Calcutta High Court (Appellete Side)
Dr. Goutam Pal vs The State Of West Bengal & Ors on 13 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Sarkar
W.P. No.13874 (W) of 2016
With
CAN 3217 of 2019
Dr. Goutam Pal
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Bikash Ranjan Bhattacharya,
(Senior Advocate),
Mr. Raghunath Chakraborty,
Mr. Ranajit Chatterjee,
Mr. Prosenjit De,
Mr. Aniruddha Mitra
For the respondent Nos.5 to 8 : Mr. Jaydip Kar,
Mr. Subrata Mukhopadhya,
For the University : Mrs. Nandini Mitra,
Mrs. Sneyashi Chatterjee
Hearing concluded on : 24/09/2019
Judgment on: 13/11/2019
Shampa Sarkar, J. :
This writ petition has been filed challenging the disciplinary proceeding initiated against the petitioner on the basis of the charge sheet 2 dated November 14, 2011, which resulted in the submission of the enquiry officer's report and ultimately led to the order of the disciplinary authority dated November 20, 2012, dismissing the petitioner from service. The case of the petitioner as canvassed in the writ petition is that, the petitioner was appointed as a lecturer, (now renamed as assistant professor) of mathematics in the RCC Institute of Information Technology (hereinafter referred to as the said college) in January 2006. On and from January 2006, the petitioner was a member of a staff association and later functioned as its president. The association campaigned against certain illegalities in the college. The petitioner along with several members of the association, met the officer-in-charge of the said college, Smt. Arpita Banerjee on June 10, 2011 and submitted a memorandum of demands. The officer-in-charge misbehaved with them and the petitioner and Professor Sukla Banerjee filed a written complaint with the police. An FIR was registered and Tiljala Police Station, Case No.230 of 2011 was initiated against the said officer-in-charge. In retaliation to their action, the petitioner along with two (2) other faculty members were placed under suspension by an order dated June 30, 2011. The officer-in-charge of the said college also lodged a complaint with the police against the petitioner and other staff members of the association. The order of suspension was challenged by the petitioner by filing W.P.No.11010 (w) of 2011. During the pendency of the writ petition, a charge sheet was issued against the petitioner by the Chairman of the said college vide memo dated November 14, 2011, on allegations of insubordination, inefficiency, misbehavior with ladies and interference 3 with the functioning of the said college. That the principal of the said college was the appropriate disciplinary authority and not the chairman, who acted as the disciplinary authority. That the resolution of the governing body of the said college dated June 21, 2011, was contrary to the rules, inasmuch as, the required quorum was not available when the decision to suspend the petitioner, and also the decision that the chairman of the said college would act as the disciplinary authority had been taken. That Shri Pradip Kumar Dey, the respondent No.12 who acted as the enquiry officer was biased as he was the president of a rival association of the said college, who in the past had made allegations against the petitioner and had demanded that the petitioner be dismissed from service. Although, the petitioner had pointed out by several letters during the course of the enquiry proceedings that the enquiry officer was biased, the enquiry continued and the enquiry officer submitted his report, finding the petitioner guilty of the charges. The enquiry officer continued with the proceeding ex-parte and ultimately submitted the report. The chairman of the governing body, that is, the disciplinary authority in this case, issued a notice dated October 18, 2012, directing the petitioner to show cause against the enquiry report. Although, the petitioner by a letter dated October 28, 2012, requested a months' time to submit a comprehensive reply, the disciplinary authority extended the time by only seven (7) days, that is, upto November 10, 2012. By a letter dated November 8, 2012, the petitioner again requested for further time. However, the petitioner submitted a reply on November 26, 2012, but the disciplinary authority issued the final order of punishment on November 4 20, 2012, dismissing the petitioner from service. The petitioner did not receive the order of punishment but came to know of the same from a subsequent communication dated May 15, 2013. It was contended by the petitioner that the order of dismissal from service was issued on November 20, 2012 without considering the reply of the petitioner dated November 26, 2012. According to the petitioner, the decision of the disciplinary authority, the entire proceedings including the issuance of the charge sheet and all actions taken on the basis thereof were vitiated on the ground of bias, violation of the principles of natural justice, procedural irregularity and non-observance of the service rules applicable to the petitioner.
The petitioner prayed for reinstatement in service with full back wages and other consequential benefits, upon setting aside and quashing the charge sheet, enquiry report and the order of dismissal from service.
The Chairman of the Board of Management of the RCC IT, society filed an affidavit-in-opposition on behalf of the respondent Nos.6 to 10. He stated on behalf of the said respondents that a society known as Regional Computer Centre was formed under the trusteeship of the National Informatics Centre under the Department of Information, Ministry of Communication and Information Technology of the Government of India, the Department of Higher Education, Government of West Bengal and the University Grants Commission. The centre was operating in India through two different branches, one at Chandigarh and the other at Calcutta. The said college was established for the purpose of imparting computer education amongst the students and for providing 5 engineering degree under the governance and control of the aforesaid autonomous society. On February 14, 2002 the branch of Regional Computer Centre operating in Calcutta got merged with DOEACC Society formed by and under the Ministry of Communication and Information Technology, Government of India and was renamed as DOEACC centre, Kolkata. In the year 2003, the Government of West Bengal approached the relevant ministry of the central government, with a proposal to take over the lead role in the management of the said centre and provide a permanent solution with a package for taking over the centre on "as is where is basis" and to save the same from closure. On September 1, 2003, the Government of India accorded sanction to such proposal from the state government.
