KHAZAN CHAND vs NATIONAL BAL BHAWAN & ORS

$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 2nd August, 2024
+ W.P.(C) 8711/2007
KHAZAN CHAND …..Petitioner
Through: Mr. S.K. Gupta, Mr. Udit Gupta, Mr. Davesh Sharma and Mr. Bhagwan Singh, Advocates.

versus

NATIONAL BAL BHAWAN & ORS …..Respondents
Through: Mr. S. Rajappa, Mr. R. Gowrishankar and Ms. G. Dhivyasri, Advocates for R2 and R3.

CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
JYOTI SINGH, J. (ORAL)
1. This writ petition has been preferred on behalf of the Petitioner laying a challenge to the Inquiry Report dated 09.08.2006; order of dismissal dated 29.08.2006; and order of the Appellate Authority dated 07.12.2006 by which the appeal against the order of dismissal was rejected.
2. Factual narrative to the extent necessary and as brought out in the writ petition is that at the relevant time Petitioner was working as a Station Master with National Bal Bhawan (‘NBB’), a Society registered under the Societies Registration Act, 1860, constituted to provide opportunity to the children in education and creative fields. The Society is fully owned and controlled by the Government of India.
3. Smt. Madhu Pant/Respondent No.4 was working as a Director in 2004 with NBB and was due to superannuate on 31.08.2004. Respondents No.1 and 2 were considering her case for extension of service. Petitioner who was the General Secretary of NBB Staff Welfare Association submitted a representation dated 27.08.2004 to the Chairperson, NBB requesting him not to grant extension to Respondent No.4 and proceed with the pending departmental inquiry against Respondent No.4, for which she was under suspension. Basis this representation, Respondent No.4 was not granted extension, though she was given contractual appointment for one year or till such time regular appointment was made. Staff Welfare Association filed writ petition in the nature of Public Interest Litigation being W.P.(C) No.4830/2005 seeking quashing of Respondent No.4’s appointment order dated 01.09.2004 in public interest. Petitioner was Petitioner No.2 in the said writ petition and Respondent No.4 was impleaded as Respondent No.2.
4. According to the Petitioner, after this Respondent No.4 became inimical and biased against him and devised ways to implicate him in a false case. The very complaint against Respondent No.4 became the subject matter of inquiry and the impugned charge sheet was issued under Rule 14 of CCS (CCA) Rules, 1965 (hereinafter referred to as the “CCS Rules”) under the direction and aegis of Respondent No.4 as a Disciplinary Authority.
5. The departmental inquiry was conducted by the Inquiry Officer (‘IO’) in violation of laid down procedure under the CCS Rules and violation of principles of natural justice. Under the influence of Respondent No.4, the inquiry was completed without giving the Petitioner sufficient opportunity to lead his evidence and prove his defence. IO submitted his Report dated 09.08.2006, wherein Article-I of the charge was held as ‘proved’, while Article-II of the charge was ‘partially proved’. On receiving the inquiry report Petitioner gave a representation on 26.08.2006, but without applying her mind to the same and in a hurry to punish the Petitioner before her retirement, Respondent No.4 imposed the harshest and disproportionate punishment of ‘dismissal from service’ on 29.08.2006. On receiving the penalty order, Petitioner submitted the statutory appeal before Respondent No.3 on 13.10.2006, which was rejected by an unreasoned and non-speaking order.
6. Mr. Gupta, learned counsel for the Petitioner submits that the inquiry proceedings and resultant penalty order stand vitiated on ground of bias of Respondent No.4 and deserve to be quashed on this ground alone. It is urged that short of her retirement, Respondent No.4’s case was under consideration for extension beyond her date of superannuation i.e. 31.08.2004. Acting in the capacity of General Secretary of the Staff Welfare Association, Petitioner signed on a complaint made against Respondent No.4 to Ram Saran Joshi, Chairperson, NBB, which is evident from the ‘subject’ of the complaint ‘Reward to charge sheeted Director by Extending her service period (After retirement on 31.08.2004) in utter disregard of the orders dated 09.02.2004 of the Hon’ble Delhi High Court for Inquiry into her charges by Arbitrator’. In the complaint, Petitioner brought forth the pending disciplinary proceedings against Respondent No.4 and requested that in light of this, extension should not be granted. Possibly on account of this extension was denied to Respondent No.4 though she was appointed on contract basis. Contractual appointment of Respondent No.4 was challenged in a writ petition filed in public interest, in which Petitioner was one of the Petitioners and Respondent No.4 was a party Respondent and resultantly, Respondent No.4 nurtured a bias against the Petitioner, the consequence of which was the false and frivolous major penalty charge sheet against the Petitioner and significantly, this very complaint dated 27.08.2004 became the subject matter of Article-I of the charge though circuitously i.e to inquire into the allegedly forged signatures of Sh. Banwari Lal, President of the Association, co-signatory to the complaint. Legally and morally, since the complaint made by the Petitioner was the subject matter of the inquiry, Respondent No.4 ought to have recused herself as Disciplinary Authority, which she failed to do and thus the outcome of the inquiry was known before it started. To argue that Respondent No.4 ought not to have acted as a Disciplinary Authority, reliance is placed on the judgment of the Supreme Court in A.K. Kraipak and Others v. Union of India and Others, (1969) 2 SCC 262, wherein the Supreme Court observed that it is against all canons of justice to make a man judge of his own cause. It is difficult to prove the state of mind of a person and therefore, what is to be seen is whether there is reasonable ground for believing that he is likely to have been biased and in deciding the question of bias, one has to take into consideration human probabilities and ordinary course of human conduct. It is argued that bias vitiates the inquiry and the penalty order and the impugned orders cannot be sustained.
