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Judgment
Srinivasan, J.—The Appellant, Sri Govindankutti Menon, was the Sub-Magistrate of Ootacamund between 1955 and 1956. As many as
five thousand bottles of colored alcohol seized by the Ootacamund Police were received in the Court of the Sub-Magistrate in connection with
Calendar Case No. 2949 of 1955. This case was tried by the Sub-Magistrate and ended in conviction on 16th February 1956. As a result of this
appeal by the convicted persons, there was a retrial by the Additional First-Class Magistrate, Coonoor, who again convicted the accused-on 20th
July 1956. An appeal to the Court of Sessions, Coimbatore, was also dismissed on 28th November 1956. Though the convicting Magistrate had
ordered the destruction of the contents of the bottles seized, that order could not naturally be given effect to till the disposal of the appeal in the
Court of Sessions.
During all this time, these bottles remained in the custody of the Sub-Magistrate, Ootacamund.
The Appellant was transferred from that Court on 25th September 1956, and another officer took charge on 10th October 1956. The
succeeding officer checked the properties connected with the several criminal cases and found that out of these five thousand bottles, six hundred
bottles were missing. A further examination revealed that several of the bottles contained only colored water. A report was made to the District
Magistrate, who called upon the Appellant to explain the matter. The Appellant pleaded ignorance, though he admitted that the key of the room in
which these bottles were kept was in his custody. A further check of the bottles was made by the District Magistrate in the presence of the Drugs
Inspector and the features earlier mentioned were verified. Thereafter, a complaint was made to the Police.
Certain evidence was secured during the course of the Police investigation, which was in its later stages conducted by the Criminal Investigation
Department Branch, Madras. On the material so gathered, three charges were framed against the Appellant in administrative disciplinary
proceedings started against him. One was that he committed Criminal Breach of trust in respect of the property by dishonestly disposing of about
three thousand five hundred bottles and their contents to one Sathar Sait, a hotel-keeper. The second was that he caused empty bottles to be
purchased, false labels to be prepared and fabricated false evidence in order to make it appear that the case properties were intact. The third was
that with a view to conceal the above, he prepared and furnished a false certificate of verification of the case properties of the Court. An enquiry
was conducted by the District Magistrate of Coimbatore under the directions of the High Court. He submitted a report in due course to the High
Court and his view upon the evidence which he recorded was that the charges had been established. Thereafter, the High Court, on its
administrative side, issued a show-cause notice and the Sub-Magistrate was asked to state why he should not be dismissed from service. The
Appellant made his representations and also sought an interview with the Judges. He was given a personal hearing by two of the Honorable Judges
of this Court. Thereafter, an order was made by the High Court on the 10th May 1960, dismissing the Appellant from service. An appeal to the
Government was also dismissed.
Thereafter, the Appellant filed a petition under Article 226 , attacking the order of dismissal, his contention being that the order violated the
principles of natural justice. He urged before this Court that the District Magistrate was incompetent to hold the oral enquiry for the reason that
there was an allegation that the District Magistrate had threatened some of the witnesses, who had earlier denied all knowledge of the incident, to
give a revised version at a later stage. It was also alleged that in so far as one of the charges specified that the Appellant had so materially altered
the nature of the properties in order to deceive the District Magistrate, the District Magistrate, in holding the enquiry was virtually a judge in his
own cause. In view of the specific allegation against the District Magistrate about the coercion of the witnesses by him, the District Magistrate, as
the enquiring officer, could hardly be impartial. These were the grounds advanced in support of the writ petition, which was heard by Veeraswami
J. The learned Judge was of the view that while those grounds would be very pertinent indeed if the District Magistrate was himself the punishing
authority, they had no weight what saver in view of the fact that the District Magistrate was only the enquiring officer and the powers of punishment
were exercisable and were, in fact, exercised only by the High Court. The District Magistrate only recorded the evidence and submitted the
records along with his remarks. It was open to the High Court to agree or to disagree with the findings so recorded by the District Magistrate. The
learned Judge was of the view that the question of bias or interest alleged against the District Magistrate was wholly ineffective so long as he was
not the punishing authority. He also pointed out that the matter was considered in careful detail by two of the Judges of this Court, and that since
these allegedly invalidating circumstances did not exist in relation to the hearing of the representations made by the Appellant and in examining the
evidence on record, the conclusion reached by the High Court could not be assailed. He accordingly dismissed the writ petition.
