TMI Blog1995 (11) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... Enquiry Officer conducted enquiry and now the show-cause notice dated 7-8-1995 was issued proposing to dismiss the petitioner from service. At this juncture the petitioner approached this court for necessary to relief. 4. The petitioner also submits that subsequent to the issuance of the charge sheet, he was issued with a notice on 14-6-1995 alleging that the daughter of the petitioner crossed the colony fencing; that it is trespass and that the petitioner should vacate the quarters. The supply of power and water was also disconnected to the quarter. Thus he says that he is being victimised and subjected to unfair labour practice by the management. 5. The Petitioner submits that the entire proceedings are illegal and vitiated by bias. The 1st Respondent himself is the person aggrieved and he framed charge-sheet, appointed Enquiry Officer and issued the present show-causenotice. Therefore, all his actions are in gross violation of principles of natural justice that no man shall be a judge in his own case (Nemo Judex in Causa sua). 6. This court while admitting the Writ Petition granted interim stay on 21-8-1995. 7. Counter affidavit filed on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry Officer - Dy. Manager (Security) and the said officer is much below the rank of the General Manager. Again after enquiry the 1st respondent issued the proposed show cause notice. 10. The learned counsel for the petitioner Sri V. Shnivas submits that the entire proceedings are wholly incompetent and suffer from inherent bias. The 1st respondent cannot act as complainant and judge in his own case. 11. The following issues arise for consideration: 1) Whether the charge-sheet issued by the General Manager and consequential enquiry proceedings including show-cause notice of dismissal are hit by principles of natural justice? 2) Whether the action of the General Manager (1st respondent) is vitiated by personal bias? 3) Whether the writ petition is maintainable against the show-cause notice? 12. I shall deal issues (1) and (2) jointly as they are interwoven and inter-linked. 13. The expression natural justice has over the years meant many things to many writers, lawyers and system of law. Philosphers have used the words as an approximate synonym for divine law or for systems of principles of law allegedly arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in theory even the power of legislature could not alter them. Chief Justice Coke in Dr. Bonham's case (8 Co. Rep. 113b at 118a extracted from Wade's Administrative Law) said that Court could declare an Act of Parliament void if it made a man Judge in his own case, or other wise against common right and reason . 16. Natural Justice is summed up as fair play in action. The principle was applied with great restraint till 1963 until land-mark Judgment was rendered by House of Lords in Ridge v. Baldwin (1) (1964) AC 40. The House Lords made it clear that duty to act judicially arose directly from the power of an agency to determine questions affecting the rights. 17. The two basic principles of natural justice are: 1) NEMO JUDEX IN CAUSA SUA (No one should be made a Judge in his own case or rule against bias) 2) AUDI ALTERAM PARTEM (Hear the other party, or the rule of Fair Hearing or the Rule no one should be condemned unheard) 18. In the instant case we are concerned with the first principle. Prof. Wade elucidated the principle as follows: Nemo Judex in Re Sua - a Judge is disqualified for determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which took place between the motor cycle driven by M and a motor cycle and side car driven by W.W alleged that he and his wife suffered injuries due to negligence of M. The Police also took out summons against M for dangerous driving of motor cycle. After the hearing of the case, the Justices retired to consider their decision and along with them the deputy clerk also retired with a view to assist them, should they desire to be advised on any point of law. The Justices did not consult him. They convicted M, the applicant, and imposed a fine of 10 and costs. It was then brought to the notice of the Justices that the deputy clerk was a brother of solicitor of W. The question before the court was, whether the judgment was invalidated on account of bias. Lord Hewart C.J, with whom other Law Lords concurred, held that decision was invalidated due to bias. 24. In Franklin v. Minister of Town Planning (4) (1947) 2 All ER 289 under the New Towns Act, 1946 the Minister of Town and Country Planning as required to consider objection to a proposed order under the Act. Prior to the passing of the Act in a speech he had stated that the bill would become law and a particular site wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were such as to give reasonable impression that he was biased even though there was no actual bias on his part; the determination of fair rent by the Committee was quashed and the matter was remitted to another Assessment Committee. 