1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :
5823. OF 200.(s) Raj Bahadur Khare V/s Madhya Bharat Gramin Bank Pradhan Karyalaya, Sagar & Ors. Present : Hon’ble Shri Justice Rajendra Menon. -------------------------------------------------------------------------------------------- Shri R.K. Verma, learned counsel for the petitioner. Shri Ashish Shroti, learned counsel for respondents/Bank. --------------------------------------------------------------------------------------------
ORDER26.9.2012 Challenging the orders passed by respondent bank removing the petitioner from service vide order Annexure P-1 dated 8.12.2005 and dismissing his appeal vide order dated 4.4.2006 Annexure P-3, petitioner has filed this writ petition.
2. Petitioner Shri Raj Bahadur Khare at the relevant time when the impugned action took place was working as a Junior Management Grade-I in the respondent bank and was posted in Chandla Branch. He was appointed on 14.6.1978 and after earning various promotion due to his satisfactory service attained the position of officer in the cadre of Junior Management Grade-I”
3. It is the case of petitioner that while he was so working, his case for promotion was not being properly considered and the bank authorities were indulging in granting undue benefit to certain other employees in the matter of fixation of seniority, grant of promotion and various other service benefits, petitioner had being filing writ petitions before this Court challenging various actions of the bank, between the year 2003-2005. It is stated that he had filed 10 writ petitions and particulars of these writ petitions are given in para 3.1 of the petition. Reference is made particularly by the petitioner to two writ petitions namely W.P(s) No.110/2003 and W.P.(s) No.6508/2005, it is contend that these writ petitions were filed against the illegal promotion granted to various persons in an arbitrary and illegal manner and it was also pointed out that some of the officers who were granted these promotions were related to certain administrative authorities of the bank, like its Chairman.
4. Be it as it may be, it was the case of petitioner that at the relevant time i.e. in the year 2003 the then Chairman of the bank, one Shri S.K. Jain and the other officers came to his house on 27.9.2003 and tried to assault him, intimidate him, pressurized him for withdrawing the writ petitions filed. It is stated by the petitioner that because of the aforesaid he lodged an FIR with the police authorities against Shri S.K. Jain Chairman, Shri S. Agnihotri General Manager and one Shri N.C. Jain Sr. Manager, apart from Shri Prabhakar Shukla against whom one petition was filed. It is stated that the case was 3 registered by the police authorities i.e. Police Station Kotwali Teekamgarh and challan was filed in the Criminal Court on 18.3.2004. According to petitioner because of the aforesaid act of the petitioner the respondents got annoyed with the petitioner and, therefore, a charge-sheet Annexure P-4 dated 28.4.2004 was issued to the petitioner. In the charge-sheet the first allegation against the petitioner was with regard to lodging of a false complaint against Officers of the Bank and further allegations in the charge-sheet pertained to various communications made by petitioner to officers of the bank particularly the Chairman Shri S.K. Jain, casting aspiration and accusations, various other irregularities in the matter of working of the petitioner were also pointed out. Petitioner submitted various applications seeking documents and other papers to enable him to submit a detailed explanation to the charge-sheets, Annexure P-6 and Annexure P-7 are the applications submitted by the petitioner. But however the request of petitioner for grant of documents were rejected by the Disciplinary Authority namely Chairman Shri S.K. Jain therefore, the petitioner was constrained to submit his reply to the charge-sheet without the documents. The petitioner submitted his reply to the charge-sheet and when matter was so pending it is stated that a second charge-sheet Annexure P-5 dated 28.9.2004 was issued to the petitioner and in this the allegation made was that in a communication made by petitioner on 4.5.2004 to the Chairman of the Bank, Shri S.K. Jain various uncalled-for comments and observations were made by the petitioner. It is indicated that petitioner is in habit of making false allegations 4 and casting aspirations on the superior officers and even during pendency of the proceedings after issuance of first charge-sheet dated 28.4.2004 as he had again indulged in similar act, therefore, the second charge-sheet was issued. Petitioner again sought for various documents but when the documents were not supplied, submitted his reply to the charge-sheet. The same was found to be unsatisfactory and, therefore, a departmental enquiry was ordered into the matter and Shri S.K. Jain the Chairman himself appointed an Inquiry Officer. The enquiry was conducted on various dates, petitioner participated in the enquiry on various dates but when petitioner did not appear in the enquiry on certain dates ex-parte proceeding were drawn. Subsequently the statement of witnesses were recorded in the enquiry, they were supplied to the petitioner, the witnesses were again produced for cross-examination by the petitioner, certain opportunity to examine defence witnesses were granted, which according to petitioner was not sufficient. Finally on the basis of the evidence and material that came on record the Inquiry Officer submitted his report to the Disciplinary Authority namely the Chairman Shri S.K. Jain who went through the enquiry report submitted his comments and on the basis of same the impugned action has been taken against the petitioner. Appeal filed having also been dismissed petitioner is before this Court.
