Holding

The Supreme Court affirmed that the disciplinary proceedings were invalid because the Unit Commandant, being a biased witness, could not direct the subordinate Commandant to initiate action, thereby breaching the principle of natural justice.

Summary

The case concerned a Deputy Commandant of the Border Security Force (BSF) who was accused of accepting bribes for recruitment. The Unit Commandant, who was also a prosecution witness, directed a subordinate Commandant to initiate disciplinary proceedings against the officer, attaching him to a wing of the same unit. The Supreme Court held that the Unit Commandant was biased and, under Rule 46 of the BSF Rules, could not order the disciplinary action, as the accused is entitled to protection from personal bias (nemo judex). The Court also clarified that the Basic Training Centre is a wing, not a separate unit, for purposes of Rule 45B, and therefore the Commandant’s power to attach the officer was improperly exercised. Consequently, the disciplinary proceedings violated the principles of natural justice, and the appeal by the Union of India was dismissed, upholding the High Court’s setting aside of the officer’s dismissal.

Issues considered

The validity of disciplinary proceedings initiated by a Commandant who was a biased witness under Rule 46 of the BSF Rules.
Whether the Basic Training Centre (BTC) constitutes a separate unit for the application of Rule 45B.
Whether the High Court had jurisdiction to re‑appreciate evidence under Article 226.
Whether the disciplinary authority applied its independent mind as required by Rule 45B.
The legality of the attachment order issued by the Unit Commandant.

Legislation cited

Border Security Force Acts. 107, s. 108, s. 141, s. 2(1)(f), s. 45, s. 46, s. 48, s. 49, s. 64, s. 65, s. 68, s. 72

Subjects

natural justicebiasnemo judexdisciplinary proceedingsBorder Security Force ActRule 45BRule 46protection from biasadministrative lawservice law

Judgment

- UNION OF. INDIA
v.
A

B.N. JHA

MARCH 7, 2003
B
[N. SANTOSH HEGDE AND S.B. SINHA, JJ.]

Service Law:

Border Security Force Act/Border Security Force Rules; Sections 45 & C
46: Principle of Natural Justice-Protection from personal bias-Held: An
Authority who was biased could not direct his subordinate officer to initiate
disciplinary proceedings against an errant employee-Neither the record was
shown to the errant employee nor disciplinary authority applied his independent
mind in the preparation of record of evidence to come to the conclusion of
guilt-Thus right to protection from bias of the errant employee had been D
breached-Hence, High Court rightly set aside order of dismissal of the
employee.
<
Legal Maxims:

Maxims "specialia generaliabus non derogant", "Audi alteram partem" E
and "Nemo Judex in causa sua" in connection with principle of natural
justice-Discussed-Administrative Law.
Respondent was working as Deputy Commandant in the Training
Centre and School of the Border Security Force. He allegedly received
bribe from two persons for procuring their appointment in the B.S.F. F
The Unit Commandant had asked one of his subordinate Commandant
to inquire into the matter. In the meanwhile, Unit Commandant also
examined and recorded confession of the delinquent officer and other
two persons and transferred the delinquent officer to another training
Centre under the same Office and asked the Commandant of the Centre
to initiate disciplinary proceedings against the delinquent officer and G
later the General Security Force Court found him guilty and he had been
dismissed from service. The Writ Petition filed by the aggrieved officer
was allowed by the Single Judge and on appeal affirmed by the Division
Bench of the High Court on the ground of denial of the valuable right of
protection from bias of the delinquent. Hence the present appeal.
721
H
).

722 SUPREME COURT REPORTS [2003] 2 S.C.R.

A It was contended for the appellant that the disciplinary proceedings
against the delinquent officer were initiated strictly as per B.S.F. Rules;
that delinquent had been provided with opportunity to cross examine the
witness and the authority; and that the High Court does not possess
power of superintendence over the B.S.F. Court, so it could not re-
B appreciate evidence by exercising its jurisdiction. under Article 226.

On behalf of the respondent, it was submitted that since Unit
Commandant was a prosecution witness in the trial, the posting of
delinquent officer during the period ought to have been done by the
Headquarters; and that the disciplinary proceedings initiated by the
Commandant at the instance of Unit Commandant/PW became invalid
c due to lack of jurisdiction.

