ORDER
Arun Mishra, J.
1. The question for consideration is whether the disciplinary authority who himself was examined as a witness in the case in support of the allegation could have passed the impugned order of punishment dated 21-5-97 (Annexure V). The punishment of withholding one increment with cumulative effect was
inflicted. Another question is whether there was due application of mind by the disciplinary authority while passing the impugned order.
2. Petitioner Mahesh Kumar Kanskar was working as Clerk-cum-Cashier with Mandla Balaghat Kshetriya Gramin Bank, Mandla. He was charge-sheeted on October 1st, 1986. Allegation was that the petitioner was sent to State Bank of India for collecting cash of Rs. 5,000/-, did not reach up to 3 p.m. the concerned bank. This act was negligent and irresponsible which caused interruption in the working of the Bank. Enquiry was conducted; during the course of enquiry, Chairman Jaiprakash Mishra himself was examined as witness on behalf of management as witness No. 3 and he deposed in enquiry against the conduct of the petitioner. This statement was accepted by the enquiry officer. The report was sent to the disciplinary authority Shri J.P. Mishra who himself was examined as a witness. Show-cause notice was given on 15-5-87. Disciplinary authority expressed its agreement in the conclusion recorded by the enquiry officer and proposed the punishment of withholding one increment with the cumulative effect. The petitioner filed reply on 21-5-1987. Disciplinary authority Shri J.P. Mishra ordered that the period spent during suspension till reinstatement shall be treated as having been spent without duty. The petitioner was ordered to be treated as absent. These orders dated 21st May, 87 (Annexure V), dated 16-12-87 (Annexure W), dated 18-9-87 (Annexure X) are impugned in writ petition.
3. Shri M. Sharma, learned counsel for petitioner submits that Shri J.P. Mishra was himself a crucial witness in the instant case; he was examined as a witness on behalf of management; he was a key witness in the instance case, thus he should not have passed the impugned order imposing the punishment.
4. The respondents contend that enquiry was held in consonance with the principle of natural justice. There was gross negligence in not collecting the amount of cheque owing to which function of bank was disrupted. Since Chairman Shri Mishra had taken the round and found that the employee was absent, he was not dis-qualified to depose as a witness and thereafter to act as a disciplinary authority and in the peculiar facts and circumstances of the case, no prejudice can be said to have been caused to the case of the petitioner since the facts are writ large and misconduct is galore. It was urged that no interference is called for in the writ jurisdiction by this Court. The stand taken by the petitioner for not visiting the branch was palpably false, hence he is not entitled to invoke the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of Constitution of India.
5. It is not in dispute that Shri J.P. Mishra was a key witness in the instant case and his deposition was crucial to establish the guilt of the petitioner in the instant case. His statement was relied on and acted upon by the enquiry officer. Thus, he should not have sit over his own statement in order to adjudge the guilt of the petitioner. Learned counsel for petitioner places reliance on case of Arjun Chaubey v. Union of India and Ors., (1984) 2 SCC 578. In
para 6, the Supreme Court relied on State of U.P. v. Mohammad Nooh (Alp. 1958 SC 86) and held that when witness acts as a Judge in the case that cast indelible stamp of infirmity. Para 6 is quoted below :–
“In State of U.P. v. Mohammad Nooh, S.R. Das, C.J., observed, while speaking for the majority, that the roles of a Judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the Judge can hold the scales of justice even. We may borrow the language of Das, C.J., and record a finding on the facts of the case before us that the illegality touching the proceedings which ended in the dismissal of the appellant is “so patent and loudly obtrusive that it leaves an indelible stamp of infirmity” on the decision of respondent No. 3.”
6. In Ratan Lal Sharma v. Managing Committee, Dr. Hariram (Coeducation) Higher Secondary School and Ors., (1993) 4 SCC 10, where one of the member of the enquiry committee also deposed as witness in support of one of the charge against the appellant, the proceedings were held to be vitiated. One of the cardinal principles of natural justice is: Nemo debet esse judex inpropria causa (no man shall be a Judge in his own cause). The deciding authority must be impartial and without bias. A pre-disposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. The test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. In administrative law, rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures. There should not only be fairness in action, but fairness should be writ large. There may not be direct proof of bias required in the case where a witness is required to adjudge while sitting as a disciplinary authority.
7. Consequently, there is no escape from the conclusion that the order passed by J.P. Mishra in the capacity of disciplinary authority Annexure V 21st May, 1987 and Annexure X dated 18-9-87 arc liable to be quashed only on the ground that he himself acted as disciplinary authority while he was a crucial witness in the instant case.
8. The order of imposition of penalty suffers with another serious infirmity. The order does not disclose due application of mind; though it was final order, but it was not mentioned by the disciplinary authority what were the allegations, what was the reply, what was the finding of the enquiry officer, what were the grounds on which the disciplinary authority agreed. It is simply mentioned that on perusal of documents and findings, the guilt of the petitioner stands proved. Nothing else was mentioned by way of reason except
showing its agreement with the proposed punishment which was inflicted on the petitioner. The disciplinary authority is required to pass final order mentioning the misconduct, defence, findings of the enquiry officer, what was the reply to the show-cause notice and what were the reasons of disagreement. Nothing of that sort was done.
9. Order Annexure X passed on 18-9-87 is ex facie illegal for the reason that person under suspension could not have been treated to be absent during the period of suspension. Besides the above reason, it was passed by Shri J.P. Mishra. The initial order for punishment dated 21st May, 87 (Annexure V) has been set aside, thus order dated 18-9-87 does not stand, and in case the respondents choose to pass a fresh order by a competent authority except by Shri J.P. Mishra, in such an event, it would be open to the respondents to pass the order of penalty after hearing the petitioner as well as fresh order with respect to the period of suspension. Needless to say that the appellate order dated 16-12-87 consequently falls down.
10. Resultantly, the writ petition is allowed. The impugned orders referred above are set aside. The respondents are at liberty to proceed in accordance with law. On the basis of disciplinary enquiry conducted, final order may be passed by different authority than Shri J.P. Mishra if the respondents so choose to proceed in the matter. Cost on parties.