JUDGMENT
S. Ravindra Bhat, J.
1. The writ petitioners seek directions that the decisions taken by the respondent – Kirori Mal College and its Governing Body (hereafter referred to compendiously as “the College”) on 7.1.2005 and 12.7.2005, are illegal and for quashing of charge sheets dated 16.5.2005 issued to them and also the quashing of a Memorandum dated 25.7.2005 appointing an Inquiry Officer.
2. The Petitioners are members of the teaching and academic staff of the college. They claim that for the past many years, the College had been admitting students in the Commerce Courses beyond the strength sanctioned by the Delhi University. This, it is claimed, led to several problems to teachers and the students. It is alleged that members of the staff were protesting against such admissions and the fourth respondent, without paying any heed to such objections, used to routinely exceed the sanctioned or permitted strength for admission of students. It is alleged that in 2004 as against the sanctioned strength of 50 in B.Com Course, 80 were finally admitted. This led to several difficulties and problems of establishing proper communication between teachers and the students. Personal rapport could not be established and imparting instructions in practical subjects was rendered an impossibility. It is claimed that some teachers including the petitioners were determined to ensure that if such practice of admitting excess students was continued, at least in practical subjects, the class ought to be split into two sections. The fourth respondent it is claimed showed some outward semblance of concern but was actually not interested in taking any action.
3. A meeting was fixed on 29.7.04, to sort out the problem. Though the first petitioner was unaware of this, he went to the Principal’s chamber. The Principal, it is claimed, showed adamancy and stated that the teachers and students would have to cope with the situation without any change, or reorganization. This led to certain friction. It is claimed that the first petitioner was assaulted and had to be medically treated. It is claimed that the fourth respondent Principal misreported the incident to the Staff Council Meeting on 30.7.2004 and allegedly manipulated a complaint against the first petitioner which included assault on the modesty of a lady teacher. This led to the Governing Body of the College instituting a preliminary enquiry by one Mr. S.C. Mahalik.
4. Shri Mahalik submitted his report in December 2004. The Governing Body of the College in a special meeting held on 7.1.2005, resolved to authorize the Chairman to frame a charge sheet against the concerned teachers. The Resolution also authorized him to call for statement of defense to the charge sheet and constitute a Departmental Inquiry to be headed by a retired Judge of this Court as well as to appoint a Presenting Officer. A charge sheet was thereafter issued to the petitioner on 16.5.05. It is claimed that this charge sheet included the alleged incident dated 30.7.2004, which was beyond the scope of authorization of Governing Body’s decision. The petitioner has disputed the veracity of the complaint upon which the charges relating to the incident of 30.7.2004 were made and avers that five out of the 52 teachers said to have been present had not even signed the letter.
5. The petitioners had in their letter dated 14.6.05 objected to the competence of the Governing body of Kirori Mal College acting as Disciplinary Authority in view of Ordinance XXF of the Ordinances of the Delhi University. They also claimed that the alleged incident dt. 30.7.2004 could not be included in the charge as it was beyond the scope of the Governing Body Resolution.
6. It is claimed that the Governing Body, of the College, the second respondent, has also acted in a biased manner, with a closed mind, ignoring the relevant facts. The Governing Body, it is claimed, merely ratified the actions of the Chairman without satisfying itself as to their correctness or legality. Allegations have been levelled against the Principal of the College, imp leaded as the fourth respondent, to the effect that he want to the Press and reported that the petitioners had been adjudged as corrupt in an inquiry. It is claimed that the petitioner had issued a legal notice and thereafter preferred a criminal complaint which is pending in Court.
7. It is alleged that even assuming that the Governing body had power to act as disciplinary authority it could not delegate its jurisdiction and duties to the Chairman. The contents of the charge sheet have also been attacked as not based on any materials. Likewise, the appointment of an Enquiry Officer to the extent it is based on the decision of the Governing Body and the report of the preliminary Enquiry is challenged.
8. The petitioners also allege that the Principal, the fourth respondent, being a complainant or informant about the alleged incident could not have participated in the deliberations of the Governing Body. Yet he attended its meetings and influenced the decision making process. The decision to issue the charge sheet and initiate departmental proceedings is therefore vitiated by bias.
