Court No. - 28
Case :- WRIT - A No. - 12456 of 2000
Petitioner :- Manoj Kumar
Respondent :- Union Of India & Others
Counsel for Petitioner :- Udai Narain Khare,H.S. Singh,Narendra Mohan,S.C.Mishra
Counsel for Respondent :- S.S.C./S.N.Srivastava,Avadhesh.Chandr.Srivastav,K.M.Ast hana,S.C.,Vaibhav Kaushik
Hon'ble Siddharth,J.
Heard Shri Satish Chandra Mishra, learned counsel for the petitioner and Shri Avadhesh Chandra Srivastav, learned counsel for the respondents.
The petitioner has filed this writ petition challenging the order dated 19.8.1997 passed by respondent No.1, Director, Home Ministry, New Delhi, whereby his representation/appeal before the appellate authority has been rejected and the termination order dated 24.1.1997 passed by respondent No.4, Commandant 12th Battalion, Tigri Camp, Sangam Vihar, New Delhi has been upheld. He has also challenged the termination order dated 24.1.1997 passed by respondent No.4, Commandant 12th Battalion, Tigri Camp, Sangam Vihar, New Delhi. Further prayer has been made directing the respondents to reinstate the petitioner in service and pay his arrears of salary and other emoluments along with 18% interest till the date of actual payment.
This case was transferred to Armed Forces Tribunal, Regional Bench, Lucknow by the order of this Court dated 8.3.2010, but the Tribunal has returned the record to this Court on 22.7.2010 on the ground that the jurisdiction for deciding this case does not lies with the Tribunal and accordingly, this writ petition has been heard.
The petitioner's case, in short, is that he was selected in Indo Tibbatan Border Police Force on the post of Barber/Constable in 11th Battalion, Ludhiana, Punjab. He worked till 30.8.1996 and was suspended on the ground of absence from duty on 27.8.1996. 27.8.1996 was Tuesday which is declared as holiday for all the Barbers of the Force. On 2.9.1996 disciplinary proceedings were initiated against the petitioner and Inquiry Officer was appointed. The Statement of the petitioner along with his witness Kishan Kumar, another Barber, were recorded on 16.9.1996. The petitioner was granted ten days' leave w.e.f. 15.9.1996 to 20.9.1996 vide order dated 15.9.1996 passed by the Commandant of the Force at Punjab. While he was returning home on 20.9.1996, he became ill and got admitted in District Hospital, Orai on 20.9.1996 and remained hospitalized for about three months and he duly communicated the fact of his illness to the respondent No.4, Commandant 12th Battalion, Tigri Camp, Sangam Vihar, New Delhi. When the petitioner joined his duties before the respondent No.4, he decided to conduct the Force Court on 24.1.1997 and on the same date he was dismissed from service. The petitioner represented his case before the appellate authority, Respondent No.1, Director, Home Ministry, New Delhi, but the same was turned down vide order dated 19.8.1997. Hence, the petitioner approached this Court by way of this writ petition.
A counter affidavit was filed on behalf of the respondents stating that Indo Tibbatan Border Police Force (ITBPF) has dismissed the petitioner from service after giving him full opportunity of hearing and following the provisions contained under ITBPF Act, 1992 and rules framed thereunder. The petitioner was appointed on 19.1.1988 as Constable/Barber and was not sincere in performance of his duty and was habitual absentee. He was punished five times prior to the incident in dispute for other misconducts. Tuesday is the rest day for barbers, but not a holiday and a barber cannot leave the camp area without permission of the competent authority. The charges were framed against him under Section 21(a) of the ITBPF Act, 1992 and record of evidence was ordered against him vide order dated 2.9.1996 under Rule 50 thereof. The petitioner overstayed leave and while he was required to join his duty on 24.9.1996, he joined the same on 15.12.1996. He was only an outdoor patient and never admitted to any hospital. Several letters and reminders were sent to his home address by registered post for ensuring his presence, but he did not turn up. He never sent information about his illness and no registered letter has been received in the office of respondent No.4. Warrant of arrest was also issued to the Superintendent of Police, Jalaun for apprehending the petitioner and producing him before the Commandant. After considering his past record and all the relevant facts it was found that he is not fit to be retained in service. He accepted his guilt in writing on 11.1.1997. His appeal has also been dismissed and he is not entitled to any indulgence by this Court being member of a disciplinary force.
Preliminary objection has been raised by the learned counsel for the respondents stating that no cause of action arose in the State of U.P. and therefore, the petitioner's writ petition is not maintainable before this Court for want of jurisdiction. The entire incident took place in the State of Punjab or in Delhi and therefore, this writ petition should not be entertained by this Court.
Learned counsel for the petitioner has relied upon the judgment in the case of Nawal Kishore Sharma Vs. Union of India and others, 2014 (9) SCC 329 wherein the Apex Court has held that if a part or fraction of cause of action arose within the jurisdiction of another High Court, the writ petition can be heard by such High Court under Article 226(2) of the Constitution of India.
