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1983 DIGILAW 446 (ALL)

Mahesh Kumar v. State of U. P.

1983-07-13

GOPI NATH, K.N.SINGH

body1983
JUDGMENT K.N. Singh, J. - The petitioner is a member of the Indian Forest Service. In 1970, he was posted as Divisional Forest Officer, Haldwani Division,Haldwani from July 1970 to November 1970. N.P. Tripathi, at the relevant time, was posted as Conservator of Forests, Western Circle, which included Haldwani Division. He awarded adverse entry to the petitioner. The Chief Conservator of Forests, who was the reviewing authority, did not agree with the remark of the reporting officer but the State Government disagreed with the reviewing authority and approved the remark made by the reporting authority. Thereupon, the Chief Conservator of Forests communicated the adverse entry to the petitioner in March 1973. The petitioner made a representation to the State Government, which was rejected, and the Government decision was communicated to the petitioner under Government order dated 3.10.1975. The petitioner thereupon filed this writ petition under Article 226 of the Constitution challenging the Government order dated 7-8-1982 communicating the adverse entry as also the Government order dated 3-10-1975 rejecting the petitioner's representation. 2. The Central Government has, in exercise of powers conferred by the All India Services Act, 1951, framed rules regulating the recording and review of the entries in the character rolls, which are known as All India Services (Confidential Rolls) Rules, 1970. Rule 8 of the aforesaid Rules lays down that where a confidential report contains an adverse remark against a member of service, the same shall be communicated to him together with a substance of the entire confidential report. Rule 9 provides for representation to the Government against the remark communicated to the member of service within three months of the date of the communication of the remark. Rule 10 confers power on the State Government to consider the representation made against the adverse remark. It further provides that the Government shall, if it considers necessary, in consultation with the reporting authority or the reviewing authority, consider the representation made under Rule 9 by a member of the service and pass orders as far as possible within three months of the date of submission of the representation. It further provides that the Government shall, if it considers necessary, in consultation with the reporting authority or the reviewing authority, consider the representation made under Rule 9 by a member of the service and pass orders as far as possible within three months of the date of submission of the representation. The second proviso to Rule 10 lays down that the order accepting or rejecting the representation shall be passed only by an authority superior to the reviewing authority, and where the reporting authority or the reviewing authority is Minister, the said order shall be passed by the Council of Ministers or such committee thereof as may be constituted in this behalf by the Government. The second proviso indicates that while considering the representation of the -member of the service against the award of adverse remark, the State Government has to act in a fair manner, and it further provides that the representation should be considered by a higher authority, and if the adverse entry is awarded by a Minister, the representation against such entry should be considered by the council of Ministers or a committee thereof. The purpose of these rules is to ensure fair-play to the member of service in the matter relating to award of adverse entries. 3. It is urged on behalf of the petitioner that the order of the State Government rejecting the petitioner's representation is vitiated on the ground of bias. In support of this contention it is asserted that N.P. Tripathi, the then Conservator of Forests, who had awarded the adverse entry as reporting officer, was posted as Secretary to the Forest Department in the Government of Uttar Pradesh at the time petitioner made the representation, and he dealt with the petitioner's representation, and it was on his noting and report that the State Government rejected the petitioner's representation. These facts are not disputed. Instead, they are almost conceded as would be clear from a perusal of paragraphs 11(a) and 11(b) of the counter-affidavit filed by N.P. Tripathi. In the background of those facts it is submitted that the petitioner had made representation against the adverse remarks recorded by N.P. Tripathi,and he was the person who participated in the deliberations of the Government in rejecting the petitioner's representation. The participation of N.P. Tripathi was against the principles of natural justice which vitiated the Government's decision. In the background of those facts it is submitted that the petitioner had made representation against the adverse remarks recorded by N.P. Tripathi,and he was the person who participated in the deliberations of the Government in rejecting the petitioner's representation. The participation of N.P. Tripathi was against the principles of natural justice which vitiated the Government's decision. Learned Standing Counsel, on the other hand, urged that no doubt, N.P. Tripathi was the Secretary of the Forest Department at the relevant time and he had submitted his nothings on the petitioner's representation but he had not taken the final decision in the matter, instead the final decision in rejecting the representation had been taken by the Minister concerned, and therefore, the plea of bias has no substance. 