Madras High Court
J.V.Vasantha Kumar vs Puduvai Bharathiar Grama Bank on 30 August, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.865 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.08.2022
Coram
The Honourable Mr.Justice J.SATHYA NARAYANA PRASAD
W.P.No.865 of 2013
J.V.Vasantha Kumar
...Petitioner
Versus
1.Puduvai Bharathiar Grama Bank,
Rep. by its Board of Directors / Appellate Authority,
Head Office 441, M.G.Road, Muthialpet,
Puducherry – 605 003.
2.Puduvai Bharathiar Grama Bank,
Rep. by its Chairman / Disciplinary Authority,
Head Office, 441, M.G.Road, Muthialpet,
Puducherry – 605 003.
...Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus after calling for
the records from the first respondent Ref.No.Nil dated 05.11.2012 together
with the order of the second respondent Ref.No.Nil dated 10.05.2012 quash
the said orders and consequently, direct the first and second respondents to
reinstate the petitioner in service with effect from 10.05.2012, with
backwages continuity of service, consequential and other attendant benefits.
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W.P.No.865 of 2013
For Petitioner : Mr.K.M.Ramesh
For Respondents : Mrs.Rita Chandrasekar
for M/s.Aiyar & Dolia
ORDER
The relief sought in this writ petition is to call for the records from the first respondent Ref.No.Nil dated 05.11.2012 together with the order of the second respondent Ref.No.Nil dated 10.05.2012 and quash the said orders and consequently, direct them to reinstate the petitioner in service with effect from 10.05.2012, with backwages continuity of service, consequential and other attendant benefits.
2. The case of the petitioner is that on 17.08.2011, he joined in the second respondent Bank as a probationer in the post of Assistant Manager and he was discharging his duties without any complaints. While so, the second respondent has issued a charge sheet dated 21.11.2011 to the petitioner, stating the following six charges:
“1. That you had been advised through the Branch Manager ECR Branch to attend a review meeting on 07.09.2011 evening, which was fixed as per the convenience of the Branch Manager. But 2/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 only Mr.T.Karunahara Rajah, Branch Manager attended the meeting and informed us that you would also join the meeting shortly. You had neither turned up for the meeting nor informed us about your inability to attend the meeting. Your above acts of disobeying orders and directions, which may be issued from time to time by superiors, controlling authorities, if proved would constitute a misconduct as per Regulation 18 of the Puduvai Bharathiar Grama Bank (Officers and Employees) Service Regulations, 2010.
2. That when you were contacted by the Chairman over phone to ascertain the reason for not attending the meeting on 07.09.2011, you had informed that you did not know Head Office telephone numbers or that of any staff of Head Office including that of the Chairman and hence, no information could be given to Head Office. You had also asked the Chairman to visit East Coast Road Branch and to see how you were working in the Branch and you had failed to extend basic courtesy to the Chairman during the telephonic conversation held on 07.09.2011. During the entire course of conversation with the Chairman, you were very rude and discourteous. Your rude and discourteous behavior towards the superiors, which you have admitted in your letter dated 12.10.2011 amounts to breach of discipline which would constitute a misconduct under Regulation 39 of the said Regulations.
3. That you were advised by the Chairman over phone on 09.09.2011 to attend the review meeting on 10.09.2011 along with your Branch Manager but you had failed to attend the meeting. Your act, if proved will constitute a misconduct under Regulation 18 of the said Regulations.
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4. That you had abstained from duty on 10.09.2011 without taking proper sanction/permission for leave from the competent authority and without submitting leave application to the competent authority through proper channel. You unauthorized absence from duty without having obtained the permission. Your unauthorized absence from duty without having obtained the permission from the competent authority, if proved, would constitute a misconduct under Regulations 23 of the said service regulations.
