MOHD. YUNUS KHANversusSTATE OF U.P. AND ORS.

                     [2010] 12 S.C.R. 448


A                      MOHD. YUNUS KHAN
                                  V.
                    STATE OF U.P. AND ORS.
                  (Civil Appeal No. 8349 of 2010)

                      SEPTEMBER 28, 2010
B
        [P. SATHASIVAM AND DR. 8.S. CHAUHAN, JJ.)

         Service Law - Termination - On ground of misconduct
    - Uttar Pradesh Police - Appellant, Guard Commander,
c   found absent from duty for 25 minutes - Punishment drill for
    10 days imposed - Protest by appellant - Punishment
    enhanced to confinement in cell for ten days - Appellant
    refused to serve the enhanced punishment - Disciplinary
    proceedings initiated by Commandant concerned - He
D   appointed his own subordinate as the inquiry officer and
    himself appeared as a witness in the enquiry - Inquiry officer
    recommended removal of appellant and accordingly the
    Commandant terminated the service of appellant :- Appellate
    Authority upheld the order of termination - Tribunal upheld
E   the order of termination - Writ petition dismissed by High
    Court - On appeal, held - Held: The order of punishment
    stood vitiated - Absence of appellant from duty as Guard
    Commander for 25 minutes was bona fide and permissible
    under the statutory rules - Imposition of punishment for the
    said absence was unwarranted - Protest against the
F   imposition of the said punishment could not warrant
    enhancement of punishment by the Commandant concerned
    - Consequently, disobedience of the enhanced punishment
    could not warrant initiation of disciplinary proceedings by the
    Commandant - The Commandant could not become a
G   Judge in his own cause and could not appoint his own
    subordinate as the inquiry officer- The Ptf9ishment order was
    passed in violation of statutory rules and the principles of
    natural justice as well, and hence rendered null and void -
                                 448
H
MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS.                 449


Directions issued to meet the ends of justice - Uttar Pradesh      A
Police Officers of the Subordinate Ranks (Punishment and
Appeal) Rules, 1991 - Rules 13 and 14(1).

    Service Law - Disciplinary proceedings - Bias -
Authority who initiated the disciplinary proceedings against the   8
employee became a witness before the inquiry officer
appointed by him, who was subordinate to him in his office
and also accepted the enquiry report and passed the order
of punishment - Justification of - Held: Not justified - Such
a course is not permissible in law - Natural justice - Violation   C
of

     Service Law - Punishment - Past conduct - Relevance
of - Held: Past conduct of an employee should not generally
be taken into account to substantiate the quantum of
punishment without bringing it to the notice of the delinquent     D
employee.

    Maxims - Maxim "nemo debet esse judex in propria
causa" (no man shall be a judge in his own cause).

     The appellant was posted with 30th Battalion PAC in           E
G-Company. While on duty as Guard Commander, the
appellant left his post and came back after 25 minutes
after having tea and medicine in the canteen. The Dal
Nayak endorsed his comments in respect of the
appellant's absence for the period of 25 minutes and               F
placed it before the Commandant concerned. The
Commandant imposed the punishment of 10 days
punishment drill. Upon protest by the appellant, the
Commandant enhanced the punishment to 10 days
confinement in a cell. The appellant refused to serve the          G
punishment, which was considered to be a serious act
of indiscipline and he was placed under suspension. The
appellant was served with a chargesheet indicating that
an enquiry was to be held against him under Rule 14(1)
of the Uttar Pradesh Police Officers of the Subordinate            H
    450      SUPREME COURT REPORTS             (2010] 12 S.C.R.


A Ranks (Punishment and Appeal) Rules, 1991. The inquiry
  officer concluded the enquiry and submitted report that
  the appellant was guilty of negligence and disobedience
  and recommended his removal from service.
  Consequently, the Commandant passed order imposing
B the punishment of termination from service. Aggrieved,
  the appellant preferred appeal which was dismissed by
  the Appellate Authority. The appellate authority while
  justifying the order of termination took into consideration
  the past conduct of the appellant. The appellant filed claim
c petition before the Tribunal. The Tribunal dismissed the
  said Claim Petition recording the finding that the absence
  from duty for 25 minutes was bona fide and permissible
  under Rule 21 of the Guard and Escort Rules, however,
  not obeying the order of punishment was a case of gross
  indiscipline and thus, the order of termination of his
0
  services was justified. Thereafter, the appellant filed Writ
  Petition before the High ~ourt which was dismissed.

          Disposing of the appeal, the Court

E      HELD:1. Holding disciplinary proceedings against a
  government employee and imposing a punishment on his
  being found guilty of misconduct under the statutory
  rules is in the nature of quasi-judicial proceedings.
  Though, the technical rules of procedure contained in the
F Code of Civil Procedure, 1908 and the provisions of the
  Indian Evidence Act, 1872 do not apply in a domestic
  enquiry, however, the principles of natural justice require
  to be observed strictly. Therefore, the ertquiry is to be
  conducted fairly and reasonably and the enquiry report
G must contain reasons for reaching the conclusion that
  the charge framed against the delinquent stood proved
  against him. It cannot be an ipse dixit of the inquiry
  officer. Punishment for misconduct can be imposed in
  consonance with the statutory rules and principles of
H natural justice. [Para15] [464-B-D]
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 451


    Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC     A
395; Union of India v. H. C. Goel, AIR 1964 SC 364; Anil
Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; Mani
Shankar v. Union of India & Anr. (2008) 3 SCC 484 and
Union of India & Ors. v. Prakash Kumar Tandon (2009) 2 SCC
541, relied on.                                                 B

      2. The requirements of morale, discipline and justice
have to be reconciled. Even in disciplined forces, forced
morale and discipline without assured justice breeds
defiance and belligerency. Our Constitution protects not
only the life and liberty but also the dignity of every         C
person. Life convicts and hardcore criminals deprived of
personal liberty are also not wholly denuded of their
Constitutional rights. Arbitrariness is an anathema to the
principles of reasonableness and fairness enshrined in
our constitutional provisions. The rule.of law prohibits the    D
exercise of power in an arbitrary manner and/or in a
m.a·nner that travels beyond the b"oundaries of
reasonableness. Thus, a statutory authority is not
permitted to act whimsically/arbitrarily. Its actions should
be guided by the principles of reasonableness and               E
fairness. The authority cannot be permitted to abuse the
law or to use it unfairly. It is evident from the aforesaid
rule that a person who is a witness in a case can neither
initiate the disciplinary proceedings nor pass an order of
punishment.[Paras 20, 21] [466-D-F] [467-B]                     F

    State of UP. v. Mohd. Noor AIR 1958 SC 86, followed.

