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PETITIONER: KUMAON MANDAL VIKAS NIGAM LTD.

       Vs.

RESPONDENT: GIRJA SHANKAR PANT & ORS.

DATE OF JUDGMENT:       18/10/2000

BENCH: G.B.Pattanaik, U.C.Banerjee

JUDGMENT:

BANERJEE,J. L.....I.........T.......T.......T.......T.......T.......T..J

     Since  the  decision of this Court in  Kraipaks  case [A.K.   Kraipak  v.  Union of India :1969 (2) SCC  262]  one golden  rule  that  stands firmly established  is  that  the doctrine  of  natural justice is not only to secure  justice but  to prevent miscarriage of justice.  What, however, does this  doctrine  exactly mean?  Lord Reid about four  decades ago in Ridge v.  Baldwin & Ors.  (1964 Appeal Cases 40) very succinctly  described  it  as  not being  capable  of  exact definition  but what a reasonable man would regard as a fair procedure  in  particular  circumstances   who  then  is  a reasonable  man  the man on the clapham omnibus?  In India, however,  a  reasonable  man  cannot but  be  a  common  man similarly  placed.   The  effort of Lord Reid  in  Ridge  v. Baldwin (supra) in not attributing a definite meaning to the doctrine  but  attributing  it  to be  representing  a  fair procedure  still holds good even in the millennium year.  As a  matter of fact this Court in the case of Keshav Mills Co. Ltd.   v.   Union of India & Ors.  [1973 (1) SCC  380]  upon reliance  on the attributes of the doctrine as above  stated as below:  8.  The second question, however, as to what are the  principles  of natural justice that should regulate  an administrative  act or order is a much more difficult one to answer.   We  do  not  think  it  either  feasible  or  even desirable  to  lay down any fixed or rigorous yard-stick  in this  manner.  The concept of natural justice cannot be  put into  a straight jacket.  It is futile, therefore, to  look for definitions or standards of natural justice from various decisions  and  then try to apply them to the facts  of  any given case.  The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable  opportunity of presenting his case and that  the administrative   authority  concerned   should  act  fairly, impartially  and reasonably.  Where administrative  officers are  concerned, the duty is not so much to act judicially as to  act fairly.  See, for instance, the observations of Lord Parker  in In re H.K.  (an infant) (1967) 2 QB 617.  It only means that such measure of natural justice should be applied as  was  described  by Lord Reid in Ridge v.   Baldwin  case (supra)  as  insusceptible of exact definition but  what  a reasonable  man  would  regard  as   a  fair  procedure   in particular circumstances.  However, even the application of the  concept of fair-play requires real flexibility.   Every thing will depend on the actual facts and circumstances of a

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case.   As  Tucker,  L.J.  observed in Russell v.   Duke  of Norfolk (1949) 1 All ER 109:

     The requirement of natural justice must depend on the circumstances  of  the case, the nature of the enquiry,  the rules  under  which  the tribunal is  acting,  the  subject- matter that is being dealt with and so forth.

     While  it is true that over the years there has been a steady  refinement as regards this particular doctrine,  but no  attempt  has been made and if we may say so,  cannot  be made  to define the doctrine in a specific manner or method. Straight  jacket  formula  cannot  be  made  applicable  but compliance  of  the  doctrine is solely dependant  upon  the facts  and circumstances of each case.  The totality of  the situation ought to be taken note of and if on examination of such  totality, it comes to light that the executive  action suffers from the vice of non-compliance of the doctrine, the law  courts  in  that  event ought to set  right  the  wrong inflicted  upon the concerned person and to do so would be a plain  exercise of judicial power.  As a matter of fact  the doctrine  is  now  termed as a synonym of  fairness  in  the concept  of  justice  and  stands   as  the  most   accepted methodology  of  a  governmental action.  Adverting  to  the factual  aspect  of the matter at this juncture, it  appears that  the respondent was appointed as a Stenographer in  the year  1972  and  was  promoted  to  the  post  of  Assistant Secretary in 1976 and subsequently to the post of Divisional Manager  (Tourism) in the scale of Rs.1350-2100 with  effect from  1st  April,  1987  and thereafter  designated  as  the General  Manager  (Tourism)   undoubtedly  a  career  worth noticing and it is this carrierist General Manager (Tourism) who  alleges  a definite malice of the Managing Director  to the  effect that events subsequent would unmistakably depict a  state  of  mind which cannot but be attributed to  be  of malicious  intent.  The events so relied upon are as  below: (a) by an order dated 28th September, 1993 the powers of the petitioner  as  the General Manager were withdrawn:   (b)  a show-cause  notice was served on 1st October, 1993 requiring his  explanation  by 19th October, 1993 with a direction  to appear  on  20th October, 1993:  (c) the appointment of  the Inquiry  Officer  in terms of the order dated 12th  October, 1993:   (d) the issuance of the order of termination:  It is on this factual backdrop that the respondent employee made a definite  assertion  of  non-compliance of the  doctrine  of natural  justice and bias.  As noticed above the  respondent was  served  with a show- cause notice containing  about  13 allegations  without  however  any  documentary  support  in regard  thereto  copies of the documents were asked for but the  same  were not made available.  Persistent reminder  on that  score  though  yielded  the   benefit  of  having   an inspection  of  some of the documents in the office,  but  a number  of  other documents were not made available  to  the delinquent employee even for inspection on the plea that the same  were  already  placed   before  the  Inquiry  Officer. Non-submission  of  the  copy of the documents  or  even  an inspection  thereof  has  in  fact  said  to  have  made  it impossible  for the Respondent herein, to send an  effective reply  to  the show-cause notice.  The  situation  therefore shortly  put  thus  remains that even  though  a  show-cause notice   was  served  but  by   reason  of  the  factum   of non-availability  of the documents to the respondent herein, the show-cause notice could not be answered in any effective manner  at all excepting however in a rough and ready manner so  as  to avoid the comment and criticism of acceptance  of

