PODDAR MACHINERY HOUSE Vs. ORISSA SALES TAX TRIBUNAL

JUDGEMENT

(1.) BASING on the maxim "nemo debet esse judex in propria sua causa" (no man can be a judge in his own cause), the petitioner in this application under articles 226 and 227 of the Constitution of India seeks to assail the validity of the order made by the Accounts Member, Orissa Sales Tax Tribunal, Cuttack at annexure 2. The relevant facts leading to filing of this application may be briefly indicated : The petitioner was originally assessed under section 12 (4) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as, "the Act") for the year 1982-83. Later, basing on a fraud report submitted by the Inspector of Sales Tax, the Sales Tax Officer started proceeding under section 12 (8) of the Act and by order dated December 9, 1983, enhanced the returned turnover by ten per cent which resulted in extra tax demand and imposition of penalty and extra tax demand under the Orissa Additional Sales Tax Act, 1975. Against the aforesaid order, the petitioner filed first appeals Nos. AA230 to 231 (SAI) of 1983-84 before the Assistant Commissioner of Sales Tax, Sambalpur Range, Sambalpur, which were disposed of by Shri B. D. Pattanaik. By order dated May 14, 1984 he set aside the assessment and remanded the matter to the Sales Tax Officer for completion of fresh assessment. The Sales Tax Officer after remand, considered the materials available on record and passed orders on February 4, 1985 reiterating his previous order. Against this order dated February 4, 1985, the petitioner filed the first appeal bearing Nos. AA 26 and 27 (SAI) of 1985-86 before the Assistant Commissioner of Sales Tax, Sambalpur Range, Sambalpur. Both the appeals again came up for hearing before the aforesaid Shri B. D. Pattanaik who by order dated December 8, 1987 set aside the order of the Sales Tax Officer. The Revenue being felt aggrieved by the aforesaid appellate orders, filed second appeal, Nos. 1215 and 1216 of 1988-89 before the Orissa Sales Tax Tribunal, Cuttack (in brief "the Tribunal" ). The Tribunal's Accounts Member by order dated November 27, 1995 vacated the order of the Assistant Commissioner and restored the order of the Sales Tax Officer. The Accounts Member of the Tribunal who disposed of the second appeals was none other than Shri B. D. Pattanaik who had earlier disposed of the first appeals in the capacity of the Assistant Commissioner of Sales Tax.

(2.) THE rule of natural justice basically and essentially constitutes two elements, namely, (i) no one shall be condemned unheard (audi alteram partem) and, (ii) no one shall be a judge in his own cause (nemo debet esse judex in propria sua causa ). Since in the present case we are concerned with the second element, it may be stated that the requirement of "fair play in action" or "fair hearing" not only applies to judicial proceedings, but also to quasi judicial and administrative proceedings. "nemo debet esse judex in propria sua causa", i. e. , no one shall be a judge in his own cause is a principle now firmly established in law. Justice should not only be done but should manifestly be seen to be done. Justice can never be seen to be done if a man acts as a judge in his own cause or where he himself sits as an appellate authority to hear an appeal against his own order. The principle underlying this rule is that the hearing should be done by the concerned authority with an unbiased mind.

(3.) IN this connection, it is profitable to refer to another decision of the Supreme Court in Baidyanath Mahapatra v. State of Orissa AIR 1989 SC 2218 wherein it has been observed as follows :