5. Challenging the action on various counts Shri R.K. Verma, learned counsel appearing for petitioner at the very outset emphasized 5 that in the present case the entire action taken against the petitioner stands vitiated for the simple reason that the proceedings against the petitioner have been initiated by Shri S.K. Jain the then Chairman, who was not only the complainant and a witness but also acted as the disciplinary authority and imposed the punishment. Accordingly, the first ground canvassed is that Shri Jain, the Chairman was biased and had prejudices against the petitioner, he acted as a Judge and prosecutor and as this is impermissible, is in violation to the principles of natural justice the entire enquiry stands vitiated on this count alone and action taken against the petitioner is liable to be quashed.
6. The second ground canvassed was that petitioner had submitted an application for change of the Inquiry Officer because certain enquiry by the Central Bureau of Investigation was conducted against the Inquiry Officer on the basis of a report submitted against the Inquiry Officer and in the said enquiry conducted by the Central Bureau of Investigation petitioner had appeared as a witness and, therefore, the petitioner apprehends that he will not get justice from the particular Inquiry Officer he, therefore, sought for change of Inquiry Officer but his request was again rejected not only by Inquiry Officer but also by the Disciplinary Authority namely Shri S.K. Jain, accordingly on the ground of bias and prejudice of the Inquiry Officer, the second ground is canvassed.
7. The third ground of challenge is that proper opportunity to submit reply to the charge-sheet was not given. Documents prayed for 6 by the petitioner in support of allegations levelled in the charge-sheet and which were necessary to putforth his defence were not supplied and in the absence of documents being supplied it is stated that enquiry stands vitiated.
8. The fourth ground argued was that proper opportunity to examine defence witnesses were not granted, even though petitioner was permitted to examine certain witnesses but his claim to examine one Shri H.P. Khare as defence witness was denied and in the absence of proper opportunity being granted to examine witness in his defence the entire enquiry stands vitiated.
9. Finally the last ground canvassed was that appeal was not properly decided, the Appellate Board was not constituted properly in as much as the Chairman of the Appellate Board was not present and the appeal was decided in his absence. As the appeal was decided by the Board without the Chairman by appointing an Adhoc Chairman the entire proceedings before the Appellate Board stands vitiated.
10. Accordingly, Shri R.K. Verma by taking me through various documents available on record in support of his submission, emphasized and tried to demonstrate as to how the aforesaid grounds canvassed by him are established from the material available on record, he referred to various documents filed and available in the enquiry file in support of his contentions. That apart the following judgments were relied upon by him in support of the grounds canvassed by him, the judgments relied upon are:
7. 1. Nandkishore Jugalkishore vs Commissioner, Jabalpur Division AIR 196.(MP) 15.
