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CASE NO.: Appeal (civil) 193  of  2002

PETITIONER: AMAR NATH CHOWDHURY

       Vs.

RESPONDENT: BRAITHWAITE AND COMPANY LTD. & ORS.

DATE OF JUDGMENT:       11/01/2002

BENCH: V.N. Khare & Ashok Bhan

JUDGMENT:

V.N. KHARE, J.

       Leave granted.

       The appellant herein was an employee of the Braithwaite and Company Limited, Calcutt a, a Government of India Undertaking (hereinafter referred to as ’the Company).  It appears  that certain misconduct committed by the appellant came to the notice of the Company.  With  the result, the Company decided to initiate disciplinary proceedings against the appellant,  herein.  Consequently, the appellant was served with a charge-sheet to which he gave an expl anation.  An Inquiry Committee constituted for that purpose after making an enquiry, found t hat the charges levelled against the appellant proved.  The Inquiry Committee accordingly su bmitted its report to the Disciplinary Authority.  The Disciplinary Authority, who was the t hen Chairman-cum-Managing Director of the Company accepted the report submitted by the Inqui ry Committee and he, by order dated 13.2.84, removed the appellant from service.

Under the regulations framed by the Company, an appeal against an order of the Disciplinary  Authority lies before the Board of Directors of the Company (hereinafter referred to as the  ’Board’).   The appellant preferred an appeal against the order of his removal from service  before the Board.  It is not disputed that Shri S.Krishnaswami, who was then the Chairman-cu m-Managing Director of the Company and who, in his capacity as the Disciplinary Authority, r emoved the appellant from service presided over and participated in the deliberations of the  meeting of the Board.  The Board by order dated 31.8.84, dismissed the appeal filed by the  appellant by a non-speaking order.      Aggrieved, the appellant filed a writ petition under  Article 226 of the Constitution of India before the Calcutta High Court.  A Learned Single  Judge of the High Court after having found defect in the proceedings, set aside the order of  removal passed against the appellant.  The Company filed a Letters Patent Appeal before a D ivision Bench of the High Court.  The Division Bench found the order and judgment of the Lea rned Single Judge as erroneous and in that view of the matter, the order passed by the Learn ed Single Judge was set aside and the writ petition filed by the appellant stood dismissed.    It is against the said judgment and order of the High Court, the appellant has preferred t his appeal.

This Court while entertaining the special leave petition out of which the present appeal ari ses, passed the following order:

"Issue notice confined to the question as to why the case may not be remanded to the appella te authority."

One of the arguments raised by Shri P.P. Rao, learned senior counsel appearing on behalf of  the appellant, is that the order of removal having been passed by the Disciplinary Authority

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- Shri S. Krishnaswami, who was then the Chairman-cum-Managing Director of the Company, was  disqualified to have presided over and participated in the deliberations of the meeting of  the Board which heard and dismissed the appeal and, therefore, the order of the Appellate Au thority was vitiated on account of legal bias.  We find substance in the argument. It is not  disputed that Shri S.Krishnaswami was then the Chairman-cum-Managing Director of the Compan y.      It is also not disputed that Shri Krishnaswami was also the Disciplinary Authority w ho passed the order of removal against the appellant.  The question, therefore, arises wheth er the proceedings of the Board was vitiated on account of participation of the Disciplinary  Authority while deciding the appeal preferred by the appellant.

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 ’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 d ecides the matter impartially and without carrying any kind of bias.  Bias may be of differe nt kind and form.  It may be pecuniary, personal or there may be bias as to the subject-matt er etc.   In the present case, we are not concerned with any of the aforesaid form of bias.   What we are concerned with in the present case is whether an authority can sit in appeal ag ainst its own order passed in the capacity of Disciplinary Authority.  In Financial Commissi oner (Taxation) Punjab and others vs. Harbhajan Singh - 1996 (9) SCC 281, it was held that t he      Settlement Officer has no jurisdiction to sit over the order passed by him as an App ellate Authority. In the present case, the subject-matter of appeal before the Board was whe ther 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 o f the Company acted as a Disciplinary Authority as well as an Appellate Authority when he pr esided 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 establis hed rule against bias.  In a situation where such a dual function is discharged by one and t he same authority, unless permitted by an act of legislation or statutory provision, the sam e 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 m atter 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 cas e, fair play demanded that Shri Krishnaswmai, the then Chairman-cum-Managing Director of the  Company ought not to have participated in the deliberations of the meeting of the Board whe n the Board heard and decided the appeal of the appellant.

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 av ailable when, under the regulations framed by the Company, the Disciplinary Authority who ha ppened to be 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 preside over and participate in the meeting of the Board which dismi ssed the appeal of the appellant.  We find no merit in the argument.  Rule 3 (d)  of the Com pany’s Conduct, Discipline and Appeal Rules (in short ’CDAR’) defines ’Board’ in the followi ng 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 deleg ates any of its powers."

In view of the aforesaid definition of the expression ’Board’, the Board could have constitu ted a committee of the Board/Management or any  officers of the Company by excluding Chairma n-cum-Managing Director of the Company and delegated any of its power, including the appella te power, to the such a committee to eliminate any allegation of bias against such an appell ate authority.  It is, therefore, not correct to contend that rule against bias is not avail able in the present case in view of      the ’doctrine of necessity’.  We are, therefore, of  the view that reliance of the doctrine of necessity in the present case is totally misplace d.

For the reasons stated hereinbefore, we find that the appeal deserves to succeed.  According ly, the order and judgment under challenge as well as the order passed by the Appellate Auth ority are set aside and the matter is sent back to the Appellate Authority to decide the app

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eal by a speaking order, in accordance with law. Before we part with the case, we further di rect that the Company shall not take any step to realise any money which has been paid to th e appellant on his superannuation till the matter is finally decided by the appropriate Appe llate Authority.

The appeal is allowed.  There shall be no order as to costs.

                                                       ........................J.                                                         (V. N. Khare)

                                                       ........................J.                                                         (Ashok Bhan)

January 11, 2002