Point in Issue :
Whether the impugned order passed in appeal by same person who passed order as disciplinary authority is sustainable.

Jayant Patel, J.—Admit. Mr. NJ Shah, Ld. AGP waives service of notice of admission for the respondents.

2. With the consent of the Learned Counsel appearing for both the parties, the matter is taken up for final hearing.

3. The present appeal arises against the order dated 12/10/2010 passed by the Ld. Single Judge of this Court in Special Civil Application No. 12499 of 2010, whereby the petition is dismissed.

4. The only question to be considered in the present matter is whether the officer who acted as an appellate authority could hear the appeal against his own order in capacity as the disciplinary authority.

5. The relevant facts are that the petitioner – appellant was working as Sub Inspector and there were departmental proceedings against him in connection with the alleged misconduct. On 16/12/2005 show cause notice was issued and the petitioner submitted reply and thereafter, on 1/3/2006 ultimately in the departmental proceedings, the disciplinary authority Shri K.R. Kaushik, Police Commissioner, imposed the penalty of dismissal from service. The petitioner preferred appeal against the said order to the Director General of Police, Gujarat State. The said appeal came to be heard by the Director General of Police, but at the relevant point of time, the post was held by Shri K.R. Kaushik, the very officer who had acted as the disciplinary authority in capacity as the Police Commissioner. The said appeal was dismissed vide order dated 24/10/2007. The petitioner, against the said order, preferred revision under Section 27-A of the Bombay Police Act before the State Government. It was inter-alia contended that the very officer Shri Kaushik in capacity as the Director General of Police, has decided the appeal. The State Government vide order dated 26/3/2009 dismissed the revision, but did not consider the said aspect that the very officer had heard the appeal in capacity as the Director General of Police. Under these circumstances, the petitioner preferred the petition before this Court challenging the orders of the disciplinary authority as well as of the appellate authority and also the State Government imposing the punishment and confirmation thereof.

6. The Ld. Single Judge found that hearing of the appeal by the very officer was by way of mere coincidence and, therefore, ultimately for the reasons recorded therein, dismissed the petition. Under these circumstances, the present appellant is before us.

7. We have heard Mr. Upadhyay with Mr. Dagli, Learned Counsel appearing for the appellant as well as Mr. N.J. Shah, Ld. AGP for the respondents.

8. As such on the aspects of basic principles of natural justice and bias, the position of law is settled. No-one can be a judge of his own cause nor a person can be permitted to be a judge in which he himself is interested by way of a bias. The bias does not mean that he should have any particular interest or particular tangible interest. But in certain cases where there will be a question of deemed bias. Not only that but the basic principles of natural justice would also require that there is fair consideration independently by the authority other than those who had directly or indirectly involved itself in the litigation. The only exception is the principle of doctrine of necessity. If the doctrine of necessity is to apply, the question of deemed bias would not arise and would be within the power of the person concerned, who is the only person holding the post to exercise his power, might be that while working in the lower cadre, he had played any role in the disciplinary proceedings.

9. If the facts of the present case are examined, it is admitted position that Shri Kaushik in capacity as the disciplinary authority being Police Commissioner, had imposed punishment of dismissal upon the petitioner vide order dated 1/3/2006. Rule 9 of the Bombay Police [Punishment and Appeals] Rules, 1956 provides for right of appeal to the delinquent officer upon whom the punishment has been