%(é5;/ l IN THE HIGH CO‘UEQT OF CHHATTISGARH AT BILASPUR WRIT PETmON (S) No. 7?»?G572Qoa PETITIONER /’ :Chhedilal Pandey $/o Late Bhuneshwar Prasad Pandey Aged about 57 years, RIO Daroga Para Dist- Raigarh (C.G) Versus WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A SUITABLE WRIT ORDER OF DIRECTION \ TO DO JUSTICE IN THE MATTER. _ V: 6 i RESPONDENTS / 1. State of Chhattisgarh Through the Secretary, Department , of Gramodyog, 4‘ D.K.S. Bhawan, Raipur (C.G) \ §9§ ( Q§~§w7 Q? ‘ r tr% \df.’ Q° / Q? K966 ‘1‘ z ‘ Chairman Chhattrsgarh . Khadr . & Gramodyog Board, 4/0:}C>w Raipur (C.G) $6 3. / Managing Director CG Khadi Tatha Gramodyog Board 7 Raipur (oe) Manager CG Khadi Tatha Gramodyog Board _ I Zita Panchayat Office, Baikunthpur, HIGH COURT OF CHHATTISGARH AT BILASPU_R WRIT PETITION (S) No. 7205 of2008 PETITIONFR : Chhedilal Pandey‘ RESPONDENTS : State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA w SB: Hon’ble Shri Satish K. A nihotri J. VERSUS Shri H.S.Ahluwalié, Advocate for the petitioner. Shri M.P.S.Bhatia, Deputy Government Advocate for the State. Shri M.K.Bhaduri, Advocate for the respondent No. 2 to 4. ORDER ORAL (Passed on 30‘ day of April, 2010) By this petition, the petitioner seeks a writ of certiorari for quashing the appellate order dated 13.08.2008h(Annexure P/l) and the order dated 28.03.2008 (Annexure P/6) whereby the petitioner has been terminated from service. The facts, in nutshell. as projected by the petitioner are that the petitioner was working as District Inspector, Gramodyog, District Panchay'at, Koria. On 26.04.2007, a departmental enquiry was initiated against the petitioner by the respondent No. 3 after framing charges viz. issuing registration certificate to a unit in an illegal manner, acting contrary to the order of the Board and Rules, acted in a mannerso asto benefit M/s. Friends Firm. Enquiry Officer and Presenting Officers were appointed and after enquiry, the petitioner was found guilty 0f the aforesaid charges and an order of dismissal from service was passed on 28.03.2008 (Annexure P/6). The petitioner challenged the said order before the appellate authority i.e. the respondent No. 2. The same was also rejected. Thus, this petition. Shri Ahluwalia, learned counsel appearing for the petitioner submits that the charges are vague and have not been proved in accordance with law. The first charge with regard to issuance of Registration Certificate to one private flrm is concerned, it is baseless as it was for the District Committee to issue the Registration Certificate and it was not within his authority. The second charge with regard to non compliance of the orders and rules, regulations of the Board has also not been specifically proved. There is also no basis to hold that the third charge to the effect that the petitioner has benefited M/s. Friends Firm in an illegal manner, has been proved. Shri Ahluwalia further contends that the disciplinary authority i.e. the respondent No. 3, who has passed the impugned order of termination from service, has also acted as an appellate authority and has rejected the appeal of the petitioner, which is contrary to the well settled principles of law. On the other hand, Shri Bhaduri, learned counsel appearing for the respondent N0. 2 to 4 submits that the petitioner was a habitual offender and at many earlier occasions, the petitioner has been punished with imposition of penalties such as recovery of pecuniary loss, stoppage of annual increments, censure etc. The charges levelled against the petitioner are just and proper and after following the due process of law and principles of 'natural justice, the petitioner has been awarded punishment of dismissal from service. The Disciplinary Authority, after, having considered the enquiry report dated 31.10.2007 (Annexure P/3), issued a show cause notice to the petitioner on 31.12.2007 (Annexure P/4) to the effect that why an order of dismissal from service be not issued. Only after considering the reply of the petitioner 15.01.2008 (Annexure P/S), the impugned dismissal order was passed. Further, the appeal of the petitioner was rejected Vide order dated ' 13.08.2008 (Annexure P/l) after considering all the aspects ofthe matter. On perusal of the decisions taken by the Board 0f Directors in its meeting dated 25.07.2008, it is apparent that the same officer i.e. Shri Nand Kumar (I.A.S.) who was also the Disciplinary Authority in the