IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Writ Appeal No.2954 of 2002 1.R.Pattabhi (died) 2.p.Saroja 3.P.Rajkumar 4.P.Dharani .. Appellants/Petitioner (Appellants 2 to 4 were brought on record as legal representatives of the deceased sole Appellant as per the order dated 10.11.2009 made in M.P.No.101/2009) Vs. The Tamil Nadu Minerals limited, represented by its Chairman-cum- Managing Director, at TWAD House, Chepauk, Chennai-5. .. Respondent/Respondent Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the Order of the learned single Judge of this Court dated 14.12.2001 made in W.P.No.437 of 1994 presented under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the respondent in RC.No.7366/EA1/90 and quash the order of the respondent board of directors of the respondent, communicated to the petitioner by the Memo of the Managing Director, dated 29.01.1993, confirming the order of the Managing Director of the Respondent dated 06.04.1991 removing the petitioner from service and consequently direct reinstalment of the petitioner in the services of the respondent with all back-wages, seniority, promotions and attendant benefits. For Appellants : Mr.T.M.Hariharan For Respondent : Mrs.A.V.Bharathi https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J This Writ Appeal arises out of the order in W.P.No.437 of 1994 dated 14.12.2001 whereby the learned single Judge dismissed the Writ Petition filed by the sole Appellant-Pattabhi seeking for Certiorarified Mandamus to quash the Proceedings in Rc.No.7366/EA1/90 dated 29.1.1993. 2. During the pendency of Writ Appeal, the sole Appellant- Pattabhi died on 31.8.2009 and his legal representatives were brought on record as Appellants 2 to 4 as per the orders in M.P.No.101 of 2009 dated 10.11.2009. 3. Brief facts are that deceased Appellant-Pattabhi was appointed as Manager (Production) in the Respondent company and joined duty in TAMIN Granites, Manali on 05.03.1986. During his tenure as Manager (Production), 1st Appellant committed several irregularities. Since, detailed enquiry was required, 1st Appellant was placed under suspension on 26.03.1990 under Rule 4.4 (a) of TAMIN Conduct, Discipline and Appeal Rules. As many as 15 charges were framed against the 1st Appellant. Gist of chargers were:- Due to his negligence, slabs were not properly produced resulting in loss; Break down of machines due to lack of supervision, improper maintenance; Responsible for Labour unrest; Paid labour charge to a supplier on the higher side. Charge memo was issued on 28.07.1990 in Rc.No.7366/EA1/90 calling upon him to offer his explanation. 1st Appellant submitted his explanation on 01.10.1990. Since the explanation was found to be unsatisfactory, Enquiry Officer-Standing Counsel of TAMIN was appointed to conduct an enquiry. Enquiry Officer conducted enquiry after giving opportunity to the 1st Appellant and submitted his report on 19.03.1991 finding him guilt in all the charges levelled against him. Based on the Enquiry Officer's report, Respondent-Management by its Proceedings dated 06.04.1991 passed an order removing the 1st Appellant from service in terms of Rule 4.1 (b) of TAMIN Conduct, Discipline and Appeal Rules. 4. Case of Appellants is that 1st Appellant preferred appeal before the Board of Directors. Confirming the order of removal from service by the Managing Director of Respondent-Management, the Appellate Authority [Board of Directors] dismissed the appeal preferred by the 1st Appellant. The decision of the Appeal was communicated to the 1st Appellant. Being aggrieved by the order of the Appellate Authority [Board of Directors], the 1st Appellant filed W.P.No.437/1994 seeking to quash the same. 5. Resisting the Writ Petition, Respondent-Management filed counter contending that since 1st Appellant being incharge of the https://hcservices.ecourts.gov.in/hcservices/ production department was directly responsible for the irregularities committed by him, as many as 15 charges were framed against him. Case of Respondent is that during enquiry ample opportunity was given to the 1st Appellant and in fact, 1st Appellant took nearly 60 days to submit his explanation. The Enquiry Officer appointed by the TAMIN was involved in many enquiries and is a capable person for conducting the enquiry in a fair and proper manner. Further case of Respondent is that instead of participating in the enquiry proceedings, 1st Appellant has attempted to comment on the status of the Enquiry Officer. According to the Respondent, 1st Appellant was unable to establish his case and he abandoned the enquiry. It is averred that 1st Appellant instead of offering suitable explanation to the charges levelled against him found fault with the preliminary conclusion mentioned in the charge memo. Further case of Respondent is that the order of removal of 1st Appellant from service is in accordance with law and the Board of Directors have also took reasonable time to consider the Appeal and only after careful examination, they dismissed the Appeal. Since the enquiry was conducted in a fair manner and during enquiry, 1st Appellant was found guilty of the charges framed against him and the punishment imposed upon him warrants no interference, Respondent-Management prayed for dismissal of the Writ Petition. 