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TMI Blog2000 (10) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... esenting 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. (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner as the General Manager were withdrawn: (b) a show-cause notice was served on 1st October, 1993 requiring his explanation by 19th October, 1993 with a direction to appear on 20th October, 1993: (c)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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 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 ₹ 1.91 lakh only. Thus, there is balance of ₹ 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 propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ams 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, 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts. 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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