Supreme Court of India
UNION OF INDIA AND OTHERSversusSANJAY JETHI AND ANOTHER
- Citation
- 2013 INSC 705
- Decided
- 18 October 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The composition of the Court of Inquiry, which included the Presiding Officer and Technical Members who had prepared the report, created a real likelihood of bias violating Rule 180 and natural justice, justifying the Tribunal’s order to set aside the COI and direct a fresh inquiry.
Summary
The Union of India appealed against an Armed Forces Tribunal order that set aside an Additional Court of Inquiry (COI) and directed a fresh COI because the original COI included the Presiding Officer and two Technical Members who had prepared the inquiry report. The respondent, Colonel Sanjay Jethi, claimed that this composition created bias, denied him the right to cross‑examine those members, and violated Rule 180 of the Armed Forces Rules, 1954 which guarantees a fair opportunity to the officer whose character is under inquiry. The Supreme Court examined whether the inclusion of persons who had expressed opinions in the report amounted to a real likelihood of bias and whether Rule 180 required their cross‑examination. It held that the Technical Members and the Presiding Officer were indeed biased, breaching natural justice, and that the Tribunal was correct in ordering a fresh COI. Consequently, the appeal was dismissed, leaving the Tribunal’s order intact.
Issues considered
- The constitution of the COI with the Presiding Officer and Technical Members who prepared the report violated the principle of natural justice and created bias.
- Whether Rule 180 of the Armed Forces Rules, 1954 obliges the COI members to be made available for cross‑examination.
- Whether the Armed Forces Tribunal was empowered under Section 14 of the Armed Forces Tribunal Act, 2007 to set aside the COI and direct a fresh inquiry.
- Whether the procedural safeguards under Rules 177, 179 and 180 were complied with in the original COI.
Legislation cited
- Armed Forces Rules, 1954s. Rule 177, s. Rule 179, s. Rule 180
- Armed Forces Tribunal Act, 2007s. Section 14
Subjects
biasnatural justicecourt of inquiryArmed Forces TribunalRule 180procedural fairnessadministrative lawprejudicerecusalcross‑examination
Judgment
[2013) 16 S.C.R. 495
UNION OF INDIA AND OTHERS A
v.
SANJAY JETH! AND ANOTHER
(CIVIL· APPEAL NO. 891-t OF 2012)
OCTOBER 18, 2013 . B
[DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]
Armed Forces Rules, 1954 - rr. 177, 179 and 180 -
Armed Forces Tribunal - Tribunal setting aside the decision
rendered by the Additional Court of Inquiry and consequential C
action taken or orders passed pursuant to the said order
against first respondent and directing to convene a fresh Court
of Inquiry (CO/) with a different Presiding Officer and other
independent members - Propriety - Held: On facts, proper -
What really weighed with the Tribunal while passing the D
impugned order was that such members constituted the CO!
who were biased or reasoned to be biased and such bias was
discernible - In quasi-judicial proceedings, the authority
empowered to decide a dispute between the contesting
parties has to be free from bias - When free from bias is E
mentioned, it means there should be absence of conscious
or unconscious prejudice to either of the parties - In the case
at hand, the Technical Members of the Tribunal had compiled
the documents, · adopted the methodology, made
observations, drawn inferences and expressed the view and, F
above all, they had prepared the report which was brought on
record as a document- To say, they had not played any role
would tantamount to blinking at reality - Their inclusion as the
Technical Members was not legally permissible - Even
applying the rigorous substantive test, a case of prejudice G
came into full play in the case at hand - Once a COi has been
constituted to inquire into the allegations relating to a person's
character and military reputation subject to the Act it should
not be done by the persons who have expressed their views
495 H
496 SUPREME COURT REPORTS [2013] 16 S.C.R.
A in writing behind the back of the person and assumed the role
of the recommending authority which is statutory in nature to
take disciplinary action - Law does not countenance the same
- Also, in the fitness of things, the Presiding Officer should
have recused himself to preside over the CO/ since his
9 inclusion in the CO/ had been objected to, on an earlier
occasion, yet he was allowed to continue and was not changed
- Natural justice - Bias.
Armed Forces Rules, 1954 - r.180 - Court of Inquiry
C (CO/) - What r. 180 postulates - Held: r. 180 has a binding
effect on the CO/ - The Rule provides for procedural
safeguards regard being had to the fact that a person whose
character and military reputation is likely to be affected is in
a position to offer his explanation and in the ultimate eventuate
may not be required to face disciplinary action - Thus
D understood, the language employed in r. 180 postulates of a
fair, just and reasonable delineation -Duty of the authorities
to ensure that there is proper notice to the person concerned
and he is given opportunity to cross-examine the witnesses
and, most importantly, nothing should take place behind his
E back.
Armed Forces Tribunal Act, 2007 - s. 14 - Jurisdiction,
powers and authority of the tribunal in service matters - Held:
Tribunal required to decide both questions of law and facts
F that may be raised before it and conferred powers to deal with
the cases in promptitude - Promptitude does not ostracize or
drive away the apposite exposition of facts and necessary
ratiocination - A seemly depiction of factual score, succinct
analysis of facts and law, pertinent and cogent reasoning in
G support of the view expressed having due regard to the
rational methodology, are imperative.
Administrative Law - Natural Justice - Bias - Effect of -
Held: Bias is an insegregable facet of the concept of natural
JUStice as a genus - Question of bias would arise depending
H
UNION OF INDIA v. SANJAY JETHI 497
on the facts and circumstances of the case - Challenge of A
bias, when sustained, makes the whole proceeding or order
a nullity, the same being coram non-judice.
The legal propriety of the judgment passed by the
Arnied Forces Tribunal setting aside the decision B
rendered by the Additional Court of Inquiry (COi) and
consequential action taken or orders passed pursuant to
the said order against the first respondent and directing
to convene a fresh Court of Inquiry (COi) with a different
Presiding Officer and other independent members, was C
called in question in the present appeal.
Four reasons weighed with the Tribunal while
passing the impugned judgment, namely, (i) that though
the tribunal vide its earlier judgment had directed the
witnesses concerned with the annexures which were D
brought on record before the COi were to be made
available for cross-examination, the said witnesses were
not made subject to cros~-examination tiy the delinquent
officer; (ii) that though the inclusion of the Presiding
Officer in the COi had been objected to on earlier E
occasion, he was allowed to continue and was not
changed; (iii) that in spite of the Technical Members had
prepared and arranged the documents which would
mean that they had expressed an opinion at an earlier
stage, yet they were retained as Members of the COi as F
a consequence of which the principles of natural justice
were violated, for one cannot be the judge in his own
cause; and (iv) that the doctrine of bias comes into play
as the Presiding Officer as well as the Technical Members
would have a tendency to support their own reports/ G
documents and it is against the spirit of Rule 180.
The issues that therefore emerged for consideration
before this Court were whether the tribunal was justified
in holding that the constitution of the COi which
consisted of two Technical Members and the Presiding H
498 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Officer was vitiated as there was possibility of their having
an interest in the proceedings as a consequence of
which being biased or there could be a perception or
likelihood of bias in the decision making process which
would raise a doubt pertaining to the decision by a
B prudent or rational person; and whether the Presiding
Officer and the Technical Members should have been
made available for cross-examination in a COi to meet the
necessary command of Rule 180 of the Armed Forces
Rules, 1954 and further whether there was a real violation
c of the principles of natural justice which ultimately
vitiated the proceedings of the Additional COi.
Dismissing the appeal, the Court
HELD:1. The .authorities, as far as Rule 180 of the
D Armed Forces Rules, 1954 is concerned, are to the effect
that when a COi is set up under Rule 177 and during the
course of enquiry, character or military reputation of a
person is likely to be affected, he should be granted full
opportunity to participate in the proceedings; that the COi
E in its very nature ts likely to examine certain issues
generally concerning a situation or persons; that his
participation could not be avoided on a mercurial plea
that no specific enquiry was directed against the person
whose character or military reputation is involved; that
F the concerned person shall be afforded full opportunity
so that nothing is done at his back and without
opportunity of participation; that it is the command of the
said provision to ensure such participation; that it is not
a condition precedent to always hold that a COi for
G proceeding a trial by court martial where character or
military reputation of the officer concerned is likely to be
affected; that the COi is· in the nature of a fact finding
enquiry committee; that the participation in a COi is at a
stage prior to the trial by court martial; that the said rule
H gives adequate protection to the person affected at the
UNION OF INDIA v. SANJAY JETHI 499
stage. of COi and there is no provision for supplying the A
accused with a copy of the report of the COi; and that the
proceedings before a COi are not adversarial
proceedings. [Para 23] [519-D-H]
Lt. Col. Prithi Pal Singh Bedi v. Union of India and others
8
AIR 1982 SC 1413: 1983 (1) SCR 393; Uma Nath Pandey
and others v. State of U.P. and another AIR 2009 SC 2375:
2009 (4) SCR 374; Major General lnder Jit Kumar v. Union
of India and others (1997) 9 sec 1; Union of India and Others
v. Major A. Hussain (IC-14827): (1998) 1 SCC 537: 1997 (6) C
Suppl. SCR 218 and Major G.S. Sodhi v. Union of India
(1991) 2 sec 382 - referred to.
