JUDGMENT Brijesh Kumar, J.
1. This special appeal has been preferred against the judgment and order passed by the learned single Judge, dated 27.10.1993 in Writ Petition No. 863 of 1991. The appellant, by means of the above noted writ petition, had challenged the order of his removal from service. The writ petition failed.
2. The appellant was appointed as librarian in the Triloknath Postgraduate College, Tanda, Faizabad in 1977. On account of some charges of misconduct, the appellant was suspended in January, 1988. Charge-sheet was served and enquiry was entrusted to an enquiry committee who submitted its report on September 9, 1988. The Committee of Management by means of a resolution dated 11.6.1989, while accepting the enquiry report, resolved to terminate the services of the appellant and referred the matter to the D.I.O.S. for approval. The D.I.O.S accorded approval to the resolution. The removal order was issued on 5.1.1991 and communicated to the petitioner by letter dated 21.1.1991. The appellant challenged the order on the ground that adequate opportunity of hearing was not provided to him during the enquiry and the relevant documents were also not furnished. The report of the enquiry committee was not supplied to the appellant by the Committee of Management. Yet another ground of challenge is that the enquiry proceedings are vitiated due to participation of the opposite party No. 5, the Principal as Member of the enquiry committee, who according to the appellant, is biased against him.
3. According to the opposite parties, the appellant was shown the entire record relating to disciplinary proceedings including the report of the enquiry committee, hence the petitioner was afforded adequate opportunity. So far as the inclusion of the Principal as a Member of the Enquiry Committee is concerned, the case of opposite parties is that he had to be included as of necessity under the provisions of the Statute and in fact too there was no bias against the appellant. It is also submitted that the scope of interference in Special Appeals is limited.
4. The learned single Judge found that the appellant was given hearing by the District Inspector of Schools while approving the resolution and also held that in view of Section 2 (181 of the U. P. State Universities Act and Statutes 18.02 and 18.13. It was not necessary to provide a copy of the report of enquiry committee, since the decision of the Committee of Management has to be reported to the District Inspector of Schools. According to the learned single Judge, this procedure by necessary implication rules out the application of the principles of natural justice in so far providing a copy of the enquiry report. The learned single Judge also negated the ground of bias, taken as against the Principal, who was a member of the enquiry committee.
5. We have heard the learned counsel for the appellant as well as Sri S. K. Mehrotra, appearing for the respondents.
6. It is submitted that Sri K. P. Misra, opposite party No. 5 who was a Member of the Enquiry Committee had himself made the complaint against the appellant on 8.1.1990. He was in the position of an accuser. These averments made in para 12 of the writ petition have not been denied in para 13 of the counter-affidavit filed by opposite party No. 5 Sri K. P. Misra except that the complaint was based on objective assessment of the facts relating to the librarian. The next day, i.e., on 9.1.90 opposite party No. 5 Sri Misra placed the appellant under suspension ; a copy of the order has been filed as Annexure-1 to the writ petition. The suspension was with immediate effect. Besides placing the petitioner-appellant under suspension, his entry into the college premises was also prohibited except with the permission of the Manager or the Principal. Learned counsel for the appellant submits that the fact that the opposite party No. 5 had complained against the appellant and the next day, placed him under suspension without consulting the Management or waiting for the action proposed to be taken by the Management, itself shows that opposite party No. 5 was out to harm the appellant. It is further submitted that prohibiting the appellant from entering into the premises is yet another fact which indicates the kind of mental exposure that opposite party No. 5 had against the appellant. The Committee of Management by resolution dated 22.1.1988 constituted an enquiry committee to conduct disciplinary proceedings against the appellant. It consisted of Sri K. P. Misra, opposite party No. 5 and two others, namely, the Vice President of the Committee and another member of the Committee of Management.