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the  charge.   The  factual score depicts that  the  Inquiry Officer  however on supposed examination of the records  and admittedly without giving any notice and without fixation of any  date  or  time  or any venue for  the  inquiry  or  for examination  or cross-examination of the witnesses and  upon purported  consideration  of  the  so-called  reply  of  the respondent  herein  as noticed above, proceeded to  complete the  inquiry.  Even no Presenting Officer was appointed  and as  a matter of fact the report itself says that the Inquiry Officer dealt with the matter himself without any assistance whatsoever.  It is significant to note at this juncture that a  large  number  of  letters were  sent  to  the  concerned authority  by  the  respondent  with a  fervent  prayer  for inspection  so  as  to  enable the  respondent  to  send  an effective  reply to the show-cause notice, but the same  was denied  to the respondent.  Shortly the situation thus  runs out in the manner following:  (i)(a) A show-cause notice was sent;   (b)  Since no documentary evidence was  available  a rough  reply  was sent as against the show-cause notice  and the  entire  inquiry proceeding was based thereon;  (ii)  No charge sheet was given;  (iii) No explanation was sought for by  the Inquiry Officer (iv) No oral evidence was taken thus question  of  any cross-examination would not arise  (v)  No date  , time and place was fixed by the Inquiry Officer  for hearing  of  the  matter (vi) No  Presentation  Officer  was appointed.   -and it is on the basis of situations as  above the enquiry stood complete.  Subsequent factual situation is also  interestingly  illustrative and runs as below:   (i) Copy of the enquiry report was sent to the respondent on 9th November,  1993  with  a  request to give  a  reply  thereto positively  on  10th November, 1993 at 10.30 a.m.  (ii)  The respondent was directed to produce his defence at 11.00 a.m. on  the  same day without however, permission to summon  his defence  witnesses.  (iii) Subsequently personal hearing was offered  on  22nd  November,  1993  but  by  reason  of  the non-availability  of  the  Managing Director, the  date  for personal hearing was rescheduled from 22nd to 25th November, 1993, but no hearing could take place on 25th November, 1993 either.   (iv) On 26th November, 1993 the Managing  Director informed  the  respondent to be present before him  on  26th November itself at 4.00 p.m.  and on 26th November itself an eighteen  page  order was passed dismissing  the  respondent from  services  at  about 7.30 p.m.  It is on  this  factual backdrop  that  the matter was taken before the  High  Court under  Article  226  of the Constitution  wherein  upon  due consideration  of the factual matrix, the order of dismissal was  set  aside  on the ground of  being  prejudicial,  thus resulting  in  total  miscarriage of justice and  hence  the appeal  before  this  Court by the grant of  special  leave. Before  adverting to the rival contentions, be it noted that the  matter in question involves two principal issues:   (a) the  issue  of  bias  and malice and (b)  the  issue  of natural  justice.   Admittedly, the points in issue  would over-lap each other while detailing the same, but the facts, as  hereinafter noticed, are such that the same is otherwise unavoidable.   The  word Bias in popular English  parlance stands included within the attributes and broader purview of the  word  malice,  which in common acceptation  mean  and imply  spite  or ill-will (Strouds Judicial  Dictionary (5th  Ed.)Volume  3)  and it is now well settled  that  mere general  statements will not be sufficient for the  purposes of  indication  of ill-will.  There must be cogent  evidence available  on record o come to the conclusion as to  whether in  fact  there  was existing a bias which resulted  in  the miscarriage  of  justice.  While it is true that  legitimate

