23 Oct 2010

No interested party to adjudge: Supreme Court

Nemo debet esse judex in propria causa is one the well established maxims ingrained as fundamentals of natural justice. Denoting that no person should be a judge in his own cause, the doctrine against bias and (conversely, of fair-play) require that the person judging a cause should not be a person interested in the outcome of the cause. This is further relatable to the requirement of a fair hearing that justice should not only be done but also seem to be done. Thus no matter whether bias has actually percolated in the system, the system should be arranged in a manner that the presence of bias is ruled out. Thus on this account also interested parties should not serve to adjudicate disputes. 

It is in the context of these doctrines that the Supreme Court in a recent decision has set aside an order passed by a person who had earlier appeared as a witness in the same matter and against the same person. The Court was dealing with the challenge to the validity of disciplinary proceedings where during inquiry a person had appeared as a witness and then during trial the same person had went on to adjudicate and incriminate the accused. Setting aside the trial, holding it to have been conducted in violation of the rules of fair play, the Supreme Court explained the law in the following terms;
21. Rule 13 of the Rules 1991 reads as under:
“Officer not competent to conduct disciplinary proceedings- A gazetted officer of the Police Force who is either a prosecution witness in the case or has either conducted a preliminary enquiry in that case shall not conduct inquiry in that case under these rules. In case the said gazetted officer is the Superintendent of Police himself, the Deputy Inspector-General concerned shall be moved to transfer the case to some other district or unit as the case may be.”
It is evident from the aforesaid rule that a person who is a witness in a case can neither initiate the disciplinary proceedings nor pass an order of punishment.
22. A Constitution Bench of this Court in State of U.P. v. Mohd. Noor, AIR 1958 SC 86, rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case, observing as under:
“The two roles could not obviously be played by one and the same person…….the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”
23. A similar view was taken by this Court in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School & Ors., AIR 1993 SC 2155, observing that a person cannot be a witness in the enquiry as well as the inquiry officer.
24. The legal maxim “nemo debet esse judex in propria causa” (no man shall be a judge in his own cause) is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof is treated as a violation of the principles of natural justice. (Vide Secretary to Government, Transport Department v. Munuswamy Mudaliar & Anr., AIR 1988 SC 2232; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd. v. The State of Bihar & Anr., AIR 1960 SC 468).
25. This Court in A.U. Kureshi v. High Court of Gujarat & Anr., (2009) 11 SCC 84, placed reliance upon the judgment in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., (1985) 4 SCC 417, 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.
26. 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. Parthasarthy v. State of Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand Magatram Obhan v. Kamla Prasad Shukla & Ors., 1995 Supp. (1) SCC 21).
27. In Arjun Chaubey v. Union of India & Ors., AIR 1984 SC 1356, 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 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. Any one 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.
28. 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.
The Court went on to explain that even though a strict regime applied to personnel of armed forces, only on account of the fact that they were governed by different rules did not imply that they lost their fundamental rights guaranteed under the Constitution to all citizens. The Supreme Court declared this position in a thumping tone, having recourse to its earlier decision on the issue, in the following terms;
15. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).
16. The Tribunal has categorically held that absence of the appellant from duty for such a short span of time was permissible in view of the statutory rules and was bona fide. That finding was not challenged by the respondents any further and attained finality. This finding of the Tribunal leads us to the questions that in case the first punishment of 10 days punishment drill was unwarranted and illegal; whether any protest against such punishment, authorised the Commandant to enhance the punishment to 10 days confinement in a cell; and whether further disobedience thereof, ought to have enabled the Commandant to initiate the disciplinary proceedings against the appellant. These questions have to be considered keeping in mind that the appellant was a member of disciplined force and the Appellate Authority as well as the Tribunal had very heavily relied on the past conduct of the appellant for considering the proportionality of the punishment, though it had not been a part of the charge-sheet nor was the appellant informed of the same while issuing the second show cause notice, giving him the opportunity to make his representation against the enquiry report.
17. In Union of India & Ors. v. L.D. Balam Singh, (2002) 9 SCC 73, this Court observed as under: 
“….the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution-makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the armed force personnel”. 
18. In Lt. Col. Prithpal Singh Bedi v. Union of India & Ors., AIR 1982 SC 1413, this Court observed: 
It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution…. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial”.
19. In R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658, Constitution Bench of this Court observed: 
“Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the Armed Forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperilling the human rights of the entire people of the country”. 
20. Thus, the requirements of morale, discipline and justice have to be reconciled. There is no scarcity of examples in history, and we see it in day-to-day life also, that even in disciplined forces, forced morale and discipline without assured justice breeds defiance and belligerency. Our Constitution protects not only the life and liberty but also the dignity of every person. Life convicts and hardcore criminals deprived of personal liberty are also not wholly denuded of their Constitutional rights. Arbitrariness is an anathema to the principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus, a statutory authority is not permitted to act whimsically/arbitrarily. Its actions should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it unfairly.

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