Case Summary
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Full Case Details
The appellant was an employee of Braithwaite and Company Limited, Calcutta, a
Government of India undertaking (“the Company”). Certain misconduct committed by the
appellant came to the notice of the Company about which it decided to initiate disciplinary
proceedings against the appellant. The appellant was served with a charge-sheet to which he
gave an explanation. An Inquiry Committee constituted for that purpose after making an
enquiry, found the charges leveled against the appellant proved. The Inquiry Committee
accordingly submitted its report to the disciplinary authority. The disciplinary authority, who
was the then Chairman-cum-Managing Director of the Company accepted the report
submitted by the Inquiry Committee and he, by order dated 13-2-1984, removed the appellant
from service.
The appellant preferred an appeal against the order of his removal from service before the
Board of Directors as permitted under rules. It was un-disputed that S. Krishnaswami,
Chairman-cum-Managing Director of the Company and who, in his capacity as the
disciplinary authority, had removed the appellant from service presided over and participated
in the deliberations of the meeting of the Board. The Board by order dated 31-8-1984,
dismissed the appeal filed by the appellant by a non-speaking order.
V.N. KHARE, J. – 5. One of the arguments raised by Shri P.P. Rao, learned Senior Counsel
appearing on behalf of the appellant, is that the order of removal having been passed by the
disciplinary authority – Shri S. Krishnaswami, who was then the Chairman-cum-Managing
Director of the Company, was disqualified to have presided over and participated in the
deliberations of the meeting of the Board which heard and dismissed the appeal and,
therefore, the order of the Appellate Authority was vitiated on account of legal bias. We find
substance in the argument. It is not disputed that Shri S. Krishnaswami was then the
Chairman-cum-Managing Director of the Company. It is also not disputed that Shri
Krishnaswami was also the disciplinary authority who passed the order of removal against the
appellant. The question, therefore, arises whether the proceedings of the Board were vitiated
on account of participation of the disciplinary authority while deciding the appeal preferred
by the appellant.
- One of the principles of natural justice is that no person shall be a judge in his own
cause or the adjudicating authority must be impartial and must act without any kind of bias.
The said rule against bias has its origin from the maxim known as nemo debet esse judex in
propria causa, which is based on the principle that justice not only be done but should
manifestly be seen to be done. This could be possible only when a Judge or an adjudicating
authority decides the matter impartially and without carrying any kind of bias. Bias may be of
different kinds and forms. It may be pecuniary, personal or there may be bias as to the
subject-matter etc. In the present case, we are not concerned with any of the aforesaid forms
of bias. What we are concerned with in the present case is whether an authority can sit in
appeal against its own order passed in the capacity of disciplinary authority. In the present
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case, the subject-matter of appeal before the Board was whether the order of removal passed
by the disciplinary authority was in conformity with law. It is not disputed that Shri S.
Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a
disciplinary authority as well as an Appellate Authority when he presided over and
participated in the deliberations of the meeting of the Board while deciding the appeal of the
appellant. Such a dual function is not permissible on account of established rule against bias.
In a situation where such a dual function is discharged by one and the same authority, unless
permitted by an act of legislation or statutory provision, the same would be contrary to rule
against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal
against his own decision, as he already prejudged the matter otherwise such an appeal would
be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in
futility. In that view of the matter, in the present case, fair play demanded that Shri
Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have
participated in the deliberations of the meeting of the Board when the Board heard and
decided the appeal of the appellant. - Learned counsel appearing for the respondent, however, pressed into service the
“doctrine of necessity” in support of his contention. He contended that the rule against bias is
not available when, under the Regulations framed by the Company, the disciplinary authority
who happened to be the Chairman-cum-Managing Director of the Company was required to
preside over the meeting of the Board and, therefore, the then Chairman-cum-Managing
Director of the Company was not disqualified to preside over and participate in the meeting of
the Board which dismissed the appeal of the appellant. We find no merit in the argument.
Rule 3(d) of the Company’s Conduct, Discipline and Appeal Rules (“CDAR”) defines
“Board” in the following terms:
“Board means the proprietors of the Company and includes, in relation to
exercise of powers, any committee of the Board/management or any officer of the
Company to whom the Board delegates any of its powers.” - In view of the aforesaid definition of the expression “Board”, the Board could have
constituted a committee of the Board/management or any officers of the Company by
excluding the Chairman-cum-Managing Director of the Company and delegated any of its
powers, including the appellate power, to such a committee to eliminate any allegation of bias
against such an Appellate Authority. It is, therefore, not correct to contend that the rule
against bias is not available in the present case in view of the “doctrine of necessity”. We are,
therefore, of the view that reliance on the doctrine of necessity in the present case is totally
misplaced. - For the reasons stated hereinbefore, we find that the appeal deserves to succeed.
Accordingly, the order and judgment under challenge as well as the order passed by the
Appellate Authority are set aside and the matter is sent back to the Appellate Authority to
decide the appeal by a speaking order, in accordance with law. The appeal is allowed.
If a person had waived his right to challenge a selection on the ground of bias, he cannot
subsequently challenge the same – G. Sarna v. University of Lucknow (1976) 3 SCC 585.