6. Learned single Judge dismissed the Writ Petition holding that in the enquiry proceedings it was established that 1st Appellant's negligence has caused loss to TAMIN as the slabs were not prepared as per the specifications. Placing reliance upon 1964 (2) LLJ 139 (SC) [Saran motors v. Vishwanath and another] and 1970 (3) SCC 259 [M/s.Dalmia Dadri Cement Limited v. Shri Murari Lal Bikaneria], the learned single Judge rejected the objection as to appointment of Standing Counsel for the Organization as the Enquiry Officer. Objection of the 1st Appellant regarding non-furnishing of Enquiry Officer's report was rejected on the ground that 1st Appellant has not shown that prejudice was caused to him by non-furnishing of copy of Enquiry Officer's report. Contention regarding disposal of the Appeal by the Board of Directors by non-speaking order was also rejected by the learned single judge by observing that perusal of the order shows that Board has considered the grounds raised by the 1st Appellant and the learned single Judge dismissed the Writ Petition. 7. Challenging the order of dismissal of the Writ Petition, Mr.T.M.Hariharan, learned counsel for Appellants contended that enquiry was not fair and bonafide and that the production order itself was addressed to the Works Manager and while so, the Works Manager was left scot-free and was only produced as the sole witness against the 1st Appellant. It was further submitted that enquiry into 15 charges commenced and conducted between 6.30 P.M. and 9.30 P.M. on a single day and no sufficient opportunity was afforded to the 1st Appellant. It was further argued that even in the questionnaire to be submitted with the reply to the charge sheet, 1st Appellant https://hcservices.ecourts.gov.in/hcservices/ requested that copy of Enquiry report be furnished immediately after the enquiry and even then Enquiry Officer's report was not furnished to him which caused serious prejudice to the employee. It was further submitted that while confirming the order, the Appellate Authority must furnish reasons which was not properly considered by the learned single Judge. In support of his contention, learned counsel placed reliance upon 2001 (3) CTC 176 [State of U.P. v. Harendra Arora]; (2008) 3 SCC 469 [Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao]; (2008) 8 SCC 236 [State of Uttaranchal and others v. Kharak Singh]; (2008) 12 SCC 331 [Man Singh v. State of Haryana and others] and other decisions. 8. Drawing our attention to the materials on record, Mrs.A.V.Bharathi, learned counsel for Respondent-Management submitted that sufficient ample opportunity was given to the 1st Appellant and Respondent-Management after considering the matter, accepted the finding of the Enquiry Officer. It was further submitted that the procedure adopted in the enquiry proceeding was legal and valid and 1st Appellant could not establish a defence in his favour and so he did not continue the enquiry proceedings and having abruptly withdrawn from the enquiry, 1st Appellant cannot complain of the violation of principles of natural justice. It was further submitted that 1st Appellant has not shown any prejudice nor had it affected the ultimate order passed by the Disciplinary Authority. In support of her contention, learned counsel for Respondent placed reliance upon (2008) 2 SCC (L&S) 442 [H.V.Nirmala v. Karnataka State Financial Corporation and others] and 2010 (2) SCALE 255 [Sarv U.P. Gramin Bank v. Manoj Kumar Sinha] and other decisions. 9. We have carefully considered the rival contentions and materials on record and the order of the learned single Judge. We have also perused the File. 10. 1st Appellant-Pattabhi was appointed as Manager [Production] and he joined in TAMIN Granites, Manali on 05.03.1986. During his tenure as Manager [Production], 1st Appellant is alleged to have committed several irregularities. As many as 15 charges were levelled against him in the Proceedings Rc.No.7366/EA1/90 dated 28.07.1990. The main charge relates to his failure to produce random slabs and tiles of required quantity with the required specification as per the supply order sent in their Office letter dated 20.01.1990 and 15.09.1989 respectively which has resulted the buyer refusing to take delivery of the slabs prepared at a bigger thickness which were not required by them. The other important charge is that 1st Appellant has failed to supervise the work in the factory and also maintain the machineries in proper condition, resulting in series of break down of machines. 