The necessity of an unbiased inquiry officer and the consequences of bias in disciplinary inquiries.

PRADEEP NANDRAJOG, J.

1. Rule 36 (5) (c) of the CISF Rules, 2001 reads as under:-

“36(5)(c) Where the Disciplinary Authority itself inquires into any article of charge or appoints an Inquiring Authority for holding any enquiry into such charge, it may, by an order, appoint a member of the Force to be known as the „Presenting Officer? to present on its behalf the case in support of the articles of charge.”

2. Concededly the Rules were amended with effect from June 09, 2003 and aforenoted clause (c) in sub-Rule 5 was inserted. The charge memorandum was issued to the deceased petitioner on December 31, 2003 when clause (c) in sub-Rule 5 of Rule 36 was operative.

3. Yet in spite thereof the presenting officer was not appointed and the record shows to us that the witnesses were examined by the Inquiry Officer on his own. He has even put questions to the witnesses to elicit response which goes beyond seeking clarificatory questions. The Inquiry Officer has cross-examined the solitary defence witness examined by the deceased petitioner.

4. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. The principle has seven well recognised facets: (i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) A witness cannot be the Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations.

5. If any one of these fundamental principles of the rule is breached, the inquiry will be vitiated.

6. In the decision reported as AIR 1993 SC 2155 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School & Ors while dealing with this principle, the Supreme Court observed:-

"10. Since the rules of natural justice were not embodied rules it is not possible and practicable to precisely define the parameters of natural justice. ..........One of the cardinal principles of natural justice is 'Nemo debet esse judex in propria causa (no man shall be a judge in his own cause). The deciding authority must be impartial and without bias. A pre-disposition 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 .....

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 has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member