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This appeal was directed against the order dated August 12, 1981, passed by the High
Court of Delhi dismissing the writ petition filed by the appellant challenging 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, passed
by the Central Government dismissing the petition filed by the appellant under Section 164(2)
of the Army Act, 1950.
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 7029.57. 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 appellant for certain lapses.
The report of the Court of Enquiry was considered by the General Officer Commanding,
M.P., Bihar and Orissa Area, who, on January 7, 1977 recommended that ‘severe displeasure’
(to be recorded) of the General Officer Commanding-in-Chief of the Central Command be
awarded to the appellant. The General Officer Commanding-in-Chief, Central Command did
not agree with the said opinion and by order dated August 26, 1977, directed the disciplinary
action be taken against the appellant for the lapses.
In view of the aforesaid order passed by the General Officer Commanding-in-Chief,
Central Command, a charge-sheet dated July 20, 1978, containing three charges was served
on the appellant and it was directed that he be tried by General Court Martial. The first charge
was in respect of the offence under Section 52(f) of the Act, i.e. doing a thing with intent to
defraud, the second charge was alternative to the first charge and was in respect of offence
under Section 63 of the Act, i.e. committing an act prejudicial to good order and military
discipline and the third charge was also in respect of offence under 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
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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.
Section 164 of the Army Act, 1950 provides:
“164. (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 finding 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.”
S.C. AGRAWAL, J. – 5. 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.
- It may be mentioned that this question has been considered by this Court in Som Datt
Datta v. Union of India [AIR 1969 SC 414]. 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 Staff and that the Central Government had also not given any
reasons while dismissing the appeal of the petitioner in that case under Section 165 of the Act
and that the order of the Central Government was also illegal. This contention was negative.
After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court
pointed out that while Section 162 of the Act expressly provides that the Chief of Army Staff
may “for reasons based on the merits of the case” set aside the proceedings or reduce the
sentence to any other sentence which the court might have passed, there is no express
obligation imposed by Sections 164 and 165 of the Act on the confirming authority or upon
the Central Government to give reasons in support of its decision to confirm the proceedings
of the court martial. This Court observed that no other section of the Act or any of the rules
made therein had been brought to its notice from which necessary implication can be drawn
that such a duty is cast upon the Central Government or upon the confirming authority. This
Court did not accept the contention that apart from any requirement imposed by the statute or
statutory rule either expressly or by necessary implication, there is a general principle or a
rule of natural justice that a statutory tribunal should always and in every case give reasons in
support of its decision.
229 - Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta case 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. - 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
confirming authority while 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 case 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 confirming the findings and
sentence of a court martial and post-confirmation proceeding under the Act? - 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”. The said requirement of recording
of reasons has also been justified on the basis that such a decision is subject to judicial review
and “the courts cannot exercise their duty of review unless they are advised of the
considerations underlying the action under review” and that “the orderly functioning of the
process of review requires that the grounds upon which the administrative agency acted be
clearly disclosed and adequately sustained”. In John T. Dunlop v. Walter Bachowski [(1975)
44 L ed 2d 377[, it has been observed that a statement of reasons serves purposes other than
judicial review inasmuch as the reasons promotes thought by the authority and compels it to
cover the relevant points and eschew irrelevancies and assures careful administrative
consideration. The Federal Administrative Procedure Act, 1946 which prescribed the basic
procedural principles which are to govern formal administrative procedures contained an
express provision [Section 8(b)] to the effect that all decisions shall indicate a statement of
findings and conclusions as well as reasons or basis therefore 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. 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 [(1971) 1 All ER
1148], Lord Denning M.R., has observed that “the giving of reasons is one of the
fundamentals of good administration.” - 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
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the reasons on which the decision is based” and that “such a decision should be in the form of
a reasoned document available 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
if the reasons for it have to be set out in writing because the reasons are then more
likely to have been properly thought out. Further, a reasoned decision is essential in
order that, where there is a right of appeal; the applicant can assess whether he has
good grounds of appeal and know the case he will have to meet if he decides to
appeal.” - The recommendations of the Donoughmore Committee and the Franks Committee led
to the enactment of the Tribunals and Enquiries Act, 1958 in United Kingdom. Section 12 of
that Act prescribed that it shall be the duty of the tribunal or Minister to furnish a statement,
either written or oral, of the reasons for the decision if requested, on or before the giving of
notification of the decision to support the decision. The said Act has been replaced by the
Tribunals and Enquiries Act, 1971 which contains a similar provision in Section 12. This
requirement is, however, confined, in its applications to tribunals and statutory authorities
specified in Schedule I to the said enactment. In respect of the tribunals and authorities who
are not covered by the aforesaid enactment, the position, as prevails at common law, applies.
