Akhil Chandra Khan vs State of West Bengal

Pratap Kumar Ray, J.—Heard the learned advocates appearing for the parties.

Assailing the judgment and order dated 13th January, 2009 passed by the West Bengal Administrative Tribunal, Bikash Bhavan, Salt Lake City, Kolkata-91 in O.A. No. 768 of 2003 this writ application has been filed. By the impugned order in this writ application learned Tribunal rejected the original application, wherein the writ petitioner assailed the order of the Appellate Authority as well as the order of the Disciplinary Authority alleging, inter alia, that Appellate Authority did not apply the mind and the decision of the Appellate Authority is attracted by the doctrine of non-speaking order. Learned Tribunal, however, though accepted the view that reason and logic was not assigned by the Appellate Authority, particularly the communication of the order as made, but on perusal of the office file wherein detail reasoning given, learned Tribunal rejected the original application.

Having regard to such findings of the learned Tribunal, we are of the view that Tribunal''s order is not legally sustainable in view of the basic principle of law that every order passed by any administrative body or any quasi judicial body and/or even by the judicial body must disclose the reason of the order so that the person concerned who is affected thereby may approach the higher forum and/or higher Court assailing the decision thereof. In the case Chairman, Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, the Court held that "reason must be given by the appellate or revisional authority even when affirming the impugned decision". Reliance was placed in that case, the case of Divl. Forest Officer, Kothagudem and Others Vs. Madhusudhan Rao, , Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), and The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, In that case the Court explained and discussed the contra decision passed in the case S. N. Mukherjee v. Union of India, reported in (1990) 4 SCC 94 by explaining the said decision that in case of affirmation, no reason separately required to be given as held in S.N. Mukherjee (supra) should be read as an observation meaning thereby that order of affirmation need not contain any elaborate reasoning as contained in original order, but it cannot be understood to mean that even brief reason need not be given in order of affirmance. The Court further explained in that case the earlier case of State Bank of Bikaner and Jaipur and others Vs. Prabhu Dayal Grover, since in the case Prabhu Dayal Grover (supra), it was observed that for affirmative order there was no necessity of giving any reason to this effect that the observation of the Prabhu Dayal Grover (supra) should be read as that the Appellate Authority should disclose briefly application of mind as without any reason cannot be satisfied. It has been further held atleast that brief reason should be given so that one can know that the Appellate Authority has applied his mind.

Right to information and right to be informed about a reason of any decision is within the domain of Article 19(1) read with Article 21 of the Constitution of India in terms of the views expressed by the Apex Court in the case Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, . It has been held in the case The Manager, Government Branch Press and Another Vs. D.B. Belliappa, that administration is under a general duty to act fairly and fairness founded on reason is the essence of right and equality. Lord Denning MR in the case Breen v. Amalgamated Engineering Union Limited, reported in (1971) 2 QB 175 even held "it is one of the fundamental of good administration to assign a reason in the decision". In the M.P. Industries Limited (supra) case, Justice Subbarao held in considering the principle of reasoned decision that justice not only should be done but it should be felt to have been done, where reason is a must. Absence of any reason is nothing but non�application of mind, is the view expressed in the case Shanti Prasad Agarwalla and others Vs. Union of India and others, . In the case Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela-I Circle and Others, wherein in para 17 the Court held "reason is heart bit of every conclusion. It introduces clarity and without the same it becomes lifeless". In the case State of West Bengal and Another Vs. Alpana Roy and Others, on considering the cases, namely, Breen (supra), Amalgamated Engineering Union Limited (supra) and Alexander Machinery (Dudly) Ltd. v. Crabtree, reported in 1974 ICR 120 (NIRC), in para 8 the Court held "reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of sphinx, it can by its silence render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reason at least sufficient to indicate an application of mind to the matter before the Court". In Alexander Machinery (Dudly) Ltd. (supra) the Court held "failure to give reasons amounts to denial of justice. Reasons are live links between the minds of the decision taker to the controversy in question and the decision or conclusion arrived at". The same view reiterated in the case Jagtamba Devi Vs. Hem Ram and Others, , wherein in para 10, the decision of Breen (supra) and Alexander Machinery (Dudly) Ltd. (supra) was quoted. Non-speaking order violates the principle of natural justice is the view expressed by the Constitution Bench in the case S.N. Mukherjee Vs. Union of India, by holding that quasi judicial and administrative body if fails to pass any speaking order it breaches the principle of natural justice. Speaking order principle is applicable to a judicial action also as held in Smt. Swaran Lata Ghosh Vs. H.K. Banerjee and Others, .

