S. Muthuram Vs. the Chief Executive Officer, Tamil Nadu Khadi and Village Board and the Regional Deputy Director, Khadi and Village Industries - Court Judgment

Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. orderv. dhanapalan, j.1. challenging the proceedings of the 1st respondent in na.ka. no. 21315/e3(1)/2002 dated 11.08.2003 and the consequential board's order in (ms) no. 9, dated 08.03.2004 and for a direction to the 1st respondent to reinstate him with all service and monetary benefits, the petitioner has filed this writ petition.2. the petitioner would state that he was initially appointed as grade - iii khadi assistant on 07.12.1984 and posted at khadi & village industries, karaikudi; subsequently, he was promoted as grade-ii, khadi assistant and then as grade - i khadi assistant. according to the petitioner, he was working with utmost satisfaction of the superiors, rendering sincere service for nearly 20 years.2a. he would further state that while he was working as grade-i khadi assistant at khadi shop, ramanathapuram, charges were framed against him on 04.03.1999 under rule 34(b) of the board's service regulation on 3 counts for the alleged irregularity committed by him while sanctioning loan for khadi uniform material and thereby had misappropriated and caused loss to the board. pursuant to the same, the petitioner submitted an explanation on 02.07.1999, refuting the charges. on the basis of the enquiry officer's report and the petitioner's further representation, the 1st respondent passed a final order on 17.10.2001 holding charge nos. 1 and 3 as proved, imposing two punishments, viz., reversion from the post of khadi assistant grade - i to khadi assistant grade - ii for a period of two years and stoppage of future increment for a period of two years on his restoration to the original post.2b. according to the petitioner, the order of the 1st respondent is non-est in the eye of law and there cannot be two punishments for a single charge memo; moreover, it amounts to double jeopardy and is violative of article 20(2) of the constitution of india. accepting the said order of the 1st respondent, the petitioner joined in the post of khadi assistant grade - ii and while he was continuing in the said post under the control of the assistant director (khadi & village industries), ramanathapuram, he was served with a charge memo dated 16.07.2002 under rule 34(b) of board's service regulations issued by the 2nd respondent on 6 counts. pursuant to the said disciplinary proceedings, the petitioner was placed under suspension on 26.10.2002 and thereafter, the 2nd respondent, who framed charges as against the petitioner was appointed as enquiry officer to conduct the enquiry to find out the validity of the charges. after following due formalities, the 1st respondent passed a final order on 11.08.2003 removing the petitioner from service, against which the petitioner preferred an appeal before the 1st respondent on 22.10.2003 and that the said appeal was confirmed under the impugned order dated 08.03.2004.2c. it is the case of the petitioner that the 2nd respondent himself, who has framed charges against the petitioner has conducted the enquiry as against the settled principles of law and the final order of punishment has been passed by the 1st respondent on 11.08.2003 and the appeal has also been decided by the same authority by the impugned order dated 08.03.2004, thereby depriving the legitimate right of appeal remedy. according to the petitioner, the entire disciplinary proceedings is bad in law and same is liable to be quashed.3. in the counter affidavit filed by the respondents, it is stated that the petitioner during his tenure of service in ramnad district, committed certain irregularities such as raising certain items in the original invoice but writing different items in the duplicate of the invoice, thereby caused loss to the khadi board, for which disciplinary action was initiated against him under regulation 34(b) of the tamil nadu khadi and village industries board's regulations and a punishment of reduction in rank as khadi assistant grade ii for two years along with stoppage of increment was awarded.3a. it is further stated by the respondents that while the petitioner was serving in the reverted post of khadi assistant grade-ii, he again committed certain serious irregularities and caused huge loss to the board to the tune of rs. 5,47,608.35, for which charges were framed and an enquiry officer was appointed to conduct enquiry. the respondents would submit that the petitioner fully participated in the enquiry, submitted his explanation and the enquiry officer also submitted his report. according to the respondents, only after taking into consideration the material evidence available on record, nature of charges, enquiry report and the defence submitted by the petitioner, the disciplinary authority