9. During the course of the proceedings before the Enquiry Officer, the petitioners sought for permission to be defended by an advocate. It is alleged that instead of dealing with the request the College referred it to the Enquiry Officer. This act of referring applications to the Enquiry Officer, it is claimed amounts to abdication of duty by the disciplinary authority. The Enquiry Officer, a Retired Judge of this Court, declined the request allegedly without granting a hearing. It is also claimed that the Enquiry Officer transgressed his powers while directing that Delhi University Teachers Association representative could not represent the petitioners. Such a decision would be beyond the provisions of the CCS (CCA ) Rules which enables a charged official to be represented by the Member of their Association.
10. The petitioners also objected to certain remarks of the Enquiry Officer recorded in the proceedings pertaining to the issue of provisions of IPC being included in the charge sheet, in the context of representation through advocate. It was also alleged that the Enquiry Officer could not have dictated the manner in which they should arrive at a settlement with the College Management and the advisability of appropriate action. The procedure adopted in not allowing cross examination, but permitting exchange of interrogatories, has been also challenged as violative of principles of natural justice.
11. The college avers that when the present writ petition was filed, enquiry proceedings had already started and the petitioners were participating in it. They had also filed their statements of defense. The petitioners had appeared before the Enquiry Officer on 20.08.2005 and had argued their application seeking permission of the Enquiry Officer to be represented through an Advocate. The copy of the said order dated 20.08.2005 passed by enquiry officer is enclosed with the writ petition. The present writ petition, it is alleged, has been filed with the objective of delaying the enquiry proceedings.
12. It is submitted that charges leveled against the petitioners and their defense involves disputed questions of fact and are being considered by Enquiry Officer. It is well settled that the petitioners cannot seek interference of this Court under Article 226 of Constitution of India during the enquiry proceedings. The issue relating to the jurisdiction of the Governing Body vis a vis teachers of the College has been dealt with by a Division Bench of this Court, which held that the Governing Body of the College is fully empowered to initiate disciplinary proceedings against the teachers of the College, Ordinance XXF has to be read along with Ordinance XII and Ordinance xviii of the University Calendar. The present petition is covered by the said decision.
13. It is alleged that other issues raised by the petitioners relating to the supply of preliminary enquiry report, representation by an Advocate etc lie within the domain of the Enquiry Officer and they cannot be argued before this Court till the completion of disciplinary proceedings. Moreover, it cannot be ignored that no prejudice is caused to the petitioners by the initiation of the enquiry proceedings warranting interference by Court.
14. The college denies that the Governing Body, i.e. the Disciplinary Authority delegated its powers to respondent No. 3 the Chairman (of the Governing Body) and the charge sheets dated 16.05.2005 have been issued by him, on its behalf. It is alleged that before their issuance, the charge sheets, were discussed in the meeting of Governing Body held on 07.05.2005 and were approved by it. The college denies that the charge sheets issued on behalf of the Governing Body exceeded its mandate. It is submitted that the Governing Body had resolved to issue the charge sheets pertaining to the incident of 29.07.2004 as well as 30.07.2004. Besides, the charge sheets were approved by the Governing Body before their issuance. The contention of the petitioners therefore, that the incident relating to 30.07.2004 could not have been included in the charge sheet as it exceeded the mandate of the governing body is without any basis.
15. The college states that it is not obligatory on the part of the disciplinary authority or the enquiry officer to provide a copy of the preliminary enquiry report to the delinquent officer. The purpose of holding preliminary enquiry is to reach a prime facie conclusion as to whether the disciplinary proceedings should be initiated or not. The petitioners are not entitled to copy of the said preliminary report unless the enquiry officer relies on it. It is not the case of the petitioners that the enquiry officer or the disciplinary authority at any stage has relied upon the enquiry report. It is denied that the non supply of the copy of the preliminary enquiry report has prejudiced the petitioners in any manner or is the violation of the principles of natural justice. It is denied that the Enquiry Officer had no authority to deal with the issue or that his decision was predetermined. It is also denied that the college sought to influence the enquiry officer by providing him with the preliminary enquiry report and all the materials recorded therein. It is submitted that while the enquiry proceedings were in progress, the Delhi University Teachers Association (DUTA) gave a call for dharna at Kirorimal College on 10th August, 2005 and further called for a token strike on 11.08.2005 against the decision of disciplinary authority to initiate departmental proceedings against the petitioners. DUTA has been openly threatening to disrupt the enquiry proceedings.
