TaxTMI 
TaxTMI 
2013 (10) TMI 1521
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....t on 5-8-2009, a complaint was made by one of the officers alleging irregularity in the hiring of Civil Hired Transport (CHT), which were used for the purpose of supply of ordnance stores to units spread over the country, including remotest field and high altitude area by Respondent 1 who holds the rank of Colonel in the Army. On the basis of a complaint, the General Officer Commanding-in-Chief, Pune initiated an action against Respondent 1 by making his attachment with Headquarters Sub-Area on 6-8-2009 and also convened a Board of Officers on 21-7-2009 for ascertaining the truthfulness of the allegations. On 22-7-2009 the said Board seized the entire records and submitted a report. On the premises of that report, a CoI was convened against Respondent 1 to investigate into the alleged irregularities. 3. CoI conducted an inquiry and on 8-3-2010 recommended for taking appropriate disciplinary action against the first respondent and some other officers. On the basis of the said recommendation on 23-2-2010 the first respondent was attached to the Head Quarters, Mumbai Sub-Area till finalisation of the disciplinary proceedings. At that juncture, Respondent 1 filed Original Application ....
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....nst Respondent 1. It was also held that it would be difficult for the authority concerned to proceed for hearing on the point of charge to take into account those documents which were subsequently annexed, and in all fairness, an additional CoI should be convened affording full opportunity to the parties, by examining or cross-examining any of the witnesses pertaining to those annexures. 6. Being of this view the Tribunal directed the authority to convene an additional CoI limiting to the documents which were subsequently annexed to the report of CoI and granting liberty to the delinquent officer to cross-examine any of the witnesses, if produced, pertaining to those documents. 7. In pursuance to the aforesaid order, the additional CoI reassembled and Respondent 1 was shown all the documents and he perused the same, as the proceedings would reveal, availing considerable length of time. At that stage, he made a request for grant of permission to cross-examine the Technical Members but the same was denied on the ground that as per Rule 180 he could only cross-examine the witnesses and not the Members. However, certain other witnesses were examined and cross-examined in CoI and, eve....
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....(Army) Letter No. PC-2/13357.RI00159.Fin/OS-4(e) dated 6-8-2009 and these two letters were earlier perused by Respondent 1. Emphasis was laid on the fact that there is no provision for cross-examination of the Presiding Officer of CoI on the basis of his observations made in CoI. As regards the cross-examination of the Technical Members, it was opposed on the ground that the Technical Members had only collated the data which was taken into consideration for formation of an opinion by CoI and the same was done to comply with the order passed on the earlier occasion. It was put forth that Technical Members had only signed the day's proceedings and had no role to play in the final opinion expressed by CoI. That apart, it was stressed that the Technical Members had been produced as witnesses in summary of evidence and every opportunity had been granted to the applicant therein to cross-examine them and, therefore, no prejudice has been caused to him due to their non-production in CoI for cross-examination. 11. It was also contended that request of the applicant therein to cross-examine the authors of the documents XLI and XLIX was beyond the scope of the rule and was also not in a....
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....d in turn creators of some vital documents were inducted as members allowing themselves to decide upon the documents created by them and they being the members of the inquiry were not produced for cross-examination by the applicant. Such action on the part of the respondents is contrary to fair play in action." 14. The Tribunal observed that as the applicant therein was not allowed to cross-examine the makers of documents XLIX and XLI, the respondents therein not only violated the provisions of rule 180 but also did not comply with the directions contained in the earlier judgment passed in Col. Sanjay Jethi v. Union of India. The Tribunal proceeded to state that the contention advanced by the respondents therein that on reading of Rule 180 it cannot be discerned that the Presiding Officer and Technical Member of CoI were required to be produced as witnesses was devoid of merit. After so stating the Tribunal held that the respondents therein should not have included Brig. N.S Ahamad as Presiding Officer and Lt. Col. Sandeep Sinha and Maj. Sanjeev Narula as Technical Members in the said additional CoI, for whatever might be the role of the Technical Members, nonetheless they were M....