Dismissing the appeal, the Court

HELD: I.I. The Scheme of the Border Security Force Act and the
Rules leading to holding of a trial by the General Security Force Court
D leaves no manner of doubt that the basic principles of natural justice
have been codified therein. The provisions of the Act and the Rules in no
uncertain terms envisage protection from bias against an officer. The Act
even sought to fill up the gaps occurring in other Acts so as to protect a
person from personal bias or a real likelihood of bias. [733-DJ

·E 1.2. The Basic Training Centre, Specialised Training Centre and
School or Administrative Wing are the three wings of the BSF, Training
Centre and School; each wing being a component thereof the same cannot
be treated to be a separate unit for the purpose of Rule 45B of the B.S.F.
Rules. (734-AJ
!·

F 1.3. Keeping in view the personal interest shown by the Unit
Commandant he should not have exercised his purported statutory power
under Rule 46 by attaching the respondent to a wing of the own unit.
Exercise of a statutory power may, although not be invalidated on the
ground of inherent lack of jurisdiction on his post but the order of
G attachment passed by him, having regard to the facts and circumstances
of the case, must be held to be illegal. [734-EJ

1.4. A power under Rule 16(7) of the Rules can be exercised in a
general manner and not in a particular manner far less in a particular
matter where Rule 46 will be applicable. The principles of specialia
generaliabus non derogant shall apply in such a case and such power
H
U.0.1. v. B.N. JHA 723
cannot be delegated by the concerned Authority to another. [734-F) A
1.5. The Unit Commandant, in exercise of power conferred upon
him under Rule 46, could not have directed the Commandant of a wing
of his own unit to initiate departmental proceedings. In law the disciplinary fo
authority alone was required to apply his independent mind to the
materials on record so as to enable him to arrive at the conclusion as to B
whether a disciplinary action is contemplated or not. He cannot do so at
the instance of a higher authority who had not only no role to play in the
matter but was also biased. (735-A, BJ

Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952)
SC 16 and Union of India and Ors. v. Harish Chandra Goswami, [19991 4 C
sec 575, relied on.
S. Parthasarthi v. State ofA.P., (197413 SCC 459; Manak Lal v. Prem
Chand, AIR (1957) SC 425; Andhra Pradesh State Road Transport
Corporation, Hyderabad v. Sri Satyanarayana Transports (P) ltd. Guntur,
AIR (1965) SC 1303; Mineral Development ltd v. The State of Bihar, AIR D
(1960) SC 468 and Ratan Lal Sharma v. Managing Committee, Dr. Hari
Ram (Co-Education) Higher Secondary School, (1993) 4 SCC 10, referred
to.

Franklin v. Minister of Town & Country Planning, (1948) AC 87 and
Metropolitan Properties Co. (FGC) ltd v. Lannon, (1968) 3 ALL ER 304, E
referred to.

Hals bury 's laws of England Vol. I (I) 4th Edition and Administrative
law by J.F. Garner, referred to.

2. Rule 458 of the Rules, having regard to the extent and nature of
the power of the disciplinary authority, leaves no manner of doubt that F
the Commandant of the accused is required to apply his mind on the
materials on record so as to enable him to arrive at a finding in favour or
against the delinquent officer. The manner in which the chargesheet has
been drawn leads to only one conclusion that the subordinate officer/
disciplinary authority did so only on the command of the Unit G
Commandant and that no record is available with him to show that the
respondent was supplied with any material as is mandatorily required
under Rule 45B. The respondent has not been given an opportunity to
make a statement in his defence. There is also nothing on record to show
that disciplinary authority had applied his own independent mind
thereupon for directing preparation of record of evidence. From the H
724 SUPREME COURT REPORTS [2003) 2 S.C.R.

A tenor of the charge sheet it only appears that he merely heard the officer
as to whether he pleads guilty thereto or not. The findings of the Single
Judge that valuable rights of the respondent had been breached, affirmed
by the Division Bench of the High Court, cannot be said to be perverse or
I
contrary to law. [740-C-D-E-Fl
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.2054 of
2002.
From the Judgment and Order dated 23.3.2001 of the Delhi High Court
in L.P.A. No. 202 of 1999.
Ranjit Kumar, S. Wasim A. Qadri and Ms. Sushma Suri for the
C Appellants.
R.P. Sharma and Ms. Prasanthi Prasad, for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. The Border Security Force (BSF) has a Training Centre
D and School (TCS) in the District of Hazaribagh. The said training center is
one of the units of the BSF. It has several wings, namely, Admn. Wing, BTC
(Basic Training Centre), STS (Specialist Training School) and STC (Subsidiary
Training Centre), etc. All the wings ofTCS are said to be located in the same
premises.
E The respondent herein was a Deputy Commandant in the TCS. The
Unit Commandant of TCS happened to be one Mr. B.S. Garcha. In or about
July, 1990 the respondent was accused of having received gratification from
two persons, namely, B.K. Jha and Santosh Kumar Jha for procuring their
recruitment as constables in the BSF which was discovered in the following
F circumstances.
On 17.7.1990 a sum of Rs. 1700 was said to have been stolen from the
said B.K. Jha. Allegedly, he gave out that the respondent had accepted a sum
of Rs. 5,000 for his recruitment. On 16.7.1990 one Mr. Raj Singh, Deputy
Commandant reported to Commandant, Mr. J.S. Baksh! that the said B.K. Jha
had stated in presence of one Mr. G.S. Rana that he had brought out a sum
G of Rs. 8,500 from his house out of which he was, as per instruction of his
father, to pay a sum of Rs. 7,000 for his recruitment but he in fact paid a sum
of Rs. 5,000 to the respondent a week prior to the date of offence. One
Constable of the Administrative Wing allegedly came to him to collect money
for the respondent and he had paid a further sum of Rs. 1,000. Mr. J.S.
H Bakshi at about 0930 hours on 17. 7.1990 informed Mr. Garcha that the
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 725
respondent came to his office and apologized for having taken the money. A
Mr. Gare.ha asked Mr. Bakshi to inquire into the matter further who thereupon
submitted his report by way of a letter.

