ORDER
1. The petitioner in this application have, inter alia, questioned a notification dated 4-2-1994 issued by the Central Government in exercise of its power conferred upon it under Section 24(1) of the Mines Act, 1952 (hereinafter referred to as ‘the said Act’).
2. The fact of the matter lies in a very narrow compass.
The petitioner No. 1 is an Association of Officers of Coal Industries and the petitioner No. 2 is the General Secretary of the petitioner No. 1. The other petitioners are Officers of the New Kenda Colliery belonging to Eastern Coal Fields Ltd. An accident occurred in the said New Kenda Colliery as a result whereof 55 lives were lost on 25-1-1994. The impugned notification reads thus:–
“Whereas an accident took place on 25th January, 1994 at New Kenda Colliery of Eastern Coal Fields, situate at Burdwan District in the State of West Bengal as result of which there has been loss of lives and properties.
And whereas it is the opinion of the Central Government that there must be formal enquiry regarding the causes of the accident and the circumstances relating thereto.
Hence, the Central Govt. in exercise of the provision laid down under sub-section (i) of Section 24 of the Mines Act, 1952 do hereby appoint on this day the Hon’ble Shamsuddin Ahmed, Ex-Judge of this Court, resident of 2A, Shamsul Huda Rd., Cal.-700017 to conduct such enquiry and submit a Report within three months. The Central Govt. also appoint the following persons as the assessors to the Enquiry Proceedings:
1. Prof. A. K. Ghosh, Director, Indian School of Mines, Dhanbad 926004.
2. Shri B. N. Tewary, General Secretary, Colliery Mazdoor Sabha (AITUC), G.T. Rd., Asansol, Dist. Burdwan, W.B.
Sd/-R. T. Pandey
Deputy Secretary,
Govt. of India.”
3. On 27-5-1994 a publication was made in the Statesman by the said Commission of Enquiry calling upon any person who has knowledge of the said accident or interested in any manner resulting from the said accident to file written-statement.
4. According to the petitioners they came to learn about the constitution of enquiry from the aforementioned notice published in the Statesman.
5. On 26-7-94 the petitioner No. 1 Association submitted a written statement. On 27-7-94, the instant writ petition was filed. It is also admitted that one Sri Soma Majhi who is said to be the Secretary of the Colliery Mazdoor Sabha, a Trade Union affiliated to CITU lodged a First Information Report as against the petitioners Nos. 3 to 5 purported
to be under Section 304 read with Sec-tion 120B of the Indian Penal Code. In that case, the petitioners Nos. 3 to 5 have obtained orders of anticipatory bail from this Court.
6. Mr. Saktinath Mukherjee, the learned Counsel appearing on behalf of the petitioner raised two contentions in support of this application.
7. Firstly it was submitted that keeping in view the fact that the petitioners Nos. 3 to 5 are accused in a criminal proceedings which arose out of a F.I.R. lodged by the aforementioned Sri Soma Majhi, Article 20(3) of the Constitution of India would come into play and thus the said petitioners cannot be compelled to give testimonies against themselves before the Commission of Enquiry.
8. The learned Counsel drew my attention to the fact that the Commission of Enquiry in terms of sub-section (2) of Sec. 24 of the said Act is conferred with powers of a Civil Court in the matter securing the attendance of any witness which in turn confers a right upon it to issue summons upon the petitioners and upon failure of the witnesses so summoned to appear pursuant thereto it may issue proclamation and warrant of arrest in terms of Order 16, Rule 10 of the Code of Civil Procedure.
9. The learned Counsel in support of the aforementioned contentions has relied upon the decisions of the Supreme Court of India in M.P. Sharma v. Satish Chandra, reported in AIR 1954 SCR 1077 and State of Bombay v. Kathi Kulu Ozhad, .
10. It was next contended that although the petitioners do have any grievance with regard to the appointment of Justice Ahmed and/or Shri A. K. Ghosh who is a reputed Mining Engineer as an Assessor, inclusion of Sri Tiwari in the aforementioned notification appointing him as an Assessor would affect the interest of the petitioners inasmuch as there is real likelihood of bias and/or reasonable suspicion that the petitioner would not get any justice at his hands, keeping in view of the fact that he is a Trade Union leader of repute and Sri Soma Majhi who has
lodged the aforementioned First Information Report is the Secretary of a Trade Union. The learned Counsel contends that apprehension on the part of the petitioners is fortified by the fact that the concerned Trade Union got itself added as party in this apph’cation and is opposing the cause of the petitioners.
11. The learned Counsel in support of his aforementioned contention relied upon Garner’s Administrative Law (6th Edition), De Smith’s Judicial Review of Administrative Action (4th Edition) and Wade’s Administrative Law at page 483.
12. The learned Counsel has also relied upon Manek Lal v. Dr. Prem Chand, ; Mineral Dev-elopment Ltd. v. State of Bihar, ; The Andhra Pradesh Road Transport Corporation v. Shri Satya Nara-yan Transport Co. (Private) Ltd., and Ration Lal Sharma v. Managing Committee, Dr. Hariram (Coeducation) Higher Secondary School, . The learned Counsel also placed reliance upon Metropolitan Properties Co. (F.B.E.) Ltd. v. Lonnon, reported in 1968 (3) All ER 304.
13. Mrs. Archana Sengupta appearing on behalf of the respondent No. 4, on the other hand, submitted that an enquiry under Section 24(1) of the said Act is a formal enquiry relating to the causes and circumstances of the accident and thus the petitioners are not entitled to the protection under Article 20(3) of the Constitution. It was submitted that an Assessor in terms of the said Act is only entitled to make some observations and , cannot submit a report. Mrs. Sengupta urged that only a public notice has been issued and thus neither any summon has been served upon the writ petitioners nor they have been asked to appear before the Commission of Enquiry and thus this writ application is premature.
14. Reliance in this connection has been placed on (S. S. Grewal v. Bhowara Kankonca Collieries Ltd.); (Tukaram Co. Grokev v. R. N. Shukla); (Ramanlal Bhagilal Shah v. D. K. Guha).
15. With regard to the contention of the petitioners that there is a real likelihood of bias, the learned Counsel drew my attention to the statements made in the affidavit-in-opposition to the effect that Sri Tiwari was appointed to protect the interest of the workmen, as he has a legal and special knowledge under the Industrial Disputes Act. The learned Counsel also drew my attention to the fact that Sri Tiwari has earlier been appointed as an Assessor in the enquiries constituted under Section 24(1) of the said Act.
