TaxTMI 
TaxTMI 
2003 (3) TMI 784
X X X X Extracts X X X X
X X X X Extracts X X X X
....ircumstances. 2.1. In 17.7.1990 a sum of Rs. 1700/- was said to have been stolen from the said B.K. Jha. Allegedly, he gave out that the Respondent had accepted a sum of Rs. 5,000/- for his recruitment. On 16.7.1990 one Mr. Raj Singh, Deputy Commandant reported to the Commandant, Mr. J.S. Bakshi that the said B.K. Jha had stated in presence of one Mr. G.S. Rana that he had brought out a sum of Rs. 8,500/- from his house out of which he was, as per instruction of his father, to pay a sum of Rs. 7,000 for his recruitment but he in fact paid a sum of Rs. 5,000/- to the Respondent a week prior to the date of offence. One constable of the administrative wing had allegedly came to him to collect money for the Respondent and he had paid a further sum of Rs. 1,000/-. Mr. J.S. Bakshi at about 0930 hours on 17.7.1990 informed Mr. Garcha that the Respondent came to his office and apologized for having taken the money. Mr. Garcha asked Mr. Bakshi to inquire into the matter further who thereupon submitted his report by way of a letter. 2.2. Mr. Garcha allegedly examined the said two persons as also the Respondent. An alleged confession about the commission of the offence is said to have b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....,000/- (Rupees six thousand only) from No. 90401117 Recruit Constable Bhavesh Jha under training at Subsidiary Training Centre, Border Security Force, Hazaribagh for procuring his enrolment in the Border Security Force. BSF Act INDIRECTLY ACCEPTING GRATIFICATION Section 41(e) AS A REWARD FOR PROCURING ENROLMENT In that he, at Border Security Force Campus, Meru (Hazaribagh) in the second week of July 1990 accepted Rupees 6,000/- (Rupees six thousand only) from No. 90401117 Recruit Constable Bhavesh Kumar Jha under training at Subsidiary Training Centre. Border Security Force, Hazaribagh for procuring his enrolment in the Border Security Force. Sd/- [M.S. Arya] Commandant Place: Meru, Hazaribagh Date: 7 September, 1990 I have heard the officer and he pleads 'Not guilty'. Remanded for preparation of Record of evidence. Sd/- Comdt. 7.9.90 A procuring for recording of evidence against the Respondent thereupon was initiated. He raised an objection about the validity of the proceeding but the same was rejected. The Respondent thereafter was transferred to 127 Bn. in Punjab but he was retransferred ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tration which are independent of each other. In each of the aforementioned stage, Mr. Ranjit Kumar would submit, the accused gets an opportunity to cross-examine the witnesses and the authority on the basis of the materials brought on record at each of the stage, may drop the proceedings against him. The learned Counsel would contend that the learned single Judge committed a manifest error in reappreciating the evidence which was not within the domain of the High Court exercising its jurisdiction under Article 226 of the Constitution of India having regard to the settled principles of law that it does not exercise any power of superintendence over the Courts constituted under the Army Act, BSF Act and in that view of the matter it could not have reappreciated the evidence. The learned Counsel would contend that admittedly Mr. M.S. Arya was a Commandant of BTC which being a unit to which the Respondent was attached, he was entitled to direct recording of evidence in terms of the Act and the Rules. According to the learned Counsel, Mr. Garcha being a Deputy Inspector General of Police could have further asked the Commandant of a Unit to take disciplinary measures against the Responde....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., or leave of absence, promotion or any other advantage or indulgence for any person in the service; or (f)........ shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. 48. Punishments awardable by Security Force Courts: (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say-1(c) dismissal from the service; 49. Alternative punishments awardable by Security Force Courts-subject to the provisions of this Act, a Security Force Court may, on convicting a person subject to this Act of any of the offences specified in Sections 14 to 45 (both inclusive) award either the particular punishment with which the offence is stated in the said sections to be punishable or, in lieu thereof, any one of the punishments lower in the scale set out in Section 48 regard being had to the nature and degree of the offence. 64. Kinds of Security Force Courts- For the purposes of this Act there shall be three kinds....