2.1. In the instant case, what really weighed with the
tribunal while passing the impugned order is that such
members constituted the COi who were biased or D
reasoned to be biased and such bias is discernible. Bias
is an insegregable facet of the concept of natural justice
as a genus. The fundamental principles of natural justice
are ingrained in the decision making process to prevent
miscarriage of justice. It is applicable to administrative E
enquiries and administrative proceedings. It is also
fundamental facet of principle of natural justice that in the
case of quasi-judicial proceeding the authority
empowered to decide a dispute between the contesting
parties has to be free from bias. When free from bias is F
mentioned, it means there should be absence of
conscious or unconscious prejudice to either of the·
parties. [Para 29] [523-A-D]
2.2. The question of bias would arise depending on
the facts and circumstances of the case. It cannot be an G
imaginary one or come into existence by an individual's
perception based on figment of imagination. While
dealing with the plea of bias advanced by the delinquent
officer or an accused a court or tribunal is required to
·. adopt a rational approach keeping in view the basic H
500 SUPREME COURT REPORTS [2013] 16 S.C.R.
A concept of legitimacy of interdiction in such matters, for
the challenge of bias, when sustained, makes the whole
proceeding or order a nullity, the same being coram non-
judice. One has to keep oneself alive to the relevant
aspects while accepting the plea of bias. What is relevant
8 is actually the reasonableness of the apprehension in this
regard in the mind of such a party or an impression would
go that the decision is dented and affected by bias. To
adjudge the attractability of plea of bias a tribunal or a
court is required to adopt a deliberative and logical
c thinking based on the acceptable touchstone and
parameters for testing such a plea and not to be guided
or moved by emotions or for that matter by one's
individual perception or misguided intuition. [Para 45]
[532-8-E]
D A.K. Kraipak v. Union of India (1969) 2 SCC 262: 1970
(1) SCR 457; Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport Corporation and others AIR 1959 SC
308: 1959 Suppl. SCR 319 Gul/appalli Nageswarrao v. State
of A.P. and others AIR 1959 SC 1376: 1960 SCR 580 Dr. G.
E Sarana v. University of Lucknow and others (1976) 3 SCC
585: 1977 (1) SCR 64; Manak Lal v. Dr. Prem Chand Singhvi
and others AIR 1957 SC 425: 1957 SCR 575; Secretary to
Government, Transport Deptt., Madras v. Munuswamy
Mudaliar and another 1988 (Supp) SCC 651: 1988 Suppl.
F SCR 673; Kumaon Manda/ Vikas Nigam Ltd. v. Girja Shankar .
Pant and others (2001) 1 SCC 182: 2000 (4) Suppl. SCR
248; S. Patthasarathi v. State of Andhra Pradesh (1974) 3
SCC 459: 1974 (1) SCR 697; G.N. Nayak v. Goa University
and others (2002) 2 SCC 712: 2002 (1) SCR 636; Delhi
G Financial Corpn. and another v. Rajiv Anand and others
(2004) 11 SCC 625; Chandra Kumar Chopra v. Union of India
and others (2012) 6 sec 369: 2012 (5) SCR 1029; State of
Gujarat and another v. Justice R.A. Mehta (Retired) and
others (2013) 3 SCC 1: 2013 (1) SCR 1; Ranjit Thakur v.
H Union of India and others (1987) 4 sec 611: 1988 (1) SCR
UNION OF INDIA v. SANJAY JETHI 501
512 and Major G.S. Sodhi v. Union of India (1991) 2 see A
382 - referred to.
Frome United Breweries v. Bath Justices (1926) AC 586;
· Metropolitan Properlies Co. (F.G.C.) Ltd. v. Lannon (1968) 3
WLR 694; Franklin v. Minister of Town and Country Planning 8
1948 AC 87; R. v. Bow Street Metropolitan Stipendiary
Magistrate, ex ·p Pinochet Ugarle (No. 2) (2000) 1 AC 119;
Locabail Locabail (U.K.) Ltd. v. Bayfield Properlies Ltd. 2000
QB 451; Ebner, Re. (1999) 161 ALR 55; President of the
Republic of South Africa v. South African .Rugby Football C
Union (1999) 4 SA 147; Vassiliadas v. Vassiliades AIR 1945
PC 38; Allinson v. General Council of Medical Education and
Registration (1894) 1 QB 759; Metropolitan Properlies Co.
(F.G.C.) Ltd. v. Lannon (1969) 1 QB 577; Public Utilities
Commission of the District of Columbia v. Pollak 343 US 451
and Regina JI. Liverpool City Justices, ex parte Topping D
(1983) 1 All ER 490 - referred to.
Principles of Administrative Law by J.A.C. Griffith and
H Street (Fourth Edition) - referred to.
E
Halsbury's Laws of England, Fourth Edition, Volume 2,
paragraph 551
3. The case at hand is to be appreciated in its factual
backdrop whether there has been "really likelihood of
bias". In a COi participation of a delinquent officer whose F
character or military reputation is likely to be affected is
a categorical imperative. The participation has to be
meaningful, effective and he has to be afforded adequate
opportunity. Rule 180 is framed under the Army Act and
it has the statutory colour and flavour. It has the binding G
effect on the COi. The Rule provides for procedural
safeguards regard being had to the fact that a person
whose character and military reputation is likely to be
affected is in a position to offer his explanation and in the
ultimate eventuate may not be required to face. H ·
502 SUPREME COURT REPORTS [2013) 16 S.C.R.
A disciplinary action. Thus understood, the language
employed in the Rule 180 lays postulates of a fair, just and
reasonable delineation. It is the duty of the authorities to
ensure that there is proper notice to the person
·concerned and he is given opportunity to cross-examine
B the witnesses and, most importantly, nothing should take
place behind his back. It is one thing to say that the COi
may not always be essential or sine qua non for initiation
of a court martial but the another spectrum is once the
authority has exercised the power to hold such an inquiry
c and the COi has recommended for disciplinary action,
then the recommendation of the COi is subject to judicial
review. While exercising the power of judicial review it
becomes obligatory to see whether there has been due
compliance of the stipulates prescribed under the Rule,
for the language employed in the said Rule is absolutely
0
clear and unambiguous. One cannot stretch the said
concept at ·infinitum on the bedrock of grant of
opportunity and fair play. It has to be tested on the
touchstone of factual matrix of each case. [Para 46] [532-
E F-H; 533-A-E]
4. In the case at hand, initially the COi was
constituted by three members by order dated 22.7.2009
and it was asked to investigate certain issues. Thereafter,
an amendment was brought regarding composition of
F the COi vide order dated 28.7.2009. The core of
controversy, is the inclusion of the Technical Members
and the Presiding Officer in the COi. The respondent
raised the plea of bias against the Technical Members and
had objected to the inclusion of Brig. N.S. Ahamed as
G Presiding Officer. The Technical Members have
expressed their opinion after analysis of the documents.
They have, in detail, scrutinized the documents, drawn
their inferences and made their observations. By no
stretch of imagination it can be said that it is an
H arrangement of documents or pagination of documents.
UNION OF INDIA v. ,SANJAY JETHI 503
True it is, they are not the authors of the original 1A
documents but their analysis and inference have been
used against the respondent in the earlier COi and in the
Additional COi. It cannot be brushed aside by saying that
Technical Members did not sign the final report. Once
they have given an opinion, the possibility to support the B
same cannot be totally discarded. That is where the real
likelihood of bias comes into play. If one has something
substantial, relevant or material to do with the case he is
disqualified. In the case at hand, the T~chnical Members
had compiled the documents, adopted! the methodology;
made observations, drawn inferences a,nd expressed the C
view and, above all, they had prepared the report which
has been brought on record as a document. To say, they
had not played any role would tantamount to blinking at
reality. Their inclusion as the Technical Members is not
legally permissible. It is so as the said respondent is 0
bound to be prejudiced. Even applying the rigorous
substantive test, a case of prejudice comes into full play
in the case at hand. [Paras 47, 48, 51 and 52) [533-F; 534i
C; 536-0-E; 537-D-H; 538-A-B]
E
5. Once a COi has been constituted to inquire into
the allegations relating to a person's character and
military reputation subject to the Act it should not be done
by the persons who have expressed their views in writing
behind the back of the person and assume the role of the F
recommending authority which is statutory in nature to
take disciplinary action. Law does not countenance the .
same. In the present case it is irrefragably clear that the
recommendation of the COi was the sole basis on which
the disciplinary action has been initiated. Nothing else G
had come on record as observed by the tribunal on earlier
occasion as well as by the impugned order and the said
finding is unassailable. That being the position, in the
fitness of things, the Presiding Officer should have
recused himself to preside over the COi. However, on
H
504 SUPREME COURT REPORTS [2013] 16 S.C.R.
A earlier occasion the tribunal had not quashed the entire
proceedings and the same was not challenged by either
of the parties. Therefore, the Additional COi which has
been directed by the tribunal by the impugned judgment,
shall only function as an Additional COi and deal with the
8 documents which were produced earlier before the
tribunal. [Para 54) (539-G-H; 540-A-C]
6. Respondent No. 1 at one point of time had filed a
long list of witnesses. On the earlier occasion the tribunal
permitted for examination or cross-examination of
C witnesses who had something to do with the documents.
The Additional COi shall keep that in view so that there
is no procrastination of the proceedings at the behest of
the delinquent officer, for natural justice has also its own
limitations. [Para 55] (540-D-EJ
D
7. Though, in the case at hand, the verdict of the
tribunal is being sustained, it is found that the tribunal did
not advert to the necessitous facts. Section 14 of the
Armed Forces Tribunal Act, 2007 occurs in Chapter Ill of
E the said Act and deals with jurisdiction, powers and
authority of the tribunal in service matters. Under sub-
section (5) of Section 14 the tribunal is required to decide
both questions of law and facts that may be raised before
it. The tribunal has been conferred powers to deal with
F the cases in promptitude. Promptitude does not ostracize
or drives away the apposite exposition of facts and
necessary ratiocination. A seemly depiction of factual
score, succinct analysis of facts and law, pertinent and
cogent reasoning in support of the view expressed
having due regard to the rational methodology, are
G imperative. [Para 56) [540-F-H; 541-A-C)
Case Law Reference:
1983 (1) SCR 393 referred to Para 4
H 2009 (4) SCR 374 referred to Para 5
UNION OF INDIA v. SANJAY JETHI 505 .
