Court No. - 28
Case :- WRIT - A No. - 4269 of 2016 Petitioner :- Satish Chandra Gupta Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Udai Shanker Mishra,Suman Tripathi Counsel for Respondent :- C.S.C.,Jai Bahadur Singh,R.P.S. Chauhan
Hon'ble Siddharth,J.
Heard Sri U. S. Mishra, learned counsel for the petitioner and Sri Jai Bahadur Singh, learned counsel for the respondents.
This writ petition has been filed by the petitioner, praying for quashing of the impugned punishment order dated 03.11.2011, passed by the Chairman, Nagar Palika Parishad, Bisauli, District Badaun, respondent no.5 and Appellate Order dated 14/18.09.2015, passed by the Commissioner, Bareilly Division, Bareilly.
The brief facts of the petition are that a First Information Report was lodged against the petitioner, posted as Head Clerk in Nagar Palika Parishad Bisauli, Badaun and the respondent nos.5, 6 and 8, namely, Ashok Kumar Varshney, then Chairman, Nagar Palika Parishad, Bisauli, Badaun, Kamlesh Varshney, then Chairman, Nagar Palika Parishad, Bisauli and Sri R.P.Gupta, then Executive Officer, Nagar Palika Parishad, Bisauli, by Mukesh Jauhari, Executive Officer, Nagar Palikar Parishad, Baisauli, District Badaun, under Section 409 I.P.C., at Police Station Bisauli, District Badaun on 24.01.2008.
A Second First Information Report was subsequently lodged by the respondent no.5, Ashok Kumar Varshney, the then Chairman, Nagar Palika Parishad, Bisauli, Badaun against the petitioner, under Section 420/409, on 08.06.2009.
Thereafter, Ashok Kumar Varshney, co-accused of the petitioner in the First Information Report, issued a departmental Charge Sheet dated 07.01.2011, alleging financial irregularities against the petitioner and appointed an Enquiry Officer. The petitioner submitted his reply to the Charge Sheet and an enquiry report was forwarded to the petitioner along with second show cause notice by Sri Ashok Kumar Varshney and after the petitioner submitted his reply to the above notice, the impugned dismissal order dated 03.11.2001, was passed against him and his appeal was also dismissed by the Appellate Authority.
The learned Counsel for the petitioner has argued that the disciplinary authority, Ashok Kumar Varshney, was a co-accused in the First Information Report lodged by the Executive Officer on 24.01.2008 and only to victimize the petitioner by shifting the blame of entire financial irregularities on him and to save himself, Ashok Kumar Varshney instituted illegal disciplinary enquiry against him and punished him by way of dismissal from service. The petitioner has retired in the year 2015 and all his post retiral dues have been withheld by the respondents on the ground of dismissal from service. He has alleged baised and mala fide disciplinary proceedings against him by the respondent no.5 and has relied upon the Judgment of the Apex Court in the case of A.P. State Road Transport Corporation Vs. Satyanarayana Transports (Pvt.) Limited, AIR 1965 SC 1303, and has referred to paragraph no.9 thereof, which is as follows, 9. The position in law in regard to the plea of bias raised against the Minister is not in doubt. It is clear that when the Minister heard the objections to the proposed schemes under Section 68 D (2), he was dealing with the matter in a quasi-judicial manner and his inquiry had to conform to the principles of natural justice. It is an elementary rule of natural justice that a person who tries a cause should be able to deal with the matter before him objectively, fairly, and impartially. As has been observed in the Jewitt's Dictionary of English Law, "anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased"
. If a person has a pecuniary interest in the case brought before him, that is an obvious case of bias which disqualifies him to try the cause. If a person is hostile to a party whose cause he is called upon to try, that again would introduce the infirmity of bias and could disqualify him from trying the cause. In dealing with cases of bias, it is necessary to remember that "no one can act in a judicial capacity if his previous conduct gives round for believing that he cannot act with an open mind"
The broad principle which is universally accepted is that a person trying a cause even in quasi-judicial proceedings, must not only act fairly, but must be able to act above suspicion of unfairness. As was observed in Franklin v. Minister of Town and Country Planning, [1947] K.B. 702, "the use of the word 'bias should be confined to its sphere. Its proper significance is to denote a departure from the standard of evenhanded justice which the law requires from 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 or bias towards one side or the other in dispute"
. That being the true position in law about personal bias, there would be no. difficulty in holding that the Minister would be disqualified from hearing objections raised by the respective bus operators against the ten schemes if the material facts alleged by Ramakotaiah are held proved. It cannot be disputed that if the Minister had asked Ramakotaiah to help him in his election to the Election Committee of the Andhra Pradesh Congress Committee and when he was told that Ramakotaiah was unable to help him, he threatened him with dire consequences, that clearly would introduce a serious infirmity in the impugned order which the Minister passed under Section 68 D (2).
