Delhi High Court
Gurbachan Singh Sawhney vs Union Of India (Uoi) And Ors. on 31 May, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. What are the parameters of the doctrine of likelihood of bias in a departmental proceeding is the question, which arises for consideration in this writ petition.
2. FACTS:-
The petitioner was a permanent employee of Military Engineering Service ( in short, 'MES') of the defense department on 8.12.1951 as Upper Division Clerk (in short, 'UDC'). On or about 17.10.1974, a policy relating to the transfer of civilian subordinate personnel was laid down in conformity with the principles laid down by the Government of India, Ministry of defense, O.M. No. 13(1)/70/D (Apptts) dated 29.11.1972, the relevant portion of which are:-
"(5) Enbloc Move of officers/works units.
In the exigencies of service situations may arise when officers / works units are - asked to move enbloc to other location. In such cases the personnel to be moved should be selected based on their length of service in the station i.e. the longest stayee (extending tenure expired in tenure station) should move by making local adjustments.
(6) Longest Stayee.
When transfers are inevitable, volunteers will be given preference provided they have served in the station for 2 years. In the absence of volunteers, in determining the longest stayee in a station, all M.E.S. units inclusive GES office located in that station and adjacent localities will be taken into consideration. The seniority in that station will be decided by the Chief Engineer grouping of various units in a station including adjacent localities will be decided by CE command.
(10) Compassionate postings.
Past experience has shown that it is not possible to accommodate compassionate cases in the desired station for want of vacancies and too many requests for posting to a few popular stations. The following guidelines are, however, issued;-
(a) Individuals should themselves apply for compassionate posting. Application from relatives should be rejected and attempts to bring outside pressure should be discouraged.
(b) Application on domestic grounds should be verified in consultation with civil authorities, if the CO is not satisfied of the genuine of the grounds.
(c) Application on medical grounds should be accompanied by appropriate medical certificates from Registered Medical Practitioner / Authorized Medical Attendants indicating the nature of illness and justifications for transfer of the individual.
(d) GES should screen all application as hitheretofore by a properly constituted Board to select extreme deserving cases.
(e) Compassionate posting shall only be effected against clear vacancies falling which against volunteers. All compassionate transfers will be ordered at the expense of the individual only.
(14) With regard to posting of civilians subordinates to and from tenure stations, the instructions issued under this HQ letter No. 79040 / EIC (.I) dated 21 Sept. 74 will be followed.
Sd/ - xxx P.M. Bhatia, Brig.
D. Pers Engineer in Chief."
However, on 21-5-1975, Ministry of defense also issued an Officer Memorandum No. 32(4)/73/D (Apptts) regulating the transfer of Class III and Class IV employees of defense installations giving appropriate guidelines therein, which are as follows:-
"(i) In order to minimise resultant / dislocation, an attempt should be made to ask for volunteers for postings or transfers and as far as possible to post the people who are willing to move to the station. Even in case of postings to hard / tenure stations if volunteers are available for posting they should be given preference.
(ii) As far as possible employees, should not be transferred over long distance and efforts should be made to accommodate them near their choice station to the extent possible.
(iii) Class III personnel should not be transferred except in the following cases:-
I. Adjustment of surplus and deficiency all personnel above on command roaster.
II. Promotions.
III. Compassionate grounds / mutual basis.
IV. Exigencies of service or administrative requirements.
V. Compassionate posting in the desired stations shall normally be affected only against clear vacancies failing which against clear vacancies failing which against volunteers.
VI. Every effort will be made to effect compassionate posting within a period of one year of the date on which the request is accepted. There will be no fresh verification of the grounds for compassionate postings. Copy of the same is annexed hereto and marked as Annexure.-F."
He was shifted to Srinagar on 24.09.1979 from his present posting of 865 Engineer Works Section at Leh. Being a known patient of Hypertension, he was posted to HQ 135 Works Engineer at Jammu on medical grounds.
A seniority list for all categories of employees was prepared and circulated by HQ 138 Works Engineers to all the formations located at Jammu to ascertain the names of volunteers and longest stay at Jammu as per the spirit of policy letter dated 17.10.1974.