27. Rex v. Hendon R.D.C (7) 1933 2 KB 696 is a case where the rule against the bias was applied to a Rural District Council when it passed order affecting civil rights of the parties. There it was laid down that where one of the councillors voting in favour of the resolution to grant permission to develop, had such an interest in the matter as to disqualify him from taking part or voting, on account of bias, an order nisi for a writ of certiorari to quash to the decision of the counsil could be issued. Lord Hewart C.J applied the principles of bias to a decision of Hendon Rural District Council which affected the rights of subjects. In the concurring Judgment, Avory, J., observed that the jurisdiction of the Court ought to be exercised widely when dealing with matters which are not perhaps strictly judicial but in which the rights and obligations of persons may be affected. Though the question in that case was whether the decision of the counci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould apply. 31. It is pertinent to note here the modern equivalent of the principles of natural justice epitomised by Lord Denning in B. Surinder Singh Kanda v. Government of the Federation of Malaya (10) 1962 Appeal Cases 322. The learned Law Lord observed thus: The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twinpillers supporting it. The Romans put them in the two maxims: Nemo Judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness 32. The maxim that a person cannot be made a Judge in his own case is applied not only to avoid the possibility of a partial decisions, but also to ensure public confidence in the impartiality of the administrative adjudication process because it is not only No man be judge in his own case but also justice should not only be done but should manifestly and undoubtedly be seen to be done . It has been held by the Supreme Court in Ranjit Thakur v. Union of India (11) (1987) 4 SCC 611 a decision rendered with bias is a nullity and the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing such prejudice, it is not open for the Principal to allege bias. Aggrieved by the said order, the Petitioner carried the matter to the Supreme Court. The Supreme Court allowed the appeal confirming the order of the learned single Judge. While dealing with the case of waiver, the Supreme Court observed Generally a point not raised before the tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceedings, more so when the interference in the writ jurisdiction which is equitable and discretionary is not a must when the plea sought to be raised for the first time in writ proceedings requires investigation of facts. But, if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi-judicial bodies, is raised before the High Court in the writ proceedings for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea, but in the anxiety to do justice which is the paramount consideration of the court, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to judicial as well as domestic proceedings. The principles of natural justice as applicable to domestic proceedings have been held to include with them the right to the employee to have a fair trial . 37. With regard to waiver plea, the learned Judge held that though the plea of bias could be waived, there must be evidence that there was such a waiver by conscious understanding of the situation and particularly awareness that the employee was entitled to raise the objection vide R.V Essex Justices ex. B.P Perkins (16) C.K.B 475 (Quoted in Wade Administration Law, 5th Edition, page 430). In view of this pronouncement it has to be held that the plea of waiver contended by the learned counsel for the Respondents cannot be accepted. 38. Even applying this principle, the 1st respondent being person aggrieved, cannot be said that he does not have any interest in the subject matter. Therefore, basing on the judgment of the Supreme Court and also the English Courts, it has to be safely concluded that the proceedings suffer from any amount of bias. 39. It is also urged by the learned counsel for the petitioner that the enquiry officer was much junior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioner relies on Union of India v. Brij Fertilisers Pvt. Ltd. (18) (1993) 3 SCC 564, wherein the Supreme Court held that normally at the stage of show cause notice it would not be desirable to entertain Writ Petitions. But, however it observed that it would be failing to exercise the jurisdiction, if the court does not discharge its Constitutional obligations. Admittedly, in the instant case, disciplinary action is being sought to be proceed with a biased atmosphere and as held by the number of courts and also held by the decision of the Apex Court. The bias which is intrinsically inherent in the proceedings vitiate entire proceedings. Under such a situation, the result in the proceedings would be nothing but empty formality. Therefore, allowing proceedings further would only add to the prolonged humiliation and harassment to the employee. Further the very competency and jurisdiction of the 1st Respondent is under severe attack on the question of personal bias. Under these circumstances, I am of the view that the Writ Petition is maintainable and accordingly I reject the contention of the Management. 42. The malady of bias is expanding its horizons in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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