JUDGMENT [ENTITY], J.
1. Heard Mr. [ENTITY], learned Senior Advocate for the petitioner and Mr. [ENTITY], learned Senior Central Govt. Standing Counsel for the Union of India.
2. In this application under [SECTION] of the [ACT], the petitioner has challenged the order dated 21.8.1993 passed by the Colonel Commandant, 29th Assam Rifles, whereby the petitioner was dismissed from service.
3. The undisputed facts are that on the night of 14/ 15th January, 1993 the petitioner [ENTITY], a Naik under the Assam Rifle was detailed for Guard duty at Gate No. 2 of the Headquarter of the Assam Rifles. On that night itself the service weapons, i.e. a rifle 7.62 mm SLR along with cartridges issued to the petitioner was found missing. Thereafter a preliminary enquiry was held and the petitioner was tried for the commission of the offence under [SECTION] of the [ACT]. The petitioner was found guilty and he was sentenced to imprisonment in civil jail for a period of one year with fine of Rs. 200. Thereafter a show cause notice was issued to the petitioner and vide impugned order he was dismissed from service. Hence the present petition.
4. The Union of India has raised a preliminary objection that the petitioner has not exhausted the statutory appeal available to him under [SECTION] of the [ACT] by preferring an appeal against the impugned order. Learned counsel for the petitioner, on the other hand, submits that this is a case of gross violation of the principles of natural justice and as such this Court is not estopped from exercising its jurisdiction in granting relief on the ground that alternative remedy is available to the petitioner. In support of his submission learned counsel for the petitioner has referred to a recent decision of the Apex Court in the case of [PRECEDENT]. In that case the Apex Court has held that the existence of alternative statutory remedy is not a constitutional Bar to exercise jurisdiction for giving relief under [SECTION] of the [ACT]. It has further stated that the existence of alternative remedy will not operate as a bar in at least three contingencies : (1) where the fundamental rights are bled to be enforced, (2) violation of the principles of natural justice and (3) where proceedings are without jurisdiction or the vires of an Act is challenged.
5. In the present case the petitioner has impugned the order mainly on the ground of violation of the principle of natural justice in the sense that the petitioner was prejudiced due to the biasness of the Commanding Officer.
6. The materials on record show that soon after the Incident a preliminary enquiry into the case was made by Col. Commandant [ENTITY]. Thereafter the petitioner was tried for violation of the provisions of [SECTION] of the [ACT] by Col. Commandant [ENTITY] and the petitioner was sentenced to imprisonment with fine by the same Col. Commandant [ENTITY]. Thereafter the Col. Commandant issued a show cause notice to the petitioner and on his appearance vide the impugned order dismissed him from service. It is therefore submitted that the competent authority was biased towards the petitioner and as the petitioner was convicted by Col. Commandant [ENTITY], his service matter should have been dealt with by some other officer. The question of biasness or likelihood of biasness was considered by the Apex Court in the case of [PRECEDENT] in which the Hon'ble Supreme Court made the following observations:
The test of likelihood of bias which has been applied in a number of cases is based on the 'reasonable apprehension' of a reasonable man fully cognizant of the facts. The court have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed (see [PRECEDENT]. R. v. Sussex JJ, ex p. Mc. Carthy (1924) 1 KB 256. [PRECEDENT]. [PRECEDENT], but in [PRECEDENT] at p. 51 the Court after a review of the relevant cases held that real likelihood of bias was the proper test and that a real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.
The question then is whether a real likelihood of bias existed is to be determined on the probabilities to be Inferred from the circumstances by court objectively or upon the basis of the impressions that might reasonable to left on the minds of the party aggrieved or the public at large.
The test 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 betore it. Whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The court must look at the impression which other people have. This follows from the principle that justice must not only be done but seems 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 query, 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 (see per Lord Denning. M.R. in [PRECEDENT].) We should not however, be understood to deny that the court might with greater propriety apply the 'reasonable suspicion' test in criminal or in proceedings analogous to criminal proceedings.
As there was real likelihood of bias in the sense explained above, we think that the inquiry and the orders based on the inquiry were bad. The decision of this Court in the [PRECEDENT] makes it clear that if an inquiring officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for not applying the same principle here as we find that the inquiring officer was biased."
7. In view of the admitted position in this case that it was Col. Commandant [ENTITY], who held the preliminary enquiry held the trial in the criminal case and convicted the petitioner, it would not be incorrect to state that the likelihood of bias in the manner stated above was in existence when the impugned order was passed. Whether the petitioner was in fact prejudiced or the authority was biased or not was not material but the circumstance did exist from which it can be inferred that the authority concerned was likely to be biased was as all the actions against him were taken by one officer, i.e. Col. Commandant [ENTITY].
8. In the result, the writ petition is allowed and the impugned order of dismissing the petitioner from service passed by the Col. Commandant [ENTITY] is hereby set aside. The competent authority may hear the matter afresh and pass necessary order in accordance with law.