (supra), and I quote:- “27. The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459: 1973 SCC (L&S) 580: AIR 1973 SC 2701] and Tilak Chand Magatram Obhan v. Kamala Prasad Shukla [1995 Supp (1) SCC 21: 1995 SCC (L&S) 251].)
28. In Arjun Chaubey v. Union of India [(1984) 2 SCC 578: 1984 SCC (L&S) 290: AIR 1984 SC 1356] a Constitution Bench of this Court dealt with an identical case wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the Court should deny the relief to the employee, even if the Court comes to the conclusion that the order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Anyone who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The Court further held that in such a case it could not be considered that the employee did not deserve any relief from the Court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it.”
18. It needs no reiteration that “justice should not only be done but also seen to be done”. Relevant would it be at this stage to allude to the judgement in A.K. Kraipak and Others v. Union of India and Others, (1969) 2 SCC 262, where the acting Chief Conservator of Forest was a member of the Selection Committee for All India Cadre of the Forest Service and was also one of the candidates who applied for the posts in question. Although it was asserted that he had not taken part in the deliberations during the Selection process, the Supreme Court held that there was definitely a conflict of interest between his personal interest and the duty cast on him and therefore, there was a real likelihood that the bias may adversely influence the judgment of other members. Relevant paragraph from the judgment in A.K. Kraipak (supra) is as follows:-
not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debetesse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. 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 that 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. University of Kerala [ Civil Appeal No. 990/68, decided on 15-7-1968] 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 framework 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 that case.”
19. In Narinder Singh Arora v. State (Govt. of NCT of Delhi) & Ors., (2012) 1 SCC 561, the Supreme Court held as under:-
7. In Manak Lal v. Prem Chand Singhvi [AIR 1957 SC 425] it was observed: (AIR p. 429, para 4)
8. In A.K. Kraipak v. Union of India [(1969) 2 SCC 262] this Court, while discussing the rule of bias, has observed: (SCC p. 270, para 15)
9. In S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459: 1973 SCC (L&S) 580] this Court has applied the “real likelihood” test and restored the decree of the trial court which invalidated compulsory retirement of the appellant by way of punishment. This Court observed: (SCC p. 465, para 16)
sufficient to quash the decision….”
10. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585: 1976 SCC (L&S) 474] this Court had referred to the judgments of A.K. Kraipak v. Union of India [(1969) 2 SCC 262] and S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459: 1973 SCC (L&S) 580] and observed: (G. Sarana case [(1976) 3 SCC 585: 1976 SCC (L&S) 474], SCC p. 590, para 11)
”
20. It would be crucial to refer to the observations of the Supreme Court hereunder in State of Punjab v. V.K. Khanna & Ors, (2001) 2 SCC 330, wherein a challenge was laid to a Charge Memorandum:-
Professor Wade, this power has to be used ‘for the public good’. The action of the authority must be fair and reasonable. It should be bona fide. It should not be arbitrary. It should not be based on extraneous considerations. It should be for public good. Bias or personal malice should not taint it. Bias is like a drop of poison in a cup of pure milk. It is enough to ruin it. The slightest bias would vitiate the whole action.”
25. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and mala fide move creep in — issuance of the two notifications, assuming in hot haste, but no particulars of any mala fides move or action has been brought out on record on the part of Shri V.K. Khanna — while it is true that the notings prepared for Advocate General's opinion contain a definite remark about the mala fide move on the part of Shri V.K. Khanna yet there is singular absence of any particulars without which the case of mala fides cannot be sustained. The expression “mala fide” has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide — actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act.” (emphasis supplied)
21. In view of the above, the disciplinary proceedings initiated pursuant to charge memo dated 27.05.1993 stand vitiated and cannot be sustained. Bias has pervaded the entire inquiry and there is flagrant violation of principles of natural justice. This renders the order of punishment also null and void, as held in Mohd. Yunus (supra) and the penalty order cannot be given effect to. Taking into account that the charge memo was issued in the year 1993 and Petitioner has crossed the age of superannuation as also the fact that the inquiry is vitiated and rendered null and void, it would be unfair to the Petitioner to direct a fresh inquiry at this stage. In the facts and circumstances of this case and to meet the ends of justice, while quashing the impugned orders including the order of revised penalty, it is directed that the Petitioner will be entitled to all consequential benefits of setting aside of the revised penalty of reduction of pay by two stages for a period of two years with the effect of postponing the future increments. Insofar as the suspension period and the emoluments for the said period are concerned, Respondents shall take a decision with respect to regularisation of the said period and pay and allowances and pass an order within three months from the date of receipt of this order, in accordance with law. In case of any surviving grievance to this extent, Petitioner will have liberty to take recourse to legal remedies.
22. Writ petition along with pending application stands disposed of in the aforesaid terms.
JYOTI SINGH, J NOVEMBER 14, 2024