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indignation does not fall within the ambit of malicious act, in  almost all legal enquiries, intention, as  distinguished from   motive  is  the   all-important  factor.   In  common parlance,  a malicious act has been equated with intentional act  without just cause or excuse (see in this context Jones Bros.   (Hunstanton) v.  Steven:  1955 (1) Q.B.  275).   The respondent  on this score referred to the show-cause  notice and  contended that there was in fact a total mind-set  from the  beginning  for  punishing the respondent by way  of  an order  of  dismissal  from service and as  such  no  further material evidence need be produced in the matter on the wake of  available cogent evidence of bias and prejudice.  It  is on  this score that relevant abstracts of show-cause  notice may  be  of some assistance and as such the same is set  out rather  extensively  herein below for proper  appreciation:- While  going  through  the profit and loss account  of  the tourism  section  of the last seven years, it  was  observed that  the section was in profit only in the year 1990-91  on account  of  LTC tours.  But the section was in loss  during the rest of the years, while you have been informing me that the  section  is  in  profit except  for  the  depreciation. Reality is just opposite to it.

     Timely  payment  was not made to the LTC agent  during the  year  1990-91  resulting the closure of the  LTC  tours thereafter.   Clearly,  the  LTC tours  were  not  organised properly.   Had the LTC tours continued, there was no chance of tourism section running in loss.  ..

     Kailash  Mansarover  Yatra  could not  fetch  so  much profit  as  it  should on account of non- control  over  the expenditure.   During the year 1992 the profit in this yatra was  approximately Rs.13 thousand, while during the previous years  it  used tobe between 1.50 to 2.0 lakhs.   While  you informed   me   that  the  profit   during  1992   will   be approximately the same as of last years.

     .

     A  sum of Rs.2.70 lakhs was advanced to Messers  Elgin Mills  during  the  year 1990-91, 91- 92  for  the  purchase items,  out of which the firm supplied items costing Rs.1.91 lakh  only.  Thus, there is balance of Rs.0.79 lakh with the firm  for the last 2-3 years.  No specific action was  taken to  get back the money or items from the firm.  Thus, on one hand  the  Nigam suffered loss on interest and in  the  same time it resulted reduction in the working capital.

     Being  the  head  of  the department  of  the  tourism section,  it  was your responsibility to submit  before  the purchase  committee  and the Managing Director the cost  and the  quantity of the furnishing items and accordingly action should  have been taken to place the supply orders with  the firms  for the purchase of furnishing items.  But it was not done  so.  In many cases, items have been purchased at  much higher rates than sanctioned by the government for these.

     No  specific action was taken for the purchase of  the items,  inspite  of  being informed repeatedly  to  purchase these  before  the  tourist   season.   Inspite  of  written repeated  request by the Chairman of the purchase committee, no full details were made available of the items proposed to be  purchased.  The purchased committee had been to Delhi to

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purchase  the items and only at that time the file was  made available.   The  purchase  committee, after  market  survey submitted  its report.  The concerned file was not traceable thereafter and after few days it was found in the almirah of section   after   thorough   search.    As   such   due   to non-availability  and  delay in furnishing work it  resulted thereon  non-receipt  of desired income during  the  tourist season.

     On account of non-purchase of furnishing items well in time,  Nigam  started preparing the furniture itself.   This resulted  good  quality of furniture and it is expected  30% cheaper  in cost than the items purchased earlier.   Clearly no attention was paid towards this.

     ..

     Approval to purchase soap at Rs.1.40 each was obtained for  the supply of the same from a Bombay firm.  Inspite  of the  knowledge  of  high  prices, you  recommended  for  the purchase  of the soap required during the tourist season and have  recommended  that the soap bearing Nigams name  shall have  good  impact on the tourists.  On your  recommendation instructions  were issued to cancel the supply order in case of  failing  to supply the same within 15 days.   Still  the supply  was not received within the fixed time.  When it was pointed out that the rates are high, you placed supply order with  the  firm, under your own signatures, @ Rs.1.25  each. Thus,  no  attention  was paid by you  towards  this,  while seeking  approval.   Clearly, interest of the Nigam was  not kept in mind.

     It  was  not  proper in the light  of  commercial  and administrative  reasons to post the managers of the  tourist rest  houses at one place for the many years.  No action was taken by you in this regard.  Inspite of this, no action was taken   to  transfer  the   concerned  managers   committing financial  irregularities.  This cant be said to be in  the interest of the Nigam.

     Lastly,  it  is concluded that you never kept in  mind the  interest  of  the  Nigam due to  your  personal  vested interests.   Due to your corrupt conduct, you had no control over  your subordinates.  You never submitted suggestion  in the  interest  of the Nigam and never shown interest in  the implementation  of  the schemes due to which the  Nigam  was unable to get the success as much as it should have, keeping in  view  the  natural beauty of this  place.   The  tourism section  was  suffering  loss due to your  activities.   You always misused the Nigams tourism section for your personal vested  interest  and gains.  Your conduct and integrity  is highly doubtful.

     Apart from the above, Nigam suffered heavy loss due to irregularities  in  many  purchases/matters  and  are  being considered  separately.  You failed to take specific  action for  getting the tourism section in profit.  You did not run the  tourism  section  smoothly.   Therefore,  you  are  not capable to remain in your post.

