GUJARAT NATIONAL LAW UNIVERSITY

AMARNATH CHOWDHURY
v. BRAITHWAITE & CO.
LTD. & Ors.
A CASE STUDY
BY:
SRINJOY BHATTACHARYA
nd
2 Year, Gujarat National Law University
Registration Number 11B149
 INDEX
1. INTRODUCTION- Pg 1-10
1.1 RULE AGAINST BIAS(NEMO JUDEX IN CAUSA SUA)-Pg 2
1.1.1. TYPES OF BIAS-Pg 4
1.1.2. TESTS OF BIAS- Pg 5
1.1.2.1 DIFFERENTIATION BETWEEN THE TESTS- Pg 8

1.1.3. EXCEPTIONS TO THE RULE AGAINST BIAS-Pg 10

2. AMARNATH CHOUDHARY v. BRAITHWAITE & CO. LTD. & Ors.- Pg 11-15

2.1 FACTS OF THE CASE- Pg 11

2.2 FINDINGS AND DECISION OF THE SUPREME COURT- Pg 12

2.3 PERSONAL VIEWS ON THE JUDGEMENT- Pg 14

3. CONCLUSION- Pg 16

2
 1) INTRODUCTION
The Principles of Natural Justice (PNJ) form the cornerstone of administrative law in India, in
specific, and across existing legal systems in countries across the world, in general. In India,
there has been no statutory limit that has been set within which the administrative agencies are
supposed to exercise their decision making powers. This limit has been set by the Indian
judiciary through various decisions over the years, through application of the PNJ.

Simply put, PNJ entails fairness, equity and equality. In a welfare state like India, the role and
jurisdiction of the administrative agencies are increasing manifold with the passage of time. The
concept of Rule of Law would lose its validity if the instrumentalities of the state are not charged
with the duty of discharging these functions in a fair and just manner.

In India, the PNJ are firmly enshrined in Article 14 and Article 21 of the Constitution. With the
introduction of the concept of “substantive and procedural due process” within the ambit of
Article 211, all that entails fairness with the boundaries of PNJ can be read into Article 21. The
violation of the PNJ would lead to arbitrariness and thus, would be a violation of Article 14 of
the Indian Constitution2.

In the case of A.K. Kraipak v. Union of India 3, the Supreme Court of India held that the PNJ can
also be applied to administrative proceedings. The concept of natural justice in itself is meant to
prevent the miscarriage of justice and entails the following:

i) No one shall be a judge in his own cause (nemo judex in causa sua) or the Rule
against bias;
ii) No decision shall be given against a person without affording him reasonable hearing-
(audi alteram partem).

Thus, as can be seen from the above decision of the Supreme Court, the PNJ entails two basic
principles. With regard to the case at hand, an analysis of the first principle i.e., the Rule Against
Bias is pertinent.

1.1) RULE AGAINST BIAS (NEMO JUDEX IN CAUSA SUA)

According to the Black‟s Law Dictionary, bias is defined as an “Inclination; bent; prepossession:
a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which
does not leave the mind perfectly open to conviction.”4

1
Union of India v. R. Gandhi, (2010) 6 SCR 857
2
E.P. Royappa v. State of Tamil Nadu, 1974 SCR (2) 348
3
AIR 1970 SC 2042
4
http://theblackslawdictionary.org/bias/; Last visited on 30th March, 2013.
3
In general legal usage, bias means an operative prejudice, whether conscious or unconscious
with regard to a party or an issue. The Rule against Bias flows from the following two principles:

i) No one should be a judge in his own cause

ii) “Justice should not only be done but manifestly and undoubtedly be seen to be done”-
Lord Hewart, the Lord Chief Justice of England and Wales.5

The essence of this principle is to ensure impartiality in decision making. Without impartiality,
public confidence cannot be maintained in the legal system. A lack of impartiality would result
in loss of nobility of the legal system and would ensure chaos. Lord Denning observed in
Metropolitan Properties Co. (F.G.C.) Ltd. V. Lannon 6: “Justice must be rooted in confidence
and confidence is destroyed when right-minded people go away thinking: 'The judge was
biased.'"
However, impartiality of the judge is not required in isolation. In addition, it is required that the
judge is in a position to apply his mind objectively to the dispute before him. The Rule against
Bias, thus, has two main aspects:

i) The administrator exercising adjudicatory powers must not have any personal or
proprietary interest in the outcome of the proceedings.
ii) There must be real likelihood of bias. Real likelihood of bias is a subjective term,
which means either actual bias or a reasonable suspicion of bias. It is difficult
to prove the state of mind of a person. Therefore, what the courts see is whether
there is reasonable ground for believing that the deciding factor was likely to
have been biased.

