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TMI Blog2008 (5) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords of the disciplinary proceeding were placed before the Board of Directors of the Corporation. By an order dated 9th June, 1998 a penalty of dismissal from services was imposed upon her. Appellant preferred an appeal thereagainst before the Board itself on or about 4th December, 1998. The said appeal was treated to be a petition for review which by reason of an order dated 2nd March, 1999 was dismissed. Aggrieved by and dissatisfied therewith, the appellant filed a writ petition before the High Court of Karnataka at Bangalore. By reason of a judgment and order dated 23rd June, 2005 a learned Single Judge of the said Court dismissed the writ petition. An intra court appeal was preferred thereagainst which has been dismissed by a Division Bench of the said High Court by reason of the impugned judgment and order dated 22nd February, 2006. 3. Mr. Basava Prabhu S. Patil, learned counsel appearing on behalf of the appellant, principally raised two contentions before us :- i) Having regard to clause (3) of Regulation 41 of Karnataka State Financial Corporation (Staff) Regulations, 1965 a Legal Advisor could not have been appointed as an Enquiry Officer; and ii) In the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no such order of the disciplinary authority shall be passed without the charge or charges being formulated in writing and given to the said employees so that he shall have reasonable opportunity to answer them in writing or in person, as he prefers, and in the latter case his defence shall be taken down in writing and read to him. For this purpose the disciplinary authorities will be as indicated at Appendix III of the (Staff) Regulations, 1965 of KSFC. Provided that the requirements of this sub- regulation may be waived if the facts on the basis of which action is to be taken have been established in a Court of Law or Court Martial or where the employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without causing injustice to the employee in every case, where all or any of the requirements of this sub-regulation are waived, the reasons therefor shall be recorded in writing. (3) The enquiry under this sub-regulation and the procedure with the exception of the final order may be delegated to an officer of the Corporation of a rank above that of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, although it was aware of the defect in the award of the umpire, at no stage made out any case of bias against the umpire. We, therefore, find that the appellant cannot be permitted to raise the question of bias for the first time before this Court. 11. There are questions and questions in regard to the jurisdictional issues. An authority may lack inherent jurisdiction in which case the order passed would be a nullity but he may commit a jurisdictional error while exercising jurisdiction. The legal rights conferred upon the employees in this behalf may be different under different statutes. A legal admission under the common law is not debarred for acting as an enquiry officer. Even in relation to applicability of the principles of natural justice, breaches whereof would ordinarily render the decision nullity, the courts have been applying the prejudice doctrine to uphold the validity thereof. We are, however, not unmindful of the legal principle laid down in Vitarelli vs. Seaton : (1959) 359 US 535 which has been noticed in Ramana Dayaram Shetty vs. International Airport Authority : (1979) 3 SCC 489 stating :- 10. Now, there can be no doubt that what para (1) of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case of disciplinary enquiry allowed the plea of incompetence on the part of the disciplinary authority to be raised for the first time before the High Court, stating :- 9. Lastly, Shri Shetye submitted that in any event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the contention belatedly raised before the High Court for the first time and, therefore, the High Court was in error in directing payment of all consequential benefits. We think there is merit in this contention. If the objection was raised at the earliest possible opportunity before the Enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to enquire into the charges before the respondent's retirement from service. It is equally true that the penalty has not been quashed on merits. On the contrary, if one were to go by the charge levelled against the respondent and the reply thereto one may carry the impression that the respondent had made the claim on the basis of the fake receipt; whether the respondent himself was duped or not would be a different matter. The fact, however, remains that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied as (3), (4), (5) and (6). The only point made is that whatever is done under Article 309 must be subject to the pleasure prescribed by Article 310. In Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co- education) Higher Secondary School : (1993) 4 SCC 10 it was held : 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 proceeding 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 only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved. The said decisions, to our mind, are not applicable to the fact of the present case. 15. Appellant himself has quoted the said Regulation which was corrected merely upto 31st October, 1991. On the other hand, Ms. Suri has produced the Regulation which is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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