Allegedly, on or about 02.01.1981, HQ 135 Works Engineers issued a movement Order No. 1614/Move/91/61B to move enblock unit from Jammu to Akhnoor in contravention to the policy letter dated 17.10.1974 and as the petitioner had only completed only one year of stay at Jammu and, thus, was the junior most amongst the UDCs serving in various offices located at Jammu under the administration of respondent No. 3 and, therefore, he was not due for posting out of Jammu.
Being aggrieved by the above movement order, the petitioner filed a Writ Petition being No. 470 of 1981 in the Jammu & Kashmir High Court under Article 226 of the Constitution of India on the ground that the said order was contrary to the transfer policy and also on the ground of his illness, wherein an order of stay against the transfer was issued on 13.08.1981.
Pursuant to and in furtherance of the said order, the petitioner approached the respondents after handing over the said stay order as regards his duties, but the respondent did not give any reply thereto.
On or about 09.08.1982, the Commander HQ 135 Works Engineers filed a counter denying the facts stated in the writ petition.
The respondents issued a Memorandum bearing No. 1913/536/EID dated 18.04.1984 wherein period of service from 08.12.1951 to 31.07.1981 has been shown as verified for the purpose of pension on 31.01.1981, as a result whereof the petitioner had completed the qualifying service of 28 years for being eligible for full pension under CCS (Pension) Rules, 1972 (in short, 'the Pension Rules').
On 28.05.1984, the respondent filed a petition for vacation of stay order on the grounds that on the basis of the stay order dated 13.08.1981, the petitioner is not performing his duties at any place whereas is drawing salary under the cover of the said order. However, allegedly, no salary was paid to him.
On or about 01.06.1984, the J&K High Court passed an ex-parte Order vacating the stay Order dated 13.08.1981.
The petitioner allegedly from 17.06.1984 to 09.10.1984 was suffering from Entric fever with Hypertension and Anxiety Neurotis and, thus, did not join his duties despite the same.
During the period from June, 1984 to August, 1984, some telegrams and letters were sent to the petitioner by the respondents asking him to join his duty and on 20.09.1984, the respondents directed the petitioner to report to SMGS Hospital for second Medical opinion, which according to the petitioner was contrary to Rule 19 of CCS (Leave) Rules, 1972. Yet again on 10.11.1984, the petitioner was directed to report to SMGS Hospital for the said purpose.
On 15.04.1988, the petitioner was declared fit for duty.
On 13.01.1985, the petitioner allegedly sent a letter to the Chief Engineer, Northern Command for making payment of his legitimate pay and allowances, but to no avail.
Thereafter, the petitioner joined duty on 16.04.1985 and served a letter enclosing all medical certificates urging the respondents to pay all his legitimate dues, but the respondents did not take any action in this behalf.
The petitioner, thereafter, was served with a charge sheet bearing No. 42101/19/24/EID (2) dated 22.04.1985 on the following counts:-
" ARTICLE-I
(a) That the petitioner committed grave misconduct in that he was ordered to move to a new location as per HQ 135 Works Engineers Movement order No. 1614/Move/91/EIB dated 2.1.1981. He did not move to the new station as ordered and filed a writ petition in the Jammu High Court and managed to obtain stay order.
(b) That even when the stay order was vacated in the first week of June, 1984, the petitioner did not report for duty and disobeyed the order.
(c) That by the above act the petitioner failed to maintain absolute integrity and devotion to duty which is in contravention to the provisions of Rule 3 of CCS (Conduct) Rules 1964."
" ARTICLE-II That the petitioner committed grave misconduct in that he was directed by HQ 135 Works Engineers to report to Medical Superintendent SMGS Hospital, Jammu for second medical opinion but he did not comply with the instructions and made unnecessary correspondences with the department. The petitioner was asked either to report for duty or report to medical authorities for second medical opinion. The petitioner failed to submit MC initially from a RMP in token of his illness. Thus remained absent unauthorisedly, willingly and proved himself unbecoming of a Govt. servant."
On 23.07.1985, the disciplinary authority appointed Mr. M.M. Nayar, as Inquiring Authority to investigate into the charges without obtaining the representation of the petitioner with regard to admission or denial of charges.