Where a person, who discharges a quasi-judicial function, has, by his conduct, shown that he is
interested, or appears to be interested, that will disentitle him from acting in that capacity. In this
regard the Supreme Court pointed out that one of the fundamental principles of natural justice is
that in case of quasi-judicial proceedings, the authority, empowered to decide the dispute
between opposing parties must be one without bias, by which is meant an operative prejudice,
whether conscious or unconscious towards one side or the other in the dispute.7

At this juncture, it is imperative to differentiate between malafide and bias. In case of mala fide,
Courts insist on proof of mala fide while as in case of bias, proof of actual bias is not necessary.
What is necessary is that there was “real likelihood” of bias and the test is that of a reasonable
man. Professor M.P. Jain puts it in the following words:
“The reason underlying this rule is that bias being a mental condition there are serious
difficulties in the path of proving on a balance of probabilities that a person required to act
judicially was in fact biased. Bias is the result of an attitude of mind leading to a predisposition
towards an issue. Bias may arise unconsciously. It is not necessary to prove existence of bias in

5
R v. Sussex Judges, Ex Parte McCarthy [1924] 1 K.B. 256 at 259
6
[1969] 1 Q.B. 577
7
Wade, “Administrative Law” , Page 311, 1982 Edition.
4
fact, what is necessary is to apply the test what will reasonable person think about the matter?
Further, justice should not only be done but seem to be done. Therefore, the existence of actual
bias is irrelevant. What is relevant is the impression which a reasonable man has of the
administration of justice.”8

Griffith and Street comment on the English position with regard to the same in their book,
“Principles of Administrative Law”. According to them, Rule of bias is only a principle of
judicial conduct and is imposed strictly on the exercise of the judicial or quasi- judicial
authorities. In the matters of sole discretion of the authority or in the matters depending upon the
subjective satisfaction of the authority concerned, the Court will not issue any order on the
ground of bias for quashing it. The search for mala fide intention and scrutinizing the honest
intention of the administrative authorities have always been subject-matter of judicial review by
the English Courts.9

1.1.1) TYPES OF BIAS

Bias can take the following forms:

I) PECUNIARY BIAS: Judicial approach is unanimous and decisive on the point that
any financial interest, howsoever, small it may be, would vitiate administrative
action. The disqualification will not be avoided by non-participation of the biased
member in the proceeding if he was present when the decision was
reached.10 However, the rule against bias will not be applied where the judge though
having a financial interest, has no financial interest in the outcome of the case.11
II) PERSONAL BIAS: Personal bias arises from a certain relationship equation between
the deciding authority and the parties which incline him unfavourably or otherwise on
the side of one of the parties before him. Such equation may develop out of varied
forms of personal or professional hostility or friendship. However, no exhaustive list
is possible.12
III) SUBJECT MATTER BIAS: Those cases fall within this category where the deciding
officer is directly, or otherwise, involved in the subject matter of the case. Here again
mere involvement would not vitiate the administrative action unless there is a real
likelihood of bias.13
IV) DEPARTMENTAL BIAS/INSTITUTIONAL BIAS: The problem of departmental
bias is something which is inherent in the administrative process, and if it is not
effectively checked, it may neglect the very concept of fairness in the administrative

