JUDGMENT
Bhagabati Prasad Banerjee, J.
This writ application was filed by the petitioner against an order of dismissal from service with effect from September 7, 1994, by an order passed on August 21, 1994, by Dr. T.K. Bhat-tacharjee. Additional Chief Medical Officer, Indian Oil Corporation Ltd. (Refinery & Pipelines Division Haldia Refinery)
2. The petitioner was a cook-cum-bearer of the said corporation. The Indian Oil Corporation Ltd. is an undertaking of the Central Government and the composition is dominated by the representatives appointed by the Central Government and it is stated that the money required for running the said Corporation are, inter alia provided by the Central Government. It has been disputed that the said Corporation is not an instrumentality and agency and/or authority under Article 12 of the Constitution of India and is amenable to writ Jurisdiction.
3. It was the duty of the petitioner to prepare food for the patients, to hospitalised guests, to serve meals and to maintain the place in good condition. It is also not disputed that the petitioner was also asked to do all types of works including marketing of articles of foods for the patients, and the petitioner had to go for marketing for purchasing of articles from a market place which is more than half a kilometre away from the Hospital.
4. It was alleged that on June 20, 1993, the petitioner refused to serve breakfast to the in-patients of the Hospital and when one Sri. P.C. Das, Cook-cum-Bearer, was called to serve the breakfast, it is alleged, that the petitioner obstructed him and did not allow him to enter the kitchen and that due to non-supply of food, three indoor patients, out of four, had to be discharged from the Hospital. It was stated that after a lot of discussion, the petitioner agreed to supply the food, but in the process, service of the meal was delayed on that date. It was further alleged that the petitioner had delayed the service of the Breakfast/Lunch to the in-patients of the Hospital on July 13, 14, and 15, 1993. The petitioner was also charged that “you have started tampering with official records relating to overtime of employees from September 17, 1993. You have falsified your record of overtime as per the details given in a attached statement. Though you have been advised a number of times, not to do so, verbally as well as vide our letter No. FH/F-2/71076, dated October 20, 1993, yet you continued to put wrong entries into the Registers. You have stopped drawing the cleaning materials from stores and are leaving utensils un-cleaned, which is unhygienic and a source of infection/disease of patients. Though you have been instructed a number of times to keep the utensils and cooking platform clean, by using proper cleaning materials, you are not following the instructions and thereby deliberately creating unhygienic condition in the Hospital.”
5. On the basis of the aforesaid allegation, it was alleged that the said acts constitute misconduct under Sub-clauses l, 9, 16, 26, 37, and 44 of Clause 19 of the Certified Standing Orders. The petitioner was also placed under suspension.
6. It appears that the different sub-clauses in respect of which violation has been alleged, are as follows:
(a) Sub-clause 1 relates to wilful insubordination or disobedience of any reasonable or lawful order of superior;
(b) Sub-clause 9 relates to drunkenness, riotous behaviour or disorderly behaviour;
(c) Sub-clause 16 relates to disregarding reasonable instructions for maintenance and cleanliness of premises or committing nuisance etc.;
(d) Sub-Clause 26 relates to negligence in the discharge of duties.
7. The petitioner was also restrained from entering into the premises, excepting for the purpose of recording his attendance between 9.15 A.M. and 9.30A.M.
8. On the basis of the charge-sheet an enquiry was held. From the list of witnesses proposed and examined in order to bring home the charges for and on behalf of the prosecution was disclosed and Dr. T.K. Bhattacharjee, Additional Medical Officer, was one of such witnesses. The matter was enquired into by an Enquiring Officer. The Enquiring Officer was appointed not by the Disciplinary Authority, but by the Appellate Authority. At the enquiry Dr. T.K. Bhattacharjee, Additional Chief Medical Officer, appeared on March 19, 1994, March 23, 1994, and on April 4, 1994 which was the eleventh sitting. Dr. Bhattacharjee, who subsequently became the Acting Chief Medical Officer, appeared as a special witness.
