CANTONMENT EXECUTIVE OFFICER AND ANR.versusVIJAY D. WANI AND ORS.

                         [2008] 6 S.C.R. 622


A       CANTONMENT EXECUTIVE OFFICER AND ANR.
                             v.
                VIJAY D. WANI AND ORS.
               (Civil Appeal No.18 of 2007)
                          APRIL 16, 2008
B
    [A.K. MATHUR AND LOKESHWAR SINGH PANTA, JJ.]

         Service Law - Disciplinary proceeding - Disciplinary
  Committee finding the delinquent officer guilty - Board
C inflicting punishment of removal from service - Participation
  of the members of the Disciplinary Committee in Board
  meeting - Dismissal of departmental appeals - Writ Petition
  - High Court allowing the petition and directing reinstatement
  with 50% back wages and continuity of service - On appeal,
D held : The order of removal is violative of principles of natural
  justice - Hence vitiated - Participation of the members of the
  Disciplinary Committee in the decision making process for
  finding the respondent guilty is bias which is apparent and
  real - A person cannot be a judge in his own case - Doctrine
  of necessity was inapplicable as the Board could have
E delegated its power - Delinquent Officer is entitled to 50% back
  wages with continuity of service - Administrative Law -
  Delegation of power - Principles of Natural Justice - Bias -
  Principle of Necessity
F      Respondent was employed with appellant-Board.
  Departmental enquiry was initiated against him alleging
  certain charges. Enquiry Committee found that the
  charges were proved. The appellant-Board accepted the
  report of the Committee, passed the order of removal of
  the respondent from service. The departmental appeal as
G well as the appeal to the Ministry were dismissed. In Writ
  petition thereagainst, High Court held that order was
  violative of principles of natural justice and stood vitiated       t   -
  as the Board which passed the order of removal of the
  respondent consisted of all the three members of the
H                              622
      CANTONMENT EXECUTIVE OFFICER AND ANR. v.                 623
              VIJAY D. WANI AND ORS.

    Enquiry Committee and voted in support of report of the A
    Committee. The Court directed his reinstatement with 50%
    back wages and continuity of service. Hence the present
    appeal.
         Dismissing the appeal, the Court
                                                                  B
          HELD : 1. A person cannot be a Judge in his own
    case. Once the Disciplinary Committee finds the
    incumbent guilty, they cannot sit in judgment to punish
    the man on the basis of the opinion formed by them. The
    question of a bias is always the question of fact. The court c
    has to be vigilant while applying the principles of bias as
    it primarily depends on the facts of each case. The court
    should only act on real bias not merely on likelihood of
    bias. The objectivity is the hallmark of a.judicial system in
    our country. The very fact is that the disciplinary
                                                                  D
    committee who found the respondent guilty participated
    in decision mak1ng process for finding the respondent
    guilty and to dismiss him from service is bias which is
    apparent and real. Doctrine of necessity was inapplicable
    as the Board could have delegated its appellate power to
    a committee. [Paras 5, 6 and 7] [630-B; 627-D; 630-C-D; E
    629-C]
          Institute of Chartered Accountants of India v. L.K. Ratan
    and Ors. 1986 (4) SCC 537; Manek Lal v. Prem Chand AIR
    1957 SC 425; Amar Nath Chowdhury v. Braithwaite and Co.           F
    Ltd. 2002 (2)SCC 290 - relied on.
         PinochitUgarta No.21999(1)All ER 577 (HL)-referred to
         Judicial Review of the Administrative Action by Professor
    S.A. De Smith; Sir Bloom-Cooper's Comment on "Bias in
                                                                   G
    appeal", 2005 Public Law 225; 'Administrative Law' by H.W.R.
    Wade and C.F. Forsyth Ninth Edition - referred to.
t
         2.1 The plea that since the respondent did not work,
    therefore, he should not be paid any salary under the Rule
    "no work no pay" is not acceptable. [Para 8] [630-D-E;            H
    624       SUPREME COURT REPORTS                [2008] 6 S. C.R.


