TMI Blog2004 (8) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... linary Authority did not appoint any Presenting Officer to present the case. The Inquiry Officer himself acted as the Presenting Officer and conducted regular examination-in-chief of the prosecution witnesses and put questions suggestive of answers supporting the charges. The Inquiry Officer also cross- examined the defence witnesses. The action of Inquiry Officer acting also as the Presenting Officer, amounts to Judge acting as a prosecutor which is opposed to principles of natural justice. (ii) The documents requested by the Respondent to establish his case (Voucher Entry Book for the dates February 26, 1997 and February 27, 1997 and Cash Remittances (sic) dated February 27, 1997, March 1, 2, 4, 6, 7, 10 and 11, 1997) were neither produced nor made available for inspection, in spite of respondent insisting that they were necessary to prove that he was not guilty and one Albert Tigga and S.K. Dubey were responsible. The Respondent was thus prevented from effectively presenting his case to establish that he was not guilty. 3. The Tribunal by order dated March 25, 2004 allowed the application. It held that the Inquiry Officer acted as the Presenting Officer and thus the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed October 20, 1971 relied on by the petitioners reads thus: The Disciplinary authority may, by an order in writing on Standard Form No. 8 (Specimen in Appendix II) nominate a Railway Servant or any other Government Servant to be known as 'Presenting Officer' to present the case in support of the charges, before the Inquiring authority. The nomination of a Presenting Officer by disciplinary authority is not obligatory but only discretionary with the disciplinary Authority. In case, where no Presenting Officer is appointed, the inquiring authority may itself examine and cross-examine the witnesses to find out the truth of the charges. Such clarificatory circulars are issued by the Railway Board from time to time. These circular instructions change from time to time and are merely guidelines which have no statutory force. Though such circulars may be useful to regulate the affairs of the railway establishment, they cannot be pressed into service before a Labour Court or Tribunal to justify any illegal action. In fact, the said circular relied on by the department, has been diluted and modified in several subsequent circulars. Initially the practice was to appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ias ..... 11. ... For appreciating a case of personal bias or bias to the subject matter, the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. DE SMITH IN HIS JUDICIAL REVIEW OF ADMINISTRATOR ACTION (1980 Edition at Page 262) has observed that a real likelihood of bias means at least substantial possibility of bias. In R. v. Sunderland Justices (1901 [2] KB 357) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R, v. Sussex Justices (1923 All E.R. 233) it had been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In HALSBURY'S LAWS OF ENGLAND (4th Edition Vol. 2 Para 51 it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious misapprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr. Prem Chand (AIR 1957 SC 425). This Court has laid down that the test is not whether in fact, a bias ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult is staccato and unsatisfactory .... 12. In Abdul Wajeed v. State of Karnataka (1981 (1) SLR 454), a single Judge of the Karnataka High Court (RAM Jois J, as he then was) held: In my view, the cross-examination of PW-11 who had supported the version of the petitioner, and more particularly the cross- examination of the two defence witnesses by the Enquiry Officer suggesting to them that they were uttering falsehood is sufficient to hold that the Enquiry Officer was biased ... In my view, the cross-examination of defence witnesses by the Enquiry Officer was in plain violation of the principles of natural justice and consequently enquiry proceedings were vitiated. 13. In a subsequent decision in Bharat Electronics Limited v. K. Kasi, the same Judge stated the law succinctly thus at p. 208: 8. ... There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry. It is true that in the absence of Presenting Officer, if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid. 9. ..... if the Inquiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Officer examines the prosecution witnesses as a Prosecutor does by taking them through the prosecution case stage by stage and puts leading questions or questions which are intended to build up the case of the prosecution, and also cross-examines the defence witnesses or puts suggestions to them, to establish the prosecution case, then he crosses the Laxman Rekha and becomes the prosecutor and consequently the inquiry becomes vitiated. 16. We may summarise the principles thus: (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor. (ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry. (iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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