Sanjay Kumar v. Union of India & Ors.

10. In the meanwhile, the respondent ministry also issued a letter dated 17th February, 2022 directing the respondent Council to adhere to the provisions of the Central Civil Services (conduct), CCA Rules, 1965 (‘CCS rules’ hereinafter), pursuant to which the petitioner wrote multiple letters to the respondent Council requesting for the same, but to no avail.

11. In the year 2022, the petitioner wrote another set of letters to the respondent, requesting increase in the subsistence allowance, and further reiterated the obligations to adhere with the CCS rules, however, the respondent Council neither responded to such letters, nor accepted the request made by the petitioner.

12. Aggrieved by the same, the petitioner has preferred the present petition.

13. The learned counsel appearing on behalf of the petitioner submitted that the impugned charge sheet is bad in law and the respondent Council and Chairman have traversed beyond law by issuing the same.

14. It is submitted that the impugned chargesheet does not include the list of witnesses, documents and statement of imputations as envisaged under Rule 14 of the CCS rules.

15. It is submitted that the respondents have failed to scrutinize the reply filed by the petitioner and had issued the chargesheet without providing him an opportunity to prove his innocence, therefore, violating the principles of natural justice.

16. It is submitted that the letter dated 9th April, 2021 as issued by the respondent chairman is issued with malice where the other members of the COA are also in cahoots with the respondent chairman.

17. It is submitted that the chargesheet issued by the respondents has added another set of allegations against the petitioner, which were not there in the initial show cause notice issued to the petitioner.

18. It is submitted that the subsistence allowance of the petitioner has been reduced to 25% of his salary which is contrary to the law and the rules governing the employees at the petitioner’s level.

19. It is submitted that the respondent chairman had grudges with the petitioner even before he was appointed as the chairman, and had complained about the petitioner and the previous chairman to the respondent ministry, and continued to do so when he was appointed as the chairman and therefore, had issued the show cause notice which is in contravention to the powers conferred to him.

20. It is submitted that the petitioner had earlier sought permission of the respondent Chairman to lodge FIR against one of the COA members namely Mr. Mahavir Pratap Sharma, however, the respondent chairman suspended the petitioner and appointed the same person as the presiding member of the inquiry committee constituted to look into the allegations against the petitioner.

21. It is submitted that the appointment of Mr. Mahavir Pratap Sharma to the inquiry committee has seriously prejudiced the inquiry against the petitioner, and the same was only done with the motive to harass him and the same also violated the principles of natural justice.

22. It is submitted that the appointment and removal of the petitioner from the post of ECDS is not within the scope of powers of the respondent Council and the chairman, rather the same can only be done with the prior approval from the respondent Ministry as mentioned under Article 40 of the AOA, and therefore, such suspension is bad in law.

23. It is also submitted that the respondent Ministry vide order dated 17th February, 2022 had directed the respondent Chairman and the Council to follow the provisions of the CCA rules and also suggested three names for constitution of the inquiry committee, however, the respondent Chairman chose to ignore the same, therefore violated the settled principles of law.

24. It is further submitted that the respondent Council issued the chargesheet without explaining the reasons for doing so and without referring to the prescribed rules i.e., Rule 17 and 18, therefore, the same is liable to be quashed.

25. Therefore, in view of the foregoing submissions, the learned counsel for the petitioner prays that the present petition be allowed, and reliefs may be granted, as prayed. (Submissions on behalf of the respondents)

26. Per Contra, the learned counsel appearing for the respondent Council and the Chairman vehemently opposed the present petition submitting to the effect that the same is not maintainable as the respondent Council is an independent body entrusted to function out of the ambit of the respondent Ministry.

27. It is submitted that the respondent Council has been granted the autonomy in administrative matters by the respondent Union and the Ministry vide Office Memorandum dated 10th November, 1997 & letter dated 8th September, 2011.

28. It is submitted that the employees of the respondent Council are not Government employees and the services of the said employees are governed by the bye-laws and service conditions of the respondent Council.

29. It is submitted that the judgment dated 20th December, 2021 also clarifies the above said position, however, the same was misinterpreted by the respondent Ministry which led to issuance of the letter dated 17th February, 2022, and the said mistake was corrected by issuing corrigendum dated 24th January, 2022, whereby, the protection granted to the petitioner under Articles 310 and 311 of the Constitution of India was revoked.

30. It is submitted that there is no illegality with regards to providing subsistence allowance to the petitioner as the same is done as per the service rules of the respondent Council.

