9911796707
TMI Blog1990 (8) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... tition filed by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as 'the Act'). The appellant held a permanent commission, as an officer, in the regular army and was holding the substantive rank of Captain. He was officiating as a Major. On December 27, 1974, the appellant took over as the Officer Commanding of 38 Coy. ASC (Sup) Type 'A' attached to the Military Hospital, Jhansi. In August 1975, the appellant had gone to attend a training course and he returned in the first week of November 1975. In his absence Captain G.C. Chhabra was the officer commanding the unit of the appellant. During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut 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 difference in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investigation and a Court of Enquiry blamed the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order it was directed that the appeal be listed for final hearing before the Constitution Bench. The said order does not indicate the reason why the appeal was directed to be heard by the Constitution Bench. The learned counsel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Staff, while confirming the findings and the sentence of the General Court Martial, and for the Central Government, while rejecting the post-confirmation petition of the appellant, to record their reasons for the orders passed by them. We propose to deal with this question first. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and Others, [1969] 2 S.C.R. 177. In that case it was contended before this Court that the order of the Chief of Army Staff confirming the proceedings of the Court Martial under Section 164 of the Act was illegal since no reason had been given in support of the order by the Chief of the Army Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le confirming the finding or sentence of the Court-Martial or by the Central Government while dealing with the post-confirmation petition submitted under Section 164 of the Act and that the decision of this Court in Som Datt Datta's case (supra) in this regard does not call for reconsideration. The question under consideration can be divided into two parts: (i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and (ii) If so, does the said principle apply to an order con- firming the findings and sentence of a Court-Martial and post-confirmation proceedings under the Act? On the first part of the question there is divergence of opinion in the common law countries. The legal position in the United States is different from that in other common law countries. In the United States the courts have insisted upon recording of reasons for its decision by an administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because "administrative process will best be vindicated by clarity in its exercise" Phelps Dodge Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... migration Appeal Tribunal Ex parte Khan (Mahmud), [1983] QB 790 Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a denial of justice, has observed: "A party appearing before a tribunal is entitled to know either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind." (P. 794) The Committee on Ministers' Powers (Donoughmore Committee) in its report submitted in 1932, recommended that "any party affected by a decision should be informed of the reasons on which the decision is based" and that "such a decision should be in the form of a reasoned document avail- able to the parties affected." (P. 100) The Committee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that "decisions of tribunals should be reasoned and as full as possible." The said Committee has observed: "Almost all witnesses have advocated the giving of reasoned decisions by tribunals. We are convinced that if tribunal proceedings are to be fair to the citizen reasons should be given to the fullest practicable extent. A decision is apt to be better ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w been replaced by the Statutory Powers and Procedure Act, 1980, which contains a similar provision. The position at common law is no different in Australia. The Court of Appeal of the Supreme Court of New South Wales in Osmond v. Public service Board of New South Wales, [1985] 3 NSWLR 447) had held that the common law requires those entrusted by Statute with the discretionary power to make decisions which will affect other persons to act fairly in the performance of their statutory functions and normally this will require an obligation to state the reasons for their decisions. The said decision was overruled by the High Court of Australia in Public Service Board of New South Wales v. Osmond, [1986] 63 ALR 559 and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations, of other persons. Gibbs CJ., in his leading judgment, has expressed the view that "the 'rules of natural justice are designed to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s practicable and in any event within 28 days. The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the commonwealth Administrative Appeals Tribunal Act. 1975. In India the matter was considered by the Law Commission in the 14th Report relating to reform in Judicial Administration. The Law Commission recommended: "In the case of administrative decisions provision should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate writs." (Vol. II P. 694). No laws has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes. The question as to whether an administrative authority should record the reasons for its decision has come up for consideration before this Court in a number of cases. In M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Others, [1962] 2 SCR 339, a Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Subba Rao, J., as he then was, did to concur with this view and found that the order of the Central Government was vitiated as it did not disclose any reasons for rejecting the revision application. The learned Judge has observed: "In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomitants of a Welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself. Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds, A reasoned order is a desirable condition of judicial disposal." (P. 472). "If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officer may turn out to be a potent weapon for abuse of power. But, if reasons for an order are giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory powers of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art. 