     It  is this show-cause notice, which later came to  be termed  to  be the charge-sheet as well and which  the  High Court   ascribed  to  be   totally  prejudicial  and  biased resulting  in total miscarriage of justice.  The respondent,

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writ petitioner on this score contended that, as a matter of fact,  the charge-sheet (if the same can be termed to be so) is the aftermath of personal vendetta of the former Managing Director  of the Corporation.  The incident spoken of by the respondent  though trivial but we do feel it proper to  note the same since it has a definite bearing in the matter under discussion.   In  September,  1993,   the  former   Managing Director  of the Corporation left on an official business to Tibet.  The private Respondent also was subsequently deputed to  Tibet  alongwith Director General of Tourism  U.P.   for which the U.P.  Government provided a helicopter upto Indian Border  and  it  is  this journey by  helicopter  which  the Managing Director had to undergo on foot upto Indian border. It has been stated that this trek had its due effect and the writ  petitioner  was served with the show-cause notice  cum charge-sheet  culminating  into an order of dismissal.   The records  depict  that the Managing Director returned to  the Head  Quarter at Nainital on 27th September, 1993 and on the very  next  day i.e.  on 28th September, 1993, the  Managing Director   withdrew  the  duties  of  the  General   Manager (Tourism) by an Order No.4927/2.3.  By another Order bearing No.4951/2.5  and having the same date i.e.  28th  September, 1993,  all  financial  and administrative  powers  delegated earlier  was  withdrawn with immediate effect and the  third event on this score is the issuance of the show-cause notice -cum-   charge-sheet   on  1st   October,  1993  having   13 allegations,  relevant  extracts of which have already  been noticed  herein  before.   Certain factual aspects  on  this score  ought  also  to be noticed viz.  that  prior  to  the receipt  of  an  explanation, the  General  Manager,  Kumaon Anusuchit  Janjati  Vikas Nigam was appointed as an  Inquiry Officer  by  or  at the instance of the  Managing  Director. Incidentally,  Anusuchit  Janjati Vikas Nigam is an unit  of Kumaon  Mandal Vikas Nigam having a common Managing Director and  as  such admittedly, the Inquiry Officer was under  the direct  supervision  of the Managing Director.  The  factual score  further  depicts  that  on 15th  October,  1993,  the respondent  herein asked for certain documents to submit his explanation and as such prayed for an extension of time upto 30th  October, 1993.  Subsequently, there was a reminder for the  same  by  the respondents letter dated  25th  October, 1993.  On the same date the respondent, however, was granted extension  of time upto 30th October, 1993 with a note  that the  records  may be inspected in the office where  all  the files  and  records  are available.  In fact,  however,  the Departmental  Clerk  supposed to be incharge of the  records did  not produce the same on the ground of non-availability. The   factum  of  petitioners   inability  to  inspect  the documents  by reason of non-availability had been made known to Managing Director by a letter duly received at the office of  the  Managing  Director but surprisingly however  to  no effective consequence since only a copy of the Profit & Loss Account  for  few  centres and for only 2-3 years  was  made available  which  was  not  at all sufficient  to  submit  a comprehensive  and effective reply to the show cause notice. It  is  on this factual backdrop that the inquiry  proceeded and  on  6th November, 1993 the Inquiry Officer submitted  a Report  consisting  of  sixty-five  pages  to  the  Managing Director.   The  factual score further depict that  that  by letter  dated  8/9.11.1993, the Managing Director  intimated that  the  inquiry  was conducted by Shri NK  Arya,  General Manager,  Kumaon Anusuchit Janjati Nigam on the basis of the reply  as  sent  on 30th October, 1993 and  he  has  already submitted  the  report.  As a matter of fact a copy  thereof was   also  forwarded  to   the  petitioner.   The  Managing

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Director,  however, made it known that the records can again be  seen in his chamber at 5.00 P.M.  on 9.11.93.  The  last paragraph  of the letter seem to be of some significance, as such  the same is quoted herein below:  Keeping in view the humanitarian  point of view and your application, today, all the records are again being shown to you.  There are serious charges  of  irregularities against you.  Therefore, in  the interest  of  Nigam  and  public interest  it  will  not  be possible  to  further  extend the time for  hearing.   After going  through the records, if you wish to submit additional representation, you can do so by 10.30 A.M.  on 10.11.93 and for  personal hearing present yourself on 10.11.93 at  11.00 A.M.   in  the office of the undersigned and can argue  with the  officers of the Nigam.  After this no further extension of  time will be possible.  Apart from above, it is also  to inform  you that if you fail to appear for personal  hearing at  the appropriate time and date, it will be presumed  that you have nothing to say and accordingly ex-parte action will be taken.

