pt Petition Nos 130  195 of 1991
IN Civil Appeal No 2054 of 1990 From the Judgment and Order dated 23187 of the Central Administrative Tribunal Calcutta in TA No 126386
GS Chatterjee and Avijit Bhattacharjee for the Appellants
Dr Anand Prakash P Narasimhan for BK Prasad for the Respondents
The Judgment of the Court was delivered by RM SAHAI J
Why the appellants should have been forced to file these contempt applications for enforcement of the order passed by this Court as far back as on 30th April 1990 in Civil Appeal No2054 of 1990 is not without reason
Grievance of the applicants is that despite clear findings recorded by this Court opposite parties are going back on it and persisting in the implementation of the order in a manner which frustrates the entire purpose for which the applicants approached this Court and is a clear violation of directions of this Court issued on 30th April 1990
Entire dispute centered round the practice of exercising option by Assistant Station Masters who were recruited directly
Were they left any choice in the matter or was it compulsory
It was held by this Court that various letters issued made it clear that the option had to be exercised at the time of appointment and where no option was exercised it was deemed to have been exercised
This Court found that the applicants were those persons who had to exercise option at the time of appointment and their options were irrevocable
Effect of this was that they had 758 to wait till 1983 when restructuring was done
The Court further found that the cadre of Assistant Station MasterStation Master in South Eastern Railway was separate and not combined
But the Chief Personnel Officer applied alternative1 which under restructuring was to be applied to a zone where combined cadre was in vogue as it was acceptable to leaders of the Union and was beneficial to large number of employees
The Court therefore did not interfere with implementation of the alternatives but protected the interest of the applicants by holding thus But both the employees unions have accepted the implementation of the letter of Chief Personal Officer as it is beneficial to a majority of the employees
Therefore it may not be disturbed
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options
 What remained thereafter which could not be clear to opposite parties cannot be appreciated
The order left no ambiguity that these employees shall be treated separately and would be granted benefit which would have been available to them
That was possible and obvious if alternative 11 was applied to them
It was for this reason that the Court directed to create even additional posts
Attempt was made by the learned senior counsel to urge that it shall disturb seniority and may result in extending it to many others
We are afraid that this Court in these applications is concerned with the implementation of the order passed by it and not whether the order passed by it was correct or not
Neither of these submissions were raised earlier and if had been raised they should be deemed to have been rejected
Even earlier it had been made clear that no one promoted shall be disturbed
We therefore direct opposite parties to implement the order of this Court in respect of 204206 employees by applying altemative II to them for purposes of determining their placement and promotion
After their placements and promotions are so determined under alternative II then they may be governed by the present alternative for future promotions
Six months  time was granted in 1990
The opposite parties have delayed it by nearly two and half years
We direct the opposite parties to finalise it within two months from today
The promotions and all benefits shall be given retrospectively
No application for further extension by opposite parties shall be entertained
Failure to comply with the directions shall not be treated lightly in future
759 We are not taking any action in the circumstances for the present
The contempt applications are disposed of accordingly
But the respondents shall pay a sum of Rs 5000 as costs to the applicants
UR Contempt Petition disposed of


Summary:
The appellant appointed Principal of Dr Hari Ram Co education Higher Secondary School was placed under suspension and a charge sheet containing 12 charges issued to him
Charge No 12 accused him of use of an unaccounted sum of Rs 12937 given to him by Maru Ram teacher in charge of amalgamated fund
The enquiry committee constituted comprised 3 members of which the said Maru Ram was a member
Maru Ram deposed as a witness for the administration in support of charge No 12
The appellant s objection to the inclusion of Maru Ram on the enquiry committee was overruled and he was found guilty of some of the charges including the said charge and the Managing Committee proposed to dismiss him from service
The appellant s application for inspection of documents to enable him to make his representation before the Deputy Commissioner the confirming authority under S32 of the Punjab Aided Schools Security of Service Act 1969 was rejected by the Managing Committee the Deputy Commissioner and the Commissioner
