- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4790/ 1999 Suresh Dagdu Badgujar, age 46 yrs., occu.service, r/o Plot No.36, Abhiyanta Nagar, Wadi-Bhokar Road, Dhule-424002. ...Petitioner.. Versus 1] The State of Maharashtra, through the Secretary, Agriculture, Dairy Development, Animal Husbandry & Fisheries Department, Mantralaya, Mumbai. 2] The Maharashtra Public Service Commission, through is Chairman, Office at Bank of India Building, Fort, Mumbai – 400 023. ...Respondents... ..... Shri N.B. Suryawanshi, Advocate for petitioner. Shri K.B. Choudhary, Additional G.P. for respondent no.1. Respondent no.2 served. ..... CORAM: B.R. GAVAI & S.V. GANGAPURWALA, JJ. DATE: 17.08.2010 ORAL JUDGMENT (Per Gangapurwala, J.): - 2 - 1] Heard learned counsel for the parties. 2] The petitioner in the year 1983 was sent on deputation to Dhule Zilla Parishad as District Agricultural Officer. From August 1983 to 1984, the petitioner was also directed to hold the charge of the post of Agricultural Officer. During the said period, a notice came to be issued to the petitioner by the Chief Executive Officer on 6.11.1985 seeking his explanation with regard to the charges pursuant to the preliminary inquiry. 3] On 6.11.1985, a show cause notice was issued to the petitioner. The petitioner submitted his reply. Thereafter, four charges were framed and the departmental inquiry culminated. The disciplinary authority imposed punishment thereby reducing the pay of the petitioner by three increments for three years, also ordering recovery of Rs.80,000/-, so also the petitioner would not be granted any increment for further period of three years. The petitioner challenged the said order of the disciplinary authority before the Maharashtra Administrative Tribunal, Mumbai, by filing Original Application No.43/1998. The Tribunal dismissed the said Original Application vide its judgment and order dated 8.5.1998. Being aggrieved by the same, the petitioner has approached this Court. 4] Shri N.B. Suryawanshi, learned counsel for the petitioner canvassed following propositions: - 3 - [a] The officer, who was initially appointed as a Presenting Officer and who acted as a Presenting Officer for some time, was subsequently appointed as an Inquiry Officer and conducted the inquiry and the order passed by the disciplinary authority is based on the same inquiry report. [b] The officer, who conducted the preliminary inquiry, was examined as the only witness during the inquiry. He was cross-examined for some time and thereafter the said witness did not present himself for cross-examination, still his statement is relied upon for holding the petitioner guilty. [c] The documents, which were relevant, were not supplied to the petitioner. 5] Shri K.B. Choudhary, learned Additional Government Pleader, contended that one Mr.Chandratre had acted as Presenting Officer for a short period and as such though he has subsequently acted as an Inquiry Officer and submitted the report, still no prejudice is caused to the petitioner. The petitioner was given ample opportunity. Even Mr.Kute, who had conducted the preliminary inquiry and was examined, was sufficiently cross-examined, and such an exercise was sufficient. 6] It is not disputed by the respondent no.1 that Mr.Chandratre acted as Presenting Officer and thereafter he was appointed as an Inquiry Officer, who conducted the inquiry so also submitted the report. It is also not disputed by the respondent no.1 that the order of the disciplinary authority imposing punishment is - 4 - based on the inquiry report submitted by said Mr.Chandratre. It is a settled position of law that bias vitiates all actions. It affects the very solemnity of the proceedings. The proof of actual bias is not necessary. The test is whether there is reasonable likelihood of bias in the action. It is not necessary that such a bias must have in fact taken place. Shri Suryawanshi, learned counsel for the petitioner, has rightly relied upon the judgment of the Apex Court in the case of Rattan Lal Sharma V/s Managing Committee, Dr.Hari Ram (Co-education) Higher Secondary School & others ( AIR 1993 Supreme Court, 2155), wherein the Apex Court observed 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. It has been held by this Court in Secretary to Govt. Transport Dept. V. Munuswamy, 1988 (Suppl) SCC 651 : (AIR 1988 SC 2232), that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in State of U.P. V. Mohd. Nooh, 1958 SCR 595 : (AIR 1958 SC 86). In the said case, a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile. The officer holding the enquiry then left the - 5 - enquiry, gave evidence against the employee and thereafter resumed to complete the enquiry and passed the order of dismissal. This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.” The Tribunal has not considered this aspect and has ignored the same though the same was agitated in the Original Application itself. 7] More over, Mr.Kute, who had conducted the preliminary inquiry only he was examined as a witness. The petitioner cross-examined him and further cross- examination was incomplete. Thereafter, said Mr.Kute did not present himself for cross-examination. When a witness is examined and does not present himself for cross-examination and feels shy to face the acid test of cross-examination, then in such circumstances, his evidence can not be considered at all. 8] In view of the aforesaid reasoning, the impugned orders deserve to be quashed and set aside and as such there is no necessity to advert to other factual aspects of the matter. 9] In the light of above, we quash and set aside the impugned orders passed by the Tribunal as well as disciplinary authority and make the Rule absolute in terms of prayer clauses (B) & (C) of the petition. No order as to costs. At this stage, we are informed that the petitioner has retired from service in - 6 - November, 2009, and is not disbursed his retiral benefits. We direct the respondent no.1 to work out the retiral benefits of the petitioner on the basis of present order passed by us and pay the same to him along with arrears within a period of six months from today. (S.V. Gangapurwala, J.) (B.R. Gavai, J.) ndk/c1781011