IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.No.14458 of 2009 and M.P.Nos.1 and 2 of 2009 T.Gnanasekaran .. Petitioner Versus 1. The Tamil Nadu State Marketing Corporation Ltd., Represented by its Chairman IV Floor, CMDA Tower – II, Gandhi Erwin Bridge Road, Egmore, Chennai. 2. The Managing Director TASMAC Ltd., IV Floor, CMDA Tower – II, Gandhi Erwin Bridge Road, Egmore, Chennai. .. Respondents PRAYER: Writ petition has been filed under Article 226 of The Constitution of India to issue a Writ of Certiorari to call for the records of the second respondent herein, relating to proceedings of the 1st respondent dated 16.07.2009 in Proc.M5/10182/2007 and quash the same. For Petitioner : Mr.VR.Shanmuganathan O R D E R The petitioner was working as an Assistant Manager with the respondents-Corporation. Based upon a surprise inspection, it was found that a sum of Rs.17,792/- was found to be in short and therefore, charges have been framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Thereafter, pursuant to the enquiry, the petitioner was awarded the punishment of stoppage of increment for two years without cumulative effect, by the second respondent, by an order dated 26.02.2007. Challenging the order of the second respondent, the petitioner has preferred an appeal before the first respondent. The first respondent in turn by the proceedings dated 16.07.2009 has rejected the appeal. https://hcservices.ecourts.gov.in/hcservices/ The order of the first respondent has been signed by the second respondent, being the Managing Director of the respondents – Corporation. Challenging the above said orders, the petitioner has filed the present writ petition. 2.Mr.VR.Shanmuganathan, learned counsel for the petitioner submitted that inasmuch as the appeal was preferred against the order of the second respondent to the first respondent, the second respondent ought not to have presided over the meeting, while rejecting the appeal filed by the petitioner. The learned counsel further submitted that the second respondent has also acted as one of the Director of the respondent – Corporation and presided over the meeting and in fact, signed the proceedings. Hence, the learned counsel for the petitioner submitted that the proceedings of the first respondent is liable to be set aside in view of violation of principles of natural justice, as no man shall be a Judge of his own cause. 3.In support of his contention, the learned counsel for the petitioner has relied upon the order dated 28.03.2008 passed by this Court in W.P.No.13307 of 2003, wherein this Court has set aside the order passed by the first respondent and remanded the matter for reconsideration. 4.It is not in dispute that the second respondent has presided over the meeting, which was convened to decide the appeal filed by the petitioner. It is also not in dispute that the appeal was filed by the petitioner challenging the order of the second respondent. It is also seen from the records that the second respondent has infact signed the order. Therefore, this Court finds that there is sufficient substance in the contention of the learned counsel for the petitioner that there is violation of principles of natural justice inasmuch as the second respondent ought not to have taken part in the entire proceedings of the first respondent while deciding the appeal. This Court in W.P.No.13307 of 2003 dated 28.03.2008 has observed as follows: "10.While dealing with a similar question, a learned single Judge of this Court in W.P.Nos.2055 to 2060 of 2007, dated 23.03.2007 has framed the following question for consideration:- "Whether the participation of the Managing Director, who is the competent authority, in the Board meeting will vitiate the order of the Board." At Paragraph 11 and 12 of the judgment, this Court held as follows: "11. The position of law in this regard has been made clear by judgment of the Supreme Court reported in 1986 (4) SCC 537 (Institute https://hcservices.ecourts.gov.in/hcservices/ of Chartered Accountants of India v. L.K.Ratna and others). In that judgment, the Supreme Court clarified the position of an appellate authority with reference to the Institute of Chartered Accountants of India, a council established by an Act of Parliament. In this regard, it is useful to extract Paragraph 25 and 26 of the said judgment and the same is extracted below: "25. We must remember that the President and the Vice-President of the Council and three members of the Council compose the Disciplinary Committee. The President and the Vice-President do certainly hold significant status in the meetings of the council. A member whose conduct has been subject of enquiry by the Disciplinary Committee ending in conclusions adverse to him can legitimately entertain an apprehension that the President and the Vice-President of the Council and the other members of the Disciplinary Committee would maintain the opinion expressed by them in their report and would press for the acceptance of the report by the Council. To the member whose conduct has been investigated by the Committee, the possibility of the Council disagreeing with the report in the presence of the President and the Vice-President and the other members of the Committee would seem rather remote. His fears would be aggravated by the circumstances that the president would preside over the meeting of the Council, and would thus be in a position to control and possibly dominate the proceedings during the meeting. We do not doubt that the president and the Vice-President, and also the