4. Bias is a part of rule of natural justice. Rules of natural justice are of great significance, and the courts have applied the rules of natural justice in judging the validity of judicial and administrative acts. The rules of natural justice consist of three principles: (i) no one shall be judge in his own cause; (ii) no decision shall be given against a party without giving him opportunity of hearing; and (iii) decision must be taken in good faith without any bias. These principles have all along been applied to judicial as well as quasi-judicial tribunals, see State of U.P. v. Mohammad Nooh and Manak Lal v. Dr. Prem Chand. Rules of natural justice are not codified, and it is difficult to lay down positively the extent and scope of these rules. What particular rules of natural justice apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame- work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Suresh Koshy George v. University of Kerala. 5. Whenever a complaint is made before a Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a fair and just decision of that case. Suresh Koshy George v. University of Kerala. 5. Whenever a complaint is made before a Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a fair and just decision of that case. Though the rules of natural justice including the doctrine of bias were freely applied to the proceedings before Judicial and quasi-judicial Tribunals but a doubt existed about the application of those rules to administrative enquiries made by executive and administrative officers where the decision was not required to be given in a judicial or quasi-judicial manner. The doubt has, however, been resolved in favour of principles of natural justice by the Supreme Court in A.K. Kraipak v. Union of India, where it was held that arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry, and therefore there was no reason as to why the principles of natural justice could not be applicable to administrative enquiries. The Supreme Court observed: ....Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned if the purpose of the rules of natural justice is to prevent miscarriage of justice there is no reason why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which where considered administrative at one time are now being considered as quasi judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-raching effect than a decision in a quasi judicial enquiry." 6. In Dr. G. Sarana v. University of Lucknow and others the Supreme Court considered the application of principles of bias in the matter of selection of a teacher by the selection committee. An unjust decision in an administrative enquiry may have more far-raching effect than a decision in a quasi judicial enquiry." 6. In Dr. G. Sarana v. University of Lucknow and others the Supreme Court considered the application of principles of bias in the matter of selection of a teacher by the selection committee. The Supreme Court approved the principles laid down in A.K. Kraipak's case(supra) and further held that principles of natural justice are also applicable to domestic enquiries and administrative proceedings. 7. When the Government considers a representation by a member of All India Service under Rule 9 of All India Services (Confidential Rolls) Rules, 1970, it performs an administrative function. The State Government is required to consider and decide the representation of the affected member of the service in a fair and just manner. The concept of fairness in making a decision entails that a person who may be biased should not participate in the proceedings which may culminate in the ultimate decision. N.P. Tripathi who had awarded the adverse remark to the petitioner dealt with the petitioner's representation as Secretary, Forest Department, Government of Uttar Pradesh. On his noting, the Minister concerned took decision to reject the petitioner's representation. No doubt, the nothings made by N.P. Tripathi were recommendatory in nature but his opinion played a vital role in persuading the Minister to reject the petitioner's representation. In Kraipak's case, the committee had merely made recommendation to the Union Public Service Commission, and the final decision had been taken by the Union Public Service Commission and the Central Government. The Supreme Court held that since the recommendation of the- selection board was the foundation of the ultimate decision, therefore the ultimate decision was vitiated as one of the members of the Selection Committee was biased. On the ratio of the Supreme Court decision the State Govt.'s order is vitiated. 8. Learned counsel for the respondents urged that there is no material on record to show that N.P. Tripathi was biased. He further urged that in any view of the matter no prejudice was caused to the petitioner as N.P. Tripathi being the reporting authority was entitled to submit his comments to the representation made by the petitioner. In our opinion it is not necessary to prove actual bias. He further urged that in any view of the matter no prejudice was caused to the petitioner as N.P. Tripathi being the reporting authority was entitled to submit his comments to the representation made by the petitioner. In our opinion it is not necessary to prove actual bias. If, on the facts and circumstances of the case a reasonable person may have a reasonable apprehension of bias the decision of the authority would be vitiated. In Hannam v. Bradford City Council, a decision of the staff sub-committee was quashed on the ground that three governors of the school which held the enquiry as to whether the Council should exercise its power, were the governors of the school. The resolution of the staff sub-committee was quashed on the ground that no man could be a judge of his own cause as three of the members of the sub-committee who were governors of the school had terminated the services of the plaintiff. Even though the three Governors had not participated in the proceedings and yet it was held that there was real likelihood of bias and as such the action was set aside by the Court. In A.K. Kraipak v. Union of India(supra). Mr. Naqishbund who was a member of the committee was himself a candidate. He did not participate in the deliberations of the Committee when his turn came and yet the Supreme Court held that the recommendation of the Committee was vitiated on account of the fact that Mr. Naqishbund was a member of the committee who made the recommendation as Sri Naqishbund was interested in the matter. 