It is against this order of Veeraswami J., that the present appeal has been filed. Mr. K.K. Venugopal, learned Counsel for the Appellant,
reiterated the very same grounds which he had earlier pressed before the learned Judge. According to the learned Counsel, where there is a
likelihood of bias that would suffice to affect the proceedings. He argues that the District Magistrate was the very officer who investigated the
matter in the initial stages, recorded statements and made a report to the High Court. It was that very officer who was entrusted with the
departmental enquiry after the matter had been further investigated by the Local Police and the Criminal Investigation department. It is urged that in
certain letters, admittedly written by the head clerk of the Sub-Magistrate''s Court during the period when the preliminary enquiry by the District
Magistrate was afoot, a specific allegation had been made by the head clerk that the District Magistrate was compelling him to make a statement
against the Appellant. It is argued that when the enquiring officer was impeached in this manner, it was hardly likely that he could preserve an open
and unbiased mind. A similar allegation was made that the members of the staff at the District Magistrate also sought to bring pressure to bear
upon Vincent, the head clerk of the Sub-Magistrate''s Court, to speak against the Sub-Magistrate. In view of this allegation, in the course of the
enquiry, the District Magistrate had necessarily to question the sheristadar of his own office in order to support or repudiate this allegation. These
features attendant upon the enquiry and bearing upon the interest which the District Magistrate had in clearing himself and his staff from the
imputation of coercion are relied upon by the learned Counsel to show that the likelihood of bias on the part of the enquiring officer did really exist.
Bias being one of the important aspects of the principles of natural justice, where it is shown that there is a likelihood of legal bias of this
description, the enquiry itself must stand vitiated. Equally, the final order which depended upon the material gathered at that enquiry roust be
tainted.
The other aspect of the contentions of the learned Counsel for the Appellant is that the District Magistrate was virtually a judge in his own cause.
This again is intimately linked with the features earlier set out, for, argues the learned Counsel, since the District Magistrate was charged with
coercing witnesses to speak against the Appellant, he had necessarily to deal with that matter, and, in a manner of speaking, exculpate himself from
that charge. He had, therefore, to decide the matter either for or against himself. Could he then take a dispassionate view of the evidence, so asks
the learned Counsel.
Learned Counsel has referred to certain observation in Andhra Scientific Co. Ltd. Vs. A. Seshagiri Rao and Another, In the case, in the course
of a domestic enquiry held by the management, the person who presided over the domestic enquiry was examined as a witness for the
management. The enquiry was later on conducted by the person, who was active in securing the proper evidence to establish the charges against
the workman. The final order of dismissal was also made by that same person. The question arose whether the rules of natural justice had not been
violated. Their Lordships observe:
Quite apart from the incongruity therefore of the person who was at the initial stage Presiding over the enquiry stepping into the witness-box at the
later stage, we have hero the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper
evidence to establish the charges, took over the inquiry and gave the decision in the case...One can see that in the facts of this case the general
manager ad Ramanatha Babu practically formed one entity, with two bodies. At one stage, the first acts as a judge, at a later stage he steps down
as a witness; and the second becomes a judge. There is the further fact here that the person who gave the actual decision had actively been
procuring the evidence, with the avowed motive of securing a conclusion against the workman. These being the facts, the manner in which the
inquiry was conducted in this case can hardly be said to have insured airplay which rules of natural justice require.
It would be noticed that in the case cited the actual decision was given by the very person who secured the evidence and conducted the enquiry, a
point of distinction from the case now on hand.
Learned Counsel has referred to certain passages in Judicial Review of Administrative Action by S.A.D. Smith, at page 148. The learned author
observes thus:
The Courts have laid down many times in cases where the conduct of Magistrates end professional disciplinary tribunals have been impugned that
they are not concerned with the question whether an adjudicator was in fact biased. The lesson for this attitude is presumably that it would be
unseemly for the Court to purport to pry into the state of mind of any judicial officer. Even where the evidence produced has pointed strongly to
the inference that an adjudicator was in fact biased, the Courts have confined themselves to determining whether a real likelihood of bias had been
established.