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....evidence he may wish to make or give, and of cross-examining any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The Presiding Officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified, receives notice of and fully understands his rights, under this Rule." 19. Rule 182 stipulates that the proceeding of courts of inquiry or any confession statement or answer to a question made or given at a CoI shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial or such person for wilfully giving false evidence before that court. The proviso to the rule states nothing in the said Rules shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witnesses. Rule 184 which has been substituted by S.R.O 44, dated 24-1-1985 deals with right of certain persons to copies of statements and documents. 20. Rule 180 had com....
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.... against the person whose character or military reputation is involved. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the court of inquiry should be afforded full opportunity so that nothing is done at his back and without opportunity of participation, Rule 180 merely makes an enabling provision to ensure such participation. But it cannot be used to say that whenever in any other inquiry or an inquiry before a commanding officer under Rule 22 or a convening officer under Rule 37 of the trial by a court martial, character or military reputation of the officer concerned is likely to be affected a prior inquiry by the court of inquiry is a sine qua non." (emphasis supplied) 22. In Major General Inder Jit Kumar v. Union of India Major General Inder Jit Kumar v. Union of India, 1997 9 SCC 1 a two-Judge Bench observed that CoI is set up under Rule 177 to collect evidence and to report, if so required, with regard to any matter which may be referred to it. CoI is in the nature of a fact-finding inquiry committee. The learned Judges proceeded to state that: (SCC p. 5, para 7) "7. … Army Rule 180 provides, in....
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....at protection. He was present at the court of inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses." (emphasis supplied) 24. In Union of India v. Major A. Hussain Union of India v. Major A. Hussain, 1998 1 SCC 537 Union of India and its functionaries had challenged the decision of the High Court which had quashed the court-martial proceedings including the confirmation of the sentence on the ground that the delinquent officers had denied reasonable opportunity to defend himself as he was not communicated the conclusion reached. In the said case the High Court opined that during the proceeding under Section 22 of the Act, the copies submitted in earlier CoI were not supplied; that he was not given assistance of a defending officer of his choice; that he was not provided a loan which was already sanctioned to engage a new counsel; and that the documents for which he had made a request to the convening authority long before assembly of the court martial were not provided. This Court referred to Rules 180 and 184 of the Army Rules and various other provisions and in that context cam....
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....et up under Rule 177 and during the course of enquiry character or military reputation of a person is likely to be affected, he should be granted full opportunity to participate in the proceedings; that CoI in its very nature is likely to examine certain issues generally concerning a situation or persons; that his participation could not be avoided on a mercurial plea that no specific enquiry was directed against the person whose character or military reputation is involved; that the person concerned shall be afforded full opportunity so that nothing is done at his back and without opportunity of participation; that it is the command of the said provision to ensure such participation; that it is not a condition precedent to always hold that a CoI for proceeding a trial by court martial where the character or military reputation of the officer concerned is likely to be affected; that CoI is in the nature of a fact-finding enquiry committee; that the participation in a CoI is at a stage prior to the trial by court martial; that the said rule gives adequate protection to the person affected at the stage of CoI and there is no provision for supplying the accused with a copy of the repo....
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....g on the point of charge to take into account those documents which were subsequently annexed. In all fairness, an additional CoI is to be convened affording full opportunity to the parties, by examining or cross-examining any of the witnesses pertaining to those annexures. The additional CoI would remain confined to the annexures referred to above." (emphasis supplied) 30. After so holding, the Tribunal directed the authority concerned to pass orders convening an additional CoI limiting to the documents which were subsequently annexed to the report of CoI and the applicant was granted liberty to cross-examine any of the witnesses, if produced, pertaining to those documents. 31. We may note here with profit that the aforesaid order was not assailed by the Union of India and its functionaries. 32. We have referred to the earlier order in extensor despite the same having gone unchallenged, for it is submitted by Mr Kuhad, learned Additional Solicitor General, that the said order has to be understood in the backdrop of the fact situation. There can be no trace of doubt that the Tribunal had passed directions to the limited extent, but it had specified the documents and directed....