passed final order on 11.08.2003, removing the petitioner from the board's service.3b. as regards the contention of the petitioner that the 2nd respondent who framed the charges also conducted the enquiry, the respondents would submit that the charges framed against the petitioner was by thiru. g. mahadevan, the then regional deputy director (khadi and village industries), madurai and the enquiry was conducted by thiru. r. jayaraj, regional deputy director (khadi and village industries), madurai. it is the case of the respondents that the charges framed against the petitioner and the enquiry conducted in that regard were done by different officers and hence there is no violation.3c. with regard to the contention raised by the petitioner that the disciplinary authority and the appellate authority are one and the same, the respondents have stated that the appeal preferred by the petitioner dated 22.10.2003 before the secretary to government, handlooms, handicrafts, textiles and khadi (f1) department was returned to the appellate board for consideration; the appellate board, after careful consideration of the petitioner's appeal rejected the same on 08.03.2004. in this regard, the respondents would state that the government, in g.o.ms. no. 26, handlooms, handicrafts, textiles and khadi (f1) department, dated 10.03.1998 had amended regulation 38 (which provides for preferring an appeal in respect of the employees belonging to group c & d categories) and the appeal against the order passed by the chief executive officer, shall be preferred to the board instead of secretary to the government dealing with the subject 'khadi and village industries'. therefore, the respondents would state that after the amendment, the commissioner and secretary to the government is not the appellate authority in respect of group c & d employees and the same has been substituted with that of 'board'.3d. with regard to the earlier charges framed against the petitioner, the respondents would state that the petitioner was reverted to khadi assistant grade ii for a period of two years and after the punishment period, he got back his original post of khadi assistant grade i; hence, the claim of the petitioner that after promoting him to khadi assistant grade i, the second set of charges levelled against him does not have legs to stand cannot be held as true.4. heard the submissions made by mrs. malarvizhi udayakumar, learned counsel for the petitioner and mr. s. packiaraj, learned counsel for the respondents.5. learned counsel for the petitioner would submit that the 1st respondent vide his proceedings dated 11.08.2003 has imposed the punishment of removal of the petitioner from service and subsequently, the appeal preferred by the petitioner has been rejected by the board, wherein the 1st respondent happens to be a member of the board, which shows that there is apprehension of bias. learned counsel would contend that by virtue of the amendment of regulation 38 as per g.o.ms. no. 26, dated 10.03.1998, an aggrieved person imposed with any major punishment by the chief executive officer will have to appeal to the board, wherein the chief executive officer is a member of the board and therefore, there is apprehension that the appeal has not been considered reasonably. according to the learned counsel, the impugned order has been passed in violation of the principles of natural justice, since the petitioner's plea to consider the punishment imposed on him and to modify the same has not been taken note of, as the person who passed the impugned order was sitting in the board as a member.5a. in support of her case, learned counsel for the petitioner has relied on a decision of the supreme court of india reported in 2009 (1) ctc 740 in the case of a.u. kureshi v. high court of gujarat and anr. relevant portion of the said decision are extracted herein:8. the decision made by the disciplinary committee was a vital component of the process by which the high court of gujarat made the recommendation to the state government for the dismissal of the appellant. it is therefore not proper for a member of the said disciplinary committee to decide on a challenge against the same dismissal order while acting in a purely judicial capacity.9. it is an accepted principle of natural justice that a person should not be a judge in his or her own cause. in common law, this principle has been derived from the latin maxim - 'nemo debet esse judex in propria sua causa'. a reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she had dealt with in any capacity, other than a purely judicial one. the failure to adhere to this principle creates an apprehension of bias on part of the said judge. it would be useful to refer to the observations of justice p.n. bhagwati in ashok kumar yadav v. state of haryana : air1987sc454 :one of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. the