S.D. Balasubramaniam v. The Director of Animal Husbandry and Veterinary Services
Case at a glance
Provisions considered
Key paragraphs
- Para 88. Petitioner served in the respondent Corporation from15.3.1974 till 31.5.1998 i.e, his date of retirement and thereafterhe was not allowed to retire by retaining him in service to finalisethe disciplinary proceedings. The petitioner was aged 60 years whenthe writ petition was filed and now he…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9-7-2009CORAMTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.NO.3006 OF 2001S.D. Balasubramaniam... PetitionerVs.The Director of Animal Husbandry and Veterinary Services, Central Office Buildings, B-11,Chennai - 600 006.... Respondents(Cause title with regard to respondent amended as per the orderof the Court dated 4.9.2008 in WPMP No.1362/2008)This writ petition is filed under Article 226 of Constitutionof India, praying this Court to issue a writ of Certiorari, callingfor the entire records relating to the dismissal order passed by thesecond respndent by his order in Ref. No.RC.No.9574/E1/87, dated10.6.2000 and confirming the dismissal order by the first respondentin Proc. No.R.C.No.9574/E1/87 dated 25.8.2000 and quash the same. For Petitioner: Mr.K.JayaramanFor Respondent: Mr.I.Paranthaman Addl. Govt. PleaderO R D E RThe prayer in the writ petition is to quash the order ofdismissal passed by the second respondent on 10.6.2000, confirmed bythe first respondent in appeal by order dated 25.8.2000.
The facts in nutshell, necessary for disposal of thiswrit petition are as follows: (a)The petitioner was appointed as Fieldman in the TamilNadu Poultry Development Corporation Limited on 15.3.1974 and he waspaid a sum of Rs.3,500/- as last drawn wages. (b)According to the petitioner, in the year 1980,petitioner purchased a lottary ticket of the lot conducted by the Tamil Nadu Government and the petitioner won Rs.25,000/- in the saidlot. The said amount was handed over to his wife and she purchaseda vacant site in her name on 6.10.1980 for a sum of Rs.4,374/- fromone M.S.Rathinam, an extent of 2185 sq.ft. in survey No.165/1 of https://hcservices.ecourts.gov.in/hcservices/ Pallapatti Village, Salem Taluk and District, which was registered as Document No.3688 dated 7.10.1980 on the file of the Joint SubRegistrar, Salem. (c)Subsequently the said property was mortgaged beforethe Kasturipillai Bank at Salem by the petitioner's wife and sheobtained a loan of Rs.50,000/- and constructed a house in the saidland.
No loan was received from the respondent Corporation. (d)On 13.5.1987, the management issued a memo and thepetitioner submitted his explanation on 23.5.1987. After receipt ofexplanation, the management did not take any action and kept thematter pending. (e)On 8.5.1998, the petitioner was suspended from servicewithout stating any reason. The said suspension order was served onthe petitioner on 12.5.1998 and on the said date a charge memo wasalso served on him. For the said charge memo, petitioner submitted adetailed explanation on 4.6.1998. On 29.5.1998, the Corporationissued another letter stating that the petitioner was not allowed toretire from service from 31.5.1998 and his service was extended for aperiod of six months for finalising the disciplinary proceedings. (f)Petitioner submitted representations on 17.12.1998 and18.12.1998 and requested the respondents to pay subsistenceallowance/provisional pension from 1.6.1998 and no subsistenceallowance/provisional pension was paid.
The purchase of the land inthe name of the petitioner's wife was made on 6.10.1980 and after thelapse of 18 years, the charge memo was issued on 12.5.1998. Thedepartment failed to conduct any enquiry upto the year 1999.(g)Petitioner filed W.P.No.11810 of 1999 and challengedthe order of suspension dated 8.5.1998 and this Court by order dated9.7.1999 directed the respondents therein to proceed with thedomestic enquiry in respect of charges already framed and completethe enquiry and pass final orders in accordance with law, within tenmonths. (h)On 17.9.1999, the department informed about theappointment of the Enquiry Officer to conduct doemstic enquiry. Petitioner was directed to appear before the Enquiry Officer on28.9.1999 at 10.00 a.m. at TAPCO Central Office, Nandanam, Chennaiand the petitioner appeared before the Enquiry Officer. The EnquiryOfficer recorded petitioner's statement and no other witness wasexamined or documents were filed.
(i)Respondent management issued a show cause notice on17.4.2000 along with the Enquiry Officer's findings and directed thepetitioner to submit his defence statement. Petitioner submitted thesame on 3.5.2000 and the Managing Director issued the order ofdismissal on 10.6.2000 with effect from 8.5.1998 and advised thepetitioner to file appeal before the Board of Directors of TAPCOwithin two months. Petitioner filed appeal on 14.7.2000 and theappeal was rejected on 25.8.2000. https://hcservices.ecourts.gov.in/hcservices/ (j)While considering the appeal by the Board of Directors, the Managing Director, who passed the original order ofpunishment also participated in the proceedings and hence the orderof the appellate authority is challanged on the ground that it waspassed with biased mind. It is also stated in the affidavit that thepunishing authority and the appellate authority being one and thesame, the order passed in the appeal is a nullity. One of the co-employee named L.J.Michael Alex who committed similar violation wasnot dismissed from service and he was imposed with the punishment ofwithholding of increment for two years with cumulative effect andtherefore the respondents have treated the petitioner differently.