     Union of India & Ors. v. L.D. Ba/am Singh, (2002) 9 SCC
73; Lt. Col. Prithpar Singh Bedi v. Union of India & Ors. AIR
1982SC1413;R. Viswan & Ors. v. Union of India & Ors. AIR        G
1983 SC 658 and Rattan Lal Sharma v. Managing
Committee, Dr. Hari Ram (Co-education) Higher Secondary
School & Ors. AIR 1993 SC 2155, relied on.

                                                                H
    452    SUPREME COURT REPORTS             [2010] 12 S.C.R.


A      3. The legal maxim "nemo debet esse judex in propria
  causa" (no man shall be a judge in his own cause) is
  required to be observed by all judicial and quasi-judicial
  authorities as non-observance thereof is treated as a
  violation of the principles of natural justice. Law requires
8 that  a person should not decide a case wherein he is
  interested. The failure to observe this principle creates an
  apprehension of bias on the part of the said person. The
  question is not whether the person is actually biased but
  whether the circumstances are such as to create a
C reasonable apprehension in the minds of others that
  there is a likelihood of bias affecting the decision. The
  existence of an element of bias renders the entire
  disciplinary proceedings void. Such a defect cannot be
  cured at the appellate stage even if the fairness of the
  appellate authority is beyond dispute. [Paras 24, 25 and
D 26] [468-A, D-F]

      Secretary to Government, Transport Department v.
  Munuswamy Mudaliar & Anr., AIR 1988 SC 2232; Meenglas
  Tea Estate v. The Workmen AIR 1963 SC 1719; Mineral
E Development Ltd. v. The State of Bihar & Anr. AIR 1960 SC
  468; A.U. Kureshi v. High Court of Gujarat & Anr. (2009) 11
  SCC 84; S. Parthasarthy v. State of Andhra Pradesh AIR
  1973 SC 2701 and Tilak Chand Magatram Obhan v. Kam/a
  Prasad Shukla & Ors. 1995 Supp. (1) SCC 21, relied on.
F
        Ashok Kumar Yadav & Ors. v. State of Haryana & Ors.
    (1985) 4 sec 417, referred to.

       4.1. If a person appears as a witness in disciplinary
  proceedings, he cannot be an inquiry officer nor can he
G pass the order of punishment as a disciplinary authority.
  This rule has been held to be sacred. An apprehension
  of bias operates as a disqualification for a person to act
  as adjudicator. No person can be a Judge in his own
  cause and no witness can certify that his own testimony
H
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS.            453


is true. Any one who has personal interest in the             A
disciplinary proce~dings must keep himself away from
such proceedings. The violation of the principles of
natural justice renders the order null and void. [Para 28]
[469-F-H]
                                                              B
     4.2. In the instant case, the Commandant appeared
as a witness and proved th.e disobedience of his orders
of imposition of punishment, first as of punishment drill
and subsequently of confinement to a cell. However, after
appearing as a witness in the enquiry, he also passed the
order of punishment, i.e., dismissal of the appellant from    C
service. This issue has been agitated by the appellant
throughout but none of the authorities or the courts
below had taken it into consideration. Appellant has made
crystal clear pleadings before this Court also in this
regard and the same have not been denied in the counter       D
affidavit by the respondents, rather a very vague and
evasive reply has· been filed stating that the disciplinary
proceedings had been concluded strictly in accordance
with law. [Para 29] [470-A-C]
                                                              E
    Arjun Chaubey v. Union of India & Ors. AIR 1984 SC
1356, followed.

     5. An order in violation of the principles of natural
justice may be void depending on the facts and
circumstances of the case. In the instant case, in case the   F
very first order of imposition of punishment for remaining
absent from duty for 25 minutes was bad in law, the
appellant's protest against the said punishment could not
be said to be unjustified. The initiation of disciplinary
proceedings against the appellant and the conclusion          G
thereof by the imposition of the punishment by the
Commandant, who had himself been a witness, was in
flagrant violation of the principles of natural justice and
thus, stood vitiated. "Principles of natural justice are to
some minds burdensome but this price - a small price          H
    454    SUPREME COURT REPORTS              [2010) 12 S.C.R.


A indeed - has to be paid if we desire a society governed
  by the rule of law." All other consequential orders passed
  in appeal etc. remained inconsequential. More so, a
  protest/disobedience against an illegal order may not be
  termed as misconduct in every case. In an appropriate
s case, it may be termed as revolting to one's sense of
  justice. In view of the above, the protest raised by the
  appellant against the punishment imposed for his
  absence could not give rise to a cause of action for
  initiating the disciplinary procerdings. [Paras 30, 31, 32]
c [470-D-F] [471-8-D]
       Raja Jagdambika Pratap Narain Singh v. Central Board
  of Direct Taxes & Ors. AIR 1975 SC 1816; Smt. Maneka
  Gandhi v. Union of India & Anr. AIR 1978 SC 597; Krishan
  Lal v. State of J & K, (1994) 4 SCC 422; State Bank of Patiala
D & Ors. v. S.K. Sharma AIR 1996 SC 1669; Union of India &
  Anr v. Mis. Mustafa & Najibai Trading Co. & Ors. AIR 1998
  SC 2526; Vishnu Dutt & Ors. v. State of Rajasthan & Ors.
  (2005) 13 SCC 592 and Nawabkhan v. State of Gujarat AIR
  1974 SC 1471, relied on.
E
       6. The courts below and the statutory authorities
  failed to appreciate that if the disciplinary authority wants
  to consider the past conduct of the employee in imposing
  a punishment, the delinquent is entitled to notice thereof
F and generally the charge-sheet should contain such an
  article or at least he should be informed of the same at
  the stage of the show cause notice, before imposing the
  punishment. [Para 33] [471-E-F]

