GUJARAT NATIONAL LAW UNIVERSITY

AMARNATH CHOWDHURY v. BRAITHWAITE & CO. LTD. & Ors.

A CASE STUDY
BY: SRINJOY BHATTACHARYA 2 Year, Gujarat National Law University Registration Number 11B149
nd

INDEX
1. INTRODUCTION- Pg 1-10 1.1 RULE AGAINST BIAS(NEMO JUDEX IN CAUSA SUA)-Pg 2 1.1.1. TYPES OF BIAS-Pg 4 1.1.2. TESTS OF BIAS- Pg 5 1.1.2.1 DIFFERENTIATION BETWEEN THE TESTS- Pg 8 1.1.3. EXCEPTIONS TO THE RULE AGAINST BIAS-Pg 10 2. AMARNATH CHOUDHARY v. BRAITHWAITE & CO. LTD. & Ors.- Pg 11-15 2.1 FACTS OF THE CASE- Pg 11 2.2 FINDINGS AND DECISION OF THE SUPREME COURT- Pg 12 2.3 PERSONAL VIEWS ON THE JUDGEMENT- Pg 14 3. CONCLUSION- Pg 16

1) INTRODUCTION
The Principles of Natural Justice (PNJ) form the cornerstone of administrative law in India, in specific, and across existing legal systems in countries across the world, in general. In India, there has been no statutory limit that has been set within which the administrative agencies are supposed to exercise their decision making powers. This limit has been set by the Indian judiciary through various decisions over the years, through application of the PNJ. Simply put, PNJ entails fairness, equity and equality. In a welfare state like India, the role and jurisdiction of the administrative agencies are increasing manifold with the passage of time. The concept of Rule of Law would lose its validity if the instrumentalities of the state are not charged with the duty of discharging these functions in a fair and just manner. In India, the PNJ are firmly enshrined in Article 14 and Article 21 of the Constitution. With the introduction of the concept of substantive and procedural due process within the ambit of Article 211, all that entails fairness with the boundaries of PNJ can be read into Article 21. The violation of the PNJ would lead to arbitrariness and thus, would be a violation of Article 14 of the Indian Constitution2. In the case of A.K. Kraipak v. Union of India 3, the Supreme Court of India held that the PNJ can also be applied to administrative proceedings. The concept of natural justice in itself is meant to prevent the miscarriage of justice and entails the following: i) ii) No one shall be a judge in his own cause (nemo judex in causa sua) or the Rule against bias; No decision shall be given against a person without affording him reasonable hearing(audi alteram partem).

Thus, as can be seen from the above decision of the Supreme Court, the PNJ entails two basic principles. With regard to the case at hand, an analysis of the first principle i.e., the Rule Against Bias is pertinent. 1.1) RULE AGAINST BIAS (NEMO JUDEX IN CAUSA SUA)

According to the Blacks Law Dictionary, bias is defined as an Inclination; bent; prepossession: a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction.4
1 2

Union of India v. R. Gandhi, (2010) 6 SCR 857 E.P. Royappa v. State of Tamil Nadu, 1974 SCR (2) 348 3 AIR 1970 SC 2042 4 http://theblackslawdictionary.org/bias/; Last visited on 30th March, 2013.
3

In general legal usage, bias means an operative prejudice, whether conscious or unconscious with regard to a party or an issue. The Rule against Bias flows from the following two principles: i) ii) No one should be a judge in his own cause Justice should not only be done but manifestly and undoubtedly be seen to be doneLord Hewart, the Lord Chief Justice of England and Wales.5

The essence of this principle is to ensure impartiality in decision making. Without impartiality, public confidence cannot be maintained in the legal system. A lack of impartiality would result in loss of nobility of the legal system and would ensure chaos. Lord Denning observed in Metropolitan Properties Co. (F.G.C.) Ltd. V. Lannon 6: Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'" However, impartiality of the judge is not required in isolation. In addition, it is required that the judge is in a position to apply his mind objectively to the dispute before him. The Rule against Bias, thus, has two main aspects: i) ii) The administrator exercising adjudicatory powers must not have any personal or proprietary interest in the outcome of the proceedings. There must be real likelihood of bias. Real likelihood of bias is a subjective term, which means either actual bias or a reasonable suspicion of bias. It is difficult to prove the state of mind of a person. Therefore, what the courts see is whether there is reasonable ground for believing that the deciding factor was likely to have been biased.

