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23.04.2016 at Annexures-10, 11 and 16, respectively on the ground that the said orders are illegal, arbitrary, and contrary to law.
Lastly, the petitioner has prayed for reinstatement to the post held by him prior to his dismissal and for grant of full back wages and other benefits due and admissible from the date of suspension, i.e., 20.11.2007, within a reasonable time.
For convenience of reference, the relief sought for is extracted hereunder;
“It is, therefore, prayed that this Hon'ble Court may graciously be pleased to: i) Admit the writ application; ii) Call for the records; iii) Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned order of dismissal passed by the disciplinary authority as well as the orders passed by the appellate authority dtd.01.11.2011, 12.12.2011 and 23.04.2016 under Annexure-10, 11 & 16 respectively shall not be quashed, declaring the same as illegal, arbitrary and inoperative in the eye of law; If the Opposite Parties fail to show cause within a reasonable time or show insufficient cause, or false clause, the rule may be made absolute. iv) That the law is well settled that when a statute provides for an appeal, the Appellate Authority is duty bound to pass an order either accepting or rejecting the contentions raised in the appeal memo, so that it can be scrutinised in the Higher Forum. But in the present case, the Appellate Authority has not negatived the contentions raised in the appeal memo and grievances in several applications thereof, rather admitted the contentions raised with regard to deposit of the misappropriated amount. Therefore, the order of the Appellate Authority is a cryptic one and has been passed without proper application of mind and hence needs to be scrutinized by this Hon'ble Court for imparting substantial justice to the Petitioner.
v)Issue a writ in the nature of Mandamus or any other appropriate writ/writs, order/orders, direction/directions directing the opposite parties to reinstate the present petitioner in service as he was holding prior to his dismissal, i.e., the post of Lineman-A, and the petitioner be extended with all the consequential service benefits including full back wages and other benefits as is due and admissible from the date of his suspension, i.e., 20.11.2007, within a reasonable time to be stipulated by this Hon'ble Court;
And/or pass such other order/orders, direction/directions as this Hon'ble Court may think fit and proper for the ends of justice; xxx xxx xxx”
The relevant facts, which are germane for adjudication of the present writ petition, are that the petitioner was initially appointed as a Helper under the erstwhile CESCO on 06.07.1988, where he was entrusted with the duties of an Operator, besides maintenance and repair of the Sub-Station and attending emergency breakdown works under the supervision of the concerned Junior Engineer, S.D.O. and Assistant Manager.
2-A. In due course he was promoted to the rank of Lineman-C (w.e.f. 01.09.1988), Lineman-B (as per Order dtd. 31.07.2001) and finally promoted as Lineman-A in terms of the Office Order Dtd. 21.08.2007.
2-B. While working as Lineman-A, the petitioner was placed under suspension vide order dated 01.11.2011 and two separate departmental proceedings came to be initiated against him by memoranda dated 28.12.2007 and 14.03.2008, respectively. Upon conclusion of the disciplinary proceedings, the Disciplinary Authority passed the order of dismissal dated 12.12.2011 vide Annexure-11.
The petitioner impugns the order of suspension, the order of dismissal and the order of the Appellate Authority rejecting the appeal, mainly on the following grounds, amongst others;
3-A. Although the petitioner submitted a protest letter against the said suspension order dated 20.11.2007 on the ground that it did not disclose any allegation or complaint made by any authority, no decision relating to his grievance was ever communicated to him.
3-B. On the contrary, the petitioner received a copy of the memorandum of charge in a departmental proceeding initiated vide No. 9388 dated 28.12.2007 and another memorandum of charge issued by Opposite Party No. 2 vide Memorandum No. 1550 dated 14.03.2008, which he received on 04.01.2008 and 30.03.2008 respectively.
3-C. Since, as per the petitioner, relevant documents were incomplete, he submitted a representation for supplying such documents. But, no action was taken to provide the documents.
Thereafter, the petitioner submitted his statement of defence and as no decision was taken, he approached this Court in W.P.(C) No. 7735 of 2011, which was disposed of on 11.04.2011 by directing the Opposite Parties to conclude the departmental proceeding as early as possible, preferably within four months, and also to take a decision regarding reinstatement within a period of one month.
The Opposite Party No. 2, acting as the Disciplinary Authority, appointed the Enquiry Officer vide Office Order No. 3417 dated 04.05.2011, before whom the petitioner appeared and sought supply of the documents. Thereafter, the Enquiry Officer directed the Presenting/Marshalling Officer to produce a list of documents/records.
The Petitioner participated in the departmental enquiry and, on 17.06.2011, submitted his written statement along with the supporting documents. He further requested the Enquiry Officer to give him an opportunity to read the order-sheet and to provide a copy thereof. However, the Enquiry Officer refused to provide the same.
The enquiry report was prepared and the same was submitted on 23.07.2011. According to the petitioner, such enquiry is perverse, as the Enquiry Officer has not acted as a neutral officer, rather, he has completed the enquiry with a prejudged mind and in a biased manner, being influenced by the Disciplinary Authority.
