9911796707
TMI Blog2008 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisional disciplinary and vigilance ban has been imposed on the petitioner with effect from 27.1.2006 and that due to disciplinary case pending against her, she shall be relieved of her duties with effect from 7.3.2007 and that the provisions of Section 123 of the Army Act, 1950 (for short `the Act') stand invoked against the petitioner. It was thereafter that the General Court Martial Proceedings were convened against the petitioner on 26.2.2007. 3. Before the General Court Martial, the petitioner moved an application raising a preliminary objection to the jurisdiction of the General Court Martial to try the petitioner due to non compliance of Rule 37 of the Rules by the Convening Authority. The said objections are appended as Annexure R.26 with the present petition. The petitioner also submitted a supplementary preliminary objections supplementing the earlier objection, vide Annexure P.27. To such preliminary and supplementary preliminary objections, the respondents filed a detailed reply on 30.4.2007 vide Annexure P.28. The petitioner submitted again a detailed rejoinder on 3.5.2007. On the basis of such detailed pleadings of over fifty pages, the General Court Martia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, which is reproduced hereunder: 51. Special plea to jurisdiction.-(1) The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court, and if he does so, and the court considers that anything stated in such plea shows that the court has no jurisdiction, it shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and, any address by or on behalf of the accused and reply by the prosecutor in reference thereto. (2) If the court overrules the special plea, it shall proceed with the trial. (3) If the court allows the special plea, it shall record its decision, and the reasons for it, and report it to the convening authority and adjourn; such decision, shall not require any confirmation and the convening authority shall either forthwith convene another court for the trial of the accused, or order the accused to be released. (4) If the court is in doubt as to the validity of the plea, it may refer the matter to the convening authority, and may adjourn for that purpose or may record a special decision with respect to such plea, and proceed with the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In the said case, the following questions arose for consideration: (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 confirming the findings and sentence of a court martial and Post-confirmation proceedings under the Act? The Hon'ble Supreme Court has noticed the divergence of opinion in the common law countries and the legal position in the United States. The Hon'ble Supreme Court found that requirement to record reasons, the approach of the Court is more in line with that of American Courts. The Court has considered the 14th Report of the Law Commission relating to reforms in Judicial Administration where the Law Commission has recommended as under: In the case of administrative decisions provisions 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). 12. It is noticed by the Hon'ble Supreme Court that no law has however been enacted in pursuance of these recommendations imposing a general du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rubric for it, since the giving of reasons is required by the ordinary man's sense of justice." 17. Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971) 1 All ELR 1148, in his dissenting judgment, has held that giving of reasons is one of the fundamentals of good administration. It was held to the following effect: Then comes the problem; ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given: see the case cited in Schmidt v. Secretary of State for Home Affairs. But, if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. In A.K. Kraipak v. Union of India [1970]1SCR457 , the Hon'ble Supreme Court held to the following effect: 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 debetesse 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 the rules of natural justice. 21. It was further held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. 22. These rules ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. 25. In Suresh Koshy George v. The University of Kerala [1969]1SCR317 , it was held that the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. 26. Whenever a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of judicial review has of course been found to be counter-productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Caeser to Caeser's wife - confirmation proceeding under Section 153 - has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect of taking away the right of the delinquent to receive a copy of the inquiry report. It was held that denial of the report of the Inquiry Officer is a denial of a reasonable opportunity and breach of the principles of natural justice. The statutory rule, if any, which denies the report to the employee(s) are against the principles of natural justice and, therefore, invalid. It was also observed to the following effect: 6. origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak v. Union of India [1970]1SCR457 it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far-reaching effect than a decision in a quasi-judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder in terms of Section 164 of the Act. Therefore, the recording of reasons would be the bare minimum requirement of the principles of natural justice, which would be necessary for the appellate Court to examine and by this Court in its power of judicial review under Article 226 of the Constitution of India. Even though in terms of Article 33 of the Constitution of India, the Fundamental Rights conferred under Part-III thereof, are not applicable to the persons subject to the Act, but the reasons to be recorded would be part of basic principles of natural justice to make the special plea meaningful. The words "if the Court overrules" have inherent in them the requirement of reasons so as to overrule the plea. Thus, even if such rule is silent regarding recording of reasons, it is inherent in the word `overrule'. In fact, such interpretation would alone be in consonance with the rule of law under the Constitution of India even in respect of the members of the Armed Forces. It may be noticed that under Rule 51 of the Rules, in appropriate cases, Court can allow even evidence to be led in respect of the special plea raised by the accused. Therefore, it is impossible to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
