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Judgment
M.M. Sundresh, J.—""Prejudice is the spider of the mind. It is the womb of injustice"". - ROBERT INGERSOLL.
LORD DENNING observed - ""The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-
minded people go away thinking ''the Judge was biased''. Injustice emanating from prejudice is graphically described by the great Tamil Poet ""Saint
Elango"" in what is considered to be one of the greatest work in Tamil Literature ""Silapathikaram"" (Jeweled Anklet). The Noble and just Pandiya
King to whom the justice through rule of law was much more dearer than his own life and kingdom, was made to commit an error of judgment.
The sole reason was that, he acted as a Judge, himself being an aggrieved party.
Principles of Natural Justice:
It is said that the principles of natural justice are ingrained in the conscience of a man. It is a justice emerging from nature and adopted by the
society. It is a combination of natural idles and human values which form the foundation of a social order. Such a natural justice acts as an active
covenant intended to prevent a particular authority from doing injustice. It places effective fetters on the exercise of arbitrary powers by an
authority. In a society where the rule of law is supreme, the sole and fundamental duty of a ruler is to rule the State inconsonance with it. Therefore,
when a power is exercised it should be hedged with responsibility and duty. A duty and a responsibility would require an authority to act fairly, to
prevent the miscarriage of justice. As EDMOND BURGE puts it, ""In every patent of Office the duty is included. Judges are guided and governed
by the eternal law of justice.
The effect of violation of principles of natural justice can be analysed by dividing the same into two compartments. When a violation of a
principle of natural justice being procedural in nature, then the Court has to see the prejudice, that would be caused to a party by the breach. In
such a case, it is incumbent on the aggrieved party to demonstrate to the satisfaction of the Court that he has been prejudiced by such a violation.
Therefore, the same violation by itself would not vitiate a decision and eventually the decision making process would not become a nullity. On the
other hand, when a violation is fundamental and basic in nature, then the non following by itself would render the decision, a nullity and an order
passed in consequent thereon would be void ab initio.
To put it differently, prejudice is inherent when a basic principle of natural justice is to be mandatorily followed and in such a case there is no
necessity to demonstrate such an act. From the said principles, it is clear that a duty is enjoined and imposed on the authority or the Court, as the
case may be to adjudicate and decide whenever an issue of a breach of natural justice, which would render the procedure void, comes up for
consideration. In a case where the very initiation of a proceeding by itself would amount to a serious violation of principles of natural justice
rendering the final decision void, then it is not necessary for an authority or a Court to continue the illegality instead of striking it out at the very
initial stage itself. This is for the reason that a void proceeding shall not be allowed to continue and an appeal filed against such an order cannot
cure the fundamental breach committed by the original authority. Therefore, when the initiation itself becomes void, it cannot be said that the same
is curable by a fair appeal as the illegality goes to the root. Similarly, the doctrine of necessity has a limited application being a very weak defence
especially when there are other modes available but not explored.
Doctrine of Bias - likelihood of: ""Caesar''s wife should be above suspicion"". When an administrative or a quasi judicial authority deals with an
issue and such a decision is tainted with bias, then the proceeding becomes a nullity resulting in ""coram non judice"". An investigation and a decision
cannot be made by the same authority. The doctrine of bias has four different forms: personal, pecuniary, official and as to the subject-matter.
When any of these categories of bias is demonstratively seen in a proceeding, then it would vitiate the decision made as it becomes a ""coram non
judice"". The question is not whether a person is biased when an action is initiated but whether there exists a reasonable ground to believe that there
would be a likelihood of bias. Therefore, what is required to be seen is not a mere suspicion or apprehension of bias but a substantial possibility of
it to render a decision invalid and void. It is trite law that, all actions which are not bonafide by themselves would not become malafide. However,
when the facts and the circumstances clearly lead to an inference of likelihood of bias, then such an order would become invalid.
To adjudicate an issue in which an authority has any act or part, the principles of fairplay and good governance would require his exclusion.
Such an exclusion should start at the time of initiation of a proceeding till the conclusion. The concept of a person having a dual role is abhorrent to
the concept of justice. Therefore, it is not necessary that an authority has to be biased in a proceeding in which he has got some personal interest.
But when there is a substantial possibility of bias, then fairness would compel him to be away from it. Therefore, the basic principle underlines the
rule of likelihood of bias, which is ""justice must not only be done but appears to be done"". This principle has been enunciated in consonance with
Article 21 of the Constitution of India which provides for fairness in action. Therefore, the real question is not whether a person is biased, as it is
difficult to prove the state of mind of such a person. This concept has been evolved in order to sustain and uphold the public confidence in the
impartiality of a system, either administrative or quasi judicial.
