Madras High Court
A.Rajaram vs State Of Tamilnadu on 15 February, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.Nos.41489 to 41495 and 45602 of 2006 (O.A.Nos.8323 of 1999,2340,2337,2338, 2341,4991,2339 and 5084 of 2000 W.P.No.41489 of 2006 A.Rajaram ...Petitioner Vs 1.State of Tamilnadu Rep. By its Secretary, Labour and Employment Department, Chennai -9. 2.The Tamilnadu Public Service Commission Rep by its Secretary, Chennai -2. 3.The Commissioner of Labour, Chennai -6. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, call for the records relating to order passed by the third respondent F1.39395/94 dated 13.5.1996 and the consequential order passed by the first respondent in G.O.Ms.No.3(D) No.11 dt. 20.08.1999 confirming the order of punishment and quash the same. For Petitioner : Mr.Karthik Mukundan (in all Wps) For Respondents : Mr.R.Murali, G.A. (R1,R3 and R4 in all Wps) Mr.Bhaskaran for R2 in W.P.No.41489/2006 C O M M O N O R D E R
The petitioner in all the writ petitions is one and the same person. He was employed as an Assistant Inspector of Labour in the Labour Department. He filed various original applications before the Tribunal seeking to challenge different orders of punishment.
2. The following table will show the OA numbers, corresponding WP numbers and the penalties imposed on the petitioner:-
Sl.No O.A.Numbers W.P.Numbers Penalty imposed 1 O.A.No.8323/1999 W.P.No.41489/2006 Stoppage of increment for 6 months without cumulative effect 2 O.A.No.2340/2000 W.P.No.41490/2006 Postponement of increment for 6 months 3 O.A.No.2383/2000 W.P.No.41491/2006 Stoppage of increment cut for one year 4 O.A.No.2338/2000 W.P.No.41492/2006 Postponement of increment for 6 months 5 O.A.No.2341/2000 W.P.No.41493/2006 Postponement of increment for 1 year 6 O.A.No.4991/2000 W.P.No.41494/2006 Order of Recovery 7 O.A.No.2339/2000 W.P.No.41495/2006 Censure 8 O.A.No.5084/2000 W.P.No.45602/2006 Stoppage of increment for two years without cumulative effect
3.In most of the original applications, the Inspector of Labour, Thoothukudi, who was made as party respondent, in his individual capacity had filed counter affidavit.
4. The facts leading to the filing of the case are as follows:-
It is the case of the petitioner that he joined as an Assistant Inspector of Labour on 13.05.1980 and had worked in several districts. Finally, he came to Thoothukudi District and worked under an Inspector of Labour by name T.Gunapalan. The said Gunapalan was working in the Tuticorin District for more than 24 years except with short breaks. There was a misunderstanding between him and the said T.Gunapalan in the discharge of their official duties. The said T.Gunapalan developed enmity towards the petitioner and wrote several D.O.letters to their superiors against the petitioner including making corruption charges. He influenced the Head of the Department to transfer him from Tuticorin to Tirunelveli.
5. The petitioner filed O.A.No.5444 of 1999 and obtained an interim stay on 24.09.1999. Because of the said order, he continued to work in Tuticorin and during that period, number of charge memos were issued against the petitioner by the said T.Gunapalan. To be precise, there were 8 charge memos under Rule 17(a) and 2 charge memos under Rule 17(b) framed under TNCS (D &A) Rule. In respect of the charge memos framed under Rule 17(a), 5 punishments were imposed on him. When the first charge memo was issued, he requested copies of the document to be furnished. But the second respondent did not furnish those documents and rejected his request. Thereafter, the petitioner wrote a letter to the Deputy Commissioner of Labour, Tirunelveli to intervene, but there was no intervention as prayed for by him. Thereafter, he requested the second respondent not to proceed with his memo since he himself was involved in respect of those allegations. But the second respondent imposed a punishment as noted in the above tabular column. In each of the cases, it was the same exercise that was undertaken.