A perusal of the aforesaid judgment shows that the Apex Court has held that the cause of action means bundle of facts which give the petitioner, right to sue and even if a small fraction of the cause of action occurred within the territorial jurisdiction of a High Court, such a High Court has power under Article 226 of the Constitution of India. In para 21 it has also been stated that when the counter affidavit was filed, no objection was taken by the respondents and therefore, they are stopped from raising objection to the jurisdiction at a later stage. In this case the petitioner was residing at Bihar and fell ill and the proceedings were conducted against him by the Shipping Corporation of India at Adani, Mundra Port. Patna High Court dismissed the petition of the petitioner on the ground of lack of jurisdiction and the Apex Court set aside the same, on the ground that the petitioner fell ill at Gaya, Bihar and he made all representations and letters from Bihar, which were replied and communicated to him at Bihar, therefore, Patna High Court had jurisdiction to entertain the writ petition filed by the petitioner.
In the present writ petition it is admitted by the respondents that they sent various letters to the residential address of the petitioner at Jalaun in the State of U.P. and even issued search warrant to the Superintendent of Police, Jalaun to arrest and produce the petitioner before the respondent No.4. The petitioner also claimed to have represented his inability to join his duties to the respondents from Jalaun by registered post and therefore, it cannot be said that no part of cause of action arose at Jalaun in the State of U.P. and this High Court has no jurisdiction to hear the writ petition filed by the petitioner only on this ground.
Learned counsel for the petitioner has argued that the decision of the Force Court was absolutely illegal in view of Section 21(a) of the ITBPF Act, 1992, which provides maximum punishment of three years imprisonment for absence without leave.
21. Absence without leave.—Any person subject to this Act who commits any of the following offences, that is to say,—
(a) absents himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause, to rejoin without delay; or
(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or
(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or
(f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or
(g) without leave from his superior officer or without due cause, absents himself from any school or training institution when duly ordered to attend there, shall, on conviction by a Force Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
He has further argued that the Force Court did not grant him proper opportunity to defend his case since the Force Court was convened on 24.1.1997 and on the same date punishment order was passed.
The third ground argued by learned counsel for the petitioner is that in the punishment order there is no finding that he was willfully absent and therefore, his removal from service is being ordered.
Learned Counsel for the petitioner has relied upon the Judgment in the case of Krushnakant B. Parmar Vs. Union of India, (2012) 3 SCC 178, wherein the delinquent employee/ petitioner was found unauthroizedly absent from duty for 3 consecutive periods of 36 days, 32 days and 234 days. The Apex Court held as follows:
"16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc. but in such case the employee can not be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorizedly absent from duty but failed to hold that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
................................................
24. In the result, the appeal is allowed. The impugned orders of dismissal passed by the disciplinary authority, affirmed by the appellate authority; the Central Administrative Tribunal and the High Court are set aside. The appellant stands reinstated.
25. Taking into consideration the fact that the charged officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs."
Learned counsel for the respondents has argued that the punishment awarded to the petitioner is more than the statutory punishment because of his previous record of service wherein he was punished for misconducts five times earlier. He has further replied that the petitioner was given full opportunity to defend himself and his statement and also the statement of his witness was recorded and after consideration of the entire conduct of the petitioner and material on record he was directed to be dismissed. Finally he has replied that the judgment of the Apex Court was confined to the facts of that case and has no general application.
After hearing counsel for the parties and considering the material brought on record before this Court, the Court finds that Section 21 of the ITBPF Act, 1992 itself provides maximum punishment of three years imprisonment and not beyond that for the misconduct/offence of unauthorised absence from duty.
The argument of the learned counsel for the respondents that overall conduct of the petitioner was considered is not borne out from the impugned order which does not refers to any past misconduct of the petitioner, therefore, this objection cannot be sustained. Further question of opportunity of hearing cannot be decided in favour of the respondents since on 24.1.1997 Force Court was convened and on the same day punishment order was passed. The punishment order does not records any finding regarding consideration of the defence of the petitioner nor the reasons for awarding the petitioner punishment beyond the maximum punishment provided in the Statute. Therefore, the order appears to have been passed without application of mind to the defence of the petitioner and the evidence produced by him before the Force Court.
The Apex Court in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar and others,
(1993) 4 Supreme Court Cases 727 in paragraph Nos.24 & 25 held as follows:
“24.Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the Inquiry Officer/authority and to represent against the findings recorded in it when the Inquiry Officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the inquiry Officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the 'reasonable opportunity', incorporated earlier in Section 240 (3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the Inquiry Officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the Inquiry Officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty.
In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty- second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other.
25.While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment.”
In the case of S.N. Mukherjee Vs. Union of India, (1990) 4 Supreme Court cases 594 the Apex Court considered the question whether there is any general principle of law, which requires an administrative authority to record the reasons for its decision. The Apex Court in paragraph Nos.20 to 40 has held as follows:
“20.In India the matter was considered by the Law Commission in the Fourteenth Report relating to reform in Judicial Administra-tion. The Law Commission recommended: (Vol. II P. 694).