31. It is submitted that the relevant rules of the respondent Council empowers it to appoint members of the COA to be a part of a committee constituted to look into the allegations against its employees, therefore, constitution of the inquiry committee to deal with the petitioner’s case is well within the scope of powers conferred to the respondent Council/COA.

32. It is submitted that the decision to issue show cause notice to the petitioner was duly considered by a majority in the COA and therefore, he was suspended from the post of EDCS.

33. It is submitted that the petitioner has been adopting dilatory tactics to delay the matter and has done so in furtherance of his motive to conceal the true facts.

34. It is submitted that the respondent Council had given multiple opportunities to the petitioner to submit his reply to the chargesheet against him, however, the same has not been done yet, instead the petitioner has approached this Court by way of filing the present petition and the same can only be categorized as a gross misuse of law.

35. It is also submitted that this Court had directed the petitioner to file his reply to the chargesheet issued against him, however, the petitioner preferred to challenge the said order dated 23rd May, 2022 which was dismissed vide order dated 2nd June, 2022 by the Division Bench in LPA 376/2022

36. It is further submitted that the subsistence allowance of the petitioner was earlier reduced to 25% due to the petitioner’s own fault, however, the same has been increased to 50% as per the order dated 23rd May, 2022 passed by this Court.

37. Therefore, in view of the foregoing submissions, the learned counsel appearing for the respondent Council and Chairman prayed that the present petition being devoid of any merit, may be dismissed.

ANALYSIS AND FINDINGS

38. Heard the learned counsel for the parties and perused the records. While adjudicating the present petition, this Court has given its thoughtful consideration to the contentions raised by the petitioner and the rival submissions by the counsel for the respondent Council and the Chairman.

39. Before delving into the issues at hand, this Court needs to reiterate the findings of the predecessor bench in the writ petition 6041/2021, whereby the maintainability of the writ petition against the respondent Council was determined. The relevant part of the said judgment is reproduced herein:

40. In the above said paragraphs of the judgment, it is clear that the Bench had determined the maintainability of the writ petition in context of the functions performed by the respondent Council and held the Council to be well within the purview of the writ court.

41. Paragraph 56 of the said judgment clearly establishes that the present writ is maintainable and the employee at the level of the EDCS in the respondent Council shall be governed by the relevant rules of the said respondent Council and are also covered under Articles 310 and 311 of the Constitution of India.

42. Therefore, the contention of the respondent regarding the nonmaintainability of the present writ is rejected as the predecessor Bench of this Court had already determined the same and held the same in favor of the petitioner where it was established that the respondent Council falls under the ambit of the writ jurisdiction of this Court and this Court agrees with the said findings as rendered by the predecessor bench.

43. In view of the above discussion, the question before this Court is whether the respondent Council followed the due procedure with regards to the case of the petitioner, whereby, there are severe allegations against him. Therefore, this Court deems it appropriate to first look into whether the decision of constitution of the inquiry committee by the respondent Council suffers from any illegality or not. Subsequently, this Court shall also deal with the aspect of whether the suspension of the petitioner had to be approved by the respondent Ministry or not. At last, this Court shall adjudicate upon the issue of reduction of subsistence allowance.

44. Now, coming to the first issue at hand, the petitioner has approached this Court by filing the present writ petition primarily because of the issuance of the chargesheet dated 27th January, 2022 issued against him by the committee constituted by the respondent Council. In the pleadings, the petitioner inter alia has advanced allegations of biasness on the part of the committee as the presiding member named Mr. Mahavir Pratap Sharma is the same person against whom the petitioner had made a complaint and had also sought permission from the respondent Chairman to lodge an FIR as decided by the COA in their 186th meeting.

45. The element of bias is considered as the most important branch of the principles of natural justice where it is assumed that the person adjudicating the case should not be in favor or against the party to a dispute. As per the principle of fairness, the said rule has been made applicable in almost all jurisdictions including our country. Therefore, it is imperative for the Courts situated in our country to deal with the above said issues in a rightful manner.

46. The principle of biasness is now a new principle and the same has evolved over a period of time where the Courts have interpreted the element of bias in different ways in different factual scenarios. From following a principle of fairness in decision making to inculcating a transparent procedure, wherein, decisions could actually be seen to be made by those affected by it, the evolution of the said rule has been duly adopted by the Courts in India.