Where a person, who discharges a quasi-judicial function, has, by his conduct, shown that he is interested, or appears to be interested, that will disentitle him from acting in that capacity. In this regard the Supreme Court pointed out that one of the fundamental principles of natural justice is that in case of quasi-judicial proceedings, the authority, empowered to decide the dispute between opposing parties must be one without bias, by which is meant an operative prejudice, whether conscious or unconscious towards one side or the other in the dispute.7 At this juncture, it is imperative to differentiate between malafide and bias. In case of mala fide, Courts insist on proof of mala fide while as in case of bias, proof of actual bias is not necessary. What is necessary is that there was real likelihood of bias and the test is that of a reasonable man. Professor M.P. Jain puts it in the following words: The reason underlying this rule is that bias being a mental condition there are serious difficulties in the path of proving on a balance of probabilities that a person required to act judicially was in fact biased. Bias is the result of an attitude of mind leading to a predisposition towards an issue. Bias may arise unconsciously. It is not necessary to prove existence of bias in
5

R v. Sussex Judges, Ex Parte McCarthy [1924] 1 K.B. 256 at 259 [1969] 1 Q.B. 577 7 Wade, Administrative Law , Page 311, 1982 Edition.
6

fact, what is necessary is to apply the test what will reasonable person think about the matter? Further, justice should not only be done but seem to be done. Therefore, the existence of actual bias is irrelevant. What is relevant is the impression which a reasonable man has of the administration of justice.8 Griffith and Street comment on the English position with regard to the same in their book, Principles of Administrative Law. According to them, Rule of bias is only a principle of judicial conduct and is imposed strictly on the exercise of the judicial or quasi- judicial authorities. In the matters of sole discretion of the authority or in the matters depending upon the subjective satisfaction of the authority concerned, the Court will not issue any order on the ground of bias for quashing it. The search for mala fide intention and scrutinizing the honest intention of the administrative authorities have always been subject-matter of judicial review by the English Courts.9 1.1.1) TYPES OF BIAS Bias can take the following forms: I) PECUNIARY BIAS: Judicial approach is unanimous and decisive on the point that any financial interest, howsoever, small it may be, would vitiate administrative action. The disqualification will not be avoided by non-participation of the biased member in the proceeding if he was present when the decision was reached.10 However, the rule against bias will not be applied where the judge though having a financial interest, has no financial interest in the outcome of the case.11 PERSONAL BIAS: Personal bias arises from a certain relationship equation between the deciding authority and the parties which incline him unfavourably or otherwise on the side of one of the parties before him. Such equation may develop out of varied forms of personal or professional hostility or friendship. However, no exhaustive list is possible.12 SUBJECT MATTER BIAS: Those cases fall within this category where the deciding officer is directly, or otherwise, involved in the subject matter of the case. Here again mere involvement would not vitiate the administrative action unless there is a real likelihood of bias.13 DEPARTMENTAL BIAS/INSTITUTIONAL BIAS: The problem of departmental bias is something which is inherent in the administrative process, and if it is not effectively checked, it may neglect the very concept of fairness in the administrative

II)

III)

IV)

8 9

M.P. Jain Evolving Indian administrative Law, p. 78. Griffith and Street, Principles of Administrative Law, Pg. 20. 10 R. v. Hendon Rural Distt. Council ex p. Chorley, (1933) 2 KB 696. 11 R. v. Mulvihill, (1990) 1 All ER 436. 12 Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719. The Supreme Court held that the manager cannot conduct an enquiry against worker arising from an allegation that he had beaten the Manager. In D.K.Khanna v. Union of India, AIR 1973 HP 30, the High Court quashed the selection of he candidate where his son-in-law was a member of the Selection Committee. 13 R. v. Deal Justices ex p. Curling, (1881) 45 LT 439; Murlidhar v. Kadam Singh, AIR 1954 MP 111; Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308
5