5. That you had left the branch during the office hours and visited Head Office by 11.00 A.M on 17.09.2011 and met the Chairman. When you were asked to clarify how you left the branch during the office hours without permission, you had informed that you had been instructed by the Branch Manager to go for deposit canvassing to the Puducherry University and meet others. You had not taken permission from Branch Management to visit Head Office during office hours on permission from Branch Management to visit Head Office during office hours on 17.09.2011. You had not reported to the Branch Manager on the persons met by you during the time and their response. Your above act of absenting from the branch without obtaining permission of the Competent Authority, if proved would constitute a misconduct under Regulation 23 of the Puduvai Bharathiar Grama Bank (Officers & Employees) Service Regulations, 2010.
6. That on 17.09.2011 at around 11.00 A.M when you visited the Chairman of the Bank at his chambers you had misbehaved rudely and said that the Chairman should only offer an explanation to you and told the Chairman in threatening tone 'Don't disturb me'. 4/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 Your rude and discourteous behavior, if proved, would constitute a misconduct under Regulation of 39 of the said Puduvai Bharathiar Grama Bank (Officers & Employees) Service Regulations, 2010.” 2.1. In response to the said charge sheet, the petitioner sent his reply dated 16.12.2011 to the second respondent/Chairman of the Bank. After the receipt of his reply, the second respondent/Chairman of the Bank vide letter dated 19.12.2011, called upon the petitioner to appear for inquiry, as and when called for. Subsequently, on 07.02.2012, an inquiry was conducted. After the completion of said inquiry proceedings, the Inquiry Authority submitted his findings dated 27.02.2012 to the second respondent/Chairman of the Bank, in which, it is stated that the Charges 1, 2, 3, 4 & 6 framed against the petitioner were proved and the Charge 5 was partially proved. On the basis of the findings of the Inquiry Authority, the second respondent/Chairman of the Bank vide order dated 10.05.2012, removed the petitioner from service. The operative portion of the said order dated 10.05.2012 is extracted hereunder:
“The charges 1, 2, 3, 4 & 6 have been fully proved. I therefore impose the following penalties on Mr.J.V.Vasanthakumar, Assistant Manager on probation with immediate effect in exercise of the powers vested with Disciplinary authority as per sub regulation 5/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 1, regulation 39 of Puduvai Bharathiar Grama Bank (Officers & Employees) Service Regulations, 2010.
Regarding charge No.1, I impose a major penalty of removal of the CSO from the services of the Bank.
Regarding charge no.2, I impose a minor penalty of censure Regarding charges 3 & 4 which are clubbed as a single charge, I impose major penalty of removal of the CSO from the services of the Bank.
Regarding charge no.5, it is held the charge framed under regulation 23 of Puduvai Bharathiar Grama Bank (Officers & Employees) Service Regulations, 2010 is not proved.
Regarding charge no.6, I impose a major penalty of removal of the CSO from the services of the Bank.
All penalties will run concurrently.” 2.2. Aggrieved over the order of dismissal issued by the second respondent/Chairman of the Bank, the petitioner has preferred an Appeal before the Board of Directors, Puduvai Bharathiar Grama Bank, however, the same came to be dismissed on 05.11.2012. Hence, left with no other alternative, the petitioner has filed the present writ petition before this Court, for the relief stated supra.6/32
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3. The learned counsel for the petitioner submitted that the charges which were levelled against the petitioner are minor in nature. According to the petitioner, since there was a problem in his vehicle, he could not attend the Review Meeting which was held on 07.09.2011. As far as Review Meeting which was convened by the Bank on 10.09.2011 is concerned, the petitioner had already communicated to the management that he is going on leave from 10.09.2011, which was admitted by one Mr.Karunahara Rajah, witness examined on behalf of the Bank, during the departmental inquiry. The said witness has also accepted that he has received the keys of the Branch from the petitioner on 09.09.201 since the petitioner is going on leave from 10.09.2011. Apart from that, the petitioner gave a detailed explanation for not attending Review Meeting on 10.09.2011.
3.1. The learned counsel further submitted that suspension pending inquiry is prerequisite for major misconducts only and the same is not prerequisite for minor misconducts. In this case, the respondent Bank did not suspend the petitioner pending inquiry, which itself shows that the charges which were framed against the petitioner are minor in nature and not major. The punishment of removal of service imposed on the petitioner 7/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 for the minor charges levelled against him is against the principles of natural justice.
