G.S. Singhvi, J.
1. The rule, that no man can be judge in his own cause, has been invoked by the petitioner who has sought relief of quashing of notice Ex. 16 dated 29/30th July, 1991, issued by the respondent No. 4 Bikram Deewan, who was holding the office of Public Relations Officer at Nayveli Lignite Corporation Limited, Jaipur. In order to decide the issues raised in the writ petition, it is proper to make a brief reference to the facts.
2. The petitioner was engaged as Chowkidar by the General Manager, Nayveli lignite Corporation Limited, Jaipur on daily wages of Rs. 25/- per day. The petitioner was posted at the Guest house of the Corporation and as per his claim, he was required to discharge the duties as Class IV servant. No written order of appointment had been issued in his favour. On 3.5.1991, the petitioner had made a complaint against the respondent No. 4. This complaint was addressed to the General Manager of the Corporation at Jaipur. In the complaint, the petitioner alleged that the respondent No. 4 is mis-behaving with him. A similar complaint, dated 30.5.1991 was made against the respondent No. 4 by six employees of the Corporation including the petitioner and in that complaint, they stated that the respondent No. 4 used to abuse and threaten the employees with dismissal from service, immediately after the petitioner had made complaint against the respondent No. 4, three notices dated 9.5.1991 were served on the petitioner. These notices have been placed on record as Exs. 4, 5 and 6. The petitioner submitted a reply to these notices on 13.5.1991. On 14.5.1991, the General Manager, Rajasthan Project of the respondent-Corporation appointed Shri S. Mohan, Officer-incharge, Nayveli Lignite Corporation, Bikaner as the Enquiry Officer. The Enquiry Officer Issued notices to the petitioner and called upon him to appear before him on 15.5.1991. The petitioner made a request on 16.5.1991 with the Enquiry Officer that he may be given some time to produce his witnesses. The petitioner says that notwithstanding his request, the Enquiry Officer did not give any opportunity to him and he closed the enquiry and send his report. On 29/30th July, 1991, the respondent No. 4 issued notice Ex. 16 to the petitioner. Therein, he took note of the report of the Enquiry Officer and observed that the Enquiry Officer has found the charges to have been proved beyond doubt. By showing himself to be the Disciplinary Authority the respondent No. 4 expressed his opinion that the petitioner should be removed from service. He directed the petitioner to submit his representation to the General Manager for review.
3. The petitioner has alleged that the respondent No. 4 had submitted complaint against him and he had appealed as witness before the Enquiry Officer Shri S. Mohan. After having performed the role of a complainant end the prosecution witness, respondent No. 4 assumed the task of Disciplinary Authority and came to the conclusion that the petitioner was guilty of the charges levelled against him and further expressed his opinion that the petitioner deserves to be removed from service. On the basis of these facts, the petitioner has alleged that the entire proceedings have been held against him with a closed mind and the respondent No. 4 has acted with bias and malice against him. He has pleaded that the impugned notice issued by the respondent No. 4 virtually fore- closed his right to continue in service and there has been a gross and patent breach of the principles of natural Justice and therefore the impugned notice should be quashed.
4. The respondents have raised preliminary objections on the ground of availability of alternative remedy under the Industrial Disputes Act of 1947, as also on the ground that the writ petition is pre-mature because it is directed against a show cause notice only. On merits, they have come out with the plea that in respect of allegations of mis-conduct, levelled against the petitioner, the officer at Bikaner was appointed as Enquiry Officer. The Enquiry Officer held the enquiry in accoreance with the principles of natural justice and since the petitioner is a daily wages employee, an officer in E-3 category, to which respondent No. 4 belongs, is competent authority to issue a notice to him. According to the respondents, the mere fact that the respondent No. 4 had lodged a complaint against the petitioner and has appeared as a witness before the Enquiry Officer, does not dis-entitle him to act as Disciplinary Authority and that, notice issued by him does not suffer from legal infirmity. According to the respondents, as a Disciplinary Authority, the respondent No. 4 is competent to issue notice and take appropriate action against the petitioner.