6. Therefore, the main contention of the petitioner was that the second respondent, who was also shown as individual capacity was not only inimical towards the petitioner but in the allegations made by him R-2 was personally involved. Therefore, it was contended that he had disqualified in hearing the cases levelled against the petitioner. Once a request is made for change of the disciplinary authority, the higher officer ought to have granted the same, thereby, saving the petitioner from vindictive exercise carried on by the second respondent. Reliance was also placed upon the judgment of the Supreme Court in Ratanlal Sharma v. Dr.Hariram Co-Education Higher Secondary School and others reported in AIR 1999 3 SCC 2155.
7. On notice from the Tribunal, only the first respondent had filed a reply statement. In the reply statement, apart from dealing with the merits of the charges, with reference to his personal conduct, there was no denial. On the contrary, the first respondent made several allegations against the petitioner that he was being responsible for sending false complaint directly to the Secretary to the Government, Labour Department.
8. In W.P.No.41490, 41491, 41492, 41493 and 41495, apart from the Inspector of Labour, the Commissioner of Labour and the Secretary to Government have also been made as party respondents.
9. In fact, it is rather unfortunate the then Commissioner of Labour in his reply affidavit dated 05.06.2000 instead of controverting the allegations merely pleaded that he was unnecessarily impleaded as a party and that he will not be in a position to grant any relief as sought for by the petitioner since no order of his was challenged and he prayed for dismissal of the OAs against him. Same was the case of the State Government in O.A.Nos.2337 to 2341 of 2000 where an identical affidavit dated 03.07.2000 was filed complaining of misjoinder of parties. It was stated by them that the petitioner had not challenged any of the orders and no cause of action was shown against the Government and hence, they prayed for dismissal of the original applications as against them.
10. Only in W.P.No.41489 of 2006 (O.A.No.8323/1999) the State Government had filed a reply affidavit traversing on the merits of the allegation made by the petitioner. In that case, it was stated that the petitioner instead of giving explanation to the memo given to him sent a letter dated 13.01.1995 to the Commissioner of Labour, criticising the functions of the Deputy Commissioner of Labour, Chennai, thereby violating the Government service conduct rules.
11. The appeal preferred by the petitioner to the Government was considered and rejected by the Government in G.O.3(D)No.11, Labour and Employment Department, dated 20.08.1999 and the said Government order along with the opinion of the Tamil Nadu Public Service Commission were served on him. Exception was taken for his sending direct representations to the respondent criticizing the function of the Deputy Commissioner of Labour and hence having found no material to interfere with the penalty, his appeal was rejected. The question of grant of documents will arise only if an enquiry under Rule 17(b) was held. In the absence of any reply by the petitioner, the penalty of postponement of increment for 6 months was upheld. In the light of the circumstances found therein, it is unnecessary to interfere with the penalty imposed on the petitioner. Hence, W.P.No.41489 of 2006 stands dismissed.
12. In respect of other OAs, the Commissioner of Labour, Chennai and the Secretary to Government, Labour Department are in a position to enquire into the complaints made against his immediate superior. Even otherwise, without his waiting for any appeal against the order of penalty they have suo motu power in reviewing the penalty imposed on the petitioner. Only in cases of an appellate authority, there is a limitation prescribed under the Tamil Nadu Civil Services (D&A) Rules. In case of Head of the Department or the Government, even that limitation is absent. In all these original applications, the State Government and the Commissioner of Labour have been made parties and they ought to have made enquiries from their subordinates and submitted remarks on the merits rather than throwing their hands to the wind and seeking to get themselves relieved from the case. Both the State Government and the Commissioner of Labour are necessary and proper parties and their presence is very much required in these writ petitions. It is rather unfortunate they should file some stereotyped affidavits to get themselves relieved from the case. Infact in a case where a Government servant challenges the penalty imposed against him, the State also must be made as necessary party and the principles underlying in Section 79 of CPC will apply.