The appellant then filed a writ petition in the High Court for quashing the enquiry report and the orders passed by the Managing Committee the Deputy Commissioner and the Commissioner
The Managing Committee opposing the petition contended that the enquiry committee was not partial or inimical towards the appellant
It was 864 contended that maru Ram was the only teacher member of the Managing Committee other than the appellant himself  therefore only Maru Ram could be taken in the enquiry committee as a representative of the teachers  union
It was further contended that though the application for inspection had been made after his dismissal he had not been refused permission for inspection he had been asked to indicate the rules under which he could see the file
A Single Judge of the Punjab and Haryana High Court allowed the petition on the ground that the departmental proceeding was vitiated by the flagrant violation of natural justice
Since one of the members of the Managing Committee acted both as a Judge and as a witness to prove one of the charges against the appellant despite the objections made by the appellant against the inclusion of such member in the committee the entire enquiry proceeding was vitiated
He held that the bias continued and percolated to the entire proceeding and should not be restricted to charge no 12
Since the enquiry report was required to be considered by the Deputy Commissioner for the purpose of affirming the proposed order of dismissal the fact of bias and prejudice was required to be considered and the appellant was not debarred from raising such vital plea of bias in the writ proceeding
The decision arrived at on the basis of an illegal and biased enquiry could not be sustained
On appeal the Division Bench reserved the order of the Single Judge
It held that the plea of bias was vague that the appellant had waived it by not raising it specifically before the Deputy Commissioner and Commissioner and that as the Deputy Commissioner was not influenced by charge no12 only but was impressed with some other charge no interference with the impugned order was called for
Allowing the appeal this Court HELD 1
In Administrative Law Rules of natural justice are foundational and fundamental concepts and the law is now well settled that the principles of natural justice are part of the legal and judicial procedures
871 E Franklin vs Minister of Town and Country Planning  Kishan Chand Arora vs Commissioner of Police Calcutta   Breen vs Amalgamated Engineering Union  Maneka Gandhi vs Union of India 1978 2 SCR 621 State of Orissa vs Bina pani Dei and AKKraipak vs Union of India  Ors1970 1 SCR 457 865 referred to
2Since the rules of natural justice are not embodied rules it is not possible and practicable to precisely define the parameters of natural justice
872 H Russel vs
Duke of Norfolk 1949 ALL ER109 Union of India vs PK Roy   AKKraipak vs Union of India and Prof Wade
Administrative Law edn 1988 p 503 referred to
3One of the cardinal principles of natural justice is Nemo debet esse judex in propria causa No man shall be a judge in his own cause
The deciding authority must be impartial and without bias
874 C Secretary tit Government Transport Department vs Munuswamy  and State of UP vs Mohd Nooh   referred to
874 C For appreciating a case of personal bias the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place
De Smith Judicial Review of Administrative Action 1980 p 269 R Sunderlal Justices at 373 R vs Sussex Justices at 259 Halsbury s Laws of England 4th Edn Vol2 para 551 and Manak Lal vs Dr Prem Chand   referred to
It is in this sense that it is often said that justice must not only be done but must also appear to be done
875 E 4In the facts of this case there was not only a reasonable apprehension of bias if one of the members of the enquiry committee but such apprehension became real when Maru Ram appeared as a witness against the appellant and
thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge
875 F 5The Division Bench dismissed the writ petition improperly on a technical ground that the plea of bias could not be raised in a writ proceeding especially when it was not specifically taken before the Deputy Commissioner and the Commissioner more so when this defence could be waived by the person suffering the prejudice
876 E 866 Generally a point not raised before the tribunal or administrative authorities may not be allowed to be raised for the first time in writ proceedings
Which is equitable and discretionary and interference is not a matter of course particularly when the plea sought to be raised for the first time in a writ proceedings requires investigation of facts
876 A AM Allison vs State of Assam
   referred to
But if the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact it is only desirable that a litigant should not he shut out from raising such plea
pp 19 20 876 C AS Arunachalam Pillai vs Ms Southern Roadways Ltd  and The Cantonment Board vs Pyarelal   referred to
6The bias of Shri Maru Ram one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind
The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner
876 G State of UP vs Mohd Nooh
  relied on