11. Learned counsel for Appellants contended that gang saw machines were installed in 1986 and they were totally unsuited for https://hcservices.ecourts.gov.in/hcservices/ production of slabs and tiles less than 4 cm. thickness and that 1st Appellant has periodically pointed out this defect in the machinery in all his production and sales reports submitted to the Management and in fact, accepting this innate defect in the gang saw machine, the Managing Director of the Respondent-Management prepared a note to the Board of Directors being item No.7. Learned counsel for Appellants has drawn our attention to item No.7 in the Board Meeting No.78 dated 21.03.1990 placing before the Board the fact that gang saw machines do not perform well and that 2 cm. thick building slabs produced from these machines were found to taper considerably higher than the International level of acceptance. 12. By perusal of the materials, we find that it was placed before the Board that gang saw machines do not perform well. It was also placed before the Board that gang saw machines were not suitable for cutting 2 cm. thick slab and could be utilised profitably only for producing slabs of 4 cm. Ofcourse, in the Proceedings dated 21.3.1990, it was pointed out that consequently the rejection of the slabs was of very high order and that rectification periodically taken up by the technicians from the suppliers themselves could not solve the problem. 13. As regards 2 cm. specification clear instructions were given by the Respondent to produce 2 cm. for making shipment to foreign buyers vide letters dated 05.01.1990 and 20.01.1990. The 1st Appellant who was the Manager [Production] was responsible for the production of slabs of 2 cm. thickness. Being the Manager [Production], it was the duty of the 1st Appellant to act according to the directions of his superiors and having failed to act as per the specifications, 1st Appellant has to account for the loss caused by him to the organization. Though, periodically the defect in the machine is said to have been pointed out to TAMIN, as rightly pointed out by the learned single Judge, in the counter-affidavit the same has been denied by the General Manager [Finance]. As pointed out by the learned single Judge, if the 1st Appellant had done so, TAMIN would have taken proper steps and would have rectified the defects. Enquiry Officer has considered all these aspects and based upon the materials, Enquiry Officer held that the 1st Appellant's carelessness and failure to carry out his duty has caused loss of 5400 US dollars. 14. The next contention of the Appellants is that 1st Appellant was not afforded opportunity of perusing the documents. The learned counsel for Appellants contended that 1st Appellant had been permitted only to peruse some of the records and the charges running to nearly 18 pages were framed against the 1st Appellant and not permitting the 1st Appellant to peruse the records has caused serious prejudice and hardship to the 1st Appellant which would vitiate the entire proceedings. https://hcservices.ecourts.gov.in/hcservices/ 15. In so far as the contention of Appellants that 1st Appellant was permitted only to peruse some of the documents, by perusal of the materials, it is seen that on 10.08.1990, 1st Appellant has asked for copies of the records or inspection of records and asked for production of documents numbering more than fifteen. On 14.08.1990, 1st Appellant has sought for extension of time for submitting his explanation on the ground that copies of records have not been furnished to him so far. After a perusal of the records, on 30.08.1990, 1st Appellant had thanked the Managing Director for permitting him to peruse the records connected with the charges on 29.08.1990. In his letter dated 30.08.1990, 1st Appellant had also listed out the documents which he perused. In the said letter, he has stated that he was only permitted to go through the records and asked for xerox copy of the records. By granting him permission, we are of the view that sufficient opportunity was given to the 1st Appellant to peruse the records. It is not necessary that copies of all the official records are to be furnished to the delinquent officer. Further, it is also seen from his letter dated 14.09.1990 that 1st Appellant had also perused some more records. 16. After perusal of the records, 1st Appellant submitted a detailed explanation dated 01.10.1990 running to 35 pages elaborately answering each one of the charges. After referring to series of correspondence, the learned single Judge has rightly held that 1st Appellant perused all the required documents and we endorse the views of the learned single Judge. 