Delhi High Court
Himani Malhotra vs The Indraprastha College For ... on 24 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: April 24, 2018
+ W.P.(C) 4103/2018 & CMs 16151-53/2018
HIMANI MALHOTRA ..... Petitioner
Through: Ms. Neela Gokhle and Ms.
Shradha Agrawal, Advocates
Versus
THE INDRAPRASTHA COLLEGE FOR WOMEN AND ANR.
.....Respondents
Through: Mr. Rajesh Gogna, Advocate for
respondent No.1
Mr. Mohinder J. S. Rupal, Mr. Prang Newmai
and Ms. Slomita Rai, Advocates for respondent-
University
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
1. Impugned order of 4th April, 2018 rejects petitioner's prayer for
recusal by Inquiry Officer while noting as under: -
"To deal with her first contention, I fail to understand as
to how my past membership of University Court and of
Executive Council of University of Delhi can affect my
independence and impartiality to conduct the present enquiry
against the DE and how the same can be against the principles
of natural justice. University Court of Delhi University is an
Apex Body of University of Delhi comprising of Professors,
Principal, Vice Chancellor, Deans, Vice President of India,
Chief Justice of India, Members of Parliament,
Representatives of the Alumni and various professionals under
different categories as per Delhi University Act and therefore
my past membership in University Court cannot be a reason
for me to recuse from the present enquiry. Similarly, I being a
part of the Executive Council of University of Delhi for one
term which is a highest policy making body of University of
Delhi can afford any ground to the DE to seek my recusal from
the present enquiry. The judgment of the Hon'ble Supreme
Court in the case of Professor Ramesh Chandra Versus
University of Delhi is hardy of any help to DE as in the facts of
that case the challenge was to the appointment of a retired
Judge to act as an Enquiry Officer who was earlier a Counsel
for Delhi University. Indisputably, the same is not the case as
far as the facts of the present case goes. It cannot be denied
that the Enquiry Officer has to be a person who is
independent, impartial and unbiased so that he can decide the
enquiry in a most fair and in a just manner. At the same time
to challenge the independence and impartiality of the Enquiry
Officer, the challenge should be supported with strong reasons
and not the kind of reasons as have been advanced by the DE
in the present application."
2. Learned counsel for petitioner assails impugned order while
relying upon Supreme Court's decision in Union of India and Others v.
Sanjay Jethi and Another, (2013) 16 SCC 116 and submits that likelihood
of bias itself is a ground for recusal, particularly, when the Inquiry
Officer has been a Member of respondent-University's Court, which is its
highest body, and Member of the Executive Council of respondent-
University. She further submits that the aforesaid background would
affect the independence and impartiality of the Inquiry Officer to conduct
the inquiry proceedings.
3. Reliance is also placed by petitioner's counsel upon Supreme
Court's decision in Ramesh Chandra v. Delhi University and Others,
(2015) 5 SCC 549 to submit that reasonable apprehension of bias is
required to be considered by adopting a practical approach. So, it is
submitted that there may not be actual bias, but the apprehension of bias
itself warrants change of Inquiry Officer. It is brought to the notice of this
Court by petitioner's counsel that the Inquiry Officer was a Member of
respondent-University's Court from 1995 to 2010 and the Executive
Council of respondent-University from 1998 to 2001. It is also brought to
the notice of this Court that the Inquiry Officer was appointed in October,
2015 and prior thereto, the Inquiry was being conducted by Justice S.L.
Bhayana from the year 2010 onwards.
4. On the contrary, learned counsel for respondents support impugned
order and submit that the inquiry is at the stage of final hearing and
prayer for change of Inquiry Officer is nothing but a ploy to delay the
inquiry proceedings and that there is no basis to allege bias against the
Inquiry Officer. It is pointed out by respondents' counsel that the
decisions relied upon are of no avail, as in the said decisions, the case of a
Professor of respondent-University was under consideration, whereas
petitioner is an employee of respondent-College and the outcome of
inquiry has no co-relation with the allegations of bias. It is further pointed
out that the Inquiry Officer has not been appointed by respondent-
University, but has been appointed by respondent-College. Learned
counsel for respondent-University maintains that all the payments to
Inquiry Officer are being made by respondent-College and not by
respondent-University.
5. Upon hearing and on perusal of impugned order, material on record
and the decisions cited, I find that the Inquiry Officer was a Member of
respondent-University's Court and Executive Council of respondent-
University long ago and thus, the apprehension of bias is not well
founded. It is true that the test and the manner in which issue of bias is to
be considered, is to adopt a realistic and pragmatic approach. Upon
testing the bias aspect on the touchstone of legal position as highlighted
in the abovesaid decisions, I find that the plea of bias has been belatedly
raised at the stage of final arguments. The Inquiry Officer has been
conducting the inquiry since the year 2015. Had there been any substance
in the allegations of bias, then the plea of bias ought to have been taken in
the first instance, which has not been done. Otherwise also, petitioner in
the application seeking recusal of the Inquiry Officer has not laid any
foundation on the basis of which it could be inferred that there is any
likelihood of bias.
6. In the impugned order, the Inquiry Officer has concluded that the
plea of bias has been raised just to delay the inquiry proceedings and has
imposed nominal costs of `10,000/-. In the considered opinion of this
Court, impugned order does not suffer from any infirmity whatsoever.
However, the costs imposed vide impugned order stand waived.
7. In light of the aforesaid, this petition and the applications are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
APRIL 24, 2018
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