      Union of India & Ors. v. Bishamber Oas Dogra (2009) 13
G SCC 102; State of Assam v. Bimal Kumar Pandit AIR 1963
  SC 1612; India Marine Service {P) Ltd. v. Their Workmen AIR
  1963 SC 528; State of Mysore v. K. Manche Gowda AIR 1964
  SC 506; Colour-Chem Ltd. v. A.L. Alaspurkar & Ors. AIR
  1998 SC 948; Director General, RPF v. Ch. Sai Babu (2003)
H 4 SCC 331; Bharat Forge Co. Ltd. v. Uttam Manohar Nakate
. MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS.         455

(2005) 2 SCC 489; Govt. of A.P. & Ors. v. Mohd. Taher Ali   A
(2007) 8 sec 656, referred to.

    7. The appellant joined the service on 10.2.1969 and
his services stood terminated vide order dated 8.4.2003.
Therefore, the benefit of service rendered by the           B
appellant for more than 34 years stood forfeited. At the
time of his removal from service, the appellant was 54
years of age. Thus, he had been visited with serious
punishment on the verge of retirement. [Para 35] [472-C]

     8. In the facts and circumstances of the case, the C
following conclusions are inescapable viz. that (i)
absence of appellant from duty as Guard Commander for
25 minutes was bona fide and permissible under the
statutory rules; (ii) imposition of punishment of
punishment drill for 10 days for the said absence was D
unwarranted; (iii) protest by the appellant against the
imposition of the said punishment could not warrant
enhancement of punishment of the appellant for
confinement in cell for ten days; (iv) disobedience of the
enhanced punishment could not, in this case, warrant E
initiation of disciplinary proceedings by the Commandant
concerned against the appellant; (v) the Commandant
could not himself become the Judge of his own cause;
(vi) the Commandant could not appoint his own·
subordinate as the inquiry officer; (vii) the Commandant F
could h~ve referred the matter to his superior officer for
appropriate action in terms of Rules 1991; (viii) once the
Commandant concerned appeared as a witness himself
in the enquiry, he could not pass the order of
punishment; (ix) the Authority who initiated the G
disciplinary proceedings against the appellant became a
witness before the inquiry officer appointed by him, who
is subordinate to him in his office and also accepted the
enquiry report and passed the order of punishment.
                                                            H
    456      SUPREME COURT REPORTS             [2010] 12 S.C.R.


A Thus, the order of punishment stood vitiated; (x) the
  Appellate Authority could not consider the past conduct
  of the appellant to justify the order of punishment passed
  by the disciplinary authority without bringing it to the
  notice of the appellant; (xi) as the punishment order had
B been passed in violation of the statutory rules and the
  principles of natural justice as well, it is rendered null and
  void; thus, it remained inexecutable; (xii) past conduct of
  an employee should not generally be taken into account
  to substantiate the quantum of punishment without
c bringing it to the notice of the delinquent employee; and
  (xiii) the error of violating the principles of natural justice
  by the Disciplinary Authority has been of such a grave
  nature that under no circumstance can the past conduct
  of the appellant, even if not satisfactory, be taken into
  consideration. [Para 36] [472-A-H] [473-A-H]
0
       9. The order of punishment is null and void and,
  therefore, cannot be given effect to. The appellant had
  already reached the age of superannuation and no fresh
  enquiry can be initiated in the matter if the earlier
E proceedings are rendered null and void for the violation
  of the statutory provisions and principles of natural
  justice. In the facts and circumstances of the case and
  in order to meet the ends of justice, it is desirable that the
  appellant be paid 50% of the wages from the date of
F removal from service till the date of reaching the age of
  superannuation and he be granted retiral benefits in
  accordance with law from the date of his retirement. [Para
  37] [474-A-C]
                        Case Law Reference:
G
          AIR 1963 SC 395        relied on             Para16
          AIR 1964 SC 364        relied on             Para16

H
MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 457


  AIR 1985 SC 1121      relied on     Para16     A
  (2008) 3 sec 484      relied on     Para16
  (2009) 2 sec 541      relied on     Para 16
   (2002) 9 sec 73      relied on     Para 17    B
  AIR 1982 SC 1413      relied on     Para 18
  AIR 1983 SC 658       relied on     Para 19
  AIR 1958 SC 86        followed      Para 22
                                                 c
  AIR 1993 SC 2155      relied on     Para 23
  AIR 1988 SC 2232      relied on     Para 24
  AIR 1963 SC 1719      relied on     Para 24
  AIR 1960 SC 468       relied on     Para 24    D

  (2009) 11 sec 84      relied on     Para 25
  (1985) 4 sec 417      referred to   Para 25
  AIR 1973 SC 2701      relied on     Para 26    E
  1995 Supp. (1) sec 21 relied on     Para 26
  AIR 1984 SC 1356      followed      Para 27
  AIR 1975 SC 1816      relied on     Para 30
                                                 F
  AIR 1978 SC 597       relied on     Para 30
  (1994) 4 sec 422      relied on     Para 30
  AIR 1996 SC 1669      relied on     Para 30
                                                 G
  AIR 1998 SC 2526      relied on     Para 30
  (2005) 13 sec 592     relied on     Para 30
  AIR 1974 SC 1471      relied on     Para 31
                                                 H
    458      SUPREME COURT REPORTS               [201 OJ 12 S.C.R.