16. The college also denies that the procedure adopted by the enquiry officer was in violation of principles of natural justice, or that denial of the right to be represented by a lawyer, or member of the DUTA amounted to unfair procedure in the course of departmental proceedings.
17. Mr. R. Vasudevan, learned Counsel, submitted that the decision of the governing council, to hold departmental enquiry, issue charge sheet, appointing an Enquiry Officer, and the manner in which the proceedings were held, are unsupportable in law, for the following reasons:
i) Under Ordinance XX-F, the College and the Governing Council had no jurisdiction or competence to act as disciplinary authorities over academic staff;
ii) The so-called acts of misconduct forming basis of charges were premised upon fabricated and non-existing material, manipulated by the fourth respondent;
iii) The Governing Body could not have delegated its authority to the Chairman. Counsel submitted that once provisions of the Ordinance and Statutes empowered a body to perform some action, it was that body alone which could discharge those duties; they could not be delegated. He relied upon the decision reported as Naraindas Indurkhya v. State of M.P. to say that the power of the Governing Body could not be exercised by the Chairman.
iv) The inclusion of the alleged incident dated 30.7.2004, in the charge-sheet was beyond the authorization by the Governing Body. Its subsequent ratifications in later meetings of the Governing Body, were therefore without application of mind, and of no consequence.
v) Participation of the fourth respondent, the Principal, who was the informant, or complainant about the alleged incidents of misconduct of the Petitioners, in the Governing Body vitiated the entire proceedings. The decision of the Supreme Court in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School was cited in support of this contention. Counsel submitted, by relying on the decision (applied in Rattanlal’s case) in R. v. Sussex Justices 1923 All. ER. 233 that the question of bias is to be not only addressed on the basis of what is actually done, but upon what might appear to be done.
vi) Denial of the right to engage an advocate to defend the Petitioners in the proceedings, and also denial of their right to be represented through members of Delhi University Teachers’ Association (DUTA), by the orders of the Enquiry Officer, result in violation of principles of natural justice, and denial of fair procedure.
vii) The directions of the Enquiry Officer in the departmental proceedings, restricting examination and cross-examination by interrogatories, to matters contained in the charge sheet, amount to denial of fair procedure. The observations of the Enquiry Officer in regard to the reference to provisions of IPC in the charge sheet, and the need to settle the disputes, by Petitioners’ admission of guilt, also are attacked as his predisposition or bias against the Petitioners.
18. Ms. Maninder Acharya, learned Counsel for the College submitted that no scope for interference under Article 226 of the Constitution of India. Counsel stated that so far as the first ground of attack namely, incompetence of the Governing Body was concerned, the issue is no longer open for debate and has been conclusively determined by the judgment of a Division Bench of this Court in LPA 566/2004. It was submitted that the Governing Body of the College is fully empowered to initiate disciplinary proceedings against teachers and members of the academic staff in view of Ordinance XII and Xiii of the Delhi University.
19. Counsel submitted that no violation of principles of natural justice occurred and that report of the preliminary enquiry is in the nature of a fact gathering exercise which neither creates any rights or liabilities in favor of an employee. Counsel submitted that the college could have held such preliminary enquiry and also relied upon other materials apart from such enquiry, in deciding to initiate departmental proceedings. Reliance was placed upon the judgment of the Supreme Court in K.C. Tandon v. Union of India for the proposition that adequacy of materials for the purposes of holding departmental enquiry cannot be the subject matter of writ proceedings. She also submitted that there was no compelling reason or provision enjoining the authorities to furnish a copy of the preliminary enquiry report to the petitioner. The question as to whether that would be relevant and would have to be furnished, has to be seen only if the College seeks to rely on the report during the enquiry proceedings.