Admittedly, the petitioner was provided the copy of the enquiry report along with the show-cause notice. However, due to personal difficulties and circumstances beyond his control, he was unable to prepare and submit his statement of defence in response to the show-cause notice and, therefore, sought further time from the authorities. However, the said request was not considered.
Rather, on 25.08.2011, the petitioner was communicated the final order of punishment, i.e., dismissal from service, as per Office Order dated 25.08.2011, vide Annexure-9.
Being aggrieved by the same, the petitioner approached this Court in W.P.(C) No. 23934 of 2011. This Court, by order dated 13.09.2011, while quashing the order of dismissal, granted liberty to the present petitioner to file his reply to the show-cause notice on or before 21.09.2011.
Relevant extract of the said Order is quoted hereunder;
“xxx xxx xxx We, accordingly quash Annexure-5 and direct the petitioner to submit his reply on or before 21st September, 2011 and on receipt of the reply, the disciplinary authority may pass an order afresh. If the petitioner fails to submit his reply by 21st September, 2011, it will be open for the disciplinary authority to pass the order in absence of any reply. xxx xxx xxx”
Pursuant to such liberty, the petitioner filed his reply to the show-cause notice raising as many as 17 grounds, enclosing all supporting documents to justify his defence, with a prayer to reinstate him by quashing the proposed order of dismissal and to treat the suspension period as duty.
It is alleged by the petitioner that without considering the grounds raised by him in his reply to the show-cause notice, the Disciplinary Authority once again issued an Office Order of dismissal on 12.12.2011(Annexure-11) without giving any reasonable opportunity of personal hearing to the petitioner, as prayed by him, and without disputing and negating the grounds, as raised by the Petitioners in his reply to the show cause notice.
It is the case of the petitioner that the same was in clear violation of the guidelines of the Certified Standing Order and the rules of law, apart from being in gross violation of the principles of natural justice.
Being aggrieved, the petitioner approached this Court by filing W.P.(C) No. 32322 of 2011. The said writ petition was disposed of by judgment dated 04.09.2014, granting liberty to the present petitioner to approach the Appellate Authority. Direction was also issued to the Appellate Authority of CESU to consider the appeal, if any, at the instance of the petitioner, in accordance with law.
Relevant extract of the said Judgment is quoted hereunder;
“xxx xxx xxx
16.Under the circumstances, while holding the writ petition as maintainable against the CESU, instead of interfering in the order of punishment of dismissal from service passed against the petitioner at this stage and in view of my finding in the previous paragraph, I leave it open to the petitioner to approach the Appellate Authority by way of appeal. I further direct the petitioner to file an appeal before the Appellate Authority within a period of three weeks from the date of this judgment and further direct the Appellate Authority of the CESU to consider the appeal, if any, at the instance of the petitioner in accordance with law without entering into the aspect of delay, as he was under a bona fide impression in moving this Court in the present writ.
xxx xxx xxx” A review petition was filed vide RVWPET No.
167 of 2014, which was disposed of by order dated 08.05.2015, directing the Appellate Authority that the appeal shall be decided on its own merit and without being influenced by the observations made in the judgment dated 04.09.2014.
Pursuant to the liberty so granted, the petitioner preferred an appeal before the Appellate Authority on 28.05.2015, assailing the order of suspension as well as the order of dismissal passed by the Disciplinary Authority. In the said appeal, The petitioner urged all available grounds in support of his contention that the said orders were liable to be set aside.
However, it is alleged that the Appellate Authority, in violation of the principles of natural justice, rejected the appeal vide order dated 23.04.2016 vide Annexure-16, glossing over the objection raised by the petitioner regarding the propriety of the Appellate Authority, as he, admittedly, exercised his power in issuing the final order of punishment as the Disciplinary Authority.
By filing a counter affidavit, the opposite parties have contested the claim of the petitioner and justified not only the necessity to place the petitioner under suspension but also the reason behind framing two departmental proceedings against him, one on 28.12.2007 and the other on 14.03.2008.
It is further contended that the former proceeding deals with the charges of temporary misappropriation of CESU revenue, doubtful integrity, willful action causing loss to CESU revenue and misconduct, while the latter charge dated 14.03.2008 deals with misappropriation of CESU revenue, doubtful integrity, wilful deliberate action resulting in loss to CESU revenue, tampering of official records with mala fide intention.
The opposite parties have also justified in their counter affidavit that there is no procedural irregularity in concluding the departmental proceeding and that there is no reason for any judicial interference with the decision taken by the Disciplinary Authority.
Additionally, the opposite parties have justified the action of the Appellate Authority by specifically quoting the observations of the Appellate Authority, which, according to them, establish due application of mind by the Appellate Authority.
So far as the allegation of the petitioner that the appeal was considered by the very same person who had exercised the powers of the Disciplinary
Authority is concerned, the opposite parties have evasively clarified that the Appellate Authority as well as the Disciplinary Authority are authorities specifically designated under the statute governing disciplinary proceedings against the employees of CESU.