A         (2009) 13 sec 102        referred to          Para 34

          AIR 1963 SC 1612         referred to          Para 34

          AIR 1963 SC 528          referred to          Para 34

          AIR 1964 SC 506          referred to          Para 34
B
          AIR 1998 SC 948          referred to          Para 34

          (2003) 4 sec 331         referred to          Para 34

          (2005) 2 sec 489         referred to          Para 34
c
          (2007) 8 sec 656         referred to          Para 34

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8349 of 2010.

o        From the Judgment & Order dated 12.7.2007 of the High
    Court of Allahabad, Lucknow Bench in Writ Petition No. 782
    (SIB) of 2007.

          Tripurari Ray, Vishnu Sharma for the Appellant.

E       S.R. Singh, S.K. Dwivedi, Ameet Singh, Gunnam
    Venkateswara Rao for the Respondents.

          The Judgment of the Court was delivered by

          DR. B.S. CHAUHAN, J. 1. Leave granted.
F
        The facts of the present case reveal that a person who
  initiated the disciplinary proceedings against the appellant for
  disobeying his own orders; appointed his subordinate as an
  inquiry officer; appeared as a witness in the proceedings to
G prove the charges of disobedience of his orders; accepted the
  enquiry report; and further passed the order of punishment - i.e.
  dismissal of the appellant from service. The question does arise
  as to whether such a course is permissible in law.

H
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 459
           [DR. B.S. CHAUHAN, J.]
     2. This appeal has been preferred against the judgment      A
and order dated 12th July, 2007 passed by the High Court of
Allahabad (Lucknow Bench), dismissing the Writ Petition No.
782 of 2007 filed by the appellant against the judgment and
order of the U.P. State Public Services Tribunal, (hereinafter
referred to as the 'Tribunal') Lucknow dated 25th May, 2007,     B
by which the Tribunal dismissed the Claim Petition No. 837 of
2003 filed by the appellant and upheld the order of dismissal
of the appellant from service by the Statutory Authorities.

     3. Facts and circumstances giving rise to this case are that C
the appellant was appointed as a Constable in the Provincial
Armed Constabulary (hereinafter referred to as 'PAC') on 10th
February, 1969 and promoted to the post of Head Constable
vide order dated 5th May, 1983. The appellant was posted with
30th Battalion PAC in G-Company in the year 2002. On 29th
September, 2002, the appellant was on duty as Guard D
Commander along with another Head Constable named Rama
Nanci. At around 6.20 A.M., lhe appellant left his post and came
back after 25 minutes after having tea and medicine in the
canteen. His departure from his post was duly recorded in the
register maintained for the purpose by the other guard, Head . E
Constable Rama Nand. The Dal Nayak endorsed his comments
in respect of the appellant's absence for the period of 25
minutes and placed it before the Commandant on 3rd October,
2002. The Commandant vide order dated 4th October, 2002
imposed the punishment of 10 days punishment drill. Upon F
protest by the appellant, the Commandant enhanced the
punishment to 10 days confinement in a cell. The appellant
refused to serve the punishment being not acceptable to him.

     4. Refusal to serve the punishment so imposed by the        G
appellant was considered to be a serious act of indiscipline
and he was placed under suspension. The appellant was served
with a chargesheet dated 2nd December, 2002 indicating that
an enquiry was to be held against him under Rule 14(1) of the
Uttar Pradesh Police Officers of the Subordinate Ranks
                                                                 H
    460      SUPREME COURT REPORTS              (2010] 12 S.C.R.


A (Punishment and Appeal) Rules, 1991 (hereinafter referred to
  as 'the Rules 1991). The appellant submitted his reply to the
  said chargesheet on 11th December, 2002. The inquiry officer
  concluded the enquiry and submitted the report on 28th March,
  2003 with the finding that the appellant was guilty of negligence
B and disobedience and recommended his removal from service.

       5. The Disciplinary Authority issued a notice dated 31st
  March, 2003 to the appellant to show cause as to why his
  services should not be terminated in view of the enquiry report.
  The appellant submitted his reply to the said show cause on
C 7th April, 2003. After considering the same, the Commandant
  passed the order dated 8th April, 2003 imposing the
  punishment of termination from service.

       6. Being aggrieved, the appellant preferred an appeal
D against the order of termination. However, the said appeal was
  dismissed by the Appellate Authority vide order dated 25th
  August, 2003. The appellant challenged the said order of
  termination before the Tribunal by filing Claim Petition No. 837
  of 2003. The Tribunal dismissed the said Claim Petition vide
E judgment and order dated 25th May, 2007 recording the finding
  that the absence from duty for 25 minutes on 29th September,
  2002 was bona fide and permissible under Rule 21 of the Guard
  and Escort Rules, however, not obeying the order of punishment
  was a case of gross indiscipline and thus, order of termination
F of his services was justified.

       7. Being aggrieved of the said judgment and order of the
  Tribunal, the appellant preferred a Writ Petition before the High
  Court which was dismissed vide impugned judgment and order
  dated 12th July, 2007 in a cursory manner without considering
G the issues raised by the appellant, merely on the ground that
  charge of disobedience of the orders of the higher authority
  stood proved and the enquiry had been conducted in
  accordance with law. Hence, this appeal.