16. Mrs. Sengupta also placed reliance upon Bhajonlal v, Jindal Strips Ltd., and Tata Cellulor v. Union of India, .
17. Mr. A. P. Chatterjee appearing on behalf of the added respondent viz. Colliery Mazdoor Sabha (AITUC) submitted that from a perusal of F.I.R. it would appear that Soma Majhi was not authorised to lodge F.I.R. by the Union how he did so in his capacity as the Secretary of the said Union. It was submitted that the Trade Union being a juristic person cannot have any bias inasmuch as bias on the part of any person must be a personal one. The learned Counsel submitted that the petitioners having not questioned the eligibility of the assessors, this application is not maintainable.
18. The learned Counsel appearing on behalf of the Intervenor Colliery Mazdoor Sabha (CITU) submitted that the petitioners have approached this Court after an inordinate delay. The learned Counsel submitted that it is not correct to contend that the petitioners had no knowledge of the constitution of the Commission of Inquiry, earlier, The learned Counsel pointed out that the notification was issued on 4-2-94 whereas writ petition was filed on 27-7-94. The counsel contended that if departmental proceedings and the criminal trial can proceed simultaneously, there is absolutely no reason as to why the proceedings of the Commission of Inquiry and the criminal trial cannot proceed simultaneously. It was pointed out that the Commission of Inquiry has been constituted for the finding out the real cause of accident and thus, the question of making any statement made by the petitioners against themselves does not arise.
19. Mr. P. K. Roy, the learned Counsel appearing on behalf of the Eastern Coal Fields Ltd. had drawn my attention to the first information report and submitted that a perusal thereof would show that the same has been lodged by Shri Soma Majhi in his personal capacity and not as an office-bearer of the Union. The learned Counsel submitted that the statements made in paragraphs 3 and 5 of the writ application would clearly show that Soma Majhi was a member of a Union which was affiliated to CITU whereas Shri Tewari’s Union is affiliated to AITUC. According to the learned Counsel there does not exist any concept of vicarious bias. The learned Counsel pointed out that the criminal case being under Sections 304 and 120B of the Indian Penal Code is not the subject matter of enquiry. It was pointed out that in the inquiry under Section 24(1) of the said Act, what has to be investigated is the accident, loss of lives wherein was the end result and thus, scope of the inquiry is distinct and different from the scope of investigation and trial in a criminal case. The learned Counsel has relied upon State of West Bengal v. Prasanjit Dutta, .
20. Mr. Kundu appearing on behalf of the Union of India supported the contention of
the other counsel.
21. The learned Counsel, however, has
cited the following decisions:–
a) (Maqbool Hussain v. State of Bombay);
b) (S. A. Venkataraman v. Union of India);
c) (Raja Narayanlal Bansilal v. Maneck Phiroz Mistry).
22. Before proceeding to deal with the rival contentions of the parties, as noticed hereinbefore, I may note that the points urged in this application are not attracted in any manner whatsoever so far as petitioners Nos. 1 and 2 are concerned. It is, thus, therefore, not at all understandable as to why the petitioner No. 1 of which the petitioner No. 2 is General Secretary have taken up the cause of the other petitioners. This writ application thus is not maintainable at the instance of the petitioners Nos. 1 and 2.
23. Article 20 of the Constitution of India reads thus:–
“(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.”
24. Article 20, therefore, provides for the protection in respect of conviction in any offence. On a plain reading of Clause (3) of Article 20 of the Constitution of India, there cannot be any doubt whatsoever that the said Clause grants protection to an accused of an offence against compulsion to be a witness against himself.
25. In view of the Sharma’s case (supra) a person becomes accused of an offence when a F.I.R. is lodged against him. ‘Offence’ has been defined in Section 3(38) of the General Clauses Act which means an act punishable under the Penal Code or any other Special or Local Law. (See Maqbool Hussain v. State of Bombay, ).
26. It is also evident that the protection under Clause (3) of Article 20 of the Constitution of India is available to a person against whom a formal accusation has been made, if such accusation relates to the commission of
an offence which in the normal course may result in prosecution. A formal accusation in view of the Sharma’s case (supra) need not wait till a process is issued, rather the immunity would commence from the moment a person is named in the First Information Report or a complaint which would in the normal course result in prosecution.
27. Keeping in view of the fact that in this case a F.I.R. has already been lodged as against the petitioners Nos. 3, 4 and 5; there cannot be any doubt that they are entitled to the protection in terms of Clause (3) of Article 20 of the Constitution of India. The question, however, which arises for consid-eration is as to whether the said protection is extended to a statutory formal enquiry and whether only on the said ground, the enquiry which has ‘been initiated by the Central Government in exercising of its jurisdiction under Article 24 of the Mines Act, 1952 (hereinafter referred to as ‘the said Act”) should be quashed.
28. The Mines Act had been enacted to amend and consolidate the law relating to the regularisation of labour and safety in mines. In terms of Section 23 of the said Act whenever any accident occurs in or about a mine, inter alia, causing loss of life and/or serious bodily injury to any person the owner, agent or Manager of the mines are statutorily obliged to give a notice of occurrence to such authority in such form and within such time as may be prescribed.
Section 24 of the Mines Act reads thus:–
“Power of Government to appoint court of inquiry in cases of accidents –
(1) When any accident of the nature referred to in any of the clauses of subsection (1) of Section 23 occurs in or about a mine, the Central Government may if it is of opinion that a formal inquiry into the causes of and circumstances attending the accident ought to be held, appoint a competent person to hold such inquiry and may also appoint one or more persons possessing legal or special knowledge to act as assessor or assessors in holding the inquiry.
(2) The person appointed to hold any such inquiry shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects.
(3) Any person holding an inquiry under this section may exercise such of the powers of an Inspector under this Act as he may think it necessary or expedient to exercise for the purposes of the inquiry.
(4) The person holding an inquiry under this Chapter shall make a report to the Central Government stating the causes of the accident and its circumstances, and adding any observations which he or any of the assessors may think fit to make.”
29. An enquiry under Section 24 of the said Act, therefore, is a formal enquiry. Such an enquiry is not a civil or criminal proceedings. Even the provisions of the Evidence Act stricto sensu are not applicable in relation thereto. Before such a court of inquiry there is neither any accuser nor any accused. In such an enquiry neither any charges are to be framed as against a particular person nor any person would be answerable to such charges. It is true that the Commission has the power to enforce attendance of any person but as would be indicated from the discussions made hereinafter, this Court at this siage is not concerned as to whether such person would get the immunity provided to him under Clause (3) of Article 20 of the Constitution of India. Such a court of inquiry, is also not a Court.
