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TMI Blog2022 (6) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 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 - In S. PARTHASARATHI VERSUS STATE OF A.P. [ 1973 (9) TMI 101 - SUPREME COURT ] the Supreme Court has applied the real likelihood test and restored the decree of the trial court which invalidated compulsory retirement of the Appellant by way of punishment. Mr.Madhu Mohan Damodhar, who originally accorded sanction for prosecution against the appellant, based on the adjudication order, ought not to have later heard and decided the appeal filed by the appellant against the very same adjudication order, on the judicial side, as a member of the CESTAT and on this ground alone, the orders impugned herein, are liable to be set aside - the learned Senior Panel Counsel appearing for the respondent fairly conceded the fact that the officer viz., Mr.Madhu Mohan Damodhar, who passed the sanction order for instituting the prosecution against the appellant company, was a member of the CESTAT, at the time of passing of the final order as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as the Commissioner of Customs (Seaport- Imports) for the Prosecution of the appellant and its Managing Director under Section 137(1) of the Customs Act, 1962, based on the impugned adjudication order dated 30.12.2005, heard the CESTAT appeal? CMA.No.721 of 2022 1. Whether the CESTAT is correct in holding that the show cause notice was issued by the proper officer when it was issued under the reference? 2. Whether the CESTAT correct in adjudicating the issue of jurisdiction in ROM application, when it found the Final Order in Appeal No.C/86/2006-DB, has not dealt the same? 3. Whether the CESTAT is correct in not re-hearing the Appeal denovo, despite it noticing the fact that its earlier Final Order had not dealt with the issue of jurisdiction raised by the revenue and the appellant? 4. Whether the CESTAT Bench violated the rule of law by hearing the case when the person who had accorded sanction as the Commissioner of Customs (Seaport-Imports) for the Prosecution of the appellant and its Managing Director under Section 137(1) of the Customs Act, 1962 based on the impugned adjudication order dated 30.12.2005, heard the ROM application from the CESTAT app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mately, dismissed by the CESTAT comprising of one Ms.Sulekha Beevi, C.S, Member (Judicial) and the said Mr.Madhu Mohan Damodhar, Member (Technical), vide final order No.41334/2017 dated 26.07.2017, which is impugned in CMA.No.720 of 2022. Subsequently, the appellant filed a miscellaneous application in C/MISC/693/2007 for rectification of mistake crept-in in the final order No.41334/2017 dated 26.07.2017, before the CESTAT. However, the said application was also dismissed by the same set of members of the CESTAT vide Miscellaneous Order No.40310- 40311/2018 dated 26.03.2018, which is impugned in CMA.No.721 of 2022. 4. Though the appellant raised very many substantial questions of law for consideration, the learned counsel for the appellant restricted the same only to the question, whether the CESTAT violated the rule of law by hearing the case, when the person, who accorded sanction as the Commissioner of Customs (Seaport Imports) for prosecution of the appellant and its Managing Director under section 137(1) of the Customs Act, 1962, had heard the appeal against the adjudication order dated 30.12.2005 and the miscellaneous application and disposed of the same on 26.07.2017 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple creates an apprehension of bias on part of the said judge. In this connection, it would be useful to refer to the observations of the Supreme Court in Ashok Kumar Yadav v. State of Haryana [MANU/SC/0026/1985 : AIR 1987 SC 454] , which reads as under: One of the fundamental principles of our jurisprudence is that no man can be a judge in his own cause. The question is not whether the judge is actually biased or has in fact decided partially but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. If there is a reasonable likelihood of bias 'it is in accordance with natural justice and common sense that the judge likely to be so biased should be incapacitated from sitting'. The basic principle underlying this rule is that justice must not only be done but must also appear to be done. 7. It is well settled that every member of a tribunal that is called upon 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 impar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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.... 10. In G.Sarana (Dr.) v. University of Lucknow [MANU/SC/0067/1976 : (1976) 3 SCC 585], the Supreme Court had referred to the judgments of A.K. Kraipak v. Union of India (Supra) and S. Parthasarathi v. State of A.P. (Supra) and observed: 11. ... the real question is not whether a member of an administrative board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. 11. In Ranjit Thakur v. Union of India [MANU/SC/0691/1987 : (1987) 4 SCC 611] , the Supreme Court held that as to the test of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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