20. Ms. Acharya submitted that the Minutes of the Governing Body Meeting held on 7.1.2005, 26.2.2005, 7.5.2005 and 12.7.2005 establish that the entirety of misconduct alleged against the petitioners was subject matter of discussion. It was urged that even otherwise as a disciplinary authority, which had taken into consideration all materials brought to its notice, nothing inhibited the governing body to approve inclusion of all incidents of misconduct instead of confining to only to one incident of 29.7.2004. Counsel urged that the issuance of the charge sheet was legal and within the competence of the Governing Body. The Chairman did not act as a delegate but merely carried out the mandate of the Governing Body to draw up a charge sheet and submit it for approval or ratification. The charge sheet was indeed prepared and approved in a Meeting of the Governing Body dated 7.5.2005. Counsel further submitted that assignment of the task of implementing the decision of the governing body and subjecting it to ratification or further supervision, cannot be called as unwarranted delegation. Being a large body, it not practicable for the governing body to perform the task itself, of evaluating all the materials and drawing up the charge sheet. In these circumstances assignment of the task to one person or even smaller group cannot be called delegation since the essential control continued with the governing body. The concept of the delegation on the other hand implied that the person or body delegated to act, could itself validly exercise all the powers lawfully exercisable by the body empowered to do so under law.
21. Learned Counsel for the College submitted that allegations of bias of the Governing Body on account of participation by the Principal in its deliberations, are unfounded. It was submitted that the Minutes of Meeting dated 7.1.2005 and 26.2.2005 show that the Principal had not participated in the proceedings. These two meetings were effective in so far as they related to the considerations of materials and the decision taken to issue a charge sheet. So far as the meeting dated 7.5.2005 was concerned it merely approved the charge sheet required to be issued to the petitioners. The issue of appointment of Enquiry and Presenting Officers was deferred to a later date. The only meeting in which the Principal participated was one held on 12.7.2005 when the reply of the petitioners was considered and a decision taken to hold an enquiry. In that meeting Sh. S.B. Wad, a retired Judge of this Court was appointed to act as the Enquiry Officer. The Principal, it was submitted was merely present in his capacity as a Member Secretary of the Governing Body. All the previous decisions to issue the charge sheet had been taken earlier. Therefore, the question of the departmental proceedings being vitiated by bias did not arise.
22. Learned Counsel submitted that there is no rule of principle of natural justice of universal application that an employee charged with misconduct has the right to engage services of an advocate to defend himself in departmental proceedings. Reliance was placed upon the decision of the Supreme Court reported as Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi ; Cipla Ltd. v. Ripu Daman Bhanot & Indian Institute of Technology v. Union of India 1999 Supp (2) SCC page 12.
23. Counsel contended that the Enquiry Officer was free to devise his own procedure and therefore was justified in confining cross-examination through interrogatories. This procedure, did not cause any prejudice and on the contrary curtailed time. Similarly, the observations that the enquiry proceedings were not concerned with establishing allegations of commission of criminal offences in fact were aimed at allaying the petitioners apprehensions and in no way caused prejudice.
24. Lastly, counsel submitted that the view taken by the Enquiry Officer in his procedure and directions, barring the representatives of DUTA were justified in the circumstances of the case. It was claimed that the office bearers of DUTA had adopted intimidating tactics and threatened to take further action. The contents of the governing body’s Resolution dated 12.7.2005 which recorded all these, was also relied upon. Counsel further submitted that even when the Governing Body’s meeting was in progress on 12th of July, the President and Secretary of DUTA sought to intimidate members of the Governing Body by entering into the meeting hall and disrupting the proceedings. In these peculiar circumstances, it was submitted, the decision not to permit members or representatives of DUTA to be present in the enquiry or as defense Assistant, did not amount to denial of a fair procedure. It was submitted that on the contrary if the petitioners’ objections were accepted, there would be a real and substantial threat to the proceedings and in all likelihood the efficacy of enquiry proceedings would be undermined by such threats and intimidations.