Mr. Garcha allegedly examined the said two persons as also the
respondent. An alleged confession about the commission of the offence is
said to have been made before him by the respondent herein. He was thereafter B
posted in BTC.

Mr. Garcha on or about 4.9.1990 asked Mr. M.S. Arya, Commandant,
BTC to initiate disciplinary proceedings. against him. The said letter dated
4.9.1990 reads thus:
"CONFIDENTIAL c
DIG/Disc/90/BSF No. 07/SECR/90/Sub-47
Border Security force
Trg. Centre & School
Hazaribagh (B ihar) 4th Sept. 1990

To D
Shri M.S. Arya,
Commandant BTC
TC&S
Hazaribagh.
Sub: Acceptance of Illegal Gratification by Shri B.N. Jha, Dy. Comdt. E
BTC for Enrolment of R/CTs Bhabesh Kumar and Santosh Kumar
Jha in the BSF.

Please find enclosed herewith photostat copies of Commandant STC
BSF HAZARIBAGH letter No. STC/Dis/2156 dated 17th July, 1990
and STC/Dis/90 dated 18th July, 1990 regarding the acceptance of F
illegal gratification by Shri B.N. Jha, Dy. Comdt. from R/Cts. Bhabesh
Kumar and Santosh Kumar Jha, recruited from Madhubani (Bihar)
for your information. The letters mentioned above are self-explanatory.
The Cassettes containing the voluntary statements of the said reacts
are available with commandant STC Hazaribagh which may be G
obtained from him if required.

2. You are, therefore requested to kindly initiate disciplinary action
against Shri B.N. Jha, Dy. Comdt. working under your control
immediately. Sd/-
(B.S. GARCHA) H
726 SUPREME COURT REPORTS [2003] 2 S.C.R.

A DIG & COMMANDANT

Copy to:
Shri J.S. Bakshi, Commandant STC BSF, Hazaribagh for information
please. He is requested to produce the witnesses and the Cassettes
containing tape recorded statements of the reacts in question, as and
B when required by Shri M.S. Arya, Comdt. Sd/-
(B.S. GARCHA)
DIG & COMMANDANT

Mr. M.S. Arya was posted as a Commandant but an issue has been
C raised as to whether BTC was an independent Unit. On 7.9.1990 a charge
sheet was drawn up against the respondent in the following terms:

"The accused IRLA No. 2199, Shri Birender Narayan Jha, Deputy
Commandant, Basic Training Centre, Border Security Force, Training
Centre and School, Hazaribagh is charged with;-
D BSF Act DIRECTLY ACCEPTING
GRA TI FICA TION
SEC.4l(a) AS A REWARD FOR PROCURING ENROLMENT
In that he,
at Border Security Force Campus, Meru (Hazaribagh) in the second
E week of July 1990 accepted Rupees 6,000 (Rupees six thousand only)
from No. 90401117 Recruit Constable Bhavesh Kumar Jha under
training at Subsidiary Training Centre, Border Security Force,
Hazaribagh for procuring his enrolment in the Border security Force.
BSF Act INDIRECTLY ACCEPTING
F GRATIFICATION
SEC.4l(e) AS A REWARD FOR PROCURING ENROLMENT
In that he,
at Border Security Force Campus, Meru (Hazaribagh) in the second
week of July 1990 accepted Rupees 6,000 (Rupees six thousand only)
G from No. 90401117 Recruit Constable Bhavesh Kumar Jha under
training at Subsidiary Training Centre, Border Security Force,
Hazaribagh for procuring his enrolment in the Border Security Force.
Sd/-
[M.S. ARYA]
H COMMANDANT
U.0.1. v. B.N. JHA [S.B. SINHA, J.) 727
Place: Meru, Hazaribagh A
Date: 7th September, 1990
I have heard the officer and he pleads 'Not guilty'. Remanded for
preparation of Record of evidence. Sd/-
Comdt.
7.9.90"
B
A proceeding for recording of evidence against the respondent thereupon
was initiated. He raised an objection about the validity of the proceeding but
the same was rejected. The respondent thereafter was transferred to 127 Bn.
in Punjab but he was re transferred to TCS Hazaribagh in August, 1991 for
the purpose of facing his trial by General Security Force Court.
c
In the trial held by the General Security Force Court, the respondent
was found guilty of the said charges and by an order dated 27 .2.1992 he had
been sentenced to dismissal from service.