H         8. Shri Tripurari Ray, learned counsel appearing for the
   MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 461
             [DR. B.S. CHAUHAN, J.]

  appellant has raised large number of submissions, inter-alia,             A
  the absence from duty for a short - specified period, when other
  guard is present on duty, is permissible under the Guard and
  Escort Rules. The appellant had left his duty for only 25 minutes
  and it was so recorded in the register at the spot. If such an
  absence is permissible in law, imposing the punishment of 10              B
  days' punishment drill was unwarranted. More so, it had been
  awarded without giving a proper opportunity of hearing to the
  appellant. The appellant's protest against such an arbitrary
  imposition of punishment could not be the ground for enhancing
  the punishment to 10 days confinement in a cell; depriving him            c
  of his personal liberty was totally unwarranted and uncalled for,
  particularly, in view of the fact that the imposition of the very first
  punishment was in contravention of the statutory rules. The
  disciplinary authority did not consider the reply submitted by the
  appellant against the show cause notice wherein it had                    D
  specifically been submitted that in case the Commandant was
  <;if the view that his orders had been viola~ed, he should have
  referred the matter to his superior officer to transfer the
· disciplinary proceedings to another coordinate officer and that
  officer should have conducted the enquiry. The Disciplinary
  Authority himself appeared as a witness in the enquiry. Thus,             E
  the enquiry itself stood vitiated. The punishment of dismissal
  remained disproportionate to the proved delinquency; the
  Appellate Authority considered while passing the order, the past
  conduct of the appellant for the purpose of confirming the order
  of punishment passed by the Disciplinary Authority. The                   F
  appellant's past conduct had never been the part of the
  chargesheet or the show cause notice; nor had the appellant
  ever been informed that his past conduct was likely to be
  considered at the time of passing the order of punishment. The
  High Court failed to consider that, in a case where there had             G
  been a violation of the statutory provisions, or principles of
  natural justice, power of judicial review required to be
  exercised. The appeal deserves to be allowed.

      9. Per contra, Shri Ameet Singh, learned counsel                      H
    462      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A appearing for the State of U.P., has opposed the appeal
  contending that the appellant had been the member of a
  disciplined force. Indiscipline therein, amounts to a very serious
  misconduct. Therefore, it is intolerable. Once the charge of
  absence and further charge of disobedience stood proved, the
B matter does not deserve to be considered by this Court. The
  appeal lacks merit and is liable to be dismissed.

         10. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.

c       11. An enquiry was initiated against the appellant by the
    Commandant, for disobedience of the order of punishment by
    the Commandant himself. The charge-sheet contained two
    basic charges which read as under:-

D         "1. Your duty was as a Guard Commander in the Vahini
          Quarter Guard from 22.9.2002 to 29.9.2002. On 29.9.2002
          in the morning at 06.30 a.m., inspection of the Vahini
          Quarter Guard was made by the Platoon Officer of "G"
          Platoon, when you were found absent. With regard to this
          absence the Second Guard Commander H.C.39074
E
          Rama Nand told that you have gone to take tea and
          medicine. This was mentioned by the Platoon Officer "G"
          Platoon in the Inspection Book. With regard to this
          absence your explanation was sought by the Platoon
          Officer "G" Platoon, when you did not give satisfactory
F         explanation and you sought that your explanation be placed
          before the Senanayak, in your explanation you alleged
          violation of rules and standing orders by the Platoon Officer
          "G" Platoon, which was submitted by the Platoon Officer
          "G" Platoon on 3.10.2002 with his comments before the
G         Senanayak to produce you in his chamber.

          2. On 4.10.2002 when you appeared before the
          Senanayak in the Orderly Chamber, after the hearing 10
          days' P.O. was awarded to you which you declined. On
H         this you were punished by the Senanayak for violation of
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 463
           [DR. B.S. CHAUHAN, J.]
    his order passed in the Orderly Chamber with 10 days cell       A
    punishment, which you the H.C. did not accept and after
    saluting the Commandant you voluntarily went out of the
    chamber."

     12. The inquiry officer conducted the enquiry and on its       B
conclusion held that the appellant was guilty on both counts. The
Disciplinary Authority accepted the report and held that:

    "Mohd. Yunus Khan has been found to be violating orders
    and bleak chances of improvement, not fit to be retained
    in a disciplined force like PAC as his continuance in the       C
    force will have adverse effect on other personnel. He is
    guilty of negligence in duty, indiscipline and disobedience
    of orders."

    The Commandant awarded the punishment - dismissal               0
from service.

     13. The Appellate Authority, while affirming the said.order
of punishment, considered the past conduct of the appellant
wherein it had been mentioned that the appellant had been
given 8 petty punishments; 3 censure entries; and a penalty of      E
reversion for six months from the post of Head Constable to
the post of Constable. He was also reduced to the lowest pay
scale of Rs.975/- for one year after he had been found guilty in
a departmental enquiry.
                                                                    F
     14. The Tribunal dismissed the Claim Petition filed by the
appellant, however, it recorded the finding that the absence of
the appellant for 25 minutes was bona fide and legally
permissible in view of the provisions of Rule 21 of the Guard
and Escort Rules. However, his subsequent misconduct, i.e.,         G
disobedience in carrying out the punishment was a serious
matter. The Tribunal also took note of the order of the Appellate
Authority wherein the past conduct of the appellant had been
taken into consideration. The High Court dismissed the Writ
                                                                    H
    464      SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A   Petition without realising the gravity of the legal issues involved
    in the case.

        15. We have to proceed, keeping in mind the trite law that
  holding disciplinary proceedings against a government
  employee and imposing a punishment on his being found guilty
8
  of misconduct under the statutory rules is in the nature of quasi-
  judicial proceedings. Though, the technical rules of procedure
  contained in the Code of Civil Procedure, 1908 and the
  provisions of the Indian Evidence Act, 1872 do not apply in a
  domestic enquiry, however, the principles of natural justice
C require to be observed strictly. Therefore, the enquiry is to be
  conducted fairly and reasonably and the enquiry report must
  contain reasons for reaching the conclusion that the charge
  framed against the delinquent stood proved against him. It
  cannot be an ipse dixit of the inquiry officer. Punishment for
D misconduct can be imposed in consonance with the statutory
  rules and principles of natural justice. (See Bachhittar Singh
   v. State of Punjab & Anr., AIR 1963 SC 395; Union .of India
   v. H. C. Goel, Al R 1964 SC 364; A nil Kumar v. Presiding
  Officer & Ors., Al R 1985 SC 1121; Mani Shankar v. Union of
E India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v.
  Prakash Kumar Tandon, (2009) 2 SCC 541 ).

