D.N. Baruah, J.
1. In this Civil Rule the petitioner has challenged the Annexure-27 order dated November 19, 1988 issued by the Secretary to the Government of Assam, Forest Department removing the petitioner from service with effect from the date of the order and also Annexure-29 order dated May 16, 1989 issued by the Secretary to the Government of Assam, Forest Department
intimating the petitioner that the appeal preferred by him had been dismissed.
2. Briefly the facts are:
The petitioner was confirmed Forest Ranger under the Forest Department of Assam. He was confirmed in his post with effect from April 1,
1953. In the year 1968 he was released from the Forest Department allowing him to join Soil Conservation Department as Assistant Soil Conservation Officer. Accordingly, the petitioner joined in the new department on deputation. While serving in the said department in the month of March 1972 he was promoted in his parent department, namely, Forest Department, to the Class-I post of Assam Forest Service. Though he was promoted in the parent department, he was allowed to continue in the Soil Conservation Department. At the relevant time Shri P.C. Gowswami was the Director of Soil Conservation. By an order dated June 11, 1971 the petitioner was placed under suspension pending initiation of departmental proceeding. Thereafter a departmental proceeding had been drawn up against the petitioner by the Tribal Areas & W.B.C. Department (for short, T.A. & W.B.C. Department). The petitioner was suspended and proceeding was initiated against him on the basis of a report given by Shri P.C. Goswami the then Director of Soil Conservation Department. In his report Shri P.C. Goswami made allegations of misappropriation against the petitioner. Shri P.C. Goswami prepared the show cause notice and sent it in triplicate to the Secretary, T.A. & W.B.C. Department to issue it suggesting his own name for appointment as the Inquiry Officer to conduct the enquiry. Accordingly, on December 2, 1971 the Secretary. T.A. & W.B.C. Department issued the show cause notice with the list of witnesses and documents claiming himself to be the disciplinary authority and appointing Shri P.C. Goswami as the Inquiry Officer without, however, awaiting for the reply. Meanwhile, on March 20, 1972 the Forest Department (parent department) promoted the petitioner to the post of Assistant Soil Conservation Officer.
The petitioner submitted provisional lists of relevant documents for verification and for furnishing copies for preparing his defence statement. However, the petitioner's request was not acceded to. Thereafter, a representation was made by the petitioner in this regard. The request made by the said representation was also turned down. By Annexure-12 the petitioner expressed his inability to submit defence statement in the absence of those copies which,
according to him, were relevant for the purpose of preparing his defence. The Inquiry Officer, Shri P.C. Goswami conducted the enquiry and submitted his report finding the petitioner guilty. Second show cause notice was also issued. In reply to the show cause notice the petitioner pointed out the irregularities in conducting the enquiry by Annexure-16. Thereafter, the petitioner was removed from service by Annexure-17 order dated July 4, 1975. An appeal was filed before the appellate authority which, however, was rejected. A further appeal was preferred before the Assam Administrative Tribunal. In the appeal also the petitioner took up grounds of irregularities and also raised the question of bias of the Inquiry Officer inasmuch as the Inquiry Officer Shri P.C. Goswami himself made the allegations, prepared the show cause notice and also framed the charges. Petitioner also took the ground that the Secretary, T.A. & W.B.C. Department not being the disciplinary authority, he had no jurisdiction to pass order of removal of the petitioner. The appeal was heard by the Tribunal and after hearing, the appeal was allowed on the ground that Secretary, T.A. & W.B.C. had no jurisdiction to award punishment. However, other grounds urged by the petitioner were not entertained. The Tribunal while setting aside the order of dismissal and reinstating the petitioner, directed the T.A. & W.B.C. Department that the enquiry report and other relevant papers be transmitted to the parent department i.e. Forest Department for taking necessary action against the petitioner on the basis of the enquiry report and also directed that the petitioner be deemed to be under suspension with effect from the date of the original order of his removal from service. Pursuant to that order, the order of removal of the petitioner from service was revoked, he was reverted to the Forest Department and was treated to be under suspension with effect from July 4, 1975. Thereafter by Annexure- 21 order dated January 6, 1984, the order of suspension was revoked. A few days thereafter, i.e., on January 11, 1984, the petitioner joined his service. On November 28, 1986 the petitioner's service was regularised and the entire period of suspension of the petitioner was treated as spent on duty. The order was communicated to the Soil Conservation Department also. Thereafter on February 2, 1987 the petitioner was promoted to the post of Deputy Conservator of Forest.