question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. if there is a reasonable likelihood of bias 'it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting'. the basic principle underlying this rule is that justice must not only be done but must also appear to be done.6. on the other hand, learned counsel for the respondents would submit that six charges were framed against the petitioner and he was given full opportunity to defend his case; a domestic enquiry was conducted and the petitioner fully participated in the enquiry and that based on the findings of the enquiry officer, the petitioner was removed from service. learned counsel would further submit that the petitioner has never raised any of those pleas raised in the writ petition before the enquiry officer or at the time of giving further explanation that the enquiry officer and the officer who framed the charges are one and the same. it is also his contention that the petitioner never questioned the enquiry proceedings, but has raised only technical grounds and there is no double jeopardy as claimed by the petitioner.6a. learned counsel for the respondents has relied on a decision of this court reported in 2009 (2) ctc 611 in the case of r. kannan v. deputy inspector general of police, trichy range, trichy, wherein, relevant paragraph would read thus:insofar as the contention that the enquiry officer was appointed prior to the expiry of the time given to submit the explanation, it is to be noted that rule 3(b) of the rules, nowhere states that the enquiry officer can be appointed only after the expiry of the time granted for submitting his explanation of the charge memo and after considering the explanation submitted. rule 3(b) only contemplates framing of charge memo and the delinquent shall be required a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. therefore, there is no prohibition under the rules to appoint the enquiry officer after the issuance of the charge memo before getting explanation from the petitioner as per rule 3(b) of the rules. further, as rightly stated in the counter affidavit, the enquiry officer commenced his proceedings after ten days from the date of receipt of the charge memo and the petitioner without objection participated in the enquiry and cross-examined all the witnesses. no defect in the enquiry was pointed out or raised by the petitioner during the time of enquiry. therefore, there is no procedural violation conducted by the department in this case.7. a scrutiny of the material records would reveal that the petitioner was appointed as grade - iii khadi assistant on 07.12.1984 and subsequently promoted as grade ii khadi assistant and then as grade - i khadi assistant. on 04.03.1999, charges under rule 34(b) of the board's service regulation were framed against the petitioner and after conducting enquiry, punishment of reversion from the post of khadi assistant grade - i to the post of khadi assistant grade - ii for a period of two years and stoppage of increment for a period of two years on his restoration to his original post was imposed. the petitioner did not challenge the said punishment and he was restored back as grade - i khadi assistant on completion of the period of punishment.8. it is further seen that after the period of punishment, while the petitioner was working as khadi assistant grade - i, he was served with charge memo on 16.07.2002 under rule 34(b) of the board's service regulation and disciplinary proceedings were initiated, in which six charges have been framed against the petitioner by the 2nd respondent and thereafter, he conducted an enquiry in the capacity of regional deputy director and also as enquiry officer. after the completion of enquiry, following the procedures contemplated under law and also after affording an opportunity of hearing to the petitioner, the chief executive officer, the 1st respondent herein imposed the punishment of removal of the petitioner from service on 11.08.2003, against which the petitioner preferred an appeal before the 1st respondent on 22.10.2003 and the appeal was rejected by the impugned order dated 08.03.2004. challenging the said order passed by the 1st respondent, the petitioner is before this court.9. as regards the question raised by the petitioner that the second set of charges framed in the charge memo dated 16.07.2002 issued against him by the 2nd respondent on 6 counts amounts to double jeopardy, it is seen that the petitioner did not challenge the earlier charge memo and the charges were proved, resulting in the reversion of the petitioner from khadi assistant grade i to grade ii. moreover, the second set of charges were framed on a separate and independent cause of action. therefore, it is clear that the petitioner is not inflicted with double punishment and the second set of charges framed against him have arisen out of