2013 (10) TMI 1521 - SC - Indian Laws

Alleged irregularity in the hiring of Civil Hired Transport (CHT) - non-supply of documents - applicability of the principles of natural justice - Scope of Jurisdiction Powers and authority of the Tribunal in service matters - inclusion of the Technical Members and the Presiding Officer in CoI. - plea for apprehension of bias - Violation of Rule 180 of the Army Rules 1954 - tests of real likelihood and reasonable suspicion - arrangement of documents or pagination of documents -Whether the Tribunal has appositely applied the principles in quashing the additional CoI including its composition - HELD THAT - The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual s perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters for the challenge of bias when sustained makes the whole proceeding or order a nullity the same being coram non judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one s individual perception or misguided intuition. 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 not sign the final report. Once they have given an opinion the possibility to support the same cannot be totally discarded. That is where the real likelihood of bias comes into play. In the present case it is irrefragably clear that the recommendation of CoI was the sole basis on which the disciplinary action has been initiated. Nothing else had come on record as observed by the Tribunal on earlier occasion as well as by the impugned order and the said finding is unassailable. That being the position we find in fitness of things the Presiding Officer should have recused himself to preside over CoI. However we must make it clear that on earlier occasion the Tribunal had not quashed the entire proceedings and the same was not challenged by either of the parties. Therefore the additional CoI which has been directed by the Tribunal by the impugned judgment shall only function as an additional CoI and deal with the documents which were produced earlier before the Tribunal in a tabular chart to which we have referred to hereinbefore. At this juncture we think it is necessary to observe that Respondent 1 at one point of time had filed a long list of witnesses. It is to be borne in mind that on the earlier occasion the Tribunal permitted for examination or cross-examination of witnesses who had something to do with the documents. The additional CoI shall keep that in view so that there is no procrastination of the proceedings at the behest of the delinquent officer for natural justice has also its own limitations. It can be allowed to become an unruly horse. The Preamble of the Act provides for adjudication or trial by the Tribunal of justice and compliance in respect of many a matter. As we find the Tribunal has been conferred powers to deal with the cases in promptitude. Promptitude does not ostracise or drives away the apposite exposition of facts and necessary ratiocination. A seemly depiction of factual score succinct analysis of facts and law pertinent and cogent reasoning in support of the view expressed having due regard to the rational methodology in our considered opinion are imperative. We have said so as we find that the Tribunal by the impugned order has not adverted to the necessitous facts. We say so despite sustaining the verdict. Ex consequenti the appeal being sans merit stands dismissed leaving the parties to bear their own costs.

Summary

Issues Involved:
1. Legal propriety of the Tribunal's judgment.
2. Alleged irregularity in hiring Civil Hired Transport (CHT).
3. Violation of Rule 180 of the Army Rules, 1954.
4. Non-supply of documents.
5. Inclusion of biased members in the Court of Inquiry (CoI).

Summary:

1. Legal Propriety of the Tribunal's Judgment:
The Supreme Court examined the legal propriety of the Tribunal's judgment dated 12-12-2012, which set aside the decision of the additional CoI and directed a fresh CoI with a different Presiding Officer and other independent members.

2. Alleged Irregularity in Hiring Civil Hired Transport:
A complaint was made on 5-8-2009 against Respondent 1, a Colonel in the Army, alleging irregularities in hiring CHT for supplying ordnance stores. The General Officer Commanding-in-Chief, Pune initiated an action by attaching Respondent 1 to Headquarters Sub-Area and convening a Board of Officers, which led to the CoI.

3. Violation of Rule 180 of the Army Rules, 1954:
Respondent 1 challenged the CoI proceedings before the Tribunal, contending deprivation of the right to cross-examine witnesses as per Rule 180 and non-supply of documents annexed after the CoI proceedings. The Tribunal initially found no merit in the grievance regarding cross-examination but acknowledged the non-supply of documents as a violation of Rule 180.

4. Non-Supply of Documents:
The Tribunal found that certain documents annexed to the CoI report were not made available to Respondent 1, violating Rule 180. Consequently, the Tribunal directed an additional CoI limited to these documents, allowing Respondent 1 to cross-examine witnesses related to those documents.

5. Inclusion of Biased Members in the Court of Inquiry (CoI):
Respondent 1 objected to the inclusion of Brig. N.S Ahamed as Presiding Officer and two Technical Members, Lt. Col. Sandeep Sinha and Maj. Sanjeev Narula, in the additional CoI, alleging bias. The Tribunal held that the inclusion of these members, who had prepared and arranged the documents, violated the principles of natural justice and Rule 180. The Tribunal concluded that their involvement raised a reasonable apprehension of bias, thus vitiating the additional CoI proceedings.

Conclusion:
The Supreme Court upheld the Tribunal's decision to quash the additional CoI and all consequential actions, directing a fresh additional CoI with different, unbiased members. The appeal was dismissed, emphasizing the necessity of impartiality and adherence to procedural safeguards in CoI proceedings.