(1997) 9 sec 1 referred to Para 20 A
(1991) 2 sec 382 referred to Para 20
1997 (6) Suppl. SCR 218 referred to Para 22
. 1970 (1) SCR 457 referred to Para 29 B
1959 Suppl. SCR referred to Para 29
1960 SCR 580 referred to Para 29
1977 (1) SCR 64 referred to Para 29
c
1957 SCR 575 referred to Para 29
(1926) AC 586 referred to Para 31
1988 Suppl. SCR 673 referred to Para 34
2000 (4) Suppl. SCR 248 referred to Para 35 D
1974 (1) SCR 697 referred to Para 36
(1968) 3 WLR 694 referred to Para 36
1948 AC 87 referred to Para 36 E
(2000) 1 AC 119 referred to Para 36
2000 QB 451 referred to Para 36
(1999) 161 ALR 55 referred to Para 36
F
(1999) 4 SA 147 referred to Para 36
2002 (1) SCR 636 referred to Para 37
(2004) 11 sec 625 referred to Para 38
G
2012 (5) SCR 1029 referred to Para 39
2013 (1) SCR 1 , referred to Para 40
1988 (1) SCR 512 referred to Para 42
H
506 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (1991) 2 sec 382 referred to Para 42
AIR 1945 PC 38 referred to Para 42
(1894) 1 QB 759 referred to Para 43
(1969) 1 QB 577 referred to Para 43
B
343 us 451 referred to Para 43
(1983) 1 All ER 490 referred to Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c 8914 of 2012.
From the Judgment & Order dated 12.10.2012 of the
Armed Forces Tribunal, Regional Bench, Mumbai in Transfer
Application No. 38 of 2011.
D Paras Kuhad, ASG, Jitin Chaturvedi, R.
Balasubramaniam, Abhinav Mukherjee, Shalaj Mridul, B.V.
Balaram Das for the Appellants.
Shekhar Naphade, Ashok K. Mahajan for the
E Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The legal propriety of the judgment
and order dated 12.12.2012 in TA No. 38 of 2011 passed by
F the Armed Forces Tribunal, Regional Bench at Mumbai (for
short "the tribunal") ~etting aside the decision rendered by the
Additional Court of Inquiry and consequential action taken or
orders passed pursuant to the said order and directing to
convene a fres,h Court of Inquiry (COi) with a different Presiding
Officer and other independent members, if decision is taken
G to proceed against the 1st respondent, is called in question in
the present appeal.
2. The factual score as depicted is that on 5.8.2009, a
complaint was made by one of the officers alleging irregularity
H in the hiring of Civil Hin~d Transport (CHT), which were used
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 507
for the purpose of;supply of ordnance stores to units spread A
over the country, including remotest field and high altitude area
by the respondent No. 1 who holds the rank of Colonel in the
Army. On the basis of a complaint, the General Officer
Commanding-in-Chief, Pune initiated an action against the
respondent No. 1 by making his attachment with HQ Sub Area B
on 6.8. 2009 and also convened a Board of Officers on
21.7.2009 for ascertaining the truthfulness of the allegations.
On 22.7.2009 the said Board seized the entire records and
submitted a report. On the premises of 'hat report, a COi was
convened against the respondent No. 1 to investigate into the c
alleged irregularities.
3. The COi conducted an inquiry and on 8.3.2010
recommended for taking appropriate disciplinary action
against the 1st respondent and some other officers. On the
basis of the said recommendation on 23.2.2010 the first D
respondent was attached to the Head Quarters, Mumbai Sub
Area till finalization of the disciplinary proceedings. At that
juncture,. respondent No. 1 filed Original Application No. 283
of 2010 before the Principal Bench of the tribunal at New Delhi
challenging the COi proceedings contending, inter alia, that he E
had been deprived of the right of cross-examination as
stipulated under Rule 180 of the Armed Forces Rules, 1954
(for short "the Rules"); and that there had been non"supply of
documents which were annexed after conclusion of the
proceedings before the COi. As the factual matrix would unveil, F
on 17 .6.2010 the hearing of charges commenced and the
Commanding Offrcer, Mumbai Sub Area, under Rule 22
directed for recording of Summary of Evidence under Rule 23.
4. The Original Application filed before the tribunal was G
disposed of on 8.10.2010. While dealing with the grievance
pertaining to violation of Rule 180, especially the deprivation
of the right to cross-examine, the tribunal referred to the
. decision in Lt. Col. Prithi Pal Singh Bedi v. Union of India.and
1. AIR 1982 SC 1413. H
508 SUPREME COURT REPORTS [2013] 16 S.C.R.
A others1, certain passages from Administrative Law by De Smith
and applicability of the principles of natural justice and came
to hold that as the 1st respondent had remained present
throughout the course of COi and had been given opportunity
to 'cross-examine the witnesses and, therefore, the grievance
B that he was not afforded full opportunity to cross-examine did
not merit consideration. In fact, the tribunal opined that in-depth
cross-examination was allowed to the respondent No. 1 and the
Presiding officer asking for written questions to be submitted,
could be treated as fair and reasonable exercise of discretion
c and hence, there was no illegality or irregularity in the conduct
of the COi.
5. A contention was advanced that after conclusion of the
proceedings by the COi when the report was submitted, certain
documents which were not made available to the said
D respondent were annexed to justify his culpability. The tribunal
found force in the said submission and opined that it was the
duty of the COi to find out the truth by holding suitable
investigation about the documents that were annexed
afterwards. This opinion was formed on scrutiny of the language
E employed in Rule 180 and placing reliance on the dictum in
Uma Nath Pandey and others v. State of U.P. and another2.
This led to the ultimate conclusion that such enclosing of the
documents along with the report by the COi amounted to
violation of Rule .180 inasmuch as the said report was treated
F as the sole basis for initiating the disciplinary proceedings
against the respondent No. 1. It was also held that it would be
difficult for the authority concerned to proceed for hearing on
the point of charge to take into account those documents which
were subsequently annexed, and in all fairness, an Additional
G COi should be convened affording full opportunity to the parties,
by examining .or cross-examining any of the witnesses
pertaining to those annexures.
H 2. AIR 2009 SC 2375.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 509
6. Being of this view the tribunal directed the authority to A
convene an Additional COi limiting to the documents which
were subsequently annexed to the .eport of the COi and
granting liberty to the delinquent officer to cross-examine any
of the witnesses, if produced, pertaining to those documents.
B
7. In pursuance to the aforesaid order, the Additional COi
reassembled and the respondent No. 1 was shown all the
documents and he perused the same, as the proceedings would
reveal, availing considerable length of time. At that stage, he
made a request for grant of permission to cross-examine the C
Technical Members but the same was denied on the ground that
as per Rule 180 he could only cross-examine the witnesses and
not the Members. However; certain other witnesses were
examined and cross-examined in the COi and, eventually, a
report was sent by the Presiding Officer.
D
8. Being grLeved by the said order the respondent No. 1
preferred an Original Application under Section 14 of the
Armed Forces Tribunal Act, 2007 for quashing of the Additional
COi as there had been infraction of Rule 180 and for issue of
appropriate direction for holding a fresh Additional COi with new E
Members who are independent and unbiased and the said
Original Application was transferred to the Regional Bench at
Mumbai where it was registered as TA No. 38/2011. For
claiming such relief heavy reliance was placed on the order
passed on earlier occasion in OA No. 283/2010. ·it was F
contended before the tribunal that Brig. N.S. Ahmed, who was
the earlier Presiding Officer of the COi, had continued as the
Presiding Officer of the Additional COi despite objections
raised by the applicant therein and in spite of the request to
constitute a fresh COi without him. It was highlighted that the G
concerned Brigadier should have been made available for
cross-examination as he was the author of the document, i.e.,
Ext. XLI which was referred to in the order dated 8.10.2010 in
OA No. 283/2010. It was brought to the notice of the tribunal
that in the Additional COi Lt. Col. Sandeep Sinha and Maj. H
510 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Sanjeev Narula were also retained as Technical Members
despite the factum that those two officers were responsible for
preparing the appendices 'N' to 'AB' to Ext. XLIX and on that
ground he had been deprived of the opportunity of cross-
examining them. It was further put forth that the document, vide
B Ext. XXXV, was not shown or allowed for his perusal although
the said document was a complete report making serious
allegations of misappropriation and fraud against the applicant
therein. In essence, the grievance that was agitated before the
tribunal was that certain documents were not supplied and the
c authors of document had become the Members of the
Additional COi. It was also submitted that as the Additional COi
had already submitted the report and the next phase of the
proceedings, i.e., Summary of Evidence was about to be over
the same also deserved to be quashed.
D 9. The said submissions were resisted by the respondents
therein contending that Ext. XU contains the observations of the
Court on the two letters referred to it, i.e., COD, Mumbai letter
No. 2754/Gen/Cont dated 4.8.2008 and DGOS IHQ of MoD
(Army) letter No. PC-2/13357/RI00159/Fin/OS-4(e) dated
E 6.8.2009 and these two letters were earlier perused by
respondent No. 1. Emphasis was laid on the fact that there is
no provision for cross-examination of the Presiding Officer of
the COi on the basis of his observations made in the COi. As
regards the cross-examination of the Technical Members, it
F was opposed on the ground that the Technical Members had
only collated the data which was taken into consideration for
formation of an opinion by the COi and the same was done to
comply with the order passed on the earlier occasion. It was
put forth that Technical Members had only signed the day's
G proceedings and had no role to play in the final opinion
expressed by the COi. That apart, it was stressed that the
Technical Members had been produced as witnesses in
Summary of Evidence and every opportunity had been granted
to the applicant therein to cross-examine them and, therefore,
1.• no prejudice has been caused to him due to their non-
I UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 511
production in the COi for cross-examination. A
10. It was also contended that request of the applicant
therein to cross~examine the authors of the document XU and
XUX was beyond the scope of the Rule and was also not in
accord with the earlier judgment passed on 8.10.2010. It was
8
put forth that Technical Members were allowed only to assist
the Presiding Officer in the proceedings and not allowed to form
any opinion and finding. Their inclusion in the Additional COi
would not vitiate the enquiry as it does not violate the spirit of
Rule 180.
c
11. The tribunal first dealt with the contention relating to
inclusion of Technical Members in the Additional COi. In that
context, it observed that the Technical Members were
undoubtedly involved and connected with the matter being
investigated and since they had submitted their report, it was D
obvious that those members would certainly support their own
report/ documents and it would not be possible for them to
arrive at a different finding than what they had already found
as their personal credibility would be at· stake. Taking note of
this fact.situation and also the factum that the respondent herein E
had raisia.Q his objection at the initial stage pertaining to
inclusion of these officers in the Additional COi, the tribunal
opined that the apprehension expressed by him was well-
founded.