25. Before proceeding with merits of the case, it would be necessary to reproduce relevant portions of the two minutes of meeting held on 7-1-2005 and 26-2-2005 by the Governing body. They are as follows:
EXTRACTS OF MINUTES OF GOVERNING BODY HELD ON 7.1.2005
Minutes of the special meeting of the Governing Body held on Friday, the 7th January 2005 at 4.30 P.M in the Committee Room of the College. The following members were present:
1. Prof. D.B. Gupta – Chairman
2. Sh. S.V. Juneja – Treasurer
3. Mrs. Janki Kathpalia – Member
4. Sh. M.S. Ganesh – Member
5. Sh. B. Rai – Member
6. Ms. Kiran Aggarwal – Member
7. Sh. Siddharth Singh – Member
8. Prof. S.C. Bathla – Member
9. Prof. (Ms) Vibha Chaturvedi – Member
10. Dr. M.C. Nahar – Member
11. Dr.(Ms.) Mamta Sharma – Member
The Principal, Dr. Bhim Sen Singh excused himself from attending the meeting.
The Governing Body discussed the report dated 16th December, 2004 of the Committee of Enquiry on the alleged incident of 29th July, 2004 in the College. As the Disciplinary Authority, the Governing Body accepted the preliminary report and unanimously decided as follows:
(a) to hold a formal disciplinary enquiry, against Shri J.P. Mahajan, Dr. S.C. Garg and Shri S.P. Gupta, all faculty Members of the college’s Department of Committee against whom a prima facie case has been found by the Committee of Enquiry;
(b) To frame and issue the charge sheet to be issued to the said 3 teachers by the Chairman of the Governing Body, for an on its behalf as the Disciplinary Authority;
(c) To request and appoint a retired Judge of the Delhi High Court to be the enquiry officer for the Disciplinary Enquiry and;
(d) To appoint a Presenting Officer to present the case on behalf of the Disciplinary Authority before the Enquiry Officer and to permit correspondingly the charged Teachers to appoint a defense Assistant.
The Governing Body further requested Mr. M.S. Ganesh, to suggest appropriate names for appointment as the Enquiry Officer and the Presenting Officer respectively. The Governing Body further decided to ascertain the procedures followed in the University in the past in respect of such disciplinary enquiries concerning College University Teachers be ascertained and that, if such procedures do not exist, the enquiry officer may frame his own rules and procedure or adopt existing models for disciplinary enquiries such as the CCS & CCA Rules, which would be in consonance with the principles of natural justice.”
RELEVANT EXTRACTS OF MINUTES OF Meeting of the Governing
COUNCIL HELD ON 26.2.2005
The Governing Body reviewed the progress in respect of the points (a) to (d) as contained in the minutes of the special meeting of the Governing Body held on Friday 7th January, 2005. In this connection the members heard Mr. M.S. Ganesh and decided that he be requested to give his guidance in the preparation of the charge-sheets to be issued by the Chairman on behalf of the Governing Body as well as in other related matters. The Principal had excused himself from the meeting during the discussion on this agenda.
26. The first issue raised by the petitioner is as to the competence of the Governing Body of the College to initiate disciplinary proceedings. The contention here is that in view of Ordinance XXF it is only the University which has jurisdiction in such matters, and not the College. The college relies on Ordinance XII and Ordinance xviii of University Calendar to say that the Governing Body has competence and jurisdiction over disciplinary matters relating to the academic staff. In Governing Body, Deshbandhu College v. T.J. O’Brien LPA 566-67/2004 decided on 7th December, 2005, a Division Bench of this Court had set aside the judgment of the learned single judge, who had, while interpreting the Ordinances and statutes of the University, relating to management of the Deshbandhu College, (which are in pari materia with provisions relating to Kirori Mal college) held that the Executive Council of the University alone had jurisdiction, and that the Governing Body did not have jurisdiction in such matters. The Division Bench set aside the judgment, and held that the Govenring Body too had powers in such cases. In view of this position, the petitioner cannot any longer say that the Governing Body is devoid of competence or jurisdiction in disciplinary matters pertaining to academic staff.
27. The next question is whether the charge sheets issued by the college, in so far as they pertained to the incident dated 30th July, 2004 are beyond jurisdiction of the Governing Body. I am of the view that the scope of judicial proceedings cannot be enlarged to such an extent as to verify whether any materials existed, the extent of application of mind on such materials, of the disciplinary body, while deciding to initiate disciplinary action. Although judicial review can be pervasive, in a given case, nevertheless in matters like the present, where the disciplinary authority has acted on the basis of prima facie materials, including a preliminary report, the court should not interfere with the conduct of proceedings, on the adequacy of materials, or that the concerned person entrusted with the task of framing the charges exceeded his authority, particularly, if it is seen that the charge sheet was issued after approval by the Governing Body.