7. The appellant was served with a charge-sheet dated 28.1.1988 by the Principal, opposite party No. 5, a copy of which has been filed as Annexure-2 to the writ petition. It contains a number of charges relating to alleged irregularities. The appellant was required to submit his explanation by February 20, 1988. A supplementary charge-sheet dated 15.2.1988 was also sent to the appellant by opposite party No. 5 Sri K. P. Misra. The appellant was required to submit his explanation to both the charge-sheets by February 28, 1988. The appellant by means of reply dated 12.2.1988 wrote a letter to the Principal opposite party No. 5 requesting to supply copies of documents, cited in support of the charges apart from certain other information. It was received on 17.2.1988. The opposite party No. 5 by order dated 20.2.1988 rejected the request of the appellant for supplying the copies of documents on the ground that during the course of routine work the appellant had already had the occasion to see all those documents, hence it was not necessary to make them available to the appellants, a copy of the letter is Annexure-5 to the writ petition. It was indicated that in case the appellant failed to submit reply to the charge-sheets, it would be taken that he had nothing to say in reply. The petitioner-appellant against wrote a letter dated 24.2.1988, a copy of which has been filed as Annexure-6 to the writ petition, requesting again to supply copies of the documents asked for earlier so as to enable him to submit appropriate reply to the charges, The copies of the documents were not supplied. The appellant, in the circumstances, sent his reply to the charge-sheet, without those documents, on 29.2.1988, but the same was not received in the office since the School had closed after condolence and the Office Superintendent had gone somewhere. There is an endorsement on Annexure-7, the covering letter, that the Manager also asked the appellant to send the reply on 5.3.1988 when the office reopens, hence the appellant had sent the reply by registered post on 1.3.1998. The appellant made counter charges. In question form, alleging that for many charges, respondent No. 5 himself was responsible for committing irregularities.
8. All the above facts have been indicated by the appellant to show the treatment meted out to him at the hands of respondent No. 5. A copy of reply has been filed as Annexure-7 to the writ petition, wherein, it has been indicated that 28.2.1988 being Sunday, the reply was sent on 29.2.1988. It was also pleaded that respondent No. 5 Sri K. P. Misra was not competent to give the charge-sheet to the appellant and that the Principal had no power to suspend the appellant. Yet another objection indicated in the reply was that copies of relevant documents were not supplied to the appellant, it would, however, be worth mentioning that the appellant had also made certain allegations against the Principal relating to purchase of books, etc. In a manner other than prescribed. Other allegations of harassment, etc. had also been made by the appellant against Principal. It was also mentioned that it was highly improper to place the appellant under suspension and then bar his entry into the premises and further getting the locks opened through police. Even the request to open the locks in the presence of a representative of the appellant was not accepted. We also find that the appellant, in reply, had put a number of questions to the Principal Including as to whether or not he had a right to give charge-sheet to the appellant. Allegations of mala fides have also been made against the Principal. It was also demanded in the end that the enquiry be got made through independent person.
9. By letter dated 4.11.1988, respondent No. 5 conveyed to the appellant that the enquiry committee held a meeting on 29.3.1988 and the committee considered the reply submitted by the appellant and it was of the view that it was not a reply to the charges but a reply containing counter-charges. The appellant was again required to give reply to the charges. Charges were again reiterated in the letter and the appellant was warned not to send counter-charges but the reply. It does not, however, seem that the request for enquiry by an independent agency was considered since nothing is mentioned about the same. The appellant again sent a reply to the letter of respondent No. 5 dated 11.4.1988 through letter dated 21.4.1988. He again mentioned about non-supply of documents by the respondents.
10. Learned counsel for the respondents Sri S. K. Mehrotra submitted that no exception can be taken by the appellant about the report or complaint made by the Principal against the appellant ; the Principal is an overall Incharge of the affairs of the institution including the Library, hence it was his duty to have brought these matters to the notice of the Management. This position cannot be disputed. But the objection la not about the making of the complaint ; it is, that where the Principal becomes an accuser or complainant in a matter, complaining against the work and conduct of a delinquent, he may not enquire into the charges in respect of which he himself had made a report. The submission is that there is always a valid apprehension about likely bias of the complainant-cum-enquiry officer. On behalf of the appellant, it has been vehemently urged that the apprehension became stronger in view of the conduct of the Principal as the very next day he placed him under suspension without authority and banning his entry into the premises of the college and getting the lock of almirah opened through police in his absence, refusing permission even for his representative to be present.