Learned Counsel accordingly contends that it is not even necessary for the Appellant to establish bias on the part of the enquiring officer, but
that if circumstances exist show that there is a real likelihood of bias on the part of that officer, that is sufficient to invalidate the conclusions. It is
claimed that the test of a real likelihood of bias is nothing more than a substantial possibility of bias. If the delinquent officer had reasonable
apprehensions in that regard and that reasonableness is not fanciful, the decision reached by such authority is tainted.
These principles are well-understood. But it has to be seen how far the facts in the present case justify the application of these principles. The
only basis upon which the charge of bias has been leveled against the enquiring officer is that one of the witnesses, Vincent, the head clerk of the
Court of the Sub-Magistrate, had written letters to the Sub-Magistrate while the matter was under enquiry, alleging that the District Magistrate, that
is, the enquiring officer, had attempted to coerce the witness into making statements against the Sub-Magistrate, the present Appellant. Even the
evidence of Vincent did not, however, establish in any way the precise nature of the threat or inducement offered by the District Magistrate in this
regard. In exhibit D-2, a letter from the head clerk to the Sub-Magistrate, the following finds place:
The District Magistrate threatened me by saying all sorts of questions and asked me to tell the truth. What I have known is recorded in the
statement I told him. He stated he will call for your explanation. He is having Coonoor Courts inspection till today. This, our Magistrate says, that I
will be in jail and all that. The District Magistrate never believed our statement and asked me whether Menon was giving the bottles to a hotel. I
told him that if anything is given, it will be known to me and that there was no such occasion. The District Magistrate told me that he has got
petitions to that effect. He has threatened me too much.
In Exhibit D-3 again, Vincent wrote to the Sub-Magistrate that he had been examined by the District Magistrate and refers also to the
particular matters upon which he was questioned. It was alleged herein that the District Magistrate wanted Vincent to give a false statement against
the Sub-Magistrate. Except for vague generalities of this nature, there is no material on the basis of which it is possible to accept the allegation
made by Vincent in these letters that he was at all threatened by the District Magistrate. That the District Magistrate was making an enquiry into the
case of certain missing bottles from among, the case properties is an admitted fact; and in the course of the enquiry he had to examine the members
of the staff of the Court of the Sub-Magistrate, among whom the head clerk Vincent figured. What all these letters purport to indicate is only that
the District Magistrate pointed to Vincent that certain material had been collected which showed that these bottles of liquor had been sold to a
hotel-keeper, that there was evidence of false labels having been printed and in the light of these facts asked the witness Vincent to state what he
had to say. The District Magistrate in the course of the departmental investigation was entitled to ask the head clerk, his explanation with regard to
these materials. The allegation that the District Magistrate threatened Vincent and asked him to make a statement against the Sub-Magistrate is
hardly credible. It is not on the basis of such an allegation that the existence of any bias on the part of the District Magistrate can be inferred. That
will not amount to a reasonable apprehension within the meaning of that expression as understood in the passage from the text extracted above.
It is no doubt true that all the stages of the enquiry against a Government servant, that is, the stage preceding the show-cause notice and the
stage subsequent thereto, are quasi-judicial in character and that the delinquent officer is entitled to an unbiased enquiry at both the stages. In so far
as the latter stage is concerned, that is, the stage in which the learned Judges of the High Court dealt with the matter after the issue of a show-cause
notice, it is not the complaint of the Petitioner that that part of it by itself, is vitiated in any manner. Nor is there any suggestion that the evidence that
was collected in the case against the Sub-Magistrate was on the basis of the investigation held by the District Magistrate. It has already been stated
that after the District Magistrate had recorded some statements from the persons who could have any knowledge of the matter and arrived at
negative results, the matter was taken over by the Police and it was a result of the Police investigation that other material came to light. The
enquiring officer was not the officer, therefore, who was instrumental in investigating the matter, and the principle of the Supreme Court decision in
Andhra Scientific Co. Ltd. Vs. A. Seshagiri Rao and Another, in so far as that aspect of the matter is concerned cannot apply to present, case.
The only attack upon the enquiring officer is that he was biased for the reasons we have set out above. We have already stated that we are unable
to accept the allegations at their face value. Indeed, we are inclined to believe that these allegations have been made deliberately with a view to
utilize these allegations as the foundation for a plan of bias.