V)

VI)

proceeding.14 The problem of departmental bias also arises in a different context where the functions of a judge and a prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates against the very concept of fair hearing.15 However, where there is no such conflict between the duty and interest of the department, concept of institutional bias cannot be narrowly construed in view of compelling institutional constraints.16 PRECONCEIVED NOTION BIAS: Bias arising out of preconceived notions is a very delicate problem of administrative law. On one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the other hand, preconceived notions would vitiate a fair trial.17 However, the problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. BIAS ON ACCOUNT OF OBSTINACY: The Supreme Court18 has discovered a new category of bias arising out of thoroughly unreasonable obstinacy. Obstinacy implies unreasonable and unwavering persistence and the deciding officer would not take no for no answer. This new category of bias was discovered in a situation where a judge of the Calcutta High Court upheld his own judgment while sitting in an appeal against his own judgment.

1.1.2) TESTS OF BIAS The following tests are generally applied to test bias:

I)

TEST OF REAL LIKELIHOOD OF BIAS OR REASONABLE SUSPICION OF BIAS: Much confusion has been caused in the past by the concurrent use of two differently formulated tests for disqualifying bias. Many judges have laid down and applied the real likelihood formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to real likelihood of bias19; and this test has naturally been emphasized in cases where allegation of bias was farfetched.20 Other judges have employed a reasonable suspicion test emphasizing that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal

14 15

Gullapalli Nageswara Rao v. APSRTC, Id. Hari v. Dy. Commr. Of Police, AIR 1956 SC 559 16 South Indian Cashew Factories Workers Union v. Kerela State Cashew Development Corpn. Ltd., (2006) 5 SCC 201 17 Govindaraju v. State of T.N., (1973) 1 SCC 336 18 THE TRIBUNE, May 18, 1998, at Pg.11 19 R. v. Rand, (1866) LR 1 QB 230; R v. Sutherland Justices, (1901) 2 KB 357; Hannam v. Bradford Corporation, [1970] 1 WLR 937 20 R. v. Camborne Justices ex p. Pearce, [1955] 1 QB 41
6

interest.21 In one case it was even said that the rule for judges of all kinds was that they must be free from even unreasonable suspicion of bias. In many cases, both the tests lead to the same result, since likelihood was given the meaning of possibility rather than probability. For if there was no real possibility of bias, no reasonable person would suspect it. But other judicial statements, more naturally, equated likelihood with probability22, so that the two tests became different, and courts confronted with them felt obliged to elect between them. In order to challenge administrative action successfully on the ground of personal bias, it is essential to prove that there is a reasonable suspicion of bias23 or a real likelihood of bias. The reasonable suspicion test looks mainly to outward appearance, and the real likelihood test focuses on courts own evaluation of possibilities; 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.24 In this area of bias, the real question is not whether a person was biased. It is difficult to prove the state of mind of a person. Therefore, what the courts see is whether there is a reasonable ground for believing that the deciding officer was likely to have been biased. II) THE REASONABLE SUSPICION TEST: As the name of the reasonable suspicion of bias test indicates, reasonableness plays a vital role in its application. The real question regarding this test is whether it actually exists. This test postulates that where the statements or actions or position of an adjudicator causes necessarily a reasonable person25, not a fool26, nor a whimsical, capricious, or morbid person27, to think that there is a real possibility of bias on his part for or against a party in a particular case, he is disqualified from sitting.

21

R. v. Gaisford, [1892] 1 QB 381; Metropolitan Properties Co. (FCG) Ltd. .v Lannon, [1969] 1 QB 577 22 R v. Barnsley Licensing Justices ex p. Barnsley and District Licensed Victuallers Association, [1960] 2 QB 167 23 Metropolitan Properties Co. (FCG) Ltd. .v Lannon, supra note 27 24 I.P. Massey, Administrative Law, Pg.204, 2008 Edn. 25 Contrary to Lord Esher M.R.s suggestions in Eckersley v. Mersey Docks and Harbour Board, [1894] 2 Q.B. 667 that one should consider the suspicions of not necessarily reasonable people; criticized by Lord O Brien C.J. in R. v. Cork Country Justices, [1910] 2 I.R. 271 as being loose expressions. 26 Unlike that which Day J. in R. v. Taylor, ex p. Vogwill (1898) 14 T.L.R. 185 proscribed: Anything at any time which would make fools suspect. 27 See R. v. Cork Country Justices, supra note 25.
7