       16. The Tribunal has categorically held that absence of the
  appellant from duty for such a short span of time was
F permissible in view of the statutory rules and was bona fide.
  That finding was not challenged by the respondents any further
  and attained finality. This finding of the Tribunal leads us to the
  questions that in case the first punishment of 10 days
  punishment drill was unwarranted and illegal; whether any
G protest against such punishment, authorised the Commandant
  to enhance the punishment to 10 days confinement in a cell;
  and whether further disobedience thereof, ought to have
  enabled the Commandant to initiate the disciplinary
  proceedings against the appellant. These questions have to be
  considered keeping in mind that the appellant was a member
H
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS.                  465
           [DR. B.S. CHAUHAN, J.]
of disciplined force and the Appellate Authority as well as the      A
Tribunal had very heavily relied on the past conduct of the
appellant for considering the proportionality of the punishment,
though it had not been a part of the charge-sheet nor was the
appellant informed of the same while issuing the second show
cause notice, giving him the opportunity to make his                 B
representation against the enquiry report.

    17. In Union of India & Ors. v. L. 0. Ba/am Singh, (2002)
9 SCC 73, this Court observed as under:

     " .... the extent of restrictions necessary to be imposed on    C
     any of the fundamental rights in their application to the
     armed forces and the forces charged with the
     maintenance of public order for the purpose of ensuring
     proper discharge of their duties and maintenance of
     discipline among them would necessarily depend upon the         D
     prevailing situation at a given point of time and it would
     be inadvisable to encase it in a rigid statutory formula. The
     Constitution-makers were obviously anxious that no more
     restrictions should be placed than are absolutely
     necessary for ensuring proper discharge of duties and the       E
     maintenance of discipline amongst the armed force
     personnel". (Emphasis added)

    18. In Lt. Col. Prithpal Singh Bedi v. Union of India & Ors.,
AIR 1982 SC 1413, this Court observed:
                                                                     F
           "It is one of the cardinal features of our Constitution
    that a person by enlisting in or entering armed forces does
    not cease to be a citizen so as to wholly deprive him of
    his rights under the Constitution ....
                                                                     G
          Persons subject to Army Act are citizens of this
    ancient land having a feeling of belonging to the civilised
    community governed by the liberty-oriented constitution.
    Personal liberty makes for the worth of human being and
    is a cherished and prized right. Deprivation thereof must
                                                                     H
    466      SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A         be preceded by an enquiry ensuring fair, just and
          reasonable procedure and trial".

        19. In R. Viswan & Ors. v. Union of India & Ors., AIR 1983
    SC 658, Constitution Bench of this Court observed:
B         "Morale and discipline are indeed the very soul of an army
          and no other consideration, howsoever important, can
          outweigh the need to strengthen the morale of the Armed
          Forces and to maintain discipline amongst them. Any
          relaxation in the matter of morale and discipline may prove
c         disastrous and ultimately lead to chaos and ruination
          affecting the well being and imperilling the human rights
          of the entire people of the country".

       20. Thus, the requirements of morale, discipline and justice
0 have to be reconciled. There is no scarcity of examples in
  history, and we see it in day-to-day life also, that even in
  disciplined forces, forced morale and discipline without assured
  justice breeds defiance and belligerency. Our Constitution
  protects not only the life and fiberty but also the dignity of every
E person. Life convicts and hardcore criminals deprived of
  personal liberty are also not wholly denuded of their
  Constitutional rights. Arbitrariness is an anathema to the
  principles of reasonableness and fairness enshrined in our
  constitutional provisions. The rule of law prohibits the exercise
  of power in an arbitrary manner and/or in a manner that travels
F beyond the boundaries of reasonableness. Thus, a statutory
  authority is not permitted to act whimsically/arbitrarily. Its actions
  should be guided by the principles of reasonableness and
  fairness. The authority cannot be permitted to abuse the law
  or to use it unfairly.
G
       21. Rule 13 of the Rules 1991 reads as under:

          "Officer not competent to conduct disciplinary
          proceedings- A gazetted officer of the Police Force who
          is either a prosecution witness in the case or has either
H
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS.                   467
           [DR. B.S. CHAUHAN, J.]
    conducted a preliminary enquiry in that case shall not            A
    conduct inquiry in that case under these rules. In case
    the said gazetted officer is the Superintendent of Police
    himself, the Deputy Inspector-General concerned shall
    be moved to transfer the case to some other district or
    unit as the case may be." (Emphasis added)                        B

    It is evident from the aforesaid rule that a person who is a
witness in a case can neither initiate the disciplinary
proceedings nor pass an order of punishment.

    22. A Constitution Bench of this Court in State of UP. v.         C
Mohd. Noor, AIR 1958 SC 86, rejected a submission made
on behalf of the State that there was nothing wrong with the
Presiding Officer of a Tribunal appearing as a witness and
deciding the same case, observing as under:
                                                                      D
    'The two roles could not obviously be played by one and
    the. same person ....... the act of Shri B. N. Bhqlla in having
    his own testimony recorded in the case indubitably
    evidences a state of mind which clearly discloses
    considerable bias against the respondent. If it shocks our        E
    notions of judicial propriety and fair play, as indeed it does,
    it was bound to make a deeper impression on the mind
    of the respondent as to the unreality and futility of the
    proceedings conducted in this fashion. We find ourselves
    in agreement with the High Court that the rules of natural
                                                                      F
    justice were completely discarded and all canons of fair
    play were grievously violated by Shri. B.N. Bhalla
    continuing to preside over the trial. Decision arrived at by
    such process and order founded on such decision cannot
    possibly be regarded as valid or binding."
                                                                      G
    23. A similar view was taken by this Court in Rattan Lal
Sharma v. Managing Committee, Dr. Hari Ram (Co-
education) Higher Secondary School & Ors., AIR 1993 SC
2155, observing that a person cannot be a witness in the
enquiry as well as the inquiry officer.                               H
    468      SUPREME COURT REPORTS                (2010] 12 S.C.R.