Upon receiving confirmation from the DOEACC Society on December 3, 2003, in respect of the aforesaid proposal, the Government of West Bengal issued a Notification dated December 15, 2003, appointing Dr. A. Basu, the then officiating Director of Technical Education as the administrator of the said college. The State Government also constituted an ad-hoc committee for the purpose of assisting the said Administrator in the day to day functioning of the college. Thereafter, an autonomous society called the RCC Institute of Technology was formed and registered on March 11, 2005 under the supervision of the State Government in terms of the provisions of the West Bengal Societies Registration Act, 1961. The Board of Management of the said Society was initially nominated by the State Government. The Board of Management of the RCCIT Society in its first meeting took over the charge from the ad-hoc 6 committee formed by the State Government earlier and it also appointed an eleven member governing body to look after the management of the said college. However the society being a private autonomous body had over-all authority and control over the affairs, administration and management of the said college. The college was privately managed. The said college was neither aided nor funded by the Central or State Government. It was a self-financed institution, not in receipt of any monetary grant from any public authority. The state government had, however, provided the land where the said college was situated on leasehold basis for a tenure of thirty (30) years which could be renewed after the said period. The Society raised funds from the tuition fees of the students of the college and other subscription and donations, if any, received from time to time in order to meet the recurring expenses of the said college. In particular, the college did not receive any financial grant from the state government or the central government towards payment of salary of its staff. Except for intermittent infrastructural developmental grants as were given to many other self-financing engineering colleges in the State of West Bengal, no other financial aid was received by the said college from the government. Neither the state government, nor any of its instrumentality scrutinized the accounts of the college. The state government also did not exercise any control to regulate the expenditure of the college. The Memorandum of Association of the said Society and its Regulations empowered the Higher Education Department of the State Government, only to nominate the members of the said Society and nothing further.
7
In the Information Brochure published by the West Bengal Joint Entrance Examinations Board, the name of RCCIIT, that is, the said college has been described as a private engineering college within the State of West Bengal.
The All India Council for Technical Education, (in short AICTE) was the approving authority of any degree or diploma course conducted by a college in engineering studies and provided recognition to such colleges throughout India. In terms of the said guidelines of the AICTE, the Governing Body of RCCIIT, like all other private self-financed colleges offering degree and diploma courses in Engineering, had representation from the state government, the West Bengal University of Technology and the All India Council for Technical Education. This, according to the respondent college, should not be construed as if the state government had functional control over the governing body of the said college. These nominated members did not form a majority in the constitution of the governing body of the said college. The said college was not a 'State' under Article 12 of the Constitution of India, and the writ petition was not maintainable. It was further contended that there had not been violation of the principles of natural justice or non-observance of any statutory provisions or rule giving rise to any cause of action to the petitioner. It was specifically pleaded that disciplinary action against any employee of the college was conducted in terms of the service rules of the said college, which did not have any statutory force whatsoever. The in-house service rules were mere guidelines laying down the terms and conditions of the employees of the said college and had not been framed in accordance with 8 any power or delegation of power conferred upon the said college by any statute or regulations of the affiliating University. Therefore, even in cases of breach of any procedure in the disciplinary proceeding, an employee of the said college could not approach this court for the reliefs as prayed for, by filing a writ petition.
It has been further contended by the respondents in the said affidavit-in-opposition that, along with the petitioner two other teachers had been dismissed and they had accepted the orders. It was alleged that the petitioner had been repeatedly harassing the officer-in-charge of the college who was a lady. The officer-in-charge was forced to tender her resignation on June 9, 2011, but the resignation letter was kept in abeyance. An FIR was lodged by the said officer against the petitioner and his colleagues, when she was wrongfully confined by them in the faculty room. That the governing body of the college had duly authorized the chairman to act as the disciplinary authority as the principal/officer-in- charge was involved in the matter and was herself the victim of the incident and could not act as the disciplinary authority. That the petitioner was duly notified about the dates of the proceedings but he did not cooperate and remained absent. That no prejudice had been caused to the petitioner even if the respondent No.12 was the enquiry officer. Two (2) other colleagues of the petitioner were also dismissed from service on similar charges. Several opportunities were given to the petitioner to place his case before the enquiry officer and cross examine the witnesses but, the petitioner did not participate in the proceedings and as such the proceedings were not vitiated in any manner either on the ground of 9 breach of the principle of natural justice or for violation of the service rules.
Mr. Jaydip Kar, learned senior advocate appearing on behalf of the respondent Nos.6 to 10, that is, the said college raised a preliminary objection, with regard to the maintainability of the writ petition. He urged that the said college was exclusively run, managed and controlled by a autonomous society which functioned within the frame work of its own Memorandum of Association and Regulations. The terms and conditions of the service of the petitioner was governed by the service rules of the said college which did not have any statutory force. That the said college was a self financed private engineering college and not substantially financed by the government. The state government merely nominated members to the Board of Management. The contract of service between the petitioner and his employer, was not amenable to the writ jurisdiction of this Court as the terms and condition of employment was incorporated in a private rule framed by the society. That the managing committee of the said college did not fall within the definition of 'state' under Article 12 of the Constitution of India and as such any dispute between the managing committee and its employees could not be impugned in a writ petition filed by an employee of the said college.
Mr. Kar relied on the following decisions:- Chandra Nath Thakur and Others vs. The Bihar Sanskrit Shiksha Board and Others, reported in (1999) SCC Online Pat 58, Trigun Chand Thakur vs. State of Bihar and Others reported in 2019 SCC Online SC 879, Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak 10 Trust and Others vs. V. R. Rudani and Others reported in (1989) 2 SCC 691, Sushmita Basu and Others vs. Ballygunge Siksha Samity and Others reported in (2006) 7 SCC 680, Committee of Management, Delhi Public School and Another vs. M. K. Gandhi and Others reported in (2015) 17 SCC 353.