47. In Tilak Chand Magatram Obhan v. Kamala Prasad Shukla, 1995 Supp (1) SCC 21, the Hon’ble Supreme Court discussed the possibility of element of bias and held that where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent would be greatly handicapped in conducting his defense as he would be inhibited by the atmosphere prevailing in the enquiry room. The relevant paragraphs of the said judgment are reproduced herein:

48. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182, the Hon’ble Supreme Court discussed the element of bias in an internal inquiry and held as under:

27. The concept of “bias” however has had a steady refinement with the changing structure of the society: modernisation of the society, with the passage of time, has its due impact on the concept of bias as well. Three decades ago this Court in S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459: 1973 SCC (L&S) 580] proceeded on the footing of real likelihood of “bias” and there was in fact a total unanimity on this score between the English and the Indian Courts.

28. Mathew, J. in Parthasarathi case [(1974) 3 SCC 459: 1973 SCC (L&S) 580] observed: (SCC pp. 465-66, para 16)

29. Lord Thankerton however in Franklin v. Minister of Town and Country Planning [1948 AC 87: (1947) 2 All ER 289 (HL)] had this to state: “… I could wish that the use of the word „bias‟ should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of evenhanded justice which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute.”

30. Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 2) [(2000) 1 AC 119] observed: “… In civil litigation the matters in issue will normally have an economic impact; therefore a Judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a Judge applies just as much if the Judge's decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.”

31. Lord Brown-Wilkinson at p. 136 of the report stated: “It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25-11-1998 would lead to a position where Judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a Judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the Judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'s objects. Only in cases where a Judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a Judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the Judge would be well advised to disclose a possible interest.”

32. Lord Hutton also in Pinochet case [(2000) 1 AC 119] observed: “There could be cases where the interest of the Judge in the subject-matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.”

33. Incidentally in Locabail [Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000 QB 451] ] the Court of Appeal upon a detail analysis of the oft-cited decision in R. v. Gough [1993 AC 646] together with the Dimes case [3 House of Lords Cases 759], Pinochet case [(2000) 1 AC 119], Australian High Court's decision in the case of J.R.L., ex p C.J.L., Re [(1986) 161 CLR 342 (Aus HC)] as also the Federal Court in Ebner, Re [(1999) 161 ALR 55] and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union [(1999) 4 SA 147] stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed: “By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the Judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly [(1989) 167 CLR 568] ); or if, for any other reason, there were real ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a Judge, earlier in the same case or in a previous case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”

34. The Court of Appeal judgment in Locabail [2000 QB 451] though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case — a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.

35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom — in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case [2000 QB 451].

36. Having discussed the issue as above in the contextual facts, we do feel it expedient to record that the action of the Managing Director in the matter of withdrawal of authority as noticed above and subsequent introduction of charges, in particular, the last of the charges as noted above and the further factum of issuance of an eighteen-page letter of termination on the selfsame date and within a few hours after the pretended hearing was given, cannot but be ascribed to be wholly and totally biased.”

49. On perusal of the aforesaid paragraphs of the above cited judgment, it is clear that the element of bias holds an important place in determining the fairness of an inquiry whereby the writ courts are duty bound to act whenever a member of the committee formed to adjudicate a case is ascribed to be biased in favor or against a particular party.

50. In the instant case, the petitioner has supplemented the contention regarding the alleged bias against the presiding member and has highlighted the reasons for apprehensions of such bias which can act against the petitioner. One such reason is the decision to lodge an FIR against Mr. Mahavir Pratap Sharma, as per the decision made by the COA in their 186th meeting. The relevant part the said minutes of the meeting is as under:

51. Pursuant to the said decision taken unanimously in the meeting, the petitioner holding the position of ECDS in the respondent Council was liable to follow the same as decided by the COA. Therefore, he reached out to the respondent Chairman for lodging such FIR against Mr. Mahavir Pratap Sharma.

52. Thereafter, when allegations of fraud and embezzlement of funds were leveled against the petitioner, the same person was nominated as the presiding member, when the said committee was constituted to look into the allegations of fraud and misrepresentation leveled against the petitioner, it firstly issued a show cause notice dated 23rd June, 2021 and subsequently issued the chargesheet against him.

53. As per the material on record, the respondent Ministry had also suggested the constitution of committee and had provided alternative names for the members of the said committee, however, the names recommended by the Ministry were not considered by the respondent Chairman and he continued with the names as previously nominated by himself.

54. If not anything concrete, prima facie, the above said chain of events hint towards possibility of bias where the presiding member named Mr. Mahavir Pratap Sharma may act in a manner which can be motivated from aggravation that happened due to the decision of the COA and subsequent events which warranted the petitioner to lodge an FIR against him.

55. It is no doubt that the integrity of any person cannot be questioned/assumed without any concrete evidence against him, however, the real question before this Court in the present petition is not whether the said person is biased, rather it is only that if the Court has reasonable grounds to believe that the person selected to preside the case against the petitioner can be biased or not.

