KAMALA PRASAD SHUKLA Vs. S N INGOLE

JUDGEMENT

(1.) On 14th June, 1968 the applicant was appointed as a Teacher in Shri Sanatan Dharma High School, run at Koliwada, Bombay, by a Society known as Koliwada Sanatan Dharm Sabhas Education Society whereof the 3rd respondent is the President. In 1970 the appellant was confirmed as Assistant Teacher. On 20th December, 1975 he was suspended from service. A charge-sheet dated 23rd December, 1975 was furnished to the appellant wherein 16 charges were levelled against him, one of them being character assassination of the Principal. An enquiry committee as provided by the Secondary Schools Code was constituted; one of the 3 members was the Principal, the other two were the respective nominees of the appellant and the management. The enquiry resulted in the appellant being found guilty of all the charges by the Principal and the managements nominee; the appellants nominee found that the appellant not guilty of any of the charges levelled against him and recommended that the appellant be allowed to resume duty forthwith. On the majority finding of the Principal and the managements nominee, the appellant was removed from service. On 31st May, 1977 the appellants appeal to the Deputy Director of Education was allowed on 4 grounds, one of them being that the Principal of the School who held a bias against the appellant, could not have been a member of the enquiry committee. The managements appeal to the Joint Director of Education was allowed by the latters order dated 14th February, 1979 to the extent that out of 16 charges, 4 charges including the charge of the Principals character assassination, were held proved. The appellants writ petition in this Court challenging the Joint Directors order dated 14th February, 1979 was dismissed by the learned single Judge, who while endorsing the appellants contention that the Principal was a judge in his own cause hence should not have been a member of the enquiry committee, upheld the Joint Directors order on the ground that the Joint Director had himself gone through the record, heard both the sides and applied his mind afresh to the evidence. Hence the present appeal.

(2.) This appeal can conveniently be disposed of on one point which goes to the root of the matter, namely whether in the enquiry held against the appellant, the Principal, who indisputably had an animus against the appellant, could have been a member of the enquiry committee. The answer is to be found from the following facts which are not in dispute `:---

(3.) From these bare facts which are not in controversy and without the necessity of comment, the inescapable conclusion is that bias on the part of the Principal is writ large, as inter alia is demonstrated by the fact of the Principal even demanding damages from the appellant in the sum of Rs. 5,000/- for character assassination and threatening him with civil and criminal proceedings. Whether the bias was well or ill-founded is a matter of no consequence. Bias thus being plainly and positively manifest, it was not proper for the Principal to have sat in the enquiry committee, much less have taken an active part in the proceedings against the appellant against whom he had demonstrated a positive hostility in his (i.e. the Principals) own interest. There was a positive conflict of interest and duty insofar as the Principal was concerned. This was not just a case of legal bias where for instance an authority may have to adjudicate in an enquiry concerning his own department or even concerning his own property. Here is a case of active and positive bias resulting from the letter dated 28th January, 1974 to which the Principal sent his advocates reply dated 2nd March, 1976 demanding damages from the appellant and even threatening civil and criminal proceedings against him for character assassination , which was the subject-matter of the very first charge and was the subject-matter of the 8th charge of conspiracy. It is of no mean significance that the Principal chose to send his Advocates reply two years later, and shortly after the charge-sheet was furnished to the appellant and shortly prior to the commencement of the enquiry proceedings. The positive hostility shown by the Principal (rightly or wrongly is of no consequence) towards the appellant is sufficient to spell bias on the part of the Principal in a matter vitally and personally touching the Principal. Such bias made the Principal unfit to take part in the enquiry proceedings against the appellant. That by itself goes to the root of the matter and is sufficient to vitiate not only the findings against the appellant but also the proceedings themselves which must be treated as non est. It was, therefore, not open to the Joint Director to substitute his own judgment and to arrive at his own conclusions. In so doing the Joint Director exercised jurisdiction not vested in him and by not upholding the order of the Deputy Director allowing the appellants appeal inter alia on the ground that the Principal could not have been a member of the enquiry committee as he was biased against the appellant the joint director failed to exercise jurisdiction vested in him