On 26.10.1985, the petitioner requested the disciplinary authority for change of Inquiry Officer on the ground of alleged bias on his part. The said request was considered by the appellate authority but was rejected.
Thereafter, the petitioner approached the said authority by an application dated 22.09.1987 along with medical certificate issued by the Medical Suptd., SMGS Hospital during the period the petitioner was receiving treatment from the Hospital. The said application was received by the official of the respondent No. 4 under whom the Inquiry Officer was working at the relevant time and on 07.10.1987 the said cover was sent back to the petitioner under a separate Registered cover.
During the intervening period, the Inquiry Officer was due for superannuation on 30th September, 1987. Both the aforesaid covers have been attached to the written submission filed in the Hon'ble Tribunal on 1st May, 1998 for justice. According to the petitioner, Respondent No. 4 deliberately misled the postman with an improper motive to prolong the delivery of the cover to the Inquiry Officer who was busy in finalizing the report as his superannuation date was approaching fast. The act of Respondent No. 4 was totally arbitrary, prejudicial and was based on extraneous considerations.
On 28.9.1987 the Inquiry Officer, gave sufficient opportunity to the petitioner to participate in the enquiry but he did not take part in the said proceedings. The Enquiry Officer in his report gave the following findings:-
"(a) & (b).....
(c) The petitioner reposted for duty on 16 April, 1985.
(d) The petitioner was directed to report for 2nd Medical opinion only after vacation of stay.
(e) The petitioner was not attached with any unit at Jammu in between the period when the stay was granted and vacated by the Hon'ble Court.
(f) No salary was paid for the above period.
(g) No direction to SPS was given by HQ 135 Works Engineers Northern Command."
However, the disciplinary authority disagreed with the said findings of the Inquiry Officer and passed order of removal of the petitioner allegedly without giving any reason for differing with the said findings.
On or about 17.11.1988, the petitioner filed an appeal before the appellate authority. On 02.02.1989, he filed another appeal stating additional facts. The said appeals were rejected by the Appellate Authority and the decision of the disciplinary authority was upheld.
Thereafter, an original application was filed by the petitioner before the Chandigarh Bench of the Central Administrative Tribunal challenging the orders passed by the disciplinary authority and the appellate authority.
The said C.W.P. No. 470 of 1981 being T.A. No. 177 of 1987 challenging the enbloc transfer was dismissed by the Central Administrative Tribunal, Principle Bench, New Delhi (in short, 'the Tribunal') stating that it was enough to point out that the applicant has remained at the same place on obtaining stay Order from J&K High Court on 13.08.1981. However, the Tribunal in its Order dated 10.03.1995 observed that the failure of the disciplinary authority to communicate the reasons for his disagreement with the findings of the Inquiry Officer could not be sustained and giving the applicant an opportunity to represent against the same is fatal to the action taken by the respondents against the petitioner. However, in the meanwhile, the petitioner had also reached the age of superannuation in 1990 itself. The Tribunal thereafter dismissed O.A. No. 2607 of 1991 vide Order dated 29.06.1998 allegedly without giving any consideration to the aforesaid Order dated 10.03.1995, which is impugned before this Court.
3. Mr. Ajay Malvika, the learned counsel appearing on behalf of the petitioner, would contend that as the respondent No. 2 issued a charge-sheet against the petitioner, he could not have been entertained the appeal preferred by him against the order of the disciplinary authority.
The learned counsel would contend that there existed a likelihood of bias and on that ground alone the entire action must be held to be vitiated in law. The learned counsel in support of the said contention has relied upon the decisions of the Apex Court in Arjun Chaubey v. Union of India and Ors. and State of U.P. v. Mohammad Nooh AIR 1958 SC 86.
4. Mr. Jayant Bhushan, the learned counsel appearing on behalf of the respondents, on the other hand, would contend that initiation of a departmental proceeding is made only when a prima facie case is made out. A bias thus cannot be attributed as against the concerned respondent inasmuch as neither he had applied his mind on the materials on record not the enquiry report was placed before him. He was not even the complainant and thus the question of bias in this case would not arise.
In support of the aforesaid contention, reliance has been placed on Inspector General of Police and Anr. v. Thavasiappan .