In the earlier days of rule against bias, the courts implicitly denied the existence of reasonable suspicion test by relating non-pecuniary interest to only the real likelihood test28 and the peculiar substantial interest doctrine.29 Even at that time, however, Lord Esher M.R. stated that the law required that an adjudicator could not reasonable be suspected of being biased30; while Lopes L.J. said that the test of bias was whether there was any reasonable any real or substantial ground for suspecting bias.31This test secured the quashing of a conviction for illegal salmon fishing in England when the presiding justices were members of prosecuting association.32 It was also applied on other occasions in England and Australia.33 This test enjoyed a major break-through in R. v. Sussex Justices ex. p. McCarthy. In this case Lord Hewart C.J. laid down that it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Adding that nothing should be done which created even a suspicion of improper interference with justice, Lord Hewart reinforced the reasonable suspicion test. In the three decades following this case, the test was employed in many other cases, suppressing the decisions of valuation assessment committees and justices presiding over family disputes in England, quashing the orders of magistrates making unfortunate remarks in New Zealand and Australia and avoiding arbitration awards in Australia. Moreover, this test was otherwise recognized. III)
THE REAL LIKELIHOOD TEST: Ever since English justices certified that a corporation, in

whose bonds their cestui qui trustees had invested, might appropriate a stream, and Blackburn J. held that non-pecuniary interest had not been proved as there was no real likelihood of bias34, no one has doubted the existence of the real likelihood of bias test. What has been queried, by Danckwerts L.J. for example, is this : must there be a real likelihood that the tribunal was biased, or is it sufficient that a reasonable person would think that the tribunal might be biased?35Those answered question are apt to throw doubt on whether a court must apply the perception of a reasonable person in
28 29

R. v. Rand, supra note 19. R. v. Henly, [1892] 1 Q.B. 504 30 Allinson v. General Medical Council, [1894] 1 Q.B. 750 31 Id. 32 R. v. Allan, (1864) 4 B.& S. 915 33 Law v. Chartered Institute of Patent Agents, [1919] 2 Ch. 276; R. v. Huggins, [1895] 1 Q.B. 563; Sharp v. Carey, (1897) 23 V.L.R, 248, F.S.C. 34 R v. Rand, supra note 19 35 Metropolitan Properties Co. Ltd. v. Lannon, supra note 22
8

determining a real likelihood of bias. Likewise, Devlin L.J. persists that real likelihood depends on the impression which the courts gets from circumstances.36 Noticeably he speaks of the impressions of the court, not of the reasonable person, without stating what criteria the court would use in gaining its impression. Surely, when the founding fathers of the Commonwealth Bills of Rights guaranteed to the individual the right to have his criminal charge and his civil rights or obligations determined by an independent and impartial37tribunal, they doubtless meant to secure freedom from bias as judged by the reasonable person. Obviously the standard of a morbid person cannot be used. Nor, however, can one use that of an irrepressible optimist, never accepting that even when Mans passions are noble they are too often diverted from their true course.38Rather one agrees with Lord Denning J.R. that a real likelihood bias exists when a reasonable man would think it likely or probable that an adjudicator favoured one side unfairly. 39 So, too Professor de Smith suggests that real likelihood is based on the reasonable apprehensions40of a reasonable man. 1.1.2.1) DIFFERENTIATION BETWEEN THE TESTS
I) ABSENCE OF DIFFERENTIATION: Three reasons may be identified for absence for differentiation.

