9911796707
TMI Blog1990 (8) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Appeal No. 417 of 1984. - - - Dated:- 28-8-1990 - AGRAWAL, S.C. MUKHARJI, SABYASACHI KANIA, M.H. SHETTY, K.J. SAIKIA, K.N. JUDGES JUDGMENT: A.K. Ganguli, A. Sharan for the Appellant. Kapil Sibal, Additional Solicitor General, Raju Rama- chandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents. T. Prasad for the Secretary, Ministry of Defence. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition filed by the appellant. In the writ petition the appellant had challenged the validity of the finding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Staff confirming the findings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 witnesses to prove the charges. The General Court Martial. on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the first and the third charge and awarded the sentence of dismissal from service. The appellant submitted a petition dated December 18, 1978, to the Chief of Army Staff wherein he prayed that the findings and the sentence of the General Court Martial be not confirmed. The findings and sentence of the General Court Martial were confirmed by the Chief of the Army Staff by his order dated May 11, 1979. The appellant, thereafter, submitted a post-confirmation petition under Section 164(2) of the Act. The said petition of the appellant was rejected by the Central Government by order dated May 6, 1980. The appellant thereupon filed the writ petition in the High Court of Delhi. The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981. The appellant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court. By order dated January 24, 1984, sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, there is a general principle or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision. Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta's case (supra) to the extent it holds that there is no general principle or rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsideration inasmuch as it is not in consonance with the other decisions of this Court. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Bhagat Raja v. The Union of India and Others, [1967] 3 SCR 302; Mahabir Prasad Santosh Kumar v. State of U.P. and Others, [1971] 1 SCR 201; Woolcombers of India Ltd. v. Woolcombers Workers Union and Another, [1974] 1 S.C.R. 503 and Siemens Engineering Manufacturing Co. of India Limited v. Union of India and Another, [1976] Suppl. S.C.R. 489. The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement in law that reasons be given by the con- firming authority while confirming the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state statutes. In England the position at Common law is that there is no requirement that reasons should be given for its decision by the administrative authority (See: Regina v. Gaming Board for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes v. Onslow-Fane and Another, [1978] 1 W.L.R. 1520 at p. 1531). There are, however, observations in some judgments wherein the importance of reasons has been emphasised. In his dissenting judgment in Breen v. Amalgamated Engineering Union and Others, [1971] 2 Q.B. 175 Lord Denning M.R., has observed that: "the giving of reasons is one of the fundamental of good administration." (P. 191) In Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] ICR 120 Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52 "failure to give reasons amounts to a denial of justice." In Regina v. Immigration App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TICE in its Report, Administration under Law, submitted in 1971, has expressed the view: "No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions." The law in Canada appears to be the same as in England. In Pure Spring Co. Ltd. v. Minister of National Revenue, [1947] 1 DLR 501 at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination. In some recent decisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construction Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 168) and Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 544. In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that "a tribunal shall give its final decision, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party." (Section 17). The said Act has now been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re neither standardized nor immutable and that their content may vary with changes in contemporary practice and standards. In view of the statutory developments that have taken place in other countries to which reference was made by the Court of Appeal, Deane, J. has observed that the said developments "are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision-maker should be under a duty to give reasons." (P. 573). This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act. 1977. Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision-maker to furnish him with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision and on such a request being made the decision-maker has to prepare the statement and furnish it to the persons who made the request as soon as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the reason for rejecting the revision application appeared on the face of the order because the Central Government had agreed with the reasons given by the State Government in its order. The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing. The learned Judges pointed out that an order of court dismissing a revision application often gives no reasons but this is not a sufficient ground for quashing it and likewise an order of an administrative tribunal rejecting a revision application cannot be pronounced to be in- valid on the sole ground that it does not give reasons for the rejection. The decision in Hari Nagar Sugar Mills case (supra) was distinguished on the ground that in that case the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. According to the learned Judges there is a vital difference between an order of reversal and an order of affirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or there are no legally permissible grounds to interfere with it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is laconic and does not give any reasons." (P. 472-73). With reference to an order of affirmance the learned Judge observed that where the original tribunal gives reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons and that what is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. This matter was considered by a Constitution Bench of this Court in Bhagat Raja case (supra) where also the order under challenge had been passed by the Central Government in exercise of its revisional powers under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957 read with rules 54 and 55 of the Mineral Concession Rules, 1960. Dealing with the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review this Court has observed: "The decisions of tribunals in India are subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory jurisdiction of the High Court under Articles 136 and 227 of the Constitution