The Committee of Justice 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.” - 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 of 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
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 Fourteenth Report
relating to reform in Judicial Administration. The Law Commission recommended: (Vol. II,
p. 694)
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“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.” - 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. - 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 Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala [AIR 1961 SC 1669],
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:
“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.” - In Madhya Pradesh Industries Ltd. v. Union of India [AIR 1966 SC 671], 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 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:
“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
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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 it 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.” - 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
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 supervisory powers of the
High Court’s 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 appellate jurisdiction satisfactorily by
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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.” - This Court has referred to the decision in Madhya Pradesh Industries case 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 consequence to them are adjudicated upon in a
summary fashion, without giving a personal hearing where proposals and counterproposals are made and examined, the least that can be expected is that the tribunal
should tell the party why the decision is going against him in all cases where the law
gives a further right of appeal.” - Reference has already been made to Som Datt Datta case 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 and Bhagat Raja case 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 40], 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 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.” - In Mahabir Prasad Santosh Kumar v. State of U.P., the District Magistrate had
cancelled the license 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 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.
234
“Recording of reasons in support of a decision on a disputed claim by a quasijudicial 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.” - In Woolcombers of India Ltd. case 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 quasijudicial 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 quasijudicial 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.” - In Siemens Engineering & Manufacturing Co. of India Limited case, 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:
“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
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proper spirit and mere pretence of compliance with it would not satisfy the
requirement of law.” - Tara Chand Khatri v. Municipal Corporation of Delhi [(1972) 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 negative by
this Court and distinction was drawn between an order of affirmance and an order of reversal.
It was observed:
“(W)hile 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
there under, it would be laying down the proposition too broadly to say that even an
ordinary concurrence must be supported by reasons.” - In Raipur Development Authority v. Chokhamal Contractors [(1989) 2 SCC 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 and Siemens Engineering Co. case. The said contention was rejected by this
Court. After referring to the decisions in Bhagat Raja case, Som Datt Datta case and Siemens
Engineering Co. case this Court has observed:
“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.” - 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 Court’s
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
236
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. - 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 decisionmaking. 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. - 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
Donoughmore 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”. In Siemens Engineering
Co. case 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
237
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 [(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 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 he 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.” - 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 where 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 effect 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 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. - 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. - 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 postconfirmation 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 (the Rules’) expressly or by necessary implication dispense with the requirement
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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 postconfirmation petition. - Before referring to the relevant provisions of the Act and the Rules it may be
mentioned that the Constitution contains certain special provisions in regard to members of
the Armed Forces. Article 33 empowers Parliament to make law determining the extent to
which any of the rights conferred by Part III shall, in their application to the members of the
Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties
and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate
jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation
to any judgment, determination, sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article
227 denies to the High Court’s the power of superintendence over any court or tribunal
constituted by or under any law relating to the Armed Forces. This Court under Article 32 and
the High Court’s under Article 226 have, however, the power of judicial review in respect of
proceedings of courts martial and the proceedings subsequent thereto and can grant
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 provided that subject to the provisions of subsections (2) and (3) every decision of a court martial 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 twothirds 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 judgeadvocate (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
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finding shall be given by word of mouth on each charge separately. Rule 62 prescribes the
form, record and announcement of finding and in sub-rule (1) it is provided that the finding
on every charge upon which the accused is arraigned shall be recorded and, except as
provided in these rules, shall be recorded simply as a finding of “Guilty” or of “Not guilty”.
Sub-rule (10) of Rule 62 lays down that the finding on charge shall be announced forthwith in
open court as subject to confirmation. Rule 64 lays down that in cases where the finding on
any charge is guilty, the court, before deliberating on its sentence, shall, whenever possible
take evidence in the matters specified in sub-rule (1) and thereafter the accused has a right to
address the court thereon and in mitigation of punishment. Rule 65 makes provision for
sentence and provides that the court shall award a single sentence in respect of all the
offences of which the accused is found guilty, and such sentence shall be deemed to be
awarded in respect of the offence in each charge and in respect of which it can be legally
given, and not to be awarded in respect of any offence in a charge in respect of which it
cannot be legally given. Rule 66 makes provisions for recommendation to mercy and sub-rule
(1) 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 prescribed 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 consequence 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 consequence 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 further laid down that in
fulfilling his duties, the 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 course 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
have summed up the evidence and have 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 forthwith
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 make a specific provision for recording of reasons for the
recommendation to mercy. The said provisions thus negative a requirement to give reasons
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for its finding and sentence by the court martial and reasons are required to be recorded only
in cases where the court martial makes a recommendation to mercy. In our opinion, therefore,
at the stage of recording of findings and sentence the court martial is not required to record its
reasons and at that stage reasons are only required for the recommendation to mercy if the
court martial makes such a recommendation. - As regards confirmation of the findings and sentence of the court martial it may be
mentioned that Section 153 of the Act lays down that no finding or sentence of a general,
district or summary general, court martial shall be valid except so far as it may be confirmed
as provided by the Act. Section 158 lays down that the confirming authority may while
confirming the sentence of a court martial mitigate or remit the punishment thereby awarded,
or commute that punishment to any punishment lower in the scale laid down in Section 71.