11. The Committee of Management is the appointing authority of Librarian under Statute 18.02 of the Statutes of Avadh University. Under clause (2) of Statute 18.02. It is provided that the appointing authority shall have the power to take disciplinary action and award punishment against the class of employees of which it is appointing authority. In so far as the power of the Principal to suspend an employee is concerned, reliance has been placed upon Statute 14.07, which provides that the Management shall have the power to suspend a teacher during the pendency or in contemplation of an Inquiry into charge against him and in an emergency, this power of suspension can be exercised by the Principal in anticipation of the approval of the Management. This provision, statute 14.07 is contained in Chapter XIV of the Statutes, Part-I, relating to conditions of services of teachers of affiliated colleges, whereas conditions of service of non-teaching staff which includes Librarian as well, are provided in Chapter XVIII of the Statutes. Statute 18.01 (3) distinguishes 'employees' of an affiliated college from a teacher, according to which 'employee' means a salaried employee "not being a teacher of a college". By inference, it excludes the application of Chapter XIV or Statute 14.07 to the employees of affiliated colleges. As indicated earlier, the Management is the appointing authority of the non-teaching staff and it is also indicated that it shall have power to take disciplinary action and award punishment. It does not contain any such provision, as contained in Chapter XIV of the Statutes empowering Principal to suspend a teacher in an emergency. Hence in our view, the respondents cannot take aid of Statute 14.07 to contend that the respondent No. 5 had power to suspend the librarian in an emergency. In Chapter XVIII, no such emergency is envisaged or contemplated so as to empower the Principal to suspend non-teaching staff. The Management is the appointing authority as well as the disciplinary authority of non-teaching staff. The Principal has not been conferred any power to suspend librarian ; Statute 14.07 will not apply to his case.
12. Learned counsel for the respondents has then drawn our attention to Appendix-C of the Statutes. It contains a Form of Agreement with a teacher on his appointment. There is other Form also which relates to Agreement between the College and the Principal containing the contract of service. The said forms have been made referable to Statutes 14.02, 14.27 and 14.30. As Indicated earlier, Chapter XIV containing Statute 14 relates to conditions of service of teacher of affiliated colleges. Statute 14.02 provides that a teacher of an affiliated college shall be appointed on a written contract in Form (1) or Form (2) set out in Appendix-C. Form (2) of Appendix-C which relates to contract of service between the Management and the Principal contains a clause that he shall have power, in an emergency, to suspend member of the staff including teachers or staff pending report to any decision by the Management. Learned counsel for the appellant submits that Appendix-C is referable to Chapter XIV and Statute 14.02. It is a contract of service between the Principal and the College ; such a contract cannot in any manner affect the conditions of service of non-teaching staff who are governed in the matter of conditions of service by Chapter XVIII and Statute 18 of the Statutes of Avadh University.
13. Conditions of service as laid down under the rules and regulations are undoubtedly binding upon the employees. Such rules and regulations are thus published so that the employee while undertaking the employment must know the conditions by which he may be bound. Section 50 of the State Universities Act provides for First Statutes of the Universities which are made by the State Government by notification in the Gazette. Statutes for the conditions of service of Principals and other teachers of the University and of affiliated colleges are made under clause (d) of Section 49 of the State Universities Act whereas the conditions of service of the salaried employees, not being teachers, are made under clause (o) of Section 49. Thus, the conditions of service as laid down in the First Statutes of the University are made under two different specific provisions, i.e., under two different clauses of Section 49 of the State Universities Act and they are contained in two different Chapters of the Statutes. At the time of employment, an employee is supposed to know the conditions of his service as contained in the Statutes having been published by the Government in the Gazette. We have already seen that Statute 14.07 which falls in Chapter XIV of the Statutes relating to conditions of service of teachers and principal of the college, provides for suspension of a teacher by the Principal in an emergency. No such provision is contained in Chapter XVIII relating to conditions of service of non-teaching staff. One can validly assume that as a member of non-teaching staff, he would be governed only by the conditions of service laid down for him under Chapter XVIII of the Statutes framed under clauses (o) of Section 49 of the State Universities Act. Thus, a provision contained in the contract of service between the College and the Principal referable to Chapter XIV and Statute 14 relating to conditions of service of teachers and Principal will in no way affect the conditions of service of non-teaching staff, nor non-teaching staff would bee bound by any condition of service which may be provided for in a contract of service between the Management and the third party, namely, the Management and the Principal in this case. It is true that the contract of service between the Principal and the Management, in one of its clauses provides that the Principal shall have powers including power in an emergency to suspend members of the staff including teachers or staff, but this would be a matter between the Management and the Principal without affecting the conditions of service of the non-teaching staff. Under the said clause of the contract of service with the Principal, the Management may require the Principal to exercise those powers only in the event such a condition is prescribed or provided under Chapter XVIII and Statute 18 of the Statutes of the Avadh University framed under Section 49 (o) of the State Universities Act laying down conditions of service of non-teaching staff.