A        24. The legal maxim "nemo debet esse judex in propria
    causa" (no man shall be a judge in his own cause) is required
    to be observed by all judicial and quasi-judicial authorities as
    non-obseNance thereof is treated as a violation of the principles
    of natural justice. (Vide Secretary to Government, Transport
B   Department v. Munuswamy Mudaliar & Anr., AIR 1988 SC
    2232; Meenglas Tea Estate v. The Workmen, AIR 1963 SC
    1719; and Mineral Development Ltd. v. The State of Bihar &
    Anr., AIR 1960 SC 468).

        25. This Court in AU. Kureshi v. High Court of Gujarat &
C Anr., (2009) 11 SCC 84, placed reliance upon the judgment in
  Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., (1985)
  4 sec 417' and held that no person should adjudicate a
  dispute which he or she has dealt with in any capacity. The
  failure to obseNe this principle creates an apprehension of bias
D on the part of the said person. Therefore, law requires that a
  person should not decide a case wherein he is interested. The
  question is not whether the person is actua'lly biased but
  whether the circumstances are such as to create a reasonable
  apprehension in the minds of others that there is a likelihood
E of bias affecting the decision.

         26. The existence of an element of bias renders the entire
    disciplinary proceedings void. Such a defect cannot be cured
    at the appellate stage even if the fairness of the appellate
F   authority is beyond dispute. (Vide: S. Parthasarthy v. State of
    Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand
    Magatram Obhan v. Kam/a Prasad Shukla & Ors., 1995
    Supp. (1) sec 21).

       27. In Arjun Chaubey v. Union of India & Ors., AIR 1984
G SC 1356, a Constitution Bench of this Court dealt with an
  identical case wherein an employee seNing in the Northern
  Railway had been dismissed by the Deputy Chief Commercial
  Superintendent on a charge of misconduct which concerned
  himself, after considering by himself, the explanation given by
H
 MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 469
           [DR. B.S. CHAUHAN, J.)

the employee against the charge and after thinking that the A
employee was not fit to be retained in service. It was also
considered whether in such a case, the court should deny the
relief to the employee, even if the court comes to the conclusion
that order of punishment stood vitiated on the ground that the
employee had been guilty of habitual acts of indiscipline/ B
misconduct. This Court held that the order of dismissal passed
against the employee stood vitiated as it was in utter disregard
of the principles of natural justice. The main thrust of the
charges against the employee related to his conduct qua the
disciplinary authority itself, therefore, it was not open to the       c
disciplinary authority to sit in judgment over the explanation
furnished by the employee and decide against the delinquent.
No person could be a judge in his own cause and no witness
could certify that his own testimony was true. Any one who had
a personal stake in an enquiry must have kept himself aloof D
from the enquiry. The court further held that in such a case it
could not be considere9 that the employee did not deserve any
relief from the court since he was habitually guilty of acts .
subversive of discipline. The illegality from which the order of
dismissal passed by the Authority concerned suffered was of
                                                                  E
a character so grave and fundamental thatthe alleged habitual
misbehaviour of the delinquent employee could not cure or
condone it.

     28. Thus, the legal position emerges that if a person
appears as a witness in disciplinary proceedings, he cannot            F
be 'an inquiry officer nor can he pass the order of punishment
as a disciplinary authority. This rule has beeri held to be sacred.
An apprehension of bias operates as a disqualification for a
person to act as adjudicator. No person can be a Judge in his
own cause and no witness can certify that his own testimony is         G
true. Any one who has personal interest in the disciplinary
proceedings must keep himself away from such proceedings.
The violation of the principles of natural justice renders the order
null and void.
                                                                       H
    470      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A      29. In the instant case, Shri Arvind Kumar Upadhyaya, IPS,
  Commandant, 30th PAC Battalion, Gonda, appeared as a
  witness and proved the disobedience of his orders of
  imposition of punishment, first as of punishment drill and
  subsequently of confinement to a cell. However, after appearing
B as a witness in the enquiry, he also passed the order of
  punishment, i.e., dismissal of the appellant from service on
  8.4.2003. This issue has been agitated by the appellant
  throughout but none of the authorities or the courts below had
  taken it into consideration. Appellan, has made crystal clear
c pleadings before this Court also in this regard and the same
  have not been denied in the counter affidavit by the
  respondents, rather a very vague and evasive reply has been
  filed stating that the disciplinary proceedings had been
  concluded strictly in accordance with law.
D      30. An order in violation of the principles of natural justice
  may be void depending on the facts and circumstances of the
  case. (Vide Raja Ja"gdambi~a Pratap Narain Singh v. Central"
  Board of Direct Taxes & Ors., AIR 1975 SC 1816; Smt.
  Maneka Gandhi v. Union of India & Anr., AIR 1978 SC 597;
E Krishan Lal v. State of J & K, (1994) 4 SCC 422; State Bank
  of Patiala & Ors. v. S.K. Sharma, AIR 1996 SC 1669; Union
  of India & Anr. v. Mis. Mustafa & Najibai Trading Co. & Ors.,
  AIR 1998 SC 2526; and Vishnu Dutt & Ors. v. State of
  Rajasthan & Ors., (2005) 13 SCC 592).
F
       31. In case the very first order of imposition of punishment
  for remaining absent from duty for 25 minutes was bad in law,
  the appellant's protest against the said punishment could not
  be said to be unjustified. In Nawabkhan v. State of Gujarat, AIR
G 1974 SC 1471, this Court dealt with the issue and held as
  under:

          "In the present case, a fundamental right of the petitioner
          has been encroached upon by the police commissioner
          without due hearing so the Court quashed it - not killed
H         it then but performed the formal obsequies of the order
 MOHD. YUNUS KHAN v. STATE OF U.P: AND ORS.                   471
           [DR. B.S. CHAUHAN, J.]
     which had died at birth. The legal result is that the            A
     accused was never guilty of flouting an order which never
     legally existed." (Emphasis added)