9. In Dr. G. Sarana v. University of Lucknow and others, the Court observed : "From the above discussion, it clearly follows 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 whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party." These authorities leave no room for any doubt that the aggrieved party has to establish only likelihood of bias and not actual bias animating the mind of the member of the authority which may ' have decided against him. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party." These authorities leave no room for any doubt that the aggrieved party has to establish only likelihood of bias and not actual bias animating the mind of the member of the authority which may ' have decided against him. The Court has to look at the impression which could have been given to other people. Even if the member of the authority was impartial as could be, nevertheless if right minded person would think that in the circumstances he was likely to be biased, then the plea of bias must be sustained. It is not necessary for the Court to enquire whether the authority concerned actually acted unfairly. This sufficient that the reasonable person could think that the person so placed might have done that. This principle is based on the basic principles of law that justice must not only be done but must also appear to be done and no man should be a Judge of his own cause. N.P. Tripathi was taking part in the determination of the representation which was in the nature of an appeal against the adverse entries awarded by him. He was likely to be inclined towards affirming his earlier decision which would mean that he was a Judge of his own cause. N.P. Tripathi, was therefore disqualified to deal with the petitioner's representation. Though there is no material on record to show that Tripathi was actually biased but the circumstances in which he was placed do indicate the likelihood of bias and that is sufficient to disqualify him. It is immaterial that Tripathi did not take decision personally, and even if decision was taken by the Minister, the order of the State Government was void as the ultimate decision was founded on the note of N.P. Tripathi. 10. The respondent's contention that no prejudice was caused to the petitioner is devoid of any merit. N.P. Tripathi had awarded the adverse remarks against which the State Government was considering the petitioner is representations and since Tripathi was actively associated in the decision making by the Government, prejudice to the petitioner was inherent, Principles of natural justice, however, do not require that the petitioner should prove actual prejudice. N.P. Tripathi had awarded the adverse remarks against which the State Government was considering the petitioner is representations and since Tripathi was actively associated in the decision making by the Government, prejudice to the petitioner was inherent, Principles of natural justice, however, do not require that the petitioner should prove actual prejudice. In S.L. Kapoor v. Jagmohan and others it was held non-observance of natural justice s itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. 11. Learned counsel for the petitioner urged that the adverse entry was unjustified and unfounded. The adverse entry awarded to the petitioner is in the following terms: "Sri Mahesh Kumar w6rked under me as D.F.O. for four months from the end of July to about the end of November,1970 during the year under report. His work and conduct as D.F.O. Haldwani was on the whole satisfactory. However, a case relating to (1) drawal of T.T.A. advance by him of Rs. 1000/- in November,1966 at the time of transfer from Gorakhpur Division to Siwalik Working Plan, (ii) he neither paying back the advance nor pressing his claim for the passing of transfer T.A. Bill and (iii) the entry about the said advance disappearing from the account period under report. This case is under enquiry at CCF's level. I am not in a position to give integrity certificate to Sri Mahesh Kumar for the period under report unless he is cleared in the above case of drawal of T.T.A. Advance." 12. The petitioner has asserted that he had obtained a sum of Rs. 1000/- as advance on his transfer from Gorakhpur. He had submitted travelling allowance bill but the same was disputed and rejected by the Conservator of Forest, against which he made a representation but the same has not been decided as yet. It was urged that in these circumstances, the reporting officer was not justified in withholding the integrity certificate of the petitioner or in making adverse comments against him in his character roll. Since these matters relate to investigation of facts, we do not consider proper to enter into this controversy. We would, however, like to observe that if the petitioner's representation has not been decided at an early date as its decision has already been over delayed. 13. Since these matters relate to investigation of facts, we do not consider proper to enter into this controversy. We would, however, like to observe that if the petitioner's representation has not been decided at an early date as its decision has already been over delayed. 13. In the result, we allow the petition and quash the order of the State Government dated 3.10.1975 rejecting the petitioner's representation. We direct the State Government to consider the petitioner's representation against the adverse remarks in accordance with law at an early date. The petitioner is entitled to his costs.