Raising a number of contentions he filed a writ petition in the High
Court of New Delhi marked as CWP 999/1992. D
A learned Single Judge of the High Court inter a/ia held that there had
been a gross violation of Rules 458 and 46 of the Border Security Force
Rules. It was further held that a very valuable right of the respondent in the
form of protection from bias had been denied to him. The learned Judge in
that view of the matter was of the opinion that other contentions raised on E
behalf of the respondent need not be gone into. However, the learned counsel
appearing on behalf of the appellants suggested that as the prosecution had
examined a large number of witnesses including Mr. Garcha (P.W. 13) and
the respondent had sufficient opportunity to cross examine them, on the basis
of materials brought on record, the Court could come to a finding that the
respondent was guilty of the offence and as such was not entitled to invoke F
the extraordinary jurisdiction of the High Court under Article 226 of the
Constitution of India.

The learned counsel appearing on behalf of the respondent, on the
other hand, submitted that the findings of guilt arrived at by the Court is not G
supported by any evidence at all. In the aforementioned premise the learned
Single Judge went into the question as to whether the finding of guilt arrived
at by the General Security Force Court was based on any evidence and upon
analysing the same came to the conclusion that no evidence had been brought
on records to prove the guilt of the respondent.
H
SUPREME COURT REPORTS (2003) 2 S.C.R.
728
A The appellant herein preferred an appeal before the Division Bench and
by reason of the impugned judgment the same was dismissed. The appellant
is before us aggrieved thereby.
Mr. Ranjit Kumar, the learned senior counsel appearing on behalf of
the appellant had taken us through the Border Security Force Act and the
B Rules framed thereunder and contended that in terms of the scheme of the
Act sufficient procedural safeguards are provided to the delinquent. A finding
on the guilt of the accused is reached after three different stages of filtera1tion
which are independent of each other. In each of the aforementioned stage,
Mr. Ranjit Kumar would submit, the accused gets an opportunity to cross-
C examine the witnesses and the authority on the basis of the materials brought
on record at each of the stage, may drop the proceedings against him. The
learned counsel would contend that the learned Single Judge committed a
manifest error in reappreciating the evidence which was not within the domain
of the High Court exercising its jurisdiction under Article 226 of the
Constitution of India having regard to the settled principles of law that it does
D not exercise any power of superintendence over the Courts constituted under
the Army Act, BSF Act and in that view cf the matter it could not have
reappreciated the evidence. The learned counsel would contend that admittedly
Mr. M.S. Arya was a Commandant of BTC which being a unit to which the
respondent was attached he was entitled to direct recording of eviden<ce in
E terms of the Act and the Rules. According to the learned counsel, Mr. Garcha
being a Deputy Inspector General of Police could have further asked the
Commandant of a Unit to take disciplinary measures against the respondent
both in terms of Rule 46 as also Rule 16(7) of the Rules.

Mr. Sharma, the learned counsel appearing on behalf of the respondents,
F on the other hand, would submit that admittedly Mr. Garcha was biased
against the respondent. He was a witness in the trial and in fact he examined
himself as PW 13. In that view of the matter, the learned counsel would
contend, in fairness he ought to have referred the matter to the Headquarters
for attaching the respondent to another Unit. BTC being not a unit but merely
a wing of TCS, Mr. Sharma would urge, Mr. M.S. Arya had no jurisdiction
G in the matter as a consequence whereof all proceedings subsequent thereto
were rendered invalid.
Before embarking upon the rival contentions of the parties, we may
notice the following provisions of the Border Security Force Act:
"2{l)(f) "Commandant", when used in any provision of this Ac:t with
H
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 729
reference to any unit of the Force, means the officer whose duty it is A
under the rules to discharge with respect to that unit, the functions of
a Commandant in regard to matters of the description referred to in
that provision;
2(1)(h) "Deputy Inspector-General" means a Deputy Inspector-General
of the Force appointed under Section 5; B
2(1)(n) "Inspector-General" means the Inspector-General of the Force
appointed under Section 5;

5. Control, direction, etc.(1) The general superintendence, direction and control
of the Fotce shall vest in, and be exercised by, the Central Government and
subject thereto and to the provisions of this Act and the rules, the command C
and supervision of the Force shall vest in an officer to be appointed by the
Central Government as the Director-General of the Force.

(2) The Director-General shall, in the discharge of his duties under this Act,
be assisted by such number of Inspectors-General, Deputy Inspectors-General, D
Commandants and other officers as may be prescribed by the Central
Government.

41. Miscellaneous offences-Any person subject to this Act who
commits any of the following offences, that is to say-
(a) .. . E
(b) .. .
(c) .. .
(d) .. .
(e) directly or indirectly accep\s or obtains, or agrees to accept,
or attempts to obtain, for himself or for any other person, F
any gratification as a motive or reward for procuring the
enrolment of any person, or leave of absence, promotion
or any other advantage or indulgence for any person in
the service ; or
(f)
G
shall, on conviction by a Security Force Court, be liable to suffer
imprisonment for a term which may extend to seven years or such
less punishment as is in this Act mentioned.

