Judgment:
ORDER
S.B. Sinha, CJ.
1. This writ application raises an interesting question as to the propriety of a disciplinary authority to impose punishment although in the meantime he had been promoted.
2. The 1st respondent herein was working as Assistant under the petitioner-Corporation. A disciplinary proceeding was initiated against him. He was punished by an order passed by one Mr. O. Abdul Hameed on 23-11-1999. He preferred an appeal there-against which was disposed of by one Mr. S.N. Tiwari, Additional Commissioner, (P&A;) by an order dated 16-6-2000. He allegedly filed another representation but the same had not been brought in the records before the learned Tribunal.
Admittedly the disciplinary authority of the 1st respondent is the Regional Director, The said Mr. O. Abdul Hameed was holding the said office. He was promoted to the post of Additional Commissioner on 27-9-1999. The said order of promotion reads thus:
'The Director General has ordered the promotion of Sri P. Abdul Hameed, Regional Director Gr. 'A', A.P. Region to the grade of Additional Commissioner in the scale of pay of Rs.14,300-400-18,300/- on purely temporary and ad hoc basis in the interest of public service. He will remain posted as Regional Director, A.P. Region, till further orders.
2. The promotion of the above officer has been made on purely temporary and ad hoc basis and he is liable to be reverted to his lower post without notice or assigning any reason therefor. It is also made clear to him that the ad hoc promotion shall not confer on him any right to continue in the post or for regular promotion in future. The period of service to be rendered by him in the grade/cadre on ad hoc basis will neitherbe counted towards seniority in the grade/ cadre or for eligibility for promotion to the next higher grade.
3. The pay of the officer on promotion in the pay scale of Rs.14,300-400-18,300/ - will be fixed under the normal rules. It is certified that the above officer fulfils the eligibility conditions as prescribed in the ESIC (Recruitment) Regulations for promotion to the post of Additional Commissioner.
4. The promotion of the officer will take effect from the date of his joining the promoted post.
5. He will be counted against the post of Additional Commissioner (Recovery) of the headquarters office.
6. The charge report of the officer may be sent to all concerned in due course'.
3. From a perusal of the order of the appellate authority it appears that although the order dated 23-11-1999 passed by the said Mr. Hameed was questioned on merit, it was not contended that the said order was nullity having been passed by a person who was not his disciplinary authority.
4. The learned Tribunal proceeded to consider as to whether the order of dismissal having been passed by the disciplinary authority who having regard to the fact that at the relevant point of time, was holding the rank of the Additional Commissioner, the appeal could have been heard by an officer of the same rank. It was directed:
'8. It is an acknowledged rule that the appellate authority should be higher official than the disciplinary authority unless there is provision to dispose of an appeal by the same rank officer equal to that of the disciplinary authority. No such rule has been brought to out notice.
The present impugned appeal order dated 16-6-2000 was passed by an officer who is equal in rank to that of the disciplinary authority. Hence, that order is not maintainable and has to be set aside. Accordingly, it is set aside. In that view Rl is directed to pass suitable order by himself or any officer higher in rank to the disciplinary authority. The appeal of the applicant dated 14-12-1999 should be disposed of within a period of two months from the date of receipt of copy of this order'.
5. In the aforementioned situation, the Director-General of ESI Corporation was directed to hear the appeal.
6. Mr. E.G. Ravindra Reddy, the learned Counsel appearing on behalf of the petitioner inter alia submitted that on the day on which the matter was heard, the same was not on the list and thus the petitioner herein did not get an adequate opportunity to defend itself. A review application was filed by the petitioner herein. In the affidavit filed in the miscellaneous application it was inter alia stated:
'2. I submit that the OA No.984 of 2000 was filed by the respondent herein questioning the order dated 23-11-1999 dismissing him from the services passed by me and as confirmed by the Appellate Authority through order dated 16-6-2000. And that as informed by Sri N.R. Dev Raj, Advocate, the above OA was admitted on 19-7-2000. And that Sri Dev Raj sent the copy of the said OA to the office of the 2nd applicant herein on the same day, with an endorsement dated 19-7-2000 'Admit'. However, it is not informed when it is posted after adjournment. The office of the 2nd applicant was processing the OA for preparing the para-wise comments, but the respondent is surprised sand shocked to receive the order copy of this Hon'ble Tribunal in the said OA dated 24-7-2000through the fees bill of Sri N.R. Dev Raj, Advocate that after going through the order the applicant was really shocked to know the contents of the order wherein certain basic facts are misread/ misrepresented as there was neither any instruction nor any counter-affidavit from the applicants. I submit that the OA is disposed on misrepresentation of the facts as the applicants herein who are the respondents in the OA were neither put on notice nor were given opportunity to file the counter and the OA was disposed at the admission stage and that too without even oral instructions to the Counsel appearing for the applicants. Therefore, it becomes essential for the applicant to file this MA for review of the order dated 24-7-2000 passed by tin's Hon'ble Tribunal in OA No.984 of 2000, for the following among other.....'.
7. The learned Tribunal dismissed the said application:
'4. We are of the opinion that this fact now urged by the learned Counsel for review applicant is not a new fact and hence cannot be urged in a review petition. It would also appear from the contention now raised by the review petitioner that the entire order is sought to be reconsidered on merits which is not permissible in law. It is well settled that such exercise cannot be resorted to by way of review. Hence the review application is dismissed. No costs'.