A somewhat peculiar argument has been advanced before us namely, that the enquiry is also vitiated for the reason that the enquiring officer
acted as a judge in his own cause. This is rested on the second charge. The second charge is to the effect, that in causing empty bottles to be
purchased and false labels to be pasted thereon, the Sub-Magistrate had fabricated false evidence to avoid detection, presumably by the District
Magistrate, who in the usual course of routine administration might be expected to inspect these case properties. The charge specifies that these
were done by the delinquent of officer in order to deceive the District Magistrate into believing that the case properties were intact. Upon this Mr.
K.K. Venugopal argues that if the charge is that the District Magistrate was intended to he deceived, then quite obviously the District Magistrate
himself could not undertake the. enquiry for he would be a judge in his own cause. We are unable to understand the charge in that light. What the
charge really specifies is that the properties which had been entrusted to the Sub-Magistrate in his capacity as the judicial officer had been
tampered with in such a manner as to throw dust in the eyes of the superior administrative officers. It does not follow there from that the superior
administrative officer is disqualified from conducting the enquiry into such a charge. We are unable to accept the argument that these circumstances
are sufficient to attract the principle that a person cannot be a judge in his own cause or that the proceedings are defective for that reason.
On behalf of the State, it is pointed out that the attack upon the order on the basis of bias is wholly misconceived. Reference has been made to the,
Union of India (UOI) Vs. H.C. Goel, . In that case, the scope of disciplinary proceedings against Government servants is dealt with. Their
Lordships say:
It is now well-settled that a public servant, who is entitled to the protection of Article 311, must get two opportunities to defend himself. He must
have clear notice of the charge which he is called upon to meet before the departmental enquiry commences, and after he gets such a notice and is
given the opportunity to offer his explanation, the enquiry must be conducted according to the rules and consistently with the requirements of
natural justice. At the end of the enquiry, the enquiry officer appreciates the evidence, records his conclusions and submits his report to the
Government concerned.
After the report is received by the Government, the Government is entitled to consider the report and the evidence led against a delinquent public
servant. The Government may agree with the report or may differ either wholly or partially from the conclusions recorded in the report. If the
report makes findings in favour of the public servant and the Government agrees with the said findings, nothing more remain to be done, and the
public servant who may have been suspended is entitled to reinstatement and consequential reliefs. If the report makes findings in favour of the
public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie
proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second
notice against ham, in that behalf. If the enquiry officer makes findings, some of which are in favour of the public servant and some against him, the
Government is entitled to consider the whole matter, and if it holds that some or all the charges framed against the public servant are, in its opinion,
prima facie established against him, then also the Government has to decide provisionally what punishment should be imposed on the public servant
and give him notice accordingly. It would thus be seen that the object of the second notice is to enable the public servant to satisfy the Government
on both the counts, one that he is innocent of the charges framed against him, and the other that even if the charges are held proved against him, the
punishment proposed to be inflicted upon him is unduly severe.
Their Lordships refer to the reported decisions and point out that.
It has never been suggested that the findings recorded by the enquiry officer concluded the matter and that the Government which appoints the
enquiry officers and directs the enquiry is bound by the said findings and must act on the basis that the said findings are final and I cannot be
reopened.
They further note that the object of the enquiry is only to enable the Government to hold an investigation into the charges framed against a
delinquent public servant, so that the Government can in due course consider the evidence adduced and decide whether the charges are proved or
not. The inter-position of the enquiry, which is held by a duly appointed officer does not alter the true legal position that the charges are framed by
the Government and the Government which is empowered to impose punishment on the delinquent public servant. It should, therefore, appear that
if the enquiring officer only appraises the evidence and submits his conclusions along with the record of enquiry to the authority competent to
impose the punishment, there is no decision which is reached by the enquiring authority which can be challenged as being tainted by bias or for
other like reasons. This principle is also emphasised in Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, . In
that case also, the argument was advanced that the proceedings were initiated by the Police and it is the Police which is the judge in the case and
that, therefore, the provisions of the Act (The Bombay District Police Act) militate against one of the accepted principles of natural justice that the
prosecutor could not also be the judge. After setting out the nature of the enquiry contemplated by that Act, their Lordships observe:
The proceedings may be initiated by a Police officer above the rank of Inspector who has to inform the person proceeded against of the general
nature of the material allegations against him. But the order of internment can be passed only by a Commissioner of Police or a District Magistrate
or a Sub-divisional Magistrate specially empowered by the State Government in that behalf.
