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Jharkhand High Court · body

2010 DIGILAW 824 (JHR)

N. Roy Chowdhury v. Steel Authority of India Ltd. , New Delhi

2010-08-20

J.C.S.RAWAT

body2010
Order Heard the parties. 2. The petitioner was appointed as Accounts Executive and he was promoted to the post of Chief Finance Manager (F&A) by the order dated 16th August, 1997. By the impugned order dated 31.12.2002, he was removed from the service by the Disciplinary Authority i.e. the Chairman of the SAIL. The petitioner preferred an appeal before the Board of Directors and the said appeal was dismissed by the appellate authority on 20.6.2003 (Annexure-10), which is also the impugned in this writ application. 3. The learned Senior Counsel appearing for the petitioner contended that the Chairman of the SAIL, Sri V.S. Jain itself was the disciplinary authority against whose order the appeal lies to the Board of Directors of the Company, which is headed by Sri V.S. Jain, the Chairman of SAIL and the impugned order of punishment dated 31.12.2002 was passed by Sri Jain, the Chairman of the SAIL. Sri V.S. Jain headed the Board of Directors while hearing the appeal and the appeal was dismissed. He further contended that the order of removal having been passed by the Disciplinary Authority, Sri V.S. Jain, who was the then Chairman of the SAIL was disqualified to have presided over and participated in the deliberations of the Meeting of the Board, who heard and dismissed the appeal of the petitioner and therefore, the order of the appellate authority was vitiated on account of legal bias. 4. learned counsel appearing for the respondents contended that the appellate authority has passed a reasoned order and the order introduced the clarity in itself and subjectivity by objectivity or technicalities could not be considered to vitiate the proceeding. The learned counsel for the respondents further contended that the court cannot interfere with the order passed by the Disciplinary Authority passed in the appellate stage unless the order passed by the authorities suffer from illegalities or materials of procedural irregularities. He further contended that no prejudice has been caused to the petitioner by dismissing the appeal by the "Board" who was presided over by the Chairman, Sri V.S. Jain. 5. He further contended that no prejudice has been caused to the petitioner by dismissing the appeal by the "Board" who was presided over by the Chairman, Sri V.S. Jain. 5. From perusal of the record, it is clearly transpired that the Disciplinary Authority who passed the removal order of the petitioner is Sri V.S. Jain, the Chairman of SAIL and Sri V.S. Jain also participated and presided over the deliberations of the Meeting, in which the appeal of the petitioner was heard and thereafter, the impugned order was passed. It is not disputed that V.S. Jain was not the Disciplinary Authority and the Chairman of the Board. The Hon'ble Apex Court in similar situation has held as follow in paras 6, 7 and 8 in the case of Amar Nath Chowdhury VS. Braithwaite and Co. Ltd. and Ors. [ 2002(2) SCC 290 : 2002(2) PLJR (SC)253]: "Para-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 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 vs. Harbhajan Singh reported in 1996(9) SCC 281 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. (Taxation) Punjab vs. Harbhajan Singh reported in 1996(9) SCC 281 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 Sri Kishnaswami, 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. Para-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 presicie over and participate in the meeting of the Board which dismissed the appeal of the appellant. We find no merit in the argument. 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: "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." Para-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." 6. It is well settled position of law that when the departmental proceedings are challenged before the court; the court has a limited jurisdiction of judicial review into the matter. The Court while hearing the writ petition is not supposed to sit as an appellate court and the factual findings recorded by the Disciplinary Authority are not to be reappreciated though the factual findings may be incorrect. The domestic enquiry proceeding can only be vitiated if any procedural error has been committed by the Disciplinary Authority. It is also settled principle of law that the punishment can only be reduced by the Court if the Court comes to the conclusion that the punishment awarded by the disciplinary authority was shocking and it did not commensurate with the facts and circumstances of the case. In the case in hand, it is not disputed that Sri V.S. Jain, the Chairman of the Company acted as a Disciplinary Authority as well as the appellate authority when he presided over and participated in the Meetings of the Board while deciding the appeal of the appellant and such a dual function is not permissible on account of established rule against the bias. The contention of the learned counsel that no prejudice has been committed, is not tenable if the principle of bias has been violated by the appellate authority. The contention of the learned counsel that no prejudice has been committed, is not tenable if the principle of bias has been violated by the appellate authority. It is a settled principle of law that whether such dual function is to be discharged by one and the same authority, the same would be contrary to Rule against the bias. When the disciplinary authority, the Chairman of the SAIL, has taken a decision and he has already decided the cause of the petitioner and again he sits in appeal and dismisses it, the filing of the appeal by the petitioner, would be an exercise in futility. 7. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court reported in 2010(3) SCC 732 (Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and Ors.) in which the Hon'ble Apex Court has observed that the reasons is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum. The learned counsel could not demonstrate that if the reasoned order has been there the court would not consider the aspect of the legal bias. Passing a reasoned order and adhering to the principle of legal bias are two different aspects of a matter. The said judgment is not applicable in the facts of this case. 8. For the reasons stated hereinbefore, I find that the instant writ petition deserves to be allowed to the extent of quashing the order dated 20.6.2003 (Annexure-10) passed in the appeal. The order dated 20.6.2003 (Annexure-10) is hereby quashed. The matter is remitted back to the Appellate Authority and the Board of Directors is directed to decide the appeal expeditiously, in the light of the observations made above.