Mr. Bikash Ranjan Bhattacharya, learned senior advocate assisted by Mr. Ranajit Chatterjee learned advocate, appearing on the behalf of the petitioner rebutted the objection with regard to the maintainability of the writ petition and stated that the said college was an agency and/or instrumentality of the state and therefore an authority within the meaning of Article 12 of the Constitution of India. He submitted that the said college was a unit of a registered society under the Department of Higher Education Government of West Bengal and was functioning with the active corroboration of the Department of the Higher Education, Government of West Bengal. Since inception the said college was a centre under RCC centre which merged with the DOEACC, a society run by the Government of India, Ministry of Communication and Information Technology. From December 30, 2003 to April 21, 2005, the said RCC IIT was under an ad-hoc committee headed by the Joint Director, Directorate of Technical Education Government of West Bengal. On and from April 21, 2005, the college came under RCC IT society an autonomous society whose Board of Management, was headed by the Department of Higher Education, Government of West Bengal and the other members of the Board were also nominated by the department of Higher Education Government of West Bengal. The society (RCC IT) was formed by a 11 notification issued by the department of Higher Education Government of West Bengal under the order of the Governor. In an advertisement issued by the government and also in the annual report of the said college (RCC- IIT) for the year 2008-2009, the said college has been described as a government aided college. The duty exercised by the society was essentially a public duty. Only the salary of the staff were fully paid by the said college from its own fund but the Central Government and later the State government had made investments in the said college and provided financial aid. The RCC-IIT was a state government sponsored autonomous society, substantially financed by the Government of West Bengal. Both AICTE and the Government of West Bengal recognized the said college as a government aided college. Under the provisions of the memorandum of the society, all members of the Board of Management including the chairman were to be nominated by the Department of Higher Education Government of West Bengal and no member could be expelled or suspended without the consent of the Department of Higher Education Government of West Bengal. Any variation in the constitution or rules of the society required prior approval of the State government. Therefore, the government had a deep and pervasive control over the entire affairs of the society which ran the said college. Clause 3 (14) of the Memorandum of the Association of the society stipulated that prior approval of the State government was needed for any variation in the rules and regulations of the said college.
Mr. Bhattacharya relied on the following decisions:- Janet Jeyapaul vs. SRM University & Ors., reported in (2015) 16 SCC 530, 12 Marwari Balika Vidyalaya vs. Asha Sriastava & Ors. (In re: Civil Appeal No.9166 of 2013) and an unreported judgment of this Hon'ble High Court in The Belly Sankarpur Rajib Gandhi Mrmorial Ayurvedic College and Hospital vs. State of West Bengal & Ors. (In re: M.A.T.239 of 2016) in support of his above submissions.
This court proposes to decide the issue with regard to the maintainability of the writ petition first. I have considered the documents on record. In the appointment letter of the petitioner dated January 2, 2006, issued by the Principal of the said college, the said college had been described as "A unit of RCC Institute of Technology-An Autonomous Society of the Department of Higher Education, Government of West Bengal". In all the letters issued by the said college, the college has been described as a unit of RCC IT an autonomous society of the Department of Higher Education, Government of West Bengal. Similar description of the college appears in all the letters addressed to the petitioner in the course of the disciplinary proceeding from the issuance of the charge sheet to the order of dismissal.
On June 21, 2011, the emergency governing body meeting of the said college was held in the chamber of the Director of Technical Education, West Bengal, Bikash Bhavan, 10th floor, Salt lake. The said Director of Technical Education, Government West Bengal, is the chairman of the governing body of the said college. In the said emergency meeting, the resolution to place the petitioner under suspension in contemplation of the disciplinary proceeding under Clause 5.6 of the service rule of RCC-IIT was adopted. From a communication dated May 13 30, issued by the Director of the Regional Computer Centre, Calcutta, it appears that Regional Computer Centre, Calcutta, RCC-IIT was a registered society whose trustees were National Informatic Centre, Ministry of Information Technology, Government of India, Department of Higher Education Government of West Bengal and the University Grants Commission. Thereafter at the instance of the government of West Bengal, the lead role was taken over by it. The college was, in effect, a unit of a society of the Department of Higher Education, Government of West Bengal. The Government of West Bengal had provided aid in the form of land, existing building, infrastructure etc. From the communications dated May 13, 2003 issued by the West Bengal Higher Education Department, Technical Branch, it appears that the Principal Secretary to the Government of West Bengal, requested the Joint Secretary Department of Information Technology Government of India to let the state government know whether the said department would like to continue the lead role in the management of the RCC-IIT and if the Government of India decided not to continue its lead role with usual financial commitment, then the Government of West Bengal would consider taking over the lead role and would come up with the package including leasing land to the society. The Joint Secretary to the Government of India by a letter dated September 1, 2003 informed the Principal Secretary, Higher Education Department, Government of West Bengal that the offer of the Government of West Bengal to take a lead role in the management of the RCC-IIT was accepted by the Government of 14 India. These facts are not disputed and have been pleaded by the respondent college in their affidavit-in-opposition.
Thereafter, the Executive Director of the DOEACC Society, an autonomous body of Department of Information Technology, Ministry of Communications & Information Technology, Government of India) issued a letter dated December 3, 2003 to the Principal Secretary, Department of Higher Education Government of west Bengal, Technical Branch conveying the decision of the governing body of the Society as hereunder:-
"The RCC-IIT stands transferred to the Govt. of West Bengal from the date of passing of this resolution and intimating the decision of the Council to the Govt. of West Bengal, on as is where is basis. The existing Governing Body of the RCC-IIT also stands dissolved. The Govt. of West Bengal may take necessary administrative action, as it may deem fit, for smooth functioning of the said institute."