After his promotion the petitioner was associated with a committee for enquiring into various malpractices/corruption/loss of revenue in Forest Department. He was also engaged as the full time member of the Standing Cell of the Forest Department. The petitioner had collected, processed and compiled information for the purpose of framing departmental proceedings against Shri D.P. Neog, the then Chief Conservator of Forest. Shri D.P. Neog, some time thereafter, addressed a secret note to the Secretary to the Government of Assam, Forest Department. The petitioner contends that by the said secret note Shri D.P. Neog made certain false allegations against the petitioner. On coming to know about it, the petitioner by An-nexures-26 and 26(A) requested the Deputy Secretary to the Government of Assam, Forest Department for supplying him the copy of the said secret note. Said Shri D.P. Neog was placed under suspension on the recommendation of one man committee. Thereafter, on May 11, 1988 the Joint Secretary to the Government of Assam, Forest Department directed the petitioner to relinquish the charges of the Standing Cell. On June 30, 1988 said Shri D.P, Neog was reinstated and on November 19, 1988 the petitioner was removed from service. Petitioner being aggrieved, preferred an appeal before the appellate authority. The appeal was rejected. However, no ground was assigned for such rejection. Hence the present petition, the petitioner also filed an additional affidavit.
3. Heard Mr. A Sarma, learned counsel appearing on behalf of the petitioner and Ms. B Choudhury, learned Government Advocate, Assam.
4. Mr. Sarma submitted before me that the order of removal dated November 19, 1988 was illegal and without jurisdiction inasmuch as the petitioner had been removed from service without following the proper procedure. The enquiry conducted by Shri P.C. Goswami suffered from irregularities such as non-supply of documents sought for by the petitioner. Mr. Sarma also submitted that the facts and circumstances of the case clearly indicated that the entire action of the respondents was actuated by malafide intention which would be evident from the secret note
given by Shri D.P. Neog. Besides, the Inquiry Officer Shri P.C. Goswami himself was biased inasmuch as it was he who initiated the action against the petitioner by giving a report, prepared the show cause notice, framed charges and made request to the Secretary, T.A. & W.B.C. Department to appoint him as Inquiry Officer. Mr. Sarma further submitted that there was no justifiable reason for Sri Goswami to make a request to be appointed as Inquiry Officer. On the basis of the enquiry report submitted by Sri P.C. Goswami, the disciplinary authority passed the order of dismissal and that too after several years. While passing the order of removal on the basis of enquiry report, the disciplinary authority did not take the pains of independently considering the entire mater, at least record does not indicate. Therefore, the entire action was vitiated for such irregularities. Before passing the Annexure-27 order of removal, the petitioner was also not given any opportunity of hearing. The order was passed on the basis of enquiry report after several years. This action of the respondents was violative of the principles of natural justice. Mr. Sarma also challenged the appellate order inasmuch as the appellate order did not refer to any of the grounds raised by the petitioner before the appellate authority. The order was also not a speaking order.
5. Ms. B. Choudhury, learned Government Advocate, Assam, on the other hand, supported the Annexure-27 and 29 orders.
6. On the rival contentions of the parties it is to be seen whether the impugned orders can sustain in law. The disciplinary proceeding was conducted under the Assam Services (Discipline and Appeal) Rules, 1964 (for short, the Rules), Rule 9 of the said Rules prescribes the procedure for conducting disciplinary proceeding against a delinquent employee. When a disciplinary proceeding is contemplated, the disciplinary authority is required to frame definite charges on the basis of the allegations and the same has to be communicated to the Government servant and he should be given an opportunity to submit within time prescribed, a written statement of his defence and also to state whether he desires to be heard in person. Besides this, the disciplinary authority is also required to furnish a list of
documents and witnesses by which each article of charges is proposed to be sustained. The Government servant for the purpose of preparing his defence, has to be permitted to inspect and take extracts from such official records as he may specify. However, the permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority, such records are not relevant for the purpose or it is against the public interest. This has been provided under Rule 9(3) of the Rules. The disciplinary authority may itself inquire into such of the charges. If the Inquiring Officer is appointed, he shall in course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Inquiring Officer, on the basis of the material available, shall prepare a report of the enquiry regarding his finding on each of the charges together with reasons. The disciplinary authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. If the inquiry is conducted by a person other than disciplinary authority, it shall be the duty of the disciplinary authority to consider the entire matter on record and to give an independent finding as to whether the Government servant is guilty of the charges framed. After consideration of the materials if the disciplinary authority agrees with the findings of the Inquiring Officer, it may award punishment accordingly. This procedure is prescribed under Rule 9 of the Rules. The procedure prescribed under Rule 9 is for the safeguard of the Government servant against any arbitrary and whimsical decision. The procedure prescribed in the said rule is mandatory and non-compliance of any of the provisions of the rule shall vitiate the entire proceeding.
