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Judgment
M. Chockalingam, J.—Challenge is made to the judgment of the learned Single Judge of this Court in W.P. No. 3327/2005 whereby the
writ petition was disposed of with a direction to the second respondent, the Chairman of the Governing Council of one Nachimuthu Polytechnic
College, Pollachi to complete the disciplinary proceedings initiated against the appellant/writ petitioner in the impugned charge memo dated
21.9.2005 after giving him adequate opportunity.
The Court heard the learned Counsel for the appellant and also the learned Counsel for the respondents. All the materials are looked into,
including the order under challenge.
The writ petition was filed by the appellant alleging that he originally worked as Senior Lecturer in S.S.M. Institute of Textiles Technology and
Polytechnic College at Namakkal that thereafter, on seeing his performance, the second respondent assigned him in some other task and also
placed him as Principal in charge; that the 4th respondent who developed animosity against the appellant was responsible for issuing charge memos
against the appellant; that following the same, a charge memo was issued on the appellant on 21.9.2005 and he was kept under suspension on
23.9.2005; that all the charges levelled against him were filmsy which could not call for suspension; that the 4th respondent was the person who
made allegations against the appellant; that the 4th respondent was also a Secretary and the alleged charge memos were issued on his basis and on
the strength of which, charge sheet was issued on 21.9.2005; that when the Governing Council made a resolution that disciplinary proceedings
were to be initiated and an order of suspension was to be made, the members of the council and also the 4th respondent took a decision that the
appellant has to be placed under suspension and under such circumstances, the proceedings were initiated which are actually vitiated and hence,
the same were to be set aside.
After the counter affidavit was filed, the learned single judgement, on scrutiny of the materials available and hearing the submissions made, was
of the opinion that the proceedings initiated by the Governing council of the Institution was proper, but, time for completing the enquiry has got to
be granted, which in his opinion, three months was reasonable, and thereby directed the second respondent to complete the disciplinary
proceedings within three months after giving adequate opportunity to the delinquent namely appellant herein. Aggrieved over the same, this appeal
has been brought forth by the delinquent/appellant.
Advancing the argument on behalf of the appellant, Mr. N.G.R. Prasad, the learned Counsel would submit that when the writ petition itself was
filed challenging the charge sheet given to the appellant on 21.9.2005 and seeking to set aside the same on the ground that there was no bonafide
and the charges were frivolous and it was also vitiated in view of the bias, the learned Single Judge has nowhere addressed himself to the question
whether the chargesheet dated 21.9.2005 itself was not bonafide and frivolous but addressed himself only on the question of suspension and found
that the time has got to be granted for completion of the enquiry; that it is quite evident from the very charge sheet that the charges were frivolous,
motivated and biased and hence, they did not warrant for suspension at all; that one of the objections raised by the appellant was that the charge
sheet was issued at the instance of the 4th respondent who was actually prejudiced against the appellant and it was evident from the appellant''s
representation made on so many occasions; that the 4th respondent was also present at the meeting of the Governing council on 11.08.205 and
20.09.2005 where the decision was taken to issue a memo and charge sheet on the appellants and following which, suspension has also been
made.
Added further learned Counsel, in the instant case, the charge sheet itself has come out of malafide, vindictive, baseless and also violative of the
principles of natural justice. It is biased in view of the participation of the 4th respondent, Secretary to the Governing Council, in the meetings held
on 11.08.2005 and 20.09.2005 and the entire proceedings were vitiated and hence, the charge sheet has got to be quashed, but not done by the
learned Single Judge. The learned Single Judge has taken an erroneous view, under such circumstances, the order has got to be quashed. It
support of his contention learned Counsel relied on the decisions reported in 2008 (1) SCC 230 (Contonment Executive Officer and Anr. v. Vijay
D. Wani and Ors.); 2008 (2) LLN 323 (S.K. Mondal v. State of West Bengal); K.M. Valliapan Vs. Joint Director of School Education, (Higher
Education) and Appellate Authority and Madras Seva Sadhan Higher Secondary School, and P. Kasilingam Vs. Bharathiar University and Others,
.
The Court heard the learned Counsel for the respondents on the above contentions. They made their sincere attempt to sustain the order of the
learned Single Judge.
According to them, it is true that originally charge memo was issued by the Secretary/4th respondent calling for reply; then they found the reply
not satisfactory; then charge sheet was issued and the same was placed before the Governing Council and after looking into all the materials, the
Governing Council resolved that it was a fit case where disciplinary proceedings were to be initiated against the delinquent to proceed with the
matter. The learned Counsel took the Court to the procedures to be adopted at the time of initiation of the proceedings and would submit that
initiation of the proceedings is one thing and the imposition of the punishment is the other. In the instant case, the disciplinary proceedings were
initiated by the 4th respondent Secretary and it was also placed before the Council and the same was also approved. The 4th respondent was to
impose punishment and the disciplinary proceedings could be initiated by the authority who has got the controlling authority of the delinquent and
also the affairs of the institution. Under such circumstances, the proceedings initiated were perfectly correct and the order of the learned Single
Judge has to be sustained.
Added further learned Counsel for the respondent, in the instant case, the appellant himself has written a letter to the Management that he was
ready to be a party to the disciplinary proceedings and principles of natural justice has got to be followed. Under such circumstances, having made
such a representation, now, the appellant has come forward with the appeal. Hence, the order of the learned single Judge has got to be sustained.
