IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4239 OF 2003 WRIT PETITION NO. 4239 OF 2003 WRIT PETITION NO. 4239 OF 2003 Shri Jaywant Vishnu Berde ...Petitioner V/s. The Union of India & Ors. ...Respondents Mr.G.N. Salunke for the Petitioner. Smt.S.V. Bhanushali for the Respondents. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : MARCH 11, 2008 DATED : MARCH 11, 2008 DATED : MARCH 11, 2008 P.C. :- P.C. :- P.C. :- 1. By this petition, the petitioner challenges the order passed by the Deputy Inspector General, Western Zone, Central Industrial Security Force, dated 23th June, 2001. By that order, the appeal filed by the petitioner challenging the order was dismissed. That appeal was filed challenging the order dated 19th March, 2001 passed by Group Commandant, CISF Group, Headquarters, Navi Mumbai, imposing the punishment of removal from service on the petitioner. By that order, the Disciplinary Authority had also directed that the period of suspension from service of the petitioner from 31st May, 2000 till the date of the removal order, shall be treated as suspension and he would be entitled only - 2 - to subsistence allowance for that period. 2. Admitted facts are that the petitioner was holding the post of Constable and was at the relevant time posted at CISF Unit, JNPT Sheva, Navi Mumbai. The petitioner was placed under suspension by order dated 31st May, 2000 and a departmental enquiry was ordered against him. The principle charge levelled against the petitioner was that while he was on duty on 30th May, 2000, he accepted Rs.10/- as a bribe from one Anilkumar who was cleaner of the truck. From the documents supplied to the petitioner alongwith the chargesheet, it appears that one Dayashankar, Assistant Commandant had directed holding of preliminary enquiry against the petitioner. It also appears that during preliminary enquiry, statement of said Dayashankar was recorded. Copy of that statement was also supplied to the petitioner alongwith chargesheet. The petitioner on being served with the chargesheet which showed that Shri S.S. Sherawat who was holding the post of Inspector which is a post subordinate to the post of Assistant Commandant was appointed as Enquiry Officer. On being - 3 - served with the chargesheet, therefore, the petitioner submitted an application dated 7th September, 2000 to the Disciplinary Authority stating therein that Shri Sherawat has been appointed as Enquiry Officer, he is an officer subordinate to Shri Dayashankar. Shri Dayashankar has been cited as a witness against him in the inquiry. Shri Sherawat, the Enquiry Officer is presently working under Shri Dayashankar and therefore, an officer who is not presently working under Shri Dayashankar should be appointed as an Enquiry Officer. The petitioner noted his apprehension that because the Enquiry Officer is working under Shri Dayashankar, he may not be able to act independently. The Disciplinary Authority by communication dated 14th September, 2000 rejected the request for change of the Enquiry Officer. It appears that during the enquiry, Shri Dayashankar was examined as the first witness on behalf of the department. After completion of the inquiry, when the petitioner submitted his explanation before the Enquiry Officer, he repeated that he had demanded change of the Enquiry Officer because the Enquiry Officer is presently working under Shri Dayasankar who is the principle - 4 - witness against the petitioner. It appears that the Enquiry Officer submitted his report. In his report, he held that the charge levelled against the petitioner has been proved. On the basis of that enquiry report, the Disciplinary Authority passed order dated 19th March, 2001 imposing the punishment of removal from service. It was also directed that the period of suspension shall be treated as such. Perusal of that order shows that in that order, the Disciplinary Authority noted that the application made by the delinquent-petitioner for change of the Enquiry Officer because the Enquiry officer is serving under an officer who is witness in the enquiry. However, that application was rejected by order dated 14th September, 2000. Feeling aggrieved by the order imposing punishment, the petitioner preferred appeal before the appellate authority. One of the grievance made in the Memorandum of Appeal was regarding rejection of his application for change of the Enquiry Officer. The appeal was decided by order dated 23rd June, 2001. A perusal of that order shows that the grievance made by the petitioner about change of the Enquiry Officer in his Memorandum of Appeal has not even been referred to - 5 - or considered by the appellate authority. 3. The learned Counsel appearing for the petitioner submits that because the Enquiry Officer was posted under Shri Dayashankar who was an important witness against the petitioner, the Enquiry Officer was not in a position to be independent and therefore, the Enquiry Officer had bias, therefore, the request of the petitioner for change of the Enquiry Officer and entrustment of an enquiry to an officer who is not working as subordinate of Shri Dayashankar should have been accepted. The learned Counsel submitted that the enquiry held by Shri Sherawat is vitiated because of the violation of the principles of natural justice. 4. On behalf of the respondent, on the other hand, it is submitted that merely because the Enquiry Officer was working under Shri Dayashankar who was a witness to be examined in the enquiry, the enquiry is not vitiated. It is submitted that the petitioner will have to show from the record that the enquiry officer was actually biased against the petitioner. It was submitted that - 6 - the enquiry of the petitioner was conducted according to the principles of natural justice and therefore, the punishment imposed on the petitioner is not liable to be interfered with. 5. The position of the law in regard to the plea of bias raised against the Enquiry Officer is not in doubt. It is clear that when the Enquiry Officer was holding enquiry, he was acting as a quasi-judicial authority, therefore, principles of natural justice were applicable. 