Indra Bhushan Choubey Vs Food Corporation of India and Others

Amitava Lala, J.@mdashThe writ petition is basically made for the purpose of setting aside or quashing the order of his dismissal from service issued by the Zonal Manager (East) of the Food Corporation of India under ref. No. Vig-3(2)/97 dated April 12, 1999 being annexure ''W'' to the writ petition and incidentally similar relief in respect of enquiry report of the respondent No. 6.

2. As and when the matter was called on for the purpose of final disposal both the petitioners and the respondents commonly cited a judgment reported in Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, along with other matters to visualise the issue relevant for the purpose of consideration. From paragraph 19 of the judgment it appears that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as I have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

3. A further question arose with regard to whom this Court will remand the matter for the purpose of taking final decision. The petitioner contended that one of the authorities concerned is bias because of reason of connivance without hearing as put in the order of disagreement. It is de hors the Rule being 59(2) wherein it is described that the disciplinary authority shall, if it disagrees with the findings of the enquiry authority on any article of charge, record its reasons for such disagreement and record his own finding on such charge if the evidence on record is sufficient for that purpose.

4. However, the petitioner contended that he is, interested to go back to any disciplinary authority but not to the person who has already made up his mind in this respect. In that view of the matter they further contended that they are agreeable to go before the higher authority but to that extent the respondents objected by saying that the higher authority means the Appellate Authority and if they go before the Appellate Authority they will lose one opportunity of proceeding with the matter which has been depicted by the Supreme Court. There is no other alternative but to go back to the same disciplinary authority.

5. However, at the time of considering all aspects the petitioner surrendered his right about going back to the disciplinary authority to have first chance. Therefore, the Appellate Authority will hear out the de novo in this respect. It is specifically recorded that the petitioner has given up his one chance to go back before the disciplinary authority and he will not agitate such issue in future.

6. The test of bias is not whether in fact a bias has affected the judgment but whether a litigant could reasonably apprehend that a bias attributable to an authority might have operated against him in the final decision. However, the Court should be satisfied that (sic) substantial miscarriage of justice will take place in the event of its refusal of the prayer. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. In such cases, Court must not plead helplessness. The situation must be by exercise of inherent powers which are vested in Courts for doing justice between litigants and to uphold fair play in judicial proceedings. Even likelihood of bias is sufficient ground to take into account in respect of administrative or quasi-judicial authority. Partiality and bias are the disqualifications of the authority concerned and tantamounts to misconduct.

7. Mr. L.K. Gupta, learned Senior Counsel, appearing for the respondents shows his rigidity in respect of discipline and appeal regulations appendix-2 in respect of statement showing competent authorities from which it appears that Zonal Manager is the authority. Since the Zonal Manager has passed this order, no order can be passed to go before any other authority other than such Zonal Manager even not before the appellate Authority for the purpose of de novo hearing.

8. I disagree with such argument advanced by Mr. Gupta since rules and regulations in respect of hearing are hand maid of justice of the authority. However, if the Governmental body is so rigid in this respect, I hold and dispose of the writ petition by directing that the matter should be placed before the concerned Zonal Manager but only for the purpose of referring this matter to the appellate Authority for de novo hearing.

9. No order is passed as to costs.

10. All points are kept open for the authority to decide accordingly.

11. All parties are to act on a signed copy minutes of the operative part of this judgment on the usual undertakings.