Punjab-Haryana High Court
Varinder Kumar vs State Of Punjaband Ors on 12 March, 2015
Author: Deepak Sibal
Bench: Deepak Sibal
C. W. P. No. 21042 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No. 206
Case No. : C. W. P. No. 21042 of 2011
Pronounced On : 17.03.2015
Varinder Kumar .... Petitioner
Vs.
State of Punjab and others .... Respondents
CORAM : HON'BLE MR. JUSTICE DEEPAK SIBAL.
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To be referred to Reporters or not ?
Whether the judgment should be reported in the digest ?
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Present : Mr. G. S. Bhatia, Advocate
for the petitioner.
Mr. Sushant Maini, DAG, Punjab.
Mr. Sudhir Pruthi, Advocate
for respondents no. 2 and 3.
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DEEPAK SIBAL, J. :
Through the present writ petition, the petitioner seeks quashing of the order terminating his services, the order passed by the Appellate Authority rejecting his appeal against the termination order and the order rejecting his Review Petition filed by him seeking review of the order MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 2 passed by the Appellate Authority. The petitioner has further prayed for the issuance of a writ in the nature of mandamus directing the respondents to reinstate him with all consequential benefits.
Though the writ petition had been filed with regard to the above prayers, today Mr. G. S. Bhatia, learned counsel appearing on behalf of the petitioner, at this stage, restricts his challenge to the order passed by the Appellate Authority, rejecting the appeal of the petitioner (Annexure P-
20) and submits that the same was liable to be set aside as the same was tainted with bias. It was submitted that the punishment order was passed by the Managing Director, Ashok Kumar Goel, who was also one of the three Members of the Appellate Authority, which dismissed the appeal filed by the petitioner. Learned counsel for the petitioner further argued that the order dated 11.04.2008 (Annexure P-22) dismissing the Review Petition filed by the petitioner seeking review of the appellate order was considered and decided by only one of the Members of the Appellate Authority which comprised of five Members, and therefore, was unsustainable.
Learned counsel appearing on behalf of respondents, though admits that Ashok Kumar Goel, who had passed the punishment order in the case of the petitioner, was in fact one of the three Members, who decided the petitioner's appeal, but while defending the order, states that since the decision of the Appellate Authority was against the petitioner by majority, the issue of bias raised by the petitioner needs to be rejected. Learned MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 3 counsel for the respondents further submitted that the Review Petition had been rejected on 11.04.2008 and that the present petition had been filed in November 2011. It was thus submitted that the present petition was required to be rejected only on the ground of delay.
I have heard learned counsel for the parties and with their able assistance, have also gone through the record of the case.
Once it is not disputed that Shri Ashok Kumar Goel was the punishing Authority of the petitioner and was one of the three Members of the Appellate Authority, which rejected the appeal of the petitioner, I unhesitantly hold that the order rejecting the appeal of the petitioner is liable to bet set aside on the ground of taint of bias. The person, who had passed the punishment order, while considering the appeal, would certainly not want his order to be upset and for that, not only would he stand by and defend his own order, but would also persuade other Members to do the same. As per the settled law, a person cannot be a judge in his own cause. The above facts present a glaring example, where a person has, in fact, been a judge in his own cause. My view is supported by a judgment of this Court passed in C. W. P. No. 11969 of 2007 - Shri Ghansham Dass Taneja vs. Kurukshetra University, Kurukshetra and others, wherein it has been held as under :-
"One of the ground urged in the petition is that the Vice Chancellor in MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 4 his capacity as a disciplinary authority dismissed the petitioner and the Vice Chancellor was also part of the Executive Council when the appeal of the petitioner was considered by the Executive Council of the university. This fact is neither disputed rather it is admitted that the Vice Chancellor was part of the Executive Council, who considered the appeal of the petitioner.
It is settled principle of law that no one can be Judge of his own cause. In a case reported as AIR 1970 SC 150, titled as A.K. Kraipak and others Vs. Union of India and others, the Hon'ble Supreme Court has observed as under:-
"15. It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most MONIKA
-appropriate person to be in the 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 5 selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 6 in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person.
Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased."
It is true that the Executive Council is a statutory body and Vice Chancellor ex-officio is head of this body. He is supposed to chair all the meetings of the Executive Council, however, one thing cannot be lost sight of that the Executive Council performs dual functions. (1) As an Appellate Authority against the decisions of the Vice Chancellor. (2) As a decision making authority in MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 7 respect to other affairs of the university. (3) Where the Executive Council acts as an Appellate Authority in respect to the decisions of the Vice Chancellor, it does not sound prudent and may be against the propriety and in contravention of the principles of natural justice that the Vice Chancellor sits as a part of the Appellate Authority while his own decisions are under consideration and scrutiny. The probability to which human beings are naturally prone to in such cases cannot be eliminated. There is a likelihood of bias in decision making of the Appellate Authority. It is not possible to actually impute motive and to say with certainty that the Vice Chancellor and the members of the Executive Council would take decision with any bias but even a remote possibility of such happening has to be eliminated. This is the cardinal principle of natural justice.