Having regard to those settled legal proposition of law that reasons should be assigned in every administrative, quasi judicial decision including the judicial decision, so that person affected thereby may approach the higher Court/forum, assailing the same by attacking the reason assigned, we are of the view that the the learned Tribunal had gone wrong to hold that the reasons were given in the office file and there was no necessity of supplying/communicating the reason to the delinquent concerned when the Appellate Authority decided the matter. The decision of the Appellate Authority as communicated is at page 72 of the writ application, which reads such:

" Copy of D.O. No. 1197 dt. 13.5.2003

Ref. Range order No. 48/F dt. 12.5.03 of DIG MR, Balurghat appellate order in c/w Dakshin Dinajpur district proceeding No. 32/02 dt. 21.10.02 drawn up against OASI/92 Akhil Khan.

The punishment of withholding of two increments at Rs. 125/- per month for a period of two years which shall affect his future increment awarded to him by S.P., Dakshin Dinajpur herby approved by DIG MR Balurghat. "Appellate authority". The period of unauthorised absent with effect from 17.9.02 to 19.9.02 PM as steated as EOL as ordered by S.P. is also approved.

The appeal petition is disposed off and no further appeal will lie in future against this order.

Sd/- G. Singh, IPS

13.5.2003

Superintendent of Police,

Dakshin Dinajpur, Balurghat."

To justify the said order as legal and valid, learned Tribunal observed "we have heard the learned counsel representing the parties before us. We have also peruse the available materials on record together with the departmental proceeding file''. To justify the reason, learned Tribunal observed further that on perusal of the records of the Appellate Authority, the Tribunal was satisfied with the reason. The findings to that effect read such:

"Against that, however, it was contended on behalf of the State Respondents that the alleged Appellate order, annexed at page 38 of the application, is in fact, not the Appellate order, and this was simply the communication made by the concerned S.P. regarding gist of the operative portion of the Appellate order, and in this connection, they have drawn our attention to the Appellate order, kept in the departmental proceeding file, produced on their behalf before us.

Now, examining the same, in the context of the judgment of the Apex Court (supra), it may be indicated that it was held in the aforesaid judgment that if an Appellate order is passed in agreement with that of the Disciplinary Authority, the same may not be a speaking order, but the authority passing the same must show that there has been proper application of mind on his part, and on the face of the aforesaid authoritative pronouncement, it may be held that the Appellate order, passed in the connected matter was in agreement with that of the Disciplinary Authority, and as such, as per the aforesaid pronouncement, it may not be a speaking order, but it could certainly be said upon perusal of the aforesaid order that there has been application of mind by the Appellate Authority in passing the aforesaid Appellate order.

So, upon scrutiny of the entire materials available before us, we hold with certainty that there is no infirmity/ illegality in passing the Appellate order."

We failed to appreciate the views expressed by the Tribunal that if in the office file the reason is recorded, even a criptive order without assigning any reason would suffice the fulfillment of speaking order principle. We are afraid in such findings given by the learned Tribunal below. Having regard to the settled legal proposition as already discussed above, we are of the strong view that Appellate Authority is also required to assign the reason and no criptive order will serve the purpose by keeping the reasoned order in the file. In that view, the impugned decision of the Appellate Authority as communicated by the criptive order at page 72 of the writ application is set aside and quashed. The decision of the Tribunal impugned before us so far as the decision confirming the decision of Appellate Authority is also set aside and quashed. As a consequence thereof as in the order of the learned Tribunal, the order of Disciplinary Authority also got merged, for ends of justice so that the Appellate Authority may apply its mind freely, the entire order of the Tribunal is also set aside and quashed. Now the Appellate Authority is at liberty to dispose of the departmental appeal as per law and a reasoned decision to be communicated to the writ petitioner. Writ application accordingly succeeds.

Appellate Authority is directed to here the petitioner and to decide the issue de novo by passing a reasoned decision dealing with the points as taken in the appeal by the delinquent.

Xerox certified copy of this order, if applied for, will be made available to the applicant on urgent basis.

Mrinal Kanti Sinha, J.

I agree.