5. The petitioner, as noticed hereinabove, was charge-sheeted on the ground of his remaining unauthorized absence. The petitioner inter alia raised a contention that an officer holding the rank of Major General would be the disciplinary authority and he could not have delegated his power to the subordinates and an administrative authority performing current duty of a post was not statutorily empowered to frame the charges. The said charge-sheet was framed by Shri Y.P. Khanna, Chief Engineer, who was later on promoted and became the appellate authority.
6. As regards the first contention, the learned Tribunal relying on P.V. Srinivasa Sastry and Ors. v. Controller & Auditor General and Ors. ; Steel Authority of India and Anr. v. Dr. R.K. Diwakar 1998 (1) SLJ 57; and Director General, ESI and Ors. v. T. Abdul Razak held that even if there was no delegation, the Controlling Officer can issue charge-sheet.
As regards the second contention, the learned Tribunal held that no mala fide has been attributed against the aforementioned Shri Y.P. Khanna and as such the same cannot be said to be a legal infirmity.
7. On fact, the learned Tribunal considered the matter in great details and came to the conclusion that misconduct of the petitioner was fully proved stating:-
"13. We have no doubt in our mind that the impugned orders do not call for any judicial interference. The applicant joined a uniformed service. The order given to him initially was to move with the unit on 2.1.1981 from Jammu to HQ 135 Works Engineer. This was not complied by him. He moved the High Court and obtained a stay. The stay was vacated after the High Court was apprised of the background of the case. We are satisfied that the applicant in order to defeat the transfer order moved the High Court. His subsequent conduct shows that he tried to stay back from duty on ground of illness but did not satisfy the respondents about the genuineness of illness or the need for taking leave for such a long period. He was removed from service by an order dated 3.10.1988. His joining duty for 9 days for 9 days in 1987 did not indicate a desire for service. The entire attitude was one of defiance, maneuvering and attempting to defeat the efforts of the respondents to bring him back to work. We are satisfied that the applicant committed gross misconduct inasmuch as he did not move to new duty station nor did he report to the Medical Superintendent for a second medical opinion. The period from 1981 to 1988 was a period of unauthorized absence punctuated by his attendance on certain specific dates. We have noticed that the applicant had not convinced the respondents that he was suffering from a disease which required such a long leave, by his refusal to submit himself to a second medical opinion. Leave is not a matter of right. When salary is paid to a Government servant he is expected to discharge his duties. Grant of leave is contingent on the satisfaction of the authority. A person cannot stay back from work and claim that his absence should be regularized. Willful absence from duty is a serious offence. We are satisfied with the punishment meted out to the applicant. It does not call for any judicial interference."
8. The fact that the petitioner herein had remained absent from duty from the period 1981 to 1988 punctuated by his attendance on certain specific dates is not in dispute.
Whether he was justified in doing so having regard to the order of transfer passed against him, which according to him is illegal, was the subject matter of the disciplinary proceedings.
9. In the aforementioned situation, in our opinion, it cannot be said that the entire proceedings were vitiated on the ground of doctrine of bias.
10. A charge-sheet was issued by an appropriate authority having regard to the prima facie materials, which are available. It would not be correct to contend that by issuance of charge-sheet or by directing initiation of a departmental proceeding alone, the appropriate authority or for that matter, another authority has pre-determined the issues.
The issue raised herein against the appellate authority can also be raised against the disciplinary authority. If such a contention is accepted, the disciplinary authority would never be entitled to impose any punishment upon him.
It is one thing to say that an authority, who is entitled to take action against an employee, has pre-determined his guilt and proceeds to decide his case, which would amount to denial of the principles of natural justice, but it is another thing to say that an authority is biased because he initiated a proceeding having satisfied himself that prima facie case exists therefore. In the former case, the authority may be held to be guilty of bias but in the latter case it would not be.
11. Natural justice, as is well known, is founded on two basic principles, which are (i) audi alteram partem, (ii) Nemo Judex in causa sua.
The question came up for consideration before one of us in Coal Mines Officers Association of India and Ors. v. Union of India and Ors. was as to whether a person, who was a Member of a rival Union could be appointed as a Member of Enquiry Committee in terms of the provisions of Section 24 of the Mines Act, 1952.