14. Again there is no provision under the statutes, much less, in Chapter XVIII, enabling or authorising the Management to delegate its power of suspension of a member of non-teaching staff, in any emergency or otherwise.
15. In the absence of such provisions in the statute framed by the State Government, the members of the non-teaching staff cannot be subjected to the powers sought to be conferred upon the Principal to suspend a member of non-teaching staff by virtue of a condition in the contract of service, between the Management and the Principal. As a matter of fact, contract of service lays down the duties which the Management can require the Principal to perform but for performing such duty like placing a member of non-teaching staff under suspension, there must be power vested in the Principal under the statute. The distinction which is drawn may no doubt appear to be thin but it is substantial and real. The statutes governing the service conditions of non-teaching staff, as they stand, do not contain any condition of service empowering the Principal to suspend them in an emergency or otherwise. Members of non-teaching staff are not supposed to know about any such non-existing condition of service while taking up the employment or even subsequently ; hence they cannot be subjected to such power of suspension of the Principal by virtue of an agreement between the Principal and the Management. In case the Principal has such a power laid down under the statutes framed under clauses (o) of Section 49 of the State Universities Act, in that event by virtue of the conditions contained in the contract entered into between the Principal and the Management, the Management can require or compel the Principal to exercise those powers and to see that the Principal may not avoid to exercise such powers. We would again like to clarify here that such a clause of contract between the Principal and the Management will be of no consequence unless such power is vested in the Principal in the conditions of service governing the service conditions of non-teaching staff of the college. Thus, the Principal had no power to place the petitioner-appellant under suspension.
16. We may next consider the question as to whether the Principal was to be there in the enquiry committee as of necessity. But before examining that position, it would be necessary to see as to whether it was necessary to have an enquiry committee consisting of several members or enquiry could be made by a single enquiry officer. In support of the contention that the Principal has to be there as an ex offcio member of committee constituted by the Management, learned counsel for the respondents has referred to condition No. 6 of the contract of service between the Management and the Principal. It provides that the Principal shall be an ex officio member of the Management and any other committee appointed by the Management ; provided that he shall not be a member of the Committee appointed to inquire into his own conduct. The above provision does not lead to the inference that an enquiry cannot be entrusted to one single enquiry officer nor that there must always be an enquiry committee consisting of more than one member to enquire into the conduct of a delinquent. Learned counsel for the respondents has further laid stress upon the proviso to condition No. 6 which says that the Principal shall not be a member of the Committee appointed to enquire into his own conduct. As observed earlier, it does not mean that a single enquiry officer cannot enquire into the conduct of a delinquent and even if it is argued that by use of the words "shall not be a member of the Committee appointed to inquire into his own conduct" in the proviso, would mean that there must be a committee, it would only apply in the case of Principal and not to others. In the present case, we are not even concerned with the enquiry against a teacher : it is against a member of non-teaching staff. No other provision has been indicated in support of the contention of the respondents that there has to be a committee consisting of more than one person to enquire into the conduct of a delinquent. That being the position, the argument that the Principal was there in the enquiry committee as of necessity is not tenable. The rules do not provide for the Principal necessarily to be a member of a committee to enquire into the conduct of a delinquent, member of non-teaching staff. The enquiry could be conducted by the Management itself or by a single member. This question assumes importance in view of the fact that the appellant had repeatedly pleaded that the Principal was biased against him and enquiry should be made by independent person. May be that this request may not have been considered under some misconception that in all cases, there must always necessarily be a committee of enquiry consisting of more than one person, which, as we have found, is not necessary. This aspect of the matter does not seem to have ever been adverted to by the enquiry committee, though such a request was made in writing by the delinquent. Therefore, the argument that the Principal had to be there in the enquiry committee as of necessity, does not hold water since there is no such provision that enquiry could not be held by a single member.