In State of U.P. v. Mohammad Nooh AIR 1958 SC 86, the Honourable Apex Court was dealing with the case involving a departmental trial in
which the Presiding Officer himself gave a testimony. Considering the above said facts, the Honourable Apex Court was pleased to hold that such
an action is shocking to the notice of judicial propriety and fairplay. The illegality is so patent and loudly obtrusive that it leaves an indelible stamp
of infirmity. It was further held therein that a person who has got personal stake in the enquiry must have kept himself aloof from it. The said
judgment was quoted with the approval in Arjun Chaubey Vs. Union of India (UOI) and Others, .
In Meenglas Tea Estate Vs. Its Workmen, , the Honourable Apex Court was pleased to hold that when a charge against the workmen is that he
has participated in the assault on officers and the enquiry was conducted by the officers themselves, the proceedings would vitiate for the violation
of principles of natural justice as it is against fairplay. The Honourable Apex Court was also pleased to observe that, inasmuch as the officers
inquiring the charges are likely to be put into cross-examination and being a part of the alleged occurrence, they cannot take part in the process of
enquiry.
In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , the Honourable Apex Court has held that the rule regarding the likelihood
of bias will be observed more in administrative enquiry in order to prevent miscarriage of justice. It was further held that, whenever a complaint is
made regarding the contravention of principles of natural justice, it is incumbent on the Court to decide the said issue as to whether the non-
compliance would vitiate the proceedings. The following paragraph of the Honourable Apex Court is apposite:
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in
areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural
justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a
judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable
hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith,
without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to
act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of
the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative
enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were
considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-
judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George Vs. University of Kerala and Others, the rules of natural
justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and
circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons
appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has
to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
The said judgment has been quoted with approval by a Larger Bench of the Honourable Apex Court in Ashok Kumar Yadav and Others Vs.
State of Haryana and Others, .
In Leary v. National Union of Vehicle Builders (1970) 2 ALL ER 713 Megarry, J., has stated in the following manner:
...If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be
satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal
to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, although
not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him
is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that
might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural
justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.
The said principle is also quoted with approval by the Honourable Apex Court in U.P. Jal Nigam and Another Vs. Nareshwar Sahai Mathur
and Another, by holding that a bias would render a proceeding void and a subsequent fair appeal by the appellate authority would not repair the
basic flaw in the original proceeding.
In Ranjit Thakur Vs. Union of India (UOI) and Others, , it has been observed by the Honourable Apex Court that a judgment which is the
result of bias or want of impartiality is a nullity and the trial would become ""coram non judice"". Accordingly, it was held that such a proceeding
would become a nullity and the order passed cannot be sustained. The paragraph dealing with the said ratio is extracted herein:
The second limb of the contention is as to the effect of the alleged bias on the part of Respondent 4. The test of real likelihood of bias is whether
a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether Respondent 4 was likely to be
disposed to decide the matter only in a particular way.
It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the
minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the
result of bias or want of impartiality is a nullity and the trial ""coram non-judice"". (See Vassiliades v. Vassiliades AIR 1945 PC 38).
In a recent pronouncement rendered by the Honourable Apex Court in Municipal Committee v. Punjab State Electricity Board (2011) 1 MLJ
730, it has been held that a breach of a natural justice being fundamental in nature by itself is a prejudice and in such an eventuality, there is no
necessity for the affected party to establish prejudice. The passage from the said judgment is apposite:
In view of the above, in case there is a non-compliance of a statutory requirement of law or the principles of natural justice have been violated
under some circumstances, non-compliance of the aforesaid may itself be prejudicial to a party and in such an eventuality, it is not required that a
party has to satisfy the Court that his cause has been prejudiced for non-compliance of the statutory requirement or principles of natural justice.
Considering the scope and necessity of the principles of natural justice it has been held in Uma Nath Pandey and Ors. v. State of U.P. and
Anr. 2009 (2) CTC 663 in the following manner:
Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of
following the principles of natural justice is the prevention of miscarriage of justice.
In the judgment rendered in Mohd. Yunus Khan v. State of U.P. and Ors. CDJ (2010) SC 871, the Honourable Apex Court considering the
similar issue has held as follows:
This Court in A.U. Kureshi Vs. High Court of Gujarat and Another, , placed reliance upon the judgment in Ashok Kumar Yadav and Others
Vs. State of Haryana and Others, , and held that no person should adjudicate a dispute which he or she has dealt with in any capacity. The failure
to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a
case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a
reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision.