Firstly, so ling as the existence of reasonable suspicion test was denied, differentiation was unimportant. Now that this test if flourishing, this differentiation is unavoidable. The second is the conviction that in the great majority of cases either test will lead to the same result.41[48] And, thirdly, there is little (if any) difference between the two tests.42 Also according to Lord Widgery C.J. no good purpose would be served by attempting a differentiation.43 But, on the other hand, it is inelegant to have two tests existing pari passu without an articulated differentiation. Since, there are two tests, and tow formulations of one test, there must be some real difference between them. II)OUTWARD APPEARANCES: Professor de Smith suggests that reasonable suspicion tests look mainly to outward appearances; real likelihood tests focus on the courts own evaluation
36 37

R. v. Barnsley Licensing Justices, supra note 28 Urias Forbes, Administrative Law in West Indies 21 I.C.L.Q. 95 (1972) 38 Sir Hugh Wooding, Law Reform Necessary in Trinidad and Tobago 9 CAN. B.J. 292 (1966) 39 Metropolitan Properties Co. Ltd. v. Lannon, supra note 22. 40 S.A. De Smith, Judicial Review of Administrative Action, Pg. 230, 3rd Edition 1973. 41 Turner v. Allison, [1971] N.Z.L.R. 833 42 Hannam v. Bradford Corporation, supra note 19 43 R. .v. Altrincham, ex p. Pennington, [1975] 1 Q.B. 549
9

of the probabilities.44If by the courts own evaluation, Professor de Smith means the judgment of the court uninfluenced by that of a reasonable man, this conflicts with his opinion that real likelihood is based on the reasonable apprehensions of a reasonable man. Moreover, both the tests mainly look to the outward appearances. Lord Denning reaffirms the principle because it emphasizes that real likelihood does not consider the mind of the adjudicator, so that even if he was as impartial as he could be, still his decision cannot stand if right-minded persons, if his good friends, perceive a real likelihood of bias.45 The entirety of rule against bias must be concerned with the outward appearances because it is never necessary to prove that an adjudicator has actually been biased.46 III)ACTUAL DIFFERENTIATION: Difference between the two tests is a reflection of the nearness to which a given circumstance approximates to a concrete temptation to an adjudicator to deviate from the path of impartiality in order to favour unfairly a party to or an interest in a matter. Real likelihood ofa bias denoted the predominant probability of the risk of bias as discerned by a reasonable person; whereas a reasonable suspicion of bias, connoting a less commanding danger of bias than does a real likelihood, presents a substantial possibility of the risk of bias as perceived by a reasonable person. The courts almost invariably identify real likelihood with probability. But they very rarely associate reasonable suspicion with possibility. And Professor de Smith defines real likelihood in terms of both probabilities and possibilities.47 IV)DIFFERENTIATION IN THE INDIAN SCENARIO: In the case of S. Parthasarthi v. State of A.P.48 , it was held that the tests of real likelihood of bias and reasonable suspicion of bias are inconsistent with each other. The first test if preferable and surmise conjecture is not enough. In case where there is real likelihood of bias the ultimate decision based on the report of the Enquiry Officer will be quashed. The cumulative effect of following circumstances show bias: (i) (ii) (iii) Repeated memorandums given by the authorities threatening disciplinary action. Overlooking claim for promotion. Making deduction from pay for absence which were restored by higher authorities.

44 45

Supra Note 40, at Pg. 231. Metropolitan Properties Co. Ltd. v. Lannon, supra note 22 46 R. v. Edwards, (1922) 1 St.R. 36; Rexats Kudan v. Carty, (1933) 1 J.L.R. 99 47 Supra Note 40, at Pg 230 48 AIR 1973 SC 2701
10

(iv)

Asking him to tale charge of weeding section and not giving facilities asked for.

(v) Sending a letter to hospital for mental diseases asking about the mentak condition of the appellant and his refusal not to advise retrenchment on medical grounds and starting disciplinary proceedings thereafter. 1.1.3) EXCEPTIONS TO THE RULE AGAINST BIAS The following are the exceptions to the Rule against Bias:
I)

DOCTRINE OF NECESSITY: This was the claim raised by the Respondents in the given case.49 There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act".50 In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems.51 This issue regarding necessity was raised in Dimes v. Grand Junction Canal Proprietors.52 The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail".53

II)

WAIVER: The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias.54 If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so.55

49 50

2002 AIR 678 Geoffrey A. Flick (1979), Natural Justice: Principles and Applications, London: Butterworths, pp. 138139, ISBN 978-0-409-35260-3. 51 Great Charte v. Kennington (1795) 2 Str. 1173, 93 E.R. 1107 52 (1852) 3 H.L. Cas. 759, 10 E.R. 301, House Of Lords, UK. 53 Allison v. General Council of Medical Education and Registration [1894] 1 Q.B. 750, C.A. (England & Wales). 54 Wakefield Local Board of Health v. West Riding and Grimsby Rly. Co. (1865) L.R. 1 Q.B. 84, H.C. (Q.B.) (England & Wales).