The duty to act fairly is the theme of the principles of natural justice. However, the extent of the duty to act fairly will normally be very limited where the authority exercises a function, which does not culminate in a binding decision. The Rule generally applies, at least with full force, only to conduct leading directly to a final act of decision, and not to the making of a preliminary decision or to an investigation designed to obtain information for the purpose of a report or a recommendation on which a subsequent decision may be founded. ( See Halsbury's Laws of England, Vol. 1 (i), 4th Edition, paras 85 and 94 ).
Furthermore, the standard of fairness would be different where the proceedings are in inquisitorial form.
12. Bias can be classified under three different heads:-
(a) a legal interests which mean that the Judge is "in such a position that a bias must be assumed.
(b) Pecuniary interest.
(c) Personal bias.
13. Law in this regard has expended to a great extent. In J.F. Garner's Administrative Law, it is stated:-
"The natural justice 'bias' rule looks to external appearances rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision maker then that decision can be challenged. It is a matter of the courts ensuring that 'justice is seen to be done'. Since successful challenge is based on appearances, it is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision-making and actions. "
14. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon 1968 (3) All ER 304, Lord Denning MR observed:--
"In considering whether there was a real likelihood of bias; the court does not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favor one side at the expense of the other. The court looks at the impression, which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand; see R. v. Huggins (8), Sunderland Justices (9), per Vaughan Williams, L.J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R.V. Camborne Justices, ex parte Pearce (10); R.V. Nailsworth Justice, ex parte Bird (11). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would, or did, favor one side unfairly at the expenses of the other. The court will not enquire whether he did, in fact, favor one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking; The Judge was biased'."
However, the learned Judge held:--
"I hold, therefore, that Mr. John Lonnon ought not to have sat on this rent assessment committee. The decision is voidable on that account and should be avoided. Although we are differing from the Divisional Court, I would like to say that we have had a good deal more information than that court had. In particular, we have seen a letter of January 13, 1967 and other things not before them when they gave their rulings. Otherwise I would not have thought it right to interfere".
(Underlining is mine for emphasis) Danckwerts, L.J. observed:
" Of course, I am not saying that the mere fact that a solicitor had acted for or advised tenants should disqualify him from sitting. But the facts of this case display some lack of appreciation of the rules of conduct by Mr. Lannon, and my conclusion is that it was not wise of Mr. Lannon to act as Chairman of the Committee in the circumstances".
The aforementioned passages have been quoted with approval in almost all the Text Books on Administrative Law.
15. De smith in his Administrative and Constitutional Law observed:-
"It would be unreasonable to apply the rules to the performance of formal ministerial acts by officers who, if acting in a judicial capacity, would have been disqualified".
The learned Author further states the law thus:-
" If the main functions of a tribunal are to determine disputed questions of law and fact, and to exercise discretionary powers by reference to standards that are not self-created but explicitly prescribed by statutory or other rules, on the basis of evidence openly tendered, and if, moreover, the abdicators can normally be expected to preserve a detached attitude towards the parties and issues before them, then a 'departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator ought not to be and will not be countenanced."
The learned Author, however, noticed that the reports and preliminary decisions may nevertheless have a seriously prejudicial effect on the legally protected interests of individuals (e.g. when it is necessary pre-requisite of a final order). The person making the report or preliminary decision must not be affected by interest or likelihood of bias.
The learned Author, however, has also noted a contrary decision in Barker v. Westmorland C.C. (1958) 56 LGR 267, where child care order by Magistrates on recommendation of sub-committee, the Chairman of which was (so it was claimed) likely to be biased against father.
The Learned Author also noticed:--
"However, the pendulum has now swung towards a test of reasonable suspicion, founded on the apprehensions of a reasonable man who had taken reasonable steps to inform himself of the material facts. 'Reasonable suspicion' tests look mainly to outward appearances; 'real likelihood' tests focus on the court's own evaluation of the probabilities; but in practice the tests have much in common with one another, and in the vast majority of cases they will lead to the same result. For the courts to retain both tests as alternative methods of approach is unlikely to cause serious uncertainty, and there may be advantages in preserving a measure of flexibility. It would be surprising, surely, if a court were to refuse to set aside a decision on the ground that a reasonable observer could not have discovered facts that subsequently came to light and which indicated to the court that there was a real likelihood of bias in the adjudicator".