3.2. He also submitted that as per the Service Regulations of the respondent Bank, inquiry is not necessary for a probationer, however, departmental inquiry was conducted. A departmental inquiry should have been conducted in a fair and proper manner, but, here, the respondent Bank has conducted a flimsy and biased inquiry without affording an opportunity to the petitioner to put forth his case.
3.3. Further, the learned counsel drew the attention of this Court to the Regulation Nos.8, 18, 23, 39 & 55 of the respondent Bank, wherein, it is stated as follows:
“8. Probation - (1) An Officer directly appointed in Group 'A' Post shall be on probation for a period of two years, which may be extended by the Appointing Authority for a period not exceeding one year.
18. Liability to abide by the regulations and orders. - Every officer or employee shall conform to and abide by these regulations and shall also observe, comply with and obey all orders and directions which may, from time to time be given to him by any 8/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 person or persons under whose jurisdiction, superintendence or control he may for the time being be posted.
23. Officer or employee not be absent from duty without permission or be late in attendance, - (1) An officer or employee shall not absent himself from his duties without having obtained the permission of the Competent Authority, nor shall be absent himself in case of sickness or accident without submitting a proper medical certificate from a medical practitioner acceptable to the Bank.
39. Penalties – Without prejudice to the foregoing regulations of this Chapter, an officer or employee who commits a breach of these regulations or who displays negligence, inefficiency or indolence or who commits acts detrimental to the interests of the Bank or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other acts of misconduct, shall be liable for any one or more penalties as follows, namely, -
1. Officers:
(a) Minor Penalties
(i) censure;
(ii) withholding or stoppage of increments of pay without cumulative effect;
(iii) withholding of promotion;
(iv) recovery from emoluments or such other amounts as may be due to him, of the whole or part or any pecuniary loss caused to the Bank by negligence or breach of orders;
(v) reduction to a lower stage in time scale of pay for a period not exceeding two years without cumulative effect;
(b) Major Penalties:9/32
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(i) save as provided in item (v) of clause (a) of sub-regulation (1) of regulation 39, reduction to a lower stage in time scale of pay for a specified period with further directions as to whether or not the officer shall earn increments of pay during the period of such reduction and whether on expiry of such period the reduction shall or shall not have the effect of postponing the future increments of his pay;
(ii) reduction to a lower grade or post;
(iii) compulsory retirement;
(iv) removal from service which shall not be a disqualification for future employment;
(v) dismissal which shall ordinarily be a disqualification for future employment.
55. Kinds of leave – Subject to the provisions of these regulations, an officer or employee may be eligible for the following kinds of leave, namely, -
(a) Casual Leave,
(b) Privilege Leave,
(c) Sick Leave,
(d) Extra – ordinary Leave,
(e) Special Casual Leave and Special Leave,
(f) Maternity Leave,
(g) Paternity Leave.” 3.4. The learned counsel submitted that though the petitioner had excellent service records, he was removed from service. If it is true that the 10/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 petitioner has behaved rudely and impolitely with the second respondent/Chairman of the Bank, the second respondent/Chairman of the Bank ought to have appeared as witness in the inquiry, but, the second respondent/Chairman of the Bank had not even participated in the inquiry.
The inquiry findings were against the petitioner because the said inquiry was conducted by the General Manager of the Head Office who is none other than subordinate to the second respondent/Chairman of the Bank/Disciplinary Authority.
3.5. The learned counsel for the petitioner submitted that nemo debet esse judex in propria causa is a legal maxim which means no one ought to be a Judge in his own cause. But, in the present case, this principle has been violated. This is one of the principles of natural justice. Justice can never be seen if a man acts as a judge in his cause or is himself interested in the outcome. It is an admitted fact that the second respondent/Chairman of the Bank is the complainant, however, he has acted as Disciplinary Authority as well as Appellate Authority in this case, which clearly shows how the petitioner was victimized for the ego of an individual. The second respondent/Chairman of the Bank is one of the members in the Board of 11/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 Directors who dismissed the appeal preferred by the petitioner. So, the Board of Directors has concurred with the order issued by the second respondent/Chairman of the Bank. The dismissal order issued by the second respondent/Chairman of the Bank as well as the order passed by the Appellate Authority are liable to be quashed since the same are improper, illegal and against the principle of natural justice.