30. It may, however, be of some interest to note that Section 6 of the Court of Inquiries provides that any statement made by any person before such court of inquiry is not admissible in any civil or criminal proceedings. There appears to be some divergence in option as to the admissibility of such evidence.
31. In M/s. Alien Berry & Co. (P) Ltd. v. Vivian Bose, , it has been held that such a statement is protected under Clause (3) of Article 20 of the
Constitution of India.
32. The aforementioned decision, however, has been distinguished in Sohanlal Pahaladrai Vaid v. State, , wherein it has been held that such a statement of witness would be admissible in any civil or criminal proceeding for the purpose of corroboration of contradiction as provided for under Section 145 of Evidence Act. In another decision reported in 1968 MPLJ 629, the aforementioned decision was dissented from and it was held that statements made before court of inquiry is wholly inadmissible in any future proceedings, civil or criminal.
33. In the State of Assam v. Suprabhat Bhadra, reported in 1982 Cri LJ 1672, B. L. Hansaria (as His Lordship then was) inter alia, held that siatements made before court of inquiry can be used under Section 145 of the Evidence Act. In Kehar Singh v. The State (Delhi Admn.), , it has been held :–
“To my mind, there could be no other purpose for which the appellants could use the previous siatements of those witnesses. Contradiction could be used either to impeach his credit or discredit him or to pull down or bring down the reliability of the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the witnesses. The two aspects of the restrictions which Section 6 contemplates and have been discussed earlier are the only two aspects which could be the result of the use of these statemetns. I cannot find any other use of such previous statements in criminal proceedings. It is therefore clear that without going into the wider questions even a plain reading of Section 6 as discussed above will prohibit the use of the previous statements at the trial either for the purpose of cross-examinalion to contradict the witness or to impeach his credit. The only permissible use which has been provided under Section 6 which has been discussed earlier and therefore the courts below were right in not granting the relief to the accused.
The report of the Commission was also prayed for although learned Counsel could not clearly suggest as to what use report of the Thakkar Commission could he to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports.”
It is therefore evident that the report of such Commission would not be admissible in evidence in a criminal trial.
In Sharma’s case (supra), the Supreme Court observed:–
“In view of the above background, there is no inherent reason to construe the admit of this fundamental right as comprising a very wide range. Nor would it be legitimate to confine it to the barely literal meaning of the words used, since it is a recognised doctrine that when appropriate, a constitutional provision has to be liberally construed, so as to advance the intendment thereof, and to prevent its circumvention. Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components (1) It is a right pertaining to a person ‘accused of an offence’, and (2) It is a protection against such compulsion resulting in his giving evidence ‘against himself.”
It was observed:–
“Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is ‘to be a witness’ and not to ‘appear as a witness’is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him.”
34. The learned Judge further held that such protection is not only available to oral evidence but also to documentary evidence.
The learned Judges, however, did not decide as to why Section 94 of the Code of Cr. Procedure would apply in such a case or not. It was further held that search and seizure by a police officer is not protected under Clause 3 of Article 20 of the Constitution of India.
35. Sharma’s case (supra) has been distinguished in various subsequent decisions
inter alia in (State of
Bombay v. Kathi Kahi Oghad).
36. In State of Bombay v. Kathi Kalu Oghad, , upon which strong reliance has been placed by Mr. Mukherjee, the majority pointed out that the protection under Clause 3 of Article 20 of the Constitution of India is not available in respect of the documentary evidence. Kathi Kalu’s case (supra) was referred to a larger Bench as it was held that some of the propositions laid down in Sharma’s case may have been too widely stated and, therefore, requires to be restated with more particularity. It was held :
” ‘To be a witness’ may be equivalent to ‘furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purposes of identification.”
The learned Judges observed:–
“Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.”
(Underlining is mine for emphasis)
It was further observed :–
“In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a
character that it itself should have the
tendency of incriminating the accused, if not
also of actually doing so. In other words, it
should be a statement which makes the case
against the accused person at least probable,
considered by itself.”
(Underlining is mine for emphasis)
37. In Tukaram G. Gaokar v. R. N. Shukla, , the Supreme Court held that while considering the matter under Sea Customs Act, 1878 held that accused is entitled at his option to enter witness box in his own defence in such pro-ceding. There is no compulsion against him and such initiation of proceedings cannot violate constitutional protection under Article 20(3). The Supreme, Court having held that, the appellant before it was a person accused of an offence, observed that it was not possible at that stage to say that he is com-pelled to be a witness against himself. There is no compulsion on him to enter the witness-box. He may, if he chooses, not appear as a witness in the proceedings under Secs. 111 and 112. The Supreme Court noticed that an accused can give a statement even in a criminal trial under Section 342-A of the Criminal Procedure Code. He, therefore, cannot deny to give information regarding the matters which tend to incriminate him in proceedings against him under the Act. The Supreme Court in the aforementioned case refused to stay the summons.
38. This aspect of the matter has also been considered by the Supreme Court in Nandini Satpathy v. P. L, Dani, . In the aforementioned decision the Supreme Court was considering a prosecution under Sec. 179 of the Indian Penal Code for refusing to answer questions put to the appellant by the police officers in exercise of their jurisdiction under Article 161 of the Code of Criminal Procedure. The Supreme Court observed :–
“Not all relevant answers are criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge. The spirit of the American rulings and the
substance of this Court’s observations justify this ‘wheels within wheels’ conceptualization, of self-accusatory statements. The orbit of relevancy is large. Every fact which has a nexus to any part of a case is relevant, but such nexus with the case does.not make it noxious to the accused. Relevance may coexist with innocence and constitutional censure is attracted only when inference of inocence exists, and an incriminatory inference is not enough for a confession. Only if without more, the answer establishes quit, does it amount to a confession. An illustra-tion will explicate our proposition.”
The apex Court referring to a decision in Hoffman v. United States, reported in 341 US
479 (1951) held:–
“Merely becuase he fancied that by such answer he would incriminate himself he could not claim the privilege of silence. It must appear to the court that the implications of the question, in the setting in which it is asked, make it evidence that a responsive answer or an explanation or why it cannot be answered might be dangerous because infurious disclosure could result The apprehension of incrimination from the answer sought must be substantial and real as distinguished from danger of remote possibilities or fanciful flow of inference. Two things need emphasis. The setting of the particular case, the context and the environment i.e., the totality of circumstances, must inform the perspective of the court adjudging the incriminatory injury, and where reasonable doubt exists, the benefit must go in favour of the right to silence by a liberal construction of the article.”