19-A. As the incumbent holding the post designated as the Appellate Authority has decided the matter, it has to be presumed that he has decided the matter without any bias and without treating himself as the Disciplinary Authority, although admittedly he has functioned as the Disciplinary Authority while passing the order of dismissal assailed in the appeal.
The opposite parties have also relied upon the “doctrine of necessity”.
Learned counsel for the Opposite Parties has submitted that the action of the Disciplinary Authority in imposing the penalty of dismissal from service has also been stated to be a “proportionate” penalty looking into the gravity of the charges, and there is no reason to interfere with the order of punishment as well as the order passed by the Appellate Authority.
It is also submitted that the petitioner had previously approached this Court time and again at different stages of the proceeding, and the authorities, being duty-bound, have always complied with the orders of this Court in letter and spirit after giving sufficient opportunity to the petitioner to defend his case and to justify his innocence.
However, the petitioner was not able to substantiate his innocence.
Considering the rival submissions advanced by learned counsel for the parties and upon perusal of the materials available on record, this Court finds that the posts of the Disciplinary Authority and the Appellate Authority are distinct and that the Appellate Authority occupies a higher position than the Disciplinary Authority. The very object of providing a forum of appeal is to enable the Appellate Authority to independently reappreciate the entire matter, both on facts and in law, including the evidence adduced during the disciplinary proceeding and, where warranted, to interfere with the quantum of punishment imposed.
In such circumstances, it is neither desirable nor permissible that the very same person who had acted as the Disciplinary Authority should thereafter act as the Appellate Authority merely by virtue of his promotion to a higher post. In the present case, however, the same individual discharged a dual role of adjudication by functioning as the Disciplinary Authority at one stage and subsequently as the Appellate Authority upon his promotion to the higher post.
In such circumstances, this Court is of the considered view that a reasonable apprehension of bias cannot be ruled out, as the Appellate Authority, while deciding the appeal, was in effect called upon to examine the correctness of an order passed by himself in his earlier capacity as the Disciplinary Authority. Such a course is unfathomable.
The Apex Court, in Amar Nath Chowdhury v. Braithwaite and Company Ltd. & Ors.1, while considering the issue as to whether an authority could sit in appeal over an order passed by itself in the capacity of the Disciplinary Authority, held as follows:
“xxx xxx xxx
6.One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as nemo debet esse judex in propria causa, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kinds and forms. It may be pecuniary, personal or there may be bias as to the subject-matter etc. In the present case, we are not concerned with any of the aforesaid forms of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of disciplinary
authority. In Financial Commr. (Taxation) Punjab v. Harbhajan Singh [(1996) 9 SCC 281] it was held that the Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subject-matter of appeal before the Board was whether the order of removal passed by the disciplinary authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a disciplinary authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule
against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an
appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant.
xxx xxx xxx”
(Emphasized)
Relying on the aforesaid principle, this Court is of the considered view that the Disciplinary Authority and the Appellate Authority cannot ordinarily be the same person. The said principle is founded on the well-settled rule of natural justice embodied in the maxim nemo judex in causa sua, namely, that no person shall be a judge in his own cause. Having the same person act in both capacities would violate the right to a fair hearing and create a conflict of interest, as the appellate authority would be reviewing their own prior decision. A person who has already taken a decision as the disciplinary authority is likely to be biased in favor of their original conclusion when acting as the appellate authority.
This negates the purpose of the appeal process, which is to provide an impartial re-examination of the initial order. The right to appeal is a fundamental safeguard in disciplinary proceedings. It ensures that an employee has an avenue to challenge a potentially incorrect or unfair penalty. This right is meaningless if the same person who imposed the penalty is also the one who hears the appeal.
On an analysis of the facts of the present case in the light of the aforesaid decision, this Court is of the considered view that the appellate order is vitiated on the ground of bias.
The Appellate Authority, having earlier exercised the powers of the Disciplinary Authority in the same proceeding, ought not to have considered the appeal against his own decision.
As it is trite that the best course open for the court in a certiorari proceeding on finding the procedural defects in the disciplinary proceeding case and violation of principle of natural justice to remit it to the competent authority and to the stage where such irregularity crept into the proceeding.
In the facts of the present case, this court finds it appropriate to quash order dated 23.04.2016 vide Annexure-16 dismissing the appeal on the grounds stated above and remit the matter to the appellate authority, who is stated to be different from the one who exercised his power as the disciplinary authority for de novo consideration. The Appellate Authority shall hear the appeal and pass a reasoned order after giving the Petitioner an opportunity of hearing within a period of two months from the date of production/communication of this judgment.
The decision so taken shall be communicated to the petitioner. Consequently, the order of dismissal passed by the disciplinary authority dated 12.12.2011 vide Annexure-11 shall be subject to the orders passed by the Appellate Authority afresh, in terms of this Judgment.
The writ petition is accordingly disposed of subject to the aforementioned direction(s) relating to disposal of the appeal. Costs made easy.
Footnotes
- 1.Amar Nath Chowdhury v. Braithwaite and Company Ltd., AIR 2002 SC 678.