7. In the instant case, for preparation of defence statement, the petitioner requested for supply of certain documents, but the request was not acceded to. From the record of the case I do not find any reason-recorded by the disciplinary authority for refusal to supply documents and also for verification of documents. The Inquiry Officer passed order refusing to comply with the request. But, under the rules, it is the disciplinary authority who is to record the reason for not complying with the request. This, in my view, is
contrary to the procedure prescribed under Rule 9 of the Rules and definitely it vitiated the entire proceeding. Against that an appeal was preferred. The appeal was dismissed without giving any reason. Even after second order of dismissal by Annexure-27 also the petitioner preferred an appeal on various grounds. But the appeal was dismissed by Annexure-29. Annexure-29 order does not indicate whether these points were considered by the appellate authority or not. It is difficult for this Court to know on what ground the appeal was dismissed. In my view, these are serious infirmities.
8. Mr. Sarma strenuously urged before me that the order of removal was vitiated because the Inquiry Officer himself was biased and the enquiry report was accepted by the disciplinary authority without independently coming to its own finding.
9. Natural justice is said to demand not only that whose interests may be directly affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also that the authority should be disinterested and impartial. In Roman law the judge who made a suit his own was liable in quasi-delict to the party damnifed. In English law also the authority who violates the maxim nemo judex in causa sua does not incur civil liability, but prohibition may issue to restrain him from acting and his adjudication may be impeached on appeal or by means of an application for certiorari to quash or for such other remedy as may be appropriate. In the modern law also the authority adjudicating a matter shall be disqualified on the ground of interest and bias. In de Smith's Judicial Review of Administrative Action (Fourth Edition), the author while dealing with law relating to bias observed thus:
'In developing the modern law relating to disqualification of judicial officers for interest and bias, the superior courts have striven to apply the principle that it 'is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done,' without giving currency to 'the erroneous impression that it is more important that justice should appear to be
done than that it should in fact be done.' The emphasis has shifted from the simple precepts of the law of nature to the more subtle refinements of public policy. In order that public confidence in the administration of justice may be fully maintained, no man who is himself a party to proceedings or who has any direct pecuniary interest in the result is qualified at common law to adjudicate in those proceedings......'
The learned author further observed thus :
'In administrative law situations, no real difficulty arises in applying rules against interest and likelihood of bias if the decision maker is a member of a Tribunal closely analogous to a court of law. If the main functions of a Tribunal are to determine disputed questions of law and fact, and to exercise discretionary powers by reference to standards that are not self- created but explicitly prescribed by statutory or other rules, on the basis of evidence openly tendered, and if, moreover, the adjudicators can normally be expected to preserve a detached attitude towards the parties and issues before them, then a 'departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator,' ought not to be and will not be countenanced. An adjudicator may indeed seldom achieve 'the icy impartiality of a Rhadamanthus,' and the idea that 'by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine,' is doubtless a myth. The common law nevertheless disqualifies a judge, magistrate or independent arbitrator from adjudicating whenever circumstances point to a real likelihood that he will have a bias, by which is meant 'an operative prejudice, whether conscious or unconscious,' in relation to a party or an issue before him. Members of appeal tribunals determining tax assessments and entitlements to social security benefits fall into the same category.'
10. Regarding 'reasonable suspicion', 'real likelihood' and 'bias in fact', Professor Wade in his book - Administrative Law (Sixth Edition) at page 483, observed thus:
'Much confusion has been caused 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 give rise to a real likelihood of bias, and this test has naturally been emphasised in cases where the allegation of bias was excessively farfetched. At the same time it was frequently emphasised 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 interest. 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 but that dictum is recognised as having gone too far.