He has further referred to the Judgment in the case of G. Sarana, appellant Vs. University of Lucknow and others, respondent, AIR 1976 SC 2428 and has referred to paragraph nos.9, 10, 11, 12, 13 and 14, which are as follows-
9. It is needless to emphasize that the principles of natural justice which are meant to .prevent miscarriage of justice are also applicable to domestic enquiries and administrative proceedings (See A. K. Kraipak v. Union of India (1969) 2 SCC 262 = (1970) 1 SCR 457 = (AIR 1970 SC 150). It cannot also be disputed that one of the fundamental principles of natural justice is that in case of quasi judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias by which is meant an operative prejudice, whether conscious or unconscious towards one side or the other in the dispute.
(See Nageshwara Rao v. A.P. State Road Transport Corporation (1959) Supp 1 SCR 319 = AIR 1959 SC 308 and Gullapalli Nageshwar Rao V.
State of A.P. (AIR 1959 SC 1376) = (1960) 1 SCR 580.
10. It would be advantageous at this stage to refer to the following observations made by this Court in Manak Lal v. Prem Chand, 1957 SCR 575.
"Every member of a tribunal that sits to try issues in judicial or quasi-judical proceedings must be able to act. judicially; and the essence of judicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable'to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."
11 Again as held by this Court in A. K. Karipak's case (supra), reiterated in S. Parthasarthi v. State of Andhra Pradesh(1974) 1 Serv LR 427 and followed by the High Court of Jarainu & Kashmir in Farooq Ahmed Pandey and Ors. v. Principal Regional Engineering College & Anr. 1975 J and KLR 427 the real question is not whether a member of an administrative Board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group deliberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.
12 At page 156 of "Principles of Administrative Law" by J.A.G. Griffith and H. Street (Fourth Edition), the position with regard to bias is aptly and succinctly stated as follows :-
"The prohibition of bias strikes against factors which may improperly influence a judge in deciding in favour of one party. The first of the three disabling types of bias is bias on the subject- matter. Only rarely will this bias invalidate proceedings. "A mere general interest in the general object to be pursued would not disqualify," said Field J., holding that a magistrate who sub- scribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabled (1) [1959] Supp. 1 S.C.R. 319 :A.I.R. 1959 S.C. 308. (2) A.I.R. 1959 S.C. 1376: [1960] 1 S.C.R. 580. (3) [1957] S.C.R. 575 :A.I.R. 1957 S.C. 425. (4) [1974] S.L.R. 427. (5) [1975] J & K.L.R. 427. from trying a charge brought by that body of cruelty to a horse. There must be some direct connection with the litigation. If there is such prejudice, on the subject-matter that ,the court has reached fixed and unalterable conclusions not founded on reason or understanding, so that there is not a fair hearing, that is bias of which the courts wilt take account, as where a justice announced his intention of convicting anyone coming before him on a charge of supplying liquor after the permitted hours ...........
Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in any way affected.
The third type of bias is personal bias. A Judge may be a relative, friend or business associate of a party, or he may be personally hostile as a result of events happening either before or during the course of a trial. The courts have not been consistent in laying down when bias of this type will. invalidate a hearing. The House of Lords in Frome United Brewering v. Bath Justices(1) approved an earlier test of whether "there is a real likelihood of bias." the House of Lords has since approved a dictum of Lord Hewart that "justice should not only be done,, but should manifestly and undoubtedly be seen to be done" al- though it did not mention another test suggested by him in the same judgment: Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
13. At page 225 of his Treatise on "Judicial Review of Administrative Action" (Third Edition), Prof. S.A. De Smith, has stated as follows with regard to Reports and Preliminary decisions :--
"The case-law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously judicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias."
14. From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.
The respondents have filed their Counter Affidavit stating that the petitioner committed serious financial irregularities and was suspended by the order dated 19.11.2007 and thereafter charge sheet was issued to him in the year 2011 and he was dismissed from service by the order dated 03.11.2011. The Chairman of the Nagar Palika Parishad is his disciplinary authority and he was competent to initiate departmental enquiry against the petitioner and conduct enquiry against him. The proceedings against him were in accordance with the principles of natural justice and the enquiry report was submitted against him after considering his defence. No prejudice to his rights was caused.