11

2) AMAR NATH CHOWDHURY v. BRAITHWAITE & CO. LTD. &

Ors.56 2.1) FACTS OF THE CASE

Amarnath Choudhary(hereinafter referred to as the Appellant) was an employee of Braithwaite & Co. Ltd.(hereinafter referred to as the Company), a Calcutta-based Government of India undertaking. A certain misconduct committed by the Appellant came to the notice of the Company. Pursuant to the same, the Company decided to institute disciplinary proceedings against the Appellant. He was served with a show-cause notice, to which he was to reply. An Inquiry Committee was set up for the purpose of an Enquiry with respect to the issue. After perusing the necessary evidences, it found that the charges leveled against the appellant proved. The Inquiry Committee accordingly forwarded its findings in the form of a report to the Disciplinary Authority. The Disciplinary Authority, who was the Chairman-cum-Managing Director of the Company, Shri S. Krishnaswami, accepted the report submitted by the Inquiry Committee, and consequently dismissed the Appellant from service vide an Order dated 13.02.1984. Under the regulations framed by the Company, an appeal against an order of the Disciplinary Committee lies with the Board of Directors of the Company. The Appellant accordingly preferred an appeal against the decision of the Disciplinary Committee to the Board Of Directors. It was found that the Chairman-Cum-Managing Director, Shri S. Krishnaswami, the Disciplinary Authority, was also a member of the Board of Directors of the Company. It was he who presided over the meeting of the Board when the matter at hand came before it in the form of appeal. The Board ,vide a non-speaking Order dated 31.08.1984, dismissed the appeal and upheld the order of the Appellant Authority. Aggrieved by the decision, the Appellant filed a writ petition under Article 226 of the Constitution of India. The Learned Single Bench, after having perused the matter, found a discrepancy in the proceedings and set aside the order of removal passed against the Appellant. The Company, in turn, filed a Letters Patent Appeal before a Division Bench of the Calcutta High Court against the decision of the Learned Single Judge. The Division Bench found the order and judgment of the Learned Single Bench to be erroneous and with that in mind, the order passed by the Learned Single Bench was set aside and the writ petition filed by the Appellant under Article 226 of the Constitution was dismissed.

56

2002 AIR 678

12

The Appellant subsequently preferred an appeal against this order and judgement of the Division Bench of the Calcutta High Court, before the Supreme Court of India. He filed a Special Leave Petition under Article 136 of the Constitution of India, which was allowed by the Honble SC. 2.2) FINDINGS AND DECISION OF THE SUPREME COURT

