IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 33093 of 2009(F) --------------------------------------- PETITIONER(S): ----------------------- P.M.MONACHAN, S/O.P.M.KUNJUKUNJU, PULOOCHERIL HOUSE, VALANJAVATTOM P.O., THIRUVALLA (B GRADE GENERAL WORKER, TOKEN NO.1116, TRAVANCORE SUGARS & CHEMICALS LIMITED, THIRUVALLA) BY ADV. MR.S.SUBHASH CHAND RESPONDENT(S): ------------------------ 1. THE MANAGING DIRECTOR, OFFICE OF THE MANAGING DIRECTOR, TRAVANCORE SUGARS & CHEMICALS LIMITED, THIRUVALLA. 2. T.S.AKBAR KHAN, SENIOR MANAGER (PERSONNEL CUM SECURITY), TRAVANCORE SUGARS & CHEMICALS LIMITED, THIRUVALLA. R1 & R2 BY ADV. MR.E.K.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2009, THE COURT ON 14/12/2009 DELIVERED THE FOLLOWING: tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33093 of 2009 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2009. JUDGMENT The petitioner who is facing enquiry at the hands of the management, is seeking for a direction to change the enquiry officer, as according to him, the enquiry officer is biased and therefore if the enquiry proceeds further, it will be in violation of the principles of natural justice. 2. The circumstances leading to the dispute are the following: The petitioner is working as a B Grade General Worker under the Travancore Sugars & Chemicals Limited, Thiruvalla. Ext.P2 is the copy of the memo issued to him. Mainly, it is alleged that while the petitioner was working in the bottling hall of the company, on 14.10.2009 at about 4.35 p.m. he came out with a bottle of alcohol containing 750 ml. which was found out by the security staff on duty. The petitioner submitted an explanation to the memo and finally by Ext.P4, memo of charges were issued to him. 3. The second respondent is the Senior Manager (Personnel cum Security) who is appointed as the Enquiry Officer. An objection was taken by the petitioner as per Ext.P5 with regard to the person appointed as the Enquiry Officer, alleging bias which was rejected by Ext.P6. Ext.P7 is the wpc 33093/2009 2 copy of the notice proposing to conduct enquiry on 20.11.2009. 4. The first respondent has filed a counter affidavit in the matter. the circumstances under which the petitioner points out bias against the second respondent, are the following: There was a vigilance enquiry on the file of the Excise Vigilance, Trivandrum which was initiated against the second respondent and the petitioner was issued a communication as per Ext.P1 to appear before the Vigilance Officer on 27.10.2009 for recording his statement in connection with the vigilance enquiry. Accordingly, he appeared before the Vigilance Officer on 27.10.2009. But on the said day it came to his knowledge that the vigilance case itself was initiated on the basis of an alleged complaint submitted by him against the second respondent. The petitioner deposed that somebody has misused his name in the complaint and accordingly he blatantly denied the authorship of the alleged complaint against the second respondent and gave a statement that he had no connection whatsoever with the same. 5. It is the case of the petitioner that thereafter, the second respondent has been maintaining a grouse against him which resulted in the issuance of the charge memo. It is his case that the alleged action against him itself has been initiated based on a complaint by one member of the security staff, viz. Shri Alex Rajan on which the second respondent recommended wpc 33093/2009 3 disciplinary action against him. 6. In the counter affidavit filed by the first respondent, it is averred that the petitioner was issued with Ext.P2 show cause notice on the basis of a complaint filed by Shri C.T. Alexander and Shri R. Balachandran, security staff that the petitioner tried to unauthorisedly smuggle out 750 ml of alcohol from the bottling hall. The first respondent has denied the allegation raised by the petitioner against the second respondent of bias, as unfounded. It is pointed out that in the light of the stand taken by the petitioner that he has disowned the alleged complaint on the basis of which the vigilance enquiry was started, there is no basis for the apprehension of the petitioner. It is also submitted that even though the second respondent is holding additional charge of security section, he is not in any way connected or involved with the incident nor does he has any firsthand knowledge of the incident that is alleged to have taken place. He is the Senior Manager (Personnel & Administration) and his office is situated away from the bottling hall. The allegation that the second respondent has recommended disciplinary action, has also been denied. It is pointed out that the disciplinary action was initiated after the file was put up before the Deputy General Manager. The matter was again