Abid Akhtar vs Jamia Millia Islamia & Ors.
2013 Latest Caselaw 5124 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6347/1999
%                                                    8th November, 2013

ABID AKHTAR                                                ......Petitioner
                          Through:       Mr. Pradeep Gupta and Mr. Vishal
                                         Gupta, Advocates.


                          VERSUS

JAMIA MILLIA ISLAMIA & ORS.                   ...... Respondents

Through: Mr. Rohit Gandhi, Ms. Jaya Goyal and Ms. Manpreet Kaur, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner impugns the order dated

5.10.1999 whereby the petitioner has been imposed a major penalty of

compulsory retirement.

2. In this case I may note that petitioner did not appear in the

proceedings before the enquiry officer. Several adjournments were granted

and several notices were issued to the petitioner but to no avail. Even after

petitioner stopped appearing, proceedings sheet as also the evidence

recorded was sent to him. Even the summary of arguments on behalf of the

Presenting Officer of the department was sent to the petitioner. Petitioner

did not lead his evidence and did not stand in the witness box for being

cross-examined in support of his defence. A detailed report dated 13.7.1999

has been given by the enquiry officer running into 33 pages holding the

petitioner guilty of charges.

3. Even in a case where both the parties lead evidence, the scope

of interference in a petition under Article 226 of the Constitution of India is

limited and this Court only interferes if there is perversity in the findings and

conclusions of the departmental authorities or violations of principles of

natural justice or violation of the rules/law of the organization. In a case

where a person does not appear in the departmental proceedings and leads

no evidence, the scope of the Court to examine the challenge will be further

restricted and there cannot be challenge on merits to the report of the enquiry

officer because that challenge on merits has to be by means of participation

in the enquiry proceedings and which opportunity petitioner in spite of

notice did not utilize. At this stage, let me reproduce the relevant portion of

the enquiry officer‟s report showing contumacious attitude of the petitioner

in not appearing in the departmental proceedings. The relevant portion of

the enquiry officer‟s report reads as under:-

"Preliminary Hearing:

Notices were served on the charged officer to appear in the Ordinance Room of the Administrative Block of the university on April 28,1999 but he applied for leave for 28th & 29th April, 1999 and the proceeding were adjourned for preliminary hearing on May 7, 1999. The charged officer did not accept the notice for the said date and the hearing was again adjourned for May 19,1000, on that date also the charged officer did not appear and the hearing was adjourned to May 26, 1999. On that date the charged officer has moved an application that he may be allowed to defend himself through a Lawyer, but his request was not accepted and a detail order was passed in the proceedings of the date (Folder-V) quoting the law of the Hon‟ble Supreme Court of State of Rajasthan V/s S.K.Dutt 1993(II) S.L.R. Page no. 281 holding that the Presenting officer is not a Lawyer nor associated with the legal work of the university and the charges against him are not of such a nature as to require the engagement of a lawyer. The charged officer was again given time to file any supplementary statement and to nominate a Defence Assistance from amongst the university staff and proceedings were adjourned without transacting any business for 9.6.1999. Again on 9.6.1999 the charged officer requested the same demand which was already rejected on 26.5.1999 and there he was again communicated the adjournment of hearing for 11.6.1999 and to nominate his Defence Assistant or to prepare to cross examine the witness. Again on 11.6.99 the charge officer absented himself and the statement of witnesses-Shri Noor Mohd., Director, Physical Education (AW-1), prof.Z.M.Khan, D.S.W.(AW-2), Shri Mohd. Marghoob Ahmed Siddiqui, Clerk-Typist in the Department of Games & Sports, J.M.I.(AW-3) and Shri Mumtaz Ahmed AW-4, Peion of the same department were recorded. Copies of the statement were sent to the charged officer reserving his right to cross examine them on the next date. The proceedings were adjourned to 22.6.1999. On that date of statement of Shri Nihaluddin Siddiqui, Asstt. Registrar (E) (AW-5) and Shri R.C.Nangia, Earlier Enquiry Officer (AW-

6) were recorded. The proceeding were again adjourned to July

1, 1999 and the copies of the statement were sent to the charged officer giving a liberty to appear and cross examine the witnesses examined on 11.6.99 and 22.6.99 and further to give the defence arguments, list of defence witnesses he wants to examine. The presenting officer was also advised to give the summary of arguments on the articles of charges and evidences sustaining the charges and a copy of the same be sent to the charged officer much before the dated i.e. 1.7.1999. The presenting officer has sent a summary of arguments on 26.6.1999. The correspondence with the charged officer and other relevant papers are in (Folder no.7). During the preliminary hearing the charged officer did not add anything further to the defence statement already given to the Registrar on 8.3.99. he had certain allegations against of Registrar and the witnesses Shri Noor Mohd. and Shri Mohd. Marghoob Ahmed Siddiqui, but he did not substantiate the allegations as he absented himself from the proceedings." (underlining added)

4. The enquiry officer has found both the articles of charges

against the petitioner. First charge was of wrongly marking attendance on

26.11.1998 and 27.11.1998 although the petitioner was on leave on that

dates. The second charge proved against the petitioner is that he failed in

spite of written instructions to accompany the University athletics team to

Triuneveli which was scheduled to leave on 25.12.1998. I may also note

that against the petitioner earlier there were departmental proceedings

because of charges of indiscipline and misconduct and which resulted in the

order of the disciplinary authority upholding his period of suspension and

warning the petitioner to be careful by observing the „Code of Conduct‟

while dealing with the superiors, employees, colleagues etc etc and that the

petitioner‟s conduct was to be under close scrutiny. This order is dated

12.11.1996. The impugned departmental proceedings are thus the second

proceedings against the petitioner.