The matter came up for hearing before the Honble Division Bench of the Supreme Court consisting of Justice V.N. Khare and Justice Ashok Bhan. The Bench admitted Special Leave Petition filed by the appellant, from which the appeal arose and passed the following interim order: "Issue notice confined to the question as to why the case may not be remanded to the appellate authority." In the subsequent hearings, P.P Rao, the learned Senior counsel appearing on behalf of the Appellant, argued that Shri S. Krishnaswami, the Chairman-cum-Managing Director of the was functioning as the quasi-judicial authority at two levels-first at the initial stage as the Disciplinary Authority which passed the order of removal of the Appellant from service and second, at the appellate level, where he, in his capacity as a member of the Board of Directors, presided over the matter and dismissed the appeal. The order of the Appellate Authority passed on 31.08.1984, thus, stood vitiated on the ground of legal bias. The Bench accepted the arguments advanced by Shri Rao as his claims were supported by undisputed facts- that Shri Krishnaswami, the Chairman-cum-Managing Director of the Company, was the first Disciplinary Authority who passed the order of removal against the Appellant and that he was also a part of the Board of Directors, the first Appellate authority in all such matters as per the Rules of the Company, which dismissed the appeal of the Appellant. The question, therefore, arose was whether the proceedings of the Board was vitiated on account of participation of the Disciplinary Authority while deciding the appeal preferred by the appellant. The Honble Bench of the Supreme Court, in its judgement, stated that one of the Principles of Natural Justice required that no person should be a judge in his own cause. In other words, it is required that the adjudicating authority, while excercising his functions in this regard, must act impartially without any preconceived notion or bias regarding the issue at hand. This rule had its origin in the maxim Debet esse Judex in Propria Causa, which is based on the principle that justice should not only be done but also seen to be done. The Bench further held that the above could only be achieved if the judge or the adjudicating authority was functioning impartially, without any kind of bias. It went on to classify three types of bias-i) pecuniary, ii) personal, or iii) with regard to subject matter. It went on to hold that this matter did not pertain to any of the three forms of bias mentioned above. The question in this case was whether an authority can sit in appeal against its own order passed in the capacity of Disciplinary Authority.
13

The Bench relied on the judgement of the Honble Supreme Court in the case of Financial Commissioner (Taxation) Punjab & Ors. vs. Harbhajan Singh 57, where it held that it was held that the Settlement Officer has no jurisdiction to sit over an appeal against the order passed by him as an Appellate Authority. The Bench held that the dual functions performed by Shri S. Krishnaswami, the Chairman-cum-Managing Director of the Company, were not permissible because of the existing rule against bias. The same could only be allowed if there was a legislative or statutory provision allowing the same. In its absence, such dual functioning would vitiate the existing Rule against Bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter; otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In the light of the above, the Honble Bench held that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company, ought not to have participated in the deliberations of the Board Of Directors functioning as the First Appellate Authority before which a decision passed by him in his capacity as the Disciplinary Authority had arrived for adjudication. The counsel for the Company(Respondents) argued that the Doctrine of Necessity could be applied here. It was contended that the Rule against bias was not available when, under the regulations framed by the Company, the Disciplinary Authority who happened to be Chairman-cum-Managing Director of the Company was required to preside over the meeting of the Board and, therefore, the then Chairman-cum-Managing Director of the Company was not disqualified to preside over and participate in the meeting of the Board which dismissed the appeal of the appellant. The Honble Bench of the Supreme Court rejected this argument. It took the support of Rule 3(d) of the Companys Conduct, Discipline and Appeal Rules, which stated as follows: "Board means the proprietors of the Company and includes, in relation to exercise of powers, any committee of the Board/Management or any Officer of the Company to whom the Board delegates any of its powers." In view of the above rule, the Bench opined that a Committee could have been constituted consisting of Board members or other officers excluding the Chairman-cumManaging Director to stave off allegations of bias. Thus, the Doctrine of Necessity is misplaced and does not apply to the given case. The Bench, thus, set aside the order and judgement in challenge along with order of the Appellate Authority of the Company. It sent back the matter to the Appellate Authority to be decided by it in accordance with law, by a speaking order.

57

1996 (9) SCC 281

14

It further ordered the Company not to take any steps to recover money paid to the Appellant on his superannuation till the matter is finally decided by the Appellate Authority. The appeal was thus admitted. The Bench decided against passing an order with regard to costs. 2.3) PERSONAL VIEWS ON THE JUDGEMENT