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....a Rao v. A.P SRTC AIR 1959 SC 308, Gullapalli Nageswararao v. State of A.P AIR 1959 SC 1376 and G. Sarana v. University of Lucknow G. Sarana v. University of Lucknow, 1976 3 SCC 585. 35. In Manak Lal v. Prem Chand Singhvi AIR 1957 SC 425 the Court has stated thus: (AIR p. 429, para 4) "4. … It is well settled that every member of a tribunal that is called upon 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; 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." 36. In G. Sarana the learned Judges referred to the Principles of Administrative Law by J.A.G Griffith and H. Street (4th Edn.), and observed that the position with regard to bias has been ....
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....as animating the mind of the member against the aggrieved party. 37. At this juncture, we may refer with profit to Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, where it has been observed: "551. Want of impartiality or bias; fraud.- … The test for bias is whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias13." 38. In Transport Deptt. v. Munuswamy Mudaliar 1988 Supp SCC 651, while dealing with the concept of bias as a part of natural justice, the Court observed that: (SCC p. 654, para 12) "12. … A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials." Needless to say, personal bias is one of the limbs of bias, namely, pecuniary bias, personal bias and official bias. 39. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001 1 SCC 182, the Court referred to a passage from the view expressed by Mathew, J. in S. Parthasarathi v. State of....
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....learned Judges took note of the fact that the Court of Appeal continued to give effect that everything will depend upon facts which may include the nature of the issue to be decided. 41. Eventually, this Court ruled thus: (Girja Shankar Pant case, SCC p. 201, para 35) "35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the court of appeal in Locabail case." (emphasis supplied) 42. In G.N Nayak v. Goa University 2002 2 SCC 712 it has been laid down that: (SCC p. 723, para 34) "34. It is no....
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....ty, reasonability, institutional impeccability and non-biased justice delivery system constitute the pillars on which its survival remains in continuum." 45. The plea of bias it is to be scrutinised on the basis of material brought on record whether someone makes wild, irrelevant and imaginary allegations to frustrate a trial or it is in consonance with the thinking of a reasonable man which can meet the test of real likelihood of bias. The principle cannot be attracted in vacuum. 46. In State of Gujarat v. R.A Mehta 2013 3 SCC 1, a two-Judge Bench dealing with "bias" has observed thus: (SCC p. 37, para 58) "58. … Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim nemo debet esse judex in propria causa. It applies only when the interest attributed to an individual is such so as to tempt him to make a decision in favour of, or to further his own cause. There may not be a case of actual bias, or an apprehension to the effect that the matter most certainly will not be decided or dealt with impartially but where the circumstances are such so as to create a reasonable apprehension in the minds of others that there is a likelihood o....
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....ublic Utilities Commission of the District of Columbia v. Pollak 96 L Ed 1068 and R. v. Liverpool City Justices, ex p Topping 1983 1 WLR 119 and, eventually, concluded that the inescapable conclusion was that the participation of Respondent 4 had rendered the court martial proceedings coram non judice. 50. In Major G.S Sodhi, the Court did not accept the alleged plea of bias or mala fide as Lt. Col. S.K Maini, who had ordered summary of evidence against the petitioner therein, was inimical towards him because of certain prior incidents. It was also alleged that he had not acceded to certain requests made by the petitioner during the inquiry. The Court did not accept the same on the ground that the respondent Lt. Col. S.K Maini was only concerned with the preliminary inquiry and it was for the court martial to try the case and give its verdict and mere allegation of bias and mala fide against him did not affect the court-martial proceedings. That apart, the Court observed that the allegations against the said Maini had not been really substantiated and even they are perceived from the point of view of the petitioner therein, it could not be held that it was not reasonable on his pa....