48. Punishments awardable by Security Force Courts: (I) Punishments
may be inflicted in respect of offences committed by persons subject H
SUPREME COURT REPORTS [2003] 2 S.C.R.
730
A to this Act and convicted by Security Force Courts according to the
scale following, that is to say-

l(c) dismissal from the service;

49. Alternative punishments awardable by Security Force Courts-
Subject to the provisions of this Act, a Security Force Court may, on
B
convicting a person subject to this Act of any of the offences specified
in sections 14 to 45 (both inclusive) award either the particular
punishment with which the offence is stated in the said sections to be
punishable or, in lieu thereof, any one of the punishments lower in
the scale set out in section 48 regard being had to the nature and
c degree of the offence.

64. Kinds of Security Force Courts-For the purposes of this Act t!here
shall be three kinds of Security Force Courts, that is to say-
(a) General Security Force Courts;
(b) Petty Security Force Courts; and
D
(c) Summary Security Force Courts.
65. Power to convene a General Security Force Court- A General
Security Force Court may be convened by the Central Government or
the Director-General or by any officer empowered in this behalf by
warrant of the Director-General.
E
68. Composition of General Security Force Court-A General Security
Force Court shall consist of not less than five officers, each of whom
has held the post of Deputy Superintendent of Police for not Jes~; than
three whole years and of whom not less than four are of a rank not
below that of a confirmed Deputy Superintendent of Police.
F 72. Powers of a General Security Force Court- A General Security
Force Court shall have the power to try any person subject to this Act
for any offence punishable thereunder and to any sentence authorized
thereby.
107. Finding and sentence not valid, unless confirmed no finding or
G sentence of a General Security Force Court or a petty Security Force
Cqurt shall be valid except so far as it may be confirmed as provided
by this Act.
l 08. Power to confirm finding and, sentence of General s,~curity
Force Court-The findings and sentences of General Security Force
H Courts may be confirmed by the Central Government or by any officer
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 731

empowered in this behalf by wa~rant of the Central Government. A
The Central Government in exercise of. its power conferred upon it
under Section 141 of the Border Security Force Act made rules known as the
Border Security Force Rules, 1969. Some of the provisions of the Rules are
in the following terms:
14A Ranks-( I) The officers and other members of the Force shall be B
classified in accordance with their ranks in the following categories,
namely:-
(a) Officers

(4) Deputy Inspector-General c
(5) Additional Deputy Inspector-General
(6) Commandant
(7) Deputy Commandant
15. The task of the Force and command and control thereto
(I) D
(2) m discharging the functions under sub-rule (I), the
responsibility for the command, discipline, morale and
administration shall,-
(a) in the case of Inspector-General, extend to all
battalions, units, headquarters establishment and
E
Force personnel placed under him;
(b) in the case of a Deputy Inspector-General, extend
to all the battalions, other personnel and units placed
under him; and
F
(c) in the case of a Commandant, extent to the battalion
or unit placed under him.
(3)
(4) The command, discipline, administration and training of
battalions, units and establishments not placed under a Deputy G
Inspector-General or an Inspector-General shall be carried out
by such officer and in such manner as may from time to time
be laid down by the Director-General.
16. Command-
(5) Disciplinary powers over a person subject to the Act shall be H
732 SUPREME COURT REPORTS (2003] 2 S.C.R. ..
A exercised by the Commandant of the battalion or unit to which
such a person belongs or the officer on whom command has
devolved in accordance with sub-rule (2).
(7) The Director-General, the Inspector-General and the Deputy
Inspector- General may specify one or more officers of the staff
B who shall exercise the disciplinary powers of a Commandant in
respect of persons belonging to or doing detachment duty at
their respective Headquarters.
44. Charge Sheet-Where it is alleged that an officer or a Subordinate
Officer has committed an offence punishable under the Act, the
C allegation shall be reduced to writing in the form set out in Appendix VI.
458. Hearing of charge against an officer and a subordinate office:r-
(1 )(a) The charge against an officer or subordinate officer shall be
heard by his Commandant. Provided that charge against a
Commandant, a Deputy Inspector-General or an Inspector-General
D may be heard either by an officer commanding a Unit or Headquarters
to which the accused may be posted or attached or by his Deputy
Inspector-General, or his Inspector-General or, as the case may be,
the Director-General.
(b) The charge sheet and statements of witnesses if recorded
E and relevant documents if any, shall be read over to the accus1ed:
Provided that where written statements of witnesses are not
available the officer hearing the charge shall hear as many
1~itnesses as he may consider essential to enable him to know
about the case.
(c) The accused shall be given an opportunity to make a statement
F
in his defence.
(2) After hearing the charge under sub-rule (I), the officer who he:ard
the charge may-
(i) dismiss the charge; or
G (ii) remand the accused, for preparation of a record of evidenc•e or
preparation of abstract of evidence against the accused;
Provided that he shall dismiss the charge if in his opinion the
charge is not proved or may dismiss it if he considers that because
of the previous character of the accused and the nature of the charge
H against him, it is not advisable to proceed further with it;
-
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 733

