You Can Argue On Bias Even After Disciplinary Inquiry Over: SC Rejects ADJ's Plea Of Inquiry Officer Being Same HC Judge Who Directed Inquiry

"You can raise the ground of bias even after the inquiry is over and argue on that. Nothing stops you from doing that", observed the bench headed by Justice L. Nageswara Rao. However, the bench refused to incorporate a clarification this effect in the order, stating that "it will operate differently".

"You are quite adventurous", remarked Justice Rao at the outset.

"Your Lordships are inferring that from the allegation? It is not correct! It was made because I was a strict officer and they were out to embarrass me...I have an outstanding record...I was the registrar of the High Court for the longest time!", argued Senior Advocate P. S. Patwalia for the petitioner.

"The High Court on September 30, instead of issuing formal notice, had just asked the Standing Counsel to take my petition for a change of the Inquiry Officer. The very next day, the Officer closes the defence and started proceeding ex-parte! I may be good or bad, but can I not ask the HC to change the Inquiry Officer?", he argued.

He urged that considering the Inquiry Officer had been part of the committee which directed the inquiry in the first place, any inquiry so conducted could not be said to be fair.

He relied on the 2006 apex court decision in Inderpreet Singh Kahlon, where writ petitions levelling allegations against the Punjab Public Service Commission Chairman, that he got a large number of persons appointed on extraneous consideration including monetary consideration, ultimately came up for hearing before a Full Bench of the P & H High Court. Two of the members of the said Bench were Chairmen of the two earlier committees appointed by the HC Chief Justice to examine the answer-sheets etc.

"We fail to understand as to why two senior Judges who had headed the Committee should have been made part of the Bench. It was not a case where the doctrine of necessity was required to be invoked", the top court had wondered, observing that "it is important to maintain purity of administration of justice both on the judicial side as also the administrative side". "The writ petitioners might have waived their right to raise a contention as regard bias on the part of the Hon'ble Judges but the same would not mean that this Court would ignore such a vital fact. It was clearly a case where the Hon'ble Judges should have recused themselves from hearing the matter", the top court had ruled.

"Kahlon was different. You yourself said that if an administrative action has been taken, then the matter can't be dealt with on the judicial side", pointed out Justice Hemant Gupta.

"I am an outstanding officer. Please see my record!", urged Mr. Patwalia. "Since you said we shouldn't look into the allegations to avoid any bias, we will not look at your record to see how good you are", said Justice Rao.

"At what stage is the inquiry? Is it proceeding ex-parte?', asked the Judge.

"It is at the stage of final arguments. And I have not been allowed to lead any evidence!", urged the senior counsel.

"Why did you not tell the HC?", asked the Justice Rao.

"I did. I made an application to the CJ and then also moved the HC. But the HC said that my application before the CJ was rejected and now it is too late to make allegations of bias! But I had never raised the ground of bias earlier! I had only said that since this Inquiry Officer has also dealt with the matter on the administrative side, someone else may be appointed...('You said everything without saying it', remarked Justice Gupta)...the CJ said 'no'. Then the HC also said it cannot do anything. No stay was given...Thereafter, 6 of my applications have been outrightly rejected for any reason! I sought a recusal of the Inquiry Officer, but he also said I am not bias, why should I recuse...my argument of bias has been foreclosed forever!", argued Mr. Patwalia.

"Bias is a state of mind. Justice must not only be done but also be seen to be done! A witness turned hostile, he refused to show up! And the Inquiry Officer says he will issue warrants of arrest? This is not a criminal trial, it is a departmental inquiry! If the witness is not coming, please draw an inference!", he pressed.

"We can't interfere in inquiries. We can ask the HC to decide your plea and pass an order. If you have a good case on bias, you will succeed", noted Justice Rao.

"You can argue on bias even after the inquiry is over. There is nothing to stop you", said the bench, disposing off the SLP asking the HC to decide the petitions before it.

The Petition has been filed through Advocate Sachin Sharma