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TMI Blog2017 (2) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... stified. The expressions "administration of Accounts" or "financial Management" are not defined under the Act. Therefore, such expressions have to be given ordinary meaning to such words. The argument that Clause (c) has to be read ejusdem generis to Clause (a) and (b) of Section 3 to contend that the member has to be qualified Chartered Accountant or having fair knowledge of accounts is not a legitimate inference. Though the one post is popularly called as the Member (Accounts), the experience of a candidate of working in Commercial Taxes Department would be helpful in discharge of the appeals by the Tribunals in the matter of Commercial Taxes. The experience which he has gained while working in the Commercial Taxes Department is in the field of Applied Accounts, therefore, it cannot be said that he does not have experience in administration of accounts. The assessment undertaken by the candidates gives him insight of the financial management given by the assessees - Therefore, it cannot be said that respondent No.6, appointed as Member (Accounts) is ineligible for appointment as a member in view of the fact that he has no experience of administration of accounts or financial m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four years in the administration of accounts or financial management in the State Government or Public Sector Undertaking. 3. The controversy is as to whether respondent No.6 is eligible to be a member of the Commercial Taxes Tribunal as he is said to have no experience in administration of accounts and financial Management as contemplated in Section 9(3)(c) of the Act in the category of serving as retired Government servant. The respondent No.6 on the date of appointment had ceased to be a member of Commercial Taxes Department as he attained superannuation on 31st of August, 2015. 4. In the counter affidavit filed, reference is made to a notice inviting applications for the post of Member (Accounts) in the Commercial Taxes Tribunal, Bihar. It was pointed out that not only respondent No.6, but 9 other persons also applied for the said post. The Committee, under the Chairmanship of Member, Board of Revenue, with other members interviewed all the short-listed eligible candidates on 15th of July, 2015 and following the procedure prescribed, the respondent No.6 was appointed as Member (Accounts) of the Commercial Taxes Tribunal, Bihar on 3rd of September, 2015. It is pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Qualification Working Experience 1. Sri Alok Mondal B.Com (Hons.) LLB, MBM (Finance) Cost Works A/c, P.G Diploma in Treasury and forex management Since 1981 Working In Bharat Coking Coal Ltd. At present General Manager (Finance) 2. Sri Santosh Kr. Singh B.Sc (Agriculture) Post Graduate Since 1989 Bihar Finance Service. At present Joint Commissioner, Commercial Taxes Department, Bihar, Patna. 3. Sri Santosh Kr. Sinha B.Sc. Since 1987 Bihar Finance Service. At present Additional Commissioner, Commercial Taxes Department, Bihar, Patna. 4. Sri Krishna Nand Roy B.A. (Hons) M.A. (English) Since 1987 Bihar Finance Service. At present Additional Commissioner, Commercial Taxes Department, Bihar, Patna. 5. Sri Anup Kumar B.Sc, C.A., C.S. Inter Different private Public sector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to consider whether the experience of a candidate satisfies the parameters of Sub-clause (c) as to whether he has experience of at least four years in administration of accounts or financial management. 12. The member of the Tribunal, even if they are Government servants, or a retired Government servant, cannot be presumed to owe their allegiance to the State Government while working as member of the Tribunal. As a member of the Tribunal, they are expected to discharge their duties to implement the provisions of the Act and the Rules made thereunder. A Constitution Bench judgment reported as AIR 1961 SC 93, The Samarth Transport Co. (P) Ltd. V. The Regional Transport Authority, Nagpur Ors. held that a statutory Tribunal is expected to discharge its functions fairly and without bias even in a case where the interests of the Government are involved. It was a case where Regional Transport Authority, consisting of Government officials, was discharging statutory functions, The Court held as under: 10. The record in this case is not indicative of promptitude or efficiency in the matter of discharge of the statutory functions by the Regional Transport Authority. The various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, does not authorise the State Government to act in derogation of the principles of natural justice. 14. In another Constitution Bench Judgment reported as Registrar, Coop. Societies v. Dharam Chand, AIR 1961 SC 1743, the objection raised was that Registrar of the Co-operative Societies, being the head of the Department, should not have made inspection or appointed such persons who might have made inspection of the Bank. The Court observed as under: 5. The next contention is that the Registrar being the administrative head of the Department is in control of all the cooperative societies in Ajmer, including the Bank. It is said that because of that administrative control which the Registrar exercises through his subordinates in the Department, he is interested to see that the blame is put on the Managing Committee and that his Department is freed from all blame. In particular our attention has been drawn to Section 17 which enjoins that the Registrar shall audit or cause to be audited by some person authorized by him the accounts of every registered society once at least in every year. It is said that under this provision the Registrar has been appointing chartere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isement, but not otherwise: 48. Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action with reference to the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial chastisement but it falls in the latter, it would hardly affect the decision, much less adversely. 57. The word bias in popular English parlance stands included within the attributes and broader purview of the word malice , which in genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial or quasi-judicial body is vitiated due to bias. In Manak Lal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425, it was observed: (AIR p. 429, para 4) 5. every member of a tribunal that [sits to] try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. 71. The principles which emerge from the aforesaid decisions are that no man can be a judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but they must not be seen to be inclined. A person having interest in the subject-matter of cause is precluded from acting as a Judge. To disqua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jusdem generis to Clause (a) and (b) of Section 3 to contend that the member has to be qualified Chartered Accountant or having fair knowledge of accounts is not a legitimate inference. Though the one post is popularly called as the Member (Accounts), the experience of a candidate of working in Commercial Taxes Department would be helpful in discharge of the appeals by the Tribunals in the matter of Commercial Taxes. The experience which he has gained while working in the Commercial Taxes Department is in the field of Applied Accounts, therefore, it cannot be said that he does not have experience in administration of accounts. The assessment undertaken by the candidates gives him insight of the financial management given by the assessees. Therefore, it cannot be said that respondent No.6, appointed as Member (Accounts) is ineligible for appointment as a member in view of the fact that he has no experience of administration of accounts or financial management. Still further, only one candidate is a Chartered Accountant whereas another candidate is a Commerce and Law Graduate and has done M.B.M. in Finance. The three candidates are the members of Bihar Finance Service and have worked ..... X X X X Extracts X X X X X X X X Extracts X X X X
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