8
M.P. Jain “ Evolving Indian administrative Law”, p. 78.
9
Griffith and Street, “Principles of Administrative Law”, Pg. 20.
10
R. v. Hendon Rural Distt. Council ex p. Chorley, (1933) 2 KB 696.
11
R. v. Mulvihill, (1990) 1 All ER 436.
12
Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719. The Supreme Court held that the
manager cannot conduct an enquiry against worker arising from an allegation that he had beaten
the Manager. In D.K.Khanna v. Union of India, AIR 1973 HP 30, the High Court quashed the
selection of he candidate where his son-in-law was a member of the Selection Committee.
13
R. v. Deal Justices ex p. Curling, (1881) 45 LT 439; Murlidhar v. Kadam Singh, AIR 1954 MP
111; Gullapalli Nageswara Rao v. APSRTC, AIR 1959 SC 308
5
 proceeding.14 The problem of departmental bias also arises in a different context –
where the functions of a judge and a prosecutor are combined in the same department.
It is not uncommon to find that the same department which initiates a matter also
decides it, therefore, at times, departmental fraternity and loyalty militates against the
very concept of fair hearing.15 However, where there is no such conflict between the
duty and interest of the department, concept of institutional bias cannot be narrowly
construed in view of compelling institutional constraints.16
V) PRECONCEIVED NOTION BIAS: Bias arising out of preconceived notions is a
very delicate problem of administrative law. On one hand, no judge as a human being
is expected to sit as a blank sheet of paper, on the other hand, preconceived notions
would vitiate a fair trial.17 However, the problem of bias arising from preconceived
notions may have to be disposed of as an inherent limitation of the administrative
process.
VI) BIAS ON ACCOUNT OF OBSTINACY: The Supreme Court18 has discovered a new
category of bias arising out of thoroughly unreasonable obstinacy. Obstinacy implies
unreasonable and unwavering persistence and the deciding officer would not take no
for no answer. This new category of bias was discovered in a situation where a judge
of the Calcutta High Court upheld his own judgment while sitting in an appeal against
his own judgment.

1.1.2) TESTS OF BIAS

The following tests are generally applied to test bias:

I) TEST OF REAL LIKELIHOOD OF BIAS OR REASONABLE SUSPICION OF

BIAS: Much confusion has been caused in the past by the concurrent use of two
differently formulated tests for disqualifying bias. Many judges have laid down and
applied the „real likelihood‟ formula, holding that the test for disqualification is
whether the facts, as assessed by the court, give rise to real likelihood of bias19; and
this test has naturally been emphasized in cases where allegation of bias was far-
fetched.20 Other judges have employed a „reasonable suspicion‟ test emphasizing that
justice must be seen to be done, and that no person should adjudicate in any way if it
might reasonably be thought that he ought not to act because of some personal

14
Gullapalli Nageswara Rao v. APSRTC, Id.
15
Hari v. Dy. Commr. Of Police, AIR 1956 SC 559
16
South Indian Cashew Factories Workers‟ Union v. Kerela State Cashew Development Corpn.
Ltd., (2006) 5 SCC 201
17
Govindaraju v. State of T.N., (1973) 1 SCC 336
18
THE TRIBUNE, May 18, 1998, at Pg.11
19
R. v. Rand, (1866) LR 1 QB 230; R v. Sutherland Justices, (1901) 2 KB 357; Hannam v.
Bradford Corporation, [1970] 1 WLR 937
20
R. v. Camborne Justices ex p. Pearce, [1955] 1 QB 41
6
 interest.21 In one case it was even said that the rule for judges of all kinds was that
they must be free from even unreasonable suspicion of bias.
In many cases, both the tests lead to the same result, since „likelihood‟ was given the
meaning of possibility rather than probability. For if there was no real possibility of
bias, no reasonable person would suspect it. But other judicial statements, more
naturally, equated „likelihood‟ with „probability‟22, so that the two tests became
different, and courts confronted with them felt obliged to elect between them.
In order to challenge administrative action successfully on the ground of personal
bias, it is essential to prove that there is a “reasonable suspicion of bias”23 or a “real
likelihood of bias”. The “reasonable suspicion” test looks mainly to outward
appearance, and the “real likelihood” test focuses on court‟s own evaluation of
possibilities; but in practice the tests have much in common with one another and in
the vast majority of cases they will lead to the same result.24 In this area of bias, the
real question is not whether a person was biased. It is difficult to prove the state of
mind of a person. Therefore, what the courts see is whether there is a reasonable
ground for believing that the deciding officer was likely to have been biased.

II) THE REASONABLE SUSPICION TEST: As the name of the reasonable suspicion
of bias test indicates, reasonableness plays a vital role in its application. The real
question regarding this test is whether it actually exists.
This test postulates that where the statements or actions or position of an adjudicator
causes necessarily a reasonable person25, not a fool26, nor a whimsical, capricious, or
morbid person27, to think that there is a real possibility of bias on his part for or
against a party in a particular case, he is disqualified from sitting.