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected", or "dismissed". In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal." (P. 309). This Court has referred to the decision in Madhya pradesh Industries case (supra) and the observations of Subba Rao, J., referred to above, in that decision have been quoted with approval. After taking note of the observations of Bachawat, J., in that case, the learned Judges have held: "After all a tribunal which exercises judicial or quasi-judicial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far-reaching consequences to them are adjudicated upon in a summary fashion, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law." (P. 204) "Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may deter- mine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just." (P. 205) In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tribunal. It was found that the award stated only the conclusions and it did not give the supporting reasons. This Court has observed: "The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f compliance with it would not satisfy the requirement of law." (496) Tarachand Khatri v. Municipal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary authority, agreeing with the findings of the Inquiry Officer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary authority had not given its reasons for passing the order. The said contention was negatived by this Court and distinction was drawn between an order of affirmance and an order of reversal. It was observed: " ..... while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the Inquiry Officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition too broadly to say that even an ordinary concurrence must be supported by reasons." (P. 208) In Raipur Development Authority and Others v. M/s. Chokhamal Contractors and Others, [1989] 2 S.C.C. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process." This decision proceeds on the basis that the two well-known principles of natural justice, namely, (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak and Others v. Union of India and Others, [1970] 1 SCR 457, wherein it has been held: "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely. (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses where the requirement 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. We may now come to the second part of the question, namely, whether the confirming authority is required to record its reasons for confirming the finding and sentence of the court-martial and the Central Government or the competent authority entitled to deal with the post confirmation petition is required to record its reasons for the order passed by it on such petition. For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as 'the Rules') expressly or by necessary implication dispense with the requirement of recording reasons. We propose to consider this aspect in a broader perspective to include the findings and sentence of the court-martial and examine whether reasons are required to be recorded at the stage of (i) recording of findings and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition. Before re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. In sub-section (2) it is laid down that no sentence of death shall be passed by a general court martial without the concurrence of at least two-thirds of the members of the court and sub-section (3) provides that no sentence of death shall be passed by a summary general court-martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge-advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge-advocate no other address shall be allowed. Rule 61 prescribes that the Court shall deliberate on its findings in closed court in the presence of the judge-advocate and the opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judge advocate must be careful to maintain an entirely impartial position. From the provisions referred to above it is evident that the judge-advocate plays an important role during the courts of trial at a general court-martial and he is enjoined to maintain an impartial position. The court-martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty". It is also required that the sentence should be announced forth- with in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to have a specific provision for recording of reasons for the recommendation to mercy. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... command before confirmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the confirming authority may confirm or refuse confirmation or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, finding and sentence, and any recommendation to mercy shall, together with the confirmation or non-confirmation of the proceedings, be promulgated in such manner as the confirming authority may direct, and if no direction is given, according to custom of the service and until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated. The provisions mentioned above show that confirmation of the findings and sentence of the court-martial is necessary before the said finding or sentence become operative. In other words the confirmation of the findings and sentence is an integral part of the proceedings of a court-martial and before the findings and sentence of a court-martial are confirmed the same are examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required to be recorded at the stage of recording of findings and sentence by a court-martial and at the stage of confirmation of the findings and sentence of the court- martial by the confirming authority. With regard to recording of reasons the considerations which apply at the stage of recording of findings and sentence by the court-martial and at the stage of confirmation of findings and sentence of the court martial by the confirming authority are equally applicable at the stage of consideration of the post-confirmation petition. Since reasons are not required to be re- corded at the first two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-confirmation petition under Section 164(2) of the Act. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived at the same conclusion as in Sorn Datt Datta case (Supra) the submission of Shri G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Solicitor General. Section 164 of the Act provides as under: "(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court-martial may present a petition to the officer or authority empowered to confirm any tinging or sentence of such court-martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness. legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved 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 sub-section (1) reference is made to orders passed by a court martial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation before the confirmation Of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court-martial. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter affidavit filed on behalf of Union of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non- consideration of the same by the confirming authority before the passing of the order of confirmation would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1976 and that on reaching there he found ordnance pattern woolien pants lying by the side of the room wall next to the appellant's table and that the appellant had called Mohd. Sharif P.W. 15 to his office and had asked him to take out 19 woolien trousers out of the lot kept there in the office. After Mohd. Sharif had selected 19 woollen trousers the appellant told Mohd. Sharif to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court-martial, has referred to this evidence on the first charge and the court-martial, in holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge levelled against the appellant and the findings recorded by the court-martial in respect of the said charge is based on no evidence or is perverse. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt. Chhabra. In his summing up before the court-martial the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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