CANTONMENT EXECUTIVE OFFICER Vs. VIJAY D WANI

JUDGEMENT

(1.) This appeal is directed against the order dated 10.1.2005 passed in Writ Petition No.966 of 1995 by the High Court of Judicature at Bombay whereby the Division Bench has set aside the resolution of the Cantonment Board, Pune dated 29.10.1991 removing the respondent from service which is completely vitiated on account of the participation of the three members of the Enquiry Committee and the orders of the 1st and 2nd Appellate authorities dated 8.7.1992 and 22.12.1994 and allowed the writ petition of the Vijay D. Wani respondent(herein) and directed the Cantonment Board to reinstate the petitioner (respondent herein) into service with 50% backwages and continuity of service.

(2.) Brief facts which are necessary for disposal of this appeal are that the respondent was appointed as Junior Engineer (Electrical) with Pune Cantonment Board with effect from 9.3.1977. Later on he was redesignated as Sectional Engineer (Electrical). In 1987, the Cantonment Board decided to purchase N.C.T. pies for street lighting and directed the respondent to prepare an estimate. Similarly he was also directed to prepare estimates for electrification of S.V.P. Cantonment General Hospital, for the purpose of air conditioning of the Operation Theater and for purchase of transformer for the same hospital. The Contonment Board also wanted him to prepare estimates of sewerage pumps for Ghorpadi and Wanawadi Bazar Draining Scheme and also estimates for cables and street lights at Price of Wales Drive. The respondent as a Sectional Engineer (Electrical) prepared all those estimates. But on 11th August, 1987, the office of the Cantonment Board through the Chief Executive Officer served him a memorandum alleging that the estimates prepared by the respondent suffered from total non-application of mind. The respondent offered his explanation dated 25.8.87 to the said memorandum but that was not accepted by the Board. A charge-sheet containing the same charges was issued to the respondent on 13.1.1988. The respondent was put under suspension and the Cantonment Board appointed an Enquiry Committee to enquire into the alleged misconduct of the respondent. The Enquiry Committee found the charges proved by majority of two versus one the third member differed on items 2 and 4. By a resolution dated 25.10.1991 the Cantonment Board considered the Enquiry Committee's report and accepted it and passed the order of removal of the respondent from service. The respondent filed an appeal to the GOC-in-Chief, Southern Command, Pune and the same was dismissed on 8.7.1991. The respondent preferred second appeal before the Government of India, Ministry of Defence, which was also dismissed on 22.12.1994.

(3.) Aggrieved against this order the respondent preferred an appeal before the High Court. The High Court rejected the first contention of the respondent that all the three members of the Enquiry Committee happened to be the members of the Board in which capacity they had scrutinized, approved and accepted the estimates prepared by the respondent when the estimates were placed before the Cantonment Board. Since they were interested in the matter, therefore, the enquiry should have been quashed on the ground of bias. Secondly, it was contended that the alleged misconduct of the respondent themselves participated in the meeting of the Cantonment Board and voted in favour of the report while considering the issue of inflicting punishment on the respondent. It was also contended that the participation of the members of the Enquiry Committee in the Board meeting when the report was under consideration completely vitiates the inquiry. In support of this, the learned counsel for the respondent relied on the decision of this Court; Institute of Chartered Accountants of India v. L.K. Ratna and Ors. reported in 1986(4) SCC 537. So far as first contention is concerned, the High court did not find any fault that the petitioner/respondent (herein) had not made any specific allegation against any Board member of the Enquiry Committee nor had imputed any malafide or illwill to any members of the Enquiry Committee. Therefore, the contention of the learned counsel appearing on behalf of the petitioner/respondent(herein) of bias was rejected. So far as second contention is concerned, it was held that there was violation of principles of natural justice in as much as all the three members of the Enquiry Committee participated in the Board meeting and voted in support of their Enquiry report and held the respondent guilty of misconduct and dismissed him from service. That vitiated the decision making process as all the three members of the Enquiry Committee was part of the decision making process and since they were interested to see that their report be upheld by the Committee. Therefore, there was a legitimate apprehension in the mind of the respondent that the three members of the committee who were inquiring against the respondent and found him guilty were interested to see that their report should be confirmed by the Board and this seriously prejudiced and biased the process of decision making him guilty. This contention was upheld by the Division Bench and consequently the Division Bench set aside the order Cantonment Board as well as the order on appeal by the GOC-in- Chief, Southern Command, Pune and the order passed by the Secretary, Government of India, Ministry of Defence. Aggrieved against the order passed by the Division Bench of the High Court, this appeal was filed by the Cantonment Board.