21
R. v. Gaisford, [1892] 1 QB 381; Metropolitan Properties Co. (FCG) Ltd. .v Lannon, [1969] 1
QB 577
22
R v. Barnsley Licensing Justices ex p. Barnsley and District Licensed Victuallers‟ Association,
[1960] 2 QB 167
23
Metropolitan Properties Co. (FCG) Ltd. .v Lannon, supra note 27
24
I.P. Massey, Administrative Law, Pg.204, 2008 Edn.
25
Contrary to Lord Esher M.R.‟s suggestions in Eckersley v. Mersey Docks and Harbour Board,
[1894] 2 Q.B. 667 that one should consider the suspicions of “not necessarily reasonable
people”; criticized by Lord O‟ Brien C.J. in R. v. Cork Country Justices, [1910] 2 I.R. 271 as
being “loose expressions”.
26
Unlike that which Day J. in R. v. Taylor, ex p. Vogwill (1898) 14 T.L.R. 185 proscribed:
“Anything at any time which would make fools suspect.”
27
See R. v. Cork Country Justices, supra note 25.

7
 In the earlier days of rule against bias, the courts implicitly denied the existence of
reasonable suspicion test by relating non-pecuniary interest to only the real likelihood
test28 and the peculiar substantial interest doctrine.29
Even at that time, however, Lord Esher M.R. stated that the law required that an
adjudicator could not “reasonable be suspected of being biased”30; while Lopes L.J.
said that the test of bias was whether there was “any reasonable – any real or
substantial – ground for suspecting bias.”31This test secured the quashing of a
conviction for illegal salmon fishing in England when the presiding justices were
members of prosecuting association.32 It was also applied on other occasions in
England and Australia.33
This test enjoyed a major break-through in R. v. Sussex Justices ex. p. McCarthy. In
this case Lord Hewart C.J. laid down that “it is not merely of some importance but it
is of fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done.” Adding that nothing should be done
which created “even a
suspicion” of improper interference with justice, Lord Hewart reinforced the
reasonable suspicion test.
In the three decades following this case, the test was employed in many other cases,
suppressing the decisions of valuation assessment committees and justices presiding
over family disputes in England, quashing the orders of magistrates making
unfortunate remarks in New Zealand and Australia and avoiding arbitration
awards in Australia. Moreover, this test was otherwise recognized.

III) THE REAL LIKELIHOOD TEST: Ever since English justices certified that a corporation, in
whose bonds their cestui qui trustees had invested, might appropriate a stream, and
Blackburn J. held that non-pecuniary interest had not been proved as there was no
“real likelihood” of bias34, no one has doubted the existence of the real likelihood of
bias test.
What has been queried, by Danckwerts L.J. for example, is this : “must there be a real
likelihood that the tribunal was biased, or is it sufficient that a reasonable person
would think that the tribunal might be biased?”35Those answered question are apt to
throw doubt on whether a court must apply the perception of a reasonable person in

28
R. v. Rand, supra note 19.
29
R. v. Henly, [1892] 1 Q.B. 504
30
Allinson v. General Medical Council, [1894] 1 Q.B. 750
31
Id.
32
R. v. Allan, (1864) 4 B.& S. 915
33
Law v. Chartered Institute of Patent Agents, [1919] 2 Ch. 276; R. v. Huggins, [1895] 1 Q.B.
563; Sharp v. Carey, (1897) 23 V.L.R, 248, F.S.C.
34
R v. Rand, supra note 19
35
Metropolitan Properties Co. Ltd. v. Lannon, supra note 22
8
 determining a real likelihood of bias. Likewise, Devlin L.J. persists that “ „real
likelihood‟ depends on the impression which the courts gets from
circumstances.”36 Noticeably he speaks of the impressions of “the court”, not of the
“reasonable person”, without stating what criteria the court would use in gaining its
impression.
Surely, when the founding fathers of the Commonwealth Bills of Rights guaranteed
to the individual the right to have his criminal charge and his civil rights or
obligations determined by an “independent and impartial”37tribunal, they doubtless
meant to secure freedom from bias as judged by the reasonable person.
Obviously the standard of a morbid person cannot be used. Nor, however, can one use
that of an irrepressible optimist, never accepting that “even when Man‟s passions are
noble they are too often diverted from their true course.”38Rather one agrees with
Lord Denning J.R. that a real likelihood bias exists when “a reasonable man would
think it likely or probable” that an adjudicator favoured one side unfairly. 39 So, too
Professor de Smith suggests that real likelihood “is based on the reasonable
apprehensions40of a reasonable man.”

