IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 25777 of 2007(R) ---------------------------------------- PETITIONER(S): ------------------------ SHYLA.V., USHUS,PAZHAYANGADI, KOLLENGODU,PALAKKAD (DIST) HEADMISTRESS (UNDER SUSPENSION,),AUP SCHOOL, PANANGATTIRI,PALAKKAD DIST. BY ADVS. MR.M.BALAGOVINDAN MR.M.R.SASITH RESPONDENT(S): -------------------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION,SECRETARIAT, THIRUVANANTHAPURAM. 2. ASST.EDUCATIONAL OFFICER, KOLLENGODU,PALAKKADU DIST. 3. MANAGER, AUP SCHOOL, PANANGATIRY, PALAKKAD DIST. R1 & R2 BY GOVERNMENT PLEADER SMT.T.B.REMANI R3 BY ADVS.MR.P.K.SURESH KUMAR, SMT.PRIYA VIJAYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON 19/02/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.25777/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER OF SUSPENSION OF THE PETITIONER DTD. 16.3.05. P2:- COPY OF THE ORDER OF THE 3RD RESPONDENT IMPOSING PUNISHMENT TO THE PETITIONER DTD. 31.10.05. P3:- COPY OF THE REVISION PETITION BEFORE THE IST RESPONDENT DTD. 8.11.05. P4:- COPY OF THE JUDGMENT IN WP. 31716/05 OF THIS HON'BLE COURT DT. 12.10.06. P5:- COPY OF THE ORDER PASSED BY THE IST RESPONDENT ON 13.7.07. P6:- COPY OF THE COMMUNICATION OF THE INFORMATION OFFICER DTD. 29.5.07. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25777 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2010. JUDGMENT The final order passed by the disciplinary authority as confirmed by the Government in revision, is under challenge in this writ petition. 2. The petitioner was the Headmistress of AUP School, Panangattiry, Palakkad District. By Ext.P1, the Asst. Educational Officer granted permission to extend the period of suspension of the petitioner pending the disciplinary action. The short facts leading to the dispute are the following: 3. The petitioner had availed leave from 13.9.2004 to 19.9.2004 and rejoined for duty on 20.9.2004. During the period of leave she had entrusted all the charges of her office to the seniormost teacher by name Smt.Santhakumari. In her absence there was discontinuation of noon feeding to the students. The allegation appears to be that petitioner did not lift sufficient quantity of foodstuff from the Maveli Store concerned and had also misappropriated certain quantity of rice and green gram. The Asst. Educational Officer had conducted the enquiry and Ext.P2 is the order passed by the Manager confirming the punishment proposed. A punishment W.P.(C). No.25777/2007 2 of permanent reduction of rank to the category of Assistant Teacher was imposed. This was confirmed in revision by the Government as per Ext.P5. 4. It is contended that the entire disciplinary action was taken by the Manager only to help the immediate successor in office to promote him to the post of Headmaster, and he is a nephew of the Manager. The second respondent Asst. Educational Officer is the sister in law of the successor to the petitioner, Mr. Sabari. It is submitted that a vigilance enquiry was also conducted in the matter and the report will show that the allegations are not correct and in the said enquiry the only finding is regarding the damage caused to one bag of rice and a small quantity of green gram. Lastly, it is contended that the Asst. Educational Officer who had conducted the enquiry, itself granted sanction for imposing punishment. Therefore, the same amounts to violation of the principles of natural justice as it is evident that the Asst. Educational Officer who had occasion to conduct enquiry, was clearly biased against the petitioner. It is submitted that the same will vitiate the entire proceedings resulting in the imposition of punishment. The petitioner has since retired from service also. W.P.(C). No.25777/2007 3 5. On behalf of the Government, a counter affidavit has been filed. Along with a memo the vigilance enquiry report has also been produced before this court by the learned Govt. Pleader. 6. Learned counsel for the petitioner relied upon the following decisions of this Court: State of Orissa v. Binapani Dei and others (AIR 1967 SC 1269), Union of India v. Mohan Lal Capoor and others {(1973) 2 SCC 836} Chandran Kunhi v. State of Kerala and others (1976 KLT 908), J. Mohapatra and Co. and another v. State of Orissa and another {(1984) 4 SCC 103} and Baidyanath Mahapatra v. State of Orissa and another {(1989) 4 SCC 664}, in support of the plea of bias. 7. Learned Govt. Pleader submitted that under the relevant rules of Chapter XIV-A K.E.R. the Asst. Educational Officer is competent to give sanction and the said power has been exercised in terms of the statutory prescriptions and therefore the plea of bias cannot be sustained. It is pointed out that the charges against the petitioner were proved and therefore the order of punishment is liable to be upheld. 8. A reading of Ext.P5 shows that the main charges levelled against the petitioner is one of misappropriation of noon meal food stuff. According to the petitioner, she rejoined duty on 20.9.2004 after the leave W.P.