The Principal Secretary, Department of Higher Education, Government of west Bengal, issued a notification dated December 15, 2003, by appointing Dr. Amalendu Basu, Joint Director and Officiating Director Directorate of Technical Education, Government of West Bengal as the administrator of RCC-IIT. In the said notification it appears that RCC-IIT was referred to as a government aided institution. By a notification dated January 21, 2004, issued by the Joint Secretary, Government of West Bengal, Department of Higher Education, an ad-hoc committee was constituted to assist the administrator under order of the Governor of West Bengal and the Governor was pleased to direct the committee to draft the memorandum of association of an autonomous society, which would ultimately takeover the functions of the RCC-IIT from the administrator. Thereafter, RCC IT, society was registered under West Bengal Societies Registration Act, 1961 on March 11, 2005. The name of 15 the society under the memorandum was RCC-IT and the said college (RCC IIT) is a unit thereof. The object of the society was to provide education and teaching of high standards, leading to bachelors and masters degree in engineering technology and management. Clause 14 of the said memorandum provides that any amendment and or variation in the rules for the conduct of the affairs of the said college could be done only with the prior approval of the state government. The society was a non-profit making organization. The management of the said society was headed by the chairman who was the Director of Technical Education, Government of West Bengal. The state government had retained the right to cause an inspection of the society, it buildings, laboratories, education imparted and other works conducted and done by the society through the said college.
In the regulations of the society, the Board of Management has been defined as the governing body, responsible for the management of the affairs of the society. All the members of the society are nominated by the Department Higher Education, Government of West Bengal. For any expulsion or termination of any member from the Board of Management, the consent of the Department Higher Education, Government of West Bengal, was required. In the event of any vacancy accruing in the Board due to resignation or death and otherwise, it was to be filled up by nomination by the Department Higher Education, Government of West. The Chairman of the Board and members were nominated by the Department of Higher Education. The Board of Management had the power to frame rules and regulations for the management and 16 administration of the institutions setup by the society and alter or vary the same from time to time and make new rules and regulations. The Board of Management comprising of all nominated members of the Government of West Bengal, was in over-all charge of the society and its assets etc. Any organization operating under the said society like the said college would be governed according to the service rules, administrative rules, academic rules and financial rules of the society. A governing body constituted as per regulations framed by the Board of Management looked after the management of the said college. In case of vacancy accruing in the governing body of the said college, owing to resignation or death or otherwise, the vacancy was to be filled up by nomination by the Board of Management of the Society in consultation with the state government. Thus, it appears from the Memorandum of Association of the Society, that the Board of Management was in-charge of the over-all management and control of the society. The Board comprised of members, all of whom were nominated by the Department Higher Education, Government of West Bengal. The Director of Technical Education, Government of West Bengal was the chairman of the Board of Management. The expulsion and termination of any member of the Board of Management could be done only with the approval of the State Government. Filling up of any vacancies in the board due to resignation or otherwise was to be done nomination by the Government of West Bengal. It was the said Board of Management which had the power to make rules and regulations for the said college. Thus, Department Higher Education, Government of West, which nominated the members of the Board of Management did have all 17 pervasive control in the functioning of the Board of Management as reflected from the Memorandum of Association. This Board of Management framed the service rules and other rules governing the said college/institutions under the society. The governing body was in-charge of the overall management of the said college. Vacancies in the governing body due to resignation, death or otherwise was to be filled up by the Board of Management of the Society in consultation with the State Government, if felt necessary. The society had been described as an autonomous society under the Department Higher Education, Government of West Bengal. The said society was in charge of the supervision, control and management of the said college, although, the immediate functioning of the college was done by the governing body whose members were nominated by the said Board of Management of the Society.
The Government of West Bengal had also taken a lead role in the management of RCC-IIT prior to registration of the society and the ad-hoc committee was also formed by the Governor. The Memorandum of Association was also prepared on the direction of the Governor. In the annual reports prepared by the said college, the college had been listed as a government aided institution. The Government of West Bengal, Department of Higher Education considered the said college as a government aided college. From an advertisement published by the said college for filling up the post of the Principal, the said college has been described as a government aided engineering college under an autonomous society of the Department of Higher Education, Government 18 of West. All these documents referred to hereinabove clearly indicate that RCC-IT Society was a public authority and an agency or instrumentality of the State. Not only did the Department of Higher Education, Government of West Bengal have administrative control over the constitution of the Board of Management of the society of which the said college is a unit, the college was also performing a public duty by imparting technical education in the field of computer science and engineering and management. Even if the said college is not 'State' under Article 12 of the Constitution of India, but by virtue of the function discharged by the said college and in consideration of the records as discussed above, it is a public authority and thus, the said college is amenable to writ jurisdiction under Article 226 of the Constitution of India. The concept of instrumentality or agency of the state cannot be restricted to institutions created by a statute only but would be equally extended to societies or corporations, upon consideration of some relevant factors with regard to control, supervision, financial aid and discharge of public functions.
On this issue, the development of the law requires to be traced. In the decision of Pradeep Kumar Biswas vs. Indian Institute of Chemical, reported in (2002) 3 SCC 111 the majority of the seven Judges Bench observed in paragraphs 4 to 6 as hereunder:-
"4. The questions therefore before us are - is the CSIR a State within the meaning of Article 12 of the Constitution and if it is, should this Court reverse a decision which has stood for over a quarter of a century?
5. The Constitution has to an extent defined the word "State"
in Article 12 itself as including:
"the Government and Parliament of India and the Government and the Legislature of each of the States and all 19 local or other authorities within the territory of India or under the control of the Government of India".