In the great majority of cases either test will lead to the same result. This might be so in all cases if 'likelihood' is given the meaning of possibility rather than probability. For if there is no real possibility of bias, no reasonable person would suspect it. But several judicial statements, more naturally, equate 'likelihood' with 'probability' and then a difference emerges. In Dimes v. Grand Junction Canal Co., for example, the Lord Chancellor's shareholding in the defendant company did not create a real probability of bias, but it created a possibility which a reasonable man might have suspected. In a liquor licensing case of 1960 it was also pointed out that the two tests led to different results, but in that there was the special circumstance that the statute protected the validity of acts done by disqualified justices, so that the court was not entitled to quash their order unless the facts raised a likelihood of bias over and above the technical disqualification.'
In England, Courts have several times treated the two tests as different. In R.V. Camborne Justice ex P. Pearce, a Divisional Court after re-
viewing authorities decided firmly in favour of real likelihood. Again in Metropolitan Properties (FGC) Ltd. v. Lannon, the Court of Appeal decided equally firmly in favour of reasonable suspicion. But in a later decision it was held, 'justice must be seen to be done' as the operative principle and established, or perhaps re-established, the more stringent standard of natural justice - which, it might be said, reflected the change of judicial attitudes between 1954 and 1968.
11. In Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors., reported in (1993-II-LLJ-549), the Supreme Court observed thus at pp 554-555:
'One of the cardinal principles of natural justice is nemo debet essejudex in propria causa (no man shall be ajudge in his own cause). The deciding authority must be impartial and without bias. It has been held by this Court in Secretary to Government. Transport Department v. Munuswamy Mudaliar, that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in State of U.P. v. Mohd. Nook In the said case a departmental inquiry was held against an employee. One of the witnesses against the employee turned hostile. The Officer holding the inquiry then left the inquiry, gave evidence against the employee and thereafter resumed to complete the inquiry and passed the order of dismissal. This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.'
Similarly, in P.K. Gosh, I.A.S. and Anr. v. J.G. Rajput, reported in 1995 6 SCC 744, the Apex Court while considering the point of bias observed thus:
'A basic postulate of the rule of law is that 'justice should not only be done but it must also be seen to be done'. If there be a bias which
cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should refuse himself from the Bench hearing that matter. This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge - may be subconsciously - has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite parry. Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done.'
12. In the present case, Shri P.C. Goswami, the then Director of Soil Conservation, initiated the proceeding, framed charges, prepared the show cause notice and, thereafter, requested the Secretary, T.A. & W.B.C. Department to appoint him Inquiry Officer and, in fact, he was so appointed. On the basis of such appointment, he conducted the enquiry. During enquiry, he refused to supply certain documents sought for by the petitioner, without referring the same to the disciplinary authority. There was no justifiable reason why he should seek appointment as Inquiry Officer. He may or may not be hostile towards the petitioner. Though there is no evidence to come to a definite conclusion that he was biased, yet the apprehension of the petitioner cannot be ruled out as held by the Apex Court 'justice should not only be done but it must also be seen to be done.' This is the well settled principle regarding natural justice. Suspicion of the petitioner could have been removed had the disciplinary authority independently decided the matter. However, this was not done. Therefore, likelihood of bias cannot be ruled out. In view of the above, I am of opinion that the enquiry is vitiated by probable bias.
13. The next submission of Mr. Sarma was that the subsequent removal was also illegal. From the facts it is clear that the subsequent removal was also on the basis of the report which had been submitted in the year 1973. The first order of removal was set aside by the Tribunal. Thereafter the petitioner was reinstated. His services were regularised treating the entire period of his suspension as on duty and the petitioner was also promoted to the post of Deputy Conservator of Forests. He was associated with a committee for enquiring into various malpractices/corruption/loss of revenue in Forest Department. He was also engaged as the full time member of the Standing Cell of the Forest Department. He collected, processed and compiled information for the purpose of framing departmental proceedings against Shri D.P. Neog who was suspended and later on reinstated. The petitioner was thereafter again removed from his service after several years. All these create doubt whether the petitioner was removed from his service on genuine grounds without any extraneous consideration.
14. In view of the above, I am of opinion that the impugned Annexure-27 order of removal and Annexure-29 appellate order cannot sustain in law and accordingly, I set aside those impugned orders. The petitioner shall be deemed to be in service from the date of his removal till he attained the age of superannuation. He shall be entitled to get all the pecuniary and other service benefits as he would have got had he not been removed from service.
15. Looking to the facts and circumstances of the case, I make no orders as to costs.