2. S. Parthasarthi vs State Of Andhra Pradesh AIR 197.SC 2701.
3. G. Sarana vs University Of LuckNo.& Ors AIR 197.SC 2428.
11. Refuting the aforesaid contention advanced, Shri Ashish Shroti learned counsel submits that in the establishment of the respondents as per the rules applicable the Chairman is the Disciplinary Authority, who can take action in the matter and as there is no other authorities to whom the power of taking disciplinary action can be delegated the “doctrine of necessity”. warrants that action can be taken only by the said authority and not by any other authority. Accordingly, emphasizing that the power of disciplinary authority cannot be exercised by the next higher authority which is the appellate authority, Shri Shroti submits that the act of the Chairman Shri S.K. Jain in discharging the duties of disciplinary authority inspite of the fact that he was a witness does not vitiate the enquiry, as the act in question is protected by the “doctrine of necessity”.. In support of his contention in this regard he invited my attention to the law laid down by the Supreme Court in the case of Election Commission Of India & Anr. Vs. Dr. Subramaniam Swamy & Anr. 1996(4) SCC 104.Jagjit Singh Vs. State of Haryana & Others (2006) 11 SCC 1.State of U.P. Vs. Sheo Shanker Lal Srivastava & Others (2006) 3 SCC 27.and to another judgment of the Supreme Court in the case of A. Sudhakar Vs. Postmaster General, Hyderabad and Anr. (2006) 4 SCC 34.to say that the appellate authority cannot initiate the charge- 8 sheet or conduct the departmental enquiry. Accordingly, Shri Shroti tried to emphasize that the principle objection with regard to the Chairman Shri S.K. Jain being a judge in his own cause will not apply in the peculiar facts and circumstances of the present case, under the administrative set up, as is applicable to the bank in question. That apart, Shri Shroti submits that except for contending that Shri S.K. Jain Chairman has acted as judge in his own cause, no prejudice caused to the petitioner is pointed out. It was stated by Shri Shroti that in the charge-sheet Annexure P-4 issued to the petitioner apart from the false complaint and communication made to Shri Jain various other acts of the petitioner in of discharge his duties have been indicated and as action is taken collectively with regard to all these charges it is stated that there is no illegality in the matter. Shri Shroti points out that with regard to charge-sheet No.1 Annexure P-4 dated 28.4.2004 there are 9 allegations and as action is taken cumulatively for all the allegations the ground canvassed in this regard is unsustainable.
12. With regard to the second ground pertaining to bias of Inquiry Officer and the fact that petitioner was a witness to an enquiry against the Inquiry Officer Shri Shroti points out that the so called complaint and the grievance of petitioner with reference to this question is unsustainable. He referred to the so called complaint Annexure P-10, the report on which the enquiry was conducted by the Central Bureau of Investigation and submits that Annexure P-10 9 submitted by the petitioner against the Inquiry Officer is nothing but it was a spot audit report of the year 1996 the matter was investigated by the Central Bureau of Investigation and petitioner who had given the report was required to make his statement. It is stated that petitioner had only made certain statement with regard to the audit report which had got nothing to do with the official duties of Inquiry Officer and therefore, on this ground interference in the matter is not called for. It was also submitted by him that the complaint by petitioner in this regard was raised at a belated stage when enquiry has commenced and as objection was not raised in time, at a proper stage, on this ground interference into the matter is not called for. In support of aforesaid contention he invited my attention to the law laid down in the case of Dr. G. Sarana vs University Of LuckNo.& Ors AIR 197.SC 242.and certain other cases. It was further submitted by Shri Shroti with regard to the ex-parte enquiry being conducted and non-grant of opportunity that the enquiry was conducted on various dates. Shri Shroti referred to the proceedings of enquiry held on 4.12.2004, 3.11.2004, 21.12.2004 & 30.12.2004, the objections filed by petitioner vide Annexure P-12, decision on the same vide Annexure R-25 & R-26 and argued that all these proceedings go to show that it was petitioner who was deliberately trying to prolong the enquiry, was not participating in the enquiry and, therefore, Inquiry Officer had no option but to proceed with the enquiry in the manner done. Shri Shroti thereafter invites my attention to the proceedings of the enquiry and submitted that after all the witnesses in the departmental enquiry were 10 examined on behalf of prosecutor and when the prosecution had closed their case the statement of all the witnesses were forwarded to the petitioner along with chance to the petitioner to cross-examine these witnesses. Thereafter, in the enquiry proceedings held on 11.5.2005 all these prosecution witnesses were produced and they were cross- examined by the petitioner except P.W.-2 one Shri S.C. Jain in whose case petitioner refused to cross-examine. Shri Shroti accordingly, contend that even though on 21.12.2004 the enquiry was conducted ex-parte and certain witnesses were examined in the enquiry, but as all these witnesses were presented for cross-examination, by petitioner on 11.5.2005 there is no illegality in the matter as petitioner was given full opportunity to defend himself in the enquiry. Shri Shroti thereafter took me through the proceedings of enquiry held on 7.7.2005, 14.7.2005, 26.7.2005 and 27.7.2005 and submitted that before closing of the enquiry on 4.8.2005 petitioner was given opportunity to examine his defence witnesses, he participated did so and merely because his defence witnesses one Shri Saxena and Shri H.P. Khare were not examined the enquiry will not stand vitiated. Accordingly, by referring to the proceedings as indicated hereinabove Shri Shroti emphasized that the enquiry conducted was proper, full and fair opportunity was granted to the petitioner to participate in the enquiry and there is no illegality.