X X X X Extracts X X X X
X X X X Extracts X X X X
....extend to all the battalions, other personnel and units placed under him; and (c) in the case of a Commandant, extent to the battalion or unit placed under him. (3).... (4) The command, discipline, administration and training of battalions, units and establishments not placed under a Deputy Inspector-General or any Inspector-General shall be carried out by such officer and in such manner as may from time to time be laid down by the Director-General. 16. Command- (5) Disciplinary powers over a person subject to the Act shall be exercised by the Commandant of the battalion or unit to which such a person belongs or the officer on whom command has devolved in accordance with Sub-rule (2). (7) The Director-General, the Inspector-General and the Deputy Inspector-General may specify one or more officers of the staff who shall exercise the disciplinary powers of a Commandant in respect of persons belonging to or doing detachment duty at their respective Headquarters. 44. Charge sheet- Where it is alleged that an officer or a sub-ordinate officer has committed an offence punishable under the Act, the allegation shall be reduced to writin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding to holding of a trial by the General Security Force Court leaves no manner of doubt that the basic principles of natural justice have been codified therein. The provisions of the Act and the Rules in no uncertain terms envisage protection from bias against an officer. We may notice that the Act which was enacted in the year 1968 even sought to fill up the gaps occurring in other Acts like Army Act, Navy Act or Armed Forces Act in this behalf so as to protect a person from personal bias or a real likelihood of bias. Rule 46 was made with a view to achieve the said purpose. It is not in dispute having regard to the phraseology used in Rule 45B of the Rules that an accused at the first instance is bound to be tried by his Commandant. Necessarily, the question which arises for consideration would be as to who was the Commandant of the Respondent at the relevant point of time. Concededly Mr. Garcha was the Commandant of the Respondent till 17.7.90. A question which is to be posed and answered is as to whether the BTC is a Unit of TCS. The Appellant herein in their counter-affidavit before the High Court stated "that the Respondent was posted to BSF, TC&S Hazaribagh and was further ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the facts and circumstances of the case must be held to be illegal. 15. Submission of Mr. Ranjit Kumar to the effect that Mr. Garcha could delegate his power to Mr. Arya cannot be accepted. A power under Rule 16(7) of the Rules can be exercised in a general manner and not in a particular far less in a matter where Rule 46 will be applicable. The principles of specialia generaliabus non derogant shall apply in such a case. 16. In the instant case, Mr. Garcha in his letter to Mr. M.S. Arya described himself as Commandant, BTC, TC&S which itself is a pointer to show that BTC is not a unit totally independent of TC&S. It is further not in dispute that Mr. Arya was an officer subordinate to him. His letter dated 4th September, 1990 in no uncertain terms points out that he had for all intent and purpose directed Mr. Arya to initiate a disciplinary action against the Respondent. The said action was to be taken on the basis of the materials disclosed therein. Such a procedure is unknown in law. An authority who is higher than the Commandant, in exercise of his power conferred upon him under Rule 46 could not have directed the commandant of a wing of his own unit to initiate departme....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... state: ....I could wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of evenhanded justice which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute. 19. Natural justice as is well known is founded on two basic principles: (a) Audi Alteram partem. (b) Nemo judex in causa sua. The duty to act fairly is the theme of the principles of natural justice. The Rule generally applies with full force to conduct leading directly to a final act of decision. In Halsbury's Laws of England, Vol. 1(i), 4th Edition it is stated: 85.... Thus a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Law, it is stated: The natural justice 'bias' rule looks to external appearances rather tan to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of the Courts ensuring that 'justice is seen to be done'. Since successful challenge is based on appearances, it is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision-making and actions. 21. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon 1968(3) All ER 304, Lord Denning MR observed: In considering whether there was a real likelihood of bias; the Court does not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judiciary capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. "The principle", says Halsbury, "nemo debet esse judex in cause propria sua precludes a justice, who is interested in the subject-matter of a dispute, from acting as a justice therein" [Halsbury's Laws of England, Vol. XXI, p. 535, para 952]. In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. 24. In Andhra Pradesh State Road Transport Corporation, Hyderabad v. Sri Satyanarayana Transports (P) Ltd., Guntur, AIR 1965 SC 1303, this Court held that the elementary rule of natural justice that person trying a cause, though in a quasi-judicial proceeding, should not suffer from a personal bias. This Court stated the law thus: We ought, however, to add that in the ligh....