7. The second contention on behalf of the Petitioner is that on conclusion of the inquiry, IO rendered a finding that Article-II of the charge was partially proved, however, Respondent No.4, acting as a Disciplinary Authority, without rendering a Disagreement Note and calling upon the Petitioner to submit his objection/reply, held Article-II to be fully proved and imposed the extreme penalty of dismissal. This action cannot be sustained in law in view of the judgment of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra and Another, (1999) 7 SCC 739. This procedure was deliberately not followed since Respondent No.4 was to retire on 31.08.2006 and was in a hurry to dismiss the Petitioner before she demitted office. The penalty order was passed on 29.08.2006 in a haste, two days short of her superannuation, without a Disagreement Note.
8. It is further contended that the inquiry was conducted by an officer subordinate to Respondent No.4 and under her influence there were violations of the principles of natural justice and procedures of departmental inquiries. On 22.04.2006, during the course of inquiry, Petitioner sought additional documents, however, the vital documents mentioned at Serial Nos.6, 7 and 8 of representation dated 22.04.2006 were not provided. On 29.04.2006, IO proceeded with the inquiry in the absence of the Petitioner, knowing that Petitioner was unaware of said date of hearing. On 02.08.2006, Presenting Officer submitted his written brief to which response was filed by the Petitioner on 05.08.2006 and in less than 5 days, the inquiry report was rendered without looking into and deciding the representations made by the Petitioner alleging violations of the procedure.
9. Mr. Gupta further contends that there is violation of the mandatory procedure laid down in Rule 14(18) of the CCS Rules inasmuch as the IO did not question the Petitioner on the evidence appearing against him. Since Petitioner had not offered himself for examination as a witness, IO was obliged to generally question him as per the mandate of Rule 14(18) and failure to do so vitiates the inquiry. [Ref.: Ministry of Finance and Anr. v. S.B. Ramesh, (1998) 3 SCC 227].
10. Mr. S. Rajappa, learned counsel appearing on behalf of Respondents No. 1 to 3, per contra, argues that a bare look at the Articles of Charge, more particularly, Article-I shows that the inquiry was not directed into the complaint filed by the Petitioner or against him, but was with respect to the forged signatures of Banwari Lal, who was purportedly a co-signatory to the complaint dated 27.08.2004 along with the Petitioner and therefore, the question of Respondent No.4 recusing herself as a Disciplinary Authority did not arise. It is denied that Respondent No.4 nurtured any bias or enmity towards the Petitioner and in any case, charges have been proved against the Petitioner based on evidence led in a full-fledged departmental inquiry. In fact, the signatures purporting to be those of Sh. Banwari Lal were sent for forensic examination and CFSL Report established that the signature on the complaint was not of Banwari Lal and this clearly implied that it was the Petitioner who had forged the signatures as he was the one who had sent the same to the Chairperson, NBB with an evil design. Being guilty of forgery, Petitioner cannot claim equity and escape the rigors of law by levelling false allegations of bias. Bias needs to be proved, which the Petitioner has failed to do and making bald allegations is not sufficient.
11. Mr. Rajappa further argues that this Court while exercising the power of judicial review under Article 226 of the Constitution of India can only correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and cannot appreciate the merits of the case as an Appellate Authority and in this context relies on the judgment of the Supreme Court in State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302 and Deputy General Manager (Appellate Authority) and Others v. Ajai Kumar Srivastava, (2021) 2 SCC 612.
12. In response to the argument of the Petitioner that the Disciplinary Authority did not render a Disagreement Note with respect to Article-II of the Charge, which was partially proved, Mr. Rajappa submits that the law laid down by the Supreme Court in Yoginath D. Bagde (supra) would not apply in the present case as Article-II was held to be ‘partially’ proved by the IO himself. Reliance is placed on the judgment of the Supreme Court in State of Orissa and Others v. Bidyabhushan Mohapatra, 1962 SCC OnLine SC 106, wherein the Supreme Court observed as follows:-
“9. …….. …… ……It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on Charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on Charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution.”