12. After so holding the tribunal proceeded to deal with the F
mandate of Rule 180 and relying on the decision rendered in
Lt. Col Prithi Pal Singh Bedi (supra) and certain other
decisions of the ~ligh Courts came to hold as follows: - '
"...... that the respondents did not produce the maker of G ·
those documents XUX and XU for cross examination by,
the applicant, although he specifically prayed for it which
was also directed in judgment passed in OA 283/2010.
The applicant objected from the very beginning not to
include Brig NS Ahmed and two Technical Members in the H
512 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Addi. COi so that a fair trial can be held and they could be
cross examined by him. But the respondents turned a deaf
ear to such request of the applicant and in fact that has
been done at their own risks. The categorical direction in
the earlier OA 283/2010 dt. 8.10.2010 passed by the
B Principal Bench ·of AFT is that in the additional COi the
petitioner is to be afforded with full opportunities to examine
and cross examine the witnesses pertaining to those
documents. The respondents, could have convened the
additional COi with different members when there are
c various other officers available for holding the additional
inquiry, but they preferred not to do so and in turn creators
of some vital documents were inducted as members
allowing themselves to decide upon the documents created
by them and they being the Members of the inquiry were
not produced for cross examination by the applicant. Such
D
action on the part of the respondents is contrary to fair play
in action."
13. The tribunal observed that as the applicant therein was
not allowed to cross-examine the makers of documents XLIX
E and XU, the respondents therein not only violated the provisions
of Rule 180 but also did not comply with the directions
contained in the earlier judgment passed in OA No. 283/2010.
The tribunal proceeded to state that the contention advanced
by the respondents therein that on reading of Rule 180 it cannot
F be discerned that the Presiding Officer and Technical Member
of the COi were required to be produced as witnesses was
devoid of merit. After so stating the tribunal held that the
respondents therein should not have included Brig. N.S. Ahmad
as Presiding Officer and Lt. Col. Sandeep Sinha and Maj.
G Sanjeev Narula as Technical (ltlembers in the said Additional
COi, for whatever might be the role of the Technical Members,
nonetheless they were Members of the Additional COi and
must have applied their mind while preparing the inquiry report.
14. Being of this opinion, the tribunal concluded that the
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 513
decision rendered by Additional COi was in violation of the A
provisions contained in Rule 180 and, accordingly, set aside
the same and also all consequential actions taken on the basis
of the said Additional COi. It granted liberty to the respondents
. therein to convene a fresh Additional COi with a. different
Presiding Officer and other independent Members. B
15. The centripodal issues that emerge for consideration
are whether the tribunal was justified in holding that the
constitution of the COi which consisted of two Technical
Members and the Presiding Officer was vitiated as there was C
possibility of their having an interest in the proceedings as a
consequence of which being biased or there could be a
perception or likelihood of bias in the decision making prooess
which would raise a doubt pertaining to the decision by a
prudent or rational person; whether the Presiding Officer and
the Technical Members should have been made available for D
cross-examination in a COi to meet the necessary command
of Rule 180 and further regard being had to the earlier order
passed in OA No. 283 of 201 O; and whether there has been
real violation of the principles of natural justice which ultimately
vitiates the proceedings of the Additional COi. E
16. To appreciate the said aspects we shall first proceed
to examine the schematic contents of the Rules in issue and
how they have been understood and interpreted by this Court.
Chapter VI of the Rules provides for COi. Rule 177 deals with F
the Constitution of COi and its role, namely, to collect evidence
and if so required to report with regard to any matter which may
be referred to them. Rule 179 provides the procedure by which
a COi shall be guided.
17. Rule 180 on which the present controversy revolves G
deals with the procedure when character of person subject to
the Act is involved. It is as follows:-
"180. Procedure when character of a person subject
to the Act is involved. - Save in the case of a prisoner H
514 SUPREME COURT REPORTS [2013) 16 S.C.R.
A of war who is still absent whenever any inquiry affects the
character of military reputation of a person subject to the
Act, full opportunity must be afforded to such person of
being present throughout the inquiry and of making any
statement, and of giving any evidence he may wish to
B make or give, and of cross- examining any witness whose
evidence in his opinion, affects his character or military
reputation and producing any witnesses in defence of his
character or military reputation. The presiding officer of the
court spall take such steps as may be necessary to ensure
c that any such person so affected and not previously notified
receives notice of any fully understands his rights, under
this rule." ·
17. Rule 182 stipulates that the proceeding of Courts of
Inquiry or any confession statement or answer to a question
D made or given at a COi shall not. be admissible in evidence
against a person subject to the Act, nor shall any evidence
respecting the proceedings of the court be given against any
such person except upon the trial or such person for willfully
giving false evidence before that court: The proviso to the rule
E states nothing in the said rules shall prevent the proceedings
from being used by the prosecution or the delence for the
purpose of cross-examining any witnesses. Rule 184 which has
been substituted by S.R.O. 44, dated 24th January, 1985 deals
with right of certain persons to copies of statements and
F documents.
18. Rule 180 had come up for consideration in Lt. Col
Prithi P.~I Singh Bedi (supra). In the said case a contention was
advanced that it was obligatory upon the authorities concerned
G to appoint a COi whenever it affects the character or military
reputation of a persons subject to the Act and in such an enquiry
full opportunity must be afforded to such person of being present
throughout the enquiry and of making any statement or giving
any evidence he may wish to make or give and of cross-
H examining any witness whose evidence in his opinion affects
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] .515
the character or miHtary reputation and producing any witness . A
in defence of his character or military reputation. It was further.
urged before the court that on a correct interpretation of Rule
180, it would appear whenever the character of a person subject
to the Act is involved in any inquiry, a COi must be set up.
Repelling the said submission the learned judges opined thus:- B
"Rule 180 does not bear out the submission. It sets up a
stage in tne procedure prescribed for the Courts of inquiry.
Ru1e·1so cannot be construed to me·an that whenever or
wherever in' any inquiry in respect of any person subject
to the Act his character or military reputation is likely to be C
affected setting up of a Court of inquiry is a sine qua non ..
Rule 180 merely makes it obligatory that whenever a Court
of inquiry is set up and in the course of inquiry by the Court
of inquiry character or military reputation· of a person is
likely to be affected then such a person must be given a D
full opportunity to participate in the proceedings of Court·
of inquiry. Court of inquiry by its very nature is likely to
examine certain issues generally concerning a situation or
persons."
E
[Emphasis supplied)
19. Thereafter, the Court dealt with the proceedings where·
the participation of a person is obligatory and where it is not
required. The said delineation is as follows:-
F
"Where collective fine is desired to be imposed, a Court
of inquiry may generaily examine the shortfall to ascertain
how many persons are responsible. In the course of such
an inquiry there may be a distinct possibility of character
or military reputation of a person subject to the Act likely G
to be affected. His participation cannot be avoided on the
specious plea that no specific inquiry was directed against
the person whose character or military reputation is
involved. To ensure that such a person whose character
or military reputation is likely to be affected by the H
!i16 SUPREME COURT REPORTS [2013] 16 S.C.R.
A proceedings of the Court of inquiry should be afforded full
opportunity so that nothing is done at his back and without
opportunity of participation. Rule 180. merely makes an
enabling provision to ensure such participation. But it
cannot be used to say that whenever in any other inquiry
B or an inquiry before a Commanding officer under R. 22 or
a convening officer under Rule 37 of the trial by a court
martial, character or military reputation of the officer
concerned is likely to be affected a prior inquiry by the
Court of inquiry is a sine qua non."
c [Underlining is ours]
20. In Major General lnder Jit Kumar v. Union of India and
others, 3 a two-Judge Bench observed that COi is set up under
Rule 177 to collect evidence and to report, if so required, with
D regard to any matter which may be referred to it. The COi is in
the nature of a fact-finding inquiry committee. The learned
Judges proceeded to state that Army Rule 180 provides, inter
alia, that whenever any inquiry affects the character or military
reputation of a person subject to the Army Act, full opportunity
E must be afforded to such a person of being present throughout
the inquiry and of making any statement, and of giving any
evidence he may wish to make or give, and of cross-examining
any witness whose evidence, in his opinion, affects his
character or military reputation and producing any witnesses
F in defence of his character or military reputation and the
presiding officer of the COi is required to take such steps as
may be necessary to ensure that any such person so affected
receives notice of and fully understands his rights under this rule.
21. In that case the appellant therein was present before
G the COi and witnesses were examined by the COi in his
presence and were offered to him for cross-examination, but
he declined to cross-examine them. In fact, he had moved an
application for adjournment for preparing his defence. He had
H 3. (1997) 9 sec 1.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 517
also applied for the evidence adduced before the COi should A
be reduced to writing. The COi noticed that sufficient time had
been granted to him for preparation of his defence after receipt
of the COi proceedings by him and, accordingly, refused the
application for adjournment. Be it noted, a contention was
advanced that a copy of the report of the COi should be B
provided to him. Dealing with the said aspect, this Court ruled
thus:-
"There is no provision for supplying the accused with a
copy of the report of the Court of Inquiry. The procedure C
relating to a Court of Inquiry and the framing of charges
was examined by this Court in the case of Major G. S.
Sodhi v. Union of lndia 4 • This Court said that the Court of
Inquiry and participation in the Court of Inquiry is at a stage
prior to the trial by court-martial. It is the order of the court-
martial which results in deprivation of liberty and not any D
order directing that a charge be heard or that a summary
of evidence be recorded or that a court-martial be
convened. Principles of natural justice are not attracted to
such a preliminary inquiry. Army Rule 180. however. which
is set out earlier gives adequate protection to the person E
affected even at the stage of the Court of lnguirv. In the
present case, the appellant was given that protection. He
was present at the Court of Inquiry and evidence was
recorded in his presence. He was given an opportunity to
cross-examine witnesses, make a statement or examine F
defence witnesses."