Provided further that in case of all offences punishable with death, A
t' a record of evidence shall be prepared.
46. Attachment to another unit-The Commandant shall not deal with
any case-
(i) where the offence with which the accused is charged is against
the Commandant himself; or B
(ii) where the Commandant is himself a witness in the case against
the accused; or
(iii) where the Commandant is otherwise personally interested in the
case and the accused shall be attached to another battalion or
unit for disposal of the case under the order of the Deputy c
Inspector General:
Provided that a Commandant shall not be disqualified from hearing
a charge merely because the offence was committed against the
property of a Force Mess, band or institution of which the Commandant
is a member or trustee or because of offence is one of disobedience D
of such Commandant's orders."
The scheme of the Act and the Rules leading to holding of a trial by
the General Security Force Court leaves no manner of doubt that the basic
principles of natural justice have been codified therein. The provisions of the
Act and the Rules in no uncertain terms envisage protection from bias against
an officer. We may notice that the Act which was enacted in the year 1968 E
even sought to fill up the gaps occurring in other Acts like Army Act, Navy
Act or Armed Forces Act in this behalf so as to protect a person from
personal bias or a real likelihood of bias. Rule 46 was made with a view to
achieve the said purpose. It is not in dispute having regard to the phraseology
used in Rule 45 B of the Rules that an accused at the first instance is bound
to be tried by his Commandant. Necessarily, the question which arises for F
consideration would be as to who was the Commandant of the respondent at
the relevant point of time. Concededly Mr. Garcha was the Commandant of
the Respondent till 17. 7.90. A question which is to be posed and answered
is as to whether the BTC is a Unit of TCS. The appellant herein in their
counter-affidavit before the High Court stated 'that the respondent was posted
to BSF. TC&S Hazaribagh and was further posted to Basic Training Centre G
of the TC&S Hazaribagh on 19.7.1990 by the DIG, BSF TC&S Hazaribagh.
The BSF Training Centre & School Hazaribagh is a Training Institution
composing of the following wings:-
(a) Basic Training Centre

-
.. (b) Specialised Training Centre & School H
734 SUPREME COURT REPORTS [2003] 2 S.C.R.

A (c) Administrative Wing"
Having regard to the provisions of the Act and the Rules, as noticed
hereinbefore, we are of the opinion that only because in a Unit or Battalion
a Commandant is posted, existence of a Unit would not be presumed. Once
it is held that Basic Training Centre or Specialised Training Centre & School
B or Administrative Wing are wings of the BSF, Training Centre & School;
each wing being a component thereof the same cannot be treated to be a
separate unit for the purpose of Rule 45B of the Rules. Section 2(1 )(f) of the
Border Security Force Act defines Commandant with reference to a unit and
not Commandant as a holder of post.

Rule 46 is a proviso or an exception to Rule 45 B Of the Rules. It seeks
C to protect an accused from bias or real likelihood of bias of a Commandant
and in the event, the Commandant himself is a witness or is otherwise
personally interested in the matter, he is to place the matter before a compe:tent
authority to see that the accused is attached to a different unit.
For the purpose of this case we need not go into ·the correctness or
D otherwise of the contention of Mr. Sharma to the effect that the principles of
purposive construction should be adopted by us so as to hold that in case of
this nature the power under Rule 46 could not have been exercised by Mr.
Garcha despite the fact that he was a Deputy Inspector General. However, we
may notice that from the records it appears that all actions have been taken
by Mr. Garcha as a Commandant and not as a Deputy Inspector General. He,
E having regard to the hierarchy of the officers, is higher in rank than the
Commandant. In a case of this nature , however, we are of the considered
opinion that keeping in view of the personal interest shown by Mr. Garcha
he should not have exercised his purported statutory power under Rule 46 by
attaching the respondent to a wing of the own unit. Exercise of a statutory
power may, although not be invalidated on the ground of inherent lack of
F jurisdiction on his post but the order of attachment passed by Mr. Garcha
having regard to the facts and circumstances of the case must be held to be

-
illegal.
Submission of Mr. Ranjit Kumar to the effect that Mr. Garcha could I
delegate his power to Mr. Arya cannot be accepted. A power under Rule '
G 16(7) of the Rules can be exercised in a general manner and not in a particular
far less in a matter where Rule 46 will be applicable. The principles of
specia/ia ge11eraliabus 11011 derogant shall apply in such a case.

