2017 (2) TMI 870

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....be a retired High Court Judge, not exceeding the age of sixty-five years or a judicial officer of the rank of District Judge under Section 9(2) of the Act. One of the two other members shall be a member of Commercial Taxes Department, not below the rank of Joint Commissioner under Section 9(3). In respect of the third member, the eligibility conditions are as under:- "(3) One of the other two members shall be an officer of the Commercial Taxes Department of the State Government not below the rank of Joint Commissioner and the third member shall be a person - (a) who has, for at least ten years, been in the practice of accountancy as a Chartered Accountant under the Chartered Accountant Act, 1949 or as a registered Accountant under any law formerly in force or partly as a registered Accountant and partly as a Chartered Accountant; or (b) who is or has been an officer of the Indian Audit and Accountant Service not below the rank of Deputy Accountant-General; or (c) who is a Government servant, whether serving or retired having experience of at least four years in the administration of accounts or financial management in the State Government or Publ....

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....earned counsel for the petitioner is that the second member is also a former member of the Commercial Taxes Department. Therefore, it will not be fair discharge of functioning of the Commercial Taxes Tribunal which is a final adjudicatory authority on the questions of fact under the Act as the Tribunal would have bias towards state revenue. It is contended that since Section 9(3) contemplates appointment of only one officer of the Commercial Taxes Department, therefore, by implication, the appointment of another officer from the Commercial Taxes Department is prohibited. It is argued that if the Statute provides that things have to be done in a particular manner, other manners are excluded. Therefore, the appointment of another member from the Commercial Taxes Department is contrary to the spirit of Sub section (3) of Section 9 of the Act. 7. We have called for the record of the candidates who applied for appointment as Member (Accounts). The summary of the experience of all the eligible candidates reads as under:-   Name of Applicant   Qualification Working Experience 1. Sri Alok Mondal B.Com (Hons.) LLB, MBM (Finance) Cost & Works A/c, P.G Diplom....

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....f the members of the Tribunal would have allegiance towards the State and, thus, it cannot be expected that they will discharge their functions fairly and reasonably. 11. As per the State Government, respondent No.6 has been appointed in exercise of the powers conferred under Sub-clause (c) of Section 9(3) of the Act which contemplates appointment of a serving or a retired Government servant who has experience of at least four years in administration of accounts or financial Management. The expression "administration of Account or financial Management" has not been defined under the Act. Therefore, the State Government has competence to consider whether the experience of a candidate satisfies the parameters of Sub-clause (c) as to whether he has experience of at least four years in administration of accounts or financial management. 12. The member of the Tribunal, even if they are Government servants, or a retired Government servant, cannot be presumed to owe their allegiance to the State Government while working as member of the Tribunal. As a member of the Tribunal, they are expected to discharge their duties to implement the provisions of the Act and the Rules made thereun....

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....rson affected by the Scheme is required to file objections before the State Government and the State Government, after receiving the objections and representations, gives a personal hearing to the objectors as well as to the Undertaking and approves or modifies the scheme as the case may be. The provisions of the Act, therefore, do not authorise the Government to initiate the scheme and thereafter constitute itself a judge in its own cause. The entire scheme of the Act visualises, in case of conflict between the Undertaking and the operators of private buses, that the State Government should sit in judgment and resolve the conflict. The Act, therefore, does not authorise the State Government to act in derogation of the principles of natural justice." 14. In another Constitution Bench Judgment reported as Registrar, Coop. Societies v. Dharam Chand, AIR 1961 SC 1743, the objection raised was that Registrar of the Co-operative Societies, being the head of the Department, should not have made inspection or appointed such persons who might have made inspection of the Bank. The Court observed as under: "5. The next contention is that the Registrar being the administrative hea....

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....ute is concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are therefore of opinion that the Judicial Commissioner was wrong in the view that there was anything inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case." 15. In another recent judgment reported as N.K. Bajpai v. Union of India, [2012] 4 SCC 653, the Court held that if there is real danger of bias, only then the decision would attract judicial chastisement, but not otherwise: "48. Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories i.e. suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could....

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....in firm and undetected. He should not allow his personal prejudice to go into the decision making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially. 62. In India, the courts have, by and large, applied the "real likelihood test" for deciding whether a particular decision of the judicial or quasi-judicial body is vitiated due to bias. In Manak Lal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425, it was observed: (AIR p. 429, para 4) "5. ... every member of a tribunal that [sits to] try issues in judicial or quasi-judicial 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 fact a bias has affected the judgment; th....