The learned Counsel for the respondents has argued that merely because the disciplinary authority was co-accused, in an another First Information Report, it can not be inferred that he was biased against the petitioner and the disciplinary enquiry initiated by him was also biased and illegal. He initiated enquiry in due discharge of duties of his office and the enquiry officer was not suffering from any biased against the petitioner and therefore, it can not be presumed that the enquiry against the petitioner was biased and illegal. He has further stated that the case laws relied upon by the petitioner are not applicable to the facts of the case. The enquiry against the petitioner was in accordance with rules and he was given full opportunity to defend himself.
After considering the rival submissions it is clear that the Chairman, Ashok Kumar Varshney, was a co-accused in the Ist First Information Report lodged by the Executive Officer along with the petitioner and the allegation against both of them were common. The bias of Sri Ashok Kumar Varshney is prooved from the fact that he lodged the IInd First Information Report only against the petitioner regarding the same allegations as were made against him and the petitioner both, financial irregularities and embezzlement in the first FIR. However, Ashok Kumar Varshney instituted disciplinary proceedings against the petitioner during the pendency of the 2 criminal trials and after departmental proceedings dismissed him from service.
The Judgment of the Apex Court, clearly provides that where in Quasi judicial proceedings, the authority empowered has some personal interest and is biased, such a proceeding can not be said to be in accordance with the principles of the natural justice and human probabilities and ordinary course of human conduct are to be taken into consideration. It is apparent from the material on record that Sri Ashok Kumar Varshney had initiated the disputed disciplinary proceedings against the petitioner only to shift the entire blame on him and to create a defence in his favour. The third type of bias mentioned by the Apex Court in the case of Dr. G. Sarana (Supra) is involved in this case since the respondent no.5, Ashok Kumar Varshney was hostile as a result of the first FIR and therefore, to protect himself he dismissed the petitioner from service blaming him for all the financial irregularities and embezzlements.
The argument of the Counsel for the respondents that the enquiry officer was an independent and unbiased person and his report can not be said to be biased in not correct. In disciplinary proceedings, the enquiry officer is appointed only to assist the disciplinary authority in arriving at correct conclusion regarding the charges made against the delinquent employee and the final decision is always of the disciplinary authority.
In the present case, despite procedural compliance, the enquiry report submitted by the enquiry officer is absolutely illegal since none of the documents relied upon by the enquiry officer were proved by the authors/ executors of such documents. None of the documents were exhibited /numbered as exhibits before the enquiry officer, no presenting officer of the prosecution or the defence representative of the delinquent employee was appointed. No statement of any witness was recorded from either side and therefore, there is no question of any opportunity of cross-examination having been provided to the petitioner. Therefore, the enquiry report submitted by the enquiry officer before the disciplinary authority is absolutely illegal.
In view of the above discussions, it is clear that the entire enquiry against the petitioner was biased from very inception. The Judgments of the Apex Court relied upon by the Counsel for the petitioner clearly apply to the facts of the case of the petitioner. The enquiry proceedings against the petitioner were only procedural formalities and substantially they are illegal. The report of the enquiry officer can not be accepted to be in accordance with law and the punishment order passed against the petitioner on its basis is also illegal. The Appellate Authority has not applied its mind to the ground raised by the petitioner and it has not considered the question of bias and the validity of the enquiry proceedings, enquiry report and the justification of passing dismissal order on their basis by the disciplinary authority, respondent no.5.
Therefore, the impugned punishment order dated 03.11.2011, passed by the Chairman, Nagar Palika Parishad, Bisauli, District Badaun, respondent no.5 and Appellate Order dated 14/18.09.2015, passed by the Commissioner, Bareilly Division, Bareilly are hereby quashed. Since the petitioner has retired from service in year 2015, no fresh enquiry is being directed against him. No rule has been cited on behalf of the respondents to show that disciplinary proceedings against a retired employee can be initiated. Petitioner is entitled to be paid 50% of his arrears of salary and post retiral dues along with its arrears within 6 weeks from the date of production of the certified copy of this order before the respondent concerned. However, this judgment should not affect proceedings of criminal cases against the petitioner which shall be decided on their own merits.
This writ petition is allowed. No order as to costs.
Order Date :- 30.3.2018 SS