IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.08.2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.Nos.4289 and 5362 of 2007 & M.P.Nos. 1 & 1 of 2007 R.Kumaravel .. Petitioner in W.P.No.4289/07 E.Jayaraman .. Petitioner in W.P.No.5362/07 v. 1.Tamil Nadu Maritime Board Rep. By the Chief Executive Officer 112, Sir Thygaraya Road Vairam Complex, 2nd Floor Chennai – 600 017. 2.The Chief Executive Officer Tamil Nadu Maritime Board 112, Sir Thygaraya Road Vairam Complex, 2nd Floor Chennai – 600 017. .. Respondents in both W.Ps Petitions filed under Article 226 of the Constitution of India praying for a writ of certiorari, calling for the records of the first respondent in Proceedings dated 23.1.2007 in No.4364/E2/2003 affirming the order of the second respondent dated 16..6.2006 in proceeding NO.4364/E2/2004 and quash the said orders dated 23.1.2007 and 16.6.2006. For Petitioners : Mr.Sundar For Respondents: Mr.V.Jayapraash Narayanan A.G.P. COMMON ORDER The prayer in the writ petitions is to quash the order of the first respondent dated 23.1.2007 affirming the order of the second respondent dated 16.6.2006. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioners have challenged the said orders stating that they were issued with charge memo while working as Assistant Executive Engineers on 23.9.2003 framing under Rule 17b of the Tamil Nadu Civil Services (Discipline and Appeal) Rules apart from recoveries of the loss to the value of Rs.5.5 lakhs for the alleged defective construction and dereliction of duty. The petitioners submitted their explanation and having not satisfied with the same, enquiry was conducted and the Enquiry Office found that out of 6 charges, 3 charges were proved. Enquiry Report was submitted on 8.2.2005 for which, petitioners submitted their remarks on 18.5.2005. According to the petitioners, without considering the same, the second respondent passed the order dated 16.6.2006 and imposed the punishment of stoppage of increment for one year without cumulative effect. The said order was passed by the Chief Executive Officer namely P.R.Shampat. Aggrieved by the order of punishment, the petitioners have filed appeals before the first respondent board on 18.5.2005. The said appeals were rejected by order dated 23.1.2007 wherein, the said P.R.Shampath, Chief Executive Officer also participated as a member of the Board. Therefore, the learned counsel appearing for the petitioners submitted that the original authority having participated while considering the appeals, the order passed by the Board dated 23.1.2007 is unsustainable, as it is vitiated by bias. 3. In view of the above submission made by the learned counsel for the petitioners, learned Additional Government Pleader was directed to verify whether the said Chief Executive Officer namely, P.R.Shampath participated in the deliberation while discussing about the appeals filed by the petitioners. 4. The learned Additional Government Pleader submitted that there is no official record to prove that the said Chief Executive Officer namely, P.R.Shampath has not participated in the deliberations. 5. The learned counsel appearing for the petitioners, in support of his submission, relied on a judgement of the Hon'ble Supreme Court reported in 2002(2) SCC 290 (Amar Nath Chowdhury v. Braithwaite and Co. Ltd. and others), wherein, in paragraph Nos. 6 to 8 held thus : 6. One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as nemo debet esse judex in propria causa, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the https://hcservices.ecourts.gov.in/hcservices/ matter impartially and without carrying any kind of bias. Bias may be of different kinds and forms. It may be pecuniary, personal or there may be bias as to the subject- matter etc. In the present case, we are not concerned with any of the aforesaid forms of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of disciplinary authority. In Financial Commr. (Taxation) Punjab v. Harbhajan Singh1 it was held that the Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subject-matter of appeal before the Board was whether the order of removal passed by the disciplinary authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a disciplinary authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant. 7. Learned counsel appearing for the respondent, however, pressed into service the “doctrine of necessity” in support of his contention. He contended that the rule against bias is not available when, under the Regulations framed by the Company, the disciplinary authority who happened to be the Chairman-cum-Managing Director of the Company was required to preside over the meeting of the Board and, therefore, the then Chairman-cum-Managing Director of the Company was not disqualified to preside over and participate in the meeting of the Board which dismissed the appeal of the appellant. We find no merit in the argument. Rule 3(d) of the Company's Conduct, Discipline and Appeal Rules (in short “CDAR”) defines “Board” in the following terms: https://hcservices.ecourts.gov.in/hcservices/ “Board means the proprietors of the Company and includes, in relation to exercise of powers, any committee of the Board/management or any officer of the Company to whom the Board delegates any of its powers.” 