The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even
if the fairness of the appellate authority is beyond dispute. (Vide S. Parthasarthi Vs. State of Andhra Pradesh, ; and U.P. Jal Nigam and Another
Vs. Nareshwar Sahai Mathur and Another,
In Arjun Chaubey Vs. Union of India (UOI) and Others, , a Constitution Bench of this Court dealt with an identical case wherein an employee
serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned
himself, after considering by himself the explanation given by the employee against the charge and after thinking that the employee was not fit to be
retained in service. It was also considered whether in such a case, the Court should deny the relief to the employee, even if the Court comes to the
conclusion that the order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/misconduct.
This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice.
The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the
disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a
judge in his own cause and no witness could certify that his own testimony was true. Anyone who had a personal stake in an enquiry must have
kept himself aloof from the enquiry. The Court further held that in such a case it could not be considered that the employee did not deserve any
relief from the Court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the
authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could
not cure or condone it.
Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an inquiry officer nor can he
pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a
disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is
true. Any one who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the
principles of natural justice renders the order null and void.
Facts of the case:
The Petitioner herein was working as a Head Constable at Chengalpattu Taluk Police Station in Kancheepuram District. By the proceedings of
the then Superintendent of Police, Kancheepuram, the Petitioner was transferred from Chengalpattu Taluk Police Station to Chengalpattu Town
Police Station.
Proceedings have been initiated against the Petitioner on the ground that after the order of transfer passed by the then Superintendent of Police,
he went to his Office and used abusive language for ordering his transfer. As per the said proceedings, the alleged occurrence has happened on
06.07.2004. Action has been initiated based upon an anonymous letter sent to the then Superintendent of Police. Thereafter, the Inspector of
Police, Vishnukanchi was directed to conduct a preliminary enquiry against the Petitioner. The preliminary report indicated that a case has been
made against the Petitioner. It was approved by the then Superintendent of Police. He directed the Deputy Superintendent of Police, Chengalpattu,
to frame charges. Charges have been framed which was approved by the then Superintendent of Police. The Petitioner was given 15 days time
from the date of the receipt of the charge memo to give a reply to the charges. The charge memo was served on the Petitioner on 23.03.2005.
However, the oral enquiry was assigned even before receiving the reply from the Petitioner, by appointing the Deputy Superintendent of Police,
Mammallapuram as the Enquiry Officer by the then Superintendent of Police. Thereafter, the Petitioner has come forward to file this Writ Petition,
challenging the charge memo dated 23.03.2005.
Heard Shri. K. Raja, learned Counsel appearing for the Petitioner as well as the learned Additional Government Pleader appearing for the
Respondents and perused the affidavit and counter affidavit filed in the present Writ Petition as well as the counter affidavit filed in W.P. No.
29595 of 2005 and the relevant documents including the records produced by the learned Additional Government Pleader.
The facts involved in the present case on hand are not in dispute. Proceedings have been initiated against the Petitioner on the ground that, on
06.07.2004 he abused the then Superintendent of Police. No action was taken by the then Superintendent of Police for the alleged abuse said to
have been uttered by the Petitioner. However, strangely action was sought to be taken by the very same Superintendent of Police against whom
the Petitioner was alleged to have used abusive language based upon an anonymous letter. The then Superintendent of Police directed a
preliminary enquiry to be done by the Inspector of Police under whose jurisdiction the Petitioner was not working. The preliminary enquiry report
was approved by the then Superintendent of Police. He then appointed the District Superintendent of Police, Chengalpattu to frame the charges.
The charge memo was also approved by the then Superintendent of Police, Kancheepuram on 11.02.2005. It was served on the Petitioner on
23.03.2005. But an Enquiry Officer was appointed on 30.03.2005 by the then Superintendent of Police even before the expiry of time limit given
to the Petitioner to give his reply.
The above said facts would demonstrate that the then Superintendent of Police has been involved in the alleged occurrence. Admittedly, the
charge against the Petitioner is that he used abusive language by deframing the Superintendent of Police. As discussed above, no complaint was
given and proceedings have been initiated at the instance of the then Superintendent of Police. However, it is he who directed the Inspector of
Police, Vishnukanchi to conduct a preliminary enquiry. It is also to be seen from the counter affidavit filed in the earlier proceedings, the then
Superintendent of Police approved the preliminary enquiry report. Thereafter, he directed the District Superintendent of Police, Chengalpattu to
frame the charges. The charge memo was also approved by him. The Petitioner was asked to give explanation to the charge memo. Even before
the expiry of the time limit given, an Enquiry Officer was appointed. The above said facts would clearly indicate that, the then Superintendent of
Police being a party to the alleged occurrence was also involved in the decision making process.