The Honble Division Bench of the Supreme Court was completely justified in passing the above order and giving the above judgement, which is well reasoned and concise. The Bench rightly observed that the given case did not fall within the purview of the three traditional forms of bias i.e., pecuniary, personal or with regard to subject matter, of which courts across the world have traditionally taken cognizance. Instead, it recognized the question of law in this case as to whether an authority can preside over an appeal against its own order passed in the capacity of Disciplinary Authority. By doing so, the Court has not restricted the purview of bias to only the three traditional forms and has instead paved the way for the Courts to take cognizance of matters where any form of bias is caused or is likely to be cause, thus upholding the essence of the PNJ. The given case is clearly a case of pre-conceived notion bias. If one were to apply the test of reasonable suspicion or apprehension of bias, this case would fit the mould. The Chairman-cumManaging Director of the Company, Shri S. Krishnaswami, first acted in his capacity as the Disciplinary Authority and passed an order of removal of the Appellant. When the Appellant preferred an appeal to the Board Of Directors, Shri Krishnaswami presided over the meeting in his capacity as the Chairman-cum-Managing Director. This would undoubtedly raise a suspicion or cause apprehension of bias in the minds of any reasonable person. That there might be a certain pre-conceived notion in the mind of Shri Krishnaswami, who was performing dual functions in this case, cannot be ignored. It would be a foolhardy to expect him, as an Appellate Authority, to reverse an order passed by him in his capacity as Disciplinary Authority. If this were to be allowed, the appeal preferred by the Appellant before the Board of Directors would be an act in futility and would go against the Rule Against Bias. The Honble Bench of the Supreme Court took due cognizance of the above principle and also took into consideration the principle of Debet esse Judex in Propria Causa, according to which justice should not only be done but also be seen to be done, and passed an order in favour of the Appellant. It relied on the case law of Financial Commissioner (Taxation) Punjab & Ors. vs. Harbhajan Singh58, where the Supreme Court held the Settlement Officer has no jurisdiction to sit over an appeal against the order passed by him as an Appellate Authority.
58

1996 (9) SCC 281

15

The Honble Bench rightly held that Shri S. Krishnaswami ought not to have presided over an appeal against an order passed by him in his capacity as the Disciplinary Authority, as it would vitiate the entire purpose of the Appeal and go against Rule against Bias, a pillar of the PNJ. It also correctly rejected the arguments of the Company which applied the Doctrine of Necessity, which is an exception to the Rule against Bias. Rule 3(d) of the Companys Conduct, Discipline and Appeal Rules clear provides for the formation of a committee with the sanction of the Board Of Directors to remove any apprehension of bias that would arise. This was not done. Shri S. Krishnaswamis dual functions was not backed by any statutory sanction. Thus, the argument could not be accepted. In its final order, the Honble Division Bench rightly remanded the matter to the Appellate Authority within the Company to adjudicate the matter judiciously without any bias. It also stressed on the necessity of a speaking order to be passed the Appellate Authority after it concluded with proceedings. This was justified with a view to prevent arbitrariness, which goes against the tenets of the Rule of Law. Thus, having done so, the Supreme Court of India performed its role as the ultimate server of justice in the country, and were in total conformity with principle of Debet esse Judex in Propria Causa-justice was not only done but seen to be done.

16

3) CONCLUSION
The Rule against Bias is one of the basic tenets of the PNJ, which are the essence of any legal proceedings at any level and have to be conformed with at any cost. The Supreme Court through this judgement upheld the sanctity and supremacy of these principles through this judgement. With regard to the Rule against Bias, every kind of preference is not sufficient to vitiate an administrative action. If the preference is rational and unaccompanied by consideration of rational interest, pecuniary or otherwise, it would not vitiate the decision. Similarly, there must be a real likelihood and not a mere suspicion of bias, before the proceedings can quashed on the ground of bias. There is, according to some authors, a thin line of difference between the two tests i.e real likelihood of bias and reasonable suspicion of bias. But these tests yield the same result when applied to particular situation. So, it can be said that these two tests are same in effect. In the Indian circumstances also, the courts have no doubt applied these tests in various cases. But they have been very cautious in its application. It is judged from a healthy, reasonable and average point of view and not a mere apprehension and a vague suspicion of whimsical, capricious and unreasonable people.59 The proper approach for a court in such cases is not look inside its ownself and ask-Am I biased?-but to look into the mind of the party before it. The court must look at the impression which would be given to the other party. Therefore the test is not what actually happened but the substantial possibility of that which appeared to have happened. As the justice is rooted in the minds of the people and it is destroyed when right minded people go away thinking that the judge was biased.

59

PAUL CRAIG, ADMINISTRATIVE LAW 419 (6th ed., 2008)

17