     On  final analysis of the admitted set of facts,  thus the  following  situations emerge:  (i) All the  powers  and authority  enjoyed  by the General Manager  (Tourism)  stood withdrawn  by  the order of the Managing Director;   (ii)  A show-cause  notice, which subsequently came to be recognised as  charge-sheet  was issued containing 13 several  charges; (iii)  Respondents repeated request for supply of documents went unheeded and when ordered inspection, the same not been given effect to, on the plea of non-availability of records; (iv)  Prior to the receipt of a proper and complete reply to the   charge-sheet,  the  Managing   Director  of  a  sister organisation  which  happens to be a unit of  Kumaon  Mandal Vikas  Nigam and thus a close associate and a subordinate to the  Managing  Director came to be appointed as the  Inquiry Officer.   (v) The Inquiry Officer furnishes a report on the basis  of  the chargesheet and the relevant records  without there  being any Presenting Officer and without affording an opportunity   of  hearing  or   even  allowing  any  defence witnesses  and not allowing the respondent to cross- examine any  of  the  officers  of the Nigam in  spite  of  specific request  to that effect;  (vi) After receipt of the  Inquiry Report on 9th November, 1993 on humanitarian consideration a further  opportunity  of hearing was given on the very  next day  at  10.30 A.M.  with a rider attached thereto  that  no further  time can possibly be allowed for any hearing in the matter.  The chain of events as noticed above, however, does not  indicate  a  very  fair procedure  but  the  subsequent factual  score  tops  it all.  The facts  being:   (a)  The hearing date was re-scheduled on 25th November, by reason of the  non-availability  of  the  Managing  Director  but  the documents  were supposed to be made available for inspection in office  In fact however there was never any attempt even to  offer inspection and efforts in that regard on the  part of  the  Respondent went totally unheeded;  (b)  No  hearing however,  took place on 25.11.93 instead the respondent  was informed  at  his  residence to present himself  before  the Managing  Director at 4.00 P.M.  on 26.11.93 in spite of the factum  of the respondent being on Casual Leave on that day. (c)  The  Managing  Director passes an order  consisting  of eighteen  pages which was delivered at the residence of  the Respondent  by  about  7.30P.M.  on the self-same  day  i.e. 26th  November,  1993.  It is on this score  that  strenuous submission  has been made that when the personal hearing  is fixed  at  4.00 P.M., an eighteen page order of  termination

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cannot  possibly be made ready for service at 7.30 P.M.   at the  residence of an officer.  We do find some justification in this submission  it is rather in a very hot haste:  This haste  however, embraces within itself a series of questions and to pose and note a few:  Is it administrative efficiency or  reflection  of  the definite bent of  mind  or  personal vendetta.   The Respondent argues to be vendetta whereas the Appellant  ascribes it to be nothing unusual about it.   The High  Court  however,  stated  the  following:   Since  the respondent  No.2 has initially made up his mind to  dispense with   the  services  of   the  petitioner  the   subsequent appointment of inquiry officer or asking for the explanation of  the petitioner, carry little weight.  The respondent  in the  present  case has acted in a most arbitrary manner  and has  thus,  failed  to  discharge  his  obligations  as  the disciplinary  authority.  The orders passed by the  Managing Director  suffer  from apparent prejudice and the same  have been  passed  in contravention of the principles of  natural justice.   The respondents failed to discharge his functions in  an objective independent, just and in equitable  manner. The  impugned  order  of   dismissal  suffers  from  serious infirmities  and  the dismissal order cannot be upheld.   We have  no  option  but  to   quash  the  dismissal  order  in question.

     While  it  is true that in a departmental  proceeding, the  disciplinary  authority is the sole judge of facts  and the  High Court may not interfere with the factual  findings but  the availability of judicial review even in the case of departmental  proceeding cannot be doubted.  Judicial review of  administrative  action  is  feasible and  same  has  its application  to  its  fullest extent  in  even  departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally  untenable.  The adequacy or inadequacy of  evidence is  not permitted but in the event of there being a  finding which otherwise shocks the judicial conscience of the court, it  is  a well-neigh impossibility to decry availability  of judicial  review at the instance of an affected person.  The observations  as above however do find some support from the decision  of  this  Court  in the  case  of  Apparel  Export Promotion  Council v.  A.K.  Chopra (1999 (1) SCC 759).   It is  a  fundamental requirement of law that the  doctrine  of natural  justice  be  complied with and the same has,  as  a matter  of  fact,  turned  out to be  an  integral  part  of administrative  jurisprudence of this country.  The judicial process itself embraces a fair and reasonable opportunity to defend  though, however, we may hasten to add that the  same is  dependant  upon  the  facts and  circumstances  of  each individual   case.    The   facts  in   the   matter   under consideration  is singularly singular.  The entire chain  of events  smacks  of some personal clash and adaptation  of  a method unknown to law in hottest of haste:  this is however, apart  from the issue of bias which would be presently dealt with  hereinafter.  It is on this context, the  observations of  this Court in the case of Sayeedur Rehman v.  The  State of  Bihar  &  Ors.   (1973 (3) SCC 333) seem  to  be  rather apposite.   This  Court observed:  The omission of  express requirement  of fair hearing in the rules or other source of power  claimed for reconsidering the order, dated April  22, 1960, is supplied by the rule of justice which is considered as  an  integral  part of our judicial  process  which  also governs    quasi-judicial    authorities    when    deciding controversial points affecting rights of parties.