It may be pertinent to note that MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 8 the bias has various aspects. There can be personal bias with a person, bias in the subject matter means a person may be interested in the issue before him and official bias. Where the person may not have any personal interest in the issue or has no concern with the person against whom the decision is to be taken but there is a probability of an official bias. A person sitting in appeal over his own decision may not like his decision to be over set.
The Vice Chancellor as disciplinary/punishing authority could not have been part of the appellate body notwithstanding the fact that he heads the Executive Council of the university. As a matter of fact the Vice Chancellor should have recused himself from the appellate body when the case of the petitioner was considered."
From the above, it is clear that dismissal of the appeal filed by the petitioner was tainted with the vice of bias. MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 9
Now, the objection raised by the respondents for dismissal of the writ petition on the ground of delay needs to be dealt with. It is true that the Review Petition filed by the petitioner was rejected vide order dated 11.04.2008 and that the present petition has been filed only in November 2011, but the record reveals that after the dismissal of the same, the petitioner had filed a Memorial to the Governor of the State of Punjab. This Memorial had been filed by the petitioner on 21.08.2009. On such Memorial, notices had been issued to the respondents, who did not respond to the same for a pretty long time and only on 30.01.2011, did they file a response to the Memorial filed by the petitioner, wherein it was submitted by the respondents that the Memorial filed by the petitioner would not lie to the Governor, on the ground that the petitioner was not an employee of the State Government.
On a query being posed to the counsel for the petitioner, so as to why the petitioner had moved the Governor, the response was that the same was a result of bona fide action on the part of the petitioner and had been done as per legal advice. The petitioner was advised that under Regulation 21 of the Punjab State Warehousing Corporation Staff (Conditions of Service) Group "C" and Group "D" Service Regulations, 2002 (hereinafter referred to as - the Regulations), in the matter of discipline, punishment and appeals, an employee of the respondent- Corporation would be governed by the provisions of Punjab Civil Services MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 10 (Punishment and Appeal) Rules, 1970, as amended from time to time, as applicable to the employees of the State Government. Regulation 21 is reproduced below for ready reference :-
"21. Discipline, penalties and appeals -
(i) In the matter of discipline, punishment and appeals, a member of the Service shall be governed by the provisions of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 as amended from time to time as applicable to the employees of the State Government.
(ii) The authority empowered to impose penalties specified in rule 5 of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 and the appellate authority thereunder in respect of the members of the Service shall be such as MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 11 specified in Appendix `C'."
It was submitted that in view of the above quoted Regulation, the petitioner, under a bona fide belief and under legal advice, assuming himself to be governed by the Punjab Civil Services (Punishment and Appeal) Rules, 1970, as applicable to the employees of the State Government, had filed a Memorial before the Governor of the State. The Memorial had been kept pending before the Governor for above two years and this delay could be attributable only to the respondent Corporation as in spite of notices issued on the Memorial filed by the petitioner, they did not respond in time.
