Cantonment Executive Officer & ANR Vs. Vijay D. Wani & Ors  INSC 654 (16
A.K.MATHUR & LOKESHWAR SINGH PANTA REPORTABLE CIVIL APPEAL NO.18 OF 2007 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, 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 1st and 2nd Appellate authorities dated 8.7.1992 and
22.12.1994 and allowed the writ petition of the Vijay D. Wani
respondent(herein) and directed the Cantonment Board to reinstate the
petitioner (respondent herein) into service with 50% backwages and continuity
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
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 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 Scheme and also estimates for cables and
street lights at Price of Wales Drive. The respondent 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 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
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 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
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 accepted the
estimates prepared by the respondent when the estimates were 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 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 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 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 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 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 were inquiring against the
respondent and found him guilty were interested to see that their report should
be confirmed by the 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 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 gone through the
5. The question of a bias is always the question of fact.
The courts 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. 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 respondent(herein) guilty or
not. The very fact that these three 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 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 fair deal by such
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 entitled to a hearing by the Council. 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:
"Accordingly, the finding of the council holding the respondent members
guilty of misconduct was vitiated by the participation of the members of the
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 called upon to
try issue in judicial or quasi- judicial proceedings must be able to act
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 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 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 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."
Similarly, in the case of Pinochit Ugarta No.2, reported in 1999 (1) All ER
577 (HL), it was observed that a judge is 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. Braithwaite & Co. Ltd reported in 2002 (2)SCC 290 it was observed that
Managing Director dismissing an employee 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.
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 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
If, however, 'bias' and 'partiality' be defined to mean the total absence of
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 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 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 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
7. Therefore, the ratio of all these cases is that a person 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 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
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:
Baldev Singh v. Union of India & Ors. Reported in 2005(8)SCC 747.
India Literacy Board & Ors. V. Veena Chaturvedi & Ors. Reported
in 2005 (3) SCC 79.
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 did not arise as he was lawfully confined.
Therefore, this case is distinguishable.
In the case of India Literacy Board & Ors. (Supra), An SLP was filed
against the interim order and their Lordships held that no opinion need to be
expressed on merits of the rival contentions and directed the High Court to
hear the main writ 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 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 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 decided the matter on 10th 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.
10. The respondent be reinstated with the benefit of 50% back wages and
continuity of service.
11. No order as to costs.