5. Before proceeding further, it will be appropriate to decide the preliminary objections raised by the respondents. The first preliminary objection relates to availability of alternative remedy to the petitioner. It has time and again expressed by the courts in this Country that jurisdiction Under Article 226 of the Constitution of India may not be exercised where an effective alternative remedy is available to an aggrieved person. This rule of not exercising jurisdiction Under Article 226, has been erroneously equated with a rule, which bars maintainability of a writ petition. In a number of decided cases, this fine distinction between the bar against maintainability of writ petition and the self-imposed rule of not entertaining the writ petition in case where alternative remedy is available, has been over-looked. The phrase 'non-maintainability', has been loosely used by the courts for non-suiting a petitioner. In Rqjasthan Pul Nigam Workers Union v. Rajasthan State Bridge Constitution Corporation (1991(1) RLR 188), a Division Bench of this Court has examined this aspect of the matter in great detail and has held that - jurisdiction of High Court Under Art; 226 of the Constitution of India can be exercised within constitutional parameters and the only provisions providing for exclusion of the jurisdiction of the High Court Under Article 226 of the Constitution, can be traced Under Articles 323A and 323B of the Constitution, which empowers the Parliament to enact a law providing for creation of specialised Tribunals and also for excluding the jurisdiction of High Court Under Article 226 of the Constitution of India. Therefore, in each any every case where an objection is raised by the respondents that the writ petition should not be entertained because of availability of alternative remedy, what the Court requires is to look into an to whether in the peculiar facts of that case it will be proper to non-suit the parties because an alternative remedy is available to him. The self imposed rule that the writ petition should not be entertained in cases where an alternative remedy is available to the petitioner, cannot be placed on the pedestal of law barring exercise of jurisdiction Under Article 226 of the Constitution. No court decision can possibly create a constitutional embargo on exercise of jurisdiction of the High Court. In so far as this case is concerned, the very foundation on case of the petitioner lies in the claim that the respondent No. 4 has acted as a complainant, as a witness and as a Judge and, therefore, his action is vitiated on account of violation of principles of natural justice. In such like cases, the rule that the court should not interfere because of availability of alternative remedy, has always been discarded. In Baburam Maheshwari v. Antrim Zila Parishad : [1969]1SCR518 , the Supreme Court had carved two excepts even to the self- imposed rule of alternative remedy. Their Lordships observed that where an action complained of has been taken under a statute which is unconstitutional or where principles of natural justice have been breached, the High Court cannot decline relief on the basis of availability of specialised remedy before any other forum. This rule has been followed in Vivek Prakash Mathur v. State of Raj. and anr. (1988(2) RLR 428) and once again by this Court in Manqj Kumar Bonsai v. State of Rqjasthan (1993(2) WLC 751). On the basis of principle referred hereinabove, I have no hesitation in over-ruling the first preliminary objection.
6. Equally untenable is the second preliminary objection, namely, that the writ petition should not be entertained because it is directed against a show cause notice. It is significant to note that Ex. 16 is not a show cause notice simplicitor. It contains a definite conclusion recorded by the Disciplinary Authority that the petitioner deserves to be removed from service. What the Disciplinary Authority (respondent No. 4) has done- is to call upon the petitioner to submit his representation to the General Manager of the Corporation for review of the decision. That apart, even if it is taken to be a show cause notice simplicitor, having regard to the facts of this case, I am of the considered opinion that in the face of patent breach of principles of natural justice, there is no reason for compelling the petitioner to suffer removal from service and then seek relief from the court. Once the court finds that the show cause notice is vitiated on account of patent and gross violation of the rules of natural justice, namely, that a man should not be a judge in his own cause; there is no justification for asking the petitioner to wait for the fait accompli and then move the court.
7. Coming to merits of the case, I would once again recapablate the facts in nut-shell. They are, that enquiry was initiated against the petitioner on the basis of complaints made by the respondent No. 4, against whom the petitioner had previously filed a complain on 3.5.1991. The respondent No. 4 has appeared in the inquiry as witness on behalf of the establishment in support of allegations levelled against the petitioner. His testimony has been relied upon by the Enquiry Officer for recording a finding adverse to the petitioner and now he has taken upon himself the task of acting as Disciplinary Authority.
8. It is, thus, more than evident that the respondent No. 4, who had prejudged the issue against the petitioner, who had already formed an opinion against the petitioner, who had pre- determined the destiny of the petitioner, has now taken upon role of a judge. A man, who has made a complaint against any person cannot act as authority who will decide the fate of the complaint. In a way, the respondent No. 4 has assumed triple roles namely that of the complainant, the witness and the judge. Therefore, it is logical to hold that the notice Issued by the respondent No. 4 containing his decision that the petitioner, should be removed from service, suffers from bias and prejudice. The rule of bias cannot be confused with malafides. An action may be vitiated on account of bias, even though it may not be malacious in fact.