17. The next objection of the Appellants is that appointment of Standing Counsel of TAMIN Mr.N.Jothi, Advocate as Enquiry Officer vitiates the proceedings. Learned counsel for Appellants submitted that the learned single Judge relying on 1964 (2) LLJ 139 (SC) [Saran motors v. Vishwanath and another] and 1970 93) SCC 259 [M/s.Dalmia Dadri Cement Limited v. Shri Murari Lal Bikaneria] rejected the objection of the 1st Appellant as to the appointment of Standing Counsel as Enquiry Officer. Learned counsel for Appellants would further contend that in those two cases, a person some times employed by the employer as lawyer and a junior Advocate occasionally assisting the counsel for the Management in some matters were appointed as Enquiry Officer. Whereas in the instant case, the Standing Counsel for the Respondent had been appointed as Enquiry Officer. It was further contended that being the Standing Counsel, the Enquiry Officer would certainly take decision infavour of the Management and this has occasioned in serious violation of principles of natural justice attending domestic enquiries and the proceedings are therefore vitiated. 18. From the fact that Standing Counsel was appointed as Enquiry Officer, it cannot be said that Enquiry Officer had taken a biased and partisan view and that he was partial towards the Management of the Company. In 2009 (4) LLN 91 [Biecco Lawrie Limited and another https://hcservices.ecourts.gov.in/hcservices/ v. State of West Bengal and another], the Company lawyer was appointed as Enquiry Officer. Holding that Enquiry Officer being a Company lawyer cannot be considered as "biased and partisan" and that he was partial towards the Management of the Company, the Supreme Court held as under:- " 12. ..... Principle of natural justice is attracted whenever a person suffers a civil consequence or a prejudice is caused to him by an administrative action. In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation [See: Ashoka Smokeless Coal India (Private) Ltd. v. Union of India and others [JT 2007 (1) SC 125]. The procedure to be followed is not a matter of secondary importance and in the broadest sense natural justice simply indicates the sence of what is right and wrong [Voinet v. barrett [(1885) 55 LJQB 39] and even in its technical sense it is now often equated with fairness. As a well-defined concept, it comprises of two fundamental rules of fair procedure that a man may not be a judge of his own cause (nemo judex in re sua) and that a man's defence must always be fairly heard." 19. The instant case might appear to be a case of departmental bias as it is persistently stated by the 1st Appellant that the Enquiry Officer was biased being a Standing Counsel and had favoured the TAMIN in causing miscarriage of justice. Departmental bias arises when the functions of a Judge and the prosecutor are combined in the same department as it is not uncommon to find that the same department which initiates the matter also decides it, therefore, at times, department fraternity and loyalty militates against the concept of fair hearing. In Hari Khemu Gawali v. The Deputy Commissioner of Police [AIR 1956 SC 559] an externment order was challenged on the ground that since the police department which heard and decided the case was the same, the element of departmental bias vitiated administrative action and the Court rejected the challenge on the ground that so long as two functions (initiation and decision) were discharged by two separate officers, though they were affiliated to the same department, there was no bias. 20. In General Secretary, South Indian Cashew Factories Worker's Union v. Managing Director, Kerala State Cashew Development Corporation, Ltd. and others [2006 (3) LLN 761], it was held that the inquiry had been conducted by the Assistant Personnel Manager of the Corporation and the Union raised an industrial dispute in which Labour Court set aside the inquiry on the ground of institutional bias as the enquiry officer was part of the same institution and had also made certain uncorroborated remarks against the employee. In appeal, the Court held that mere presumption of bias cannot be https://hcservices.ecourts.gov.in/hcservices/ sustained on the sole ground that the officer was a part of the management and where findings of the enquiry officer were based on evidence and were not perverse, the mere fact that the inquiry was conducted by an officer of the management would not vitiate the inquiry. On a bare perusal of these decided cases, it could be strongly established that the fact that P.K.Mukherjee, the enquiry officer, who was also the company lawyer cannot be considered as being "biased and partisan" who favoured and was partial towards the management of the company. 