8. (A) The Enquiring Officer, after examining the witnesses, records and documents ultimately found that there was delay in serving food to the indoor patients after 9 A.M. and that the stand taken by the petitioner that the delay was due to heavy rain and delay in procuring materials required for serving breakfast and meal, was not disputed, but as in the letter dated July 19, 1993, the petitioner disclosed the reason of poor weather condition and that he admitted this fact of delay and apologised for the same. But the charge of refusing to serve breakfast was not approved and on the contrary, the charge against the petitioner that Sri P.C. Das, Cook-cum-Bearer was obstructed, was not proved and the said Sri P.C. Das, himself denied at the enquiry that he was obstructed. So, the explanation given by the petitioner was accepted in which he explained the reasons for the delay. Accordingly, the refusal to serve the breakfast or obstruction caused to another Cook-cum-Bearer, was not proved, but there was delay in the circumstances stated above. With regard to the charge of tampering the official records relating to overtime from September 17, 1991, that from the register, tampering of records was not evident. But there was a claim for overtime for doing the marketing jobs, and that the said claim for overtime for marketing was not sanctioned by the Hospital Authority and as such the claim was unauthorised. It was found that he did it purposefully violating the instructions of the Hospital Authority. The charge of tampering failed, but accordingly, falsifying the account also could not be proved.
9. At the enquiry, Dr. T.K, Bhattacharjee, who was initially Additional Chief Medical Officer, subsequently became the Acting Chief Medical Officer, appeared and deposed at the enquiry. Ultimately the punishing authority passed the order of punishment as Additional Chief Medical Officer.
10. Mr. Kashikanta Maitra, learned Counsel appearing on behalf of the petitioner, contended in the past case that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman. It is necessary for the employer to prescribe what would be the misconduct so that the employee knows the pitfall he should guard against. This was held in Rasiklal v. Ahmedabad Municipal Corporation, reported in (1985-I-LLJ-527)SC.
11. The same view was also taken by the Supreme Court in the case of A.L. Karla v. Project & Equipments Corporation India Ltd., reported in (1984-II-LLJ-186). On the face of the charges and/or the findings made by the Enquiring Officer, it was submitted by Mr. Maitra that the petitioner cannot be held guilty of any of the provisions of the Standing Order which had stated the omissions and commissions which may amount to misconduct.
12. Secondly, Mr. Maitra then relied on the decision of the Supreme Court, in the case of Ranjit Thakur v. Union of India, reported in (1988-I-LLJ-256) and in the case of Bhagat Ram v. The State of Himachal Pradesh reported in (I983-II-LLJ-1), and other cases, on the ground of disproportionate action. It was submitted that the punishment was highly and shockingly disproportionate with the offence alleged. Reference was also made to the case of Council of Civil Service Unions and Ors. v. Minister for Civil Service, reported in (1984) 3 All ER 935, where the principles of proportionality had been considered at length.
13. Mr. Maitra strongly submitted that the proceedings had been vitiated by reason of bias on the part of the Disciplinary Authority. Dr. T.K. Bhattacharjee issued the charge sheet and appeared as witness in respect of the charges and ultimately, on consideration of the enquiry report, Dr. Bhattacharjee acted as a Disciplinary Authority and passed the order of punishment.
14. Mr. Maitra lastly submitted that the finding of the Enquiring Officer was perverse and in this conenction referred to the decision of the Supreme Court in the case of Union of India v. H.G. Goel, reported in (1964-I-LLJ-38), wherein all power of the Court, to set aside an Enquiring Officer’s report on the ground of perversity was upheld, and it was observed by the Supreme Court that the High Court, under Article 226 has jurisdiction to enquire whether the conclusions of the Government on which the impugned order of dismissal rests, is not supported by any evidence at all, and if the High Court can be satisfied that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal is based on no evidence, the Court can strike down the order. But the High Court cannot go into the question of sufficiency or adequacy of the evidence in support of a particular conclusion.
15. Dr. Tapas Banerjee, learned counsel appearing on behalf of the respondents, submitted that the petitioner had alternative remedy for appeal before the Appellate Authority which is the most effective remedy available to him. It was submitted that the Disciplinary Authority, namely Dr. T.K. Bhattacharjee, had only appeared after the petitioner had wanted to examine him and when the petitioner had examined, him at the enquiry, the petitioner cannot turn’ down and contend that the proceeding was vitiated on account of bias.