Hence the satisfaction is not that of the person prosecuting, if that word can at all be used in the context of those sections. The person proceeded
against is not prosecuted, but is put out of the harm''s way. The Legislature has advisedly entrusted officers of higher rank in the Police or in the
Magistracy with the responsible duty of examining the material and of being satisfied that such a person is likely again to engage himself in the
commission of an offence similar to that for which he has been previously convicted.
On this reasoning their Lordships repelled the contention that since the proceedings were initiated by the Police, the Police were the judge in
the case or that the principles of natural justice were violated by an enquiry of that nature. They clearly point out that it was not the Police officer
who enquired in to the matter, but either the superior Police officer or a responsible member of the judiciary that took the decision upon the matter,
so that the principle that a person should not be a judge in his own case was not attracted to the facts It seems to us that the position in the present
case is precisely the same.
The learned Additional Government Pleader next urged that this question of bias was not raised at all at any earlier stage and that the Appellant
cannot be permitted to raise this plea at the stage of this appeal. Reliance was placed upon Manak Lal Vs. Dr. Prem Chand, . In that case also, the
question of bias was raised and their Lordships emphasised that where pecuniary interest is not attributed to the Tribunal but instead a bias is
suggested, it is not necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to
produce in the mind of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice and that it would
always be a question of fact to be decided in each case. They further point out that the alleged bias in a member of the Tribunal does not render
the proceeding invalid if it is shown that the objection against the presence of the member in question had not been taken by the party, even though
the party know about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of
the member in the Tribunal. It is upon this decision reliance has been placed by the Respondent in support of the contention that since the
Appellant did not raise this question at the earlier stages, even though he was aware of the allegations regarding the alleged bias on the part of the
enquiring officer, he must be deemed to have waived any objections on that score. From what has been stated earlier, the Appellant had been
informed by the head clerk Vincent that the District Magistrate had threatened the head clerk in a particular manner to the detriment of the
Appellant''s interests. If the Appellant know of these circumstances which created in his mind an apprehension about the impartiality of the
enquiring officer, he could certainly have objected to the conduct of the enquiry by that particular enquiring officer. That he did not do so at that
time is not denied. Nor was that aspect of the matter made the subject of his representations after the High Court on the administrative side had
issued a show-cause notice to him. The decision cited would certainly support the contention of the learned Additional Government Pleader that
the Appellant cannot be permitted to raise the ground at this stage and that he should be deemed to have waived it.
Though it seems to us that this argument is sound, it is not necessary to base our decision on that aspect of the matter. We have already found
as a matter of fact that the alleged bias on the part of the enquiring officer has not been established and, as their Lordships of the Supreme Court
point out, where the alleged bias is other than pecuniary, it has to be established as a question of fact in each case. Mr. Venugopal, on the other
hand, urges that since the bias relates to natural justice, in accordance with the principles of which alone the enquiry should have been conducted, it
is not necessary for the Appellant to raise it at all, though he claims that this question has been raised both the Appellant during both the stages of
the enquiry. In Annamunthodo v. Oil field Workers T.U. (1963) 3 All. E.R. 621, 625, the Privy Council observes thus:
Counsel for the Respondent Union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been
prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person
affected by their decision can always seek redress in the Courts. It is a prejudice to any man to be denied justice.
We are unable to appreciate how these observations have any relevancy on the question of waiver. It is true that the principle laid down by the
Privy Council is that where there is a complaint about the failure of natural justice, the party complaining need not also establish prejudice. But
when the complaint is that an enquiry has been conducted in a manner contrary to the principles of natural justice and the party complaining had
acquiesced in that course, is it thereafter open to him to depend upon that irregularity in the enquiry as a circumstance vitiating that enquiry As the
Supreme Court points out in the decision cited, the Appellant, beyond making a few allegations of bias on the part of the enquiring authority, did
not make that an issue before the enquiry authority himself. He could very well have demanded that in these circumstances the enquiry should have
been conducted by some other officer. He could have made such representations to the High Court and obtained orders in that connection. He,
however, chose to participate in the enquiry on the chance of getting a verdict in his favour. When that failed to materialize, it is not open to him to
turn round and say that the enquiry, to which he raised no objection, was vitiated for this particular reason. That apart as we have already stated,
there is no basis for the alleged bias. There being, no basis in our opinion for the alleged bias, the enquiry is in no way vitiated.
The result is that the appeal fails and is dismissed. There will be no order as to costs.