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. Anything which tends or may be regarded as tending to cause such a person who is acting in quasi-judicial capacity to decide a case otherwise than on evidence must be held to be biased. In dealing with cases of bias, it is necessary to remember that no one can act in a judicial capacity or quasi-judicial capacity if the position of such authority gives ground for believing that he cannot act with an open mind. The broad principle which is universally accepted is that a - 7 - person trying to cause even in quasi-judicial proceedings, must not only act fairly, but must be able to act above suspicion of unfairness. That being the true position of law about the personal bias in relation to quasi-judicial authority in the present case, we find that it is not difficult to hold that the Enquiry Officer in this case was disqualified to hold enquiry against the petitioner. 6. Perusal of the record shows that the preliminary enquiry was ordered by Mr.Dayashankar. During preliminary enquiry, statement of Mr.Dayashankar was recorded. In his statement recorded during preliminary enquiry, he stated that he questioned Anilkumar, the person who is alleged to have paid Rs.10/- to the petitioner and that before him, Anilkumar accepted that he paid Rs.10/- to the petitioner. Perusal of the proceedings of the departmental enquiry shows that Shri Dayashankar was examined as witness no.1 and he repeated in his deposition before the Enquiry Officer what he had stated in his statement recorded during preliminary enquiry. The said Anilkumar was neither cited as a - 8 - witness nor was examined as a witness. When the petitioner applied for calling Anilkumar as a witnesses, the petitioner was asked to call him as a defence witness. Perusal of the report of the Enquiry Officer shows that the Enquiry Officer has accepted the deposition of Mr.Dayashankar as it is and to a large extent, the finding of the Enquiry Officer that the petitioner is guilty of the misconduct alleged against him is based on the deposition of Mr.Dayashankar. Admittedly, Dayashankar was an officer under whom the Enquiry Officer was functioning. In this background, therefore, in our opinion, the petitioner was justified in apprehending that the Enquiry Officer will not be able to act independently and the petitioner, therefore, was justified in apprehending bias against him. The Supreme Court has considered the doctrine of bias in its judgment in the case of Gullappalli Nageswararao and Gullappalli Nageswararao and Gullappalli Nageswararao and others V/s. State of Andhra Pradesh and others, others V/s. State of Andhra Pradesh and others, others V/s. State of Andhra Pradesh and others, reported in AIR 1959 SC 1376. reported in AIR 1959 SC 1376. reported in AIR 1959 SC 1376. The observations of the Supreme Court in para 6, in our opinion, are relevant. Para 6 reads as under :- - 9 - At this stage, it would be convenient to notice briefly the decisions cited at the Bar disclosing the relevant principles governing the "doctrine of bias". The principles governing the "doctrine of bias" vis-a-vis judicial tribunals are well-settled and they are; (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal"; and that "any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias." The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i.e. authorities who are empowered to discharge quasi-judicial functions." 7. In our opinion, therefore, the Disciplinary Authority was not justified in rejecting the request of the petitioner for change of the Enquiry Officer and for appointment of an Enquiry Officer who is not working directly under Shri Dayashankar. In our opinion, imposition of penalty on the petitioner on the report submitted by Shri Sherawat, therefore, is violative of - 10 - the principles of natural justice and therefore, the order imposing punishment is liable to be set aside. So far as appellate order is concerned, this ground was raised in Memorandum of Appeal but has not been considered by the appellate authority. In our opinion, order of the appellate authority is also vitiated and is liable to be set aside. In our opinion, therefore, the following order would meet the ends of justice :- a) Order imposing punishment of removal of service on the petitioner dated 19th March, 2001 and the order passed by the appellate authority dated 23th June, 2001 confirming that order are set aside. b) As a consequence of this order, the petitioner to stand reinstated in service but he will continue to be under suspension as admittedly, during the holding of the departmental enquiry, he was under suspension. c) The respondent shall be free to hold a fresh - 11 - departmental enquiry against the petitioner, in accordance with law and in the light of the observations made above, however, considering the lapse of time and that the petitioner is continued to be under suspension, the respondent shall make an order of appointment of the Enquiry Officer within a period of three months from today and the enquiry shall be completed, as expeditiously as possible, in any case, within a period of eight months from the appointment of the Enquiry Officer. d) The respondent shall pay the petitioner subsistence allowance to which he may be entitled under the law from today till the Disciplinary Authority passes the order. e) The Disciplinary Authority while passing the final order shall make an order in relation to the suspension period from the date of suspension till 19th March, 2001 also in relation to the period from 19th March, 2001 - 12 - till toady as also in relation to the period from today till the date the Disciplinary Authority makes an order. 8. Rule is made absolute accordingly. No order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)