a different cause of action. hence, the question of double jeopardy and violation of article 20(2) of the constitution of india cannot be sustained and that contention of the petitioner fails.10. the next question raised in this case is the authority competent to frame charges must be the authority appointed under the rules and he should not be the authority competent to hold an enquiry. in the case on hand, charges were framed against the petitioner by the regional deputy director and he himself acted as an enquiry officer. according to the petitioner, though the person is different, the authority is the same and hence, there is infirmity with the enquiry proceedings. on going through the material records, it is given to understand that the petitioner has not challenged the punishment with regard to the first charge memo; but, thereafter, a second charge memo has been issued and on completion of enquiry, punishment was imposed against which an appeal has been preferred and the said appeal was also rejected. it is further seen that only after taking into consideration the material evidence on record, number of charges, enquiry report and the defence made by the petitioner, the final order has been passed. it is not pointed out that under the rules, the authority competent to frame the charges cannot act as an enquiry officer and therefore, there is no infirmity with the enquiry proceedings. moreover, the petitioner has participated in the entire enquiry proceedings. therefore, i do not find any infirmity with the same and the contention of the petitioner fails. at this point of time, it is seen that the decision relied on by the learned counsel for the respondents is not factually applicable to the case on hand.11. the last but foremost contention made by the petitioner is that the chief executive officer, the 1st respondent herein has also acted as an appellate authority and therefore, the petitioner has been deprived of the appellate remedy. since the petitioner is a member of the appellate board, there is an apprehension of bias. it is seen that the government in g.o.ms. no. 26 handlooms, handicrafts, textiles and khadi [f1] department, dated 10.03.1998 had amended regulation 38 (which provides for preferring an appeal in respect of the employees belonging to group 'c' and 'd' categories) and the appeal against the order passed by the chief executive officer, shall be preferred to the board instead of secretary to the government dealing with the subject 'khadi and village industries'. therefore, as per the amendment, the government or the secretary to government is not the appellate authority in respect of group 'c' and 'd' employees. in such a case, it has to be examined as to whether the disciplinary authority being a member of the board can act as an appellate authority and there is a likelihood of bias affecting the decision.12. to examine as to whether the first respondent has acted with bias, it is to be seen that it is a settled proposition that a person should not be a judge in his or her own cause and this principle has been derived from the latin maxim - 'nemo debet esse judex in propria sua causa', which means that no judge should adjudicate a dispute which he or she had dealt with in any capacity, other than a purely judicial one. the said principle has been adhered to by the supreme court in the case of ashok kumar yadav v. state of haryana : air1987sc454 , wherein it is held that one of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. the question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. if there is a reasonable likelihood of bias, it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting. further, the basic principle underlying this rule is that justice must not only be done but must also appear to be done.13. in the instant case, the disciplinary authority namely, the chief executive officer, who has dealt with in that capacity and imposed the punishment of removal from service has been the member of the board for considering the appeal and there is a likelihood of bias, which, in my opinion is that he should not be a member of the appellate board in any capacity, while deciding the appeal. therefore, in this regard the order of removal of the petitioner from service confirmed by the appellate authority cannot be sustained. the only infirmity at the appellate stage is that there is a likelihood of bias and therefore the appellate authority's order cannot be sustained. accordingly, the matter is remanded back to the appellate authority, wherein the chief executive officer who dealt with the disciplinary order shall not be a party to the board and the appellate authority taking into account the circumstances shall consider the appeal afresh and pass appropriate orders within a period of three (3) months.in fine, the writ petition is allowed with the above direction. no costs.