13. Heard learned counsels for the parties and examined their rival contentions.
14. Before proceeding further with the merits of the case, I may pen down that this case is a classic and textbook case of ‘Personal Bias’ and the maxim “Nemo Judex In Causa Sua” is squarely attracted. The maxim in its literal translation means “No one should be made a judge in his own cause” i.e decision maker must be impartial and unbiased while deciding a dispute. The other facet of the principle is that “justice should not only be done but also seen to be done”. Relevant would it be at this stage to allude to the judgement in A.K. Kraipak (supra), where the acting Chief Conservator of Forest was a member of the Selection Committee for All India Cadre of the Forest Service and was also one of the candidates who applied for the posts in question. Although it was asserted that he had not taken part in the deliberations during the Selection process, the Supreme Court held that there was definitely a conflict of interest between his personal interest and the duty cast on him and therefore, there was a real likelihood that the bias may adversely influence the judgment of other members. Relevant paragraph from the judgment in A.K. Kraipak (supra) is as follows :-
“20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debetesse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala [ Civil Appeal No. 990/68, decided on 15-7-1968] the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”

15. In Narinder Singh Arora v. State (Govt. of NCT of Delhi) & Ors., (2012) 1 SCC 561, the Supreme Court held as under :-
“6. It is well-settled law that a person who tries a cause should be able to deal with the matter placed before him objectively, fairly and impartially. No one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind or impartially. The broad principle evolved by this Court is that a person, trying a cause, must not only act fairly but must be able to act above suspicion of unfairness and bias.
7. In Manak Lal v. Prem Chand Singhvi [AIR 1957 SC 425] it was observed: (AIR p. 429, para 4)
“4. … every member of a Tribunal that [sits to] try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.”
8. In A.K. Kraipak v. Union of India [(1969) 2 SCC 262] this Court, while discussing the rule of bias, has observed: (SCC p. 270, para 15)
“15. … At every stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. … In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.”
9. In S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459 : 1973 SCC (L&S) 580] this Court has applied the “real likelihood” test and restored the decree of the trial court which invalidated compulsory retirement of the appellant by way of punishment. This Court observed: (SCC p. 465, para 16)
“16. … We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. 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. The court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision….”
10. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] this Court had referred to the judgments of A.K. Kraipak v. Union of India [(1969) 2 SCC 262] and S. Parthasarathi v. State of A.P. [(1974) 3 SCC 459 : 1973 SCC (L&S) 580] and observed: (G. Sarana case [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , SCC p. 590, para 11)
“11. … the real question is not whether a member of an Administrative Board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration.””