1.1.2.1) DIFFERENTIATION BETWEEN THE TESTS

I) ABSENCE OF DIFFERENTIATION: Three reasons may be identified for absence for differentiation.
Firstly, so ling as the existence of reasonable suspicion test was denied, differentiation was
unimportant. Now that this test if flourishing, this differentiation is unavoidable. The second is
the conviction that “in the great majority of cases either test will lead to the same
result.”41[48] And, thirdly, there is little (if any) difference between the two tests.42 Also
according to Lord Widgery C.J. no good purpose would be served by attempting a
differentiation.43

But, on the other hand, it is inelegant to have two tests existing pari passu without an articulated
differentiation. Since, there are two tests, and tow formulations of one test, there must be some
real difference between them.

II)OUTWARD APPEARANCES: Professor de Smith suggests that “reasonable suspicion tests”

look mainly to outward appearances; “real likelihood tests” focus on the court‟s own evaluation

36
R. v. Barnsley Licensing Justices, supra note 28
37
Urias Forbes, Administrative Law in West Indies 21 I.C.L.Q. 95 (1972)
38
Sir Hugh Wooding, Law Reform Necessary in Trinidad and Tobago 9 CAN. B.J. 292 (1966)
39
Metropolitan Properties Co. Ltd. v. Lannon, supra note 22.
40
S.A. De Smith, Judicial Review of Administrative Action, Pg. 230, 3rd Edition 1973.
41
Turner v. Allison, [1971] N.Z.L.R. 833
42
Hannam v. Bradford Corporation, supra note 19
43
R. .v. Altrincham, ex p. Pennington, [1975] 1 Q.B. 549
9
of the probabilities.44If by the “court‟s own evaluation”, Professor de Smith means the judgment
of the court uninfluenced by that of a reasonable man, this conflicts with his opinion that real
likelihood is based on “the reasonable apprehensions of a reasonable man”.

Moreover, both the tests mainly look to the outward appearances. Lord Denning reaffirms the
principle because it emphasizes that real likelihood does not consider the mind of the
adjudicator”, so that even if he was as impartial as he could be, still his decision cannot stand if
“right-minded persons”, if his “good friends”, perceive a real likelihood of bias.45

The entirety of rule against bias must be concerned with the outward appearances because it is
never necessary to prove that an adjudicator has actually been biased.46

III)ACTUAL DIFFERENTIATION: Difference between the two tests is a reflection of the

nearness to which a given circumstance approximates to a concrete temptation to an adjudicator
to deviate from the path of impartiality in order to favour unfairly a party to or an interest in a
matter. Real likelihood ofa bias denoted the predominant probability of the risk of bias as
discerned by a reasonable person; whereas a reasonable suspicion of bias, connoting a less
commanding danger of bias than does a real likelihood, presents a substantial possibility of the
risk of bias as perceived by a reasonable person.

The courts almost invariably identify real likelihood with “probability”. But they very rarely
associate reasonable suspicion with possibility. And Professor de Smith defines real likelihood in
terms of both probabilities and possibilities.47

IV)DIFFERENTIATION IN THE INDIAN SCENARIO: In the case of S. Parthasarthi v. State

of A.P.48 , it was held that the tests of real likelihood of bias and reasonable suspicion of bias are
inconsistent with each other. The first test if preferable and surmise conjecture is not enough. In
case where there is real likelihood of bias the ultimate decision based on the report of the
Enquiry Officer will be quashed. The cumulative effect of following circumstances show bias:

(i) Repeated memorandums given by the authorities threatening disciplinary action.

(ii) Overlooking claim for promotion.

(iii) Making deduction from pay for absence which were restored by higher authorities.

44
Supra Note 40, at Pg. 231.
45
Metropolitan Properties Co. Ltd. v. Lannon, supra note 22
46
R. v. Edwards, (1922) 1 St.R. 36; Rexats Kudan v. Carty, (1933) 1 J.L.R. 99
47
Supra Note 40, at Pg 230
48
AIR 1973 SC 2701

10
(iv) Asking him to tale charge of weeding section and not giving facilities asked for.

(v) Sending a letter to hospital for mental diseases asking about the mentak condition of
the appellant and his refusal not to advise retrenchment on medical grounds and starting
disciplinary proceedings thereafter.