17. The question of bias as alleged by the appellant against the Principal as member of the enquiry committee is to be seen in the light of what has been discussed above. It is true that as Principal of the Institution, it was quite open, rather he was under duty to inform about any irregularity which may come to his notice, to the Management. The Principal made a complaint against the conduct of the appellant on 8.1.1988. The very next day, he suspended the appellant, though he had no power to suspend the appellant being a member of non-teaching staff. He did not wait for the instructions or decision of the Committee of Management on the complaint made by him but acted in haste. Apart from suspending the appellant, by the same order, he banned the entry of the appellant in the college premises. No reasons whatsoever have been indicated in the order for taking such an extreme step. The order passed by the Principal refusing to supply the copies of the documents demanded by the appellant on flimsy grounds that during the course of discharge of his duties in a routine manner, the appellant had come across those documents, smacks of ill-will or ill-feeling of the Principal against the appellant. Such an excuse as given by the Principal to refuse the prayer for supply of the copies of the documents, cannot be accepted by any prudent person. It also indicates the closed mind with which the Principal was trying to deal with the appellant in the enquiry proceedings. It is in every case that a delinquent may have come across or dealt with the documents which are later on said to be supporting material or evidence in respect of the charges levelled against him, but that is wholly immaterial. Copies of such documents or their Inspection becomes necessary when one is called upon to answer the charges and for the purposes of one's own defence. Yet another fact, which cannot be lost sight of is that the appellant while replying to the charges, had charged the Principal. In this connection, we have already made observations in the earlier part of the judgment indicating that the appellant had indicated that the Principal himself was responsible for many of the irregularities alleged against the appellant. The Principal opposite party No. 5 had himself described it as a counter-allegation or charge against him. In the background of all these facts, we feel that it was necessary atleast to consider the request of the appellant to get the enquiry made through some Independent agency, but it does not seem to have been paid any attention at all.
18. So far as the other point about denial of opportunity of hearing is concerned, we don't think that it is necessary to go much in detail into that aspect of the matter. Suffice it to say that copies of the documents demanded by the appellant had been refused on flimsy and ridiculous grounds. It is sought to be argued on behalf of the respondents that the appellant had demanded copies of all the documents without indicating their relevance. A perusal of the letter sent by the appellant dated 11.2.1988, a copy of which has been filed as Annexure-4 to the writ petition and another letter dated 24.2.1988, a copy of which has been annexed as Annexure-6 to the writ petition, would go to show that the appellant had demanded the documents which related to the charges levelled against him in the charge-sheet. No competent authority ever informed him that copies of the documents asked for were not relevant. A perusal of the order of refusal to supply the documents will indicate that this was not the ground for refusing to supply the copies of documents. That cannot be supplemented in arguments. The argument that the documents asked for may be irrelevant is not acceptable, nor the argument that it would cause no prejudice since refusal order is based on the ground that the appellant already had occasion to see those documents while working as librarian before issue of the charge-sheet. We have already made observations about the same. On behalf of the appellant, it is submitted that after the service of supplementary charge-sheet, the appellant had again requested for supply of copies of documents, but that was not even replied to.
19. On behalf of the respondents, it is also submitted that everything was evident from the record about the work done in the library and even no oral enquiry was held. It is surprising that without holding any enquiry, how the committee was able to peruse the record to say that the charges levelled against the appellant are substantiated and proved on the basis of the record. Where all the charges are substantiated only by the documents, it becomes all the more necessary that copies of such documents are supplied to the delinquent or in the alternative. Inspection may be got made. Nothing has been indicated on behalf of the respondents to show as to which documents were supplied, if at all, supporting the charges, where no oral enquiry has admittedly been held and the charges have been held to be proved only on the basis of documentary evidence, it was necessary that copies of those documents were supplied. It is submitted that the D.I.O.S had given opportunity to the appellant to peruse the documents. Documents are made available at a time when the enquiry is being held. After the proceedings are over, it does not make good the deficiency in the conduct of the proceedings by not affording an opportunity or violating the principles of natural justice.