6. That an 'inclusive' definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court. The words 'State' and 'Authority' used in Article 12 therefore remain, to use the words of Cardozo, among "the great generalities of the Constitution" the content of which has been and continues to be supplied by Courts from time to time." The Hon'ble Apex Court observed that the interpretation of the terms 'state' and 'authority' has developed on the basis of meanings supplied by courts. The point of maintainability of a writ petition against a 'state' or 'authority' may be categorised into those which expressed a narrow view and those which expressed a more liberal view. It was further held that in the ultimate analysis, the difference would be attributable to different stages in the history of development of law on this point by judicial decisions on the subject. Before considering the decisions, the Apex Court emphasised upon the significance of Article 12 which was enshrined in Part III of the Constitution of India, which dealt with fundamental rights. The Hon'ble Apex Court held as follows:-
"8. But before considering the decisions it must be emphasized that the significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various Articles in Part-III have placed responsibilities and obligations on the "State" vis-a-vis the individual to ensure constitutional protection of the individual's rights against the State, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly the right to enforce all or any of these fundamental rights against the "State" as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High Courts by issuance of writs or directions or orders.
9. The range and scope of Article 14 and consequently Article 16 have been widened by a process of judicial interpretation so that the right to equality now not only means the right not to be discriminated against but also protection against any arbitrary or irrational act of the State. It has been said that:20
"Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment".
10. Keeping pace with this broad approach to the concept of equality under Articles 14 and 16, courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by "centres of power", and there was correspondingly an expansion in the judicial definition of "State" in Article 12.
11. Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of "State" came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature. Thus a statutory corporation, with regulations framed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute."
The several decisions on the subject has been discussed by the Hon'ble Apex Court in the said decision as hereunder:-
"25. The tests propounded by Mathew, J. in Sukhdev Singh were elaborated in Ramana and were re-formulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi . What may have been technically characterised as obiter dicta in Sukhdev Singh and Ramana (since in both cases the "authority" in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia. The case itself dealt with a challenge under Article 32 to admissions made to a college established and administered by a Society registered under the Jammu & Kashmir Registration of Societies Act, 1898. The contention of the Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State within Art. 12.
26. The Court recognised that:
" Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression 'other authorities' if it is to fall within the definition of 'State' ".
But it said that:
"The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their 21 sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights".
It was made clear that the genesis of the corporation was immaterial and that:
" The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12".
27. Ramana was noted and quoted with approval in extenso and the tests propounded for determining as to when a corporation can be said to be an instrumentality or agency of the Government therein were culled out and summarised as follows:
"(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor..whether the corporation enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
28. In dealing with Sabhajit Tewary the Court in Ajay Hasia noted that since Sabhajit Tewary was a decision given by a Bench of Five Judges of this Court it was undoubtedly binding. The Court read Sabhajit Tewary as implicity assenting to the proposition that CSIR 22 could have been an instrumentality of agency of the Government even though it was a Registered Society and limited the decision to the facts of the case. It held that the Court in Sabhajit Tewari :
" did not rest its conclusion on the ground that the council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the council for arriving at the conclusion that it was not an agency of the government and therefore not an 'authority'".
29. The conclusion was then reached applying the tests formulated to the facts that the Society in Ajay Hasia was an authority falling within the definition of "State" in Article 12.
30. On the same day that the decision in Ajay Hasia was pronounced came the decision of Som Prakash Rekhi v. Union of India . Here too, the reasoning in Ramana was followed and Bharat Petroleum Corporation was held to be a 'State' within the "enlarged meaning of Art.12". Sabhajit Tewary was criticised and distinguished as being limited to the facts of the case. It was said:
"The rulings relied on are, unfortunately, in the province of Art.311 and it is clear that a body may be 'State' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State'. With great respect, we agree that in the absence of the other features elaborated in Airport Authority case (1979) 3 SCC 489:
(AIR 1979 SC 1628) the composition of the Government Body alone may not be decisive. The laconic discussion and the limited ratio in Tewary (1975) 3 SCR 616 : (AIR 1975 SC 1329) hardly help either side here."
31. The tests to determine whether a body falls within the definition of 'State' in Article 12 laid down in Ramana with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.
32. In P.K. Ramachandra Iyer and Others V. Union of India and Others 1984 (2) SCC 141, it was held that both the Indian Council of Agricultural Research (ICAR) and its affiliate Indian Veterinary Research Institute were bodies as would be comprehended in the expression 'other authority' in Article 12 of the Constitution. Yet another judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
"Much water has flown down the Jamuna since the dicta in Sabhajit Tewary case and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts."23
33. B. S. Minhas v. Indian Statistical Institute & Ors. held that the Indian Statistical Institute, a registered Society is an instrumentality of the Central Government and as such is an 'authority' within the meaning of Article 12 of the Constitution. The basis was that the composition of respondent No.1 is dominated by the representatives appointed by the Central Government. The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all such directions as may be issued by the Central Government. It was held that the control of the Central Government is deep and pervasive.
34. The decision in Central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguli held that the appellant company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.
35. However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi alias K.S. Basandhi V. Union of India and Others 1988 (1) SCC 237, where the Institute of Constitutional and Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not to be an "other authority" within the meaning of Article 12. The reasoning is not very clear. All that was said was:
"Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities' in Article 12 of the Constitution".
36. .............
37. .............
38. ............
39. Fresh off the judicial anvil is the decision in the Mysore Paper Mills Ltd. vs. The Mysore Paper Mills Officers Association JT 2002 (1) SC 61 which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 upto the present time. It held that a company substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government is 'an authority' within the meaning of Art.12.
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to 24 be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
The ultimate conclusion was that, if in the cumulative assessment of the facts, it was found that the state played a dominant role functionally and administratively over a body then the said body, would be amenable to the writ jurisdiction under Article 226 of the Constitution of India.