1.1.3) EXCEPTIONS TO THE RULE AGAINST BIAS

The following are the exceptions to the Rule against Bias:

I) DOCTRINE OF NECESSITY: This was the claim raised by the Respondents

in the given case.49 There are cases in which a disqualified adjudicator cannot
be replaced, as no one else is authorized to act. It has been observed that
"disqualification of an adjudicator will not be permitted to destroy the only
tribunal with power to act".50 In such cases, natural justice has to give way to
necessity in order to maintain the integrity of judicial and administrative
systems.51
This issue regarding necessity was raised in Dimes v. Grand Junction Canal
Proprietors.52 The Lord Chancellor had to sign an order for enrolment in
order to allow the appeal to proceed from the Vice-Chancellor to the House of
Lords. It was held that his shareholding in the canal company which barred
him from sitting in the appeal did not affect his power to enroll, as no one but
him had the authority to do so. It was mentioned this was allowed "for this
[was] a case of necessity, and where that occurs the objection of interest
cannot prevail".53
II) WAIVER: The court normally requests that an objection be taken as soon as
the prejudiced party has knowledge of the bias.54 If an objection is not raised
and proceedings are allowed to continue without disapproval, it will be held
that the party has waived its right to do so.55

49
2002 AIR 678
50
Geoffrey A. Flick (1979), Natural Justice: Principles and Applications, London: Butterworths,
pp. 138–139, ISBN 978-0-409-35260-3.
51
Great Charte v. Kennington (1795) 2 Str. 1173, 93 E.R. 1107
52
(1852) 3 H.L. Cas. 759, 10 E.R. 301, House Of Lords, UK.
53
Allison v. General Council of Medical Education and Registration [1894] 1 Q.B. 750, C.A.
(England & Wales).
54
Wakefield Local Board of Health v. West Riding and Grimsby Rly. Co. (1865) L.R. 1 Q.B. 84,
H.C. (Q.B.) (England & Wales).

11
 2) AMAR NATH CHOWDHURY v. BRAITHWAITE & CO. LTD. &
Ors.56

2.1) FACTS OF THE CASE

 Amarnath Choudhary(hereinafter referred to as the Appellant) was an employee of
Braithwaite & Co. Ltd.(hereinafter referred to as the Company), a Calcutta-based
Government of India undertaking.
 A certain misconduct committed by the Appellant came to the notice of the Company.
Pursuant to the same, the Company decided to institute disciplinary proceedings against
the Appellant. He was served with a show-cause notice, to which he was to reply.
 An Inquiry Committee was set up for the purpose of an Enquiry with respect to the issue.
After perusing the necessary evidences, it found that the charges leveled against the
appellant proved. The Inquiry Committee accordingly forwarded its findings in the form
of a report to the Disciplinary Authority.
 The Disciplinary Authority, who was the Chairman-cum-Managing Director of the
Company, Shri S. Krishnaswami, accepted the report submitted by the Inquiry
Committee, and consequently dismissed the Appellant from service vide an Order dated
13.02.1984.
 Under the regulations framed by the Company, an appeal against an order of the
Disciplinary Committee lies with the Board of Directors of the Company. The Appellant
accordingly preferred an appeal against the decision of the Disciplinary Committee to the
Board Of Directors.
 It was found that the Chairman-Cum-Managing Director, Shri S. Krishnaswami, the
Disciplinary Authority, was also a member of the Board of Directors of the Company. It
was he who presided over the meeting of the Board when the matter at hand came before
it in the form of appeal. The Board ,vide a non-speaking Order dated 31.08.1984,
dismissed the appeal and upheld the order of the Appellant Authority.
 Aggrieved by the decision, the Appellant filed a writ petition under Article 226 of the
Constitution of India. The Learned Single Bench, after having perused the matter, found a
discrepancy in the proceedings and set aside the order of removal passed against the
Appellant.
 The Company, in turn, filed a Letters Patent Appeal before a Division Bench of the
Calcutta High Court against the decision of the Learned Single Judge. The Division
Bench found the order and judgment of the Learned Single Bench to be erroneous and
with that in mind, the order passed by the Learned Single Bench was set aside and the
writ petition filed by the Appellant under Article 226 of the Constitution was dismissed.

56
2002 AIR 678
12
 The Appellant subsequently preferred an appeal against this order and judgement of the
Division Bench of the Calcutta High Court, before the Supreme Court of India. He filed a
Special Leave Petition under Article 136 of the Constitution of India, which was allowed
by the Hon‟ble SC.
2.2) FINDINGS AND DECISION OF THE SUPREME COURT