13. Thereafter, referring to applications submitted by the petitioner vide Annexure P-6 and P-7, the orders passed by the 11 competent authority as contained in Annexure R-7 Shri Shroti submits that all the documents which were relevant were supplied, the petitioner was insisting upon grant of irrelevant documents for filing reply to the charge-sheet, but in the enquiry all the documents which were necessary were made available and as no prejudice is caused due to non-supply of documents on these grounds interference into the matter is not called for, because actual prejudice cause is neither pleaded or established. Shri Shroti placed reliance on various judgments of the Supreme Court in support of the said contention.
14. Finally, with regard to the appeal not being decided by the competent authority Shri Shroti points out that as Disciplinary Authority was the Chairman and as the punishment order was issued by the Chairman, when the appellate Board met the Chairman left the proceedings of the Appellate Board and an Adhoc Chairman was appointed and after personally hearing the petitioner the appeal has been decided, therefore, there is no illegality in the matter. Shri Shroti points out that when the impugned order of punishment Annexure P-1 dated 8.12.2005 was passed Shri S.K. Jain did not discharge the duties as a Chairman or Disciplinary Authority, instead the function of Disciplinary Authority for the said action was discharged by Shri O.P. Tank and as the punishment order is passed by a different person, other than Shri S.K. Jain, the contention of petitioner that the enquiry and entire action stands vitiated due to Shri Jain being a judge in his own cause is of no consequence, because the final order of punishment 12 is imposed by a Chairman other then Shri S.K. Jain. He also submits that as the appeal is also decided by a competent Appellate Board and as Disciplinary Authority who was Chairman of the Appellate Board had left the proceedings the petitioner cannot have any grievance in the matter of decision on the appeal, as the same is ordered after due consideration by an independent body of members, who are unconnected with the case. Accordingly on the basis of aforesaid submissions Shri Shroti submitted that the action of the Management is legal and proper, same does not call for any interference.
15. In rebuttal to the aforesaid arguments of Shri Shroti, Shri R.K. Verma learned counsel for the petitioner refuted his contentions with regard to applicability of the principle i.e. “Doctrine of Necessity”. canvassed by Shri Shroti and argued that the said doctrine cannot be made applicable in the present case. It was submitted that the judgments relied upon by Shri Shroti are with regard to action taken by a Constitutional Authority wherein appointment of any other Adhoc Authority was not possible. It is argued that the 'Doctrine of Necessity' applicable with regard to discharging of duties by Constitutional Authorities cannot be made applicable in the cases of a departmental enquiry into misconduct by Disciplinary Authorities, as in such cases appointment of a adhoc disciplinary authority is possible and, therefore, on the ground of Shri S.K, Jain being a judge in his own cause, Shri R.K. Verma submits that the entire act stands vitiated”
16. I have heard learned counsel for the parties at length and have perused the record, so also the original enquiry file produced by Shri Shroti.
17. In all five questions arises for consideration in this writ petition, the first and the foremost question is as to whether the entire action taken against the petitioner stands vitiated because Shri S.K. Jain the Chairman acted as a Disciplinary Authority, a complainant, a witness, a prosecutor and finally as a Judge. Accordingly, a question of grave importance in this writ petition is with regard to Shri S.K. Jain acting as a Judge in his own cause.
18. The second question is with regard to competency of the Enquiry Officer in conducting the enquiry inspite of the fact that petitioner had made certain complaints against him vide Annexure P-10 and on this complaint an enquiry by the Central Bureau of Investigation was ordered in which submission of the petitioner was recorded.
19. The third question is as to whether non-grant of documents to the petitioner requested for vide Annexure P-6, Annexure P-7 and Annexure P-8 before submitting the charge-sheet vitiate the enquiry proceedings.