The Supreme Court referred with approval of its decision in Kathi Kalu’s case (supra) and stated:–
“In order that a testimony by an accused person, may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the
accused person at least probable, considered
by itself.
The Supreme Court held:–
“The conspectus of circumstances persuades us to exercise our power under Article 226 read with Article 136 and Section 401 of Cr.P.C. to make the following direction. We are satisfied that many of the questions put by the police are not self-incriminatory, remote apprehensions being wholly irrelevant. To answer is citizen’s duty; failure is asking for conviction. The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigations or prosecution. If she claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self-incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be a wilful violation under pretend of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles we have set out. Section 179, IPC should not be unsheated too promiscuously and teasingly to tense lay people into vague consternation and covert compulsion although the proper office of Section 179, IPC is perfectly within the constitutional limits of Article 20(3).”
39. In view of the abovementioned decision of the Apex Court, it is not possible to hold that the petitioners Nos. 3, 4 and 5 cannot be summoned to appear as witnesses by the Court of enquiry or its constitution is liable to be quashed on that ground.
40. It is true that the commission has the jurisdiction to enforce attendance in exercise of its jurisdiction in terms of 0.16, R. 10 of the Code of Civil Procedure.
41. The question of asking for any protection of the petitioners Nos. 3 to 5’s constitutional right under Article 20(3) would arise when they are actually summoned and are put questions which would self-incriminate them.
42. The submission of Mr. Mukherjee to
the effect that statements by way of confes
sion made by an accused before the Court of
Inquiry may, be admissible against him in a
criminal trial cannot also be accepted. Com
mission cannot force the petitioners Nos. 3 to
5 to make any confession. Voluntary state
ments, as noticed hereinbefore, on the part of
the witnesses against themselves are not protected as the same does not amount to be
compulsion to be witnesses against them
selves”.
43. The Commission is to submit its report to the Central Government. The Central Government may accept the report or may not do the same. Such an enquiry made by a commission is not a judicial or a quasi-judicial enquiry. Its only function is to enquire into facts and record its evidence adduced before it and report to the Government in order to enable it to make up its mind as to what administrative measures should be adopted to remedy the evil found i.e. to take preventive measures, from similar accident taking place in future. The Commission has no power of adjudication in the sense of
passing an order which can be enforced proprio vigore. It cannot even make recommendations as to the measures to be adopted including punishment for future action against any particular person. The purpose of such an enquiry is only an investigation of certain facts namely causes and circumstances of the accident. The First Information Report lodged by Soma Majhi against the respondents Nos. 3 to 5 under S. 304 read with S. 120(B) of the Indian Penal Code i.e. culpable homicide not amounting to murder with criminal conspiracy.
44. In Raja Narayanlal Bansilal v. Maneck Phiroz Mistry ,
the Supreme Court observed:–
“There are two other subsequent decisions of this Court to which reference may be made. In Thomas Dana v. State of Punjab, , according to the majority decision ‘prosecution’ in Art. 20(2) means a proceeding either by way of indictment or information in a criminal court in order to put an offender upon his trial. It would be noticed that this conclusion is wholly consistent with
the view taken by this Court in the case of Maqbool Hussain, 1953 SCR 730 : AIR 1954 SC 325 and S. A. Venkataraman, . In Mohammed Dastagir v. State of Madras, AIR 1960 SC 756 : (1960 Cri LJ 1159) this Court had to consider Art. 20(3).”
45. The aforementioned charges are not to be investigated by the commission. The scope and purport of the criminal trial as against the petitioners Nos. 3 to 5 and the matter before the commission of enquiry are absolutely distinct and different. The decisions cited by Mr. Kundu appearing on behalf of the respondent’No. 1 may now be noticed. In Maqbool Hussain v. State of Bombay , the Supreme Court was considering the scope of cl. (2) of Art. 20 of the Constitution of India. In that case it was held that proceedings for enforcement under the Sea Customs Act and Foreign Exchange Regulation Act is not barred. It was held that those authorities are not courts. It was observed :–
“The tests of a Judicial Tribunal were laid down by the court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, , in the following passage quoted with approval by Mahajan and Mukherjee, JJ. from Cooper v. Wilson, (1937) 2 KB 309 at p. 340:
‘A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties, and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application 6f the law of the land to the facts so found, including where required a ruling upon any disputed question of law’.”
46. In S. A. Venkataraman v. Union of India , the Supreme Court again was concerned with a case involving interpretation clause (2) of Art. 20 of the Constitution of India. It was held that enquiry under Public Servants (Inquiries) Act does not come within the purview of Art. 20 of the Constitution of India. It was observed :–
“An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses. It is a matter of convenience merely and nothing else. It is against this background that we will have to examine the material provisions of the Public Servants (Inquiries) Act of 1850 and see whether from/ the nature and result of the enquiry which the Act contemplates, it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence.
In our opinion, therefore, in an enquiry under the Public Servants (Inquiries) Act of 1850, there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes that act or omission an offence.”
47. In A. T. & T. Istol Ltd. v. Tully reported in 1993 AC 45, an action for damages for fraud and breach of trust, plaintiffs obtained order requiring defendants to disclose information and documents defendants claimed privilege against self-incrimination. The Appeal Court distinguished the judgment of Regina v. Director of Serious Fraud Office, ex parte Smith reported in 1993 AC 1, wherein it has been held :–
“This is a powerful reason for the existence of the privilege against self-incrimination in certain circumstances. Indeed, in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions. Neither of these considerations
applied to the present appeal. It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession OF power and which speak for themselves. And, it is fanciful to suggest that an order on Mr. Tally to say whether he has received Abbey’s money and if so what has happened to that money could, result in his ill-treatment or in a dubious confession. I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the post when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiffs property or money.”
48. There is another aspect of the matter
which may be taken note of. If the contention
of Mr. Mukherjee is to be accepted, an
employee which charged with serious offences
can never be departmentally proceeded
against. Mr. Mukherjee himself relied upon a
decision of the Supreme Court in Kusheshwar
Dubey v. M/s. Bharat Coking Coal Ltd.