13. In the present case, the Commissioner and State had failed to note that the allegations of the petitioner was against the Inspector of Labour, his immediate superior who was instrumental in sending complaint and the action initiated by the Inspector of Labour had resulted in several disciplinary proceedings within a short time. When the petitioner states that the Inspector of Labour was inimically disposed and he was the root cause for framing several charges with a view to settle scores and abusing his disciplinary powers, automatically, the State Government and the Commissioner of Labour should have intervened and transferred the matter to some other authority. Under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the Government has power to appoint adhoc disciplinary authority not only for framing charges but also to proceed with the enquiry. This will avoid charges of bias being attributed against the disciplinary authority. At the same time, it would avoid the allegations of malafides and bias against an immediate superior. Yet at the same time, if found guilty, the errant government servant can be suitably punished. The State Government and the Labour Commissioner thus miserably failed to exercise their powers at an appropriate time which would have saved not only the time of the Court but also avoid the allegation made by the petitioner being brought to a public forum.
14. In this case, it is unnecessary to traverse into the various allegations made against the petitioner because the bias being crept into the action initiated will vitiate any subsequent proceedings. Therefore, the only question to be decided is whether the petitioner had a reasonable apprehension about the bias of the Inspector of Labour who was instrumental in initiating action against the petitioner?.
15. Even the Inspector of Labour in his counter affidavit had not specifically denied such allegations. On the contrary, he himself was accusing the petitioner of fomenting complaints against him to the higher authorities including to the Government.
16. In W.P.No.41495 of 2006 arising out of O.A.No.2339 of 2000, the petitioner was proceeded with charge relating to the petitioner moving the Tribunal with O.A.No.5444 of 1999, challenging the transfer order and interim stay was obtained on 22.09.1999. The petitioner by a letter dated 22.10.1999 had demanded certain documents relating to charge memo dated 16.11.1999. The charge against the petitioner was that he had left the headquarters on 16.11.1999 without seeking permission from the Inspector of Labour. The petitioner was accused of going to Chennai without the permission of Inspector of Labour and after going to Chennai sending a telegram stating that he was not well and claimed leave of unearned leave on medical grounds which was found to be a misconduct. These charge memo clearly support the case of the petitioner because he had stated that it was only because he had obtained an interim stay of his transfer order from Tuticorin to Tirunelveli gave rise to several charge memos subsequently. For this allegation, there has been no reply on the side of T.Gunapalan, who was the then Inspector of Labour.
17. The circumstances under which disciplinary proceedings on grounds of bias can be initiated came to be considered by the Supreme Court in several cases. It is necessary to refer to those cases.
18. The Supreme Court in S.Parthasarathi v. State of Andhra Pradesh reported in (1974) 3 SCC 459 held that if there was an impression that in the mind of a reasonable man, there was a likelihood of bias in the Enquiry Officer, then that is a good ground for changing the Enquiry Officer. If the enquiry officer adopts the procedure which is contrary to the Rules of natural justice, the ultimate decision based on his report of enquiry will have to be set aside. The following passage found in paragraphs 13,15,16, and 17 may be usefully reproduced below:-
"13. The letter written by the Medical Officer (Exhibit B-8) would indicate that Manvi wanted to get rid of the services of the appellant on the ground of his mental imbalance and it was for that purpose that he tried to get a certificate to the effect that the appellant was mentally unsound. We are of the opinion that the cumulative effect of the circumstances stated above was sufficient to create in the mind of a reasonable man the impression that there was a real likelihood of bias in the inquiring officer. There must be a real likelihood of bias and that means there must be a substantial possibility of bias. The Court will have to judge of the matter as a reasonable man would judge of any matter in the conduct of his own business (see R. v. Sunderland, JJ.)
15. The question then is: whether a real likelihood of bias existed is to be determined on the probabilities to be inferred from the circumstances by court objectively, or, upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large.