3.6. In support of his contentions, the learned counsel for the petitioner has relied on the following decisions of the Honourable Apex Court:
(i) Union of India and Ors. vs. Sanjay Jethi and Anr. reported in (2013) 16 SCC 116
(ii) Union of India and Ors. vs. B.N.Jha reported in (2003) 4 SCC 531
(iii) State of Uttaranchal and Ors. vs. Kharak Singh reported in (2008) 8 SCC 236
(iv) Rattan Lal Sharma vs. Managing Committee, Dr.Hari Ram (Co-Education) Higher Secondary School and Ors. reported in (1993) 4 SCC 10 12/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013
4. The learned counsel appearing for the respondents drew the attention of this Court to the counter affidavit filed by the respondents, in which, it is stated as follows:
(i) Suspension is not a prerequisite for all disciplinary actions and not placing an officer on suspension does not dilute the seriousness of the misconduct and the disciplinary proceedings.
(ii) The petitioner did not attend the Review Meeting in spite of specific information to him to attend the same and he did not inform the Chairman or other officials in Head office about his inability to attend the said meeting. He proceeded on leave on his own by handing over the keys of the branch to said Mr.Karunahara Rajah who was on leave on 09.09.2011. So, the question of Mr.Karunahara Rajah who had come to petitioner's residence to receive the keys does not arise and the same is a false statement.
(iii) The petitioner himself vide letter dated 16.12.2011 admitted that he was rude to the disciplinary authority. The question of raising fresh inquiry will not arise because the inquiry was already held in a fair manner and also, at every stage, adequate opportunity was given to the petitioner to 13/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 put forth his point but no material fact was furnished by him to disprove the charges framed against him.
(iv) As per the offer of appointment order dated 21.07.2011, officers on probation can be discharged without assigning any reason by giving a months notice/salary, however, the Bank gave the petitioner a long rope with the expectation that good sense will prevail on him and he will mend his behavior and realize the seriousness of his acts and express regrets for the same with a promise for better performance in future but the petitioner continued his rough and adamant stand throughout the proceedings which required a tough punishment to impose a sense of discipline on other employees.
4.1. The learned counsel for the respondents contended that the charges which were framed against the petitioner are not minor in nature, particularly, charge no.6 shows the serious misconduct on the part of the petitioner. He further contended that the departmental inquiry was conducted in a fair and proper manner and only on the basis of findings of Inquiry Authority, the second respondent/Chairman of the Bank/Disciplinary Authority has removed the petitioner from service. 14/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 4.2. The learned counsel for the respondents also contended that only after a careful analysis of the charges framed against the petitioner, the Appellate Authority vide order dated 05.11.2012 has concurred with the punishment imposed by the second respondent/Chairman of the Bank and dismissed the appeal of the petitioner. Therefore, the order of the Appellate Authority is legal and valid. In support of his contentions, the learned counsel has relied on the following judgments:
(i) Chaitanya Prakash and Anr. vs. H.Omkarappa reported in (2010) 2 SCC 623
(ii) M/s.Agataa Grace Benjamin vs. Union Bank of India [W.A.No.709 of 2020 dated 17.02.2021] (Madras High Court)
5. Heard the rival submissions made by the learned counsel on either side and perused the materials available on record.
6. On perusal of the documents, it is seen that the second respondent has framed six charges against the petitioner which are as follows: 15/32
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(i) The petitioner did not attend the Review Meeting which was held on 07.09.2011 and also, he failed to inform the Bank about his inability to attend the said meeting.
(ii) The petitioner was rude and discourteous during his telephonic conversation with the Chairman of the Bank.
(iii) Though the petitioner was advised by the Chairman of the Bank over phone to attend the Review Meeting on 10.09.2011, he failed to attend the said meeting.
