In the High Court of Judicature at Madras
Dated: 17/01/2006
Coram
The Hon'ble Mr.Justice R.SUDHAKAR
W.P.No.15989 of 1996
S.Jeyasheela .. Petitioner
-Vs-
1. The Joint Registrar of
Co-operative Societies,
Nagercoil,
Kanyakumari District.
2. Thalakulam Eraniel Farmers
Service Co-operative Society Ltd.,
Monday Market,
Neyyoor Post, Kanyakumari District,
Rep. by its Special Officer.
3. S.Sam Sundar .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorari, calling for the records relating
to the proceedings of the second respondent dated 31.12.199 3 and the
proceedings of the first respondent in Na.Ka.No.4335/94, dated 22.5.1996, and
quash the same.
!For Petitioner : Mr.Edwing for
M/s.P.T.Perumal
^For R1 : Mr.Sanjay Ramaswamy
Govt. Advocate
For R2 : Mr.A.R.Nixon
For R3 : No appearance
:O R D E R
The writ petition has been filed challenging the proceedings of the
second respondent dated 31.12.1993 and the proceedings of the first respondent
in Na.Ka.No.4335/94, dated 22.05.1996.
2. The case of the petitioner is that she was employed as Accountant
in the second respondent society, three charge memos, were served on her.
Criminal proceedings were also initiated. The second respondent-Society
appointed Mr.Sam Sundar, Advocate as the Enquiry Officer in the departmental
proceedings.
3. Petitioner filed Civil Suit in O.S.No.396 of 1993 on the file of
the District Munsif Court, Padmanabhapuram, questioning the suspension order
dated 12.04.1993 passed against the writ petitioner. The third respondent
Mr.Sam Sunder, Advocate filed a vakalat on behalf of the second
respondent-Society and contested the case on merits. Therefore, the
petitioner objected to the appointment of the Third respondent as Enquiry
Officer, however, the enquiry proceeded further and the third respondent
framed charges against the writ petitioner and conducted the enquiry.
According to the writ petitioner, the Enquiry Officer/third respondent, who
was the counsel for the second respondent was biased and hostile towards the
petitioner. The petitioner did not participate in the proceedings and the
enquiry was conducted ex-parte. The report of the enquiry was submitted to
the second respondent by report dated 6.9.1993 and the petitioner was found
guilty of all the charges. On the basis of the enquiry report a show cause
notice was issued calling for explanation as to why petitioner should not be
dismissed from service. This notice was received 0n 25 .10.1 993. By letter
dated 28.10.93 petitioner requested for 30 days time to reply. By another
letter dated 28.10.93 the petitioner complained that no proper opportunity was
given in spite of pleading for time on health grounds and further objected to
the appointment of third respondent as enquiry officer and wanted to cross
examine the witnesses who have deposed against the petitioner and stated that
the reply will be submitted thereafter. The second respondent rejected the
request on the ground that the intention of the petitioner is to delay the
disciplinary enquiry. Therefore, the petitioner was dismissed from service by
the impugned order of the Special Officer dated 31.12.1993 . As against the
order of the Special Officer dated 31.12.1993, the writ petitioner filed a
revision before the first respondent on 15.03 .1 994.
4. The contention of the petitioner in the revision was that the
third respondent herein is the counsel for the second respondent in the civil
suit filed by the petitioner and the third respondent having been appointed as
the Enquiry Officer, the proceedings were violative of principles of Natural
Justice and biased and has caused prejudice to her. That the third respondent
is hostile and biased against the petitioner. The revision was disposed of on
22.05.1996. The counsel for the petitioner would submit that the revision
petition was dismissed, without considering the various contentions raised
before the authority, and the order of the first respondent confirming the
dismissal order of the second respondent dated 31.12.1993 is bad and contrary
to principles of Natural Justice and inherently defective.
5. A counter has been filed by the first respondent. The contention
on behalf of the first respondent is that the writ petitioner who was working
in the Society was suspended on 12.4.1993, on account of involvement in the
large scale misappropriation. The charges were framed, against her on
different dates and the same were served on her. No explanation was submitted
by the petitioner. The petitioner wanted certain documents which were given.
Further, she did not submit her explanation, but filed O.S.No.396 of 1993 on
the file of the District Munsif Court, challenging the suspension, which was
dismissed. The Special Officer instituted Domestic Enquiry, but petitioner
left the enquiry in the middle and thereafter did not attend the enquiry at
all and the Domestic enquiry officer filed a report. Based on the report, a
second show cause notice was issued with regard to punishment, for which, no
reply was submitted by the petitioner. On the basis of the findings, the writ
petitioner was dismissed from service with effect from 31.12.1993. The
revision petition filed by the petitioner under Section 153 of the Tamil Nadu
Co-operative Societies Act, 1983 was also dismissed on merits. The first
respondent’s contention is that there is no legal bar in taking up the
domestic enquiry by the legal advisor, that the third respondent did not frame
the charges and it was the second respondent who had framed the charges and it
was also the second respondent who issued the second show cause notice to the
writ petitioner, that the writ petitioner did not submit any explanation and
therefore, based on the report of the Enquiry Officer, and the materials on
record, the writ petitioner was dismissed from service on 31.12.1993. The
first respondent has also made an elaborate enquiry into the matter, and
confirmed the order of the dismissal. The charges framed against the
petitioner are very serious in nature and the writ petitioner colluded with
the other staff of the Society and misappropriated huge amounts and therefore,
sought for dismissal of the writ petition.