investigated by the Deputy Manager (Production) who is in charge of the IMFL bottling and it was wpc 33093/2009 4 thereafter that the decision was taken to issue charge memo. 7. It is also pointed out in para 4 of the counter affidavit that apart from the Managing Director, there are only four officers employed in the establishment. They are, the second respondent who is the Senior Manager (Personnel and Administration), Senior Manager (Finance), Deputy General Manager & Deputy Manager (Production). It is the Senior Manager (Personnel & Administration) who normally conducts domestic enquiries, as he is aware of the procedure. As regards the other officers are concerned, the Deputy General Manager who is the seniormost officer, is a technical hand who is in charge of routine matters in the absence of the Managing Director. The Senior Manager (Finance) is mainly in charge of accounts and other secretarial matters. The Deputy Manager (Production) is directly involved with the bottling plant and hence he cannot at any rate be appointed as the enquiry officer. 8. The petitioner has filed a reply affidavit inter-alia pointing out that in respect of certain other disciplinary matters, advocates have been entrusted with the task of conducting domestic enquiries and the same method can be adopted here, as he will not get any justice from the second respondent. 9. Learned counsel for the petitioner by relying upon the principles wpc 33093/2009 5 stated by the Apex Court in S. Parthasarathi v. State of A.P. {1974) 3 SCC 459} Ashok Kumar Yadav v. State of Haryana and others {(1985) 4 SCC 417}, Union of India v. Prakash Kumar Tandon (2009 KHC 4140) as well as Rattan Lal Sharma v. Managing Committee, Dr. Hari ram (Co-Education) Higher Secondary School and others {(1993) 4 SCC10}, contended that personal bias is a matter which would disentitle the enquiry officer from continuing the enquiry. A real likelihood of bias alone is required. Therefore, the apprehension of the petitioner, in the light of the fact that he was asked to depose in connection with the vigilance enquiry against the second respondent, satisfy the test of real likelihood of bias and therefore the first respondent need not stand on technicalities. 10. Learned counsel appearing for the respondents submitted that the circumstances of this case does not satisfy the test laid down by the Apex Court in various cases. The legal principles in considering such a question are evident from the decision relied upon by the learned counsel for the petitioner. In S. Parthasarathi's case {(1974) 3 SCC 459}, the principles stated in para 14 thus: “The test of likelihood of bias is based on the “reasonable apprehension” of a reasonable man fully cognizant of the facts. A real likelihood of bias has to be made to appear not only from the wpc 33093/2009 6 materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.” In the said case considered by the Supreme Court, in the light of a letter issued by the enquiry officer prior to the starting of the enquiry giving an opinion that the delinquent had to be dealt with departmentally and action should be taken against him, it was held that there was real likelihood of bias. Going by the principles stated by the Apex Court in para 16 of the said judgment, “the Court must look at the impression which other people have. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent.” Therefore, the said test should be satisfied. 11. In Ashok Kumar Yadav's case {(1985) 4 SCC 417}, the said principle was reiterated. The matter was not one concerning disciplinary enquiry, but was concerning a selection process in the matter of appointments to various posts. Their Lordships, were of the view in para 16 wpc 33093/2009 7 of the judgment, that “it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias, it is in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting. The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.” 12. In Union of India's case (2009 KHC 4140), the disciplinary proceedings were initiated after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. Accordingly, a view was taken that he should not have been appointed as an enquiry officer at all. In Rattan Lal Sharma's case {(1993) 4 SCC 10}, it was held in paragraphs 10 and 11 thus: “One 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. A predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal wpc 33093/2009 8 bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. For appreciating a case of personal bias or bias to the subject-matter the test is whether there was a real likelihood of bias.” 13. The question as now mooted in this writ petition is whether the second respondent is having a hostile attitude to him. In Administrative Law, Ninth Edition by H.W.R. Wade & C.F. Forsyth, the