(iv) The petitioner abstained from duty on 10.09.2011, without having obtained any permission from the competent authority.
(v) Without obtaining permission from Branch Management, the petitioner left the Branch during office hours and visited the Head Office by 11.00 a.m on 17.09.2011 and met the Chairman of the Bank.
(vi) On 17.09.2011, when petitioner met the Chairman of the Bank, he misbehaved rudely to the Chairman of the Bank and told the Chairman in threatening tone, 'Don't disturb me”.
7. In the present case, out of all the six charges which were framed against the petitioner, charge no.6 alone is considered to be a serious charge 16/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 and the remaining other charges viz., charge nos.1, 2, 3, 4 & 5 are minor in nature. But, the Inquiry Authority as well as the Disciplinary Authority (second respondent/Chairman of the Bank) have held that except charge no.5, all other charges were fully proved. As far as charge no.6 is concerned, according to the respondent Bank, the words used by the petitioner are “Don't disturb me”. But in the reply submitted in response to the charge sheet, the petitioner has clearly stated that he told the Chairman, “Don't disturb me Sir”. It is seen that the words used by the petitioner are “Don't disturb me Sir” and not “Don't disturb me” as stated by the respondent Bank in the charge sheet. Apart from the aforesaid words, the petitioner has not used any filthy or abusive words during his conversation with the second respondent/Chairman of the Bank. Hence, this can be considered as a minor misconduct and not a major misconduct which warrants the punishment of removal from service. As per Regulation 39 of the respondent Bank, the punishment of removal from service is a major penalty. Before imposing such a major penalty on the petitioner, the respondent Bank ought to have afforded him an opportunity to put forth his case. But it failed to do so.
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8. It is an admitted fact that the second respondent/Chairman of the Bank is the complainant in this case, but, no summon was served on him, calling upon him to participate in the inquiry and the departmental inquiry was completed without recording the evidence of second respondent/Chairman of the Bank. So, it is clearly seen that the persons who are ought to have been examined during the inquiry, were not examined, instead of which, some incompetent persons were examined by the Inquiry Authority only for proving the charges which were framed against the petitioner.
9. Though no inquiry was necessary for the persons who are in probation, the respondent Bank conducted the departmental inquiry, that too, not in a fair and proper manner. As per Regulation 8 of the respondent Bank, the probation officer who was directly appointed in Group 'A' post, shall be on probation for a period of two years which may be extended by the Appointing Authority for a period not exceeding one year. So far as this case is concerned, the petitioner joined the respondent Bank on 17.08.2011 and he was removed from service on 10.05.2012, which means the 18/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 petitioner has worked in the respondent Bank only for 8 months and he was removed from the service even before the completion of his probation period.
10. As far as this case is concerned, the second respondent/Chairman of the Bank is the person who has issued charge sheet and dismissal order to the petitioner. Aggrieved over the issuance of such dismissal order, the petitioner preferred an appeal before the Board of Directors, but, the same was dismissed. It is to be noted that the second respondent/Chairman of the Bank is one of the members of the Board of Directors. So, it is crystal clear and evident that the second respondent/Chairman of the Bank has acted as Disciplinary Authority as well as Appellate Authority in the present case. The act of the second respondent/Chairman of the Bank is construed as a gross violation of principles of natural justice.
11. As rightly pointed out by the learned counsel for the petitioner, there is a legal principle that nemo debet esse judex in propria causa – No one ought to be a judge in his own cause, as per which, the justice should 19/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 not only be done but should manifestly and undoubtedly 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. But in this case, the aforesaid principle has been transgressed by the second respondent/Chairman of the Bank.
12. It is the character/behavior of the petitioner. Each and every person will have their own type of behavior and in this case, the petitioner behaved in a harsh manner to the second respondent/Chairman of the Bank by telling “Don't disturb me sir” and this, under any circumstances, it does not warrant the major penalty of removal from service.