. In that judgment itself the Supreme
Court approved Delhi Cloth & General Mills’
case, (supra), wherein it was
held:–
“It is true that very often employers stay
enquiries pending the decision of the criminal
trial courts and that is fair; but we cann9t say
that principles of natural justice require,that
an employer must wait for the decision at least
of the criminal trial court before taking action
against an employee.”
It further referred to Tata Oil Mills’ ‘case, (supra), wherein the Supreme Court followed Delhi Cloth and General Mills’ case (supra).
49. The Supreme Court in Jang Bahadur’s case, (supra) held (at p. 32 of AIR):–
“The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in
a civil or criminal proceeding pending in a Court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order a wilful violation of the order, would of course amount to contempt of court. In the absence of a stay order the disciplinary authority free to exercise its lawful powers.”
50. The Supreme Court held that there
should be no legal bar for simultaneous
proceedings being taken, yet, there may be
cases where it would be appropriate to defer
disciplinary proceedings awaiting disposat of
the criminal case. It was further observed that
concerned workmen can obtain an order of
injunction or stay from the court in the
following terms:–
“Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.”
The Supreme Court however did not lay down any general guideline.
51. The aforementioned decision has been considered by me In re: Basudev Mitra reported in 1994 (2) Cri LJ 165, wherein upon taking into consideration a large number of decisions, I have held that there is no legal right in the petitioner to obtain an injunction or a stay of departmental proceedings irrespective of the nature of case and irrespective of the stage thereof.
52. In State of West Bengal v. Prasenjit Dutta , the Supreme Court set aside a decision of this court wherein departmental proceedings was stayed in a case where the delinquent officer was charged with bigamy holding that a serious question like taking place of second marriage could not be left to be decided by the departmental authorities, holding :–
“The view of the High Court may be correct that a matter such as the present one con-cerning the existence or not of a relationship of husband arid wife is normally to be dealt with in a matrimonial or a civil court. It cannot at the same time be said that the departmental authorities cannot go into such question for the limited purposes of sub-rule (4) of R. 5 of the aforesaid Rules. When contracting another marriage in the presence of the previous one, has been termed to be misconduct visiting departmental punishment it is difficult to keep suspended action under Rule till after a proper adjudication is made by the civil or matrimonial court. It would, thus, have to be viewed that the departmental proceeding could not be shut in the manner in which the High Court has done and it would have to go on the some finality at a departmental end, on the culmination of which, it may then give rise to the delinquent approaching the civil court for determining his matrimonial status.”
53. This decision, therefore, lays down the law in no unmistakable terms that there cannot be any hard and fast rule to stay the departmental proceedings or an administrative proceedings pending a criminal case for long quashing the said proceedings, on that ground alone.
54. In fact, as noticed hereinbefore, a proceeding initiated under a notification under S. 24 of the said Act is not even a departmental proceeding and by reason thereof no civil or evil consequences would ensue against any officer. The Court of Inquiry, at the cost of the petition, it may be stated, is a recommendatory authority and not an adjudicatory authority. Thus question of quashing an enquiry pending a criminal case only against three of the officers of the
Eastern Coal Field Ltd. cannot be
countenanced.
55. I may, however, observe that if any occasion arises it may be open to the petitioners Nps. 3 to 5 to claim protection against compulsion of being witnesses against themselves in terms of clause (3) of Art. 20 of the Constitution of India, which have to be decided on their own merits. But this Court at this stage, in ray considered view, cannot quash the notification issued by the Central Government only on that account, more so in view of the fact that the commission has been entrusted with a statutory fact finding enquiry.
56. The next question which arises for consideration in this application is as to whether the petitioners would be prejudiced only because one Soma Maghi has lodged First Information Report against petitioners Nos. 3 to 5. It may, however, be noticed that the Court of Inquiry merely published in the Statesman asking any person or body of person who are interested in any manner with regard to accident occurred on 25th January, 1994 in New Kenda Colliery of Eastern Coal Fields Ltd. to file written statement. No notice thus has yet been issued to the petitioners Nos. 3 to 5 by the Court of Inquiry and thus the question of any compulsion does not arise at all.
57. Let me now consider the question of bias. The petitioners have not made any complaint with regard to the appointment of Justice Ahmed and/or Sri Chose. The only contention raised in this application is with regard to Sri B. N. Tewarry who has been appointed as an assessor describing him in the notification itself as “General Secretary, Colliery Mazdoor Sabha (AITUC).” The contention as noticed hereinbefore is likelihood of bias on his part as he is a trade union leader.
58. It is also contended that the union of which Sri Tewarry is the General Secretary has been added as a party in this application which also shows the interestedness of the union in the matter.
59. Natural justice as is well known is founded on two basic principles:
(a) Audi alteram partem.
(b) Nemo judex in causa sua.
60. The duly to act fairly is the theme of the principles of natural justice. However, the extent of the duty to act fairly will normally be very limited where the authority exercises a function which does not culminate in a binding decision. The Rule generally applies, at least with full force, only to conduct leading directly to a final act of decision, and not to the making of a preliminary decision or to an investigation designed to obtain information for the purpose of a report or a recommendation on which a subsequent decision may be founded. (See Halsbury’s Laws of England, Vol. 1(i), 4th Edition, paras 85 and 94.)
61. The standard of fairness may be different where the proceedings are in inquisitorial form.
62. Bias can be classified under three different heads:
(a) a legal interests which mean that the Judge is “in such a position that a bias must be assumed.”
(b) pecuniary interest.
(c) personal bias.
63. Law in this regard has expanded to a great extent. In J. F. Garner’s Administrative Law, it was stated:
“The natural justice ‘bias’ rule looks to external appearances rather than to proof of actual improper exercise of power. If the reasonable observer would have the requisite degree of suspicion of bias in the decision-maker then that decision can be challenged. It is a matter of the courts ensuring that ‘justice is seen to be done’. Since successful challenge is based on appearances, it is natural that the types of matter to which the rule applies is somewhat confined. As we shall see it clearly applies to judicial and disciplinary functions but not generally more widely to administrative decision-making and actions.”
64. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon reported in 1968 (3) All ER 304, Lord Denning MR observed :–
“In considering whether there was a real likelihood of bias; the court does not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that in the circumstances, there, was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand; see R. v. Huggins (8), Sunderland Justices (9), per Vaughan Williams, L. J. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; see R. v. Camborne, Justices, ex parte Pearce (10); R. v. Nails-worth Justices, ex parte Bird (11). There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be would, or did, favour one side unfairly at the expenses of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking; ‘The Judge was biased’.”