28. The next question is whether the Governing Body acted beyond its jurisdiction in entrusting the task of drawing up the charges to the Chairman, on 7-1-2005. The petitioner characterizes this as an unlawful sub-delegation; the Governing body alone could have discharged that function, and not delegated it to the Chairman. The Supreme Court decision in Naraindas Indurkhya v. State of M.P. has been cited in support. A similar view was expressed in Marathwada University v. Seshrao Balwant Rao Chavan , where the action of the Vice Chancellor of a university issuing disciplinary orders on the basis of resolutions of the duly empowered body, viz the Executive Committee, was held to be an instance of unlawful delegation of power.
29. In this case, the documents, and resolutions of the Governing Body show that it has a large- composition, and does not meet frequently. It deliberated, and after considering materials placed before it, decided that a charge sheet ought to be issued to the petitioner. The task of drafting the charges was left to the Chairman. It is a further matter of record that the draft charge sheet was considered by the Governing Body on 12-5-2005; after it was approved, the college issued it on 16-5-2005. These clearly point to the fact that the Governing Body took care to satisfy itself (a) about the need to issue the charge sheet; and (b) the actual charges levelled, and indicated in the draft charge sheet. The Chairman did not on his own decide to issue the charge sheet, nor did he issue it without sanction of the Governing Body. His task was ministerial in nature, and subject to supervision and control of the Governing Body.
30. The Supreme Court had made a distinction between delegation, and exercise of part of the functions of the statutory body, by another person or body, subject to its supervision, in its Constitution Bench decision reported as Union of India v. P.K. Roy , in the following manner:
…delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree, there is in the eye of law no “delegation” at all and the maxim “delegatus non potest delegare” does not apply [See Fowler (John) & Co. (Leeds) v. Duncan 1941 Ch. 450]. In other words, if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made…
Here, the Chairman did not independently decide and issue the charge sheet; the decision was of the Governing Body. Therefore, the contention that the charge sheet was issued through an unlawful delegation of power is unmerited.
31. The next question to be considered is whether the decision of the Governing Body, to issue the charge sheet, and also approving the impugned charge sheet, is tainted by the participation of an interested party, viz the fourth respondent, who is the Principal of the college. The petitioner places reliance on the decision in Rattan Lal Sharma’s case (supra) to say that the Principal, being an informant, ought to have not participated in the deliberations which led to issuance of the charge sheet.
32. The minutes of meeting dated 7-1-2005 and 26-2-2005 record the principal’s presence as a secretary; however they also show that he did not participate in the deliberations. This aspect assumes significance; it has not been denied by the petitioners. The decision to initiate disciplinary action and issue charge sheet was taken on 7-1-2005; it was ratified on 26-2-2005. No doubt, the draft charge sheet was placed before the Governing Body on 7-5-2005, and was later issued. However, the decision to issue charge sheet was already taken. On 12th July, 2005, when the Governing Body met and considered the replies, and decided to institute an inquiry. Although in the later meetings the principal was present, and his participation in the decision to appoint an enquiry officer has not been denied, that circumstance by itself, in my opinion, does not amount to bias. It has not been shown that the principal influenced the proceedings; he is not discharging any function as enquiry officer, or presenting officer, where his personal knowledge or bias would be apparent. The Supreme Court, in Manek Lal v. Prem Chand , had indicated the test of bias in such matters, in the following terms:
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.
The test of bias, in the case of such administrative decisions, has to be seen in the overall factual matrix. The fourth respondent did not participate in two crucial meetings; he is not one of a few members of the Governing Body; that body has a large membership. The Principal also did not participate in drawing up the charge sheet. On an overall perspective of facts, the decision of the Governing Body cannot be faulted on the score of reasonable likelihood, or real danger of bias.
33. The right of an employee facing disciplinary proceedings, to be represented by a lawyer is the next issue required to be addressed by the Court. The matter was examined in the judgment reported as Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi , where the Supreme Court ruled, inter alia, that:
It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent’s right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent’s right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with dispatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice.
