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N.S. Dhamankar Vs. Cantontment Board - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 22875/80
Judge
Reported inILR1986KAR4039; (1987)ILLJ401Kant
ActsConstitution of India - Article 226
AppellantN.S. Dhamankar
RespondentCantontment Board
Excerpt:
.....allowed and the the judgment dated 24.7.2007 in rsa no. 955/2001 was restored to file for being heard by the appropriate bench. - what is clearly established is that one of the two biased persons to whose presence he had objected, continued to participate till he affixed his signature leading to the petitioner's dismissal. in a group deliberation and decision like that of selection of board, the members do not function as computers and each member of the group or board is bound to influence the other, more so if the member concerned is a person with special knowledge. it is attractive because it is founded on the well accepted principle that no servant shall be imposed punishment which is not authorised by law. i should have no hesitation to uphold the second contention as well as a..........of the order drew my attention to the fact that while reduction in rank is permissible under the service rules, the second punishment of treating the entire period of suspension till the date of the order as period of leave without pay was not a punishment prescribed under the relevant service rules. he therefore contended that while two punishments for the same offence itself is impermissible unless expressly authorised by law, a punishment not authorised by law at all would be wholly illegal and i would have no hesitation to accept the argument. 7. sri k. i. bhatta, learned counsel for the cantonment board, could not place any material before me by which it could be inferred that the rules authorised imposition of the punish- ments. he submitted that the second of the punishments of.....
Judgment:
ORDER

1. Petitioner who at the relevant time was an employee of respondent - 1 - Cantonment Board, Belgaum, has in this petition challenged the legality and correctness of the order made by the respondent-Board which is at Annexure Z-1 to the Petition.

2. It would be useful at this stage to set out the operative portion of the order :

'In the result, I modify the penalty levied upon the appellant by the Board, of dismissal from service to reduction to the lower post of Draftsman and direct his reinstatement in service with immediate effect. I further order that the period between his dismissal and reinstatement be treated as extraordinary leave without pay and allowances and no allowance be paid to him for the period for which he had been under suspension beyond the subsistence allowance already received by him. I also set aside the decision of the Cantonment Board forfeiting its contribution of Rs. 2306.85 towards his provident fund with interest accrued thereon.

Sd/- A. M. Vohra Pune Lieutenant General, 24th May, 1979 General Officer Commanding-in-Chief.'

From a perusal of the order extracted above, it is clear that the appellate order passed by the 2nd respondent, petitioner while he was working in the year 1970 as an Overseer in the Cantonment Board was kept under suspension on certain specific charges pending enquiry. That enquiry was completed on 9th April, 1972 and he was dismissed from service by an order dated 12th December, 1972. He challenged that order of dismissal in this Court in an earlier proceeding under Article 226 of the Constitution. He was successful in getting the order of dismissal dated 12th December, 1972 set aside. However, this Court reserved liberty to the 1st respondent-Cantonment Board to proceed further against the petitioner in accordance with law if it was so advised. As a result of which another order was passed on 2nd September, 1978 by which petitioner was once again dismissed. On appeal the petitioner got the benefit of Annexure-Z1. The operative portion is already extracted above which is assailed in this Writ Petition.

2. Mr. H. B. Datar, Learned Counsel appearing for the petitioner has urged only two points. One relates to the procedure followed at the enquiry despite the objections raised by the petitioner-delinquent officer. The second point urged is that the appellate authority while allowing the appeal has committed the error of imposing the punishment, one of which is not authorised by law at all, apart from the fact that an Officer cannot be punished twice over for the same offence of which he has been found guilty.

4. It would be useful to briefly state that the facts relating to the background under which the petitioner came to be subjected to charges and enquiry. He joined Cantonment Board as a Draftsman and after some service, apparently satisfactory service, he was promoted as on Overseer. While performing his duties as an Overseer, he appears to have brought action against some of the members of the Cantonment Board for an unauthorised construction in their existing premises in the Belgaum Cantonment area. As a result of the action initiated by him some of the members of the Board had to demolish the unauthorised constructions or otherwise legalise it. However, when petitioner himself was subjected to four charges, an enquiry committee was constituted and in that committee two of the members of the Board who had been adversely affected by the actions initiated by the petitioner as an Overseer were nominated. While replying to the charges petitioner pointed out that two of the members were biased and therefore not competent to be on the enquiry committee. His objections to those two members' presence in the inquiry committee appears to have gone un-noticed though it should be said that one of them did not sign the final enquiry report relating to the order of dismissal. But there is no evidence on the other side as to whether both the members participated in the discussion or in the enquiry proceedings as a whole. What is clearly established is that one of the two biased persons to whose presence he had objected, continued to participate till he affixed his signature leading to the petitioner's dismissal.