The Court paid his anxious consideration on the submissions made. It is not in controversy that the appellant has joined service in the second
respondent institution and while he was working so, a charge memo was issued on 24.8.2004. The appellant has given his reply for the same on
25.8.2004. The reply given by him was found to be not satisfactory. Under such circumstances, the charges were framed on 27.10.2004 and all
the proceedings upto that stage were placed before the Governing Council and the Governing Council on 11.8.2005 made a resolution that there
was a prima facie case to proceed against the appellant and the proceedings have got to be initiated against the appellant. A reply was sought for
and the appellant gave a reply on 19.8.2005 and that was found to be not satisfactory and recording the same, a resolution was passed on
20.9.2005 that a prima facie case was made out to proceed against the appellant, whereby the Governing council delegated its power to the
Principal to initiate necessary action and on 21.9.2005, the 2nd respondent issued a charge sheet and following the same the appellant was placed
under suspension.
At this juncture, it could be well stated that a perusal of the charge memo dated 24.8.2004 would clearly indicate that all the allegations were
made by the 4th respondent against the appellant. He himself made allegations therein and has issued memo on 24.8.2004 as the Secretary of the
Institution. It is also pertinent to point out that in the reply given by the delinquent/appellant on 25.8.2004, he has categorically stated that all the
allegations were made by the 4th respondent and he has issued the memo which were baseless and biased and on 27.10.2004 the charges were
framed. It is pertinent to point out at this juncture that those charges were also framed by the 4th respondent Secretary. True it is, all these
proceeding were placed before the Governing Council and on 11.8.2005, the Governing Council thought it fit to call for explanation from the
appellant who also tendered his reply on 19.8.2005 but the Governing council was of the opinion that the reply was not satisfactory and initiation
of disciplinary proceedings was a must. Under such circumstances, Governing Council delegated its powers to the Principal of the College and the
charge sheet was issued on 21.09.2005 and on 23.09.2005, the appellant was placed under suspension.
It is not in dispute that the 4th respondent who originally issued charge memo also framed the charges. As per reply given by the delinquent,
the 4th respondent was the person who has got animosity against him and thus, he was responsible for all the charge memos to be issued against
the appellant. It is pertinent to point out here that when all those materials were placed before the Governing Council on 11.8.2005, the same was
considered and found that the reply was not satisfactory. It remains to be stated that the 4th respondent was also a party to the Governing Council
and when the Governing Council took a decision on 11.8.2005 that it was the case where the disciplinary proceedings were to be initiated after
calling for the reply, he was a party thereto. Equally, after the reply was received on 19.8.2005 and when the meeting of the Governing Council
took place on 20.9.2005 wherein they took a decision that the reply was not satisfactory, the 4th respondent was also a party. Equally, on
21.9.2005, when the charge sheet was issued by the Governing council, the 4th respondent was a party. It was the Governing Council, which kept
the appellant under suspension but the 4th respondent was also a party all along.
A perusal of the charge memo on the allegation made against the delinquent therein, would reflect the ill feelings of the 4th respondent against
the delinquent and hence naturally he would be a party interested to see that the appellant was punished.
In the decision reported in 2008 (1) SCC 230 (Contonment Executive Officer and Anr. v. Vijay D. Wani and Ors.) it was observed as
follows:
It is well settled that every member of a tribunal that is called upon to try issue 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 judgement 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.
In the decision reported in 2008(2) LLN 323 (S.K. Mondal v. State of West Bengal) it was observed as follows:
Hence, it appears that initiation of departmental proceedings which is the outcome of the mental action and phenomenon of the members of
governing body present holding inter alia that the reply of the appellant was not satisfactory practically was also the decision of the complainant Dr.
Swapan Kumar Das and Priyadarshini Battacharyya who as per natural human mind action acted as catalyst of such decision making process
adversely of the appellant. This hit the basic concept of natural justice and more particularly the principles of ""Nemo Judex Essa Sua Propria
Cause,"" i.e., nobody should be the judge of his own cause, an age old basic legal principle of natural justice.
What was all contended by the petitioner/appellant before the learned single Judge and equally before this Court is that it was a case of bias
and it has to be pointed out that nobody should be the judge of his own cause, and particularly, the principle of ""Nemo Judex Esse Sua Propria
Causa"". The Court is of the opinion that in a given case, when a person against whom the allegation has been made and who was responsible for
the cause of charge memo on the basis of which charge sheet has been framed and also issued and that too, when he was also a party for taking
such a decision and was also a party to it, when suspension order was made by the Governing council, it would clearly reveal that all the
proceedings could be termed only as biased. The concept of justice must not only be done but must also appear to be done. In a given situation
like this, the apprehension in the mind of the delinquent that biased order would be passed would be suffice.
In the instant case, so far as the earlier part of the proceedings are concerned, the Court is unable to see any bias but on the later part, when
the 4th respondent, being the member of the Governing council, participated in the meeting on 11.8.2005 where a decision was arrived at that
disciplinary proceedings were to be initiated and the reply was called for from the delinquent/appellant and after receipt of the same on 19.8.2005,
the Governing council took a decision that the reply was not satisfactory and also charges were framed and the charge sheet was issued on
21.09.2005 and took a decision to kept him under suspension, in all these proceedings, the 4th respondent was also a party and thus, it cannot be
stated that it was not biased.
As discussed above, the principle of bias has its full applicability and full vigour in the instant case and accordingly initiation of the proceedings
itself became, void ab initio due to basic breach of principle of natural justice. Hence, the proceeding initiated against the appellant has got to be
quashed. Accordingly, the same is quashed. The order passed by the learned single Judge in W.P. No. 33274 of 2005 is set aside. The writ
appeal is allowed. No costs. Consequently, M.P. Nos. 1 and 2 of 2007 are closed.