In the instant case, a dominant role had been played initially by the Central Government and later on by the State Government as evident from the records. The law was further developed by the Hon'ble Apex Court and the test was no longer restricted to the role played by the Government.
Another test propounded by judicial decisions as to whether an authority was amenable to writ jurisdiction, was to examine in the first instance, the object and purpose for which such body/authority was formed. Clearly the said college performed a public duty/public function in imparting technical and higher education to the public. The management of the college was under the direct supervision and control of the Board of Management of an autonomous society under the Government of West Bengal, comprising of all members nominated by the state government. Even if the salary of the petitioner was paid from the college funds, considerable amount of public money was spent as aid to 25 the college. The college discharged public function by imparting education to the students. The college was bound by the rules of the affiliating university. Thus, employment in such an institution, therefore was not devoid of a public character. The service conditions of the petitioner in this college was not purely private in nature. The relevant portion of the decision in the case of Andi Mukta Sadguru Shree Muktajee Pandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. vs. V.R. Rudani and Ors., reported in (1989) 2 SCC 691 is quoted below:-
"15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. [ See The Evolving Indian Administrative Law by M.P. Jain (1983), p. 226] So are the service conditions of the academic staff.
When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right- duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
16. ...............
17. ..............
18. .............
19. .............
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any 26 other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
Paragraphs 31 and 32 of the decision of Zee Telefilms Ltd. and Ors. vs. Union of India (UOI) & Ors., reported in (2005) 4 SCC 649, have also answered the point as to maintainability of a writ petition against a private body exercising a public function. The relevant portion of the above decision is quoted below:-
"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.
32. . . . . .
33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non- governmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case (supra), hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable."
Applying the aforesaid principle the Hon'ble Supreme Court in Jenet Jeypaul (supra) observed as follows:-
"30. This we say for the reasons that firstly, Respondent 1 is engaged in imparting education in higher studies to students at large.27
Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to Respondent 1, which inter alia provides for effective discharge of the public function, namely, education for the benefit of the public. Fifthly, once Respondent 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
31. In the light of the foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the appellant's writ petition under Article 226 of the Constitution against Respondent 1 is maintainable."
In the decision of Marwari Balika Vidylaya (supra) the Hon'ble Apex Court once again reiterated that writ petitions were maintainable in case of termination of service of a teacher in a private unaided educational institution, and the relevant portion is quoted below:-
"15. Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab & Ors. (supra) in which this court has considered the issue at length and has thus observed:
"13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:(V.R. Rudani case, SCC PP.700-701, paras 20 & 22) "20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the 28 duty is imposed, if a positive obligation exists mandamus cannot be denied.
22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Commenting on the development of this law, Professor de Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.
The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant Mr. Parikh.
14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India. "(emphasis supplied) It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions."
The decision of Trigun Chand Thakur (supra), was rendered by the Hon'ble Apex Court under different sets of facts and circumstances. The Hon'ble Apex Court upheld the decision of a Division Bench of the Patna High Court holding that the managing committee of a private school was not 'state' within the meaning of Article 12 of the Constitution of India and hence a writ petition was not maintainable. The ratio of the decision of the Patna High Court in Chandra Nath Thakur and Others vs. Bihar 29 Sanskrit Shiksha Board and Others, reported in 1999 (1) PLJR 529 was accepted by the Hon'ble Apex Court, that is, a teacher of a privately managed school even though financially aided by the State Government or the Board could not maintain the writ petition against an order of termination from service passed by the managing committee. In the instance case, although, the petitioner may be guided by non-statutory service rules and his salary may be paid out of the fund of the said college generated from the fees paid by the students, yet, records reveal that the Department of Higher Education, Government of West, from its very inception had taken a lead role in the establishment/registration of the society and also in the composition and functioning of the Board of Management of the said society which ran the said college. The members of the society were nominated by the Government of West Bengal and the Board of Management of the society framed the rules and regulations governing the said college.
In the instant case, the pervasive control of the Department of Higher Education, Government of West Bengal, with regard to the formation of the society and its administration is obvious. The said college is run by the said society and the college has been described as a unit of the society which was an autonomous body of the Department of Higher Education, Government of West Bengal. In all official documents, the college has been described as a government aided college. Thus, the decision relied upon by Mr. Kar is not applicable.
The decision in Sushmita Basu and Others (supra) was rendered in the context of a private unaided educational institution which did not 30 receive any government aid apart from dearness allowance and the subject matter of challenge was refusal to implement the recommendation of the Third Pay Commission with retrospective effect from January 1, 1998, as was implemented by the Government for teachers in government sponsored institutions. The Hon'ble Apex Court declined to interfere on the ground that the records revealed that the teachers of the institution were enjoying other benefits which were not available to the teachers of government and government aided institutions and thus the Hon'ble Apex Court held that, in the absence of statutory provisions, a direction upon the private unaided schools to implement the Third Pay Commission retrospectively as done by the government institutions could not be issued as there was no public law element involved. The facts are distinguishable.
In Delhi Public School & Anr. (supra), the question of termination of services of teachers was involved. The Delhi Public School being a private school, the Apex Court held that a private school was not 'State' under Article 12 of the Constitution. The said college cannot be treated as a private college.
In Satimbla Sharma & Ors. (supra), the question involved was whether the right to equality enshrined in Articles 14 and 39 (d) was available to teachers of unaided private institutions who had demanded equal pay for equal work and parity in pay with the teachers in Government and Government aided schools. The Apex Court held that no relief could be granted to such teachers in the absence of statutory provisions, when the school in question was not receiving any grant in aid 31 from the Government and there was no provision in favour of the teachers enabling them to claim an equal pay.
Thus the decisions relied upon by Mr. Kar does not have any manner of application.