Judgment:
ORDER

V. Dhanapalan, J.

1. Challenging the proceedings of the 1st respondent in Na.Ka. No. 21315/E3(1)/2002 dated 11.08.2003 and the consequential Board's Order in (Ms) No. 9, dated 08.03.2004 and for a direction to the 1st respondent to reinstate him with all service and monetary benefits, the petitioner has filed this writ petition.

2. The petitioner would state that he was initially appointed as Grade - III Khadi Assistant on 07.12.1984 and posted at Khadi & Village Industries, Karaikudi; subsequently, he was promoted as Grade-II, Khadi Assistant and then as Grade - I Khadi Assistant. According to the petitioner, he was working with utmost satisfaction of the superiors, rendering sincere service for nearly 20 years.

2a. He would further state that while he was working as Grade-I Khadi Assistant at Khadi Shop, Ramanathapuram, charges were framed against him on 04.03.1999 under Rule 34(b) of the Board's Service Regulation on 3 counts for the alleged irregularity committed by him while sanctioning loan for Khadi uniform material and thereby had misappropriated and caused loss to the Board. Pursuant to the same, the petitioner submitted an explanation on 02.07.1999, refuting the charges. On the basis of the Enquiry Officer's Report and the petitioner's further representation, the 1st respondent passed a final order on 17.10.2001 holding Charge Nos. 1 and 3 as proved, imposing two punishments, viz., reversion from the post of Khadi Assistant Grade - I to Khadi Assistant Grade - II for a period of two years and stoppage of future increment for a period of two years on his restoration to the original post.

2b. According to the petitioner, the order of the 1st respondent is non-est in the eye of law and there cannot be two punishments for a single charge memo; moreover, it amounts to double jeopardy and is violative of Article 20(2) of the Constitution of India. Accepting the said order of the 1st respondent, the petitioner joined in the post of Khadi Assistant Grade - II and while he was continuing in the said post under the control of the Assistant Director (Khadi & Village Industries), Ramanathapuram, he was served with a charge memo dated 16.07.2002 under Rule 34(b) of Board's Service Regulations issued by the 2nd respondent on 6 counts. Pursuant to the said disciplinary proceedings, the petitioner was placed under suspension on 26.10.2002 and thereafter, the 2nd respondent, who framed charges as against the petitioner was appointed as Enquiry Officer to conduct the enquiry to find out the validity of the charges. After following due formalities, the 1st respondent passed a final order on 11.08.2003 removing the petitioner from service, against which the petitioner preferred an appeal before the 1st respondent on 22.10.2003 and that the said appeal was confirmed under the impugned order dated 08.03.2004.

2c. It is the case of the petitioner that the 2nd respondent himself, who has framed charges against the petitioner has conducted the enquiry as against the settled principles of law and the final order of punishment has been passed by the 1st respondent on 11.08.2003 and the appeal has also been decided by the same authority by the impugned order dated 08.03.2004, thereby depriving the legitimate right of appeal remedy. According to the petitioner, the entire disciplinary proceedings is bad in law and same is liable to be quashed.

3. In the counter affidavit filed by the respondents, it is stated that the petitioner during his tenure of service in Ramnad District, committed certain irregularities such as raising certain items in the original invoice but writing different items in the duplicate of the invoice, thereby caused loss to the Khadi Board, for which disciplinary action was initiated against him under Regulation 34(b) of the Tamil Nadu Khadi and Village Industries Board's Regulations and a punishment of reduction in rank as Khadi Assistant Grade II for two years along with stoppage of increment was awarded.

3a. It is further stated by the respondents that while the petitioner was serving in the reverted post of Khadi Assistant Grade-II, he again committed certain serious irregularities and caused huge loss to the Board to the tune of Rs. 5,47,608.35, for which charges were framed and an Enquiry Officer was appointed to conduct enquiry. The respondents would submit that the petitioner fully participated in the enquiry, submitted his explanation and the Enquiry Officer also submitted his report. According to the respondents, only after taking into consideration the material evidence available on record, nature of charges, enquiry report and the defence submitted by the petitioner, the disciplinary authority passed final order on 11.08.2003, removing the petitioner from the Board's service.