However, it may be noted that the learned Judge noticed –
“I hold, therefore, that Mr. John Lannon ought not to have sat on this rent assessment committee. The decision is voidable on that account and should be avoided. Although we are differing from the Divisional Court, I would like to say that we have had a good deal more information than that court had. In particular, we have seen a letter of January 13, 1967 and other things not before them when they gave their rulings. Otherwise I would not have thought it right to interfere”.
(Underlining is mine for emphasis)
Danckwerts, L.J. observed:
“Of course, I am not saying that the mere fact that a solicitor had acted for or advised
tenants should disqualify him from sitting. But the facts of this case display some lack of appreciation of the rules of conduct by Mr. Lannon, and my conclusion is that it was not wise of Mr. Lannon to act as Chairman of the Committee in the circumstances”.
65. The aforementioned passages have been quoted with approval in almost all the Text Books on Administrative Law.
66. De Smith in his Administrative and Constitutional Law observed:–
“It would be unreasonable to apply the rules to the performance of formal ministerial acts by officers who, if acting in a judicial capacity, would have been disqualified”.
The learned Author further states the law
thus:
“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 abdicalors 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.”
67. The learned Author, however, noticed that the reports and preliminary decisions may nevertheless have a seriously prejudicial effect on the legally protected interests of individuals (e.g. when it is a necessary pre-requisite of a final order). The person making the report or preliminary decision must not be affected by interest or likelihood of bias.
68. In this case the enquiry is not necessarily a pre-requisite of a final order. The learned Author, however, has also noted a contrary decision in Barker v. Westmorland C.C. (1958) 56 LGR 267, where child care order by Magistrates on recommendation of
sub-committee, the Chairman of which was (so it was claimed) likely to be biased against father.
The learned Author also noticed:–
“However, the pendulum has now swung towards a test of reasonable suspicion, founded on the apprehensions of a reasonable man who had taken reasonable steps to inform himself of the material facts. ‘Reasonable suspicion’ tests look mainly to outward appearances; ‘real likelihood’ tests focus on the court’s own evaluation of the probabilities; but in practice the tests have much in common with one another, and in the vast majority of cases they will lead to the same result. For the courts to retain both tests lis alternative methods of approach is unlikely to cause serious uncertainty, and there may be advantages in preserving a measure of flexibility. It would be surprising, surely, if a court were to refuse to set aside a decision on the ground that a reasonable observer could not have discovered facts that subsequently came to light and which indicated to the court that there was a real likelihood of bias in the adjudicator”.
With regard to the likelihood of bias the learned Author observes:–
“But the evidence must be compelling; the courts are reluctant to conclude that any judicial officer’s judgment is likely to be warped by personal feeling. General expres-sions of hostility towards a group to which a party belongs (e.g. teachers or motorists) do not disqualify.”
(Underlining is mine for emphasis)
The learned Author states :–
“Two main classes of cases may arise although they are by no means exhaustive. The first is where an adjudicator is associated with a body that institutes or defends the proceedings. The courts have refused to hold that a person is disqualified at common law from sitting to hear a case merely on the ground that he is a member of the public authority, or a member of or subscriber to the voluntary association, that is a party to the proceedings.”
It was also stated:–
“In another case, where a single councillor was alleged to be likely to be biased in connection with a similar application there was a divergence of opinion on the question whether, if the allegations had been made out, the decision of the council would have been automatically tainted.”
69. H. W. R. Wade in his Judicial Law (6th Edn.) at p. 483 observes that dictum of even unreasonable suspicion of bias has been recognised as having gone too far (see R. v. Camborne Justices ex parte Pearce (1955) 1 QB 41 at p. 48),
70. Even in Metropolitan Properties (FGC) Ltd.’s case (supra) Lord Denning MR observed that nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough.
71. In Manak Lal v. Dr. Prem Chand , the Supreme Court observed (at p. 429) :–
“But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always by a question of fact to be decided in each case. ‘The principle’, says Halsbury, ‘nemo debet esse judex in causa propria sua precludes a justice, who is interested in the subject-matter of a dispute, from acting as a justice therein’. In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justice as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties”.
72. In Andhra Pradesh State Road Transport Corporation, Hyderabad v. Sri Satyanarayana Transports (P) Ltd., Guntur , the Supreme Court held that the elementary rule of natural
justice that person trying a cause, though in a quasi-judicial proceeding, should not suffer from a personal bias. In this case the proceedings before the Court of Inquiry is not a quasi-judicial proceedings. The Apex Court stated (at p. 1307):–
“We ought, however, to add that in the light of the general considerations which we have set out, it is of utmost importance that in appreciating evidence, the Court ought to adopt a very cautious, circumspect, and careful approach. If the evidence led by the parties in such a case is tested by cross-examination, it would be easier to determine where truth lies. But in the absence of cross-examination, appreciating the effect of com-peting affidavits is hot an easy matter. In such a case, the Court must always enquire-on which side the probabilities lie and must scrutinise the affidavits very critically to determine which of them deserves to be believed. Naturally, in dealing with such a question of fact in appeal, we are normally inclined to attach importance to the findings of fact recorded by the High Court itself.”
73. The Supreme Court in the aforementioned decision accepted the judgment, of the High Court that the Ministers’ affidavit against whom bias was alleged was evasive. The High Court pointed out to the Advocate-General that it was not satisfied with the affidavit-in-opposition but despite the same no attempt was made on behalf of the Minister to file further affidavit. The Supreme Court further noticed that the persons who have made affidavit in support of Ramakotaiah’s case were all men of status and no allegation was made indicating that they were either hostile to the Minister, or had any other motive in making false affidavits.
74. In Mineral Development Ltd. v. The State of Bihar , the Supreme Court was concerned with a matter relating to the cancellation of licence. K. Subba Rao, J. laid down the law governing doctrine of bias vis-a-vis judicial tribunals. The exception can be taken by the aforementioned faw but as indicated hereinbefore, it is not a case of judicial enquiry.
75. In Ratan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School , the Supreme Court considered a large number of decisions and observed that the requirement of the natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter i.e. being dealt with, and so forth. It further noticed that the doctrine of natural justice Cannot be put within the straight-jacket of rigid formula.
