At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE
For the Appearing Parties: Bhaskar Gupta, Goutam Chakraborty, P.K. Dutta, Prantosh Mukherjee, R.N. Bajoria, Sunil Chatterjee, Advocates.
(1) THIS appeal has been preferred against the judgment of the learned Single Judge dated May 8,1995 dismissing the writ petition.
(2) IN this appeal before us the learned Counsel for the appellant has argued that as Shri Sukumar Shankar has issued the show cause notice as Additional Collector and at the same time has filed the affidavit giving his mind already to the controversy, he is biased and the proceedings before him should be transferred to some other authority having competent jurisdiction.
(3) FOR deciding the point urged before us, facts are not required to be stated in detail excepting to note down the background from which the same arises.
(4) WHILE the investigation was on under the Customs Act the appellant filed a writ petition before a learned Judge of this Court on December 13,1994. The said writ petition was dismissed on January 19, 1995 by laying down the time schedule within which the Customs Authorities should serve the Show Cause Notice and finalise the adjudication proceedings on the basis of the same. Appeal preferred against this judgment was also dismissed.
(5) ON May 8,1995 the writ petition challenging the validity of the show cause notice was rejected on the ground that there was no justification to entertain the same as that was to hinder the investigation schedule.
(6) JUSTIFYING the Show Cause Notice the Collector of Customs Sukumar Shankar filed a counter-affidavit in the Court. Filing of this counter-affidavit led the appellant to advance the argument before us that Sukumar Shankar the Collector of Customs was prejudiced and that no justice was expected from him and he was biased hence, the proceedings pending before the Customs Authorities should not be decided by him and it is on this ground the appeal has been pressed before us.
(7) WE have heard the learned Counsel for the parties and are of opinion that the apprehension expressed by the learned Counsel in the appeal is difficult to accept. It was brought to our notice and argued on behalf of the Collector of Customs that Sukumar Shankar had not participated in the proceedings or passed any order which could be considered as an act of bias disqualifying him from adjudicating the proceeding.
(8) WE have noted above that the point of bias has been taken before us. Learned Counsel for the appellant urged as Sukumar Shankar has filed an affidavit in the writ petition on behalf of the department he had become disqualified to decide the case. We do not accept this submission inasmuch as Sukumar Shankar has only filed a counter-affidavit justifying issuance of Show Cause Notice which is more or less on the same ground on which notice has been issued. The question to decide is "what interest in a judicial or quasi-judicial proceeding, does the law regard as sufficient to incapacitate a person from adjudicating a proceeding pending before him. " In the present case, the facts which have been brought to our notice only showed that Sukumar Shankar had filed an affidavit on behalf of the department. That affidavit, as stated earlier, was a repetition of the Show Cause Notice. It did not contain any conclusion or his decision on the controversy which arises for decision in the adjudication proceeding. It would, therefore, be wrong to accept at this stage that Sukumar Shankar had disqualified himself by the mere fact of his filing counter-affidavit. "a real likelihood" of bias must be proved to exist before proceedings would be vitiated on the ground that the authority was incapacitated. To our mind the submission made by the appellant has no substance. Sukumar Shankar had not been shown to have any personal interest of his own. He was not remotely concerned with the investigation and he has not carried the same. The test of bias is whether a reasonable man, fully apprised of the circumstances, would have a reasonable apprehension that the decision of the Tribunal or the authority would operate against him, even though it did not in fact take place. In the instant case, the apprehension is fully unjustified and unbelievable. The Authority did not have any interest in the subject matter of the case. It must be on the facts found and established, we find that the apprehen
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sion of the appellant is too remote to be accepted, consequently we do not find any merit in this appeal. We also wish to note that the appellant will have a right to appeal under Section 129 of the Customs Act and any grievance about illegality of the order can be made to the Appellate authority under the Act. (9) CONSEQUENTLY we reject the stay petition. The appeal is treated as on day's list and in view of the above findings the appeal is summarily rejected.