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....he language employed in Rule 180 lays postulates of a fair, just and reasonable delineation. It is the duty of the authorities to ensure that there is proper notice to the person concerned and he is given opportunity to cross-examine the witnesses and, most importantly, nothing should take place behind his back. It is one thing to say that CoI may not always be essential or sine qua non for initiation of a court martial but another spectrum is that once the authority has exercised the power to hold such an inquiry and CoI has recommended for disciplinary action, then the recommendation of CoI is subject to judicial review. While exercising the power of judicial review it becomes obligatory to see whether there has been due compliance of the stipulates prescribed under the rule, for the language employed in the said rule is absolutely clear and unambiguous. We may not dwell upon the concept of "full opportunity" in detail. Suffice it to say that one cannot stretch the said concept at infinitum on the bedrock of grant of opportunity and fair play. It has to be tested on the touchstone of the factual matrix of each case. 54. Coming to the case at hand, we are obliged to state that in....
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....led in one place marked as Appendices A to M of Ext. XLIX. The balance of Ext. XLIX, the technical report forming part of Appendices N to AB and extract to Appx N is the collation of information in various formats as per headings given in these Appendices from the information available in Appendices A to M of Ext. XLIX. The court has requested the convening authority HQ MG & G Area to intimate details of documents, copies of court of inquiry and exhibits handed over to the witnesses if any during the interim period i.e 6-12-2009 to 7-2-2011, vide Presiding Officer HQ MG & G Area (Sigs) Letter No. PC-0604.CHT/COD/Addl C of I dated 9-2-2011 and the letter is read over. The copy of the letter is attached as Ext. 1." 57. It is not in dispute that Respondent 1 perused all the documents and objected to the presence of the Technical Members, namely, Lt. Col. Sandeep Sinha and Maj. Sanjeev Narula in the additional CoI proceedings. On 17-2-2011 the additional CoI clarified that Ext. XLIX comprised of appendices as brought about by the court at Para 5 of the additional CoI proceedings dated 11-2-2011. At that juncture, the said respondent gave a list of his witnesses. On 24-2-2011 Respo....
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....ifferent tonnages with financial loss, (e) same CHT being hired within close period, (f) variation in billed tonnage of CHTs vis-à-vis actual tonnage as per list given by Kaushik Transport with tender documents with financial loss, (g) CHT billed but date record at variance in gate register with respect to reporting and utilisation of vehicle note, (h) dispatch to same places in consecutive days amounting to splitting of transaction, (i) variation between actual utilisation and the CFA sanction, and (k) preliminary inquiry at COD Malad. On a bare perusal of the same one can easily say that the Technical Members have expressed their opinion after analysis of the documents. They have, in detail, scrutinised the documents, drawn their inferences and made their observations. This document has been marked as Ext. XLIX. By no stretch of imagination can it be said that it is an arrangement of documents or pagination of documents. True it is, they are not the authors of the original documents but their analysis and inference have been used against the respondent in the earlier CoI and in the additional CoI. It cannot be brushed aside by saying that Technical Members did....
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....tocopy of Central Ordnance Depot Letter No. 2754.Gen/Cont. dated 4-8-2008 found from DGOS and approval Letter of the same IHQ. MOD, MGO Letter No. PC 2 to 13357.R1001519.Fin/OS-46 dated 6-8-2009, this approval is only for issue of items and not dispatch is enclosed as Ext. XLI." To the said observation/report two letters have been annexed, one written by Rishab Paliwal, Capt., Control Officer, for Commandant, and another by P. Krishna Kumar, SCSO, Jt. Dir. OS-4E, for Dir. Gen. Ord Services. On a scrutiny of the same it cannot be said that it pertained to the proceedings before CoI. In fact, on earlier occasion the Tribunal had taken exception to the fact that the said documents were not given to the first respondent. No doubt, thereafter he had been allowed to peruse the same but he is entitled to explain the same, more so, when a view has been expressed in the document. 63. Mr Kuhad would contend that the summary of evidence had commenced and a number of witnesses, including the Technical Members, have been examined and they have also been cross-examined by the first respondent. Be it noted, this Court, while issuing notice and directing stay of the proceedings of the order pas....