In the instant case, Mr. Garcha in his letter to Mr. M.S. Arya described
himself as Commandant, BTC, TC&S which itself is a pointer to show that
. BTC is not a unit totally independent of TC&S. It is further not in dispute
8 that Mr. Arya was an officer subordinate to him. His letter dated 4th .....
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 735
September, 1990 in no uncertain terms points out that he had for all intent A
and purpose directed Mr. Arya to initiate a disciplinary action against the
respondent. The said action was to be taken on the basis of the materials
disclosed therein. Such a procedure is unknown in law: An authority who is
higher than the Commandant, in exercise of his power conferred upon him
under Rule 46 could not have directed the Commandant of a wing of his
own unit to initiate departmental proceedings. In law it was the disciplinary B
authority alone who was required to apply his independent mind to the
materials on record so as to enable him to arrive at the conclusion as to
whether a disciplinary action is contemplated or not. He cannot do so at the
instance of a higher authority who had not only no role to play in the matter
but also admittedly was biased. [See Commissioner of Police, Bombay v.
Gordhandas Bhanji, AIR (1952) SC 16 and Union of India and Other v. C
Harish Chandra Goswami, (1999] 4 SCC 575. Bias against the respondent
on the part of Mr. Garcha is undisputed.
This Court in S. Parthasarathi v. State of A.P. (1974] 3 SCC 459
proceeded on the footing of real likelihood of 'bias' and there was in fact a
total unanimity on this score between the English and the Indian Courts.
D
Mathew, J. in that case observed :
"16. The tests of 'real likelihood' and 'reasonable suspicion' are really
inconsistent with each other. We think that the reviewing authority
must make a determination on the basis of the whole evidence before
it, whether a reasonable man would in the circumstances infer that
there is real likelihood of bias. The court must look at the impression
E
which other people have. This follows from the principle that justice
must not only be done but seen to be done. If right-minded persons
would think that there is real likelihood of bias on the part of an
inquiring officer, he must not conduct the inquiry; nevertheless, there
must be a real likelihood of bias. Surmise qr conjecture would not be
F
enough. There must exist circumstances from which reasonable men
would think it probable or likely that the inquiring officer will be
prejudiced against the delinquent. The Court will not inquire whether
he was really prejudiced. If a reasonable man would think on•the
basis of the existing circumstances that he is likely to be prejudiced,
that is sufficient to quash the decision [see per lord Denning, H.R. G
in Metropolitan Properties Co. (F. G. C) ltd. v. Lannon, ( 1968) 3
WLR 694, 707. We should not, however, be understood to deny that
the court might with greater spropriety apply the 'reasonable suspicion'
test in criminal or in proceedings analogous to criminal proceedings."
_;
Lord Thankerton however in Franklin v. Minister of Town and Counl!y
• Planning, (1948 AC 87) had this to state : H
~·
'

736 SUPREME COURT REPORTS [2003] 2 S. C.R.

A " ...... .I could wish that the use of the word 'bias' should be confined
to its proper sphere. Its proper significance, in my opinion, i5' to \,
denote a departure from the standard of even-handed justice which
the law requires for those who occupy judicial office, or those who
are commonly regarded as holding a quasi-judicial office, such as an
arbitrator. The reason for this clearly is that, having to adjudicate as
B between two or more parties, he must come to his adjudication with
an independent mind, without any inclination or bias towards one
side or other in the dispute.'

Natural justice as is well known is founded on two basic principles:

(a) Audi alteram partem.
c (b) Nemo judex in causa sua

The duty to act fairly is the theme of the principles of natural justice.
The Rule generally applies with full force to conduct leading directly to a
final act of decision.

D In Halsbury's Laws of England, Vol. l(i), 4th Edition it is stated:
"85 ... Thus a presumption that natural justice must be observed will
arise more readily where there is an express duty to decide only after
conducting a hearing or inquiry or where the decision is one entailing
the determination of disputed questions of law and fact. Prime facie,
moreover, a duty to act in accordance with natural justice will arise
E
in the exercise of a power to deprive a person of his livelihood or of
his legal status where that status is not merely terminable at pleasure,
or to deprive a person of liberty or property rights or another legitimate
interest or expectation, or to impose a penalty on him; though the
conferment of a wide discretionary power exercisable in the public
interest may be indicative of the absence of an obligation so to act.
F
Where a discretionary power to en~roach upon individual rights is
exercised, factors to be taken into account in deciding what fairness
requires in the exercise of the power include the nature of the interests
to be affected, the circumstances in which the powe; falls to be
exercised and the nature of the sanctions, if any involved. The content
of duty to act fairly will normally be very limited where the authority
G is in the course of exercising a function not culminating in a binding
decision, but that may not be the case if the wording of the grant of
powers or the context indicates that a fair hearing ought to be extended
to persons likely to be prejudicially affected by an investigation or
recommendation."
H It has further been observed therein: •
)
U.0.1. v. B.N. JHA [S.B. SINHA, J.] 737

- J
"94. Audi alteram par/em. The rule that no man shall be condemned
unless he has been given prior notice of the allegations against him
A
and a fair opportunity to be heard is a cardinal principle of justice.
This rule has been refined and adapted to govern the proceedings of
bodies other than judicial tribunals; and a duty to act in conformity
with the rule has been imposed by the common law on administrative
bodies not required by statute or contract to conduct themselves in a B
manner analogous to a court. Moreover, even in the absence of any
charge, the severity of the impact of a discretionary decision on the
interests of an individual may suffice in itself to attract an implied
duty to comply with this rule."