A 631-B]
         Baldev Singh v. Union of India and Ors. 2005 (8) SCC
    747; India Literacy Board and Ors. V Veena Chaturvedi and
    Ors. 2005 (3) SCC 79; Badrinath v. Government of Tamil Nadu
    and Ors. 2000(8) SCC 395 - distinguished.
B
       2.2 So far as grant of back wages is concerned, i.t
  depends upon case to case. In the present case since
  the order of Cantonment Board was set aside because it
  suffered from bias, it will be unfair to de'ny 50% back
c wages to the respondent. In view of the fact that since
  long passage of time has lapsed, it would not be fair to
  permit the respondent to proceed afresh in the matter.
  Therefore, it is directed that the respondent be reinstated
  with the benefit of 50% back wages and continuity of
D service. [Para 9 and 10] [631-C-E]
         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    18 of 2007.
       From the final Judgment and Order dated 10.01.2005 of
E the High Court of Bombay in Writ Petition No. 966 of 1995
        D. Rama Krishna Reddy and D. Bharathi Reddy for the
    Appellants.
          Shivaji M. Jadhav for the Respondents.
F         The Judgment of the Court was delivered by
        A.K. MATHUR, J. 1. This appeal is directed against the
                                                    •
  order dated 10.1.2005 passed in Writ Petition No.966 of 1995
  by the High Court of Judicature at Bombay whereby the Division
  Bench has set aside the resolution of the Cantonment Board,
G Pune dated 29.10.1991 removing the respondent from service
  which is completely vitiated on account of the participation of
  the three members of the Enquiry Committee and the orders of
  the 151 and 2nd Appellate authorities dated 8.7.1992 and
  22.12.1994 and allowed the writ petition of the Vijay D. Wani
H respondent(herein) and directed the Cantonment Board to
       CANTONMENT EXECUTIVE OFFICER AND ANR. v.                    625
         VIJAY D. WANI AND ORS. [A.K. MATHUR, J.]

     reinstate the petitioner.(respondent herein) into service with 50%   A
     backwages and continuity of service.
             2. Brief facts which. are necessary for disposal of this
       appeal are that the respondent was appointed as Junior
       Engineer (Electrical) with Pune Cantonment Board with effect
    . from 9.3.1977. Later on he was redesignated as Sectional            B
       Engineer (Electrical). In 1987, the Cantonment Board decided
      to purchase· N.C.T. pies for street lighting and directed the
       respondent to prepare an estimate. Similarly he was also
       directed to prepare estimates for electrification of S.V.P.
       Cantonment General Hospital, for the purpose of air conditioning   c
       of the Operation Theater and for purchase of transformer for
      the same hospital. .The Contonment Board also wanted him to
       prepare estimates of sewerage pumps for Ghorpadi and
      Wanawadi Bazar Draining $cheme and also estimates for
      cables and street lights at Price of Wales Drive. The respondent    D
+     as a Sectional Engineer (Electrical) prepared all those
      estimates. But on 11th August, 1987, the office of the Cantonment
       Board through the Chief Executive Officer served him a
      memorandum alleging that the estimates prepared by the
       respondent suffered from total non-application of mind. The
                                                                          E
      respondent offered his explanation dated 25.8.87 to the said
      memorandum but that was not accepted by the Board. A charge-
      sheet containing the same charges was issued to the
      respondent on 13.1.1988. The respondent was put under
      suspension and the Cantonment Board appointed an Enquiry
      Committee to enquire into the alleged misconduct of the             F
      respondent. The Enquiry Committee found the charges proved
      by majority of two versus one the third member differed on items
     2 and 4. By a resolution dated 25.10.1991 the Cantonment
      Board considered the Enquiry Committee's report and accepted
      it and passed the order of removal of the respondent from           G
     service. The respondent filed an appeal to the GOC-in-Chief,
      Southern Command, Pune and the same was dismissed on
+    8.7.1991. The respondent preferred second appeal before the
     Government of India, Ministry of Defence, which was also
     dismissed on 22.12.1994.                                             H
    626       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A        3. Aggrieved against this order the respondent preferred
  an appeal before the High Court. The High Court rejected the
  first contention of the respondent that all the three members of
  the Enquiry Committee happened to be the members of the
  Board in which capacity they had scrutinized, approved and
B accepted the estimates prepared by the respondent when the
  estimates 1.;Vere placed before the Cantonment Board. Since
  they were interested in the matter, therefore, the enquiry should
  have been quashed on the ground of bias. Secondly, it was
  contended that the alleged misconduct of the respondent
C themselves participated in the meeting of the Cantonment Board
  and voted in favour of the report while considering the issue of
  inflicting punishment on the respondent. It was also contended
  that the participation of the members of the Enquiry Committee
  in the Board meeting when the report was under consideration
  completely vitiates the inquiry. In support of this, the learned
0
  counsel for the respondent relied on the decision of this Court;
   Institute of Chartered Accountants of India v. L.K. Ratna and
   Ors. reported in 1986(4) SCC 537. So far as first contention is
   concerned, the High court did not find any fault that the petitioner/
   respondent (herein) had not made any specific allegation
E against any Board member of the Enquiry Committee nor had
   imputed any malafide or illwill to any members of the Enquiry
   Committee. Therefore, the contention of the learned counsel
   appearing on behalf of the petitioner/respondent(herein) of bias
  was rejected. So far as second contention is concerned, it was
F held that there was violation of principles of natural justice in as
   much as all the three members of the Enquiry Committee                  •
   participated in the Board meeting and voted in support of their
   Enquiry report and held the respondent guilty of misconduct and
   dismissed him from service. That vitiated the decision making
G process as all the three members of the Enquiry Committee
   was part of the decision making process and since they were
   interested to see that their report be upheld by the Committee.
   Therefore, there was a legitimate apprehension in the mind of
   the respondent that the three members of the committee who
H were inquiring against the respondent and found him guilty were
       CANTONMENT EXECUTIVE OFFICER AND ANR. v.                   627
         VIJAY D. WANI AND ORS. [A.K. MATHUR, J.]