20. The fourth question is as to whether the enquiry stands vitiated due to non-grant of proper opportunity of defence to the petitioner in as much as proceedings were held ex-parte against the 14 petitioner on 21.12.2004 and whether right of the petitioner to examine his witnesses Shri H.P. Khare and Shri A.K. Saxena as defence witnesses vitiate the enquiry.
21. The fifth and the last question is as to whether the appeal in question was properly decided or not.
22. Before dealing with the questions as formulated hereinabove it may be appropriate to take note of the charges levelled against the petitioner in the two charge-sheets. The first charge-sheet is Annexure P-4 dated 28.4.2004 and in this charge-sheet nine allegations of misconduct are imputed and it is indicated that the acts/ complaints imputed therein are in violation to Regulation 17, 19 & 23 of the Bundelkhand Kshetriya Gramin Bank (Officer and Employees) Service Regulation, 2001 and, therefore, action is proposed to be taken. In this charge-sheet the first allegation against the petitioner is that he lodged a false complaint with the police authorities of Police Station Kotwali, Teekamgarh on 28.9.2003 and implicated the then Chairman Shri S.K. Jain and various other officers by making false complaint against them. It was indicated that as per the procedure applicable in the bank the petitioner should have first put up these grievance before the Grievance Committee and his act of lodging an F.I.R. directly before going to the Grievance Committee is said to be illegal. The second allegation against the petitioner are that in letters dated 23.10.2003 and 3.3.2004 he has used objectionable and indecent language against the officers of Bank particularly against Shri S.K. 15 Jain, the Chairman. The third allegation was that a notice was issued to him on 18.12.2003 and he did not given his reply to the said notice, inspite of several reminders. It was also alleged that he has committed default in submitting statutory return to the Reserve Bank of India and NABARD. The fourth charge was with regard to not following the directions issued in a circular dated 5.10.1998 regarding submission of internal audit report within three months, causing delay in submission of the reports. The fifth charge was with regard to disobeying certain directions issued by the competent authority on 13.8.2003 with regard to grant of medical leave and proceeding on medical leave even much prior to sanction of the same. The sixth charge was with regard to not deposit of duplicate key in the bank during internal audit conducted on 3.11.2003, another charge was with regard to certain directions issued in a order passed on 11.12.2003 not being complied with inpsite of reminders issued in December-January, 2003-2004. The seventh charge was general in nature and it was stated that petitioner was not paying full attention to the affairs of the bank, as a result grading of his branch has been brought down. The eighth charge was again with regard to performance of the bank in the year 2003-2004 and non- fulfillment of target in the said financial year. The ninth charge was again a general charge to the effect that petitioner is not taking interest in working, his devotion to duty is lacking and inspite of several punishment imposed in the past he has not improved. It is, therefore, clear from this charge-sheet that the most important allegation in the charge-sheet is with regard to act of petitioner in 16 submitting false report on 28.9.2003 and his act of writing letters using objectionable and indecent language against officers of the Bank, particularly the Chairman.
23. After this charge-sheet was issued and when proceedings into this charge-sheet was pending, the second charge-sheet was issued to the petitioner vide Annexure P-5 on 28.9.2004 and in this charge-sheet allegation against the petitioner was that in the communication made by him on 4.5.2004 to the higher authorities and the Disciplinary Authority he has used objectionable languate and sought for documents under presumption which were not even in existence. Thereafter, certain allegations with regard to his working was also indicated in this charge-sheet.
24. From the aforesaid narration of allegations levelled in the charge-sheet it would be seen that in both the charge-sheets the main allegation are insubordination, acts of indiscipline by the petitioner with regard to his conduct in lodging an F.I.R. against the Chairman Shri S.K. Jain and various other officers, making certain comments in two letters on 23.10.2003 and 3.3.2004 wherein he has made allegations against the Chairman of the Bank Shri S.K. Jain, these pertain to use of certain language/words against the Chairman, the Disciplinary Authority. It is, therefore, clear that the main crux of the allegations against the petitioner is with regard to his indisciplined act of insubordination, particularly in relation to certain act committed by him against Shri S.K. Jain, the then Chairman. In the F.I.R. Lodged by 17 petitioner, which is available on record, it is complained by him that Shri S.K. Jain and other officers came to his house pressurized him to withdraw all the writ petitions and tried to assault him. It is, therefore, a case where the petitioner is being proceeded against for making a false complaint against officers of the bank, writing letters with using objectionable words or using indecent language against officers of bank, one of whom happens to be Chairman of the bank and the Disciplinary Authority himself. It is in the back-drop of these vital facts that the first question of Shri S.K. Jain, the Chairman and the Disciplinary Authority being a judge in his own cause which is to be decided by this Court. If this finding is recorded in favour of petitioner and his contention in this regard are accepted the entire act against the petitioner has to be interfered with as it may vitiate the entire disciplinary proceedings.
