Can An Officer Who Passed An Order Consider Appeal Against It ?
An officer who passed the original order considers and pass orders on the appeal preferred against it while officiating as appellate authority.There is long time gap between these two orders. Whether the order is vitiated for the sole reason that the the original order and the order in appeal passed by the one and the same person?
A similar question was considered by the Allahabad High Court in Mohd. Chand vs. State of UP case. In that case, the petitioners challenged the order passed by Chief Controlling Revenue Authority on the ground that the appellate order has been passed by the same officer who has passed the basic order. The court made the following observations:
The right to appeal is not an inherent right but is only a statutory right. It can not be availed of unless it has been provided under the statute. Section 56 of the Act provides for an appeal against the order of the Collector. The object of providing a statutory appeal is to test the correctness of the order and that too by a superior authority/Court. The appeal is only removal of the cause of action from an inferior court to superior court for deciding the soundness of the decision of the inferior court. The officer who has passed the order as inferior court or authority can not legally test the correctness of his own decision while exercising the powers of the superior court in appeal. In the event the appeal against the inferior court or authority is allowed to be heard by the same officer who has passed the order impugned in appeal, it would make the appeal illusory and nugatory frustrating the purpose of its filing.
The appeal is conceptually different from a review. The review is reconsideration of the subject by the same judge to cure an error which may be apparent on record while an appeal is re-hearing of the matter by a superior Court/authority to test correctness of the decision of the lower court/authority. Allowing the appeal to be heard by the same officer who had passed the basic order would tantamount to reducing the appellate jurisdiction into that of review. Therefore, also no person should normally hear the appeal against his own order. One of the fundamental principles of natural justice is that no man can be a judge in his own cause. The above principle is not confined to its literal interpretation to mean that if a person is a party in a litigation he can not sit and decide the same as a Judge but may also be extended in cases where he has some interest in the litigation or in any party to the litigation and even to cases where he happens to be a witness of one of the parties. The said principle would also be attracted in a case where a Judge may not be a party to the cause of action in any manner aforesaid but has delivered the order/judgment which is to be tested in appeal. There is another famous dictum based upon the principle of natural justice enshrined by Lord Hewart, C.J., which says “Justice should not only be done but should manifestly and undoubtedly be seen to be done”
Thus, it is cardinal that in the matter of dispensation of justice certain rules have to be observed which manifestly ensure that justice has been done and for that purpose it is essential that veracity of the judgment ought not to be allowed to be tested by the same person in appeal rather it should be tested by another person. Earlier as per the practice prevalent in the High Courts of India in the absence of any specific prohibition in law a practice prevailed of including judges in Bench against whose judgment the appeal is to be heard but slowly this practice was given up and fell in desuetude. In AIR 1963 SC 1 R. Vishwanathan Vs. Abdul Wajid while dealing with the issue of the practice of having judges making a reference to the larger Bench as a member of the larger Bench, it was observed that it is desirable that a judge should not take part in the determination of appeal against his own decision unless the statute expressly authorizes him to do so. The principle is that one who has made the decision having a judicial flavour should not participate in appeal arising from such a decision.