16. Thirdly, it was submitted that there was no substantial failure of justice in the said departmental proceeding.
17. Lastly, it was submitted that the principles of proportionality is no longer available as a ground of judicial review so far as the High Court is concerned.
18. The Principles of proportionality which is propounded in the case of Council of Civil Service and Ors. v. Minister of Civil Service, (supra) was followed by the Supreme Court in the case of Ranjit Thakur v. Union of India, (supra). The same view was also taken by the Supreme Court earlier in the case of Bahgat Ram v. State of Himachal Pradesh (supra) and other cases. In Brind v. Secretary of the State for Home Department, reported in (1991) All ER 720, it was held by the House of Lords that the exercise of an administrative discretion could only be reviewed by the Courts in accordance with the conventional principles of judicial review which did not include a taste of proportionality. It was held that although in construing any provision in domestic legislation which was ambiguous in that it was capable of, the concept of proportionality was applicable in case of the European Convention of Human Rights, which has not been incorporated into the English Domestic Law and that the Courts could presume that he Parliament intended to legislate in conformity with the conventions in England and not beyond that, and that the Courts would review the exercise of administrative discretion on the basis that the discretion had to be exercised in conformity with the convention. But ultimately, the Supreme Court, in the case of Union of India v. Giriraj Sharma, reported in (1994-I-LLJ-604) held that the punishment of dismissal from service for overstaying the period of 12 days in the circumstances which had not been controverted, was harsh since the circumstances indicated that it was not his intention to wilfully flout the order, but the circumstances forced him to do so. In this case, the High Court reinstated the petitioner therein with all monetary and other service benefits and the Supreme Court was pleased to affirm the High Court’s order, quashing the order of dismissal and directing the reinstatement in service with monetary benefits. But the Supreme Court observed that it would be open to the department, if it so desires, to be rigid with a minor punishment.
19. Accordingly the principles of proportionality is still held to be a ground of judicial review of an administrative order in our country.
20. Accordingly, in the facts and in the circumstances of this case, on the basis of the mate-rial-on-record the delay in serving the breakfast, in view of the circumstances explained by the petitioner and not controverted and or on the face of the failure of charge of tampering with the records and the failure to prove wilful obstruction to co-workers, does not suggest that the punishment was proportionate. But it is not necessary to set aside the order of punishment merely on the ground that it was disproportion-ate. In this case, the Disciplinary Authority has also relied on the past record of service while passing the order of punishment by the Disciplinary Authority in respect of which the petitioner was not given any opportunity of hearing. It is well settled principle that the Disciplinary Authority cannot rely on any materials and or information without disclosing and or giving the party an opportunity of being heard and that this view is now concluded by the decision of the Supreme Court in the case of State of Mysore v. K. Manche Gowda, .
21. The principle of fairness is now considered to be a part of the principles of natural justice. The principles of natural justice have an important place in modern administrative law. They have been defined to mean “fair play in action”. Fair play is a part of the public policy and is a guarantee for justice to citizens. In the system of rule of law, every social agency, conferred with power, is required to act fairly so that the social action would be just and would be for furtherance of well being of citizens, (see K.I. Shepherd v. Union of India, reported in (1988-I-LLJ-162)(SC).
22. In Mahesh Chandra v. Regional Manager, , it was held by the Supreme Court that Public Authorities are accountable to people. Public Authorities should justify the action assailed on the touch stones of justness, fairness, reasonableness, and as a reasonable prudent owner.
23. In Pritam Pal v. High Court of Madhya Pradesh , it was held that the conferring of a reasonable opportunity to defend is considered as sufficient observance of the fairness.
24. Accordingly, in the facts and in the circumstances of this case, reliance on past records, which played a major factor, had vitiated the proceedings as the same had violated the principles of fairness and natural justice.