25. It may be seen that both the charge-sheet Annexure P-4 and P-5 are issued by Shri S.K. Jain, the Chairman who was also the Disciplinary Authority, as already indicated hereinabove, there are allegations against Shri Jain in the F.I.R. lodged and the communications made with regard to his conduct towards the petitioner and his working as Chairman of the bank. Shri Jain took note of all these so called acts of commission and omission by the petitioner towards Shri Jain himself and issued the charge-sheets as indicated hereinabove, when the petitioner sought for various documents and material to give his detailed reply to the charge-sheets 18 and sought various material to give an explanation, the same was rejected by the same Disciplinary Authority, Shri Jain and he thereafter directed for an enquiry to be conducted into the matter. The Inquiry Officer was also appointed by Shri Jain and in the enquiry Shri Jain appeared as witness against the petitioner, gave his statement. It would be seen from the documents available on record that Shri Jain himself as the Chairman and the Disciplinary Authority of the bank issued various communications and passed orders in the departmental proceedings which bear the signature of the Chairman Shri Jain as Disciplinary Authority.
26. Be it as it may be, Shri Jain appeared in the departmental enquiry as witness after issuing charge-sheet and ordering enquiry and thereafter the Inquiry Officer submitted his report on 11.10.2005 which was received by Shri Jain himself as the Disciplinary Authority. Shri Jain thereafter went through the entire report of the Inquiry Officer and in an tabulated proceedings consisting of about 22 pages available from page 105 to 127 of the paper-book submitted the comments of the Disciplinary Authority on the Inquiry Officers report, the comments, as indicated hereinabove was prepared in tabulated form consisting of five columns, the first column was the allegation levelled against in the charge-sheet, the second column was with regard to the prosecution story, the third column was the defence and explanation of the delinquent employee, the fourth column was the finding of Inquiry Officer with regard to each allegation and the fifth 19 column was the comments and observations of Disciplinary Authority i.e. Shri S.K. Jain. This detailed comments of the Disciplinary Authority Shri Jain was again considered by him and thereafter Shri Jain himself issued a show-cause notice Annexure R-18 dated 10.11.2005 to the petitioner under his own signature asking him to show-cause as to why on the basis of the proved misconduct petitioner be not dismissed from service or removed from service. The petitioner's explanation was called for within 10 days to this show- cause notice dated 10.11.2005. The petitioner approached this Court and tried to challenge the show-cause notice, but this Court refused to interfere into the matter, as only show-cause notice was issued to the petitioner. Accordingly, petitioner submitted his explanation to the show-cause notice and the entire matter was thereafter placed before a different person namely one Shri O.P. Tank, who then passed the order of punishment on 8.12.2005. It is, therefore, clear from the aforesaid narration of fact that except for the act of passing of the order of removal from service on 8.12.2005 the entire act of initiating the action against the petitioner, giving evidence in the enquiry, considering the explanation and appointing Inquiry Officer receiving the report of enquiry, preparing the comment on the same, issuing show-cause notice for punishment was undertaken by Shri S.K. Jain and merely because the final punishment order was passed by Shri O.P. Tank, that also in a mechanical manner accepting the comments and observations prepared by Shri Jain, it cannot be held that Shri Jain had no role to play in the entire matter. It is the case where Shri Jain 20 was himself the complainant, he himself was a witness, he acted as a prosecutor, a judge and was instrumental in taking the impugned action against the petitioner. That being so, the contention of Shri R.K. Verma to the effect that Shri Jain has acted as a judge in his own cause has to be considered by this Court based on these facts. In the light of aforesaid factual aspect of matter wherein at each stages from the time of issuing of the charge-sheet till issuance of show-cause notice for dismissal/removal from service involvement of Shri S.K. Jain as Chairman and Disciplinary Authority is apparent. It is also a fact that the main allegation against the petitioner and the acts of commission and omission alleged against him in the charge-sheets (Annexure P-4 and P-5) are in relation to Shri Jain.