20. Learned counsel for the respondents placed reliance upon a case in Naresh Kumar v. VIth Additional District Judge, 1990 ALJ 1067, in support of the contention that it was the duty of the Principal to report to the Management regarding any irregularity in the working of the institution. Yet another decision relied upon is in Bhajanlal v. Zindal Spirits Ltd., 11994) 6 SCC 19, on the question of bias that the person against whom allegations of bias have been made, if he has no interest by way of gain or detriment in the outcome of a proceeding, it cannot be said that he was biased and he should be one who would be a decision maker in the matter. In the present case, it is submitted that the committee was not the maker of the decision, nor the Principal was in any manner affected gainfully or detrimentally by the outcome of the enquiry. It is true that decision is ultimately made by the appointing authority, but findings which are recorded by the enquiry committee are also conclusive, unless set aside by the competent authority ; that plays an important role. It is also submitted that the likelihood of bias should be real and reasonable. In that regard, we have already discussed the facts and other attending circumstances which irresistibly lead to the inference of bias of the Principal against the appellant.
21. Yet another decision relied upon is in Election Commission of India v. Dr. Subramanyam Swami and others, (1996) 4 SCC 104, in which a plea was raised that since wife of Subramanyam Swami had appeared as counsel for the Election Commissioner, hence the matter may not be heard by him regarding disqualification of the petitioner as Member of the Legislative Assembly under Article 191(1)(3) of the Constitution read with the provisions of the Representation of People Act. It was held by the Supreme Court that it was obligatory for the Governor to obtain opinion of the Election Commissioner and the Governor had to act upon such opinion. In the present case, it is submitted that the appointing authority is not bound to accept the report of the enquiry committee. It does not mean that enquiry report has no importance. It is of a great importance. The punishing authority acts on the basis of the report of the enquiry committee. It all depends upon the fact as to whether it had recorded a finding of guilt against the delinquent. It goes a long way, hence merely the fact that the appointing authority had a right to take a different view, does not lead to the conclusion that enquiry by biased agency would be permissible, more particularly when objection had been raised at the start of the proceeding. It is also to be noticed that the Supreme Court took the view that once substance was found in the apprehension raised by the petitioner that the Chief Election Commissioner would be biased against her, the Commission having become a multi-member body, that member could be dropped against whom allegations were made. In the present case, we find that it was a multi-member enquiry committee and most active of the members seemed to be only the Principal.
22. Yet another case relied upon by the respondents is in Shiv Sagar Tiewari v. Union of India and others, 11997) 1 SCC 444, for the proposition that principles of natural justice are flexible and can be moulded and all that is required is that the delinquent must know the nature of accusation and be given an opportunity to state his case. The principle is no unruly horse nor lurking land mine. Its unnatural expansion without reference to the realities can be exasperating. Suffice it to observe that the principles laid down are well accepted principles. On facts, this case differs. The Court was considering the case of a large scale out of turn allotments of houses. Notice by publication in newspapers was held to be sufficient to educated allottees. It referred to an earlier decision of the Hon'ble Supreme Court, in Bihar School Examination Board v. Subhash Chandra Sinha, AIR 1970 SC 1269. It related to mass-copying. It was considered to be a different situation but in that too, it has been observed that those who appeared in pursuance of the notice published in the newspapers, were to be heard. Notice was sufficient once all those concerned were educated persons. Notice to individuals was not possible. This case would, also, therefore, be not applicable to the facts of the present case. Opportunity of hearing is essential. It should be real, adequate and not merely a ritual to be performed.
23. On behalf of the appellant, reliance has been placed upon a decision in K. I. Shephard and others v. Union of India and others, (1987) 4 SCC 431, on the point of post-decisional hearing. As a result of action complained, a number of employees were to be excluded from employment. Such an action required compliance with the principles of natural justice as held by the Hon'ble Supreme Court. Post-decisional hearing as proposed was held to be of no consequence ; normal rule should be applicable in a normal way.