8. In view of the aforesaid definition of the expression “Board”, the Board could have constituted a committee of the Board/management or any officers of the Company by excluding the Chairman-cum-Managing Director of the Company and delegated any of its powers, including the appellate power, to such a committee to eliminate any allegation of bias against such an Appellate Authority. It is, therefore, not correct to contend that the rule against bias is not available in the present case in view of the “doctrine of necessity”. We are, therefore, of the view that reliance on the doctrine of necessity in the present case is totally misplaced." Further, learned counsel for the petitioners also contended that the said Chief Executive Officer has participated in the said deliberation and there is no records to show that he kept away during the deliberation of the said subject and hence, the order of the appellate authority may be set aside and the matter may be remanded to the present Board to consider the appeals afresh and pass fresh orders, as the said T.R.Shampath is not serving as the Chief Execute Officer as on date. 6. In W.P.No.3006 of 2001, dated 09.07.2009, this court allowed a similar writ petition wherein, this court in paragraph Nos.6 and 7 has held as follows: " 6. (a) In sofar as the original authority participating in the appeal proceeding and whether bias can be presumed was considered by the Honourable Supreme court in the decision reported in (2008) 12 SCC 230 : 2009(3) LLN 95 (Cantonment Executive Officer v. Vijay D.Wani) and in paragraph 7 (in SCC) it is held thus: "7. The question of bias is always the question of fact. The court has to be vigilant while applying the principles of bias as it primarily depends on the facts of each case. The court should only act on real bias not merely on likelihood of bias. In the present case, so far as the members of the Committee who conducted a disciplinary inquiry were also the members of the Cantonment Board where the report was to be considered, decided and whether to accept it or not and finding the respondent (herein) guilty or not. The very fact that these three persons who conducted inquiry were also the https://hcservices.ecourts.gov.in/hcservices/ members of the Board and that the Board was to take a decision in the matter whether the report submitted by the enquiry committee should be accepted or not. Therefore, the participation of these three members in the Committee has given a real apprehension in the mind of the respondent that he will not get a fair justice in the matter because the three members who submitted the report would be interested to see that their report should be accepted. This bias in this case cannot be said to be unreal, it is very much real and substantial one that the respondent is not likely to get a fair deal by such disciplinary committee. (b) In the earlier decisions of the Supreme Court reported in AIR 1957 SC 425 (Manak Lal v. Dr.Prem Chand and AIR 1959 SC 1376 (Nageswara Rao v. State of Andhra Pradesh) it is held that while the subject matter was being discussed and decided by participation of the person who passed the original order, certainly it creates a reasonable impression in the party, whose rights are being adjudicated, that there may be a likelihood of bias. Thus, the participation of the then Managing Director in the deliberation while considering the appeal filed by the petitioner has vitiated the order passed in the appeal." 7. In the light of the said undisputed facts, this court is of the view that the said judgments of the Supreme court and this court, supports the case of the petitioner. Therefore, the orders passed by the appellate authority, namely the first respondent are set aside and the appeals are remitted to the first respondent to consider the same afresh, in accordance with law and pass fresh orders, within a period of twelve months from the date of receipt of a copy of this order. The writ petitions are disposed of on the above terms. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar rj https://hcservices.ecourts.gov.in/hcservices/ To 1.The Chief Executive Officer Tamil Nadu Maritime Board 112, Sir Thygaraya Road Vairam Complex, 2nd Floor, Chennai – 600 017. 2.The Chief Executive Officer Tamil Nadu Maritime Board 112, Sir Thygaraya Road, Vairam Complex, 2nd Floor Chennai – 600 017. 2 cc to Mr. Sundar Narayan, Advocate, Sr.No.48380, 48379 1 cc To Government Pleader, SR.No.48076 W.P.Nos.4289 and 5362 of 2007 sai(co) pmk.6.9.2011 https://hcservices.ecourts.gov.in/hcservices/