27. It is a well settled principle of law that a man should not be a judge in his own cause. The fundamental principle of natural justice, which is applicable in quasi judicial proceedings contemplates that the authority empowered to take a decision must be the one who acts without any bias towards one or the other side involved in a dispute. This is one important principle of natural justice and it should not only be done and followed but should manifestly and undoubtedly be seen to have been done. The basic principle governing the Doctrine of Bias which is applicable to a judicial tribunal or quasi judicial proceedings is that; (i) no man should be a judge of his own cause and (ii) justice should not only be done but should manifestly and undoubtedly seen to have been done. The result of these two 21 principles is that if a quasi judicial body or person acts in a manner which shown that the aforesaid principle is adversely effected or violated then bias is assumed to exists and such a person or body should not take part in the decision making process. In this regard the principle laid down by the Supreme Court as far back as in the year 1959 in the case of Gullapalli Nageswara Rao Vs. A.P. SRTC, AIR 195.SC 30.may be taken note of.
28. The principle of law in this regard requires that hearing by a quasi judicial authority should be conducted in a impartial manner and no person directly or indirectly involved in a dispute should be a party in the proceedings, any person who has any interest in the matter is deemed to have bias against one of the party concerned. In the case of State of U.P. Vs. Mohd. Nooh AIR 195.SC 86.in the conduct of a departmental enquiry against an employee a witness who was being examined in the enquiry turned hostile, at this stage the enquiry officer left the enquiry, entered the witness box, given evidence against the employee and thereafter resumed his role as the Enquiry Officer to conduct the enquiry and thereafter passed the order of dismissal. The dismissal was quashed and the Supreme Court held that the rule of natural justice were grossly violated in such case. Similarly in the case of Suman Bala Vs. Union of India (2005) 12 SCC 38.certain Disciplinary proceedings were initiated against an employee at the instance of the Commissioner of Income Tax, action was taken and after an order of punishment was passed the appeal preferred was 22 heard by the same officer and he dismissed the appeal. The proceedings were declared as vitiated by the Supreme Court. It is the cardinal principle of law that justice must not only be done, it should also be seem to have been done. These are basic principles of natural justice and are of fundamental importance in the matter of dispensation of justice and is applicable to proceeding held before a quasi judicial authorities. In the case of Union of India Vs. Tulsiram Patel (1985) 3 SCC 39.this principle has been upheld and it has been held that it is a requirement of the principle of natural justice and is applicable not only in civil and criminal cases but also in the exercise of judicial, quasi-judicial and administrative process.
29. In Light of the aforesaid principles if the cases relied upon by Shri R.K. Verma are taken note of, it would be seen that in the case of Nandkishore Jugal Kishore (supra) a Division Bench of this Court considered similar questions where the Collector of a District acted as Disciplinary Authority initiated action, appeared as witness in the enquiry and thereafter issued the order of punishment. This act was held to be in violation of principle of natural justice.