With regard to the likelihood of bias, the learned Author observed:-
"But the evidence must be compelling; the courts are reluctant to conclude that any judicial officer's judgment is likely to be warped by personal feeling. General expressions of hosptility towards a group to which a party belongs (e.g. reachers or motorists) do not disqualify."
The learned author states:--
"Two main classes of cases may arise although they are by no means exhaustive. The first is where an adjudicator is associated with a body that institutes or defends the proceedings. The courts have refused to hold that a person is disqualified at common law from sitting to hear a case merely on the ground that he is a member of the public authority, or a member of or subscriber to the voluntary association, that is a party to the proceedings."
It was also stated:--
"in another case, where a single councillor was alleged to be likely to be biased in connection with a similar application there was a divergence of opinion on the question whether, if the allegations had been made out, the decision of the council would have been automatically tainted."
16. Even in Metropolitan properties (FGC) Ltd.'s case (supra), Lord Denning MR observed that nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough.
17. In Ratan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Educational) Higher Secondary School , the Supreme Court considered a large number of decisions and observed that the requirement of the 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 i.e. being dealt with, and so forth. It further noticed that the doctrine of natural justice cannot be put within the straight-jacket of rigid formula.
18. The Supreme Court further noticed that De Smith in his Judicial Review of Administrative Action at page 262 observed that a real likelihood or bias means at least a substantial possibility of bias. In the fact of the said case, however, the apex Court held that there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the Inquiry Committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the inquiry proceeding as a member of the Inquiry Committee to uphold the correctness of his deposition as a Judge.
19. In S.A. De Smith's Constitutional and Administrative Law (Second Edition) at page 577 it is observed:--
"Clearly there is scope for the exercise of judicial discretion, given these vague criteria. Take three recent cases. In one, the court reasonably decided that a police medical officer who had already formed an unfavorable opinion of a Chief Inspector's psychiatric condition should be prohibited from examining him again with a view to certifying him as permanently disabled which could lead to compulsory premature retirement. In another, the court held that it was contrary to natural justice for school governors to sit as members of a local education authority's sub-committee which had to decide whether or not to uphold a decision of the governors (taken at a meeting at which they had not been present) to dismiss a teacher. Yet in a third case, the court refused to interfere with a decision by governors of a teachers' training college to confirm the expulsion of a student (who had had a man in her room for some weeks) although they had initiated the disciplinary proceedings themselves." (Ward v. Brad Ford Corporation, (1971) 70 LGR 27).
20. In Halsbury's Laws of England (Paragraph 89) it has been held that it is generally unnecessary to establish the presence of actual bias although there have been cases outside the field of strictly judicial proceedings where a less stringent test has been applied.
21. In Wade and Forseith's Administrative Law at page 485 the learned Authors referred to the case of Ward v. Brad Ford Corporation (Supra) in the following terms:-
"In a contrasting case, where a student at a teaching training college was expelled for having a man living with her in her room, the Court of Appeal upheld the expulsion even though it was effected by the board of governors who had taken it upon themselves to refer the case to the disciplinary committee which recommended expulsion."
However, in the said case Hannam v. Brad Ford Corporation's case (Supra) was not referred to.
In Halsbury's Laws of England (paragraph 85) the said decision has been quoted in Note 7 stating (see also Ward v. Brad Ford Corpn. (1971) 70 LGR 27 CA), 'expulsion of student teacher for misconduct; duty to act fairly carried out although disciplinary reference instituted by the deciding body'.
It may, however, be noticed that this case has also been referred to at page 565 of Wade and Forseith's Administrative Law (1994 Edn.) .
22. It is interesting to note that in paragraph 88 Halsbury's Laws of England 88 it has been stated:-
"It is not enough to show that the person adjudicating holds strong views on the general subject matter in respect of which he is adjudicating, or that he is a member of a Trade Union to which one of the parties belongs where the matter is not one in which a trade dispute is involved." ( Stevens v. Stevens (1929) JP 120 ).
It is also pertinent to note that recently in Regina v. Gough 1993 Appeal Cases 646, the House of Lords tilted towards the possibility of bias rather than probability of bias. The House of Lords decisively restated the real likelihood tests in a criminal case.