"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."
21. No law 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.
22. 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.
23. In Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Others, [1962] 2 SCR 339, a Constitution Bench of this Court while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the Companies Act, 1956 in the matter of refusal by a company to register the transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals. In that case it has been observed: (SCR p.357) "If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution, we fail to see how the power of this Court can be effectively exercised if reasons are not given by the Central Government in support of its order."
24. In Madhya Pradesh Industries Ltd. v. Union of India, [1966] 1 S.C.R. 466 the order passed by the Central Government dismissing the revision petition under Rule 55 of the Mineral Concession Rules, 1960, was challenged before this Court on the ground that it did not contain reasons. Bachawat, J., speaking for himself and Mudholkar, J., rejected this contention on 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 invalid on the sole ground that it does not give reasons for the rejection. The decision in Harinagar 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 affirmance. Subba Rao, J., as he then was, did not 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: (SCR pp.472-73) "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."
"...If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuses of power. But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard."
"...There is an essential distinction between a court and an administrative tribunal. A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but an executive officer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court 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."
25. 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. 26.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: (SCR p.309) "The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of the Constitution and of appellate powers of this Court under Article 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 appeallate 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."
27. 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: (SCR p.315) "After all a tribunal which exercises judicial or quasi-judi- cial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of par- ties of far-reaching consequence to them are adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and examined, the least that can be expected is that the tribunals shall tell the party why the decision is going against him in all cases where the law gives a further right of appeal."
28. Reference has already been made to Som Datt Datta's case (supra) wherein a Constitution Bench of this Court has held that the confirming authority, while confirming the findings and sentence of a Court-Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954. There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bhagat Raja case (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.
29. In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR 40 this Court has observed: (SCR p.46: SCC p. 874, para 11) "The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceeding 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 deterrent against possible arbitrary action by the executive authority invested with the judicial power."
30. In Mahabir Prasad Santosh Kumar v. State of U.P. (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: (SCR pp. 204-05 : SCC p. 768, paras 6 and 7) "The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law.
"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 determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just."
31. 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 reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court."
32. In Siemens Engineering & Manufacturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision application under the Sea Customs Act, 1878. This Court has laid down: (SCR pp. 495-96 : SCC pp. 986-87, para 6) "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....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 alone 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 partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."
33. Tarachand Khatri v. Municipal Corporation of Delhi, [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 distinc- tion was drawn between an order of affirmance and an order of reversal. It was observed: (SCR p. 208 : SCC p. 480, para 19) " .....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 enquiring 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."
34. In Raipur Development Authority and Others v. Chokhamal Contractors, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was considering the question whether it is obligatory for an arbitrator under the Arbitration Act, 1940 to give reasons for the award. It was argued that the requirement of giving reasons for the decision is a part of the rules of natural justice which are also applicable to the award of an arbitrator and reliance was placed on the decisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra). The said contention was rejected by this Court. After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineering Co. case (Supra) this Court has observed: (SCC pp. 751-52, para 35) "It is no doubt true that in the decisions pertaining to Administrative Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules. It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative Law ..... But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by public law need not be 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."
35. 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 arbitrariness in decision-making. In this 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.
36. 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 recording 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, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. 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 need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
37. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donough 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 expressed 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 partem, a basic principle of natural justice which must inform every quasi-judicial 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 v. Union of India and Others, [1970] 1 SCR 457, wherein it has been held: (SCR pp. 468-69 : SCC p. 272, para 20) "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 debet 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 the rules of natural justice."
38. A similar trend is discernible m the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. v. Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456; Mahon v. Air New Zealand Ltd., [1984] A.C. 648.
39. The object underlying the rules of natural 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 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 outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
40. For the reasons aforesaid, it must be concluded that except in cases 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.”
From the consideration of the above decisions of the Apex Court it is clear that the disciplinary authority was required to give reasons for passing the punishment order. Without mentioning the reasons the order cannot be upheld under the law.
Finally judgment of the Apex Court in Krushnakant
B. Parmar Vs. Union of India, (2012) 3 SCC 178 clearly lays down a law and has general application as clear from a perusal thereof. Therefore, the argument of the respondents that the Apex Court has not laid down the general law cannot be accepted.
In view of the above discussion and the legal position of this case emerging from the record, the impugned termination order dated 24.1.1997 and the appellate order dated 19.8.1997 passed by respondent No.4 and 1 respectively are, hereby, quashed. The petitioner is held entitled to 50 percent of his arrears of salary and other service benefits in accordance with the Rules. He shall be reinstated forthwith in his earlier job and paid his monetary dues stated above by the respondents within a period of two months from the date of the production of the certified copy of this order before the respondent concerned.
Writ petition stands allowed, but without any order as to costs.
Order Date :- 30.3.2018
T. Sinha