16. It would be crucial to refer to the observations of the Supreme Court hereunder in State of Punjab v. V.K. Khanna & Ors, (2001) 2 SCC 330, wherein a challenge was laid to a Charge Memorandum :-
“24. Before delving into the contentions, we feel it proper to note that the general principles of law as recorded by the High Court pertaining to discharge of duty of a civil servant. The High Court observed:

“Indisputably, duty is like debt. It must be discharged without delay or demur. A civil servant must perform his duties honestly and to the best of his ability. He must abide by the rules. He should live by the discipline of the service. He must act without fear or favour. He must serve to promote public interest. He must carry out the lawful directions given by a superior. In fact, the Constitution of India has a chapter that enumerates the duties of the citizens of this country. Article 51-A contains a positive mandate. It requires every citizen ‘to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement’. This provision can be the beacon light for every citizen and the ‘mantra’ for every civil servant. So long as he performs this duty as imposed by the Constitution and strives towards excellence, he has none and nothing to fear. Even God would be by his side.

At the same time it is undeniably true that whenever there is a dereliction in the performance of duties by the civil servant, the State Government has the right to intervene and punish the guilty. This is the undoubted prerogative of the State. But, to borrow the words of Professor Wade, this power has to be used ‘for the public good’. The action of the authority must be fair and reasonable. It should be bona fide. It should not be arbitrary. It should not be based on extraneous considerations. It should be for public good. Bias or personal malice should not taint it. Bias is like a drop of poison in a cup of pure milk. It is enough to ruin it. The slightest bias would vitiate the whole action.”

25. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and mala fide move creep in — issuance of the two notifications, assuming in hot haste, but no particulars of any mala fides move or action has been brought out on record on the part of Shri V.K. Khanna — while it is true that the notings prepared for Advocate General’s opinion contain a definite remark about the mala fide move on the part of Shri V.K. Khanna yet there is singular absence of any particulars without which the case of mala fides cannot be sustained. The expression “mala fide” has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide — actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act.”
(emphasis supplied)

