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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.