24. In the case of Jagbir Singh and others v. General Manager, Punjab Roadways and others, (1986) 4 SCC 431, the decision of the council was held to be vitiated since the council included the member of the committee who constituted the disciplinary committee, holding enquiry Into the charges of misconduct.
25. Yet another case relied upon is in Ranjit Thakur v. Union of India and others, AIR 1987 SC 2386, on the proposition that what is to be seen, is as to whether there was reasonable apprehension of bias in the mind of the party. Circumstances showing reasonable apprehension of bias would vitiate the proceedings. It is submitted that the same principle would be applicable in the present case.
26. Learned counsel for the appellant has then cited Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and others, 1995 Supp. (1) SCC 21, on the proposition that where a member of the enquiry committee is biased against the delinquent, it vitiates the whole enquiry proceedings. It is further held that the subsequent assessment of the material on record by appellate authority would not repair the basic lapse in the proceeding. It also related to charges levelled against a teacher of an institution.
27. A number of other cases have been cited and citations of some of the decisions have been furnished.
but we don't think that it is necessary to refer to all those decisions, as some of them relate to points which may not concern while deciding this case or to multiply the case law on the same points. However, one of the cases relating to Principles of natural justice, that one would not be a Judge of one's own cause, is in State of U. P. v. Mohammad Nooh, AIR 1958 SC 86.
28. Learned counsel for the appellant has also made submissions that the charges are vague and on that ground also the order of his removal sought to be challenged as illegal. In support of the submission, reliance has been placed on State of U. P. v. Mohammad Sharif, AIR 1982 SC 937, and a few other decisions. In reply, it has rightly been submitted that no arguments had been advanced on this point before the learned single Judge, hence this ground would not be entertalnable in appeal. That being the position, we need not entertain this argument in appeal.
29. On behalf of the appellant, it has been complained that copy of the enquiry report was not furnished to him. Necessity to furnish the same has been stressed on the basis of the decision of the Hon'ble Supreme Court, in Union of India v. Mohammad Ramzan Khan, (1991) 1 SCC 588 and M. D., EC1L v. B. Karunakar, (1993) 4 SCC 727. There is no denial of the fact that copy of the report was not furnished to the appellant. There can also be no dispute that in compliance of the principles of natural justice, it was required to be supplied even though there may be no written requirement under the law. Learned single Judge has dealt with this aspect of the matter, but it was distinguished on the ground that the Hon'ble Supreme Court was considering the question as to whether it was necessary to give copy of the report in different context. It was held that amendment under Article 311(2) by 42nd Amendment had virtually brought no material change in regard to the requirement of furnishing a copy of the enquiry report to the delinquent but the learned single Judge distinguished the decision of Hon'ble Supreme Court on the ground that the appellant is governed by the provisions of the State Universities Act and the Statutes and Article 311 of the Constitution would not be applicable. It was further observed that since the order of punishment was to be approved by the D.I.O.S. this by implication excluded the requirement of supplying the copy of enquiry report to the delinquent, and ruled out the application of the principles of natural justice. It is difficult to subscribe to the view taken by the learned single Judge. It is not understandable how the provision of approval by the D.I.O.S by implication excludes the requirement of supplying a copy of enquiry report to the delinquent. It is not necessary that there must be provision for such matters which are required to be done in compliance with the principle of natural justice. On the other hand, the position is that where there is no express statutory requirement, the principles come into play and supply the omission in legislation. In our view, principles laid down in the case of Ramzan Khan (supra) fully apply to this case irrespective of the fact that the petitioner-appellant is governed by Article 311 of the Constitution or by other provision. The principles of natural justice have application in any case.
30. The position is thus clear that it was not necessary that there must always be any provision regarding compliance with the principles of natural justice. If the omission is there, that is supplied by applying the principles. Their exclusion inferred by the reason of the fact that the punishment is to be approved by the D.I.O.S is not a sound reason.