8. It appears from the order dated 29-3-1999 that although the said Sri Abdul Hameed was posted as Regional Director, Andhra Pradesh Region, but he was promoted only on temporary and ad hoc basis and such promotion took effect from 29-4-1999 and he had been working in the said post of Additional Commissioner (Recovery) at the headquarters. He, therefore, was in dual charge. It is not indispute that he was the only authority who could pass such an order as a disciplinary authority. There was no other authority who could discharge the functions of the disciplinary authority. It may be true that he was holding a higher post on ad hoc basis. But as indicated hereinbefore by reason whereof, he did not cease to be the disciplinary authority. It may be further true that it is desirable that an appeal should be heard by a person who holds a higher rank than the disciplinary authority but as indicated hcreinabovc the said question was not raised before the appellate authority. Such a question has been raised only for the first time before the learned Tribunal. The learned Tribunal, in our opinion, could not have directed that the appeal be heard by a person who is not the appellate authority under the Rules. In a situation of this nature, in absence of any other authority who could discharge the function of the disciplinary authority and appellate authority, the doctrine of necessity may have to be invoked.
9. In Wade & Forsyth Administrative Law (7th Edition at page 476) it is observed thus:
'In all cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; [(19S2) PL 628 (RRS Tracey)]; for otherwise there is no means of deciding and the machinery of justice or administration will break down [Grate Charts v. Remington (1730) 2 Str, 1173]'.
10. In Deepak Diwanji v. Union of India, (1994) 1 BLJR 100, it has been held thus:
'95. However, while considering whether there is a reasonable ground forapprehension that the Tribunal is biased, one should feel satisfied that substantial miscarriage of justice will take place in the event of refusal of the said application.
In disciplinary proceedings like the present one, however, the situation might be different.
96. HWR Wade in his Administrative Law, VIth Edition at page 478 states:
'In all cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down'.
The learned author proceeds to state:
'In administrative cases the same exigency may easily arise. Where statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was successfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. The Court will naturally not allow statutory machinery to be frustrated in this way. For similar reasons a Governor of a colony may validly assent to an Act of indemnity for his own actions, since otherwise the Act could not be passed at all'.
97. Mr. P.K. Sinha, however, submitted that in terms of a circular dated 27-1-1965 a disciplinary authority while being disqualified to act can ask for provisional appointment of another disciplinary authority. The circular in question was issued by the Post and Telegraph Department. Respondent No.2 is a body corporate. Respondent No.3 is the Director of the respondent No.2-Institution. He has been delegated with the power of taking disciplinary action as against the employees of the institution. Respondent No.4 being the Chairman of the respondent No.2 is the specified Appellate Authority, in relation to disciplinary proceedings.
98. There is nothing to show that the circular letters of the Post and Telegraph Department are applicable in relation to the Government Companies within the meaning of Section 617 of the Indian Companies Act. Respondent No.2-Company being the employer has its own set of disciplinary Rules.'
In this case the appellant-Corporation is a statutory Corporation and it is governed by its own rules and regulations.
11. In Tata Cellular v Union of India, (1994) 6 SCC 651, it is observed thus:
'114. Mr. B.R. Nair was not a decision-maker at all. He was one of the recommending authorities. As Director General of Communication as well as Telecom Authority his involvement in the approval and selection of tender was indispensable. He came to be appointed as Member (Services) on 29-5-1992. By virtue of the notification dated 28-7-1992 Mr. B.R. Nair became the Director General of Telecommunication. As such, he could exercise all the powers under Section 3(6) of the Indian Telegraphs Act of 1885. Such a Telecom Authority has the right to grant cellular operatinglicences to the successful party and also reject and bids without assigning any reason. Registration fees, security deposit and other financial charges shall be fixed by the licensor in consultation with the Telecom Authority. This is what is stated in the financial bid. Therefore, Mr. B.R. Nair could not dissociate himself from the decision-making process. It is under these circumstances the High Court rightly applied the doctrine of necessity. This Court in Charan Lal Sahu v. Union of India dealt with this doctrine which is stated as follows: (SCC p.694, para 105)
'The question whether there is scope for the Union of India being responsible or liable as joint tort-feasor is a difficult and different question. But even assuming that it was possible that the Central Government might be liable in a case of this nature, the learned Attorney-General was right in contending that it was only proper that the Central Government should be able and authorised to represent the victims. In such a situation, there will be no scope of the violation of the principles of natural justice. The doctrine of necessity would be applicable in a situation of this nature. The doctrine has been elaborated, in Halsbury's Laws of England, 4th Ed., p.89, paragraph 73, where it was reiterated that even if all the members of the Tribunal competent to determine a matter was subject to disqualification, they might be authorised and obliged to hear that matter by virtue of the operation of the common law doctrine of necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in certain circumstances be required to adjudicate if there is no other person who is competent or authorised to be adjudicator or if a quorum cannot be formed without him or if no other competent Tribunal can be constituted.'
Therefore, we are unable to accept the contentions of Mr. Soli J. Sorabjee and Mr. Harish Salve.
12. In Sohan Singh v. G.M., Ordinance Factory, Khamaria, : AIR1981SC1862 , it has been held that when a question of jurisdiction had not been taken at the first instance the same may not be permitted to be raised subsequently. The apex Court observed thus:
'The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence of the jurisdiction of the labour Court to try issue No.4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the labour Court they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the labour Court on that ground alone'.
13. Furthermore, in a case of this nature when admittedly the absence of jurisdiction had not been raised nor it is contended that any prejudice has been caused to the petitioner, the Court or the Tribunal may not permit to raise such contention unless it is shown that he has grossly been prejudiced thereby. No allegation of malice or bias has been attributed to the appellate authority. In such a situation, we are of the opinion that the impugned order cannot be sustained as the same would amount to alteration of a statutory rule which is impermissible.
14. For the reasons aforementioned we are of the opinion that the impugnedorder cannot be sustained which is set aside. The learned Tribunal would, therefore, consider the matter afresh. This writ petition is allowed. The impugned order is set aside and the matter is remitted to the Tribunal for consideration afresh.