Section 160 empowers the confirming authority to revise the finding or sentence of the court
martial and in sub-section (1) of Section 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 deputy or assistant judge-advocate general of the 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 by the deputy or assistant judge-advocate general of the
command which is intended as a check on the legality and propriety of the proceedings as
well as the findings and sentence of the court martial. Moreover we find that in Section 162
an express provision has been made for recording of reasons based on merits of the case in
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relation to the proceedings of the summary court martial in cases where the said proceedings
are set aside or the sentence is reduced and no other requirement for recording of reasons is
laid down either in the Act or in the Rules in respect of proceedings for confirmation. The
only inference that can be drawn from Section 162 is that reasons have to be recorded only in
cases where the proceedings of a summary court martial are set aside or the sentence is
reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a
requirement to give reasons on the part of the confirming authority while confirming the
findings and sentence of a court martial and it must be held that the confirming authority is
not required to record reasons while confirming the findings and sentence of the court martial. - With regard to post-confirmation proceedings we find that sub-section (2) of Section
164 of the Act provides that any person subject to the 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. Insofar 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 postconfirmation proceedings which may require recording of reasons for an order passed on the
post-confirmation petition even though reasons are 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 recorded 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 Som Datt
Datta case the submission of Shri Ganguli that the said decision needs reconsideration cannot
be accepted and is, therefore, rejected. - But that is not the end of the matter because even though there is no requirement to
record reasons by the confirming authority while passing the order confirming the findings
and sentence of the court martial or by the Central Government while passing its order on the
post-confirmation petition, it is open to the person aggrieved by such an order to challenge the
validity of the same before this Court under Article 32 of the Constitution or before the High
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Court under Article 226 of the Constitution and he can obtain appropriate relief in those
proceedings. - The first contention that has been urged by Shri Ganguli in this regard is that under
sub-section (1) of Section 164 of the Act the appellant had a right to make a representation to
the confirming authority before the confirmation of the findings and sentence recorded by the
court martial and that the said right was denied inasmuch as the appellant was not supplied
with the copies of the relevant record of the court martial to enable to 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 available after the finding and
sentence has been confirmed by the confirming authority. We find considerable force in the
aforesaid submission of learned Additional Solicitor General. - 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 officer or the authority empowered to confirm any finding or sentence of
such court martial and the said authority may take such steps as may be considered necessary
to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of
any proceedings to which the order relates. Sub-section (2), on the other hand, makes specific
reference to finding or sentence of a court martial and confers a right on any person feeling
aggrieved by a finding or sentence of any court martial which has been confirmed, to present
a petition to the Central Government, Chief of the Army Staff or any prescribed officer. The
use of the expression “order” in sub-section (1) and the expression “finding or sentence” in
sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same
and the expression “order” in sub-section (1) cannot be construed to include a “finding or
sentence”. In other words insofar as the finding and sentence of the court martial is concerned
the only remedy that is available to a person aggrieved by the same is under sub-section (2)
and the said remedy can be invoked 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
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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 or sentence of a court martial has no right to make a representation
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 not vitiate the said order. - Shri Ganguli next contended that the first and the second charge levelled against the
appellant are identical in nature and since the appellant was acquitted of the second charge by
the court martial his conviction for the first charge cannot be sustained. It is no doubt true that
the allegations contained in the first and the second charge is practically the same. But as
mentioned earlier, the second charge was by way of alternative to the first charge. The
appellant could be held guilty of either of these charges and he could not be held guilty of
both the charges at the same time. Since the appellant had been found guilty of the first
charge he was acquitted of the second charge. There is, therefore, no infirmity in the court
martial having found the appellant guilty of the first charge while holding him not guilty of
the second charge. - Shri Ganguli has also urged that the findings recorded by the court martial on the first
and third charges are perverse inasmuch as there is no evidence to establish these charges. We
find no substance in this contention. - The first charge was that the appellant on or about December 25, 1975, having
received 60.61 meters woollen serge from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi
for stitching 19 coats and 19 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 PW 1 and Triloki Nath PW 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, PW 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
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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
PW 19 who has deposed that he was called by the appellant to his office in the last week of
December 1975 or the first week of January 1976 and that on reaching there he found
ordnance pattern woollen pants lying by the side of the room wall next to the appellant’s table
and that the appellant had called Mohd. Sharif PW 15 to his office and had asked him to take
out 19 woollen 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 judge-advocate referred to the CDA
letter M/IV/191 dated November 20, 1975 (Ex. ‘CC’) raising certain objections with regard to
Contingent Bill No. 341/Q dated September 25, 1975 for Rs 16,280 and pointed out that the
said letter was received in the unit on or about November 28, 1975 and bears the initials of the
appellant with the aforesaid date and remark “Q Spk with details”. This would show that the
appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of
the appellant that he made any complaint against Captain Chhabra thereafter. It cannot,
therefore, be said that the finding recorded by the court martial on the third charge is based on
no evidence and is perverse. - In the result we find no merit in this appeal and the same is accordingly dismissed