[Emphasis supplied]
22. In Union of India and Others v. Major A. Hussain (IC-
14827)5, Union of India and its functionaries had challenged the G
decision of the High Court which had quashed the court-martial
proceedings including the confirmation of the sentence on the
4. · (1991) 2 sec 3a2.
5, . (1998) 1 sec 537. H
518 SUPREME COURT REPORTS [2013) 16 S.C.R.
A ground that the delinquent officers had denied reasonable
opportunity to defend himself as he was not communicated the
conclusion reached. In the said case the High Court opined that
during the proceeding under Section 22 of the Act, the copies
submitted in earlier COi were not supplied; that he was not given
s assistance of a defending officer of his choice; that he was not
provided a loan which was already sanctioned to engage a new
counsel; and that the documents for which he had made a
request to the convening authority long before assembly of the
court-martial were not provided. This court referred to Rule 180
c and 184 of the Army Rules and various other provisions and in
that context came to hold that the respondent had been unable
to show if there was any non-compliance with the provisions of
Rules 22, 23 and 24 and Army Order No. 70/84. The Court
referred to the decisions in Lt. Col. Prithi Pal Singh Bedi (supra)
Major G. S. Sodhi (supra) and observed that in G. S. Sodhi case
0
this Court with reference to Rules 22 to 25 said that procedural
defects, unless those were vital and substantial, would not affect
the trial. The Court, in the case before it, said that the accused
had duly participated in the proceedings regarding recording
of summary of evidence and that there was no flagrant violation
E of any procedure or provision causing prejudice to the accused.
Thereafter, the learned Judges adverted to the role of COi and
opined thus: -
"Proceedings before a Court of Inquiry are not adversarial
F proceedings and is also not a part of pre-trial investigation.
In Major General lnder Jit Kumar v. Union of India this
Court has held that the Court of lnquir}t is in the nature of
a fact-finding enquiry committee. The appellant in that case
had contended that a copy of the report of the Court of
G
Inquiry was not given to him and that had vitiated the entire
court-martial. He had relied upon Rule 184 in this
connection. With reference to Rule 184, the Court said that
there was no provision for supplying the accused with a
copy of the report of the Court of Inquiry. This Court
considered the judgment in Major G.S. Sodhi case and
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 519
observed that supply of a copy of the report of enquiry to A
the accused was not necessary because proceedings of
the court of inquiry were in the nature of preliminary enquiry
and further that rules of natural justice were not applicable
during the proceedings of the court of inquiry thbugh
adequate protection was given by Rule 180. This Court B
also said that under Rule 177, a court of inquiry can be
set up to collect evidence and to report, if so required, with
regard to any matter which may be referred to it. Rule 177,
therefore, does not mandate that a court of inquiry must
invariably be set up in each and every case prior to c
recording of summary of evidence or convening of a court-
martial."
[Emphasis supplied]
23. The aforesaid authorities, as far as Rule 180 is
concerned, are to the effect that when a COi is set up under D
Rule 177 and during the course of enquiry character or military
reputation of a person is likely to be affected, he should be
granted full opportunity to participate in the proceedings; that
the COi in its very nature is likely to examine certain issues
generally concerning a situation or persons; that his E
participation could not be avoided on a mercurial plea that no
specific enquiry was directed against the person whose
character or military reputation is involved; that the concerned
person shall be afforded full opportunity so that nothing is done
at his back and without opportunity of participation; that it is the F
command of the said provision to ensure such participation;
that it not a condition precedent to always hold that a COi for
proceeding a trial by court martial where character or military
reputation of the officer concerned is likely to be affected; that
the COi is in the nature of a fact finding enquiry committee; that G
the participation in a COi is at a stage prior to the trial by court
martial; that the said rule gives adequate protection to the
person affected at the stage of COi and there is no provision
for supplying the accused with a copy of the report of the COi;
· and that the proceedings before a COi are not adversarial H
proceedings.
520 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 24. Keeping in view the aforesaid principles which have-
been laid down by this Court, we are required to scrutinise.-
whether the tribunal has appositely applied the principles in
quashing the Additional COi including its composition. To
appreciate the said position we think it necessary to refer to
B the earlier order passed by the tribunal. In the earlier decision,
the tribunal took note of the fact that COi while submitting the
Report had annexed certain documents and the said
documents were produced in a tabular chart which is as
follows:-
c "
EXHIBIT NO. LEITER NO. AND DATE REMARKS
1 XLIX including Still not
all appendices shown/
given to
D aoolicant
2. LXIX CMM Jabalpur Letter No. -
126/CUHQ dt 05 Nov
2009
3 L Still not
E shown/
given to
applicant
4 LXVlll -Do-
5. xxxv -Do-
F
6. XU -Do-
7. LV -Do-
8. ZXVI (a) FOO Lr No.50060/
Tfc/X/ dt. 30 Nov 2009
G (b) 22 ABOD Lr.No.
C/1224/499/Tfc dt. 01
Dec 2009
(c) FOO Lr. No. G3334/
PC/Tfc dt 30 Nov 2009
H II
UNION OF !NOIA v. SANJAY JETH! [DIPAK MISRA, J.] 521
25. Thereafter, the tribunal appreciating the submissions A
1eld thus:-
"As has clearly been stated in AR 180, a fair opportunity
is to be afforded to an individual whose character and
military reputation is involved. In this case, the documents 8
were not given to the applicant warranting judicial review
by this Tribunal. We find that the mandatory procedure
under AR 180 was not followed by the respondents with
regard to those documents which were subsequently
annexed to the report. Therefore, that portion of the report, C
which deals with the conduct and reputation of the applicant
without giving him an opportunity of being heard in the
inquiry, should be taken to be vitiated for violation of AR
180. It is true that the report of the COi has no legal force
proprio vigore. But, however, it is seen in this case that
the findings rendered by the COi have been taken as the D
sole basis for initiating disciplinary proceedings against
the applicant. In these circumstances, the applicant is
entitled to put forward his grievance that the COi has given
findings regarding his conduct without giving him an
opportunity to put forward his defence as regards those E
annexures: the applicant was obviously not afforded
opportunity to see the documents which were annexed to
the report of COi. It would be difficult for the authority
concerned to proceed for hearing on the point of charge
to take into account those documents which were F
subsequently annexed. In all fairness, an additional COi is
to be convened affording full opportunity to the parties, by
examining or cross examining any of the witnesses
pertaining to those annexures. The additional COi would
remain confined to the annexures referred to above." G
[Underlining is ours]
26. After so holding, the tribunal directed the concerned
authority to pass orders convening an Additional COi limiting
H
522 SUPREME COURT REPORTS [2013] 16 S.C.R.
A to the documents which were subsequently annexed to the
report of the COi and the applicant was granted liberty to cross
examine any of the witnesses, if produced, pertaining to those
documents.
27. We may note here with profit that the aforesaid order
8
was not assailed by the Union of India and its functionaries.
28. We have referred to the earlier order in extensor
despite the same having gone unchallenged, for it is submitted
by Mr. Kuhad, learned Additional Solicitor General, that the said
C order has to be understood in the backdrop of the fact situation.
There can be no trace of doubt that the tribunal had passed
directions to the limited extent, but it had specified the
documents and directed for full grant of opportunity to the
delinquent officer.
D
29. At this juncture, we may refer to the analysis made by
the tribunal in the impugned judgment while setting aside the
Additional COi. On a scrutiny of the impugned judgment of the
tribunal, four reasons. namely, (i) that though the tribunal vide
E its earlier judgment dated 8.1D.2010 had directed the witnesses
concerned with the annexures which were brought on record
before the COi were to be made available for cross-
examination, the said witnesses like the makers of the
documents XL! and XLIX were not made subject to cross-
examinatipn by the delinquen_t officer; (ii) that though the
F inclusi0n of the Presiding Officer in the COi had been objected
to on earlier oceasion, he was allowed to continue and was not
changed; (iii) that in spite of the TechniCal Members had
prepared and arranged the documents which would mean that
they had expressed an opinion at an earlier stage, yet they were
G retained as Members of the COi as a consequence of which
the principles of natural justice were violated, for one cannot
be the judge in his own cause; and (iv) that the doctrine of bias
comes into play as the Presiding Officer as well as the Technical
Members would have a tendency to support their own reports/
H documents and it is against the spirit of Rule 180. In essence,'
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 523
what has really weighed with the tribunal while passing the A
impugned order is that such members constituted the COi who
were biased or reasoned to be biased and such bias is
discernible. To appreciate the said facet of reasoning it is
necessary to understand when the doctrine of bias really comes
into play, for bias is an insegregable facet of the concept of B
natural justice as a genus. The fundamental principles of natural
justice are ingrained in the decision making process to prevent
miscarriage of justice. It is applicable to administrative enquiries
and administrative proceedings as has been held in A.K.
Kraipak v. Union of lndia 6 . It is also fundamental facet of c
principle of natural justice that in the case of quasi-judicial
proceeding the authority empowered to decide a dispute
between the contesting parties has to be free from bias. When
free from bias is mentioned, it means there should be absence
of conscious or unconscious prejudice to either of the parties
0
and the said principle has been laid down in Gul/apalli
Nageswara Rao v. Andhra Pradesh State Road Transport
Corporation and others7 , Gul/appalli Nageswarrao v. State of
A.P. and others8 and Dr. G. Sarana v. University of Lucknow
and others9 .
E
10
30. In Manak Lal v. Dr. Prem Chand Singhvi and others
the Court has stated thus: -
"It is well settled that every member of a tribunal that is
called upon to try issues in judicial or quasi-judicial F
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 in
G
6. (1969) 2 sec 262.
7. AIR 1959 SC 308.
8. AIR 1959 SC 1376.
9. (1976) 3 sec 585.
10. AIR 1957 SC 425. H
524 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B must not only be done but must also appear to be done."