The Court now proceeds to deal with the question as to whether the disciplinary proceeding was vitiated on the ground of bias. Mr. Bhattacharya urged that the enquiry officer was a signatory to a letter of complaint dated June 10, 2011, made against the petitioner and others. That the enquiry officer belonged to a rival teachers association and he had also demanded termination of the petitioner's service before a high powered committee. That the petitioner had also raised the issue of bias before the enquiry officer by a letter dated May 14, 2012, but could not raise the dispute with the disciplinary authority as he was prevented from making any communication with the disciplinary authority. Mr. Bhattacharya further contended that the enquiry officer proceeded with a pre-determined mind, to hold the petitioner guilty of all the charges and did not even call upon the witnesses to prove the written testimony. None were not called upon to prove the documents relied upon by the college in the proceeding. The presenting officer was not called upon to present the case of the college. The depositions of witnesses namely, Srikanta Acharjee, Anirban Mukherjee and Hrishikesh Bhoumik were tutored and they were identical. That the findings of the enquiry officer against all the charges were similar and there were no discussions of the evidences and depositions in the report. That Dr. Tirtha Sankar Das being a management witness was also a party in the meeting of the governing 32 body which approved the decision of dismissal of the petitioner. That the entire disciplinary proceeding was initiated with a pre-determined mind to dismiss the petitioner from service.
Mr. Bhattacharya relied on the following judgments The Punjab University, Chandigarh vs. Vijay Singh Lamba & Ors., reported in (1976) 3 SCC 344, S. Parthasarathi vs. State of Andhra Pradesh, reported in (1974) 3 SCC 459, Ratan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School & Ors., reported in (1993) 4 SCC 10, Md. Yunus Khan vs. State of Uttar Pradesh & Ors., reported in (2010) 10 SCC 539, Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni & Ors., reported in (1983) 1 SCC 124, Sher Bahadur vs. Union of India & Ors., reported in (2002) 7 SCC 142, Roop Singh Negi vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570, Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors., reported in (1998) 8 SCC 1, Kunal Chatterjee vs. National Bank for Agriculture & Rural Development, reported in 2017 (5) CHN (CAL) 254 and Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 in support of his above submissions.
Mr. Kar submitted that the petitioner had committed serious offences of misconduct and was rightly proceeded against in a disciplinary proceeding. The misconduct of the petitioner caused disrepute to the college, harassment to the female students, encouraged indiscipline and caused discomfort to the teacher-in-charge as also other female teachers. That Sri. Pradeep Dey was not the first choice of the college to act as an 33 enquiry officer but, on refusal of some other person, he was appointed as such. That all documents relied upon by the college was served upon the petitioner. That opportunity was given to the petitioner to be represented through a lawyer but the petitioner did not participate in the proceeding and chose not to appear before the enquiry officer, although several opportunities had been given to him. That by not participating in the proceedings, the petitioner had waived his rights to challenge the disciplinary proceeding which was subsequently proceeded with ex-parte and the petitioner was found guilty on the basis of proper appreciation of the documents and written testimony of the witnesses. That the enquiry officer did not commit any procedural irregularity and had come to his own conclusions upon analysis of all the charges, based on the materials on record.
Mr. Kar urged that, this Court sitting in judicial review should only scrutinize whether the enquiry officer proceeded in accordance with law and whether the view taken by the enquiry officer was a possible view or not. According to Mr. Kar, the allegation of personal bias should have been raised in the first instance before the adjudicator. Moreover, Mr. Kar submitted that the proceedings and the minutes of the same as recorded would clearly show that the enquiry officer did not have any personal agenda against the petitioner. The records did not reveal that the enquiry officer had proceeded in an unfair and pre-determined manner. Mr. Kar submitted that the petitioner had failed to show that the enquiry officer had acted as a judge in his own cause and had failed to raise the point of bias at the initial stage of the proceeding.
34
Mr. Kar relied on the following judgments in Principal Secretary, Govt. of A.P. & Anr. vs. M. Adinarayana, reported in (2004) 12 SCC 579, Union of India & Anr. vs. S.S. Ahluwalia, reported in (2007) 7 SCC 257 and High Court of Judicature at Bombay though its Registrar vs. Shashikant S. Patil & Anr., reported in (2000) 1 SCC 416 in support of his above contentions.
Considered the submission. Admittedly, by a letter dated June 10, 2011, the enquiry officer along with other teachers had approached the Director of Technical Education, Government of West Bengal and the Chairman, RCCIIT, Kolkata, demanding immediate termination of the petitioner. It was further demanded that till a decision of termination of the petitioner and two others were taken by the said authority, the signatories to the said letter including the enquiry officer would abstain from their duties in the said college and continue to demonstrate before the office of the Director of Technical Education, West Bengal in his office premises at Bikash Bhavan. It appears that the enquiry officer was present during the meeting of the high powered committee constituted to look into the allegations against the petitioner and two others and he demanded that a strong action should be taken against the petitioner. The report of the high powered committee further revealed that the allegation against the petitioner was lacking in evidence. A disciplinary proceeding was thereafter initiated against the petitioner and the said Professor Pradeep Dey who had demanded termination of the petitioner and initiation of the disciplinary proceeding, with a threat that if the petitioner and the two other teachers were not terminated, he along with 35 the other signatories to the letter would abstain from their duties and continue an agitation in the office of the Director of Technical Education, Government of West Bengal and Chairman of the college in Bikash Bhavan, was appointed as the enquiry officer. By a letter dated May 14, 2012, the petitioner raised an objection about the enquiry officer being biased. It appears from the letter that the petitioner alleged that the enquiry officer refused to accept a letter sent by the petitioner through a messenger. The petitioner also alleged that the security guard of the college did not allow the petitioner to enter the college. The petitioner in categorical terms had stated that the enquiry officer had allowed the presenting officer to misbehave with the petitioner and the enquiry officer was acting in collusion with the presenting officer, and not independently. The petitioner in unequivocal terms alleged, that the enquiry was a mere formality and a travesty of justice and that the enquiry officer had already made up his mind with regard to the guilt of the petitioner. The petitioner therefore refused to participate in the proceedings and the enquiry officer proceeded ex-parte. It appears from the minutes of the proceeding held on April 26, 2012, that the presenting officer was directed by the enquiry officer to place depositions of the witnesses on behalf of the college in writing and May 11, 2012 was fixed for cross-examination of the witnesses. It also appears that none of the documents were proved by any witness. The allegation of harassment by a female student was accepted by the enquiry officer without calling the said female student as a witness and only on the basis of the letter written by the father of the said student. The father was not called upon to prove the contents of the 36 letter. It also appears from the record that the presenting officer was not asked to place the case on behalf of the said college before the enquiry officer.