In the Gough's case (Supra) at the trial one Mrs. Smith was a member of the Jury. She was recognized by Gough who was attending his brother's trial but he was not tried with him as one of his next-door-neighbour. After the appellant has been sentenced David Gough started shouting and it was at this point that the juror, Mrs. Smith recognized him. The facts were placed before the Judge who decided that he had no jurisdiction to take any action, the appellant having been convicted. A statement was taken from Mrs. Smith which was verified by affidavit wherein she stated:-
"(1) When she began her service on the jury she did not recognize the name 'Gough' as she knew her neighbour as 'Steve'. Similarly, she knew David's wife as Elaine during the two years that they had been her next door neighbours. (2) The name David Gough was mentioned on a number of occasions during the course of the trial. (3) She had no recollection of ever seeing the appellant before the trial; and had no idea he was the brother of her next door neighbour. (4) On 24 April, 1991 during the trial, prosecution counsel read out a statement which contained the address, 3, Buckley Way Mrs. Smith lives at No. 2 --and concerned the Capri motor Car. She wondered whether Steve was David Gough but thought it could not be him as he was called Steve. She was confused. (5) The photographs of the appellant and David Gough respectively were shown to the jury during the trial of the appellant. They were police photographs colloquially known as 'mug shots'. Mrs. Smith did not recognize David. (6) The fact that David Gough was her neighbour did not influence her thinking as a juror and she did not mention the matter to her fellow members of the jury".
The House of Lords referred to various decisions and dismissed the appeal stating the law thus:-
"That test was applied in Req. v. Mulvihill (1990) 1 WLR 438, when a Judge tried a robbery case
where the loser was a bank in which he held shares, the court distinguishing between the role of the Judge and the jury. The Topping test, if one can use that abbreviation, was also applied in Req. V. Morris (orse. Williams) (1990) 93 Cr. App R 102, by this Court. During a trial on indictment for theft from Marks and Spencer Plc. it emerged that one of the jurors was an employee of that organisation though working at a different branch. In quashing the conviction the court held that the Judge when asked to discharge the juror had not gone into the question of 'the appearance of bias'.
It was observed:-
"It is difficult to discover any basis on which these two lines of authority can live together. Mr. Moran has submitted that a distinction can be drawn between the test to be applied in jury cases and that, which is appropriate for magistrates' courts or other inferior tribunals entrusted with fact-finding responsibilities. We feel we must accept this distinction because there is no other way of reconciling most of the authorities, though it is difficult to understand why the test of bias should be any different in considering the position of a magistrate compared with that of juror. The only case, which cannot be fitted into this dichotomy, is the one last cited, namely Req. v. Morris (orse. Williams), in which giving the judgment of the court I applied the Topping test, (1983) 1 WLR 119, to the position of a juror. The decision in Req. v. Morris (orse. Williams) 93 Cr. App R 102, cannot stand with that of the five judge court in Req. v. Box (1964) 1 QB 430, and having regard to the decision of the House of Lords in Req. v. Spencer (1987) AC 128, Req. v. Morris (orse. Williams) (Supra) should not be followed to the extent that it applies the Topping test to trials on indictment.
Accordingly, the appeal fails on this point because the application of the 'real danger' test to jury trials in case of bias. It is, therefore, not necessary to decide whether (a) the application of the Topping test would have cause a different result, or (b) whether there was in fact any bias."
23. It is not necessary to multiply decisions on the afore-mentioned point as the matter has also recently been considered by the Supreme Court in Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. . In the aforementioned decision the Supreme Court was considering bias on the part of S.S. Sodhi, J. of Punjab and Haryana High Court (as his Lordship then was). The Apex Court considered various decisions and held that hardly there is any ground to have a reasonable suspicion of bias in that case, stating:-
"It is in the light of this the matter will have to be examined. So done, we hardly find any ground to hold that there could be a reasonable suspicion of bias in this case. That is evident from the facts. The case was in the list of the Bench headed by S.S. Sodhi, J. from 3-8-92 to 21-10-92. No objection was raised. Arguments were advanced for three days on the main writ petition. The application for transfer was taken out on the ground of alleged bias. By then the matter was coming to a close. It cannot be said that there could be any reasonable apprehension of bias, which a reasonable person could entertain, as rightly urged by Mr. Shanti Bhusan. It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J".
24. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors., AIR 2001 SC 24, the Apex Court upon survey of various decisions held:-
"31. The Court of Appeal judgment in Locabail (2000 QB 451) (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."
25. Furthermore, we may notice, however, that in The Regional Manager and Anr. v. Pawan Kumar Dubey, , it was held:-
"15. We repeat that, before any such case of "malice in law" can be accepted, the person who alleges it must satisfactorily establish it on proved or admitted facts as it was in Kulkarni's case. Where the allegations are of malice in fact, which are generally seriously disputed and the case cannot be satisfactorily decided without a detailed adduction of evidence or cross-examination of witnesses, courts will leave the party aggrieved to an ordinary civil suit. This rule, relating to exercise of discretionary powers under Article 226, is also well settled."
26. In State of Punjab v. V.K. Khanna and Ors., AIR 2001 SC 343, the Apex Court held:-
"6. In Girja Shankar Pant's case (2000 AIR SCW 3826) (supra) this Court having regard to the changing structure of the society stated that the modernization of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarthy (S. Parthasarthy v. State of Andhra Pradesh, ) wherein Mathew, J. 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 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 t 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 Ors. 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."
7. Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning (1948 AC
87) opined that the word 'bias' is to denote a departure from the standing of even-handed justice. Girja Shankar's case (2000 AIR SCW 3826) (supra) further noted the different note sounded by the English Courts in the manner following:-
"27. 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) AC 119) observed:
"..... In evil 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 Judge's 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 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.'s objects. 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 rescue 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 Pinochet's 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."
28. Incidentally in Locabail (Locabail (U.K.) Ltd. v. Bayfield properties Ltd., 2000 QB 451), the Court of Appeal upon a detail analysis of the oft cited decision in Reg. v. Gough (1993) AC 646 together with the Dimes case. 3 House of Lords Cases 759: Pinochet case (2000 (1) AC 119) (supra), Australian High Court's 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) ALR
557) and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union (1999 (4) SA 147) stated that it would be rather dangerous and futile to attempt to define or list the factors which may or not 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 person's 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 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous 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 unrealiable, 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 favor of refusal. 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."
29. The Court of Appeal judgment in Locabail (2000 QB 451) (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."
8. The test, therefore, is as to whether there is a mere apprehension of bias or there is 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 there from. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore would not arise.
9. It is in the same vein this Court termed it as reasonable likelihood of bias in Rattan Lal Sharma's case (Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-education) Higher Secondary School, wherein this court was pleased to observe that the test is real likelihood of bias even if such bias was, in fact, the direct cause. In Rattan Lal Sharma's case (supra) real likelihood of bias has been attributed a meaning to the effect that there must be at least a substantial possibility of bias in order to render an administrative action invalid. Rattan Lal Sharma's case (supra) thus, in fact, has not expressed any opinion which runs counter to that in Girja Shankar's case (2000 AIR SCW 3826) (supra) and the decision in the last noted case thus follows the earlier judgment in Rattan Lal's case even though not specifically noticed therein.
27. Yet again in State of Punjab, etc. v. V.K. Khanna and Ors. 2001 (3) SLJ 402, the Apex Court held:-
"7. The test, therefore, is as to whether there is a mere apprehension of bias or there is 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 there from. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained; If on the other hand, allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the bias therefore would not arise."
28. Applying the aforementioned principles, we are of the opinion that it cannot be said to be a case where bias or likelihood of bias can be attributed.
29. Let us now consider the decisions relied upon by the learned counsel.
In Arjun Chaubey's case (Supra), the disciplinary authority passed an order of dismissal on a charge of misconduct in relation to himself after considering by himself explanation given by the employee against the charge. In that view of the matter, it was held that the disciplinary authority was biased.
The point, which has been raised in this writ petition, has not been considered in Mohammad Nooh's case (Supra) and in that view of the matter, the said decision cannot be said to be an authority for the proposition that the respondent No. 4 could not have acted as the appellate authority only because he had issued the charge-sheet.
30. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.