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     Incidentally,  Hidyatullah,  C.J.    in  Channabasappa Basappa  Happali  v.  The State of Mysore (AIR 1972  SC  32) recorded the need of compliance of certain requirements in a departmental enquiry  at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine  witnesses  and  to give his  own  version  or explanation about the evidence on which he is charged and to lead  his  defence  on this state of law a simple  question arises  in  the contextual facts:  Has this  being  complied with?   The  answer  however  on the  factual  score  is  an emphatic  no.  The sixty-five page Report has been sent to the  Managing  Director of the Nigam against the  Petitioner recording  therein that the charges against him stand proved   what is the basis?  Was the Inquiry Officer justified  in coming to such a conclusion on the basis of the charge-sheet only?  The answer cannot possibly be in the affirmative:  If the  records  have been considered, the immediate  necessity would  be  to  consider  as to who is  the  person  who  has produced the same and the next issue could be as regards the nature of the records  unfortunately there is not a whisper in  the rather longish report in that regard.  Where is  the Presenting  Officer?  Where is the notice fixing the date of hearing?  Where is the list of witnesses?  What has happened to  the  defence witnesses?  All these questions  arise  but unfortunately no answer is to be found in the rather longish Report.   But if one does not have it - Can it be termed  to be  in  consonance with the concept of justice or  the  same tantamounts  to  a total miscarriage of justice.   The  High Court  answers  it as miscarriage of justice and we do  lend our  concurrence therewith.  The whole issue has been  dealt with  in  such  a  way that it cannot but be  termed  to  be totally devoid of any justifiable reason and in this context a decision of the Kings Bench Division in the case of Denby (William)  and Sons Limited v.  Minister of Health (1936 (1) K.B.  337) may be considered.  Swift, J.  while dealing with the  administrative duties of the Minister has the following to  state:  I do not think that it is right to say that the Minister of Health or any other officer of the State who has to  administer  an Act of Parliament is a judicial  officer. He  is an administrative officer, carrying out the duties of an  administrative office, and administering the  provisions of particular Acts of Parliament.  From time to time, in the course  of  administrative  duties, he has to  perform  acts which  require him to interfere with the rights and property of  individuals, and in doing that the courts have said that he must act fairly and reasonably;  not capriciously, but in accordance  with  the  ordinary dictates  of  justice.   The performance  of  those  duties entails the exercise  of  the Ministers  discretion,  and I think what was said  by  Lord Halsbury  in Sharp v.  Wakefield and others (1891 A.C.  173, 179) is important to consider with reference to the exercise of  such  discretion.  He there said:   Discretion  means when  it  is  said that something is to be done  within  the discretion  of the authorities that that something is to  be done  according  to  the rules of reason  and  justice,  not according  to  private opinion :  Rookes case (1598 5  Rep. 99b,  100a;  according to law, and not humour.  It is to be, not  arbitrary, vague, and fanciful, but legal and  regular. And  it  must  be exercised within the limit,  to  which  an honest man competent to the discharge of his office ought to confine himself.

     Turning on to the issue of bias and for which the show cause  notice-cum-charge-sheet has been set out in  extenso, be  it  noted  that the same does reflect a state  of  mind.

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Sufferance  of  loss  on  interest in so  far  as  Nigam  is concerned and resulting in reduction in working capital with total  dereliction of duty has been specifically  attributed to the Respondent herein.  The inclusion of the last charge, however,  clinches  the  issue, the same is set  out  herein below:

     Lastly,  it is concluded that you never kept in  mind the  interest  of  the  Nigam due to  your  personal  vested interests.   Due to your corrupt conduct, you had no control over  your subordinates.  You never submitted suggestion  in the  interest  of the Nigam and never shown interest in  the implementation  of  the schemes due to which the  Nigam  was unable to get the success as much as it should have, keeping in  view  the  natural beauty of this  place.   The  tourism section  was  suffering  loss due to your  activities.   You always misused the Nigams tourism section for your personal vested  interest  and gains.  Your conduct and integrity  is highly doubtful.

     The  last paragraph of the last charge is also of some consequence  as regards the bent of mind and the same is set out herein below:

     Apart  from the above, Nigam suffered heavy loss  due to  irregularities  in many purchases/matters and are  being considered  separately.  You failed to take specific  action for  getting the tourism section in profit.  You did not run the  tourism  section  smoothly.   Therefore,  you  are  not capable to remain in your post.