     interested to see that their report should be confirmed by the A
     Board and this seriously prejudiced and biased the process of
     decision making him guilty. This contention was upheld by the
     Division Bench and consequently the Division Bench set aside
     the order Cantonment Board as well as the order on appeal by
     the GOC-in-Chief, Southern Command, Pune and the order B
     passed by the Secretary, Government of India, Ministry of
     Defence. Aggrieved against the order passed by the Division
     Bench of the High Court, this appeal was filed by the Cantonment
     Board.
         4. We have heard learned counsel for the parties and have      c
     gone through the records.
           5. The question of a bias is always the question of fact.
     The court has to be vigilant while applying the Principles of bias
     as it primarily depends on the facts of each case. The court
                                                                         D
     should only act on real bias not merely on likelihood of bias. In
+
     the present case, so far as the members of the committee who
     conducted a disciplinary inquiry was also the members of the
     Cantonment Board where the report was to be considered,
     decided and whether to accept it or not & finding the
     fespondent(herein) guilty or not. The very fact that these three E
     persons who conducted inquiry were also the members of the
     Board and that Board was to take a decision in the matter
     whether the report submitted by the Enquiry Committee should
     be accepted or not. Therefore, the participation of these three
     members in the committee is given a real apprehension in the F
     mind of the respondent that he will not get a fair justice in the
'    matter because of the three members who submitted the report
     would be interested to see that their report should be accepted.
     This bias in this case cannot be said to be unreal it is very much
     real and substantial one that the respondent is not likely to get a G
     fair deal by such disciplinary committee.
-t        6. In this connection a reference may be made to the
     decision in the case of Institute of Chartered Accountants of
     India (Supra) in which a member, accused of misconduct is
                                                                        H
    628       SUPREME COURT REPORTS                     [2008] 6 S.C.R.


A entitled to a hearing by the Coun~il. In this case Enquiry
  Committee composed of the President and the Vice-President
  and three other members of the council who constituted as
  members of the disciplinary committee, was also members.
  Their Lordships held as under:
B       "Accordingly, the finding of the council holding the
          respondent members guilty of misconduct was vitiated by
          the participation of the members of the Disciplinary
          committee."

c        This was on the basis of the Principle of apprehension of
    a bias. Their Lordships observed in the case of Manek Lal v.
    Prem Chand reported in AIR 1957 SC 425 wherein it was
    observed:
          It is well settled that every member of a tribunal that is
D         called upon to try issue 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
E         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
F         must not only be done but must also appear to be done."
         Similarly in the judicial review of the administrative action
    by Professor S.A. de Smith has also observed:
          "... a report will normally include a statement of findings
          and recommendations, which may be controverted before
G
          the parent body; and in such a case, the participation of
          members of the sub-committee in the final decision may
          be of dubious validity. The problem is not merely one of
          strict law; it is also one of public policy."
H         Similarly, in the case of Pinochit Ugarta No.2, reported in
  CANTONMENT EXECUTIVE OFFICER AND ANR. v.                  629
    VIJAY D. WANIAND ORS. [A.K. MATHUR, J.]