The respondent filed counter affidavit stating thatthe petitioner has violated the service rules of TAPCO, particularlyrule 33(1) by acquiring immovable property in the name of his wifewithout prior permission from the competent authority and failed tointimate the construction of house as per rule 33(vi) at a cost ofRs.75,000/- and the petitioner failed to submit statement ofimmovable proeprty for the year 1981 onwards and thereby violatedrule 33(iii). It is stated in the counter affidavit that thepetitioner admittedly not obtained prior permission from thecompetent authority either for the purchase of the land or forconstruction of the house and also not furnished the statement ofproperty particulars after 1981. The charges having been proved, major punishment of dismissal was imposed and it was confirmed by theappellate authority. It is further stated in the counter affidavitthat the Poultry Development Corporation Limited was closed afterobtaining permission from the Government under the IndustrialDisputes Act, 1947, from 29.12.2000 and the said closure order wasgiven effect to on 15.3.2001 and all the employees excepting thosewho have been absorbed in the Government service, were relieved onvoluntary retirement/retrenchment.
Heard the learned counsel for the petitioner as wellas respondent.
In the counter affidavit filed by the respondent, thepoint raised by the petitioner with regard to the appellateauthority's order that the then Managing Director who passed theimpugned order of dismissal took part in the proceedings andtherefore the order was passed in a biased manner, is not denied. The discriminatory treatment given to the petitioner when compared toone L.J.Michael Alex is also not denied inthe counter affidavit. Thedelay in initiating the charge memo for about 18 years is also notexplained. https://hcservices.ecourts.gov.in/hcservices/
6.(a) Insofar as the original authority participating inthe appeal proceeding and whether bias can be presumed was consideredby the Honourable Supreme Court in the decision reported in (2008) 12SCC 230 : 2008 (3) LLN 95 (Cantonment Executive Officer v. VijayD.Wani) and in paragraph 7 (in SCC) it is held thus,"7. The question of bias is always thequestion of fact. The court has to be vigilantwhile applying the principles of bias as itprimarily depends on the facts of each case. Thecourt should only act on real bias not merely onlikelihood of bias. In the present case, so far asthe members of the Committee who conducted adisciplinary inquiry were also the members of the Cantonment Board where the report was to beconsidered, decided and whether to accept it ornot and finding the respondent (herein) guilty ornot. The very fact that these three persons whoconducted inquiry were also the members of the Board and that the Board was to take a decision inthe matter whether the report submitted by theenquiry committee should be accepted or not.
Therefore, the participation of these threemembers in the Committee has given a realapprehension in the mind of the respondent that hewill not get a fair justice in the matter becausethe three members who submitted the report wouldbe interested to see that their report should beaccepted. This bias in this case cannot be said tobe unreal, it is very much real and substantialone that the respondent is not likely to get afair deal by such disciplinary committee. "(b)In the earlier decisions of the Supreme Court reportedin 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 thesubject matter was being discussed and decided by participation ofthe person who passed the original order, certainly it creates areasonable impression in the party, whose rights are beingadjudicated, that there may be a likelihood of bias. Thus, theparticipation of the then Managing Director in the deliberation whileconsidering the appeal filed by the petitioner has vitiated the orderpassed in the appeal.
7. Admittedly the Board of Directors of the PoultryDevelopment Corporation Limited is not in existence after 29.12.2000.Therefore, there is no purpose in remitting the matter to theappellate authority to consider these aspects, particularly when the Corporation is not in existence as on today. https://hcservices.ecourts.gov.in/hcservices/
Petitioner served in the respondent Corporation from15.3.1974 till 31.5.1998 i.e, his date of retirement and thereafterhe was not allowed to retire by retaining him in service to finalisethe disciplinary proceedings. The petitioner was aged 60 years whenthe writ petition was filed and now he is 69 years old. When therespondents proceeded against one L.J.Michael Alex for similarallegations and imposed the punishment of withholding of incrementwith cumulative effect for two years, there is no reason to dismissthe petitioner for similar allegations. The Department is bound tofollow the parity in punishment of similarly placed persons, is nowwell settled. In the decision reported in (1998) 2 SCC 407 (DirectorGeneral of Police v. G.Dasayan) the Honourable Supreme Court heldthat persons involved in identical charge shall be treated equally. In the decision reported in (2008) 2 SCC 74 (Akhilesh Kumar Singh v.State of Jharkhand) in paragraph 15, it is held thus,"15. It is true that delinquent officerssimilarly situated should be dealt with similarlyand, thus if the charges against the employeesare identical, it is desirable that they be dealtwith similarly. "
Taking note of all the above facts and circumstancesof the case and applying the judgments of the Supreme Court citedabove to the facts of this case, I am of the view that interest ofjustice would be met by setting aside the order of dismissal byimposing the punishment of withholding of increment for two yearswith cumulative effect to the petitioner. Since the petitioner hasreached the age of superannuation as early as on 31.5.1998, themonetary loss to the petitioner, arising out of the said modifiedpunishment, for which the respondent Corporation is entitled to, isordered to be recovered by the respondents while sanctioning theterminal benefits payable to the petitioner. Respondents aredirected to calculate and pay the terminal benefits payable to thepetitioner as stated above, within a period of six weeks from thedate of receipt of copy of this order. The writ petition is ordered with the above directions. Nocosts. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ vrToThe Director of Animal Husbandry and Veterinary Services, Central Office Buildings, B-11, Chennai - 600 006.1 cc To Mr.K.Jayaraman, Advocate, SR.29839.W.P.No.3006 of 2001 LA(CO)RVL 16.07.2009
Questions this judgment answers
Which statutory provisions did this judgment involve?
IndustrialDisputes Act, 1947.
Which court decided this case, and when?
Madras High Court, on 09 Jul 2009. The bench was N PAUL VASANTHAKUMAR.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.