Admittedly, the charge levelled against the Petitioner is to his conduct towards his Superior Officer namely, the then Superintendent of Police.
Therefore, it is not open to the then Superintendent of Police to sit in judgment over the said incident either in initiating it or thereafter involving at
different stages. What has transpired on the relevant day is a matter known to the Petitioner as well as the then Superintendent of Police.
Therefore, the then Superintendent of Police is a material witness to the alleged occurrence. It is trite law that in a departmental proceedings, the
charges will have to be proved against the delinquent officer. Even assuming that the then Superintendent of Police has not been shown as a
witness, the Petitioner in all probability would like to examine him.
The mere fact that the then Superintendent of Police has ordered the preliminary enquiry, approved the preliminary enquiry, directed a
subordinate officer to frame charges, approved the charges and appointed an enquiry officer would leave no room to hold that he was convinced
about the charges levelled against the Petitioner. Therefore, the facts would clearly establish that the proceedings are vitiated as the then
Superintendent of Police acted in a dual role and it is the case of the accuser becoming the judge. Admittedly, he had a personal stake in the
enquiry initiated against the Petitioner and therefore, his involvement would vitiate the proceedings.
In all fairness, the then Superintendent of Police ought to have reclused himself from taking any role in the proposed action against the
Petitioner. There is absolutely no explanation as to why he himself did not given any complaint over the conduct of the Petitioner. It is not as if he
has applied his mind and then approved the proceedings. Admittedly, he is a party to the alleged occurrence. Therefore, there is nothing for him to
satisfy about the charges framed against the Petitioner and about the alleged occurrence. Hence in all fairness, the then Superintendent of Police
ought to have asked his higher authorities to initiate proceedings by bringing to their notice about the alleged misconduct on the part of the
Petitioner. Therefore, this Court is of the view that doctrine of necessity does not have any application to the present case on hand.
As seen from the counter affidavit filed in the present Writ Petition as well as the earlier Writ Petition which was filed, challenging the order of
transfer in W.P. No. 29595 of 2005 that the Petitioner was given 15 days time to give his reply to the charges framed. Admittedly, the charge
memo was issued to the Petitioner on 23.03.2005. However, the Enquiry Officer was appointed on 30.03.2005 within a period of one week from
the service of the charge memo, without even waiting for a reply from the Petitioner. The said action itself would make it clear that there is an
element of bias involved. The effect of announcement of Enquiry Officer even before the receipt of the reply from a delinquent employee has been
considered by the Honourable Apex Court in State of Punjab v. V.K. Khanna AIR 2001 SC 343, wherein it has been held as follows:
The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry
officer to substantiate the frame of mind of the authorities and thus depicting bias - what bias means has already been dealt with by us earlier in this
judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.:
the inquiry shall proceed irrespective of the reply - is it an indication of a free and fair attitude towards the officer concerned? The answer cannot
possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to
the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due
considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed
by Mr Subramanium and on that score, strongly criticised the conduct of the Respondents (sic Appellants) herein and accused them of being
biased. We do find some justification in such a criticism upon consideration of the materials on record.
Applying the ratio laid down by the Honourable Apex Court, coupled with the fact that the order was passed appointing the Enquiry Officer
by the then Superintendent of Police, this Court is of the view that the impugned proceedings cannot be sustained.
As held by the Honourable Apex Court in the judgments referred supra, when this Court comes to the conclusion that the proceedings are
tainted with bias and likelihood of bias, any continuance thereafter would be of no legal consequence. When the violation goes to the very root of
the issue, then the continuation would become a farce. In such a situation, a duty is enjoined on the Court to strike out the wrong action at the initial
stage itself. Therefore, this Court is of the view that inasmuch as the proceedings are void ab initio and nullity, the impugned charge memo issued
against the Petitioner cannot be sustained, even though the normal rule is that the Court should not interfere at that stage of the issuance of the
charge memo. It is also brought to the knowledge of this Court that the then Superintendent of Police is no more and the Petitioner has been
subsequently transferred to Thiruvallur District.
Therefore, in the light of the discussions made above, both on the factual and legal aspects, this Court is of the considered view that the order
impugned cannot stand the scrutiny of law. Accordingly, the impugned order dated 11.02.2005 is hereby set aside and the Writ Petition is allowed
as prayed for. No costs.