25. In this case, Dr. Bhattacharjee issued the charge sheet as a Disciplinary Authority. He was a witness and he passed the order of punishment as a punishing authority. Admittedly, he was a named witness for the prosecution,but did not appear suo motu. It is immaterial whether by whom he was examined. It is not a case that Dr. Bhattacharjee has been called by the petitioner as his defence witness; the thing would have been otherwise and the petitioner could be said to have been stopped from contending as he was a witness and a witness cannot be allowed to play the role of the judge. In Arjun Chaubey v. Union of India reported in (1984-II-LLJ-17) it was held that when charge against the employee related to his conduct, qua the Superintendent, the order of dismissal passed by the Superintendent himself after considering the explanation given by the employee, it was held that the order of dismissal was illegal on the ground that the order was passed by the Superintendent after considering the explanation himself which violated the principles of natural justice. In that case, the main thrust of the charge is against the employee related to his conduct qua the Superintendent. Therefore, it was not open to the Superintendent to sit in judgment over the explanation offered by the employee and decide that the explanation was untrue. It was held that no person could be a judge of his own cause and no witness could certify that his own testimony was true; any one who had a personal stake in the enquiry, must have kept himself aloof from the enquiry. It is well settled and it is one of the essence of justice that judges should act impartially, objectively and without any abuse, and that the test is not whether in fact the decision maker was actually biased, the test is always that there should not be any likelihood of bias.
26. In Ashok Kumar Yadav v. State of Haryana, , it was observed that:
“This Court emphasised that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of basis is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection.
27. In Ranjit Thakur’s case(supra), the Supreme Court observed that as to the tests of likelihood of bias, what is relevant is the reasonableness of the apprehension, in that regard, in the mind of the party. The proper approach for the judge, is not to look as his own mind and ask himself however honestly, “Am I biased? But to look at the mind of the party before him.”
28. A real likelihood of an operative prejudice is bias, whether conscious or unconscious.
29. In this case, allegations were made by Dr. Bhattacharjee. He considered the explanation, overruled the explanations issued by the charge sheet, gave evidence as a witness and thereafter, on consideration of the Enquiry Officer’s report, he passed the final order of punishment. It is not a case of simple likelihood of bias. It is a case of a prosecutor and witness playing, a role of the judge and deciding the fate of an employee who is holding a very lower rank, not aware of his legal rights.
30. In my view, it is a clear case where the Disciplinary Authority was biased and that by appearing as a witness and in the circumstances of this case as aforesaid, he is disqualified to be a decision making authority. Impartial decision maker is essential in all disciplinary proceedings. In this connection, reference may be made to the case of R. v. Barnsley Metropolitan Borough Council, exp. Hook, (1976)3 All ER 452. In this case, Mr. Hook had a licence to trade in Barnsley market. One evening, after the market closed and the public lavatories were locked, he urinated in a side street. A complaint was made to the market manager who reported it to the appropriate committee. Hook’s licence was revoked. At the appeal, the manager who was of course in the position of complainant or prosecutor, was at the least present while the Committee was considering what its decision would be. Its decision was quashed.
31. Accordingly, on the ground of admitted bias, not merely likelihood of bias, the order of punishment cannot be allowed to stand.
32. It is the essence of a judgment that it is made after due observance of judicial process that the Court or the Tribunal passing it observes, at least the minimal requirement of natural justice is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality, is a nullity and the trial ‘Coram non-judice’ (Vassiliades v. Vassiliades AIR 1945 PC 38)
33. If a member of Enquiry Committee appears as witness against delinquent, bias takes place, R.L. Sharma v. Managing Committee, Dr. Hari Ram Higher Secondary School, .
34. The Court will not enquire whether a person was really prejudiced. If on the face of the existing circumstances, that he was likely to be prejudiced, that was sufficient to quash a decision.
35. Accordingly, in the facts and in the circumstances of this case, the order of punishment cannot be sustained. With regard to the alternative remedy is concerned, in view of the decision of the Supreme Court in the case of Hriday Narain v. Income-Tax Officer, wherein the Supreme Court has held that if the Court entertains the petition on its merit, the Court cannot dismiss it at the final hearing stage, and in the facts and in the circumstances of this case, when there was violations of the principles of natural justice, the rule against bias has been offended, the alternative remedy in the facts and in the circumstances of this case, cannot be said to be an effective remedy, particularly in view of the fact that the Enquiring Officer was appointed by the Appellate Authority.
36. Accordingly, the order of punishment is set aside, giving liberty to the respondents, if they so like, to proceed afresh in the matter and award afresh against the petitioner in accordance with law, keeping in mind the observation made above in this judgment. The writ petition is allowed. There will be no order as to costs.
37. Let a xerox copy of the above order be given to the parties on the usual undertaking.