5. Mr. Datar, Learned Counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of G. Sarana v. Lucknow University (1977-I-LLJ-68 at 72). A Bench of three Judges presided over by the then Chief Justice of India laid down certain requirements which would satisfy compliance with rules of natural justice. It would be useful to extract a portion of the head note concerning paras 11 and 14 of the Judgment as reported in the : (1977)ILLJ68SC and it is as follows :

What has to be seen in a case where there is an allegation of bias in respect of a member of an administrative aboard or body is whether there is reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the members against the aggrieved party. In deciding the question of bias human probabilities and ordinary course of human conduct have to be taken into consideration. In a group deliberation and decision like that of Selection of Board, the members do not function as computers and each member of the group or board is bound to influence the other, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.'

It does not require any authority to hold that when such bias is proved, then the entire exercise of conducting an enquiry with a biased member would be rendered futile as such a procedure would not conform to the rules of natural justice. We have in the instant case as borne out by records clear objection filed by the petitioner and the reasons why presence of the two members on the enquiry committee was not proper. Nowhere has it been denied that the cause shown by the petitioner for the bias of the said two members was false or without basis. On the other hand, the records do disclose that those members had acted in contravention of the building rules of the Cantonment Board and had been proceeded against by the Cantonment Board at the instance of the report of the petitioner who at the relevant time was an overseer. That they had sufficient motivation for being biased, there is no doubt in my mind. If the standard laid down by the Supreme Court as expressed in Sarana's case (supra) which is extracted above, is to be applied with rigour as every Court in India should do having regard to the fact that that standard had been laid down by the Supreme Court of India. I should have no hesitation to hold that the presence of Mr. Batkekar, who not only participated in the proceedings but also affixed his signature to the report should be held to vitiate the entire proceedings.

6. The next argument directed against the appellate order at Annexure-Z1 is also attractive and therefore accepted. It is attractive because it is founded on the well accepted principle that no servant shall be imposed punishment which is not authorised by law. In fact, Mr. Datar, pointing out the two facts of the operative portion of the order drew my attention to the fact that while reduction in rank is permissible under the service rules, the second punishment of treating the entire period of suspension till the date of the order as period of leave without pay was not a punishment prescribed under the relevant service rules. He therefore contended that while two punishments for the same offence itself is impermissible unless expressly authorised by law, a punishment not authorised by law at all would be wholly illegal and I would have no hesitation to accept the argument.

7. Sri K. I. Bhatta, learned Counsel for the Cantonment Board, could not place any material before me by which it could be inferred that the rules authorised imposition of the punish- ments. He submitted that the second of the punishments of treating his pay was power incidental to the exercise of power specified in the rules. I should have no hesitation to uphold the second contention as well as a second punishment not specifically authorised cannot be held to be incidental.

8. But the question, whether this Court under Article 226 of the Constitution having known the totality of the circumstances of the case, particularly the time factor; the enquiry having commenced somewhere in 1970 and litigation having persisted till now, should afford any relief at all to the petitioner despite the case made out. The records further disclose that the made out. The records further disclose that the charges against the petitioner were not totally unfounded. He certainly was guilty and it is likely that any other committee without the two biased persons would also have come to the same conclusion. Keeping that in mind, I think ends of justice would be served if I restrict the exercise of jurisdiction of this Court to striking down the impugned order at Annexure-Z1 in so far it relates to the treatment of the period between the dismissal and reinstatement as leave without pay and keep in fact the order of reduction in rank, but nevertheless observe that the order of reduction itself is somewhat vague in as much as the period for which he must continue to function in the reduced rank is not indicated in the order. In fact, neither Mr. Datar, learned senior Advocate appearing for the petitioner nor Mr. K. I. Bhatta, learned Counsel appearing for respondent-1, were in a position to tell the Court whether the petitioner had remained in service yet or had retired. In that view of the matter, the order of the 2nd respondent at Annexure-Z1 must within three months from today be modified by the 2nd respondent specifying the period for which the reduction in rank would be operative. If he fails to do so, the whole of the order shall be deemed to have been struck down by this Court by this order.

9. After such specification of the period, the petitioner shall be entitled to such consequential benefits for consideration for promotion at a point of time to higher post in the cadre etc., with corresponding benefits of emoluments.

10. Subject to the above, rule is made absolute; Writ Petition is allowed.


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