3b. As regards the contention of the petitioner that the 2nd respondent who framed the charges also conducted the enquiry, the respondents would submit that the charges framed against the petitioner was by Thiru. G. Mahadevan, the then Regional Deputy Director (Khadi and Village Industries), Madurai and the enquiry was conducted by Thiru. R. Jayaraj, Regional Deputy Director (Khadi and Village Industries), Madurai. It is the case of the respondents that the charges framed against the petitioner and the enquiry conducted in that regard were done by different officers and hence there is no violation.

3c. With regard to the contention raised by the petitioner that the disciplinary authority and the appellate authority are one and the same, the respondents have stated that the appeal preferred by the petitioner dated 22.10.2003 before the Secretary to Government, Handlooms, Handicrafts, Textiles and Khadi (F1) Department was returned to the Appellate Board for consideration; the appellate Board, after careful consideration of the petitioner's appeal rejected the same on 08.03.2004. In this regard, the respondents would state that the Government, in G.O.Ms. No. 26, Handlooms, Handicrafts, Textiles and Khadi (F1) Department, dated 10.03.1998 had amended Regulation 38 (which provides for preferring an appeal in respect of the employees belonging to Group C & D categories) and the appeal against the order passed by the Chief Executive Officer, shall be preferred to the Board instead of Secretary to the Government dealing with the subject 'Khadi and Village Industries'. Therefore, the respondents would state that after the amendment, the Commissioner and Secretary to the Government is not the appellate authority in respect of Group C & D employees and the same has been substituted with that of 'Board'.

3d. With regard to the earlier charges framed against the petitioner, the respondents would state that the petitioner was reverted to Khadi Assistant Grade II for a period of two years and after the punishment period, he got back his original post of Khadi Assistant Grade I; hence, the claim of the petitioner that after promoting him to Khadi Assistant Grade I, the second set of charges levelled against him does not have legs to stand cannot be held as true.

4. Heard the submissions made by Mrs. Malarvizhi Udayakumar, learned Counsel for the petitioner and Mr. S. Packiaraj, learned Counsel for the respondents.

5. Learned Counsel for the petitioner would submit that the 1st respondent vide his proceedings dated 11.08.2003 has imposed the punishment of removal of the petitioner from service and subsequently, the appeal preferred by the petitioner has been rejected by the Board, wherein the 1st respondent happens to be a member of the Board, which shows that there is apprehension of bias. Learned Counsel would contend that by virtue of the amendment of Regulation 38 as per G.O.Ms. No. 26, dated 10.03.1998, an aggrieved person imposed with any major punishment by the Chief Executive Officer will have to appeal to the Board, wherein the Chief Executive Officer is a member of the Board and therefore, there is apprehension that the appeal has not been considered reasonably. According to the learned Counsel, the impugned order has been passed in violation of the principles of natural justice, since the petitioner's plea to consider the punishment imposed on him and to modify the same has not been taken note of, as the person who passed the impugned order was sitting in the Board as a member.

5a. In support of her case, learned Counsel for the petitioner has relied on a decision of the Supreme Court of India reported in 2009 (1) CTC 740 in the case of A.U. Kureshi v. High Court of Gujarat and Anr. Relevant portion of the said decision are extracted herein:

8. The decision made by the Disciplinary Committee was a vital component of the process by which the High Court of Gujarat made the recommendation to the State Government for the dismissal of the appellant. It is therefore not proper for a member of the said Disciplinary Committee to decide on a challenge against the same dismissal order while acting in a purely judicial capacity.

9. It is an accepted principle of natural justice that a person should not be a judge in his or her own cause. In common law, this principle has been derived from the Latin maxim - 'nemo debet esse judex in propria sua causa'. A reasonable permutation of this principle is that no judge should adjudicate a dispute which he or she had dealt with in any capacity, other than a purely judicial one. The failure to adhere to this principle creates an apprehension of bias on part of the said judge. It would be useful to refer to the observations of Justice P.N. Bhagwati in Ashok Kumar Yadav v. State of Haryana : AIR1987SC454 :One of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the Judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias 'it is in accordance with natural justice and common sense that the Judge likely to be so biased should be incapacitated from sitting'. The basic principle underlying this rule is that justice must not only be done but must also appear to be done.