of India respectively. In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR 4(1 this Court has observed: "The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceedings before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deter- rent against possible arbitrary action by the executive authority invested with the judicial power." (P. 46) In Mahabir Prasad Santosh Kumar v. State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the' U.P Sugar Dealers' Licensing Order, 1962 without giving any reason and the State Government had dismissed the appeal against the said order of the District Magistrate without recording the reasons. This Court has held: "The practice of the executive authority dismissing sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under the Sea Customs Act, 1878. This Court has laid down: "It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons." (P 495) "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then along administrative authorities and tribunals, exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partera, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes." (P. 751-52) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrarine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Do enough more Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity." (P 80) Prof. H.W.R. Wade has also ex- pressed the view that "natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice." (See Wade, Administrative Law, 6th Edn. P. 548). In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that "the rule requiring reasons to be given in support of an order is, like the principles of audi alteram parlem, a basic principle of natural justice which mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi- judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would out weight the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. For the reasons aforesaid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record. Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the findings and sentence of the court- martial. Section 108 of the Act makes provision for four kinds of courts-martial, namely, (a) general courts-martial; (b) district courts martial; (c) summary general courts martial and (d) summary courts-martial. The procedure of court- martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court- martial shall, and every district or summary general court- martial, may be attended by a judge-advocate, who shall be either an officer belonging to the department of the Judge- Advocate General, or if no such officer is available, an officer approved of by the Judge-Advocate General or any of his deputies. In sub-section (1) of Section 131 it is pro- vided that subject to the provisions of sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation. Sub-rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The powers and duties of judge-advocate are pre- scribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its finding and the court, in following the opinion of the judge- advocate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge-advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him necessary or desirable to elicit the truth. It is fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 160 it is provided that on such revision, the court, if so directed by the confirming authority, may take additional evidence. The confirmation of the finding and sentence is not required in respect of summary court-martial and in Section 162 it is provided that the proceedings of every summary court-martial shall Without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff or any officer empowered in this behalf may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed. In Rule 69 it is provided that the proceedings of a general court-martial shall be submitted by the judge-advocate at the trial for review to the deputy or assistant judge-advocate general of the command who shall then forward it to the confirming officer and in case of district court martial it is provided that the proceedings should be sent by the presiding officer, who must, in all cases. Where the sentence is dismissal or above, seek advice of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt martial. With regard to post-confirmation proceedings we find that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself ag- grieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit. In so far as the findings and sentence of a court-martial and the proceedings for confirmation of such findings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a departure from the said scheme in respect of post-confirmation proceedings? There is nothing in the language of sub-section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post confirmation proceedings which may require recording of reasons for an order passed on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the copies of the relevant record of the court-martial to enable him to make a complete representation and further that the representation submitted by the appellant under sub-section (1) of Section 164 was not considered by the confirming authority before it passed the order dated May 11, 1979 confirming the findings and sentence of the court martial. The learned Additional Solicitor General, on the other hand, has urged that under sub-section (1) of Section 164 no right has been conferred on a person aggrieved by the findings or sentence of a court-martial to make a representation to the confirming authority before the confirmation of the said findings or sentence. The submission of learned Additional Solicitor General is that while sub-section (1) of Section 164 refers to an order passed by a court martial, sub-section (2) of Section 164 deals with the findings or sentence of a court-martial and that the only right that has been conferred on a person aggrieved by the finding or sentence of a court-martial is that under sub-section (2) of Section 164 and the said right is avail- able after the finding and sentence has been confirmed by the confirming authority. We find conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked only after the finding or sentence has been confirmed by the confirming authority and not before the confirmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court-martial shall be entitled on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court-martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court-martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court-martial before the confirmation of the said finding and sentence. Though a person aggrieved by the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra Brothers, Sadar Bazar, Jhansi for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordnance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra Brothers, Sadar Bazar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December, 1975. The evidence of these witnesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/sub. P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his office ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