16. The tests of real likelihood and reasonable suspicion are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon] We should not, however, be understood to deny that the Court might with greater propriety apply the reasonable suspicion test in criminal or in proceedings analogous to criminal proceedings.
17. As there was real likelihood of bias in the sense explained above, we think that the inquiry and the orders based on the inquiry were bad. The decision of this Court in the State of Uttar Pradesh v. Mohammad Nooh8 makes it clear that if an inquiring officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for not applying the same principle here as we find that the inquiring officer was biased.
19. A constitution Bench of the Supreme Court subsequently in Arjun Chaubey v. Union of India reported in (1984) 2 SCC 578, in paragraph 5 observed as follows:-
"...Evidently, Respondent 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely, that he himself was a truthful person and the appellant a liar. In doing this, Respondent 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua Respondent 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry. The order of dismissal passed against the appellant stands vitiated for the simple reason that the issue as to who, between the appellant and Respondent 3, was speaking the truth was decided by Respondent 3 himself."
In the present case, the Inspector of Labour, Gunapalan was very much aggrieved by the conduct of the petitioner and he ought not to have imposed the penalty.
20. The Supreme Court vide its judgment in Tilak Chand Magatram Obhan v. Kamala Prasad Shukla and others reported in 1995 Supp (1) SCC 21 held that there is a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. It also held that if the Enquiry Officer is deeply biased against the delinquent and if the proceedings are held to be void any further appeal on the said matter, the Appellate Authority cannot repair the damage done to the enquiry. In paragraph 4, the Supreme Court held as follows:-
"...There is, however, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire enquiry proceedings are rendered void, the appellate authority cannot repair the damage done to the enquiry. Where one of the members of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other members know not or the said member is in a position to influence the decision-making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done..."
21. In an allegation of bias, one is not expected that such an allegation is impossible to determine, being a state of mind, bias is sometimes impossible to determine. Therefore, it was held that if a person aggrieved establishes a reasonable possibility of bias, then that is sufficient to hold that the action initiated by such person is vitiated. The said position of law was laid down by the Supreme Court in G.N. Nayak v. Goa University reported in (2002) 2 SCC 712. In paragraphs 33 and 34, the Supreme Court observed as follows:-
"33. Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially.
If however, bias and partiality be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices.
34. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred."
If looked into the above angle, then certainly the petitioner has clearly established that the Inspector of Labour was clearly biased against the petitioner and that he ought not to have concluded the proceedings and imposed the penalty impugned in the writ petitions.
22. If it is seen in the light of the above context, that the penalty imposed on the petitioner is vitiated as bias had crept in, in framing not only the charges against the petitioner but also in allowing the same disciplinary authority to impose the penalty. The request of the petitioner for intervention from the Commissioner of Labour and the State Government ought to have been entertained. The state Government ought to have appointed an adhoc disciplinary authority in enquiring into the complaint of the petitioner.
23. Under the circumstances, in order to meet the ends of justice, this Court is inclined to pass the following order:
i) W.P.No.41489 of 2005 (O.A.No.8323 of 2009) stands dismissed.
ii)W.P.Nos.41490 to 41495 and 45602 of 2006 will stand allowed and the impugned order of penalty will stand set aside. The State Government represented by the Secretary to Government, Labour Department is hereby directed to constitute adhoc disciplinary authority against the petitioner and that authority will consider the explanation offered by the petitioner uninfluenced by the earlier order passed by the competent authority and if necessary will conduct enquiries and pass appropriate orders after giving due opportunities to the petitioner.
No costs.
15.02.2011 svki Index : Yes/No Internet: Yes/No K.CHANDRU,J.
Svki To
1.State of Tamilnadu The Secretary, Labour and Employment Department, Chennai -9.
2.The Secretary, The Tamilnadu Public Service Commission Chennai -2.
3.The Commissioner of Labour, Chennai -6.
W.P.Nos.41489 to 41495 and 45602 of 2006 15.02.2011