(C). No.25777/2007 4 period from 13.9.2004 to 19.9.2004. When she rejoined duty, it was found that the food articles were not lifted as sufficient stock was not there in the concerned Maveli Store. Only on 24.9.2004 the food articles were released. What is alleged against her is that one bag of rice and certain quantity of green gram were separately kept in another room wherein damaged articles are kept and this was concealed for the purpose of misappropriation. This was found out by others after she rejoined duty, and according to the respondents, there was no proper explanation from her part. This is the aspect of misappropriation which is alleged to have been proved against her. 9. Ext.P5 Govt. Order shows that a vigilance enquiry was conducted by the Vigilance and Anti-corruption Bureau and the enquiry revealed that there was damage of one bag of rice and this was due to the carelessness of the suspect officer. Ext.P5 order states that the Government have examined the matter in detail with reference to the report of the Educational Officer and the enquiry report of Director, Vigilance and Anti-corruption Bureau. Learned counsel for the petitioner submitted that the only irregularity pointed out in the vigilance report is that the petitioner attempted to misappropriate one bag of rice and certain quantity of green gram and the report itself will show that the recommendation was only to realize the W.P.(C). No.25777/2007 5 amount from her and take action for attempted misappropriation. Actually there was not even an attempt to misappropriate, going by the report, contended the learned counsel. 10. Learned counsel for the petitioner submitted that the disciplinary action was initiated without waiting for the final outcome of the vigilance enquiry. My attention was invited to the contents of the report of the Vigilance and Anti-corruption Bureau. 11. A reading of the said report shows the nature of the allegations raised against the petitioner: She concealed 300 kgs. of rice and 100 gram of green gram in a room of the school where broken furniture are kept without bringing it in the stock register. According to her, the same is the quantity left over after use every day which was separately kept. It is revealed from the report that the depositions of various witnesses including the noon feeding officer showed that he found one bag containing 50 kgs. of rice as damaged with fungus attack. The teacher in charge Mrs. Santhakumari to whom the petitioner handed over the charge, in her deposition submitted that the petitioner, while proceeding on leave, had intimated her that the noon feeding stuff in stock is sufficient only for four days. She also informed that there are some quantity of food stuff in excess W.P.(C). No.25777/2007 6 to the stock which has been removed from the store room so as to keep away from checking by the checking authority. Finally, in para 10 the conclusion arrived at is that the food stuff was not transferred or shifted out of the school. The food stuff has not been transferred to the personal possession of the SO. Moreover, at the time of handing over the charge on 13.9.2004 the SO had intimated the facts to the teacher in charge also. The recommendation No.3 is to recover an amount of Rs.450/- being the cost of 1 bag of rice which was damaged due to the action of the petitioner. They had also recommended to forfeit the action taken by the Manager and recommended to take departmental action against the petitioner for her attempt to misappropriate the noon feeding stuff supplied by the Government. 12. It is therefore contended by the learned counsel for the petitioner that the finding in the domestic enquiry that she had misappropriated the food articles, is not correct, which according to him, is supported by the vigilance enquiry report also. Actually, the recommendation by the vigilance was to forfeit the action taken by the Manager, but in Ext.P5 the Government has wrongly mentioned that the Director of Vigilance recommended that there is no need to take any step to forfeit the action W.P.(C). No.25777/2007 7 taken by the Manager. A reading of the vigilance report shows that actually the recommendation was to forfeit the action taken by the Manager. 13. One of the main contentions raised is that in Ext.P5 the Government has not considered any of the aspects and has simply accepted the punishment and sanction given to it without appreciating the report of the Vigilance which conducted an indepth investigation in the matter. A reading of Ext.P5 shows that the Government has not elaborately considered the issue, but still, since those are mainly concerned about the questions of fact, this Court will be loathe to interfere with the same. 14. Therefore, the important question to be considered is with regard to the question of bias which according to the learned counsel Shri Balagovindan has vitiated the entire proceedings. 15. I will refer to the decisions cited by the learned counsel for the petitioner in this regard. In J. Mohapatra and Co.'s case {(1984) 4 SCC 103), the concept with regard to the principle that bias should be eschewed, was explained in para 9 in the following terms: “Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public W.P.