9. Once the Court has found that the action of the respondent No. 4 in acting as complainant, as witness and then as Judge is vitiated on account of violation of principles of natural justice, there is every justification to quash the notice Ex. 16. However, Shri Manoj Kumar Sharma, learned Counsel for the respondents, has made streneous efforts to persuade the Court to hold that even though Ex. 16 may be tainted with bias and violation of principles of natural justice, this Court should not interfere because the petitioner has not shown that he has been prejudiced on account of violation of principles of natural justice. He has placed reliance on Managing Director, ECIL, Hyderabad v. B. Karunakar : (1994)ILLJ162SC . Shri Sharma also placed reliance on Harbans Lall v. The Commander, HQ. 135, Works Engineers, Jammu Cantt. (1970 Lab. I.C. 1448). On the other hand, Shri Joshi, learned Counsel for the petitioner has submitted that when an action is found to be tainted with bias or is in violation of rules of natural justice, the Court will issue writ as a matter of course (ex-debitio justicea). Shri Joshi placed reliance on the decisions of Supreme Court and other Courts in State of U.P. v. Mohammed Nooh (AIR 1958 SC 86), Arjun Chaubey v. Union of India and Ors. : (1984)IILLJ17SC , Nand Kishore Jagalkishore v. Commissioner, Jabalpur Division and Ors. : AIR1962MP15 and Shyamkant Tiwari v. State of M.P. (1986(1) SLR 558).
10. The applicability of principles of natural justice in administrative matters was considered by the Supreme Court, as early as in 1959. In Gullapplli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and anr. : AIR1959SC308 , their Lordships declared that where an action has been taken by an administrative authority in breach of principles of natural justice, a writ of certiorari can be issued to quash the decision of such administrative authority. In A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 , the Supreme Court made reference to the off-quoted decision of the House of Lords in Re H.K. (An Infant). 1967(2) QB 617, Reg. v. Criminal Injuries Compensation Board; Ex Parte Lain- 1967-2 QB 864 and a number of other decisions and declared that-the diving line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. In the said case, the Supreme Court laid down a test for determining as to whether a particular power is administrative or quasi-judicial and observed that:
The dividing fine between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determing whether a power is an administrative power or quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would also its validity if the instrumentalities of the State are not charged with the duty of discharging their function in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedure which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power....
That was a case in which a selection for substantive appointment under Indian Forest Services (Jammu and Kashmir cadre) by the process of screening was under-taken. One of the candidate was member of one of the Boards constituted for the purpose of adjudging suitability of candidates. Although he had not sat on the Board, which considered his own case, but he sat on Board which considered the cases of other competitors. Their Lordships of Supreme Court declared that very presence of one of the candidates on the Selection Board which had considered the candidature of other persons for adjudging the suitability, was sufficient to vitiate the selection Board, on the ground that said candidate will be deemed to be biased in his favour or at least against other candidates.
11. The dividing line between the administrative power and the quasi-judicial power, which was considered to be very thin in Kraipak's case (supra), has completely disappeared with the Judgment of Supreme Court in Maneka Gandhi v. Union of India : [1978]2SCR621 , where doctrine of fairness and public interest has been innovated by the Supreme Court for adjudging the validity of all administrative actions. What has been laid down in Maneka Gandhi's case (supra), is that every State action which is arbitrary, will be presumed contrary to Article 14 of the Constitution. While further expanding this rule in off-quoted judgment in Union of India v. Tulsi Ram Patel (AIR 1985 SC 1216), a Constitution Bench of Supreme Court has held that rules of natural justice form part of equality clause contained in the Constitution of India. This being the development of law, it is not possible for the Court to uphold an action which is vitiated on account of violation of principles of natural justice, by saying that the petitioner has failed to prove prejudice against him.
12. An argument, similar to the one advanced by Shri Sharma, learned Counsel for the respondents, was advanced before the Supreme Court in Board of Secondary and Intermediate Education, U.P. and Ors. v. Kumari Chittra Srivastava and Ors. : [1970]3SCR266 . While repelling the submission of learned Counsel that the rule of natural justice should not be observed in cases where a candidate is denied admission in examination, their Lordships observed that:. The learned Counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burden some but this price a small price indeed - has to be paid if we desire a society governed by the rule of Law....