     Upon  consideration of the language in the show  cause notice-   cum-charge-sheet,  it  has   been  very   strongly contended  that it is clear that the officer concerned has a mind-set even at the stage of framing of charges and we also do  find  some justification in such a submission since  the chain  is  otherwise  complete.  Bias  in  common  English parlance  mean  and imply  pre- disposition  or  prejudice. The  Managing Director admittedly, was not well disposed  of towards  the  respondent  herein  by  reason  wherefor,  the respondent  was  denuded of the financial power as also  the administrative management of the department.  It is the self - same Managing Director who levels thirteen charges against respondent  and  is  the  person who  appoints  the  Inquiry Officer, but affords a pretended hearing himself late in the afternoon   on  26.11.93  and   communicates  the  order  of termination  consisting of eighteen pages by early  evening, the  chain is complete:  Prejudice apparent:  Bias as stated stands proved.

     The  concept  of  Bias  however  has  had  a  steady refinement  with  the  changing structure  of  the  society: Modernisation  of the society, with the passage of time, has its  due  impact  on  the concept of Bias  as  well.   Three decades  ago  this Court in S.  Parthasarathi v.   State  of Andhra  Pradesh (1974 (3) SCC 459) proceeded on the  footing of  real likelihood of bias and there was in fact a  total unanimity  on this score between the English and the  Indian Courts.

     Mathew,  J.   in Parthasarthis case  observed:   16. The  tests  of real likelihood and reasonable  suspicion are  really inconsistent with each other.  We think that the reviewing  authority must make a determination on the  basis

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of  the  whole evidence before it, whether a reasonable  man would  in  the  circumstances  infer   that  there  is  real likelihood  of bias.  The Court must look at the  impression which  other  people have.  This follows from the  principle that  justice must not only be done but seen to be done.  If right  minded  persons  would  think   that  there  is  real likelihood  of bias on the part of an inquiring officer,  he must not conduct the enquiry;  nevertheless, there must be a real likelihood of bias.  Surmise or conjecture would not be enough.    There  must  exist   circumstances   from   which reasonable  men  would think it probable or likely that  the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances  that  he is likely to be prejudiced, that  is sufficient to quash the decision (see per Lord Denning, H.R. in  Metropolitan  Properties Co.  (F.G.C.) Ltd.  v.   Lannon and  Others,  etc.  :  (1968) 3 WLR 694 at 707).  We  should not,  however,  be understood to deny that the  Court  might with greater propriety apply the reasonable suspicion test in   criminal  or  in   proceedings  analogous  to  criminal proceedings.

     Lord  Thankerton  however in Franklin v.  Minister  of Town and Country Planning [(1948) AC 87] had this to state:

     I  could wish that the use of the word bias  should be  confined to its proper sphere.  Its proper significance, in my opinion, is to denote a departure from the standard of even-handed  justice  which the law requires for  those  who occupy  judicial office, or those who are commonly  regarded as  holding a quasi-judicial office, such as an  arbitrator. The reason for this clearly is that, having to adjudicate as between   two  or  more  parties,  he  must  come   to   his adjudication   with  an  independent   mind,   without   any inclination  or  bias  towards  one side  or  other  in  the dispute.

     Recently  however,  the English Courts have sounded  a different  note,  though  may  not be  substantial  but  the automatic disqualification theory rule stands to some extent diluted.   The  affirmation  of  this  dilution  however  is dependent  upon the facts and circumstances of the matter in issue.   The  House  of Lords in the case of Reg.   v.   Bow Street   Metropolitan  Stipendiary   Magistrate,  Ex   parte Pinochet Ugarte (No.2) [2000 (1) A.C.  119] observed:

     ..In  civil  litigation  the matters in  issue  will normally  have  an  economic impact;  therefore a  judge  is automatically  disqualified if he stands to make a financial gain  as a consequence of his own decision of the case.  But if,  as  in the present case, the matter at issue  does  not relate  to money or economic advantage but is concerned with the  promotion  of the cause, the rationale disqualifying  a judge applies just as much if the judges decision will lead to  the promotion of a cause in which the judge is  involved together with one of the parties.

     Lord  Brown  Wilkinson  at  page 136  of  the  report stated:

     It  is  important  not  to overstate  what  is  being decided.   It  was  suggested in argument  that  a  decision setting  aside the order of 25 November 1998 would lead to a

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position  where  judges  would  be unable to  sit  on  cases involving  charities in whose work they are involved.  It is suggested  that, because of such involvement, a judge  would be  disqualified.   That is not correct, The facts  of  this present  case are exceptional, The critical elements are (1) that  A.I.   was a party to the appeal;  (2) that A.I.   was joined  in order to argue for a particular result;  (3)  the judge  was  a director of a charity closely allied  to  A.I. and sharing, in this respect, A.I.’sobjects.  Only in cases where  a  judge  is  taking an active  role  as  trustee  or director  of a charity which is closely allied to and acting with  a  party to the litigation should a judge normally  be concerned  either to recuse himself or disclose the position to   the  parties.   However,  there   may  well  be   other exceptional  cases in which the judge would be well  advised to disclose a possible interest.