In the decision of S. Partha Sarathi (supra) it has been held that the cumulative effect of the circumstances should be sufficient to create a suspicion in the mind of a reasonable man that there was a real likelihood of bias or a substantial possibility of bias. The test of likelihood of bias which had been applied in a number of cases was based on a reasonable apprehension by a reasonable man, cognizant of the facts. In several decisions, the Courts have repeatedly held that real likelihood of bias was the proper test and that real likelihood of bias should appear not only from materials produced by the party complaining, but from such further facts that could be readily ascertained and easily verified in the course of the enquiry.
In my opinion, whether a right minded person would think that there was a real likelihood of bias on the part of the enquiry officer in this case should be the test in the given facts and circumstances. The Court must look at the impression which other people might have under the circumstances, based on the uncontroverted facts of this case. It is admitted that Professor Pradeep Dey along with some members of the association had demanded termination of the petitioner and two others. The said Professor Pradeep Dey belonged to a rival group. He had also threatened to abstain from work and continue an agitation in front of the office of the Director Technical Education, Government of West Bengal situated at Bikash Bhavan, if steps were not taken to terminate the 37 petitioner. The strong language in which such letter was written by Professor Pradeep Dey and others, to the Chairman of the Governing Body leaves no room for doubt that a reasonable man would carry an impression that Professor Pradeep Dey, who was clearly a rival of the petitioner might not conduct the enquiry in an unbiased and fair manner.
In the decision of Ratanlal Sharma (supra), the cardinal principles of natural justice, that is, no man shall be a judge in his own cause was once again explained. It was held that if the circumstances showed that there was a pre-disposition to decide for or against one party without proper regard to the true merits of the dispute, the same would constitute bias. For appreciating a case of personal bias or bias with regard to the subject matter, the test was whether there was a real likelihood of bias, even though such bias had not in fact taken place. It means that at least there must have been a substantial possibility of bias and the Court must judge the matter as a reasonable man would have judged the same in the conduct of his own business. It has been further held that even if the plea of bias was not raised before the subordinate tribunals or before the quasi-judicial bodies but, before the High Court in a writ proceeding for the first time and the plea went to the root of the question, being based on admitted uncontroverted facts, it was only desirable that a litigant should not be shunned from raising such a plea at the stage before the High Court. In the instant case, no factual investigation is required to be made by this court as the records reveal that the allegation of likelihood of bias, was correct and not unfounded. The court does not need to delve into the question whether actual bias existed but it is sufficient to hold that there 38 was a real likelihood of bias on the part of the enquiry officer. Moreover, the petitioner by a letter dated May 14, 2012 had raised the allegation of bias in detail before the enquiry officer.
In the decision of Md. Yunus Khan (supra), it has been categorically held that anyone who had a personal interest in an enquiry/disciplinary proceeding must keep himself away from such disciplinary proceeding. It was also held that in such cases, where a person having a personal stake in an enquiry was involved in the enquiry proceeding, the entire proceeding was rendered illegal and such illegality could not be cured even if grave acts of misconduct had been committed by the delinquent employee. The records in this case clearly reveal that Professor Pradeep Dey had a personal interest in the disciplinary proceeding and as such he should have stayed away from the proceedings. His involvement in the proceedings and his participation in the same as an enquiry officer/adjudicator has rendered the entire proceeding as bad in law, as the same was held in utter disregard to the principles of natural justice. The personal interest of Professor Pradeep Dey disqualifies him to act as an enquiry officer in this proceeding. The enquiry report, and the order of dismissal dated November 22, 2012, are quashed and set aside.
The respondent college is at liberty to proceed afresh from the stage of appointment of an enquiry officer which should be concluded within six (6) months from date. Such officer should be an independent person and not connected with the affairs of the college. Needless to mention that the petitioner will be treated to remain under suspension on and from the date of his dismissal, that is, dated November 22, 2012. He 39 will continue to get subsistence allowance as per the rules, month by month, every month. The arrears of subsistence allowance on and from the date of dismissal will be paid in four (4) equal monthly instalments. Fraction if any, will be added to the last instalment. The first of such instalment shall be payable on and from December, 2019.
As the enquiry report and the order of dismissal are set aside on the ground of non-observance of the principles of natural justice, the other contentions of the petitioner with regard to procedural irregularity, defects in the enquiry report and illegality in the order of dismissal need not be gone into. I hold that in this case there is sufficient scope for interference and also justification in setting aside the enquiry report and order of dismissal on the ground of bias alone and the decisions cited by Mr. Kar with regard to the scope of judicial review are not relevant at this stage.
The writ petition is disposed of. The connected application being CAN 3217 of 2019 does not have any connection to this proceeding and is accordingly dismissed. The reliefs prayed for therein should be prayed for in a separate proceeding.
There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)