31. In Dr. G. Sarana (supra). the learned Judges referred
to the Principles of Administrative Law by J.A.C. Griffith and
H. Street (Fourth Edition), and observed that the position with
regard to bias has been aptly and succinctly stated thus:
c
"The prohibition or bias strikes against factors which may
improperly influence a judge in deciding in favour of one
party. The first of the three disabling types of bias is bias
on the subject-matter. Only rarely will this bias invalidate
D proceedings. "A mere general interest in the general
object to be pursued would not disqualify," said Field J.,
. holding that a Magistrate who subscribed to the Royal
Society for the Prevention of Cruelty to Animals was not
thereby disabled from trying a charge b~ought by that body
E of cruelty to a horse. There must be some direct connection
with the litigation. If there is such prejudice on the subject-
matter that the court has reached fixed and unalterable
conclusions not founded on reason or understanding, so
that there is not a fair hearing, that is bias of which the
F courts will take account, as where a justice announced his
intention of convicting anyone coming before him on a
charge of supplying liquor after the permitted hours ...
Secondly, a pecuniary interest, however, slight will
disqualify, even though it is not proved that the decision is
G in any way affected.
The 'third type of bias is personal bias. A judge may be a
relative, friend or business associate of a party, or he may
be personally hostile as a result of events happening either
H before or during the course of a trial. The courts have not
UNION OF INDIA v. SANJAY JETHI [OIPAK MISRA, J.] 525
been consistent in laying down when bias of this type will A
invalidate a hearing. The House of Lords in Frame United
Breweries v. Bath Justices 11 approved an earlier test of
whether "there is a real likelih0ud of bias." The House of
Lords has since approved a dictum of Lord Hewart that
"justice should not only be done, but should manifestly and B
undoubted.ly be seen to be done" although it did not
mention another test suggested by him in the same
judgment: Nothing is to be done which creates even a
suspicion that there has been an improper ihterference
with the course of justice." c
32. Eventually in the said decision it has been ruled that
what has to be seen in a case where there is an allegation of
bias in respect of a member of an administrative board or body
is wheth.er there is a reasonable ground for believing that he
was likely to have been biased. In other words, whether there D
is substantial possibility of bias animating the mind of the
member against the aggrieved party.
33. At this juncture, we may refer with profit to Halsbury's
Laws of England, Fourth Edition, Volume 2, paragraph 551, E
where it has been observed: -
"The test for bias is whether a reasonable intelligent man,
fully appraised of all the circumstances, would feel a
serious apprehension of bias". 12
F
34. In Secretary to Government, Transport Deptt., Madras
v. Munuswamy Mudaliar and another13, while dealing with the
concept of bias as a part of natural Justice, the Court observed
that a predisposition to decide for or against one party, without
proper regard to the true merits of the dispute is bias. There G
must be reasonable apprehension of that predisposition. The
11. 1926 AC 586.
12. R v. Moore, ex parte Brooks (1969] 2 OR 677, 6 DLR (3d) 465.
13. 1988 (Supp) sec 651. H
526 SUPREME COURT REPORTS [2013] 16 S.C.R.
A reasonable apprehension must be based on cogent materials.
Needless to say, personal bias is one of the limbs of bias,
namely, pecuniary bias, personal bias and official bias.
35. In Kumaon Manda! Vikas Nigam Ltd. v. Girja Shankar
Pant and others14 , the Court referred to a passage from the
8
view expressed by Mathew, J. in S. Parthasarathi v. State of
Andhra Pradesh 15 : - ·
"16. The tests of 'real likelihood' and 'reasonable
suspicion' are really inconsistent with each other. We think
C that the reviewing authority must make a determination on
the basis of the whole evidence before it, whether a
reasonable man would in the circumstances infer that there
is real likelihood of bias. The court must look at the
impression which other people have. This follows from the
D principle that justice must not only be done but seen to be
done. If right-minded persons would think that there is real
likelihood of bias on the part of an inquiring officer, he must
not conduct the inquiry; nevertheless, there must be a real
likelihood of bias. Surmise or conjecture would not be
E enough. There must exist circumstances from which
reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent.
The court will not inquire whether he was really prejudiced.
If a reasonable man would think on the basis of the existing
F circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision [see per Lord Denning,
M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon 16 (WLR at p. 707]."
36. Thereafter, the two-Judge Bench referred to the
G decision in Franklin v. Minister of Town and Country Planning 17
and the sounding of a different note and the dilution of the
14. (2001) 1 sec 182.
15. (1974) 3 sec 459.
16. (1968) 3 WLR 694.
H 17 1948 AC 87.
UNION OF INDIA v: SANJAY JETHI [DIPAK MISRA, J.) 527
principle by English Courts in R. v. Bow Street Metropolitan A
Stipendiary Magistrate, ex pPinochet Ugarte (No. 2) 18 and ,the
view expressed by Lord Hutton in the said case and thereafter
proceeded to analyse the doctrine p; upounded in Locabail
[Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. 19 where the
Court of Appeal had upon detailed analysis of the decision in B
R. v. Gough 20 together with Dimes case21 , Pinochet case
(supra) as aiso Ebner, Re 22 . and the decision of the
Constitutional Court of South Africa in President of the
Republic of South Africa v. South African Rugby Football
Union 23 opined that it would be rather dangerous and futile to c
attempt to define or list the factors which may or may not give
rise to a real danger of bias. The learned Judges took note of
the fact that the Court of Appeal continued to give effect that
everything will depend upon facts which may include the nature
of the issue to be decided. Eventually, this Court ruled thus: - .
0
"The test, therefore, is as to whether a mere apprehension
of bias or there being a real danger of bias and it is on
this score that the surrounding circumstances must and
ought to be collated and necessary conclusion drawn
therefrom - in the event however the conclusion is E
otherwise inescapable that there is existing a real danger
of bias, the administrative action cannot be sustained: If
on the other hand,· the allegations pertaining to bias is
rather fanciful and otherwise to avoid a particular court,
Tribunal or authority, question of declaring them to be F
unsustainable would not arise. The requirement is
availability of positive and cogent evidence and it is in this
context that we do record our concurrence with the view
expressed by the Court of Appeal in Locabailcase."
18. (2000) 1 AC 119. G
19. 2000 QB 451.
20. 1993 AC 646.
21. 3 House of Lords Cases 759.
22. (1999) 161 ALR 55.
23. (1999) 4 SA 147. H
528 SUPREME COURT REPORTS [2013] 16 S.C.R.
A [Emphasis supplied)
37. In G.N. Nayak v. Goa University and others2 4 it has
been laid down that it is not every kind of bias which in law is
taken to vitiate an act. It must be a prejudice which is not
B founded on reason, and actuated by self-interest - whether
pecuniary or personal. Because of this element of personal
interest, bias is also seen as an extension of the principles of
natural justice that no man should be a judge in his own cause.
Being a state of mind, a bias is sometimes impossible to
determine. Therefore, the courts have evolved the principle that
C it is sufficient for a litigant to successfully impugn an action by
establishing a reasonable possibility of bias or proving
circumstances from which the operation of influences affecting
a fair assessment of the merits bf the case can be inferred.
D 38. In Delhi Financial Corpn. and another v. Rajiv Anand
and others, 25 while dealing with the concept of doctrine that "no
man can be a judge in his own cause", the Court opined that
the said principle can be applied only in two cases where the
person concerned has a personal interest or has himself
E already done some act or taken a decision in the matter
concerned. The Court further observed that an officer of a
statutory corporation has been appointed as an authority, does
not by itself bring the said doctrine into operation. The learned
Judges further proceeded to state that in individual cases bias
F may be shown against a particular person but in the absence
of any proof of personal bias or connection merely because
officers of a particular corporation are named as the authority
does not mean that those officers would be biased. Unless the
officer concerned is personally interested question of bias or
G conflict between his interest and his duty would not arise.
39. In Chandra Kumar Chopra v. Union of India and
24. (2002) 2 sec ?12.
H 25. (2004) 11 sec 625.
•
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 529
others2 6 it has been held that mere suspicion or apprehension A
is not good enough to entertain a plea of bias. It cannot be a
facet of one's imagination. It must be in accord with the
prudence of a reasonable man. The circumstances brought on
record should show that it can create an impression in the mind
of a reasonable man that there is real likelihood of bias. It is B
not to be forgotten that in a democratic polity, justice in its
conceptual eventuality and inherent quintessentiality forms the
bedrock of good governance. In a democratic system. that is
governed by the rule of law, fairness of action, propriety,
reasonability, institutional impeccability and non-biased justice c
delivery system constitute the pillqrs on which its survival
remains in continuum. The plea of bias it is to be scrutinised
on the basis of material brought on record whether someone
makes wild, irrelevant and imaginary allegations to frustrate a
trial or it is in consonance with the thinking of~ reasonable man 0
which can meet the test of real likelihood of bias. The principle
cannot be attracted in vacuum.
40. In State of Gujarat and another v. Justice R.A. Mehta
(Retired) and others, 27 a two-Judge Bench dealing with "bias"
has observed thus: - E·
"Bias is one of the limbs of natural justice. The doctrine of
bias emerges from the legal maxim nemo debet esse
judex in propria causa. It applies only when the interest
'
attributed to an individual is such so as to tempt him to F
make a decision in favour of, or to further his own cause.
There may not be a case of actual bias, or an
apprehension to the effect that the matter most certainly
will not be decided or dealt with impartially but where the1
circumstances are such so as to create a reasonable G
apprehension in the minds of others that there is &
likelihood of bias affecting the decision, the same is
sufficient to invoke the doctrine of bias."
26. (2012) 6 sec 369.
21. (2013) 3 sec 1. H
530 SUPREME COURT REPORTS [2013] 16 S.C.R.
A
41. In the said case, it has been further observed that in
the event that actual proof of prejudice is available, the same
will naturally make the case of a party much stronger, but the
availability of such proof is not a necessary precondition, for
8 what is relevant, is actually the reasonableness of the
apprehension in this regard in the mind of such party. In case
such apprehension exists the trial/judgment/order, etc. would
stand vitiated for want of impartiality and such judgment/order
becomes a nullity. The trial becomes coram non Judice.