6. On the other hand, learned Counsel for the respondents would submit that six charges were framed against the petitioner and he was given full opportunity to defend his case; a domestic enquiry was conducted and the petitioner fully participated in the enquiry and that based on the findings of the Enquiry Officer, the petitioner was removed from service. Learned Counsel would further submit that the petitioner has never raised any of those pleas raised in the writ petition before the Enquiry Officer or at the time of giving further explanation that the Enquiry Officer and the officer who framed the charges are one and the same. It is also his contention that the petitioner never questioned the enquiry proceedings, but has raised only technical grounds and there is no double jeopardy as claimed by the petitioner.

6a. Learned Counsel for the respondents has relied on a decision of this Court reported in 2009 (2) CTC 611 in the case of R. Kannan v. Deputy Inspector General of Police, Trichy Range, Trichy, wherein, relevant paragraph would read thus:

Insofar as the contention that the Enquiry Officer was appointed prior to the expiry of the time given to submit the explanation, it is to be noted that Rule 3(b) of the Rules, nowhere states that the Enquiry Officer can be appointed only after the expiry of the time granted for submitting his explanation of the Charge Memo and after considering the explanation submitted. Rule 3(b) only contemplates framing of Charge Memo and the delinquent shall be required a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. Therefore, there is no prohibition under the Rules to appoint the Enquiry Officer after the issuance of the Charge Memo before getting explanation from the petitioner as per Rule 3(b) of the Rules. Further, as rightly stated in the counter affidavit, the Enquiry Officer commenced his proceedings after ten days from the date of receipt of the Charge Memo and the petitioner without objection participated in the enquiry and cross-examined all the witnesses. No defect in the enquiry was pointed out or raised by the petitioner during the time of enquiry. Therefore, there is no procedural violation conducted by the Department in this case.

7. A scrutiny of the material records would reveal that the petitioner was appointed as Grade - III Khadi Assistant on 07.12.1984 and subsequently promoted as Grade II Khadi Assistant and then as Grade - I Khadi Assistant. On 04.03.1999, charges under Rule 34(b) of the Board's Service Regulation were framed against the petitioner and after conducting enquiry, punishment of reversion from the post of Khadi Assistant Grade - I to the post of Khadi Assistant Grade - II for a period of two years and stoppage of increment for a period of two years on his restoration to his original post was imposed. The petitioner did not challenge the said punishment and he was restored back as Grade - I Khadi Assistant on completion of the period of punishment.

8. It is further seen that after the period of punishment, while the petitioner was working as Khadi Assistant Grade - I, he was served with charge memo on 16.07.2002 under Rule 34(b) of the Board's Service Regulation and disciplinary proceedings were initiated, in which six charges have been framed against the petitioner by the 2nd respondent and thereafter, he conducted an enquiry in the capacity of Regional Deputy Director and also as Enquiry Officer. After the completion of enquiry, following the procedures contemplated under law and also after affording an opportunity of hearing to the petitioner, the Chief Executive Officer, the 1st respondent herein imposed the punishment of removal of the petitioner from service on 11.08.2003, against which the petitioner preferred an appeal before the 1st respondent on 22.10.2003 and the appeal was rejected by the impugned order dated 08.03.2004. Challenging the said order passed by the 1st respondent, the petitioner is before this Court.

9. As regards the question raised by the petitioner that the second set of charges framed in the charge memo dated 16.07.2002 issued against him by the 2nd respondent on 6 counts amounts to double jeopardy, it is seen that the petitioner did not challenge the earlier charge memo and the charges were proved, resulting in the reversion of the petitioner from Khadi Assistant Grade I to Grade II. Moreover, the second set of charges were framed on a separate and independent cause of action. Therefore, it is clear that the petitioner is not inflicted with double punishment and the second set of charges framed against him have arisen out of a different cause of action. Hence, the question of double jeopardy and violation of Article 20(2) of the Constitution of India cannot be sustained and that contention of the petitioner fails.