76. The Supreme Court further noticed that De Smith in his Judicial Review of Administrative Action at page 262 observed that a real likelihood of bias means at least a substantial possibility of bias. In the fact of the said case, however, the Apex Court held that there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the Inquiry Committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the inquiry proceeding as a member of the Inquiry Committee to uphold the correctness of his deposition as a Judge.
77. In the fact of the said case the Supreme Court held that the bias of Shri Maru Ram as one of the members of the Inquiry Committee has percolated throughout inquiry proceeding thereby vitiating the principles the of natural justice and the findings made by the inquiry committee was the product of a biased and prejudiced mind.
78. In S. A. De Smith’s Constitutional and Administrative Law (Second Edition) at page 577 it is observed :–
“Clearly there is scope for the exercise of judicial discretion, given these vague criteria. Take three recent cases. In one, the court reasonably decided that a police medical officer who had already formed an unfavourable opinion of a Chief Inspector’s psychiatric condition should be prohibited from examining him again with a view to certifying him as
permanently disabled which could lead to compulsory premature retirement. In another, the court held that it was contrary to natural justice for school governors to sit as members of a local education authority’s sub- ‘ committee which had to decide whether or not to uphold a decision of the governors (taken at a meeting at which they had not been present) to dismiss a teacher. Yet in a third case, the court refused to interfere with a decision by governors of a teachers’ training college to confirm the expulsion of a student (who had had a man in her room for some weeks) although they had initiated the disciplinary proceedings themselves.” (Ward v. Brad Ford Corporation, (1971) 70 LGR 27).
79. In Halsbury’s Laws of England (paragraph 89) it has been held that it is generally unnecessary to establish the presence of actual bias although there have been cases outside the field of strictly judicial proceedings where a less stringent test has been applied.
80. In Wade and Forseith’s Administrative Law at page 485 the learned Authors refer to the case of Ward v. Brad Ford Corporation (supra) in the following terms:–
“In a contrasting case, where a student at a teaching training college was expelled for having a man living with her in her room, the Court of Appeal upheld the expulsion even though it was effected by the board of governors who had taken it upon themselves to refer the case to the disciplinary committee which recommended expulsion.”
However, in the said case Hannam v. Brad Ford Corporation’s case was not referred to.
81. In Halsbury’s Laws of England (paragraph 85) the said decision has been quoted in Note 7 stating (see also Ward v. Brad Ford Corpn., (1971) 70 LGR 27 CA) ‘expulsion of student teacher for misconduct; duty to act fairly carried out although disciplinary reference instituted by the deciding body’.
82. It may, however, be noticed that this case has also been referred to at page 565 of Wade and Forseith’s Administrative Law (1994 Edn.).
83. The apprehension against Shri Tiwari is that he being a member of Trade Union affiliated to AITUG may be biased Soma Maghi who has lodged the First Information Report is a member of a Trade Union which is affiliated to CITU.’It is a common knowledge that both the Trade Unions are rival of each other.
84. The Court of inquiry is not dealing with any matter under Industrial Disputes Act. It has to deal with the causes and circumstances of the accident which took place in the Colliery. Only because sri Tiwari is a member of Trade Union, the same ipso facto does not mean that he will be biased or there is any real possibility of bias on his part It is interesting to note that in paragraph 88 Halsbury’s Laws of England 88 it has been stated:
“It is not enough to show that the person adjudicating holds strong views on the general subject matter in respect of which he is adjudicating, or that he is a member of a Trade Union to which one of the parties belongs where the matter is not one in which a trade dispute is involved.”(Stevensv. Stevens (1929) JP 120).
85. It is also pertinent to note that recently in Regina v. Gough reported in, 1993 A-ppeal Cases 646, the House of Lords tilted towards the possibility of bias rather than probability of bias. The House of Lords decisively restated the real likelihood tests in a criminal case.
86. In the Cough’s case (supra) at the trial on Mrs. Smith was a member of the Jury. She was recognised by Gough who was attending his brother’s trial but he was not tried with him as one of his next-door-neighbour. After the appellant had been sentenced David Gough started shouting and it was at this point that the juror, Mrs. Smith recognised . him. The facts were placed before the Judge who decided that he had no jurisdiction to take any action, the appellant having been convicted. A statement was taken from Mrs. Smith which was verified by affidavit wherein she stated :–
“(1) when she began her service on thejury
she did not recognise the name ‘Gough’ as she knew her neighbour as ‘Steve’. Similarly she knew David’s wife as Elaine during the two years that they had been her next door neighbours. (2) The name David Gough was mentioned on a number of occasions during the course of the trial. (3) She had no recollection of ever seeing the appellant before the trial; and had no idea he was the brother of her next door neighbour. (4) On 24 April, 1991 during the trial, prosecution counsel read out a statement which contained the address, 3, Buckley Way Mrs. Smith lives at No. 2 — and concerned the Capri motor Car. She wondered whether Steve was David Gough but thought it could not be him as he was called Steve. She was confused. (5) The photographs of the appellant and David Gough respectively were shown to the jury during the trial of the appellant. They were police photographs colloquially known as ‘mug shots’. Mrs. Smith did not recognise David. (6) The fact that David Gough was her neighbour did not influence her thinking as a juror and she did not mention the matter to her fellow members of the jury”.
87. The House of Lords referred to various decisions and dismissed the appeal stating the law thus:–
“That test was applied in Reg. v. Mulvihill, (1990) 1 WLR 438, when a Judge tried a robbery case where the loser was a bank in which he held shares, the court distinguishing between the role of the Judge and the jury. The Topping test, if one can use that abbreviation, was also applied in Reg. v. Morris (orse. Willams), (1990) 93 Cr App R 102 by this court. During a trial on indictment for theft from Marks and Spencer Plc. it emerged that one of the jurors was an employee of that organisation though working at a different branch. Inquashing the conviction the court held that the Judge when asked to discharge the juror had not gone into the question of ‘the appearance of bias’.
It is difficult to discover any basis on which these two lines of authority can live together. Mr. Moran has submitted that a distinction can be drawn between the test to be applied in jury cases and that which is appropriate for
magistrates’ courts or other inferior tribunals entrusted with fact finding responsibilities. We feel we must accept this distinction because there is no other way of reconciling most of the authorities, though it is difficult to understand why the test of bias should be any different in considering the position of a magistrate compared with that of juror. The pnly case which cannot be fitted into this dichotomy is the one last cited, namely Reg. v. Morris (orse. ‘Williams), in which giving the judgment of the court I applied the Topping test, (1983) 1 WLR 119, to the position of a juror. The decision in Reg. v. Morris (orse. Williams), 93 Cr App R 102, cannot stand With that of the five judge court in Reg. v. Box, (1964) 1 QB 430, and, having regard to the decision of the House of Lords in Reg. v. Spencer, (1987) AC 128, Reg. v. Morris (orse. Williams) should not be followed to the extent that it applies the Topping test to trials
on indictment.