C 42. At this juncture, we think it apt to refer to the
pronouncements in Ranjit Thakur v. Union of India and
others26 and Major G. S. Sodhi v. Union of lndia 29 . In Ranjit
Thakurs case the Court was dealing with justifiability of an order
of dismissal passed by the summary court martial of which one
D of the members was the respondent No. 4 therein. The said
respondent had sentenced the appellant ~o suffer sentence of
28 days rigorous ·imp,isonment for violating the norms for
representation to higher authorities and the representation that
was sent to the higher authorities pertained to the ill-treatment
E at the hands of the respondent No. 4. Keeping the said factual
backdrop in view the Court referred to the procedural
safeguards provided under Section 130 of the Act and opined
that the proceedings of summary court martial was infirm in law.
Thereafter, the learned Judges proceeded to deal with the
F second limb of arguments also. It relate9 to bias on the part of
the respondent No. 4 therein. In that context, the Court observed
as follows: -
"16. It is the essence of a judgment that it is made after
due observance of the judicial process; that the court or
G tribunal passing it observes, at least the minimum
requirements of natural justice; is composed of impartial
28. (1987) 4 sec s11.
H 29. (1991) 2 sec 382.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 531
persons acting fairly and without bias and in good faith. A A
judgment which is the result of bias or want of impartiality
is a nullity and the trial "coram non-judice". ·(See
Vassi/iades v. Vassiliades 30 )" .
· 43. The Cou·rt referred to the decisions in Allinson v. B
General Council of Medical Education and Registratiori31 ,
Metropolitan Properties Co. -(F. G. C.) Ltd. v. Lannon 32, Public
Utilities Commission of the District of Columbia v. Pollak33
and Regina v. Liverpool City Justices, ex parte Topping 34 and,
eventually, conclud_ed that the inescapable conclusion was that C
the participation of respondent No. 4 had rendered the court-
martial proceedings coram non-judice.
44." In Major G. S. Sodhi (supra), the Court did not accept
the alleged plea of bias or mala fide as Lt. Col. S.K. Maini, who 0
had ordered summary of evidence against the petitioner therein,
was inimical towards him because of certain prior incidents. It
was also alleged that he had not acceded to certain requests
made by the petitioner during the inquiry. The Court did not
accept the same on the ground that the respondent Lt. Col. S.K.
Maini was only concerned with the preliminary inquiry and it was E
for the court martial to try the case and give its verdict and mere
)!legation of bias and mala fide against him did not affect the
court martial proceedings. That apart, the Court observed that
the allegations against the said Maini had not been really
!?Ubstantiated and even they are perceived from the point of F
view of the petitioner therein, it could not be held that it was
not reasonable on his part to apprehend that the said officer
would act in a biased and partisan manner. Emphasis .was laid
G
30. AIR 1945 PC 38.
31. (1894) 1 ps 750, 758-59 .
. 32. (1969) 1 QB 577, 599.
33. 343 US 451, 466-67 : 96 L ed 1068, 1079.
34. (1983) 1 WLR 119 : (1983) 1 ALL ER 490, 494. H
532 SUPREME COURT REPORTS [2013] 16 S.C.R.
A on the fact that he was only responsible for holding a preliminary
enquiry.
45. The principle that can be culled out from the number
of authorities fundamentally is that the question of bias would
arise depending on the facts and circumstances of the case. It
8
cannot be an imaginary one or come into existence by an
individual's perception based on figment of imagination. Whi!e
dealing with the plea of bias advanced by the delinquent officer
or an accused a court or tribunal is required to adopt a rational
approach keeping in view the basic concept of legitimacy of
C interdiction in such matters, for the challenge of bias, when
sustained, makes the whole proceeding or order a nullity, the
same being coram non-Judice. One has to keep oneself alive
to the relevant aspects while accepting the plea of bias. It is to
be kept in mind that what is relevant is actually the
D reasonableness of the apprehension in this regard in the mind
of such a party or an impression would go that the decision is
dented and affected by bias. To adjudge the attractability of plea
of bias a tribunal or a court is required to adopt a deliberative
and logical thinking based on the acceptable touchstone and
E parameters for testing such a plea and not to be guided or
moved by emotions or for that matter by one's individual
perception or misguided intuition.
46. Keeping in view the principles laid down in the
F aforesaid precedents and how this Court has understood and
dealt with the plea of bias, the case at hand is to be
appreciated in its factual backdrop whether there has been
"really likelihood of bias". In a COi participation of a delinquent
officer whose character or military reputation is likely to be
G affected is a categorical imperative. The participation has to
be meaningful, effective and he has to be afforded adequate
opportunity. It needs no special emphasis to state that Rule 180
is framed under the Army Act and it has the statutory colour and
flavour. It has the binding effect on the COi. The Rule provides
for procedural safeguards regard being had to the fact that a
H
UNION OF INDIA v. SANJAY JETH! [DIPAK MISRA, J.] 533
person whose character and military reputation is likely to be A
affected is in a position to offer his explanation and in the
ultimate eventuate may not be required to face disciplinary
action. Thus understood, the language employed in the Rule 1
180 lays postulates of a fair, just and reasonable delineation.
It is the duty of the authorities to ensure that there is proper B
notice to the person concerned and he is given opportunity to
cross-examine the witnesses and,· most importantly, nothing
should take place behind his back. It is one thing to say that
the COi may not always be essential or sine qua non for
initiation of a court martial but the another spectrum is once the c
authority has exercised the power to hold such an inquiry and
the COi has recommended for disciplinary action, then the
recommendation of the COi is subject to judicial review. While
exercising the power of judicial review it becomes obligatory
to see whether there has been due compliance of the stipulates
0
prescribed under the Rule, for the language employed in the
said Rule is absolutely clear and unambiguous. We may not
dwell upon the concept of "full opportunity" in detail. Suffice it
to say that one cannot stretch the s·aid concept at infinitum on
the bedrock of grant of opportunity and fair play. It has to be E
tested on the touchstone of fac.tual matrix of each case.
47. Coming to the case at hand, we are obliged to state
that initially the COi was constituted by three members by order
dated 22.7.2009 and it was asked to investigate certain
issues. The relevant part of the said order reads thus: - F
"(a) Pers involved incorrupt practice of submitting
inflated claims to PCDA in connivance with Tpt
Firms with Spl ref to Kaushik Tpt Pvt ltd.
(b) Hiring vehs of lower tonnage and submitting bills for G
hiring of higher tonnages.
(c) The misappropriation in dispatch of stores to Ord
Depot."
H
534 SUPREME COURT REPORTS (2013] 16 S.C.R.
A The composition of the Board of Officers were as under: -
(a) Presiding Offr Brig NS Ahamed, CSO, HQ
MG & G Area.
(b) Members 1. Col RV Desai, Jt. Dir DSC
B Mumbai Sub Area.
2. Lt. Col Sandeep Sinha,
OC 53 Coy ASC (Sup).
C 48. Thereafter, an amendment was brought regarding
composition of the COi vide order dated 28.7.2009. It reads
as follows: -
'The following amdts will be made in our above convening
order at Para 2: -
D
For Presiding Offr - Brig NS Ahamed, CSO,
HQ MG & G Area
Members 1. Col. RV Desai, Jt Dir
DSC Mumbai Sub Area
E
2. Lt Col Sandeep Sinha, OC 53 Coy ACS (Supply)
Read Presiding Offr - Brig NS Ahamed, CSO,
HQ MG & G Area
F Members 1. Col. RV Desai, Jt Dir
DSC Mumbai.Sub Area
2. Col RG Laxman, SO(ECHS) HQ Mumbai Sub Area
G Technical Members 1. Lt Col Sandeep Sinha
OC 53 Coy ASC (Supply)
2. Maj Sanjeev Narula,
Stn Wksp EME, Mumbai"
H
UNION OF INDIA v. SANJAY JETH! [OlPAK MISRA, J.] 535
49. It is submitted by Mr. Ku had, learned ASG, appearing A
for the appellants, that the Technical Members had only
compiled and collated the documents and for such an act they
cannot be disqualified to function as Members. It is also urged
by him that the said Members only signed the day-to-day
proceedings but were not signatories to the final report that was B
submitted through the officer who convened the COi. In this
context we may refer to what has been recorded on 11.2.2011
by the Additional COi: -
"In deference to 1 the directions given by Hon'ble Armed
Forces Tribunal Principal bench, New Delhi dated 08 Oct C
2010, the following exhibits namely exhibit XLIX, exhibit
LXIX, exhibit L, exhibit LXVlll, exhibit XXXV, exhibit XU,
exhibit LV, exhibit LXVI are available for perusal. It is
clarified that exhibit XLIX named as technical report
containing Appces A to M, the documents produced at the D
initial Court of Inquiry and which have already been
perused by all the witnesses under AR 180 and for easy
reference these documents have been compiled in one
place marked as Appces A to M of exhibit XLIX. The
balance of exhibit XLIX, the technical report forming part E
of Appces N to AB and extract to Appx N is the collation
of information in various formats as per headings given in
these Appces from the information available in the Appces
A to M of exhibits XLIX.
F
The court has -requested the convening authority HQ MG
& G Area to intimate details of documents, copies of Court
of Inquiry and exhibits handed over to the witnesses if any
during the interim period i.e. 06 Dec 2009 to 07 Feb 2011,
vide Presiding Officer HQ MG & G Area (Sigs) l~tter No. G
PC-0604/CHT/COD/Addl C of I dated 09 Feb 2011 a'nd
the letter is read over. The copy of the letter is attached
as exhibit 1."