     Lord Hutton also in Pinochets case (supra) observed:

     there  could be cases where the interest of the judge in  the  subject matter of the proceedings arising from  his strong commitment to some cause or belief or his association with  a  person  or body involved in the  proceedings  could shake  public confidence in the administration of justice as much  as  a shareholding (which might be small) in a  public company involved in the litigation.

     Incidentally  in  Locabail (Locabail (U.K.)  Ltd.   v. Bayfield  Properties  Ltd.:  2000 Q.B.  451), the  Court  of Appeal  upon a detail analysis of the oft cited decision  in Reg.   v.  Gough [(1993) A.C.  646] together with the  Dimes case,  (3 House of Lords Cases 759):  Pinochet case (supra), Australian  High Courts decision in the case of re  J.R.L., Ex  parte C.J.L.:  (1986 (161) CLR 342) as also the  Federal Court  in  re  Ebner  (1999 (161) A.L.R.  557)  and  on  the decision  of  the Constitutional Court of Sourth  Africa  in President  of the Republic of South Africa v.  South African Rugby  Football  Union (1999 (4) S.A.  147) stated  that  it would be rather dangerous and futile to attempt to define or list  the  factors which may or may not give rise to a  real danger of bias.  The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided.  It further observed:

     By  contrast,  a  real danger of bias might  well  be thought  to  arise  if  there were  personal  friendship  or animosity  between  the judge and any member of  the  public involved  in  the  case;   or  if  the  judge  were  closely acquainted  with  any member of the public involved  in  the case,  particularly  if the credibility of  that  individual could be significant in the decision of the case;  or if, in a case where the credibility of any individual were an issue to  be  decided  by  the judge, he had in  a  previous  case rejected the evidence of that person in such outspoken terms as  to throw doubt on his ability to approach such  persons evidence  with an open mind on any later occasion;  or if on any  question  at  issue in the proceedings before  him  the judge had expressed views, particularly in the course of the hearing,  in  such extreme and unbalanced terms as to  throw doubt  on  his  ability to try the issue with  an  objective judicial mind (see Vakuta v.  Kelly (1989) 167 C.L.R.  568); or  if,  for  any other reason, there were real  ground  for doubting  the  ability  of the judge  to  ignore  extraneous

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considerations,  prejudices  and predilections and bring  an objective  judgment  to bear on the issues before him.   The mere  fact  that a judge, earlier in the same case or  in  a previous  case, had commented adversely on a party witness , or   found  the  evidence  of  a  party  or  witness  to  be unreliable,  would  not  without more  found  a  sustainable objection.   In most cases, we think, the answer, one way or the  other,  will be obvious.  But if in any case  there  is real  ground  for  doubt, that doubt should be  resolved  in favour  of  recusal.  We repeat:  every application must  be decided  on  the facts and circumstances of  the  individual case.   The  greater the passage of time between  the  event relied  on as showing a danger of bias and the case in which the  objection  is  raised, the weaker (other  things  being equal) the objection will be.

     The  Court  of  Appeal judgment  in  Locabail  (supra) though  apparently as noticed above sounded a different note but  in  fact,  in more occasions than one in  the  judgment itself, it has been clarified that conceptually the issue of bias  ought to be decided on the facts and circumstances  of the  individual  case  a slight shift undoubtedly from  the original  thinking pertaining to the concept of bias to  the effect  that a mere apprehension of bias could otherwise  be sufficient.

     The  test,  therefore,  is  as   to  whether  a   mere apprehension  of  bias or there being a real danger of  bias and  it is on this score that the surrounding  circumstances must and ought to be collated and necessary conclusion drawn therefrom - In the event however the conclusion is otherwise inescapable  that  there is existing a real danger of  bias, the  administrative  action cannot be sustained:  If on  the other  hand,  the allegations pertaining to bias  is  rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would  not  arise.   The   requirement  is  availability  of positive  and cogent evidence and it is in this context that we  do record our concurrence with the view expressed by the Court of Appeal in Locabail case (supra).

     Having  discussed the issue as above in the contextual facts,  we do feel it expedient to record that the action of the  Managing  Director  in  the  matter  of  withdrawal  of authority  as  noticed above and subsequent introduction  of charges,  in  particular, the last of the charges  as  noted above and the further factum of issuance of an eighteen page letter of termination on the self same date and within a few hours  after the pretended hearing was given, cannot but  be ascribed to be wholly and totally biased.

     On  the wake of the aforesaid, we are unable to record our  concurrence with the submissions of the appellant.  The judgment under appeal, in our view, cannot be faulted in any way  whatsoever.   The  Appeal,   therefore,  fails  and  is dismissed.  There shall however be no order as to costs.