enquiry proceedings, was a member and has acted as an Appellate Authority, and rejected the appeal of the petitioner, which is not permissible under the law. Without expressing any opinion 0n merits of the case, the impugned order dated 13.08.2008 (Annexure P/l) passed in appeal, deserves to be quashed, being untenable in law. The Supreme Court, in Amar Nath Choudhary v. Braithwaite & C0. Ltd. and others], observed as under: “6. One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must at without any kind of bias. The said rule against bias has its origin from the maxim known as ‘Debet Esse Judex in Propria Causa’ which is based 0n the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind an form. It may be pecuniary, personal or there may be bias as to the subject matter etc. In the present case, ‘we are not concerned with any of the aforesaid form of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of Disciplinary Authority. In Financial Commissioner (Taxation) Punjab and, others V. Harbhajan Singh (1996) 9 SCC 281, it was held that the Settlement Officer has no jurisdiction .to sit over the ‘order passed by him as an Appellate Authority. In the present case, the subject matter of appeal before the Board was whether the order of removal passed by the Disciplinary Authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a Disciplinary Authority ‘AIR 2002 sc 678 as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant, Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary t0 rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that View of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant. ” 9. The Supreme Court, in Cantonment Executive Officer & Anr. v. Vijay D, Wam’ & Ors.2, observed as under: 5. The question of a bias is always the question of fact. The courts has to be vigilant while applying the Principles of bias as it primarily depends on the facts of each case. The court should only act on real bias not merely on likelihood of bias. In the present case, so far as the members of the committee who conducted a disciplinary inquiry was also the members of the Cantonment Board where the report was to be considered, decided and whether to accept it or not and finding the respondent (herein) guilty or not. The very fact that these three persons who conducted inquiry were also the members of the Board and that Board was to take a decision in the matter whether the report submitted by the Enquiry Committee should be accepted 0r not. Therefore, the participation of these three members in the committee is given a real apprehension in the mind of the respondent that he will not get a fair justice in the matter because of the three members who submitted the report would be interested to see that their report should be accepted. This bias in this case c5not be said‘to be unreal it is very much real and substantial one that the respondent is not likely to get a fair deal by such disciplinary committee. 7. Therefore, the ratio of all these cases is that a person cannot be a Judge in his own case. Once the disciplinary committee finds the incumbent guilty'; they cannot sit in 2 AIR 2008 sc 2953 V r the judgment to punish the n on the basis ofte opinion formed by them. The objectivity is the hallmark of a judicial systm in our country. The very fact is that th disciplinary committee who found the respondent (herein) guilty participated in the decision making process for finding the respondent (herein) guilty and to dismiss him fro rvice is bias which is apparent & real. Conseqently, the View taken by the Division Bench of the High Court cannot be faulted. 10. Applying the well settled principles of law to the facts of the case on hand, the order dated 13.08.2008 (Annexure P/l) passed by the appellate authority is quashed. The tter is remitted ba to the Appellate Authority to decide the appeal of the petitioner afresh making it clear that a new Appllate Authority shall be constituted wherein the disciplinary authority shall not be a member, within a period of two months from today and thereafter, decide the appeal of the petitioner within a further period 0f 45 days, in accordance with law and after affording an opportunity of hearing to the petitione and pass apopriate orders. pr 11. In View of the above, the writ petition is allowed to the extent indicated above. No order asto costs, ’ Sd/‘ _ Satish K. Agnihotrii Judge amit w x ma h e e m se u ma ck e r