21. In (2008) 2 SCC (L&S) 442 [H.V.Nirmala v. Karnataka State Financial Corporation and others], Legal Advisor was appointed as Enquiry Officer. Objection as to the appointment of Legal Advisor was not raised during enquiry proceedings and Appellant participated in the enquiry without any objection. Holding that doctrine of estoppel and acquiescence would apply to waive the objection, the Supreme Court held as under:- "12. In SBI v. Ram Das (2003) 12 SCC 474 this Court held: "27. ... It is an established view of law that where a party despite knowledge of the defect in the jurisdiction or bias or malice of an arbitrator participated in the proceedings without any kind of objection, by his conduct it disentitles itself from raising such a question in the subsequent proceedings. What we find is that the appellant despite numerous opportunities made available to it, 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." The decisions of the Supreme Court make it clear that there is no bar in appointing the Standing Counsel as the Enquiry Officer. In the instant case, 1st Appellant did not raise any objection in regard to the appointment of Enquiry Officer and he participated in the enquiry proceedings without any demur. Witnesses were examined before the Enquiry Officer and they were also cross examined. Having not raised any objection and having participated in the enquiry, the 1st Appellant cannot be permitted to raise the plea that Enquiry Officer was biased. 22. The next objection raised by the Appellants is appointment of Mr.R.Dhanabalan as Presenting Officer. Learned counsel for Appellants contended that Mr.R.Dhanapalan, Works Manager was inimical and biased against the 1st Appellant and in fact it was only Mr.R.Dhanapalan was incharge of the factory as the Works Manager and if at all anybody is directly responsible to the Management regarding the alleged lapses, it is the Works Manager who is to be held https://hcservices.ecourts.gov.in/hcservices/ responsible and while so, the said Mr.R.Dhanapalan has been appointed as the Presenting Officer and was also examined as witness by the TAMIN. Appointment of Mr.R.Dhanapalan as Presenting Officer vitiates the entire proceedings. Ofcourse Mr.R.Dhanapalan, General Manager [Technical] gave evidence as management witness and one Dhanasekaran, Superintendent took the evidence of the Management witness by presenting the case in his role as the Presenting Officer. The said Dhanasekaran was the Presenting Officer. As pointed out by the learned single Judge, at the time of enquiry, Mr.R.Dhanapalan was present only to be examined as Management witness and not as Presenting Officer. There is no force in the contention that Mr.R.Dhanapalan was the Presenting Officer and therefore, enquiry was vitiated. 23. The next objection raised is that enquiry was not fair and bonafide. Learned counsel for Appellants contended that only Mr.R.Dhanabalan who was the Works Manager was directly answerable to the Management regarding the alleged lapses and curiously, he was examined as witness for the Management against the 1st Appellant and a person who ought to have been a delinquent was examined as witness and that vitiates the entire proceedings. Placing reliance upon (2008) 12 SCC 331 [Man Singh v. State of Haryana and others], it was contended that State action whether Legislative, Quasi-Judicial or Administrative is subject to judicial review if they are opposed to fairness which in turn is a facet of equality under Article 14 of Constitution of India. 24. In Man Singh's case, one of the charge against the Appellant thereon was that he failed to exercise the supervisory control over his subordinate. Punishment of stoppage of two increments was imposed on the Appellant and his Appeal and Revision Petitions were also rejected by the higher authorities. However, contrary to the same, the co-delinquent Head Constable was acquitted in criminal case and the Appellate Authority also removed punishment imposed on him. The net result therefore was that the Appellant was punished whereas perpetrator of misconduct i.e. Head Constable was let-off both in the criminal case as well as in the departmental enquiry. Relying upon Man Singh's case, learned counsel for Appellants further submitted that there should be fairness in action and non-framing of charge against Mr.R.Dhanapalan and whereas examining him as witness for the Management would show that the entire proceedings are biased and pre- determined farce of an enquiry has been run through to give a colour of acceptance to fore gone conclusion. The contention that by examination of Mr.R.Dhanapalan, Management proceeded in a biased and pre-determined manner does not merit acceptance. As many as 15 charges were framed against the 1st Appellant and only 1st Appellant was proceeded with. The 1st Appellant being Manager [Production] was directly responsible for the production of slabs as he was the Officer incharge of the production and he was the person who had direct contact with the production Management. As rightly contended https://hcservices.ecourts.gov.in/hcservices/ by the learned counsel for Respondent that 1st Appellant cannot shift the blame to others, it cannot be said that examination of Mr.R.Dhanapalan as Management witness [MW1] has vitiatesd the enquiry proceedings. 25. The next contention of Appellants is that enquiry was not conducted in a fair and bonafide manner and no sufficient opportunity was