17. Coming back to the present case, the Articles of Charge against the Petitioner contained in the Memorandum of Charge dated 11.02.2006 are as follows :-
“Article – I
That the said Sh. Khazan Chand while working as Station Master in national Bal. Bhavan during 2004 sent a complaint No. NBB/SWA/04/20 dated 27th August, 2004 addressed to Sh. Ram Sharan Joshi, Former Chairperson, National Bal Bhavan which had been signed by him as General Secretary of the National Bal Bhavan staff Welfare Association (Regd). The complaint was purportedly also signed by Sh. Banwari Lai, President of the said Association. On inquiry, it has been established that the signature of ‘ the said complaint does not belong to Sh. Banwari Lai. By forging the signature of Sh. Banwari lal or by causing it to be forged by somebody else, Sh. Khazan Chand has committed gross misconduct which casts a serious reflection on his integrity. Sh. Khazan Chand has therby violated Rule 3 (1) (11) (111) of the CCS (Conduct) Rules, 1964 as made applicable to the employees of National Bal Bhavan vide Rule 36 of Service Byelaws of National Bal Bhavan”.
Article -II
“That the said Sh. Khazan Chand In his self-appointed capacity as General secretary of National Bal Bhavan Staff Welfare Association got the Association registered In the Office of the Registrar of Societies, Govt. of NGT of Delhi vide Certificate of Registration No. S-41647 of 2002 dated 21.2.02. In – the Certificate of Registration, the headquarters of the aforesaid Association has been declared at 9, Shiv Vihar, Shahbad, Daulatput, Opp. Shahbad Dairy, Delhi. But In the letter head, the address of the said Association has been shown at National Bal Bhavan, Kotla Road, New Delhi- 110001. Sh. Khazan Chand has projected himself as an elected representative of a recognised Association, whereas the said Association remains unrecognized till date. By making a fraudulent claim’ about himself and the status of the said Association, Sh. Khazan Chand has deliberately misled the Govt. of India, Ministry of HRD and the other authorities to serve his mischievous designs. He has thereby committed gross misconduct and has thereby violated Rule 3 (1) (ii) (iii) of the CCS (Conduct) Rules, 1964 as made applicable to the employees of National Bal Bhavan vide Rule 36 of Service Byelaws of National Bal Bhavan.”
18. A bare reading of Article-I leaves no scintilla of doubt that the complaint dated 27.08.2004 authored by the Petitioner and addressed to Mr. Ram Sharan Joshi, Chairperson, NBB was the subject matter of inquiry albeit camouflaged as an inquiry into the allegedly forged signatures of Sh. Banwari Lal, the co-signatory to the complaint. Complaint dated 27.08.2004 has been filed on record and relevant part is extracted hereunder:
“Sub: Reward to charge sheeted Director by Extending her service period (After retirement on 31.08.2004) in utter disregard of the orders dated 9.2.2004 of the Hon’ble Delhi High Court, for Inquiry into her charges by Arbitrator.
Sir,
The charge sheet was issued by the Chairperson, Nation Bal Bhavan vide deptt. Letter No. 938/C.P./NBB/200/119/4584 dt. 23th’ Dec. 2000 to hold an enquiry against Dr. Madhu Pant, Director, National Bal Bhavan, Kotla Road, New Delhi under Rule 14 of Central Civil Services (Classification, Central and appeal) rules, 1965. She was also suspended with immediate effect vide Deptt. Letter 23rd. Dec. 2000. A copy of charge sheet memorandum here to annexed as Annexure-‘A’.
In C.W. 25/2002 the Hon’ble High Court of Delhi (Single Bench) passed the following order on 14.2.2002 Annexure ‘B’.
“With the consent of the parties, I appoint Justice J.K. Mehra, retired Judge of this court to adjudicate the dispute between ‘ the parties as enumerated in C.W. Nos. 25/2002 and in an LPA No.150/2002 the Hon’ble High Court Double Bench on 9thFebruary, 2004’ announced its Judgement as follows Annexure ‘C’.
Impugned Writ Court direction continuing the initial interim order passed by it shall stand set aside. The service status of respondent no. 3 as on today shall be maintained subject to any orders that might be passed by the arbitrator in case parties take to arbitration. This shall, however, be without prejudice to the right and contentions of the parties either at the arbitration or any other forum on the merit of the main issue’ viz, whether or to the disciplinary of Bal Bhawan against its Director required prior approval of the Government of India.”
PRAYER
It is feared that the enquiry by the arbitration is put in cold storage otherwise obligatory under the law and in the public interest as well. It is also very likely that the Director Mrs. Madhu Pant may get all the retirement benefits without facing the charges against her (irregularities / involvement in crores of rupees and appointments of 100 employees in Bal Kendras illegally etc.)
It is also learnt that some Amendment in the bye-laws of N.B.B. has been recently made in utter violation of the prescribed procedure in this behalf. It is also feared that Smt. Pant may get the benefit of extension of her services under such a situation which is four your goodness to see that no extension is granted to her. May I hope and expect Sir the retirement benefits of the Director Smt. Madhu Pant shall not be released before any decision in charge sheet pending against here. It is also requested that this Association may please be communicated any action taken in this behalf at the earliest possible.
I fully expect, Sir, that any just and timely action will keep off any unnecessary litigation.”[[
19. Plain reading of the complaint including the ‘Subject’ shows that objection was raised by the Petitioner as General Secretary of the Welfare Association to the contemplated extension of tenure of Respondent No.4 and release of retiral benefits to her in the wake of pending inquiry against her and as a matter of record, post this complaint Respondent No.4 was denied extension albeit she was given contractual appointment as a stop-gap arrangement. It is equally a matter of record that Petitioner was one of the Petitioners in a public interest litigation filed before this Court in W.P.(C) 4830/2005, wherein the contractual appointment of Respondent No.4 was questioned in public interest and she was impleaded as a party Respondent. Tested on the anvil of the aforementioned judgments on ‘bias’ and its impact, it can hardly be argued on behalf of the Respondents that there was no likelihood of bias in the mind of Respondent No.4 against the Petitioner. Once the allegations in the charge memo related to the complaint against Respondent No. 4, it was both unfair and legally impermissible for her to have assumed the role of a Disciplinary Authority in the departmental proceedings initiated against the Petitioner. Respondent No.4 clearly became a judge of her own cause and it is rightly argued on behalf of the Petitioner that the outcome of the inquiry was written on the wall before it commenced, no matter what evidence the Petitioner led to prove his innocence. In V.K. Khanna (supra), the Supreme Court observed that bias or personal malice taints an action and is like a drop of poison in a cup of pure milk and enough to ruin it. Bias of the Disciplinary Authority in the present case, in my view, is sufficient to vitiate the inquiry and the resultant penalty of dismissal.
20. Even on the second aspect, without prejudice to the first objection of bias, Mr. Gupta is right in his submission. It is a settled law that once an IO renders an Inquiry Report, the Disciplinary Authority has the power and prerogative to disagree with the findings. If the Disciplinary Authority disagrees, formation of the opinion has to be tentative and not final and it is at this stage that an opportunity of hearing has to be given to the Charged Officer to put forth his case, particularly, where the findings of the IO are in his favour, wholly or partially. This is the law laid down by the Supreme Court in Yoginath D. Bagde (supra) and I quote:

“31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.”

21. In the present case, Article-I of the charge was found to be ‘proved’ by the IO but Article-II was ‘partially proved’. Since part of the findings were in favour of the Petitioner, if Respondent No.4 disagreed with the finding on Article-II, she was required to convey the tentative decision to the Petitioner after rendering a Disagreement Note, calling upon him to put forth his objection/defence and only thereafter take a final decision. This mandatory procedure has been given a complete go-by by Respondent No.4. As the facts speak for themselves, this procedure was bypassed by Respondent No. 4 only because she was in a hurry to take the inquiry to its conclusion before her retirement on 31.08.2006 and punish the Petitioner and which is why the order was passed in a haste on 29.08.2006, two days short of her retirement. Joining the dots, the disciplinary proceedings are tainted with bias against the Petitioner and cannot be sustained in law.
22. The judgment in Bidyabhushan Mohapatra (supra) relied upon by Mr. Rajappa has no applicability to the present case and it is not understood in what context the same has been relied upon. Learned counsel also strenuously relied on the judgment of the Supreme Court in Ajai Kumar Srivastava (supra) to argue that scope and ambit of the power of judicial review in disciplinary proceedings is extremely limited and confined to correct errors of procedure and jurisdiction and violations of principles of natural justice. This argument is well taken and cannot be debated on. However, interference is warranted in a case where the Disciplinary Authority becomes a judge of her own cause and there is manifest injustice to the charged officer. In fact, in the very judgment relied on by Mr. Rajappa, the Supreme Court in paragraph 28 has observed as under:
“28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.”

23. In view of the aforesaid, charge Memorandum dated 11.02.2006 together with the Inquiry Report dated 09.08.2006 as well as the order of dismissal dated 29.08.2006 and the Appellate Authority’s order dated 07.12.2006 are quashed and set aside with all consequential benefits to the Petitioner, which shall be released to him within three months from today. Considering that the Petitioner has faced the agony and turmoil of disciplinary proceedings from the year 2006 on account of an established bias of Respondent No.4, cost of Rs.50,000/- is imposed on the Respondents, payable to the Petitioner within three months from today.
24. Writ Petition is allowed and disposed of in the aforesaid terms.

JYOTI SINGH, J
AUGUST 02, 2024/jg

W.P.(C) 8711/2007 Page 17 of 18