(C). No.25777/2007 8 except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings.” Referring to the wellknown decision of the Apex Court in A.K. Kraipak v. Union of India {(1970) SCR 457}, it was held thus in para 10: “The Court held that the rule that no man should be a judge in his own cause was a principle of natural justice and applied equally to the exercise of quasi-judicial as well as administrative powers.” Therefore, it is evident that justice should not only be done, but should manifestly be seen to be done. In the later decision in Baidyanath Mahapatra's case [(1989) 4 SCC 664} wherein the participation of the member of a Review Committee which recommended compulsory retirement, as Chairman of the Tribunal, was found vitiated by the above principle. In para 8, the issue was examined and then the Apex Court was of the view that the principle of natural justice require that he should have abstained from hearing the appellant's case. The said position is clear from the following words: “There is a disturbing feature of this case which vitiates Tribunal's order. Shri Gian Chand, Chairman of the Tribunal, Ex-Chief W.P.(C). No.25777/2007 9 Secretary of the State of Orissa, was member of the Review Committee which made recommendation against the appellant for his premature retirement, and in pursuance thereof the State Government had issued the impugned order. It appears that Shri Gian Chand, had later been appointed as Chairman of the Administrative Tribunal. Shri Gian Chand, participated in the proceedings of the Tribunal, and he is party to the decision of the Tribunal. These facts show that Mr. Gian Chand, who had administratively taken a decision against the appellant, considered the matter judicially as a Chairman of the Tribunal, thereby he acted as a judge of his own cause. While it is true that there is no allegation of personal bias against Shri Gian Chand, he may have acted bona fide, nonetheless, the principles of natural justice, fair play, and judicial discipline required that he should have abstained from hearing the appellant's case.” 16. Various decisions have considered the question of applicability of the principle in circumstances wherein the authority had occasion to pre judge the facts specially relating to a party, which is distinct from predispositions about the general policy of law. While considering the question, the Apex Court in State of West Bengal and others v. Shivananda Pathak and others {(1998) 5 SCC 513} examined the elements required to prove bias and the whole concept about it in paragraphs 25, 30 and 33 thus: W.P.(C). No.25777/2007 10 “Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case. There is a distinction between prejudging of facts specifically relating to a party as against preconceptions or predispositions about general questions of law, policy or discretion. Though in the former case, a judge would disqualify himself, in the latter case, he may not. But this question does not arise here and is left as it is. It may not always be possible to furnish actual proof of bias. But the courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of “real likelihood of bias” or “reasonable suspicion of bias”. Reasonable suspicion” test looks mainly to outward appearances while “real likelihood” test focuses on the court's own evaluation f the probabilities.” 17. Therefore the question will have to be examined to find out whether there is any real likelihood of bias or reasonable suspicion of bias. The said principle was again reiterated in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others {(2001) 1 SCC 182} and it was held in para 35 thus: W.P.(C). No.25777/2007 11 “The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom--in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case.” The same view was reiterated in State of Punjab v. V.K. Khanna and others {(2001) 2 SCC 330} in para 8 in the following terms: “The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise.” W.P.(C). No.25777/2007 12 18. In fact, in a later decision in Delhi Financial Corpn. and another v. Rajiv Anand and others {(2004) 11 SCC 625} the Apex Court considered a case where the applicability of the principle was sought to be invoked where the person concerned himself has already done some act or taken a decision in the matter concerned already. While analysing the said issue, it was held in paragraphs 9 and 14 thus: “The doctrine that “no man can be a judge in his own cause” can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine “no man can be a judge in his own cause”. For that doctrine to come into play it must be shown that the officer concerned has a personal bias or connection or a personal interest or has personally acted in the matter concerned and/or has already taken a decision one way or the other which he may be interested in supporting.” 19. In a recent decision of this Court in Jailavudeen v. State of Kerala (2009 (2) KLT 232), the action of the enquiry officer in appearing for the management in proceedings before superior authority defending his own action, was held as one amounting to bias. It was held that in such cases, it can be seen that the person concerned did not have an impartial or W.P.