13. In State of U.P. v. Mohammed Nooh (supra), Arjun Chaubey's case (supra) and other decisions on which learned Counsel for the petitioner has placed reliance, it has been clearly recognised that an action which is biased - is contrary to the rules of natural justice and an aggrieved party is entitled to a declaration of invalidity in respect of such action. A majority of Constitution Bench, in State of U.P. v. Mohammed Nooh (supra), observed:.the role of a judge and a witness cannot be played by one and the same person and it is futile to expect, when those rules are combined, that the judge can hold the scales of justice even.
14. In Arjun Chaubey's case (supra), the Supreme Court has observed:.Evidently, respondent No. 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar. In doing this, the respondent No. 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua respondent No. 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake is an inquiry must keep himself aloof from the conduct of the inquiry (emphasis supplied)...
15. In view of decisions referred hereinabove, I have no doubt in my mind that by assuming the role of the Disciplinary Authority, after having performed the role of a complainant and a witness, the respondent No. 4 has clearly allowed his action to be tainted with bias and malice. Thus, it is held that notice issued by the respondent No. 4 suffers from vice of patent and gross violation of principles of natural justice. The very fact that the respondent No. 4 acted in gross violation of rules of natural justice, is by itself sufficient to conclude that the petitioner has been prejudiced. Violation of natural justice is by itself prejudicial to the effected person because he is denied fair consideration by the person who is biased.
16. The decision on which Shri Sharma placed reliance in support of his submission that the Court should not interfere, did not help case of the respondents. What the Apex Court considered in Managing Director, ECIL, Hyderabad's case (supra), was an up-shoot of the decision of Supreme Court in Union of India v. Mohd. Ramzan Khan : (1991)ILLJ29SC . Their Lordships have upheld the principle of law laid down in Union India and Ors. v. Mohd. Ramzan Khan but further proceeded to observe that - where enquiry report is not furnished to a party, the Court should call upon the employer to produce a copy of the enquiry report and then examine himself as to whether non-supply of the enquiry report has vitiated the enquiry. If the Court comes to the conclusion that the evidence, produced during the course of enquiry is sufficient to bring home the charges, it is not required to quash the proceedings only on the ground off non-supply of copy of the enquiry report. In my view, this judgment has to be read as limited to issue which was raised before their Lordships. It is significant to notice that their Lordships were not called upon to examine a case involving violation of principles of natural justice in the context of bias nor did their lordships made reference to earlier judgment in the State of U.P. v. Mohammed Noon (supra) and series of other decisions.
17. Similarly, the decision of Jammu and Kashmir High Court in Harbans Lal v. The Commander, HQ, 135 Works Engineers, Jammu Cantt (1970 Lab. I.C. 1448). That was a case in which the order passed by the appellate authority was assailed on the ground of bias and while rejecting the argument, a learned Single Judge of Jammu and Kashmir High Court had held:
I must in conclusion also deal with another contention which has been half-heartedly advanced on behalf of the respondents. According to Mr. Amarchand as the impugned order was confirmed, by the C.E. (Chief Engineer) while disposing of the representation made by the petitioner, the rejection of the representation should be treated as equivalent to the order passed by the competent authority. A more or less similar contention raised before me in... was repelled on the authority of Suraj Narain Anand's case, AIR 1942 FC 3 where it was held:
It was next contended on behalf of the respondent that as the plaintiff in the present case had appealed to the Inspector General of the Police against the Deputy Inspector General's order dismissing him, the rejection of that appeal was equivalent to a dismissal from office by the Inspector General himself and as such sufficient to satisfy Sub-section (2) of Section 240 of the Act. We cannot accede to this contention. In theory as well as in practice there is a well marked difference between a decision given by an officer who acts in the consciousness that he is primarily responsible for the investigation and decision of the case and the fact of one who is expected to only satisfy himself that another officer who had the primary irresponsibility has properly dealt with the case. The distinction seems to us one of the substance and is not merely formal or technical.
18. The principle which has been laid down by the Jammu and Kashmir High Court has no relevance and applicability to the controversy involved in the present case.
19. In the result, the writ petition is allowed. Notice Ex. 16 is declared illegal and void and the same is quashed. The petitioner shall get consequential benefits. However, it is made clear that this order shall not prevent the respondents from taking further action against the petitioner in accordance with the provisions of law and principles of natural justice.