30. Similarly, in the case of S. Parthasarathi (supra), the act of an authority who had bias was held to vitiate the enquiry and by applying the 'real and likelihood' test and 'reasonable suspicion' theory the enquiry conducted by a person who was found to be biased was found to be vitiated”
31. It is, therefore, clear that in the present case the entire act and the role undertaken by Shri S.K. Jain the Chairman and the Disciplinary Authority has to be held to vitiate, the entire enquiry. At this stage it may be appropriate to take note of the judgment relied upon by Shri Shroti and consider the question of upholding the action of the respondents by applying the theory of 'Doctrine of Necessity'. In the case of Election Commission of India (supra) the matter pertains to exercise of power by the Election Commission of India as a constitutional authority and the observations made in para 16 of the said judgment with regard to the concept of 'doctrine of necessity' it has been indicated that it can be applied in certain unavoidable situations, when no other option is available, the observations and the principle laid down therein has to be taken note of in relation to a unavoidable situation that may arises, when no substitute officer/authority is available to discharge the statutory function. Similar is the position with regard to a judgment in the case of Jagjit Singh (supra) where decision by the Speaker of Legislative Assembly in disqualifying a Member of the Legislative Assembly was under consideration. These are cases where the concept of 'doctrine of necessity' is applied because the authority who had taken action is found to be a constitutional authority and whose substitute is not available or the situation and law warrants the said authority only to take action as no one else under law could be delegated with the power which was to be exercised by such constitutional functionary”
32. In the present case, I am of the considered view that no such unavaoidable situation or position is in existence. It is a case where a departmental enquiry is conducted against an officer of the Bank, who is posted in the junior management cadre and in the set-up of the bank there are various other senior officers who are exercising, supervising and undertaking administrative control over the delinquent employee. If Chairman happens to be the disciplinary authority and if the said disciplinary authority was a person who was the complainant and is also a witness in the departmental proceedings, then the appellate authority which consisted of a Board of Directors can always nominate an Adhoc Disciplinary Authority to discharge all the functions of the Disciplinary Authority. In the peculiar facts and circumstances of present case it is surprising that when an appeal was to be decided, Chairman who had passed the order of removal from service left the appellate proceedings, permitted the appeal to be decided by appointing an Adhoc Chairman to preside over the proceedings of Appellate Board, but when it came to appointment of a Adhoc Disciplinary Authority no such steps was taken. Normally in a case of departmental enquiry when the disciplinary authority is himself a witness or has some interest in the enquiry he should disassociate himself from the proceedings and the next Higher authority i.e. the appellate authority in this case should nominate a Adhoc Disciplinary Authority to proceed in the matter. If such a procedure is followed then the requirement of the principle of natural justice would be fulfilled and the allegations of bias and prejudice 25 removed. In a departmental proceedings where alternate options are available and when a adhoc Disciplinary Authority can be appointed, the 'doctrine of necessity' cannot be applied. The 'doctrine of necessity' can be made applicable only if there is no alternate available and the constitutional authority or the authority concerned who is to take action is the only person empowered under law to proceed in the matter. In a departmental proceedings when the delinquent employee against whom action is to be taken holds a post or a position over and above which various other superior officers are available, a disciplinary authority, adhoc in nature can always be appointed and, therefore, the 'doctrine of necessity' cannot be made applicable in such cases, as no unavoidable situation is in existence in such cases, to that extent I have no hesitation in rejecting the explanation and justification given by Shri Shroti to say that the Chairman Shri S.K. Jain had no other option. The principle applicable in the cases of exercise of power by the constitutional authorities where delegation of power is not possible cannot be made applicable in a case where under law itself the principle of delegation of authority can be made applicable.
33. This is a case wherein the facts, as narrated hereinabove, clearly indicates that in both the charge-sheet Annexure P-4 & P-5 the impugned allegations against the petitioner were with regard to certain acts of commission and omission committed against the Chairman of the bank Shri S.K. Jain, who happens to be 26 disciplinary authority and when Shri Jain acted as a Disciplinary authority, a prosecutor, a judge, requirement of law and the principle of natural justice are clearly violated. Shri Jain has acted as a judge in his own cause and in the proceedings held against the petitioner. It is a case where justice does not seems to have been done manifestly and, therefore, it is my considered opinion the entire action taken against the petitioner is violated, on this count alone and this Court is unable to uphold the impugned action. On this count Shri R.K. Verma is right in contending that as the Disciplinary Authority in the present case has acted as a judge in his own cause and had taken the action, the entire action impugned stands vitiated. In accepting the aforesaid submissions made on behalf of the petitioner the grounds and reasons as indicated hereinabove, this Court has no hesitation as the justification and explanation given by Shri Shroti by applying the “doctrine of necessity”. cannot be accepted. Accordingly, the first ground canvassed is found to be substantial enough to vitiate the entire action.
34. Having held so and having found the entire action to be contrary to law it is not No.necessary not for this Court to go into the other questions, as on the first ground itself the entire action stands vitiated. Accordingly this petition is allowed. The order of the disciplinary authority Annexure P-1 dated 8.12.2005 stands 27 quashed. As the appellate authority has also acted in dismissing the appeal without taking note of all these legal principles the order of appellate authority also stands vitiated and has to be quashed accordingly the order of appellate authority Annexure P-3 dated 4.4.2006 is also quashed. The petition is allowed. Petitioner be reinstated in service with all consequential benefit.
35. The petition stands allowed and disposed of, no order so as to costs. (Rajendra Menon) Judge ss/-