In view of the above explanation, I find that the petitioner had filed a Memorial to the Governor of the State under a bona fide belief that all Rules, as applicable to the employees of the State Government, would also apply to him. Even otherwise, the petitioner had not slept over his rights and had been constantly pursuing the same. Further, the delay, if any, in the case in hand, prejudices none. It is the settled law that denying relief to a person, who approaches the Court after inordinate and unexplained delay is a rule of self-imposed limitation innovated by the Courts and the reasons why this is done, is not to entertain claims of litigants who have slept over their rights and further not to unsettle the settled things or to prejudice rights, which may have accumulated in favour of others on account of such delay, but this rule of self-imposed limitation cannot be MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 12 applied as a straight jacket formula for declining relief, especially when the above principles are applied to the facts of the case in hand. According to me, the present petition cannot be thrown out on the ground of delay and laches as I find that the petitioner never slept over his rights, as he was, for bona fide reasons, pursuing a remedy, which he ought not to have. Further, on account of the delay, if any, on the part of the petitioner, no rights have accrued in favour of any third party. This view taken by me finds support from a Division Bench judgment of this Court in the case of Rattan Singh vs. The State of Haryana reported as 1995 (1) SLR 401. The relevant portion of this judgment is being reproduced hereunder for ready reference :-
"7. Delay and laches are twin grounds evolved by Courts for denying relief to a person who approaches it after a lapse of considerable time for issue of a writ under Article 226 of the Constitution of India. The rule that the Court will not give relief to a person who has filed a petition after a lapse of long time is a rule evolved by the Courts. It is not a legislative instrument like the Limitation Act which prevents the Courts from granting relief in a. given case. MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 13 Rather, it is a rule of self-imposed limitation innovated by the Courts for not issuing orders which would unsettle the settled things or where a third party would be adversely affected due to the issue of writ after a long delay. This rule which forms part of the Judge-made law cannot, however, be applied to each and every case for non-suiting a petitioner irrespective of the nature of claim and the circumstances which have contributed to the delay in filing of the petition. What we wish to emphasize is that no strait-jacket formula or wooden rule can be applied for declining or not declining the relief to a petitioner, who has approached the High Court for appropriate relief under Article 226 of the Constitution of India. In each and every case the Court shall have to scrutinise the relevant facts for determining as to whether it will be appropriate to exercise jurisdiction in favour of a person MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 14 who has approached it after a long lapse of time. In a given case Court may decline relief to a person only on the ground that he has approached it after a passage of few months counted from the date of accrual of cause of action. In another case it may give relief to a person who has filed a petition even after lapse of many years. Primary consideration, which must weigh in the mind of the Court while adjudicating upon an objection of delay or laches, is as to whether the petitioner has been grossly negligent in pursuing his remedy and whether the delay has resulted in a situation where rights of others have been settled and it would I be inequitable to unsettle those rights."
It is further settled law that time spent by a litigant wrongly pursuing a remedy, though under a bona fide belief, is not to be held against him. In this regard I may usefully refer to following observations by the Apex Court in the case of Deputy Collector, Northern Sub-Division, Panaji vs. Comunidade of Bambolim reported as 1996 AIR (SC) MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 15 148 :-
"The crucial question is whether the appeal was presented bona fide within limitation. It is true that if the appeal is filed under "Recurso de Apelacao" it is well within time. If appeal is entertained under s.96 of CPC read with s.54 of the Act, it is beyond limitation. The question is whether the appellant was pursuing the remedy bona fide. It is contended for the respondent that there are no bona fides on the part of the State and, therefore, s.14 of the Limitation Act cannot be applied to the facts in this appeal. We are unable to agree with the counsel. The State is acting through its authorised representative and the counsel was in two minds, as to whether the appeal should be pursued under the Portuguese Code or under C.P.C. Since C.P.C. stood extended to G.D.D. on September 15, 1966 by which date there was a decree passed by the Reference Court, MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 16 obviously the proceedings should be pursued under C.P.C. as per s.53 of the Act.
Therefore, the counsel was pursuing the remedy wrongly under the Portuguese Code.
In consequence, the appeal came to be filed beyond limitation. Accordingly, there are bona fides in pursuing the remedy. The State was represented by the counsel and the counsel was in two minds as to whether the appeal should be pursued under the Portuguese Code or under the Code of Civil procedure, There is a bona fide mistake on the part of the counsel in pursuing the remedy. Since the State acts through the counsel for the State and he is entitled to represent the State in all the proceedings initiated in the Court, there was no need to file Vakalatnama but memo of appearance would be sufficient. Accordingly the order of the Judicial Commissioner is set aside."
So far as the Review Petition filed by the petitioner seeking review of the order passed by the Appellate Authority is concerned, I find MONIKA 2015.03.18 16:24 I attest to the accuracy and authenticity of this document C. W. P. No. 21042 of 2011 17 that the same has been decided by only one Member of the Appellate Authority, whereas the original decision was taken by three Members and the total number of persons, of which the Appellate Authority comprises of, is five. It would have been appropriate if the Review Petition would have been considered and decided by the same Members, who had decided the main appeal.
In view of the above, the present writ petition is partly allowed. The order dated 06.06.2007 (Annexure P-20), passed by the Appellate Authority, is quashed. As the main order passed by the Appellate Authority is being quashed, as a consequence as also in view of the observations made above, order dated 11.04.2008 (Annexure P-22), deciding the Review Petition filed by the petitioner, is also quashed. The matter is remitted back to the Appellate Authority to re-consider the appeal filed by the petitioner on merits.
It is made clear that the Appellate Authority would not contain the punishing Authority of the petitioner as and when the appeal of the petitioner is taken up for consideration. It is further directed that the petitioner shall be granted personal hearing by the Appellate Authority before passing the final order.
( DEEPAK SIBAL ) JUDGE Pronounced On : 17.03.2015 MONIKA monika 2015.03.18 16:24 I attest to the accuracy and authenticity of this document