(C). No.25777/2007 13 unbiased approach in conducting the enquiry. The following aspects were elaborated in para 3: “When a person from inside or outside the establishment, is appointed to conduct an enquiry, that person is expected to conduct the enquiry in a completely impartial manner. It is this impartiality, expected of an enquiry officer, that instills confidence, not only in the employer or employee, regarding the proceedings, but also in authorities who review those proceedings, on administrative, quasi- judicial or judicial processes. If the maker of a decision, including an enquiry officer or other subordinate authority tries to justify the reasons or views leading to decisions with adverse civil consequences, when questioned before a superior authority, that by itself is sufficient to disclose bias on the subject matter involved in the lis before a quasi-judicial or judicial authority, questioning such subordinate decision. This principle clearly applies even to cases of domestic enquiries where any anxiety shown by the Enquiry Officer to sustain the findings arrived at by him in the enquiry, is sufficient enough to demonstrate that he did not have an impartial or unbiased approach in conducting the enquiry. Once this has been clearly demonstrated by the appearance of the Enquiry Officer as the counsel for the establishment before the statutory authority hearing the application under R.176 of the Kerala Co-operative Societies Rules and in the statutory appeal before the Government, this Court need not labour much to go into the merits or demerits of the charges or the quality of the findings to arrive at the conclusion that the enquiry W.P.(C). No.25777/2007 14 itself has to be struck down and there has to be a de novo enquiry proceedings. This is what emanates from the basics of justice.” 20. The relevant rules contained in Chapter XIV-A K.E.R. are Rules 71 and 75 (11)(c). When the penalty is reduction to a lower rank in the seniority list or to a lower post or time scale, the same has to be done/imposed with the previous sanction of the Educational Officer in a case like this, going by Rule 71. Rule 75 (11)(c) also obliges the Manager to pass final orders imposing the penalty with the previous sanction of the competent authority. The word “Educational Officer” is defined under Rule 2(5) of Chapter I K.E.R. as follows: “ 'Educational Officer' means the District Educational Officer or the Assistant Educational Officer having immediate inspectional and administrative control over the school within his respective jurisdiction. The term shall also include any Officer to whom the duty of inspection for specific purposes has been entrusted by competent authority.” 21. Herein, the Assistant Educational Officer is the person who had conducted the enquiry and who had granted the sanction for imposing punishment also, going by Ext.P2 proceedings of the Manager. Therefore, the issue is whether, while granting sanction, the Educational Officer could W.P.(C). No.25777/2007 15 have taken an unbiased decision in the light of the fact that the said officer was the enquiry officer. 22. The next question is whether while taking a decision regarding the sanction for punishment, the Educational Officer is expected to consider the matter independently or mechanically. The position is no longer res- integra. In Manager, Palliprom U.P. School v. State of Kerala and others (ILR 1974 Ker. 555) while analysing Rule 75(11)(c) of Chapter XIV-A K.E.R., it was observed that the sanction is not one to be automatically or mechanically granted. The relevant findings are as follows: “The competent authority mentioned in the above clause is not an appellate authority in respect of the manager's decision either in the matter of his finding on the charges or the penalty proposed to be imposed on the teacher. At the same time the sanction is not one to be automatically or mechanically granted. The competent authority has to consider whether there is any material to support the finding, or the materials on which the finding is based are such on which any tribunal entrusted with the task of finding on a question of fact would act. If not, the competent authority should not grant the sanction. Again it has to consider whether the penalty proposed has any reasonable bearing to the charges found against the teacher. If W.P.(C). No.25777/2007 16 it is out of all proportion regarding the nature of the charges or it is one which would shock the conscience of a reasonable tribunal, then the competent authority should not grant the sanction. Except under the above circumstances, the competent authority is bound to grant the sanction sought for by the manager.” Later, a Division Bench of this Court in Fathima Beevi v. State of Kerala and others (ILR 1979 (1) Ker. 491), held thus in para 3: “The approving authority is not to act as a rubber stamp automatically approving the suggested punishment. Equally, he may not be an appellate authority sitting in judgment over the disciplinary proceedings. Between these two extremes, the limits of power of the approval must be found; and it is not altogether an easy task to fix his powers at the proper angle between the two extremes. On an overall view of the position, we cannot rule out altogether the appropriateness of the punishment as an element not germane at all to the question of granting or withholding previous sanction. We think we are fortified in this view by one of the provisions which appears in the statutory rules themselves. Rule 81 of Chapter XIV-A which provides for appeal against the imposition of punishment W.P.(C). No.25777/2007 17 by the Manager, provides that the appeal shall lie to the authority next higher in rank to the one who accorded sanction for the imposition of the punishment. This, it appears to us, can only be on the ground that it may not be altogether fair or proper