     32. We are of the considered opinion that the initiation of
disciplinary proceedings against the appellant and the
                                                                 B
conclusion thereof by the imposition of the punishment by the
Commandant, who had himself been a witness, was in flagrant
violation of the principles of natural justice and thus, stood
vitiated. "Principles of natural justice are to some minds
burdensome but this price-a small price indeed-has to be paid C
if we desire a society governed by the rule of law." All other
consequential orders passed in appeal etc. remained
inconsequential. More so, a protest/disobedience against an
illegal order may not be termed as misconduct in every case ..
In an appropriate case, it may be termed as revolting to one's
sense of justice. In view of the above, we are of the considered D
opinion that the protest raised by the appellant against the
punishment imposed for his absence· could not give rise to a
cause of action for initiating the disciplinary proceedings.

     33. The courts below and the statutory authorities failed to     E
appreciate that if the disciplinary authority wants to consider the
past conduct of the employee in imposing a punishment, the
delinquent is entitled to notice thereof and generally the charge-
sheet should contain such an article or at least he should be
informed of the same at the stage of the show cause notice,           F
before imposing the punishment.

      34. This Court in Union of India & Ors. v. Bishamber Das
Dogra, (2009) 13 sec 102, considered the earlier judgments
of this Court in State of Assam v. Bimal Kumar Pandit, AIR
1963 SC 1612; India Marine Service (P) Ltd. v ... Their               G
Workmen, AIR 1963 SC 528; State of Mysore v. K. Manche
Gowda, AIR 1964 SC 506; Colour-Chem Ltd. v. A.L.
Alaspurkar & Ors., AIR 1998 SC 948; Director General, RPF
v.· Ch. Sai Babu, (2003) 4 SCC 331, Bharat Forge Co. Ltd. v.
Uttam Manohar Nakate, (2005) 2 SCC 489; and Govt. of A.P.             H
    472       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A & Ors. v. Mohd. Taher Ali, (2007) 8 SCC 656 and came to
  the conclusion that it is desirable that the delinquent employee
  be informed by the disciplinary authority that his past conduct
  could be taken into consideration while imposing the
  punishment. However, in case of misconduct of a grave nature,
B even in the absence of statutory rules, the Authority may take
  into consideration the indisputable past conduct/service record
  of the delinquent for "adding the weight to the decision of
  imposing the punishment if the fact of the case so required."

C       35. The appellant joined the service on 10.2.1969 and his
    services stood terminated vide order dated 8.4.2003.
    Therefore, the benefit of service rendered by the appellant for
    more than 34 years stood forfeited. At the time of his removal
    from service, the appellant was 54 years of age. Thus, he had
    been visited with serious punishment on the verge of retirement.
D
        36. In view of the above, we reach the following inescapable
    conclusions:-

          I. Absence of appellant from ·duty as Guard Commander
          for 25 minutes was bona fide and permissible under the
E
          statutory rules.

          II. Imposition of punishment of punishment drill for 10 days
          for the said absence was unwarranted.

F         Ill. Protest by the appellant against the imposition of the
          said punishment could not warrant enhancement of
          punishment of the appellant for confinement in cell for ten
          days.

          IV. Disobedience of the enhanced punishment could not,
G         in this case, warrant initiation of disciplinary proceedings
          by the Commandant concerned against the appellant.

          V. The Commandant could not himself become the Judge
          of his own cause.
H
MOHD. YUNUS KHAN v. STATE OF U.P. AND ORS. 473
          [DR. B.S. CHAUHAN, J.]

  VI. The Commandant could not appoint his own                     A
  subordinate as the inquiry officer.

  VII. The Commandant could have referred the matter to his
  superior officer for appropriate action in terms of Rules
  1991.                                                            B
  VIII. Once the Commandant concerned appeared as a
  witness himself in the enquiry, he could not pass the order
  of punishment.

  IX. The Authority who initiated the disciplinary proceedings     C
  against the appellant became a witness before the inquiry
  officer appointed by him, who is subordinate to him in his
  office and also accepted the enquiry report and passed
  the order of punishment. Thus, the order of punishment
  stood vitiated.                                                  D

  X. The Appellate Authority could not consider the past
  conduct of the appellant to justify the order of punishment
  passed by the disciplinary authority without bringing it to
  the notice of the appellant.
                                                                   E
  XI. As the punishment order had been passed in violation
  of the statutory rules and the principles of natural justice
  as well, it is rendered null and void. Thus, it remained
  inexecutable.
                                                                   F
  XII. Past conduct of an employee should not generally be
  taken into account to substantiate the quantum of
  punishment without bringing it to the notice of the
  delinquent employee.

  XIII. The error of violating the principles of natural justice   G
  by the Disciplinary Authority has been of such a grave
  nature that under no circumstance can the past conduct of
  the appellant, even if not satisfactory, be taken into
  consideration.
                                                                   H
                                                                       ..
    474      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A      37. In view of the above, we are of the considered opinion
  that the present case is squarely covered by the decision of
  the Constitution Bench in Arjun Chaubey (supra). The order of
  punishment is null and void and therefore, cannot be given
  effect to. The appeal deserves to be allowed. The appellant had
B already reached the age of superannuation and no fresh enquiry
  can be initiated in the matter if the earlier proceedings are
  rendered null and void for the violation of the statutory provisions
  and principles of natural justice. In the facts .and circumstances
  of the case and in order to meet the ends of justice, it is
c desirable that the appellant be paid 50% of the wages from the
  date. of removal 'from service till the date of reaching the age
  of superannuation and he be granted retiral benefits in
  ,accordance with law from the date of his retirement.

       In view of the above, appeal stands disposed of. No order
D as to costs.

    B.B.B.                                     Appeal disposed of.