Accordingly, the appeal fails on this point because of the application of the ‘real danger’ test to jury trials in cases of bias. It is, therefore, not necessary to decide whether(a) the application of the Topping test would have caused a different result, or (b) whether there was in fact any bias.”
88. In the aforementioned decision, therefore, even a distinction has been made in relation to a real likelihood of bias between a jury and a Judge.
89. It may be also of some interest is not that there are several decisions wherein a distinction has been made between a function of a Minister as a Judge and in his administrative capacity.
90. It is not necessary to multiply decisions on the aforementioned point as the matter has also recently been considered by the Supreme Court in Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal Strips Ltd. reported in, . In the aforementioned decision the Supreme Court was considering bias on the part of S.S. Sodhi, J. of Punjab and Haryana High Court (as his Lordship then was). The Apex Court considered various decisions and held that hardly
there is any ground to have a reasonable suspicion of bias in that case, stating:
“It is in the light of this the matter will have to be examined. So done, we hardly find any ground to hold that there could be a reasonable suspicion of bias in this case. That is evident from the facts. The case was in the list of the Bench headed by S.S. Sodhi, J. from 3-8-92 to 21-10-92. No objection was raised. Arguments were advanced for three days on the main writ petition. The application for transfer was taken out on the ground of alleged bias. By then the matter was coming to a close. It cannot be said that there could be any reasonable apprehension of bias which a reasonable person could entertain, as rightly urged by Mr. Shanti Bhusan. It appears the attempt was to avoid the Bench headed by S.S. Sodhi, J”.
91. Yet again the Supreme Court in Tata Cellular v. Union of India reported in, rejected a plea of bias stating Mr. B.R. Nair was not a decision-maker at all. He was one of the recommending authorities.
92. It is It true that in the aforementioned case the Supreme Court also held that participation of Mr. Nair as a recommending authority came within the purview of doctrine of necessity. However, as noticed hereinbefore the Supreme Court also observed that he was not a decision-maker but only one of the recommending authorities.
93. In the Court of Enquiry the role of assessor is limited. He is merely to assist the court of inquiry. The report will be that of the commission and not of the assessors. However along with the report of the commission, the observation of the assessors may be appended.
94. It is not a case where any allegation has been made that Sri Tiwari has any personal or pecuniary bias. The likelihood of his institutional bias appears to be far fetched. Only because the Trade Union to which he belongs has opposed the application does not mean that Sri Tiwary himself would in any way be biased in the matter. In fact, as noticed hereinbefore, Sri Soma Maghi who lodged
the First Information Report belongs to a rival union. It has been pointed out by the parties that in all earlier Court of Enquiry, a member of the Trade Union was made an assessor. In fact, a notification dated 16th April, 1990 has been produced before me wherein both Sri Tiwari and Sri Ghosh were made assessors in an enquiry in the accident which occured in the Mahabir Colliery of M/s. Eastern Coalfields Ltd.
95. The Colliery Mazdoor Sabha in his application for addition of party has stated:–
“The applicant submits that the allegations in respect of B.N. Tewary as Assessor on the ground of his Trade Union Connection are baseless and unreasonable inasmuch as past history of such Courts of Inquiry will show that, in every Court of Inquiry Trade Unionist of repute was made Assessor. The applicant gives below an incomplete list of such Courts of Inquiry with Trade Unionist as one of the Assessors, though the list is not complete-
(a) Jeetpur Coal Mines Accident on 18-3-1973 where 48 persons were killed. The Assessors of the Court of Inquiry included Sri Lalit Barman, Secretary, Indian Mines Workers* Federation.
(b) Sudamidih Colliery-Accident took place on 4-10-1976 where 46 persons were killed. One of the Assessors was Sri Damodar Pandey, Secretary, Colliery Mazdoor Sangha.
(c) Chasnala Colliery-Accident took place on 27-12-1975. One of the Assessors in the said enquiry was Sri Damodar Pandey, Secretary, Colliery Mazdoor Sangha.
(d) Silware Colliery Accident. Out of 4 Assessors two were Trade Unionist, namely, Sri S.W. Dhabe, M.P. Member, Working Committee, Indian National Mines Workers Federation and Sri S.K. Sanyal Working Committee Member of AITUC.
(e) Central Sound ha Colliery Accident. One of the Assessors was Sri S. Dasgupta, General Secretary, Indian National Mines Workers’ Federation.
(f) Dessurgarh Colliery Accident. Out of 4 Assessors two were Mr. R.N. Sharma and Mr. Lalit Barman, both workers’ representative.
96. Thus, if the plea of the petitioner is accepted in no such case, any office-bearer of the Trade Union can be appointed as an assessor.”
In D.D. Basu’s Administrative Law it is
stated:–
Procedure of the Commission.
1. Subject to any rules made by the appropriate Government in this behalf, the Com- mission of Inquiry may regulate its own procedure and to decide whether it will sit in private or in public (S. 8). The Commission has the powers of a civil court in respect of summoning of witnesses, production of documents, receiving evidence on affidavits and such other powers as hiay be specified in the notification creating the Commission (Ss. 4-5).
2. Since a Commission of Inquiry is an administrative body and not a judicial or quasi-judicial tribunal, it is not bound by the rules of evidence. It is not trying any cause between contesting parties and its proceedings are not as formal as in a judicial inquiry. Nevertheless, it must be fair and impartial.
3. The Commission may proceed on affidavits and there is no scope for cross-examination of any witness by a party likely to be affectd by the proceedings of the Commission unless a witness gives oral evidence.
4. Since proceedings before the Commission is not a quasi-judicial procedure, and the Commission is a purely fact-finding body, there is no question of invoking the rules of natural justice, except in so far as they are incorporated in the Act itself, e.g., in Ss. 8B-8C of the Act, or in the Rules made thereunder.”
97. For the reasons aforementioned, it is not possible to hold that the inclusion of Sri Tewari as a member of the Assessor, in any way affect the validity of the constitution of enquiry.
98. In the result, this application is dismissed but in the facts and circumstances of the case there will be no order as to costs.
99. Application dismissed.