three other members of the Disciplinary Committee, should find it possible to act objectively during the decision-making process of the Council. But to the member accused of misconduct, the danger of partisan consideration being accorded to the report would seem very real indeed. https://hcservices.ecourts.gov.in/hcservices/ 26.The objection on the ground of bias would have been excluded if the statute had expressed itself to the contrary. But nowhere do we find in the Act any evidence to establish such exclusion. It is true that by virtue of Section 17(3), it is obligatory that the Disciplinary Committee should be composed of the President and the Vice-President of the Council and three other members of the Council. While that is so, there is nothing in the Act to suggest that the meetings of the Council must always be presided over by the President or the Vice-President, and that no meeting can be held in their absence. We find that Regulation 140 framed under the Act contemplates that the Council may meet in the absence of the President, and provides that in their absence a member elected from among the members who are present should preside. There is an element of flexibility which makes it possible for the Council to consider the report of the Disciplinary Committee without the participation of the members of the Committee. Because of the 'flexibility' potential in the scheme, the doctrine of necessity, to which reference has been made on behalf of the Institute, cannot come into play. We must admit that it does appear anomalous that the President and the Vice-President of the Council should be disabled from participating in a meeting of the Council because they are bound by statute to function as the Chairman and the Vice- Chairman of the Disciplinary Committee, and were it not for the factor of flexibility which we see in the scheme, we would have been compelled to the conclusion that the Act implies an exclusion of the doctrine of bias." 12. This legal proposition was also followed by a Division Bench of this Court in its decision reported in 2006 WLR 855 (The Syndicate, Anna University, Chennai and others v. Dr.N.Lingappan https://hcservices.ecourts.gov.in/hcservices/ and others) to which myself is a party and held that such a conduct of the punishing authority being part of the appellate mechanism was illegal and the order of the appellate authority was quashed on that ground." 11.Admittedly, a charge memo, dated 31.07.2000 was issued by the Managing Director, TASMAC, Chennai, second respondent. Not satisfied with the explanation of the petitioner, a Senior Regional Manager was appointed as an Enquiry Officer. On the basis of the enquiry report, the second respondent passed the impugned order of punishment of stoppage of increment, on 05.08.2002, which was appealed to the Board. The Managing Director, Disciplinary Authority, who has inflicted the penalty, also participated in the deliberations of 107th Board Meeting, which passed the resolution rejecting the appeal filed by the petitioner. Therefore, it is clear that the second respondent, who initiated the disciplinary proceedings, passed the original order of penalty, also took active part in the Board meetings, thus exercising dual functions, both as disciplinary as well as appellate authority and in such circumstances, there is every likelihood of a reasonable bias in the decision making process. 12.It is a well known principle that no person shall be a judge of his own case and the adjudicating authority must be impartial and act without any kind of bias. 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. On the said principle, the decisions cited supra are applicable to the facts of this case and therefore, the order of the appellate authority is liable to be set aside. However, considering the alleged violation of specific instructions from the Head Office, resulting in loss of revenue to the Corporation, ends of justice would be met if the matter is remitted back to the Board for re-consideration of the points raised in the appeal, including violation of principles of natural justice. Accordingly, the matter is remitted back to the Board for re-consideration". 5.Considering the said legal position, this Court is of the opinion that the impugned order dated 16.07.2009 of the first respondent is liable to be set aside and the appeal will have to be https://hcservices.ecourts.gov.in/hcservices/ decided by the first respondent afresh, on merits and in accordance with law, without participation of the second respondent. 6.Accordingly, the impugned order dated 16.07.2009 passed by the first respondent is set aside and the first respondent is directed to consider the matter afresh, on merits and in accordance with law. The second respondent is directed to not to participate in the proceedings of the first respondent. Further, it is made clear that the petitioner shall be given sufficient opportunity before passing final orders, by producing the additional materials, if any, in support of his contention. 7.With these observations, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. TK To 1. The Chairman The Tamil Nadu State Marketing Corporation Ltd., IV Floor, CMDA Tower – II, Gandhi Erwin Bridge Road, Egmore, Chennai. 2. The Managing Director TASMAC Ltd., IV Floor, CMDA Tower – II, Gandhi Erwin Bridge Road, Egmore, Chennai. + 1 CC TO Mr.J.Ravindran, Advocate Sr 25728 + 1 cc to M/S.V.R.Shanmuganathan, Advocate SR 25641 W.P.NO.14458 OF 2009 AKR (CO) RH (4.5.10) https://hcservices.ecourts.gov.in/hcservices/