13. At this juncture, it is pertinent to refer the judgments relied by the petitioner's counsel hereinbelow:
(i) In the case of Union of India and Ors. vs. Sanjay Jethi and Anr.
reported in (2013) 16 SCC 116, particularly in paragraph nos.34 & 51 of the judgment, the Hon'ble Apex Court has held as follows:
“34. The fundamental principles of natural justice are ingrained in the decision-making process to prevent miscarriage of justice. It is applicable to administrative enquiries and 20/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 administrative proceedings as has been held in A.K.Kraipak v. Union of India. It is also fundamental facet of principle of natural justice that in the case of quasi-judicial proceeding the authority empowered to decide a dispute between the contesting parties has to be free from bias. When free from bias is mentioned, it means there should be absence of conscious or unconscious prejudice to either of the parties and the said principle has been laid down in Gullapalli Nageswara Rao v. A.P.SRTC Gullapalli Nageswararao v. State of A.P. and G.Sarana v. University of Lucknow.
51. The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual's perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non judice.
One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or 21/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 for that matter by one's individual perception or misguided intuition.”
(ii) Similarly, in the case of Union of India and Ors. vs. B.N.Jha reported in (2003) 4 SCC 531, the Hon'ble Supreme Court held as hereunder:
“21. In the instant case, Mr. Garcha in his letter to Mr. M.S. Arya described himself as Commandant, BTC, TC&S which itself is a pointer to show that BTC is not a unit totally independent of TC&S. It is further not in dispute that Mr. Arya was an officer subordinate to him. His letter dated 4th September, 1990 in no uncertain terms points out that he had for all intent and purpose directed Mr. Arya to initiate a disciplinary action against the respondent. The said action was to be taken on the basis of the materials disclosed therein. Such a procedure is unknown in law. An authority who is higher than the Commandant, in exercise of his power conferred upon him under Rule 46 could not have directed the Commandant of a wing of his own unit to initiate departmental proceedings. In law it was the disciplinary authority alone who was required to apply his independent mind to the materials on record so as to enable him to arrive at the conclusion as to whether a disciplinary action is contemplated or not. He cannot do so at the instance of a higher authority who had not only no role to play in the matter but also admittedly was biased. [ See Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952) SC 16 and Union 22/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 of India and Other v. Harish Chandra Goswami [1999] 4 SCC 575]. Bias against the respondent on the part of Mr. Garcha is undisputed.”
(iii) In the case of State of Uttaranchal and Ors. vs. Kharak Singh reported in (2008) 8 SCC 236, the Hon'ble Apex has held as follows:
“15. From the above decisions, the following principles would emerge:
(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his 23/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 views, if any.”
(iv) In the case of Rattan Lal Sharma vs. Managing Committee, Dr.Hari Ram (Co-Education) Higher Secondary School and Ors. reported in (1993) 4 SCC 10, the Hon'ble Apex Court has held as hereinbelow:
“11. In the instant case, Charge No. 12 states that a particular sum on account of amalgamated fund for the month of December was given to the appellant by Shri Maru Ram who was teacher incharge of the amalgamated fund. In the enquiry committee comprising of the three members, the said Shri Maru Ram was taken as one of the members and he himself deposed to establish the said Charge No. 12 and thereafter again joined the enquiry committee and submitted a report holding the appellant guilty of some of the charges including the said Charge No. 12. Shri Maru Ram was interested in establishing the said charge. From the charge itself, it is apparent that he had a predisposition to decide against the appellant. It is really unfortunate that although the appellant raised an objection before the enquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the enquiry committee, such objection was rejected on a very flimsy ground, namely, that since the said Shri Maru Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the enquiry committee. It is quite apparent that the enquiry committee could have been constituted with other members of the Managing Committee and the rules of the 24/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 enquiry are not such that Shri Maru Ram being teacher's representative was required to be included in the said enquiry committee so that the doctrine of necessity maybe attracted. If a person has a pecuniary interest, such interest, ever it very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at pace 262 has observed that real likelihood of bias means at least substantial possibility of bias. In R.v. Sunderland Justices [1924] 1 KB 357 (373) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R versus Sussex Justices [1924] 1 KB 256 (259) it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr. Prem Chand [1957] SCR 575. This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.25/32