34. The law was again reviewed in Indian Overseas Bank v. Indian Overseas Bank Officers’ Assn. , where the Supreme Court held as follows:
The issue ought to have been considered on the basis of the nature and character or the extent of rights, if any, of an officer-employee to have, in a domestic disciplinary enquiry, the assistance of someone else to represent him for his defense in contesting the charges of misconduct. This aspect has been the subject-matter of consideration by this Court on several occasions and it has been categorically held that the law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation. (N. Kalindi v. Tata Locomotive & Engg. Co. Ltd. , Dunlop Rubber Co. (India) Ltd. v. Workmen , Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi and Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union
35. The petitioners have not relied upon any rule, regulation or condition of their service establishing their right to services of a lawyer in the enquiry proceedings. Therefore, the claim in this regard is without foundation.
36. The issue, however does not stand fully resolved, because the petitioners have relied upon copies of letters written by some persons expressing their inability to defend them in the disciplinary proceedings. The college had permitted the petitioners to be represented through other University employees. The enquiry officer, apparently on the basis of the Governing Body resolution dated 12th July, 2005, formed the opinion that no DUTA office bearer should be present in the proceedings, even in the capacity of defense representatives. Whilst I am of the opinion that no exception can be taken to the opinion in disallowing participation of strangers in proceedings, on the apprehension of disruption of the proceedings, which have to be orderly, at the same time, the respondents cannot impose a sweeping ban on any DUTA representative acting as a defense representative on behalf of the petitioners. The incidents alleged to have occurred may legitimately entitle them to insist that those office bearers said to be involved, should be kept out. However, there cannot be a blanket ban from any other member of DUTA representing the petitioners. After all, the respondents have engaged a Presenting Officer, and even sanctioned an amount of Rs. 50,000/- towards his remuneration. In these circumstances, it would be reasonable that while permitting the petitioners to be represented, the choice may not be restricted; the only exception that the college and the inquiry officer can legitimately take is that the two persons alleged to have been involved in the incident on 12-7-2005 should not be present, and in addition, the college and enquiry officer may impose reasonable conditions for the orderly conduct of the enquiry proceedings, to ensure that they are not disrupted, or that witnesses are not intimidated.
37. The petitioners have taken strong exception to the Enquiry Officer recording in one of the proceeding that the matter may be settled if the charged officers admit to their guilt. Counsel urged that this amounted to a predisposition against the petitioners, and betrayed bias.
38. In examining the merits of this complaint, the nature of the proceedings has to be kept in mind. It is not adjudicatory; it is more in the nature of a fact gathering exercise, aimed at assisting the disciplinary authority. It is true that the “findings” in such a proceeding would define the rights of the charged official. Therefore, the nature of proceeding, i. e. its being a domestic proceeding, cannot be lost sight of. The endeavor of all such exercises is to arrive at the truth.
39. The test of bias was indicated long ago, by the Supeme Court, in S. Parthasarathi v. State of Andhra Pradesh , in the following terms:
The tests of real likelihood and reasonable suspicion are really inconsistent with each other. 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.
40. The High Court of Australia, in in Ebner v. The Official Trustee in Bankruptcy [2000] HCA 63, after a comprehensive examination of the authorities on the issue, described the test of bias as follows:
The common law in both England and Australia in relation to this subject has come a long way since the middle of the nineteenth century. In Australia, the common law has developed along lines somewhat different from the development in England. In this country, an issue such as that which arose in Pinochet (No 2) would be resolved by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. That is the test to be applied in the present appeals, and it reflects the general principle, which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance.
41. The text, as well as the context of the order or material relied upon in support of the allegation of bias has to be carefully scrutinized, when the complaint is made. The court would be ready to infer likelihood of bias if there is some objective material- in terms of Ebner (supra)- arising from interest, conduct, association, extraneous information. None is shown here. In this context, the observations of the Supreme Court (albeit in the context of criminal proceedings) in Ram Chander v. State of Haryana , are somewhat apt:
the court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the Counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the Judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a Judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett:
People accustomed to the procedure of the court are likely to be overawed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly it may be, that the Judge is not holding the scales of justice quite evenly.