following principles have been delineated at pages 468, 469 and 471, to examine as to how varied situations may lead to an inference of bias: “One class is where the adjudicator has supported the application, complaint or prosecution which comes to be adjudicated. A justice who has proposed a prosecution, or has voted for it, as a member of a local authority is naturally disqualified; but he may act, it seems, if he was merely present at a meeting which resolved to institute proceedings, provided that he took no active part, despite the fact that he may well have been influenced by things said at the meeting. In some situations mere membership, without participation, may invalidate the adjudication. Mere membership of a prosecuting body, however, raises questions of degree, and there may be a situation where a member who was inactive in the matter is not disqualified. wpc 33093/2009 9 The theory was further explained in the following words: “Among other obvious cases of prejudice are personal friendship or hostility and family or commercial relationship.” 14. Thus, the crucial test is whether, going by the averments contained in the writ petition, there can be an inference of real likelihood of bias. The petitioner alleges hostility towards him on the part of the second respondent. In support of the plea, Ext.P1 is mainly relied upon. Even going by the averments in the writ petition, it can be seen that the petitioner even though was called upon to depose against the second respondent, he denied his involvement in the matter. It is further pointed out by the learned Standing Counsel for the respondents that the vigilance investigation did not go further also. Therefore, as the deposition of the petitioner was actually in favour of the second respondent, the argument that the same will create a hostile attitude in the mind of the second respondent, to evidence a case of bias, cannot be supported. It is the case of the petitioner that still the second respondent is harbouring hostility towards him. But no material has been produced in this writ petition in support of the above plea. Even though it is the case of the petitioner that the present disciplinary action was one recommended by the second respondent, the same has been denied in the counter affidavit filed by the wpc 33093/2009 10 first respondent. It is pointed out that disciplinary action was initiated after the file was put up before the Deputy General Manager only. Even though it is alleged by the petitioner in the writ petition that one security staff, viz. Shri Alex Rajan working under the second respondent gave a complaint against the petitioner, it is revealed from the counter affidavit that the same is also not correct. Ext.P2 memo was issued to the petitioner on the basis of a complaint filed by Shri C.T. Alexander and Shri R. Balachandran, security staff. 15. Therefore, it is too premature at this stage, to conclude that there will be real likelihood of bias if the enquiry is proceeded by the second respondent as enquiry officer. Unlike in Parthasarathi's case {(1974) 3 SCC 459}, there is no material either by way of a letter or a communication or a noting in the files, from the part of the second respondent to justify the contention of the petitioner that even at the stage of initiation of disciplinary action, the second respondent was involved in the matter, particularly in the light of the denial of the same by the first respondent in the counter affidavit. 16. Learned counsel for the petitioner then vehemently contended that the fact that the petitioner was asked to depose in the vigilance investigation itself will result in bias towards him by the second respondent. wpc 33093/2009 11 As found already, there is nothing to show that the petitioner had occasion to depose against the second respondent in the said vigilance enquiry which normally would have made a difference. The learned counsel for the petitioner further pointed out that at a later stage probably there may be chances of materials emanating in the matter, but that is not an aspect this Court can consider at this stage. The disciplinary enquiry is only at the threshold. In the light of the pendency of the writ petition, the matter was being adjourned. 17. Therefore, I am not satisfied that the petitioner has made out a strong case for interference at this stage, for removing the second respondent as enquiry officer. The writ petition is dismissed. This will not preclude the petitioner from pursuing his contentions at a later stage, in regard to the aspect of bias, if there is any concrete material in support of it and if so, he can call upon the attention of the competent authority and the dismissal of the writ petition will not stand in the way of it. No costs. (T.R. Ramachandran Nair, Judge.) kav/