1999 (1) All ER 577 (HL), it was observed that a judge is          A
automatically disqualified from hearing a matter in which he has
a pecuniary interest in the outcome as also when the decision
would lead· to promotion of a cause in which he is involved,
together with one of the parties.
      Similarly, in the case of Amar Nath Chowdhury v.             B
Braithwaite & Co. Ltd reported in 2002 (2)SCC 290 it was
observed that Managing Director dismissing an empl_oyee
cannot sit in the Board of Directors to hear the employee's
appeal. Doctrine of necessity was inapplicable as the Board
could have delegated its appellate power to a committee.           C
      Similarly in Sir Bloom-Cooper's Comment on "Bias in
appeal", 2005 Public Law 225 in which he quotes at page 227
a very illuminating judgment of Judge Jerome Frank in the case
of Rt.J.P. Linhan Inc., (138 F20 650) a brief excerpt from which
                                                                   0
reads:
     "Democracy must, indeed, fail unless our courts try cases
     fairly, and there can be no fair trial before a judge lacking
     in impartiality and disinterestedness. If, however, 'bias'
     and 'partiality' be defined to mean the total absence of · E
     preconceptions in the mind of the judge, then no one has
     ever had a fair trial and no one ever will"
     It was observed in the Ninth edition of Administrative Law
by H.W.R. Wade & C.F. Forsyth that Twentieth-century judges
have generally enforced the rule against bias in administrative    F
proceedings no less strictly than their predecessors as
exemplified by the following cases:
     The mere presence of a non-member while a tribunal is
     deliberating is enough to invalidate the proceedings. Thus G
     the proceedings of a Watch Committee, hearing an appeal
     by a police sergeant against his dismissal by his chief
     constable, were fatally flawed by the presence of the chief
     constable, whose mind was made up and who was in
     effect the respondent, during the committee's H
    630       SUPREME COURT R~POR.TS                [2008] 6 S.C.R.


A         deliberations. For similar reasons the court quashed the
          decision of a disciplinary committee which had consulted
          privately with the chief fire officer who had reported a
          fireman for indiscipline."
       7. Therefore, the ratio of all these cases is that a person
8 cannot be a Judge in his own case. Once the disciplinary
  committee finds the incumbent guilty; they cannot sit in the
  judgment to punish the man on the basis of the opinion formed
  by them. The objectivity is the hallmark of a judicial system in
  our country. The very fact is that the disciplinary committee who
C found the respondent(herein) guilty participated in decision
  making process for finding the respondent(herein) guilty and to
  dismiss him from service is bias which is apparent & real.
  Consequently, the view taken by the Division Bench of the High
  Court cannot be faulted.
D
       8. However, learned counsel for appellants submitted that
  since the respondent did not work, therefore, he should not be
  paid any salary under the Rule "no work no pay". In this
   connection he invited our attention to the following cases:
E         1.Baldev Singh v. Union of India & Ors. Reported in
          2005(8)SCC 747.
          2. India Literacy Board & Ors. V Veena Chaturvedi &
          Ors. Reported in 2005 (3) SCC 79.

F         3. Badrinath v. Government of Tamil Nadu & Ors.
          Reported in 2000(8) SCC 395.                                 +

        In the case of Baldev Singh (Supra), the appellant was
  held in a criminal case and thereafter on his acquittal a question
  arose with regard to his back wages, their Lordships held that it
G did not arise as he was lawfully confined. Therefore, this case
  is distinguishable.
       In the case of India Literacy Board & Ors. (Supra), An SLP      t
  was filed against the interim order and their Lordships held that
H no opinion need to be expressed on merits of the rival
      CANTONMENT EXECUTIVE OFFICER AND ANR. v.                631
        VIJAY D. WANI AND ORS. [A.K. MATHUR, J.]

    contentions and directed the High Court to hear the main writ A
    petition and dispose of the same on merits including the
    question of maintainability of the petition.
         And in the case of Badrinath (Supra), question was of non-
    communication of adverse remarks and no question of 'no work
    no pay' was involved. Hence, this case also does not support B
    the case of the appellant.
          9. So far as grant of back wages is concerned, it depends
    upon case to case. But in the present case as the respondent
    was found guilty by the Cantonment Board but the order of c
    Cantonment Board was set aside because it suffered from bias
    and it will be unfair to deny 50% back wages to the respondent
    (herein). The Division Bench also directed that more than 13
    years have passed, therefore, it did not permit the respondent
    to proceed against the petition afresh. The Division Bench D
    decided the matter on 1oth January, 2005 and now more than
    16 years have lapsed. Therefore, it would not be fair to permit
    the respondent to proceed afresh in the matter. Consequently,
    we do not find any merit in this appeal and the same is
    dismissed.
                                                                    E
          10. The respondent be reinstated with the benefit of 50%
    back wages and continuity of service.
         11. No order as to costs.
    K.K.T.                                   Appeal Dismissed.      F




1