The prayer in the writ petition is to quash the order of dismissal passed by the second respondent on 10.6.2000, confirmed by the first respondent in appeal by order dated 25.8.2000.
2. The facts in nutshell, necessary for disposal of this writ petition are as follows:
(a) The petitioner was appointed as Fieldman in the Tamil Nadu Poultry Development Corporation Limited on 15.3.1974 and he was paid 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 said lot. The said amount was handed over to his wife and she purchased a vacant site in her name on 6.10.1980 for a sum of Rs.4,374/- from one M.S.Rathinam, an extent of 2185 sq.ft. in survey No.165/1 of Pallapatti Village, Salem Taluk and District, which was registered as Document No.3688 dated 7.10.1980 on the file of the Joint Sub Registrar, Salem.
(c) Subsequently the said property was mortgaged before the Kasturipillai Bank at Salem by the petitioner's wife and she obtained a loan of Rs.50,000/- and constructed a house in the said land. No loan was received from the respondent Corporation.
(d) On 13.5.1987, the management issued a memo and the petitioner submitted his explanation on 23.5.1987. After receipt of explanation, the management did not take any action and kept the matter pending.
(e) On 8.5.1998, the petitioner was suspended from service without stating any reason. The said suspension order was served on the petitioner on 12.5.1998 and on the said date a charge memo was also served on him. For the said charge memo, petitioner submitted a detailed explanation on 4.6.1998. On 29.5.1998, the Corporation issued another letter stating that the petitioner was not allowed to retire from service from 31.5.1998 and his service was extended for a period of six months for finalising the disciplinary proceedings.
(f) Petitioner submitted representations on 17.12.1998 and 18.12.1998 and requested the respondents to pay subsistence allowance/provisional pension from 1.6.1998 and no subsistence allowance/provisional pension was paid. The purchase of the land in the name of the petitioner's wife was made on 6.10.1980 and after the lapse of 18 years, the charge memo was issued on 12.5.1998. The department failed to conduct any enquiry upto the year 1999.
(g) Petitioner filed W.P.No.11810 of 1999 and challenged the order of suspension dated 8.5.1998 and this Court by order dated 9.7.1999 directed the respondents therein to proceed with the domestic enquiry in respect of charges already framed and complete the enquiry and pass final orders in accordance with law, within ten months.
(h) On 17.9.1999, the department informed about the appointment of the Enquiry Officer to conduct doemstic enquiry. Petitioner was directed to appear before the Enquiry Officer on 28.9.1999 at 10.00 a.m. at TAPCO Central Office, Nandanam, Chennai and the petitioner appeared before the Enquiry Officer. The Enquiry Officer recorded petitioner's statement and no other witness was examined or documents were filed.
(i) Respondent management issued a show cause notice on 17.4.2000 along with the Enquiry Officer's findings and directed the petitioner to submit his defence statement. Petitioner submitted the same on 3.5.2000 and the Managing Director issued the order of dismissal on 10.6.2000 with effect from 8.5.1998 and advised the petitioner to file appeal before the Board of Directors of TAPCO within two months. Petitioner filed appeal on 14.7.2000 and the appeal was rejected on 25.8.2000.
(j) While considering the appeal by the Board of Directors, the Managing Director, who passed the original order of punishment also participated in the proceedings and hence the order of the appellate authority is challanged on the ground that it was passed with biased mind. It is also stated in the affidavit that the punishing authority and the appellate authority being one and the same, the order passed in the appeal is a nullity. One of the co-employee named L.J.Michael Alex who committed similar violation was not dismissed from service and he was imposed with the punishment of withholding of increment for two years with cumulative effect and therefore the respondents have treated the petitioner differently.
3. The respondent filed counter affidavit stating that the petitioner has violated the service rules of TAPCO, particularly rule 33(1) by acquiring immovable property in the name of his wife without prior permission from the competent authority and failed to intimate the construction of house as per rule 33(vi) at a cost of Rs.75,000/- and the petitioner failed to submit statement of immovable proeprty for the year 1981 onwards and thereby violated rule 33(iii). It is stated in the counter affidavit that the petitioner admittedly not obtained prior permission from the competent authority either for the purchase of the land or for construction of the house and also not furnished the statement of property particulars after 1981. The charges having been proved, major punishment of dismissal was imposed and it was confirmed by the appellate authority. It is further stated in the counter affidavit that the Poultry Development Corporation Limited was closed after obtaining permission from the Government under the Industrial Disputes Act, 1947, from 29.12.2000 and the said closure order was given effect to on 15.3.2001 and all the employees excepting those who have been absorbed in the Government service, were relieved on voluntary retirement/retrenchment.
4. Heard the learned counsel for the petitioner as well as respondent.
5. In the counter affidavit filed by the respondent, the point raised by the petitioner with regard to the appellate authority's order that the then Managing Director who passed the impugned order of dismissal took part in the proceedings and therefore the order was passed in a biased manner, is not denied. The discriminatory treatment given to the petitioner when compared to one L.J.Michael Alex is also not denied inthe counter affidavit. The delay in initiating the charge memo for about 18 years is also not explained.
6. (a) Insofar 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 : 2008 (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 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. Admittedly the Board of Directors of the Poultry Development Corporation Limited is not in existence after 29.12.2000. Therefore, there is no purpose in remitting the matter to the appellate authority to consider these aspects, particularly when the Corporation is not in existence as on today.
8. Petitioner served in the respondent Corporation from 15.3.1974 till 31.5.1998 i.e, his date of retirement and thereafter he was not allowed to retire by retaining him in service to finalise the disciplinary proceedings. The petitioner was aged 60 years when the writ petition was filed and now he is 69 years old. When the respondents proceeded against one L.J.Michael Alex for similar allegations and imposed the punishment of withholding of increment with cumulative effect for two years, there is no reason to dismiss the petitioner for similar allegations. The Department is bound to follow the parity in punishment of similarly placed persons, is now well settled. In the decision reported in (1998) 2 SCC 407 (Director General of Police v. G.Dasayan) the Honourable Supreme Court held that 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 officers similarly situated should be dealt with similarly and, thus if the charges against the employees are identical, it is desirable that they be dealt with similarly."
9. Taking note of all the above facts and circumstances of the case and applying the judgments of the Supreme Court cited above to the facts of this case, I am of the view that interest of justice would be met by setting aside the order of dismissal by imposing the punishment of withholding of increment for two years with cumulative effect to the petitioner. Since the petitioner has reached the age of superannuation as early as on 31.5.1998, the monetary loss to the petitioner, arising out of the said modified punishment, for which the respondent Corporation is entitled to, is ordered to be recovered by the respondents while sanctioning the terminal benefits payable to the petitioner. Respondents are directed to calculate and pay the terminal benefits payable to the petitioner as stated above, within a period of six weeks from the date of receipt of copy of this order.
The writ petition is ordered with the above directions. No costs.
vr To The Director of Animal Husbandry and Veterinary Services, Central Office Buildings, B-11, Chennai 600 006