TILAK CHAND MAGATRAM OBHAN Vs. KAMALA PRASAD SHUKLA

JUDGEMENT

(1.) The facts leading to this appeal lie in a narrow compass. The respondent k. P. Shukia was appointed as a teacher on 14/6/1968 and was confirmed in the year 1970. He was suspended from service on 20/12/1975 and was charge-sheeted on 23/12/1975 on as many as 16 counts. An Enquiry Committee was appointed as per the provisions of the Secondary School Code which found him guilty by majority on all counts and removed him from service. The delinquent filed an appeal which was allowed by the Deputy Director of Education, Greater bombay, by his order dated 31/5/1977. The Deputy Director came to the conclusion that the rules of natural justice had been violated inasmuch as Shri s. K. Vig who was co-opted as nominee of the school was not a member of the managing Committee; the record and proceedings of the Enquiry Committee were not properly maintained; the secretary was not always present at the meetings of the Enquiry Committee and Shri Inder Raj Sudan, the Principal of the School had a strong bias against the delinquent and, therefore, he could not and ought not to have ed as a member of the Enquiry Committee. On these grounds the Deputy Director of Education set aside the order of removal against which the Management preferred an appeal which was allowed by the Joint director of Education by his order dated 14/2/1979. Against the said decision of the Joint Director a writ petition came to be filed in the High court at Bombay which was heard and decided by Pendse, J. on 25/3/1981. The learned Judge after hearing counsel dismissed the petition against which the matter was carried in appeal under the Letters Patent. The division bench of the High court by its judgment and order dated 25/10/1982 reversed the decision of the learned single Judge thereby reversing the decision of the Joint Director also and hence affirmed the view of the Deputy Director. It is against the said order of the division bench that the present appeal is preferred by the Management.

(2.) Mr Bobde, the learned counsel for the appellant, submitted that it was open to the Joint Director to independently evaluate the evidence tendered in the course of the enquiry for the purpose of deciding whether or not the order of removal could be sustained notwithstanding the allegation of bias. According to mr Bobde where the order is passed by the school authorities and it is found to be biased on account of the presence of a biased member on the Committee, it is open to the higher authorities to evaluate the order independently of the decision taken by that Committee and come to its own independent findings on the basis of the record whether or not all or any of the charges are proved against the delinquent. He submitted that in the instant case the Joint Director on an independent appreciation came to the conclusion that four of the 16 charges were established and on that finding sustained the order of removal. He, therefore, submitted that the division bench of the High court was not right in treating the order as void ab initio on the ground that one of the members of the committee enquiring into the matter was strongly biased against the delinquent. At any rate, submitted counsel, the defect could be cured and that was cured by the Joint Director independently assessing the material on record in support of each charge. We are afraid, in the facts and circumstances of this case, we are not in a position to endorse this line of reasoning.

(3.) It must be realised that Shri Inder Raj Sudan the Principal of the school was deeply biased against the delinquent. He had given notice to the delinquent on 2/3/1976 for initiating defamation proceedings against him. Who was responsible for the bias is not relevant to us. It was alleged that his presence on the Committee had vitiated the atmosphere for a free and fair trial and his mere presence operated as an inhibition to the delinquent throughout the proceedings. Mr Garg contended that once it is shown that the one of the members of the committee had a deep-rooted bias against the delinquent and was not likely to act in an objective manner he ought to have excused himself for otherwise the delinquent would have to enter the enquiry with a grave inhibition in his mind that he is not likely to get a fair deal from the Enquiry Committee. He, therefore, submitted that such a situation would not be congenial to a fair hearing to be given to the delinquent and the bias would affect the quality of the enquiry and any decision taken on the basis of record so prepared in such an environment cannot cure the ab initio voidness attached to the enquiry. We see merit in this contention.