5. Before me on behalf of the petitioner three grounds have been

urged to challenge the impugned order dated 5.10.1999:-

(i) Respondent no.4/Sh. Z.M.Khan was a member of the disciplinary

committee being the Executive Council and since he gave evidence in the

enquiry proceedings, the same has resulted in the respondent no.4 being a

judge in his own cause, and therefore, proceedings are violative of the

principles of natural justice.

(ii) The impugned order is a non-speaking order and therefore, liable to be

set aside on this ground itself.

(iii) Petitioner was wrongly not allowed to be represented by a lawyer

although the Presenting Officer had a diploma in Labour Laws and

therefore, was equivalent to a lawyer.

6. So far as the first argument raised on behalf of the petitioner is

concerned, it could not be disputed that as per the statutory provisions by

which the respondent no.1-University is bound, respondent no. 4 as Dean of

students welfare was statutorily to be a member of the Executive Council as

per Clause 13 of the Statute of the University framed under the Jamia Millia

Islamia Act, 1988. Accordingly, the respondent no.1-University in its

counter-affidavit has pleaded the doctrine of necessity and consequently that

there is no violation of principles of natural justice.

7. No doubt, no one can be a judge in his own cause, however, the

Supreme Court has now held in many cases that in case there are statutory

provisions mandating a person to be on a particular body then merely

because that person is on that particular body will not be held to be violative

of the principles of natural justice. The Supreme Court has held that the

principle of person being a judge in his own cause is excluded by the

doctrine of necessity. The Constitution Bench judgment of Supreme Court

in this regard is the judgment in the case of Union of India & Anr. Vs.

Tulsiram Patel & Ors. (1985) 3 SCC 398. Para 101 of this judgment reads

as under:-

"101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra and Co. and Anr. v. State of Orissa and Anr. [1985]1SCR322 : 334-5. So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an

opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case at page 681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiorari so can a provision of the Constitution, for a Constitutional provision has a far greater and all-pervading sanctity than a statutory provision. In the present case, Clause (2) of Article 311 is expressly excluded by the opening words of the second proviso and particularly its keywords "this clause shall not apply". As pointed out above, Clause (2) of Article 311 embodies in express words the audi alteram partem rule. This principle of natural justice having been expressly excluded by a Constitutional provision, namely, the second proviso to Clause (2) of Article 311, there is no scope for reintroducing it by a side- door to provide once again the same inquiry which the Constitutional provison has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and Clause (2) of Article 311 excluded, Article 14 will step in to take the place of Clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution makers who inserted it In Article 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply".

8. The Supreme Court has reiterated this principle of exclusion of

applying the principles of natural justice and the same being violated on

account of a person being a judge in his own cause, in the subsequent

Constitution Bench judgment being Charan Lal Sahu Vs. Union of India

(1990) 1 SCC 613. This very principle of exclusion of the principle of

natural justice by the doctrine of necessity has been reiterated in a recent

Division Bench judgment of the Supreme Court in the case of State of U.P

Vs. Sheo Shankar Lal Srivastava & Ors. (2006) 3 SCC 276 by observing as

under:-

"13. It is true that the principle of natural justice is based on two pillars : (i) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause.

14. It is, however, well known that the principles of natural justice can be excluded by a statute. They can also be waived.

15. In a case where doctrine of necessity is applicable compliance with the principles of natural justice would be excluded."

9. In view of the fact that the doctrine of necessity is squarely

applicable in this case, the argument urged on behalf of the petitioner is

rejected that the departmental proceedings are hit by the violation of the

principles of natural justice by respondent no.4 being a judge in his own

cause.

At this stage I may also mention that counsel for the petitioner

did want to argue on the ground of certain 'de facto doctrine' by referring to

the fact that quorum can be completed even without the respondent no.4 of

the Executive Council, however, when asked to point out the judgment of a

de facto doctrine excluding the doctrine of necessity which has been so held

by the Supreme Court, counsel for the petitioner could not refer to any such

judgment, much less of the Supreme Court.

10. The second contention urged on behalf of the petitioner is that

the impugned order is a non-speaking order and therefore bound to be set

aside on this ground. Even this argument is misconceived because once

there is a detailed report of an enquiry officer, it is not necessary that the

disciplinary authority should pass a speaking order. This is more so in a

case like the present where the petitioner has not appeared in the enquiry

proceedings and evidence has been led only on behalf of the respondent

no.1-university. Principles of natural justice are not inflexible hide-bound

rules and it cannot be said that the impugned order has to be set aside on the

ground of it being non-speaking order inasmuch as the enquiry officer‟s

report is a speaking report giving all the reasons for findings of guilt against

the petitioner. This detailed inquiry report has been upheld by the

disciplinary authority. Again when the counsel for the petitioner was asked

to point out any judgment as to whether order of the disciplinary authority

mandatorily has to be a speaking order although the enquiry officer‟s report

is a detailed speaking report, counsel for the petitioner could not point out

any such judgment. The second argument urged on behalf of the petitioner

is also therefore rejected.

11. The third and the final argument urged on behalf of the

petitioner is that he was wrongly denied the assistance of the lawyer in the

enquiry proceedings and this argument, is once again an argument without

merit because the law is settled that in the departmental proceedings a

person has no right to be represented by a lawyer. The position does not

change merely because Presenting Officer had a diploma in Labour Laws

inasmuch as that would not make the Presenting Officer a lawyer and

therefore, the consequent entitlement of the petitioner also to be represented

by a lawyer.

12. In view of the above, there is no merit in the petition, and the

same is therefore dismissed, leaving the parties to bear their own costs.

NOVEMBER 08, 2013                                 VALMIKI J. MEHTA, J
ib