6. Learned counsel for the petitioner would submit that his only
contention in this writ petition is that appointment of the third
respondent-Advocate as the Enquiry Officer has seriously prejudiced
petitioners case as the third respondent is biased having appeared against the
petitioner in the civil suit filed, defending the order of suspension on
behalf of the second respondent. In this connection, the learned counsel for
the petitioner invited the attention of this Court to the Memorandum of
Revision Petition filed before the first respondent and referred to letter
dated 28.10.1993 which is at paragraph 7 of the said Memorandum of Revision
Petition and also to ground 10(a) of the grounds of revision. That the second
respondent who passed the order of punishment dismissing the petitioner from
service was a witness in the enquiry proceedings. It is also contended by the
counsel for the petitioner that a serious punishment by way of dismissal from
service has been imposed on the petitioner and no proper opportunity to
explaining her case was granted. The first respondent/revisional authority
merely recorded all the contentions made by the petitioner and respondent. In
paragraph 2 of the order dated 22.5.1996, the first respondent, after
extracting the contentions of the petitioner and submissions filed by the
Society in detail, dismissed the revision petition without any reasoning or
discussion on the objections made. There is total non application of mind.
The order of the dismissal is cryptic and therefore has to be set aside.
7. On a perusal of the order of the first respondent, it is apparent
that the relevant objections raised by the petitioner have not been
considered, except stating that the charges framed against the writ petitioner
are very serious. The first respondent rejected the plea of the petitioner
that the action taken against her is bad, that the petitioner should be
reinstated. The first respondent confirmed the order of dismissal. The first
respondent has not considered the plea of prejudice and the allegation of bias
against the Enquiry Officer at all. The learned counsel for the petitioner
also brought to the attention of this Court to the order dated 16.3.2000
passed in W.P. NO.1602 9 of 1996 in respect of another employee,namely
T.Paulian, who was working in the very same second respondent-Society and
faced similar charges. In that writ petition, this Court passed an order
setting aside the order of dismissal and ordered enquiry afresh by a new
enquiry officer.
8. The second respondent who passed the order of dismissal is a
witness in the enquiry proceedings, against the writ petitioner, and
thereafter based on enquiry report the second respondent passed the order of
dismissal. Further, the third respondent having defended the second
respondent in the civil suit in the proceedings initiated by the petitioner,
ought not to have conducted the enquiry proceedings, and the plea of bias will
hold good against the third respondent. Therefore, the petitioner plea that
rules of natural justice have been violated and grave prejudice has been
caused to the writ petitioner has to be accepted and the order of dismissal is
liable to be set aside.
9. In this case, the petitioner has been repeatedly requesting
the second respondent to change the Enquiry Officer on the ground of bias and
personal prejudice. However, this plea was not taken into consideration at
all and the enquiry was completed and the order of dismissal was passed.
10. On a perusal of the order of the first respondent, it is clear
that the first respondent confirmed the order of the second respondent inspite
of the specific objections made by the writ petitioner about the continuance
of the third respondent as Enquiry Officer.
11. In AIR 1958 SC 86 (State of U.P.Vs. Mohd.Nooh), the Apex Court
had an occasion to deal with the issue of bias. In that case, when one of the
witnesses against the employee turned hostile, the officer holding the enquiry
then left the enquiry and gave evidence against the employee and thereafter,
resumed to complete the enquiry and passed the order of dismissal. The Apex
Court quashed the order of dismissal holding inter-alia that the rules of
natural justice were grievously violated. In the same judgment in paragraph
11, it is held as follows:
“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 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, 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.”
In another reported case, the Apex Court in AIR 1988 SC 2232 ( Secretary to
Govt. Transport Dept. Vs. Munusamy), dealt with the issue of bias and held
that the deciding authority must be impartial and without bias. Further, the
plea of bias was affirmed in another decision reported in AIR 1993 SC 2155
(R.L.Sharma Vs. Managing Committee, Dr. Hari Ram (C0-edn.) H.S.School.
12. In a case reported in 2005 (6) SCC 321 (CANARA BANK Vs. V.K.
AWASTHY), the Supreme Court while dealing with the question of violation of
principles of natural justice has referred to the well-known principle that
“justice should not only be done, but should manifestly be seen to be done”.
13. Therefore, for the reasons aforesaid the proceedings impugned in
the writ petitions are set aside and the second respondentSociety is directed
to a appoint member of the Bar with 20 years standing as Enquiry Officer or
any such competent person as per law. The Enquiry Officer is directed to
provide reasonable opportunity to the employer and the writ petitioner to let
in evidence in support of their case and the enquiry as directed, should be
completed as expeditiously as possible preferably within a period of two
months on appointment of the Enquiry Officer.
14. The writ petition is disposed of in the above terms. No costs.
sgl