 The matter came up for hearing before the Hon‟ble Division Bench of the Supreme Court
consisting of Justice V.N. Khare and Justice Ashok Bhan.
 The Bench admitted Special Leave Petition filed by the appellant, from which the appeal
arose and passed the following interim order: "Issue notice confined to the question as to
why the case may not be remanded to the appellate authority."
 In the subsequent hearings, P.P Rao, the learned Senior counsel appearing on behalf of
the Appellant, argued that Shri S. Krishnaswami, the Chairman-cum-Managing Director
of the was functioning as the quasi-judicial authority at two levels-first at the initial stage
as the Disciplinary Authority which passed the order of removal of the Appellant from
service and second, at the appellate level, where he, in his capacity as a member of the
Board of Directors, presided over the matter and dismissed the appeal. The order of the
Appellate Authority passed on 31.08.1984, thus, stood vitiated on the ground of legal
bias.
 The Bench accepted the arguments advanced by Shri Rao as his claims were supported
by undisputed facts- that Shri Krishnaswami, the Chairman-cum-Managing Director of
the Company, was the first Disciplinary Authority who passed the order of removal
against the Appellant and that he was also a part of the Board of Directors, the first
Appellate authority in all such matters as per the Rules of the Company, which dismissed
the appeal of the Appellant. The question, therefore, arose was whether the proceedings
of the Board was vitiated on account of participation of the Disciplinary Authority while
deciding the appeal preferred by the appellant.
 The Hon‟ble Bench of the Supreme Court, in its judgement, stated that one of the
Principles of Natural Justice required that no person should be a judge in his own cause.
In other words, it is required that the adjudicating authority, while excercising his
functions in this regard, must act impartially without any preconceived notion or bias
regarding the issue at hand. This rule had its origin in the maxim “Debet esse Judex in
Propria Causa”, which is based on the principle that justice should not only be done but
also seen to be done.
 The Bench further held that the above could only be achieved if the judge or the
adjudicating authority was functioning impartially, without any kind of bias. It went on to
classify three types of bias-i) pecuniary, ii) personal, or iii) with regard to subject matter.
It went on to hold that this matter did not pertain to any of the three forms of bias
mentioned above. The question in this case was whether an authority can sit in appeal
against its own order passed in the capacity of Disciplinary Authority.

13
  The Bench relied on the judgement of the Hon‟ble Supreme Court in the case of
Financial Commissioner (Taxation) Punjab & Ors. vs. Harbhajan Singh 57, where it held
that it was held that the Settlement Officer has no jurisdiction to sit over an appeal against
the order passed by him as an Appellate Authority.
 The Bench held that the dual functions performed by Shri S. Krishnaswami, the
Chairman-cum-Managing Director of the Company, were not permissible because of the
existing rule against bias. The same could only be allowed if there was a legislative or
statutory provision allowing the same. In its absence, such dual functioning would vitiate
the existing 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 the light of the above, the Hon‟ble Bench held that Shri S. Krishnaswami, the then
Chairman-cum-Managing Director of the Company, ought not to have participated in the
deliberations of the Board Of Directors functioning as the First Appellate Authority
before which a decision passed by him in his capacity as the Disciplinary Authority had
arrived for adjudication.
 The counsel for the Company(Respondents) argued that the Doctrine of Necessity could
be applied here. It was contended that the Rule against bias was not available when,
under the regulations framed by the Company, the Disciplinary Authority who happened
to be 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.
 The Hon‟ble Bench of the Supreme Court rejected this argument. It took the support of
Rule 3(d) of the Company‟s Conduct, Discipline and Appeal Rules, which stated as
follows: "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 above rule, the Bench opined that a Committee could have been
constituted consisting of Board members or other officers excluding the Chairman-cum-
Managing Director to stave off allegations of bias. Thus, the Doctrine of Necessity is
misplaced and does not apply to the given case.
 The Bench, thus, set aside the order and judgement in challenge along with order of the
Appellate Authority of the Company. It sent back the matter to the Appellate Authority to
be decided by it in accordance with law, by a speaking order.

57
1996 (9) SCC 281
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  It further ordered the Company not to take any steps to recover money paid to the
Appellant on his superannuation till the matter is finally decided by the Appellate
Authority.
 The appeal was thus admitted. The Bench decided against passing an order with regard to
costs.

2.3) PERSONAL VIEWS ON THE JUDGEMENT

The Hon‟ble Division Bench of the Supreme Court was completely justified in passing the above
order and giving the above judgement, which is well reasoned and concise.

The Bench rightly observed that the given case did not fall within the purview of the three
traditional forms of bias i.e., pecuniary, personal or with regard to subject matter, of which courts
across the world have traditionally taken cognizance. Instead, it recognized the question of law in
this case as to whether an authority can preside over an appeal against its own order passed in the
capacity of Disciplinary Authority. By doing so, the Court has not restricted the purview of bias
to only the three traditional forms and has instead paved the way for the Courts to take
cognizance of matters where any form of bias is caused or is likely to be cause, thus upholding
the essence of the PNJ.