31. Further reliance has been placed upon a case in Committee of Management, Kishan Degree College v. Shambhu Saran Pandey and others, (1995) 1 SCC 404. It was held that inspection of documents should be allowed at the earliest opportunity. Postponement of inspection after the enquiry was held but at the time of final argument, was held to be improper, vitiating the consequent order of dismissal. This case is relied upon, particularly in reply to the submission that the D.I.O.S had required the concerned party to peruse the documents. It has been noticed earlier that that was the stage when the enquiry was over and the punishing authority had also passed the order of punishment.
32. Reliance has also been placed upon a case, in D. K. Yadau v. J. M. A. Industries Ltd., (1993) 3 SCC 259, on the proposition that while complying with the principles of natural justice, the authorities must act fairly. The action should be impartial and free from even appearance of unfairness, unreasonableness and arbitrariness.
33. On the point that failure to supply copies of documents in support of the charges vitiates the order, a case in Kashinath Dikshita v. Union of India and others, (1986) 3 SCC 229, has been relied upon. The learned counsel has placed a reliance upon a few other decisions, besides Tata Iron and Steel Co. Ltd. v. Collector of Central Excise, (1995) 1 SCC 323, on the point.
34. Learned counsel for the respondents has also placed reliance upon a decision in Vijay Kumar Mahendra v. Registrar and others. (1997) 15 LCD 293, about the scope of special appeal. It is submitted that scope of special appeal is limited and the remedy is available to the parties only on legal grounds. Factual aspects of the case cannot be taken into account to set aside the Judgment passed by the learned single Judge. In the present case, we find that the questions which are involved, are not involving any finding of fact recorded by the learned single Judge. It is about the proposition as to whether principles of natural justice were applicable or not and the extent to which they were applicable. According to the learned single Judge. principles of natural justice would not apply in view of the fact that the order of punishment was required to be approved by the D.I.O.S and that the enquiry report was not to be made available to the appellant, in view of the law laid down in Ramzan Khan's case for the reason that Article 311(2) of the Constitution was not applicable to the appellant. There is not much dispute on facts nor any finding of fact has been upset, hence the decision cited by the learned counsel for the respondents has no relevance.
35. In view of the discussion held above, we find that the conduct of respondent No. 5 demonstrated and substantiated the apprehension of bias against the appellant in view of the fact, as indicated earlier, that having himself made the complaint, the following day, without waiting for any direction of the Committee of Management, he suspended the appellant without any authority of law empowering him to suspend the member of non-teaching staff which power vests in the Management under the rules governing the conditions of service of non-teaching staff of affiliated colleges. Nothing has been indicated as to what emergency prevailed which entitled him to suspend the appellant even without waiting for a direction of the Management within 24 hours of the report sent by him to the Management. It is also not understandable as to why the appellant was debarred from entering into the premises of the institution and why the request of the appellant that an independent agency may enquire into the matter, was not adverted to and an order was passed without considering his request refusing or accepting the same. In our view, it was not necessary to show anything beyond what has been indicated above. Plea of necessity of respondent No. 5 being there tn the enquiry committee also does not hold good in view of the discussion we have already held. The respondent No. 5 on flimsy and ridiculous ground refused to accept the request of the appellant to furnish copies of the documents by which charges were sought to be substantiated and proved against the appellant. The enquiry report was also not supplied. Refusal to supply documents also does not seem to be the decision of the enquiry committee but that of respondent No. 5 alone. It is indicated that the charge-sheet was issued by respondent No. 5. In our view, charge-sheet should have been Issued by and on behalf of the enquiry committee and not by respondent No. 5 alone. Similarly, request for furnishing copies of documents also should have been considered and then refused or allowed by the Committee and not individually by respondent No. 5. The committee should also have considered the request for enquiry by an independent agency.
36. In the result, in our view, the whole proceedings are vitiated and are liable to be set aside including the order of punishment, removing the petitioner/appellant from service.
37. Accordingly the appeal is allowed and the order of the learned single Judge and the order of removal of the appellant from service are set aside, with all consequential benefits. It is, however, provided that it will not bar the Management to initiate the proceedings against the appellant, if thought necessary, de novo.
38. Costs easy.