50. It is not in dispute that the respondent No. 1 perused
all the documents and objected to the presence of the Technical H
536 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Members, namely, Lt. Col. Sandeep Sinha and Maj. Sanjeev
Narula in the Additional COi proceedings. On 17.2.2011 the
Additional COi clarified that Ext. XLIX comprised Of appendices
as brought about by the court at paragraph 5 of the Additional
COi proceedings dated 11.2.2011. At that juncture, the said
B respondent gave a list of his witnesses. On 24.2.2011 the
respondent No. 1 made a prayer to cross-examine the
Members of the COi but the said prayer was declined. It is
contended by Mr. Kuhad that neither the examination nor the
cross-examination of the Presiding Officer and the Members
c of the COi can be spelt out from the language of Rule 180 as
they are not witnesses. We find force in the said submission
of the learned senior counsel and hold that neither the Presiding
Officer nor the Technical Members of the COi could be made
available for cross-examination before the COi.
D 51. The core of controversy, as we notice, is the inclusion
of the Technical Members and the Presiding Officer in the COi.
As has been state.d earlier, the respondent raised the plea of
bias against the Technical Members and had objected to the
inclusion of Brig. N.S. Ahamed as Presiding Officer. To
E appreciate the fulcrum of the controversy, we are required to
see the role played by the Technical Members at an earlier
stage, for it was repeatedly stated before us that they had only
compiled the documents. A mere compilation or pagination or
for that matter an arrangement of documents may not be an act
F to compel someone from recusing from a case. He may not
be disqualified to be a part of a COi. But on a perusal of the
Ext. XLIX we find that it is a "Technical Report" prepared by the
two Technical Members. At the beginning it has been stated
"Technical Report : Staff C of I". Thereafter it has been
G mentioned therein that documents in custody of the court were
perused for arriving at the technical inputs. The Members have
listed the important documents, stated about the methodology
they were going to adopt and have given the input which have
been brought on record as appendices 'N' to 'Z'. After giving
H the inputs the members have given their observations stating
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 537
that during the course of scrutiny of documents they hav~ A
observed many financial irregularities. The observations are
from paragraph 5(a) to (m). Para 6 deals with inferences and
describes the part, namely, "Anomaly along with Inference". The
same includes (a) variation between Tonnage mentioned in
gate register and bills, (b) variation of CHT Tonnage between B
Traffic Branch Office copy of consignment note (Bilti) and Bills
with financial loss, (c) transshipment details as per office copy
of Convoy Note in Traffic Branch and receipted copies of
Convoy Note and input, from Consignee Units, (d) Same CHT
billed for different tonnages with financial loss, (e) same CHT c
being hired within close period, (f) variation in billed tonnage
of CHTs vis-a-vis actual tonnage as per list given by Kaushik
Transport with tender documents with financial loss, (g) CHT
billed but date record at variance in Gate Register with respect
to reporting and utilization of vehicle note, (h) dispatch to same 0
places in consecutive days amounting to splitting of transaction,
(i) variation between actual utilization and the CFA sanction,
and(k) preliminary inquiry at COD Malad. On a bare perusal of
the same one can easily say that the Technical Members have
expressed their opinion after analysis of the documents. They E
have, in detail, scrutinized the documents, drawn their
inferences and made their observations. This document has
been marked as Ext. XLIX. By no stretc:;h of imagination it can
be said that it is an arrangement of documents or pagination
of documents. True it is, they are not the authors of the original
documents but their analysis and inference have been used F
against the respondent in the earlier COi and in the Additional
COi. It cannot be brushed aside by saying that Technical
Members did not sign the final report. Once they have given
an opinion, the possibility to support the same cannot be totally
discarded. That is where the real likelihood of bias comes into G
play. As has been stated in number of authorities which we
have reproduced hereinbefore if one has something substantial,
relevant or material to do with the case he is disqualified. In
the case at hand, we find that the Technical Members had
compiled the documents, adopted the methodology, made H
538 SUPREME COURT REPORTS [2013] 16 S.C.R.
A observations, drawn inferences and expressed the view and,
above all, they had prepared the report which has been brought
on record as a document. To say, they had not played any role
would tantamount to blinking at reality. In our considered view,
their inclusion as the Technical Members is not legally
B permissible. It is so as the said respondent is bound to be
prejudiced. In this context, we may reproduce a passage from
State v. N.S. Gnaneswaran 35 :
"12. The issue also requires to be examined on the
touchstone of doctrine of prejudice. Thus, unless in a given
c situation, the aggrieved makes out a case of prejudice or
injustice, some infraction of law would not vitiate the order/
enquiry/result. In judging a question of prejudice, the
court must act with a broad vision and took to the
substance and not to technicalities. (Vide: Jankinath
D Sarangi i/. State of Orissa 36 , State of U.P. v. Shatrughan
L.a/3 7 , State of A.P. v. Thakkidiram Reddy38 and Debotosh
Pal Choudhury v. Punjab National Bank39 .)"
52. Even applying the rigorous substantive test, we find that
E a case of prejudice comes fnto full play in the case at hand.
53. Presently we shall advert to the inclusion of Brig. N.S.
°Ahamed. In the earlier order dated 8.10.2010 the tribunal had
referred to Ext. XU to be made available to the respondent. The
F learned senior counsel for the appellants has filed the Ext. XU
befom us. The same has be~n prepared by the Presiding
Officer. It reads as follows: -
"On sample perusal of file No. 2751 IGen/18/ Cont of
Central Ordnance Depot, Mumbai, it is observed by the
G
35. (2013) 3 sec 594.
36. (1969) 3 sec 392.
37. (1998) 6 sec 651.
38. c1 !198) 6 sec 554.
H 39. c2002) 8 sec 68.
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 539
Court that recommended distribution of stores has been A
fwd to DGOS by Central Ordnance Depot, Mumbai. The
approval is accorded by DGOS which may or may not be
the same as recommended by Central Ordnance Depot,
Mumbai. A photocopy of Central Ordnance Depot letter
No. 2754/Gen/Cont. Dt. 04 Aug 2008 found from OGOS B
and approval letter of the same IHQ. MOD, MGO letter No.
PC 2 to 13357/R1 001519/ Fin/OS-46 dt. 06Aug 09, this
approval is only for issue of items and not dispatch is
enclosed as Exhibit XU."
54. To.the said observation/report two letters have been
c
annexed - one written by Rishab Paliwal, Capt., Control Officer,
for Commandant, and another by P. Krishna Kumar, SCSO, Jt
Dir OS-4E, for Dir Gen Ord Services. On a scrutiny of the same
it cannot be said that it pertained to the proceedings before
the COi. In fact, on earlier occasion the tribunal had taken D
exception to the fact that the said documents were not given
to the 1st respondent. No doubt, thereafter he had been
allowed to peruse the same but he is entitled to explain the
same, more so, when a view has been expressed in the
document. Mr. Kuhad would contend that the Summary of E
Evidence had commenced and a number of witnesses,
including the Technical Members, have been examined and
they have also been cross_-examined by the· 1st respondent. Be
it noted, this Court, while issuing notice and directing stay of
.the proceedings of the order passed by the tribunal had F
permitted the appellants to proceed and further proceedings
were made subject to the result of the final decision· of the
appeal. We are compelled to repeat here that once a COi has
been constituted to inquire· into the allegations relating to a
person's character and military reputation subject to the Act it G
should not be done by the persons who have expressed their
views in writing behind the back of the person and assume the
role of the recommending authority which is statutory in nature
to take disciplinary action. Law does not countenance the
same. In the present case it is irrefragably clear that the H
540 SUPREME COURT REPORTS [2013] 16 S.C.R.
A recommendation of the COi was the sole basis on which the
disciplinary action has been initiated. Nothing else had come
on record as observed by the tribunal on earlier occasion as
well as by the impugned order and the said finding is
unassailable. That being the position, we find in fitness of things,
B the Presiding Officer should have recused himself to preside
over the COi. However, we must make it clear that on earlier
occasion the tribunal had not quashed the entire proceedings
and the same was not challenged by either of the parties.
Therefore, the Additional COi which has been directed by the
c tribunal by the impugned judgment, shall only function as an
Additional COi and deal with the documents which were
produced earlier before the tribunal in a tabular chart to which
we have referred to hereinbefore.
55. At this juncture, we think it is necessary to observe that
D the respondent No. 1 at one point of_ time had filed a long list
of witnesses. It is to be borne in mind that on the earlier
occasion the tribunal permitted for examination or cross-
examination of witnesses who had something to do with the
documents. The Additional COi shall keep that in view so that
E there is no procrastination of the proceedings at the behest of
the delinquent officer, for natural justice has also its own
limJtations. It can be allowed to· become an unruly horse.
56. Before parting with the case, we think and we are
F constrained to think that we should say something about the
order of the tribunal. ·section 14 of th~ Armed .Forces Tribunal
Act, 2007 occurs in Chapter Ill of the said Act and deals with
jurisdiction,. powers and au-thority of the tr~bunal ·in service
matters. Under sub-section (5) of Section 14 the tribunal is
G required to decide both questions of law and facts that may be
raised before it. The respondent had approached the tribunal
under Section 14 of the said Act. In the Statement of Objects
and Reasons it has been spelt out for constituting an Armed
Forces Tribunal for adjudication of complaints and disputes
regarding sef"Vice matters and appeals arising out of the
H
UNION OF INDIA v. SANJAY JETHI [DIPAK MISRA, J.] 541
verdicts of the court martial to provide for quicker and less A
expensive justice to the members of the said armed forces of
the Union. The Preamble of the Act provides for adjudication
or trial by the tribunal of justice anu compliance in respect of
many a matter. As we find the tribunal has been conferred
powers to deal with the cases in promptitude. Promptitude B
does not ostracize or drives away the apposite exposition of
facts and necessary ratiocination. A seemly depiction of factual
score, succinct analysis of facts and law, pertinent and cogent
reasoning in support of the view expressed having due regard
to the rational methodology, in our considered opinion, are c
imperative. We have said so as we find that the tribunal by the
impugned order has not adverted to the necessitous facts. We
say so despite sustaining the verdict.
57. Ex consequenti, the appeal, being sans merit, stands
dismissed
'
leaving the parties to bear' their own costs.
/
D
Bibhuti Bhushan Bose Appeal dismissed.
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