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12. In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the enquiry committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge. The learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri Maru Ram as a member of the enquiry committee has vitiated the enquiry proceeding because of flagrant violation of the principles of natural justice. Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the Writ Petition improperly, to say the least, on a technical ground that plea of bias of Shri Maru Ram and his acting as a Judge of his own case by being a member of the enquiry committee was not specifically taken before the Deputy commissioner and also before the appellate authority, namely, the Commissioner by the appellant and as such the said plea should not be allowed to be raised in writ proceeding, more so, when the case of prejudice on account of bias could be waived by the person suffering such prejudice. General] v, a point not raised before be tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding more so when the interference in the writ jurisdiction which is equitable and discretionary is not of course or must as indicated by this Court in A.M. Allison versus State of Assam, AIR 1957 SC 227 particularly when the plea sought to be raised for the first time in a Writ 26/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 proceeding requires investigation of facts. 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 litigant should not be shut out from raising such plea which goes to the root of the lis involved. The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in A.S. Arunachalam Pillai v. M/s. Southern Roadways Ltd. and another [1960] AIR SC 1191, The Cantonment Board, Ambala v. Pyarelal [1963] 3 SCR
341. In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety of the decision of the Managing Committee based on the report of the enquiry committee which since made available to him, showed on the face of it that Shri Ramu Ram was included and retained in the enquiry committee despite objection of the appellant and the said Shri Maru Ram became a witness against the appellant to prove one of the charges. It is really unfortunate that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of inclusion of Shri Maru Ram in the enquiry committee and his giving evidence on behalf of the department had not been specifically taken by the appellant before the Deputy 27/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 Commissioner and the Commissioner. The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order of dismissal was made, no prejudice has been caused to the appellant. Such view, to say the least, cannot be accepted in the facts and circumstances of the case. The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry commttee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner. The observatiory of S.R. Das, C.J. in Mohd nooh's case (ibid) may be referred to in this connection:
"Where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obstrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play, 28/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex-facie was a nullity for reasons aforementioned."”
14. On overall consideration, this Court finds that all the six charges which were framed against the petitioner are only minor in nature and the same does not warrant the major penalty of removal from service. Hence, the punishment imposed on the petitioner is construed as too harsh and disproportionate for the minor misconduct committed by him. In this case, the complainant (second respondent/Chairman of Bank), Disciplinary Authority and Appellate Authority are one and the same, which itself shows that this is nothing but a clear case of victimization.
15. At the time of removal from service, the petitioner was 24 years old and now, he is 34 years old. At this stage, if the petitioner is sent out from the second respondent Bank with the stigma, he cannot get a new job and his survival will be a question mark. If the second respondent Bank 29/32 https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 issues a relieving order to the petitioner, it will be very much helpful for his future career.
16. Considering the above facts and circumstances of the case and in the light of the ratio laid down by the Honourable Supreme Court in the decisions cited supra, the order dated 05.11.2012 passed by the first respondent as well as the order dated 10.05.2012 passed by the second respondent are hereby quashed and the second respondent Bank is directed to issue a relieving order to the petitioner, stating that he is relieved from the service of the Bank, within a period of six weeks from the date of receipt of a copy of this order.
17. In the result, this writ petition stands allowed with the above direction. No costs.
30.08.2022
mrr
Index : Yes
Speaking Order (or) Non-Speaking Order
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W.P.No.865 of 2013
Copy to
1.The Board of Directors / Appellate Authority, Puduvai Bharathiar Grama Bank, Head Office 441, M.G.Road, Muthialpet, Puducherry – 605 003.
2.The Chairman / Disciplinary Authority, Puduvai Bharathiar Grama Bank, Head Office, 441, M.G.Road, Muthialpet, Puducherry – 605 003.31/32
https://www.mhc.tn.gov.in/judis W.P.No.865 of 2013 J.SATHYA NARAYANA PRASAD, J.
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