JUDGMENT S.P. Srivastava, A.C.J.
1. Heard the learned counsel for the appellant.
2. The petitioner-appellant is facing a regular disciplinary enquiry wherein the Deputy Commandant, 41 Bn. P.A.C., Ghaziabad, Smt. Aabha Singh has been appointed as an Enquiry Officer. A perusal of the charge-sheet, a copy of which has been filed as Annexure-4 to the writ petition, indicates that the petitioner stands charged for having received house rent allowance for residing in a rented accommodation disclosed to be House No. 211C. Tulsi Niketan, police station Sahibabad, district Ghaziabad, where he never resided.
3. It may be noticed that during the preliminary enquiry, it was found that the petitioner-appellant had received an amount of Rs. 47,130 as house rent allowance during the period from April, 1997 to July, 2002 on the ground that he was residing in the aforesaid house which had been taken on rent by him for residential purposes but in fact, the aforesaid house had never been let out to the petitioner. The charge levelled against the petitioner-appellant is that he misled and mis-represented the higher authorities and under a conspiracy, he got the house rent allowance sanctioned to him for which he was never entitled. His action/omission was most unbecoming of a Government servant and also amounted to gross indiscipline and negligence.
4. It is not disputed that the disciplinary authority of the petitioner is the Assistant Police Inspector General, U. P. Lucknow. Vide the order dated 1.1.2003, the disciplinary enquiry pending against the petitioner-appellant which had earlier been transferred to Agra was transferred back to Ghaziabad.
5. The petitioner feeling aggrieved by the order of the aforesaid transfer of the enquiry proceedings, filed a writ petition challenging the said order which writ petition has been dismissed by the learned single Judge vide the impugned order. Hence, this intra-Court appeal praying for setting aside of the impugned order passed by the learned single Judge.
6. The learned counsel for the appellant has strenuously urged that the Commandant, 41, Bn. P.A.C., Ghaziabad under whom the petitioner-appellant stands posted is biased against him and he is in a position to influence the Enquiry Officer and on this ground, the disciplinary enquiry which was earlier transferred to Agra, should not have been transferred back to Ghaziabad. This submission was also made before the learned single Judge but was negatived. The contention of the learned counsel for the appellant is that since the Commandant was biased in as much as he had passed an order withholding the payment of the house rent allowance to the petitioner, the Enquiry Officer could not give an independent report being under the influence of the aforesaid Commandant.
7. The aforesaid submission is totally misconceived. It may be observed that there is no allegation of bias or prejudice against the Enquiry Officer, the Assistant Commandant Smt. Abha Singh.
8. Taking into consideration the nature of the controversy raised and the scope of the charge and the attending circumstances, one of the questions to be considered is as to whether on a false representation, the petitioner had succeeded in getting the house rent allowance for residing in a particular house which was never taken on rent by him. There is no doubt that the Enquiry Officer will return the finding after objectively considering the evidence and the materials brought on record. The evidence regarding occupation of the house or submitting false information or the conspiracy can easily and conveniently be available at Ghaziabad. There could be no objection for holding and concluding the disciplinary enquiry at Ghaziabad. It may further be noticed here that the learned single Judge while dismissing the writ petition has indicated that if any cause of action arises, the petitioner will have the right to challenge the order which might be passed by the Enquiry Officer or by the higher authority.
9. Learned counsel for the appellant has tried to draw support from the observations made in the decision of the Apex Court in the case of S. Parthasarthi v. State of Andhra Pradesh, 1973 (4) SCSR 74. wherein it had been indicated that ".....if the 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 or conjecture would not be 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....."
10. So far as the aforesaid aspect is concerned, suffice it to say that in the present case, we have searched in vain for any allegation of bias against Smt. Abha Singh the Enquiry Officer who is seized with the regular disciplinary enquiry. Further, the apprehension of the petitioner appears to have been based on mere surmises and conjectures. The aforesaid decision cannot come to the rescue of the petitioner.
11. Learned counsel for the appellant has further placed reliance upon a decision of the learned single Judge of Madras High Court in the case of K. Sundara Rajan v. Deputy Inspector General of Police, Tiruchirapalli and Ors., 1972 SLR 72. The contention is that the Enquiry Officer should not be personally interested in the matter, and should be a person having an open mind, a mind which is not biased against the charged officer. In the present case as has already been noted hereinabove, there is no allegation of bias, etc. against Smt. Abha Singh. In any case, the disciplinary authority is competent enough to discard any enquiry report in case it is established that the decision of the Enquiry Officer was in any manner tainted or not supported by the evidence available on the record or was in any manner biased. The ratio of the aforesaid decision taking into consideration the facts and circumstances, as brought on record, could not come to the rescue of the petitioner.
12. The learned counsel for the appellant in support of his submission has further relied upon the decision of the Apex Court in the case of Ratan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and Ors., AIR 1993 SC 2155. What has been urged by the learned counsel for the appellant is that in the aforesaid case, the conduct of one of the members of the enquiry committee was found to be biased in the sense that he had a pre-disposition to decide against the appellant. The Apex Court had found that ground sufficient for interference. What the Apex Court had observed was that if a person had a pecuniary interest, such interest, even if very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject-matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. It was further observed that the answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done.
13. In the present case, as has already been indicated herein above, there is no allegation of bias of any nature against Smt. Abha Singh. What has been urged is that the Commandant might influence the Enquiry Officer. The assumption in this regard is based upon the apprehension that the aforesaid Commandant with a bias had withheld the payment of the house rent allowance to the petitioner-appellant after filing of the complaint.
14. Considering the circumstances of the case, the aforesaid factor cannot lead to an inference that Smt. Abha Singh who was holding a post of Assistant Commandant, will not discharge her duties independently or will not objectively assess and evaluate the evidence brought on record. The ratio of the aforesaid decision is not at all attracted to the facts and circumstances of the present case.
15. It is true that it is an elementary rule of natural justice that a person who tries a case should be able to deal with the matter before him objectively fairly and impartially. The 'biased' person does not hold his opinion as it is the opinion that holds him and, therefore, he cannot have an impartial mind.
16. In the present case, nothing has been brought on record which may indicate any bias on the part of the Enquiry Officer, Smt. Abha Singh, the Assistant Commandant.
17. Taking into consideration the facts and circumstances, as brought on record, we are not inclined to interfere with the discretion exercised by the learned single Judge.