The given case is clearly a case of pre-conceived notion bias. If one were to apply the test of
reasonable suspicion or apprehension of bias, this case would fit the mould. The Chairman-cum-
Managing Director of the Company, Shri S. Krishnaswami, first acted in his capacity as the
Disciplinary Authority and passed an order of removal of the Appellant. When the Appellant
preferred an appeal to the Board Of Directors, Shri Krishnaswami presided over the meeting in
his capacity as the Chairman-cum-Managing Director. This would undoubtedly raise a suspicion
or cause apprehension of bias in the minds of any reasonable person. That there might be a
certain pre-conceived notion in the mind of Shri Krishnaswami, who was performing dual
functions in this case, cannot be ignored. It would be a foolhardy to expect him, as an Appellate
Authority, to reverse an order passed by him in his capacity as Disciplinary Authority. If this
were to be allowed, the appeal preferred by the Appellant before the Board of Directors would be
an act in futility and would go against the Rule Against Bias. The Hon‟ble Bench of the Supreme
Court took due cognizance of the above principle and also took into consideration the principle
of “Debet esse Judex in Propria Causa”, according to which justice should not only be done but
also be seen to be done, and passed an order in favour of the Appellant. It relied on the case law
of Financial Commissioner (Taxation) Punjab & Ors. vs. Harbhajan Singh58, where the Supreme
Court held the Settlement Officer has no jurisdiction to sit over an appeal against the order
passed by him as an Appellate Authority.

58
1996 (9) SCC 281

15
The Hon‟ble Bench rightly held that Shri S. Krishnaswami ought not to have presided over an
appeal against an order passed by him in his capacity as the Disciplinary Authority, as it would
vitiate the entire purpose of the Appeal and go against Rule against Bias, a pillar of the PNJ. It
also correctly rejected the arguments of the Company which applied the Doctrine of Necessity,
which is an exception to the Rule against Bias. Rule 3(d) of the Company‟s Conduct, Discipline
and Appeal Rules clear provides for the formation of a committee with the sanction of the Board
Of Directors to remove any apprehension of bias that would arise. This was not done. Shri S.
Krishnaswami‟s dual functions was not backed by any statutory sanction. Thus, the argument
could not be accepted.

In its final order, the Hon‟ble Division Bench rightly remanded the matter to the Appellate
Authority within the Company to adjudicate the matter judiciously without any bias. It also
stressed on the necessity of a speaking order to be passed the Appellate Authority after it
concluded with proceedings. This was justified with a view to prevent arbitrariness, which goes
against the tenets of the Rule of Law. Thus, having done so, the Supreme Court of India
performed its role as the ultimate server of justice in the country, and were in total conformity
with principle of “Debet esse Judex in Propria Causa”-justice was not only done but seen to be
done.

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 3) CONCLUSION

The Rule against Bias is one of the basic tenets of the PNJ, which are the essence of any legal
proceedings at any level and have to be conformed with at any cost. The Supreme Court through
this judgement upheld the sanctity and supremacy of these principles through this judgement.

With regard to the Rule against Bias, every kind of preference is not sufficient to vitiate an
administrative action. If the preference is rational and unaccompanied by consideration of
rational interest, pecuniary or otherwise, it would not vitiate the decision. Similarly, there must
be a real likelihood and not a mere suspicion of bias, before the proceedings can quashed on the
ground of bias. There is, according to some authors, a thin line of difference between the two
tests i.e real likelihood of bias and reasonable suspicion of bias. But these tests yield the same
result when applied to particular situation. So, it can be said that these two tests are same in
effect. In the Indian circumstances also, the courts have no doubt applied these tests in various
cases. But they have been very cautious in its application. It is judged from a healthy, reasonable
and average point of view and not a mere apprehension and a vague suspicion of whimsical,
capricious and unreasonable people.59 The proper approach for a court in such cases is not look
inside its ownself and ask-Am I biased?-but to look into the mind of the party before it. The
court must look at the impression which would be given to the other party. Therefore the test is
not what actually happened but the substantial possibility of that which appeared to have
happened. As the justice is rooted in the minds of the people and it is destroyed when right
minded people go away thinking that the judge was biased.

59
PAUL CRAIG, ADMINISTRATIVE LAW 419 (6th ed., 2008)
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