56. The answer to the query posed in the preceding paragraph is in affirmative. Hence, the selection of Mr. Mahavir Pratap Sharma as a member of the committee should be termed as a conflict of interest and the same ought not to have happened in the first instance. Therefore, the constitution of the said committee can only be termed as illegal as the decision of the committee might involve bias on part of the presiding member.

57. Having dealt with the question of legality of the constitution of the inquiry committee, the next question arises before this Court is whether the COA is well within their power to constitute such a committee or is it considered as violation of the Article 40(b)(6) of the AOA. To answer the said question, it is imperative for this Court to interpret the said Article and also look into the other factors deemed necessary for rightful interpretation. Article 40(b)(6) of the AOA is reproduced herein:

58. On perusal of the aforesaid clause, it is evident that the bye-laws of the respondent Council provides them the autonomy/discretion to remove or suspend its employees, which also includes the officers of the Council, however, the latter part of the provision also mandates the respondent Council to take prior approval from the respondent Ministry in case there is a decision regarding appointment/removal of the officers at the level of EDCS etc

59. In his submissions, the petitioner has contended that the issuance of a show cause notice and subsequent issuance of the chargesheet is clear violation of the said rule, however, this Court does not agree with the same as the literal interpretation of the said provision suggests that the respondent Council is only bound to take permission from the respondent Ministry if there is a decision regarding appointment or removal.

60. As material on record makes it clear, the petitioner has not been removed from his position rather he has been suspended from the same which is pending inquiry, therefore, in such a case, the respondent Council is well within its powers to do so, without taking prior approval from the Ministry.

61. The said view was also taken by the Division Bench of this Court in LPA 376/2022, filed by the petitioner. The relevant part of the order dated 2nd June, 2022 is reproduced herein:

62. The above reproduced paragraphs of the order makes it clear that the Division Bench was also of the same view, and the petitioner’s contention regarding the violation of the said provision was rejected there as well.

63. Therefore, this Court is also of the view that the suspension and issuance of the show cause against the petitioner does not anyhow violate Article 40(6) of the AOA and the respondent Council is well within its power to initiate inquiry against the petitioner, however, the decision to remove him permanently from the services can only be taken after due approval from the respondent Ministry.

64. Now, coming to the question of reduction of subsistence allowance of the petitioner. In the pleadings, the petitioner has contended that his subsistence allowance was reduced to 25% which is contrary to the settled position of law and he is entitled to an enhanced allowance till the time inquiry is completed against him.

65. Till now, it is amply clear that the services of the petitioner are governed by the rules of the respondent Council. In their counter affidavit, the respondent Council has referred to the relevant provisions regarding the subsistence allowance to supplement the contention that they are well within their powers to reduce the same. The relevant Rule i.e. Rule 19 of the Service Rule of the respondent Council is reproduced herein: “ENTITLEMENTS DURING SUSPENSION:

1. An employee of the Council under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments: (a) A subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half average payor on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary; Provided that where the period of suspension exceeds three months, the Authority which made or is deemed to have made the order of suspension shall be Competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:i. the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first three months, if, in the opinion of the said Authority, the period of suspension has been prolonged for reasons, to be recorded in writing not directly attributable to the employee of the Council; ii. the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first three months, if in the opinion of the said authority, the period of suspension has been prolon[led due to reasons, to be recorded in writing, directly attributable to the employee of the Council; iii. the rate of dearness allowance will be based on the increased or, as the case may be the decreased amount of subsistence allowance admissible under sub-clause

(i) and (ii) above.

(b) Any other compensatory allowances admissible from time to time on the basis of pay of which the employee of the Council was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances.

2. No payment under sub-rule (i) shall be made unless the employee of the Council furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.”

66. The perusal of the above cited rule makes it crystal clear that the respondent Council is empowered to decide the subsistence allowance of their employees, and the same rule is also applicable on the petitioner as well.

67. While this Court understands the independence of the authorities and no way ascribes to the idea of judicial overreach by entering into the domain of the executive, however, the material on record suggests that the counsel for the respondents had earlier assured the Division Bench of this Court to increase the subsistence allowance of the petitioner to 50%.

68. Therefore, at this stage, it is imperative for this Court to again refer to the order of the e Division Bench in LPA no. 376/2022, where the bench had reproduced the findings of the single bench recording the submissions made by the counsel for the respondent Council assuring that the subsistence allowance shall be increased to 50%. The relevant paragraphs of the order dated 2nd June, 2022 is reproduced herein: