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CASE NO.: Appeal (civil)  18 of 2007

PETITIONER: Cantonment Executive Officer & Anr

RESPONDENT: Vijay D. Wani & Ors

DATE OF JUDGMENT: 16/04/2008

BENCH: A.K.MATHUR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

REPORTABLE

CIVIL APPEAL NO.18 OF 2007

A.K. MATHUR, J.

1.      This appeal is directed against the order dated 10.1.2005  passed in Writ Petition No.966 of 1995 by the High Court of  Judicature at Bombay whereby the Division Bench has set aside  the  resolution of the Cantonment Board, Pune dated 29.10.1991   removing the respondent from service which is  completely  vitiated on account of the participation of the  three members  of  the Enquiry Committee  and  the  orders of the 1st and 2nd  Appellate authorities dated 8.7.1992 and 22.12.1994 and allowed  the writ petition of the Vijay D. Wani respondent(herein) and  directed the Cantonment Board to reinstate the petitioner  (respondent herein)  into service  with 50% backwages and  continuity of service. 2.      Brief facts which are necessary for disposal of this appeal  are that the respondent was appointed as Junior Engineer  (Electrical) with Pune Cantonment Board with effect from  9.3.1977.  Later on he was redesignated as Sectional Engineer  (Electrical). In  1987, the Cantonment Board  decided to   purchase N.C.T. pies for  street lighting and directed the  respondent to prepare  an estimate.  Similarly he was also  directed to prepare   estimates for electrification of S.V.P.  Cantonment General Hospital, for the purpose of air conditioning  of the Operation Theater and for purchase of transformer  for  the  same  hospital.  The Contonment Board also wanted  him to  prepare estimates of sewerage pumps for  Ghorpadi and Wanawadi  Bazar Draining Scheme and also  estimates for cables and street  lights at Price of Wales Drive.  The respondent as a  Sectional  Engineer (Electrical)   prepared all those estimates. But on   11th August, 1987, the office of the Cantonment Board  through  the Chief Executive Officer served him a memorandum alleging   that the estimates prepared by the respondent suffered from  total non-application of mind.   The respondent offered his  explanation dated 25.8.87 to the said memorandum but that was  not accepted by the Board.  A charge-sheet containing the same  charges was issued to the respondent on 13.1.1988.  The  respondent was put under suspension and the Cantonment Board  appointed an Enquiry Committee to enquire into the  alleged  misconduct of the respondent.    The Enquiry Committee found the  charges proved by majority of two versus one the third member   differed on  items 2 and 4.   By  a resolution dated 25.10.1991   the  Cantonment Board considered the Enquiry Committee’s report  

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and accepted it and passed the order of removal of the  respondent from service.     The respondent filed an appeal  to  the GOC-in-Chief,  Southern Command, Pune  and the same was  dismissed on  8.7.1991.  The respondent preferred second appeal  before the Government of India,  Ministry of Defence, which was  also dismissed on 22.12.1994.   3.      Aggrieved against this order the respondent preferred an  appeal before the High Court.   The High Court rejected the  first contention of the respondent  that all the three members  of the Enquiry Committee happened to be the members of the Board  in  which capacity they had  scrutinized, approved and  accepted  the estimates prepared by the respondent when the estimates were  placed before the Cantonment Board.   Since they were interested  in the matter,  therefore, the enquiry should have been quashed  on the ground of bias.   Secondly,  it was contended that the  alleged misconduct of the  respondent themselves participated   in the meeting of the Cantonment Board and voted in favour of   the report while considering the  issue of  inflicting  punishment on the respondent.   It was also contended that the  participation of the members of the Enquiry Committee  in the  Board meeting when the  report was under consideration  completely vitiates the inquiry.  In  support of this, the  learned counsel for the respondent  relied on the decision of  this Court; Institute of Chartered Accountants of India  v. L.K.  Ratna and Ors.  reported in  1986(4) SCC 537.  So far as first  contention is concerned, the High court did not find any fault  that  the   petitioner/respondent (herein)  had not made any  specific allegation against any Board member of the Enquiry  Committee nor had imputed any malafide or illwill  to any  members of the Enquiry Committee.  Therefore, the contention  of  the learned counsel appearing on behalf of  the  petitioner/respondent(herein) of bias was rejected.    So far as  second contention  is concerned,  it was held that there was  violation  of principles of natural justice in as much as all  the three members of the Enquiry Committee participated in the  Board meeting and voted  in support of their Enquiry report and   held the respondent guilty of misconduct and dismissed him from  service.  That vitiated  the decision making process as  all the  three members of the Enquiry Committee was part of the  decision  making process and  since they were interested to see  that  their report be upheld by the Committee.   Therefore,  there was  a legitimate  apprehension in the mind of the respondent that  the three members of the committee who were inquiring against  the respondent and found him guilty were interested to see that  their report should be confirmed by the Board and this   seriously prejudiced  and biased the process of decision making  him guilty.  This contention was upheld by the Division Bench   and consequently the Division Bench set aside the order  Cantonment Board as well as the order on appeal by the GOC-in- Chief,  Southern Command, Pune and the order passed by the  Secretary, Government of India, Ministry of Defence.      Aggrieved against the order passed by the  Division Bench of the  High Court, this appeal was filed by the Cantonment Board. 4.      We have heard learned counsel for the parties and  have  gone through the records. 5.      The question of a bias is always the question of fact.     The courts 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 was also  the  members of the Cantonment Board where the report was to be  considered, decided and whether to accept it or not  & finding  the respondent(herein) guilty or not.  The very fact that these  three persons who conducted inquiry were also the members of the

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Board and that 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 is given a real apprehension in the  mind of the respondent that he will not get a fair justice in  the matter because of 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.    6.      In this connection a reference may be made to the decision  in the case of Institute of Chartered Accountants of India  (Supra)  in which a member, accused of misconduct is entitled to  a hearing by the Council.  In this case  Enquiry Committee   composed of the President and the Vice-President and three other  members of the council who constituted  as members of the  disciplinary committee, was also members.  Their Lordships held  as under: "Accordingly, the finding of the council holding the  respondent members guilty of misconduct was vitiated  by the participation of the members of the  Disciplinary committee."

       This was on the basis of the Principle of apprehension of a  bias.   Their Lordships observed  in the case of Manek Lal v.  Prem Chand reported in AIR 1957 SC 425 wherein it was observed:         It is well settled that every member of a tribunal  that is called upon to try issue in judicial or quasi- judicial proceedings must be able to act judicially;  and it is of the essence of judicial decisions and  judicial administration that judges should be able to  act impartially, objectively and without any bias.  In  such cases the test is not whether in fact a bias has  affected the judgment the test always is and must be  whether a litigant could reasonably apprehend that a  bias attributable to a member of the Tribunal might  have operated against him in the final decision of the  tribunal.   It is in this sense that it is often said  that justice must not only be done but must also appear  to be done."

Similarly in the judicial review of the administrative  action  by  Professor S.A. de Smith has also observed: "\005 a report will normally include a statement of  findings and recommendations, which may be controverted  before the parent body; and in such a case, the  participation of members of the sub-committee in the  final decision may be of dubious validity.  The problem  is not merely one of strict law; it is also one of  public policy."

  Similarly, in the case of Pinochit Ugarta No.2, reported in  1999 (1) All ER 577 (HL),  it was observed that a judge is  automatically disqualified from hearing a matter in which he  has a pecuniary interest in the outcome as also when the  decision would lead to promotion of a cause in which he is  involved, together with one of the parties.         Similarly, in the case of Amar Nath Chowdhury v.  Braithwaite & Co. Ltd  reported in  2002 (2)SCC 290   it was  observed that Managing Director dismissing an employee cannot  sit in the Board of Directors to hear the employee’s appeal.   Doctrine of necessity was inapplicable as the Board could have  delegated its appellate power to a committee.           Similarly in Sir Bloom-Cooper’s Comment on "Bias in  appeal",  2005 Public Law 225 in which he quotes  at page 227 a

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very illuminating judgment of Judge Jerome Frank  in the case  of  Rt.J.P. Linhan Inc., (138 F20 650)  a brief excerpt from  which reads:         "Democracy must, indeed, fail unless our courts try  cases fairly, and there can be no fair trial before a  judge lacking in impartiality and disinterestedness.     If, however, ’bias’ and ’partiality’ be defined to mean  the total absence of preconceptions in the mind of the  judge, then no one has ever had a fair trial and no one  ever will"

       It was observed in the Ninth edition of Administrative Law  by H.W.R. Wade & C.F. Forsyth that Twentieth-century judges have  generally enforced the rule against bias in  administrative    proceedings no less strictly than their predecessors as  exemplified by the following cases: The mere presence of a non-member while a tribunal is  deliberating is enough to invalidate the proceedings.   Thus the proceedings of a Watch Committee, hearing an  appeal by a police sergeant against his dismissal by  his chief constable, were fatally flawed by the  presence of the chief constable, whose mind was made  up and who was in effect the respondent, during the  committee’s deliberations.   For similar reasons the  court quashed the decision of a disciplinary committee  which had consulted privately with the chief fire  officer who had reported a fireman for indiscipline."  

7.      Therefore, the  ratio of all these cases is that a  person cannot be a Judge in his own case.  Once the   disciplinary committee finds the incumbent guilty; they  cannot sit in the judgment to punish the man on the basis  of the opinion formed by them.  The objectivity  is the   hallmark  of a judicial system in our country.  The very  fact is that  the disciplinary committee who found the  respondent(herein) guilty participated in decision making  process for finding the  respondent(herein) guilty  and to  dismiss him from service is bias which is apparent & real.   Consequently, the view taken by the Division Bench of the  High Court cannot be faulted.   8.      However, learned counsel for appellants submitted that  since the respondent did not work, therefore, he should not  be paid any salary  under the Rule "no work no pay".   In  this connection he invited our attention to the following  cases:         1.Baldev Singh  v.  Union of India & Ors.   Reported in 2005(8)SCC 747.

       2. India Literacy Board & Ors. V.  Veena  Chaturvedi & Ors. Reported in  2005 (3) SCC 79.

       3.  Badrinath v.  Government of Tamil Nadu & Ors.   Reported in 2000(8) SCC 395.

       In the case of Baldev Singh (Supra), the  appellant  was held in a criminal case and thereafter on his acquittal  a question arose with regard to his back wages, their  Lordships held that it did not arise as he was lawfully  confined. Therefore, this case is distinguishable.          In the case of India Literacy Board & Ors. (Supra), An  SLP was filed against the interim order and their Lordships  held that no opinion need to be  expressed on merits of the  rival contentions and directed the High Court to hear the  main writ petition  and dispose of the same on merits  including the question of maintainability of the petition.

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       And in the case of Badrinath (Supra), question was of  non-communication of adverse remarks and no question of ’no  work no pay’ was involved. Hence, this case also does not  support the case of the appellant. 9.      So far as grant of back wages is concerned, it depends  upon case to case.  But in the present case as the  respondent  was found  guilty by the Cantonment Board but  the order of Cantonment Board was set aside because it  suffered from bias and it will be unfair to deny 50% back  wages to the respondent (herein).  The Division Bench also  directed that more than 13 years have passed, therefore, it  did not permit the respondent to proceed against the  petition afresh.  The Division Bench decided the matter on  10th January, 2005  and now more than 16 years have lapsed.   Therefore, it would  not be fair to permit the respondent  to proceed  afresh in the matter.  Consequently, we do not  find any merit  in this appeal and the same is dismissed. 10. The  respondent be reinstated with the  benefit of 50%  back wages and continuity of service. 11.     No order as to costs.