1990 (8) TMI 345 - SC - Indian Laws

The Appellant was officiating as a Major though he held a substantive rank of Captain as a permanent Commissioned Officer of the army when on December 27 1974 he took over as the Officer Commanding 38 Coy. A.S.C. (Sup) Type A attached to the Military Hospital Jhansi. In August 1975 the Appellant went to attend a training course and returned in the first week of November. 1975. In his absence Captain G.C. Chhabra was commanding the unit of the appellant and he submitted a Contingent Bill dated September 25 1975 for Rs.16, 280 for winter liveries of the depot civilian chowkidars and sweepers. The said Bill was returned by the Controller of Defence Accounts (CDA) with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25 1975 for a sum of Rs.7, 029.57. In view of the wide difference in the two Contingent Bills the CDA reported the matter to the Headquarters for investigation and a Court Enquiry blamed the appellant for certain lapses. After considering the said report of the Court of Enquiry the General Officer Commanding M.P. Bihar and Orissa recommended that severe displeasure (to be recorded) of the General Officer Commanding-in-Chief of the Central Command be awarded to the appellant.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court were:

(i) Whether the confirming authority (Chief of Army Staff) and the Central Government are required to record reasons while confirming the findings and sentence of a General Court Martial and while dismissing a post-confirmation petition under Section 164(2) of the Army Act, 1950.

(ii) Whether there is a general principle or rule of natural justice requiring administrative or quasi-judicial authorities to give reasons for their decisions.

(iii) Whether the appellant had a right to make a representation to the confirming authority before confirmation of the findings and sentence and whether the non-consideration of such representation vitiates the confirmation order.

(iv) Whether the first and second charges against the appellant being identical, the acquittal on the second charge invalidates the conviction on the first charge.

(v) Whether the findings of guilt on the first and third charges were supported by evidence or were perverse.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i) and (ii): Requirement to Record Reasons by Confirming Authority and Central Government; General Principle of Law

The Court examined the statutory provisions of the Army Act, 1950 and the Army Rules, 1954, and considered prior decisions, including a Constitution Bench decision in Som Datt Datta v. Union of India, which held that the confirming authority and the Central Government are not required by the Act to record reasons for confirming or dismissing court-martial findings and sentences. The Court noted that Section 162 of the Act expressly requires reasons to be recorded only when proceedings of a summary court-martial are set aside or sentences reduced, implying no such requirement for confirmation.

The Court surveyed comparative jurisprudence from the United States, England, Canada, and Australia. It noted that while U.S. law and some other jurisdictions impose a duty to give reasons for administrative decisions to ensure fairness, clarity, and facilitate judicial review, English common law and other Commonwealth countries traditionally do not impose a general obligation to give reasons unless statutory provisions require it. The Court also referred to various English committees (Donoughmore and Franks Committees) advocating for reasoned decisions to promote fairness and transparency.

In India, the Court reviewed precedents emphasizing the importance of giving reasons by administrative and quasi-judicial authorities, especially where appellate or supervisory jurisdiction exists under Articles 136 and 227 of the Constitution. Cases such as Harinagar Sugar Mills Ltd., Bhagat Raja, Mahabir Prasad Santosh Kumar, Woolcombers of India Ltd., and Siemens Engineering & Manufacturing Co. established that recording reasons is a basic principle of natural justice and essential for preventing arbitrariness, ensuring fairness, and enabling effective appellate review.

The Court acknowledged that the requirement to give reasons is not absolute and may be excluded expressly or by necessary implication in certain statutory frameworks, particularly where public interest or military discipline considerations prevail. The Court held that except where expressly or impliedly excluded, an administrative authority exercising quasi-judicial functions must record clear and explicit reasons indicating due consideration of the points in controversy. However, the extent and nature of reasons depend on facts and circumstances.

Applying these principles to the Army Act and Rules, the Court concluded that the statutory scheme does not impose a duty on the confirming authority or the Central Government to record reasons when confirming court-martial findings and sentences or dismissing post-confirmation petitions. The specific requirement to record reasons in Section 162 for setting aside or reducing sentences negates any general obligation to record reasons upon confirmation. Therefore, the Court upheld the prior decision in Som Datt Datta and rejected the appellant's submission for reconsideration.

Issue (iii): Right to Make Representation Before Confirmation and Effect of Non-Consideration

The appellant contended that he was denied the right to make a representation before confirmation because he was not supplied copies of the court-martial records, and his representation dated December 18, 1978, was not considered before confirmation. The Court examined Section 164(1) and (2) of the Army Act and Rule 147 of the Army Rules.

Section 164(1) allows a person aggrieved by an order passed by a court-martial to present a petition to the confirming authority, which may take necessary steps to satisfy itself regarding the correctness and legality of the order. Section 164(2) permits a person aggrieved by a confirmed finding or sentence to petition the Central Government or superior officers. The Court interpreted the terms "order" in subsection (1) and "finding or sentence" in subsection (2) as distinct, concluding that the right to petition under subsection (2) arises only after confirmation.

Rule 147 provides that a person tried by court-martial is entitled to obtain copies of the proceedings only after confirmation. Thus, the appellant had no legal right to make a representation before confirmation or to receive copies of the proceedings prior to confirmation. The Court found that the non-consideration of the appellant's representation before confirmation did not vitiate the confirmation order, especially since it was not received by the confirming authority in time due to internal communication gaps.

Issue (iv): Identity of Charges and Effect of Acquittal on One Charge

The appellant argued that the first and second charges were identical, and acquittal on the second charge should invalidate the conviction on the first. The Court observed that the second charge was an alternative to the first, and the appellant could be convicted on either but not both. Since the appellant was found guilty on the first charge and acquitted on the second, there was no infirmity in the court-martial's approach.

Issue (v): Sufficiency of Evidence for Findings on First and Third Charges

The first charge alleged that the appellant, with intent to defraud, substituted altered ordnance pattern woollen pants for pants stitched from cloth supplied for civilian employees. The prosecution examined 22 witnesses, including cloth suppliers and unit employees, who testified to the receipt of cloth and the substitution of pants. The judge-advocate's summing up referred to this evidence, and the court-martial relied upon it in convicting the appellant. The Court held that the findings were supported by evidence and not perverse.

The third charge alleged that the appellant, knowing of an improper contingent bill submitted by a subordinate officer, failed to initiate action. Documentary evidence showed the appellant's knowledge of the bill and no complaint was made. The Court found this evidence sufficient and the finding not perverse.

3. SIGNIFICANT HOLDINGS

"Except in cases where the requirement [to record reasons] has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."

"The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process."

"The requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision making."

"The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy."

"The statutory scheme of the Army Act and Rules does not require the confirming authority or the Central Government to record reasons while confirming findings and sentence of a court-martial or while dismissing post-confirmation petitions, and the specific provision in Section 162 requiring reasons when setting aside or reducing sentences negates any general obligation to record reasons upon confirmation."

"The appellant had no legal right to make a representation to the confirming authority before confirmation of the findings and sentence, nor to receive copies of the court-martial proceedings before confirmation."

"Where two charges are alternative, conviction on one and acquittal on the other does not vitiate the conviction."

"The findings of guilt on the first and third charges were supported by evidence and were not perverse."