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TMI Blog2004 (9) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... they satisfy the conditions prescribed under the exemption notification (annexure P 3). In order to examine the cases of eligible dealers, the notification (annexure P 3) has provided the procedure as to how and in what manner and which committee shall examine their cases with a view to find out as to whether a dealer is eligible and if so, to what extent he/they can enjoy the sales tax exemption on the sale of their goods. The State has formed three committees for examining the cases of eligible dealer. To begin with, the dealer is required to make an application to what is known as District Level Committee (DLC) then to State Level Committee (SLC) if the application is rejected by the DLC and lastly to State Appellate Committee by way of appeal. 4. Conditions 4(c), (d) and 10(2) of the annexure appended to exemption notifications (annexure P 3) provide for constitution of these committees. They read as under: "4(c). The District Level Committee shall consist of the following officers: 1.Collector of the District. Chairman 2. Zonal Officer, Industries Vice Chairman 3. Deputy Commissioner of Sales Tax or his nominee not below the ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Appellate Committee. However, by impugned order (annexure 12) the Appellate Committee also rejected the appeal giving rise to filing of this writ. 7.. As mentioned supra, the constitution of SLC, i.e., State Level Committee shows that it is chaired by Commissioner of Sales tax/Commercial Tax by virtue of his office along with two other members. Even these two members occupy the post of members by virtue of office named therein. Same is the case with regard to constitution of State Appellate Committee under sub-clause (2) of clause 10. This appellate committee consists of five members. It is chaired by Minister-in-charge of Commerce and Industries Department. One of its members who is also designated as Secretary is Principal Secretary, Commerce and Industries Department. 8.. At the relevant time, i.e., at the time when the case of the petitioner referred supra, was under consideration before the SLC, it was chaired by Shri V. Tripathi who was Commissioner Commercial Tax/Sales Tax. In other words, by virtue of office held by Mr. V. Tripathi of Commissioner, Sales Tax/Commercial Tax, he occupied the post of chairman of SLC and became a party to the decision render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by SLC as Chairman (annexure P 7) and he also happened to be a member of appellate committee, he should not have heard the appeal filed by the petitioner against annexure P 7, i.e., the order to which Mr. V. Tripathi was a party as Chairman of SLC. In the second place, learned counsel assailed the impugned order on merits contending that it is not sustainable in law. In reply, learned State counsel for the respondents defended the impugned proceedings on the same reasoning which were made basis by the appellate committee for rejecting the preliminary objections raised by the petitioner before them. 13.. Having heard learned counsel for the parties and having perused record of the case, i find force in the first submission urged by learned counsel for the petitioner. As a consequence, the petition succeeds and has to be allowed resulting in remand of the case to State Appellate Committee with certain directions as indicated infra. 14.. The question involved in this writ has to be decided keeping in view the law laid down by the Supreme Court in its two leading decisions reported in AIR 1970 SC 150 (A.K. Kraipak v. Union of India) and a recent decision reported in (1998) 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney-General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. .............. 20.. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.. Then came yet another classic on the subject from the Supreme Court. This case, i.e., State of West Bengal v. Shivananda Pathak (1998) 5 SCC 513 has more closeness so far as the facts of this case are concerned. In this case, a petition was allowed by learned single Judge of the Calcutta High Court (Justice A.K. Sengupta). The decision of single Judge was then set aside by the division Bench. However, in second round of litigation started by the same petitioner, whose petition had been dismissed by the division bench earlier, the single Bench dismissed the second writ. The petitioner then filed appeal before the division Bench against this dismissal. This time, the division Bench was presided over by Justice A.K. Sengupta along with other judge. This division Bench heard the appeal and allowed it by granting the same relief which justice A.K. Sengupta sitting singly in the earlier round of litigation had granted to the writ petitioner (though the same was overruled by the earlier division Bench in first round of litigation). It is with this background, the matter was carried in special leave to appeal by the respondent of writ in Supreme Court. 17.. Their Lordships were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders the Judge unable to exercise impartiality in a particular case. 26.. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias, etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy. 27.. Judges unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgments reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the Letters Patent Appeal, if available. 28.. If a judgment is overruled by the higher court, the judicial discipline requires that the Judge whose judgment is overruled must submit to that judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down the need of 'fair play' or 'fair hearing' in quasi-judicial and administrative matters. The hearing has to be by a person sitting with an unbiased mind. To the same effect is the decision in S.P. Kapoor (Dr) v. State of Himachal Pradesh AIR 1981 SC 2181. In an earlier decision in Mineral Development Ltd. v. State of Bihar AIR 1960 SC 468, it was held that the Revenue Minister, who had cancelled the petitioner's licence or the lease of certain land, could not have taken part in the proceedings for cancellation of licence as there was political rivalry between the petitioner and the Minister, who had also filed a criminal case against the petitioner. This principle has also been applied in cases under labour laws or service laws, except where the cases were covered by the doctrine of necessity. In Financial Commissioner (Taxation), Punjab v. Harbhajan Singh (1996) 9 SCC 281; 1996 AIR SCW 2429 the Settlement Commissioner was held to be not competent to sit over his own earlier order passed as Settlement Officer under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The maxim Nemo Debet Esse Judex in Propria Sua Cause was invoked in Gurdip Singh v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'justice should not only be done but should manifestly be seen to be done' can be legitimately invoked in their cases. 35.. Applying these principles in the instant case, it will be seen that although the judgment passed by Mr Justice Ajit Kumar Sengupta in the first writ petition in which he had given a direction that the respondents shall be promoted with effect from March 13, 1980 was set aside, he (Mr justice Ajit Kumar Sengupta), in the subsequent writ petition between the same parties, gave a declaration that the respondents shall be treated to have been promoted with effect from March 13, 1980. Significantly such a declaration was not prayed for and what was prayed in the subsequent writ petition was a direction to the State Government to pay arrears of salary of the higher post with effect from March 13, 1980. To put it differently, in the first writ petition, Mr Justice Ajit Kumar Sengupta commanded 'promote the respondents with effect from March 13, 1980': in the second writ petition he directed 'treat the respondents as promoted with effect from March 13, 1980'. There is hardly any difference between the two judgments. In fact, the second writ petition constitutes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bias and "human probabilities". The very presence of member may lead to a feeling that bias may operate against an aggrieved. This is how the maxim applies to the case and gets attracted to maintain highest standard of transparency in judicial decisions. He thus, could not sit as a member of Appellate Committee to decide the appeal arising out of his own decision. Indeed, he could not have been a Judge of his own cause by sitting as one of the appellate member for deciding the appeal. This act on his part was against the principle laid down by the Supreme Court in Kraipak case AIR 1970 SC 150 and Shivananda Pathak's case (1998) 5 SCC 513. It has thus, vitiated the impugned appellate order passed by such appellate committee. 20.. Accordingly and in view of aforesaid discussion, the petition succeeds and is allowed. Impugned order dated February 28, 2004 (annexure P 12) passed by State Appellate Committee is hereby quashed by writ of certiorari. It is hereby directed that appeal filed by the petitioner (annexure P 8) against the order dated July 3, 2003 (annexure P 7) passed by SLC shall be heard by a State Level Appellate Committee constituted in terms of clause 10(2) of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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