Bias can be classified under three different heads:
c
.., (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.
Law in this regard has expanded to a great extent. Jn J.F. Gamer's D
Admini!.trative Law, it is 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 E
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."
F
In Metropolitan Properties Co. (FGC) Ltd. v. Lannon reported in I968
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 G
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
H
738 SUPREME COURT REPORTS [2003] 2 S.C.R.

A it, his decision cannot stand; see R. v. Huggins (8), Sunderland justice:s
(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 (IO); R. v. Nailsworth Justices,
ex parte Bird (11 ). There must be circumstances from which a
reasonable man would think it likely or probable that the justice, or
B Chairman, as the case may be, would, or did, favour one side unfairlly
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.'
c Danckwerts, L.J. observed :

"Of course, l 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
D of Mr. Lannon to act as Chairman of the Committee in the
circumstances."

De Smith in his Administrative and Constitutional Law observed:
"If the main functions of a tribunal are to detennine disputed questions
of law and fact, and to exercise discretioaary powers by reference to
E 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 abdicators 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, ur those who are
F commonly regarded as holding a quasi-judicial office, such as an
arbitrator ought not be and will not be countenanced."

Jn Manak Lal v. Prem Chand, AIR (1957) SC 425, this Court observed:
" .... But where pecuniary interest is not attributed but instead a bias is
G suggested, it often becomes necessary to consider whether there is a
reasonable ground for assuming the possibility of a 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 be question of fact to be decided in each case. "The \
principle", says Halsbury, "nemo debt esse judex in causa propria
H sua precludes a justice, who is interested in the subject-matter of a
)

U.O.l. v. B.N. JHA [S.B. SINHA, J.] 739
-) dispute, from acting as a justice there in" [Halsburys' Laws of England A
( Vol. XX!, p.535, para 952]. 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 justices as mentioned
by Halsbury but to all tribunals and bodies which are given jurisdiction
to determine judicially the rights of parties."

In Andhra Pradesh State Road Transport Corporation, Hyderabad v.
B
Sri Stayanarayana Transports (P) Ltd., Guntur, AIR (1965) SC 1303, this
Court held that !he elementary rule of natural justice that person trying a
cause, though in a quasi-judicial proceeding, should not suffer from personal
bias. This Court stated the law thus:

"We ought, however, to add that in the light of the general C
considerations which we have set out, it is of utmost importance that
in appreciating evidence, the Court ought tu 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 competing affidavits is not an easy matter. D
In such a case, the Court must always enquire on which side the
probabilities lie and must scrutinize 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." E
f In Mineral Development Ltd. v. The State of Bihar, AIR (1960) SC
468, this 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.
In Ratan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co- F
Education) Higher Secondary School, [I 993] 4 SCC JO, this 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 G
be put within the straight-jacket of rigid formula.
This Court further noticed that De Smith in his Judicial Review of
1 Administration Action at page 262 observed that a real likelihood of bias
means at least a substantial possibility of bias. This 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 H
(

740 SUPREME COURT REPORTS [2003] 2 S.C.R.

A 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.

Rule 45 B confers a discretionary power upon the Commandant of the
B accused to discharge not only on the ground that there does not exist any
material on record to proceed against him but also on the ground that having
regard to the previous character of the accused and the nature of charges
against him it was not advisable to proceed further in the matter.

Rule 45 B of the Rules, therefore, having regard to the extent and natur'~
of the power of the disciplinary authority, leaves no manner of doubt that the
C Commandant of the accused is required to apply his mind on the materials on
record so as to enable him to arrive at a finding in favour or against the officer.
The manner in which the chargesheet has been drawn leads to only one
conclusion that Mr. Arya did so only on the command of Mr. Garcha. On a querry
made by us, Mr. Ranjit Kumar stated that no record is available with him to
show that the respondent was supplied with any material as is mandatorily
D required under Rule 45 B. There is nothing on record also to show that at least
the material which were referred to in Shri Garcha' s letter dated 4th September,
1990 were brought to the notice of the respondent and he has been given an
opportunity to make a statement in his defence. There is also nothing on record
to show that even the materials in possession of Mr. Bakshi were requistioned
by Mr. Arya and he applied his own independent mind thereupon for directing
E preparatfon of record of evidence. From the tenor of the charge sheet dated
7.9.1990, it only appears that he merely heard the officer as to whether he pleads
guilty thereto or not. The learned Single Judge of the High Court has
considered materials on record and came to the conclusion that valuable rights
of the respondent had been breached. The Division Bench went through the entire
records and arrived at the same finding. The findings of the learned Single Judge
F or the Division Bench cannot be said to be perverse or contrary to law.

We are, therefore, of the opinion that no case has been made out for
interfering with the impugned judgment in exercise of our jurisdiction under
Article 136 of the Constitution of India.
G This appeal is, therefore, dismissed. But in the facts and circumstances
of the case, there shall be no order as to costs.

S.K.S. Appeal dismissed.