Judgment:
ORDER
K. Chandru, J.
1. The petitioner was working as an Assistant Inspector of Labour. At the time of filing of the Original Application, he was posted to work at Tuticorin. He filed O.A. No. 7939 of 1998, challenging the order of the State Government in G.O.2(D) No. 15 Labour and Employment (E.2 Department) dated 22.04.1998, confirming the order of the second respondent - Commissioner of Labour, dated 20.03.1997.
2. By the said order, the petitioner was imposed with the punishment of stoppage of increment for a period of six months without cumulative effect. The charge against the petitioner was that at the time of annual inspection at the Office of the Assistant Inspector of Labour, VI Circle, where the petitioner was working as Assistant Inspector of Labour, it was found that the petitioner had taken a sum of Rs. 20/- from the Permanent Advance Fund of the Office of the Assistant Inspector of Labour, VI Circle, Madurai and sent a telegram to the Pattukottai Assistant Inspector of Labour. The petitioner was directed to remit the said amount of Rs. 20/- in the Treasury and produce the receipt. In his explanation, the petitioner stated that it was not for his personal use and he sent the telegram to know whether the person transferred to his place was reporting to duty or not.
3. After considering the explanation of the petitioner, the second respondent framed charges against him under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules vide charge memo dated 22.03.1993. The petitioner filed an appeal dated 20.03.1995 to the first respondent. The first respondent consulted the Tamil Nadu Public Service Commission. The TNPSC by a report dated 06.11.1997 held that the charges have been proved and the punishment proposed by the Government can be granted. Accepting the said report, the Government issued the impugned Government Order. It was also stated in the impugned order that the Government had perused the entire records and found that the appeal filed by the petitioner was without substance and there were no infirmities in the enquiry. Since the charges have been proved, the question of interfering with the penalty does not arise. Hence, the petitioner filed O.A. No. 7939 of 1998 before the Tribunal against the said order.
4. The Tribunal by its order dated 08.10.1998 held that the appellate authority, who confirmed the punishment is the same person who imposed the punishment, while he was working as Commissioner of Labour. It is on this short ground, interim stay was granted by the Tribunal, which order came to be continued until further orders.
5. On notice from the Tribunal, the respondents have filed a reply affidavit dated 22.12.1999. Though the petitioner had raised several grounds in the Original Application, in Paragraph No. 6.4, he had raised the following issue:
The applicant made an appeal on 20.03.95 to the appellate authority 1st respondent herein. The original authority namely Thiru Debendranath Sarangi who was promoted as Secretary in the meanwhile to the same department has passed the orders in the appeal in utter violation of principles of administrative law.
6. In response to this ground, in the reply affidavit, it was stated as follows:
10(3) It is further submitted that the Commissioner of Labour, who awarded punishment to the applicant, happened to hold the post of Secretary to Government only by virtue of his official postings, though the punishing authority and the appellate authority happened to be the one and some person, the appellate authority did not pass orders at his own but he passed orders only after due consultation made with the Tamil Nadu Public Service Commission as per Rule 18(1)(a) of Tamil Nadu Public Service Commission regulations and accordingly, the appellate authority rejected the appeal petition of the applicant. Hence, there is no violation of principles of administrative law.
7. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P. No. 41487 of 2006.
8. The fact that the very same person sat as an appellate authority and confirmed his own order cannot be accepted by this Court. When a statutory appellate authority hears the appeal, there must be semblance of fairness in hearing the appeal. When the very same person who is also functioning as appellate authority ought not to have decided the appeal under the Business Rules framed under Article 166(3) of the Constitution. If such contingency arises, the matter can be remitted to the Chief Secretary or to any other Secretary in equivalent rank by getting appropriate order from the Hon'ble Minister for Labour or from the Hon'ble Chief Minister. Therefore, it is not as if the same person out of necessity has to hear such an appeal.
9. In this context, it is necessary to refer to the judgment of the Supreme Court in Election Commission of India v. Dr. Subramaniam Swamy reported in : (1996) 4 SCC 104. The extreme example pointed out by the Supreme Court as found in Paragraph 16 extracted hereunder is not available to the case of the first respondent herein.
16. We must have a clear conception of doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit there from. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.
10. Further in this case, there is no question of only one person being available for hearing such appeals. When Secretary to Government was disqualified from hearing a case, he ought to have brought it to the notice of the Government about his inability to deal with the file and the matter should have been posted before some other authority after getting orders. The right of appeal is provided under the Rules framed under 309 of the Constitution of India and the authority who is hearing the statutory appeal is discharging a quasi judicial function.
11. In the light of the above, the writ petition stand allowed; the order of the state Government in G.O.2(D) No. 15 Labour and Employment (E.2 Department) dated 22.04.1998 will stand set aside and the matter is remitted to the first respondent for fresh disposal of the petitioner's appeal dated 20.03.1995 in accordance with law. No costs.