42. I am not satisfied that there is sufficient material to disclose any real likelihood of bias, on the basis of the Enquiry Officer’s observation that settlement would be possible if the petitioners admit their guilt. This is to be seen in the light of the succeeding sentence, and portion of the order, that in case no settlement is possible, the enquiry would have to go on. Often, the expression of an innocuous thought is put in such a fashion as to be capable of different meanings. Words are but imperfect medium of thought. The choice of expression is something that cannot be emphasized; therefore great emphasis cannot be laid on a stray sentence. Opinions may differ on the manner of expressing the same thought; this Court may be of the view that the choice of words used is not appropriate, even bordering on the incautious. But that alone, in the context of this case, does not establish bias, or a predisposition against the petitioners.
43. The last issues are as to the feasability of adopting the procedure of furnishing interrogatories, and the enquiry officer’s observations that the proceedings would not delve into any criminal charges. No doubt, the enqiuiry officer is a master of his procedure, and it is within his jurisdiction to define what ought to be the modalities of conducting the proceedings. Yet, within the overall framework of that discretion, and his (not unreasonable) anxiety to complete the proceedings with dispatch, no procedure ought to be adopted which might impinge upon, or undermine the right of the charged officer to adequately defend himself. To the extent that the Enquiry Officer desired that the witnesses of the college be examined through written statement, no exception can be taken. However, the ruling out of cross examination, in my opinion, does erode the rights of the charged officer. The eliciting of information by interrogatories is not unknown to civil procedure. But that is resorted to by parties, on the basis of pleadings and materials. The adaptation of such procedure as a substitute of, or complementary to, cross examination is beset with peculiar problems. Firstly interrogatories would be in this case, limited in their scope; secondly, if the procedure were to be strictly followed, the party concerned might well have to issue further interrogatories to the same witness, depending on his response to one set of interrogatories. Third, the right to confront a witness would be completely lost. Added to all these, the procedure, if followed by cross examination may well be cumbersome, and more time consuming. In these circumstances, I am of the opinion that the procedure sought to be adopted, though laudable in its objective, might well end up curtailing the petitioners’ rights to cross examination of witnesses. Having regard to the experience and stature of the Enquiry Officer, I do not forsee any difficulty in his appropriately conducting the proceedings, and ensuring that only relevant questions are put in the course of cross examination. For these reasons, I am of the opinion that the Enquiry Officer should not insist upon the procedure of witnesses responding in cross-examination through interrogatories; instead, he should follow the normal method of allowing cross examination through relevant questioning.
44. I find considerable force in the submission of the petitioners that the charge sheet, to the extent it adverts to various provisions of the Indian Penal Code, and alleges commission of offences by the charged officials, is untenable. The Enquiry Officer too appears to have felt the necessity to clarify that the scope of proceedings is not to enquire into those matters. The contents of the charge sheet and the misconduct alleged are clear enough; the insistence of the college that such acts also amount to offences, adds to uncertainty. If the factual basis of the allegations points to criminality, the appropriate course is to initiate action in accordance with law. The scope of disciplinary proceedings cannot extend to determining the guilt or complicity of any employee, in criminal charges. Therefore, the college, in my opinion should take suitable action in removing references to provisions of the IPC.
45. In view of the foregoing discussion, the following directions are issued:
1)The petitioners’ choice to be defended cannot be regulated to say that no DUTA representative can be present. It is open to them to appoint anyone – including a DUTA representative (but excluding the two office bearers stated to have obstructed the proceedings of the Governing Body dated 12.07.2005). The college and the Enquiry Officer shall be at liberty to insist on imposition of reasonable measures to ensure that no disruption of the enquiry proceeding takes place.
2)The respondents are directed to see that the Enquiry Officer should not insist upon the procedure of witnesses answering questions through interrogatories; instead, he should follow the normal method of allowing cross examination through relevant questioning.
3)The respondents are directed to take suitable action in removing references to provisions of the IPC, from the charge sheet issued to the petitioners, within four weeks from today.
46. The writ petitions are entitled to succeed partly, to the extent indicated above, and are, therefore, allowed in those terms. No costs.