10. The next question raised in this case is the authority competent to frame charges must be the authority appointed under the Rules and he should not be the authority competent to hold an enquiry. In the case on hand, charges were framed against the petitioner by the Regional Deputy Director and he himself acted as an Enquiry Officer. According to the petitioner, though the person is different, the authority is the same and hence, there is infirmity with the enquiry proceedings. On going through the material records, it is given to understand that the petitioner has not challenged the punishment with regard to the first charge memo; but, thereafter, a second charge memo has been issued and on completion of enquiry, punishment was imposed against which an appeal has been preferred and the said appeal was also rejected. It is further seen that only after taking into consideration the material evidence on record, number of charges, enquiry report and the defence made by the petitioner, the final order has been passed. It is not pointed out that under the Rules, the authority competent to frame the charges cannot act as an Enquiry Officer and therefore, there is no infirmity with the enquiry proceedings. Moreover, the petitioner has participated in the entire enquiry proceedings. Therefore, I do not find any infirmity with the same and the contention of the petitioner fails. At this point of time, it is seen that the decision relied on by the learned Counsel for the respondents is not factually applicable to the case on hand.

11. The last but foremost contention made by the petitioner is that the Chief Executive Officer, the 1st respondent herein has also acted as an appellate authority and therefore, the petitioner has been deprived of the appellate remedy. Since the petitioner is a member of the appellate Board, there is an apprehension of bias. It is seen that the Government in G.O.Ms. No. 26 Handlooms, Handicrafts, Textiles and Khadi [F1] Department, dated 10.03.1998 had amended Regulation 38 (which provides for preferring an appeal in respect of the employees belonging to Group 'C' and 'D' categories) and the appeal against the order passed by the Chief Executive Officer, shall be preferred to the Board instead of Secretary to the Government dealing with the subject 'Khadi and Village Industries'. Therefore, as per the amendment, the Government or the Secretary to Government is not the appellate authority in respect of Group 'C' and 'D' employees. In such a case, it has to be examined as to whether the disciplinary authority being a member of the Board can act as an appellate authority and there is a likelihood of bias affecting the decision.

12. To examine as to whether the first respondent has acted with bias, it is to be seen that it is a settled proposition that a person should not be a judge in his or her own cause and this principle has been derived from the Latin maxim - 'nemo debet esse judex in propria sua causa', which means that no judge should adjudicate a dispute which he or she had dealt with in any capacity, other than a purely judicial one. The said principle has been adhered to by the Supreme Court in the case of Ashok Kumar Yadav v. State of Haryana : AIR1987SC454 , wherein it is held that one of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the Judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias, it is in accordance with natural justice and common sense that the Judge likely to be so biased should be incapacitated from sitting. Further, the basic principle underlying this rule is that justice must not only be done but must also appear to be done.

13. In the instant case, the disciplinary authority namely, the Chief Executive Officer, who has dealt with in that capacity and imposed the punishment of removal from service has been the member of the Board for considering the appeal and there is a likelihood of bias, which, in my opinion is that he should not be a member of the appellate Board in any capacity, while deciding the appeal. Therefore, in this regard the order of removal of the petitioner from service confirmed by the appellate authority cannot be sustained. The only infirmity at the appellate stage is that there is a likelihood of bias and therefore the appellate authority's order cannot be sustained. Accordingly, the matter is remanded back to the appellate authority, wherein the Chief Executive Officer who dealt with the disciplinary order shall not be a party to the Board and the appellate authority taking into account the circumstances shall consider the appeal afresh and pass appropriate orders within a period of three (3) months.

In fine, the writ petition is allowed with the above direction. No costs.