Andhra Pradesh High Court - Amravati

Narava Jagadish vs State Of Ap on 8 February, 2021

Bench: M.Satyanarayana Murthy

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION No.24452 OF 2020

ORDER:-


         This    writ   petition   is   filed   under   Article   226   of    the

Constitution of India seeking the following relief:

           "......to issue a Writ, order or direction particularly, one in the
     nature of writ of Mandamus to declare the Enquiry Report, dated
     16.04.2016 is illegal, arbitrary and against the principles of
     natural Justice and also Articles 14, 15, 19, 21 and 300-A of the
     Constitution of India and consequently, set aside the punishment
     meted out to me, by imposing punishment of PPI for 4 years with
     cumulative effect on the future increments and pension, by treating
     the period of suspension from 13.01.2012 to 20.03.2014, as not on
     duty, vide DIG Office R.O.O.No.200/2018(C.No.17/OE/PR/2015), dated
     20.06.2018 and grant me all the consequential benefits including
     my entitlement to promotion and such other and other reliefs as
     been deemed fit and proper in the circumstances of the case....."


2.       Heard    Sri   A.Radha     Krishna,     learned counsel        for   the

petitioner, and the learned Government Pleader for Services-I

appearing for the respondents.

3. The petitioner is presently working as Sub-Inspector of

Police, Bhavanapadu CSPS, Srikakulam District. He was recruited

as Sub-Inspector of Police on 02.05.2005. While he was working

at Kothakota Police Station, Visakhapatnam, he was involved in

ACB trap case in Crime No.01/RCT/ACB/VSP/2012 for the

offence punishable under Section 7 of the Prevention of Corruption

Act, 1988 of A.C.B., Visakhapatnam Range on 13.01.2012 on the

alleged misconduct that he demanded and accepted bribe of

Rs.5,000/- from the complainant - Sri Sreenadhu Narasimha Rao,

partner of Sri Dhana Lakshmi Wines, Dondapudi Village for doing

an official favour and not to harass him by booking nuisance cases

at the wine shop and allowing him to conduct business smoothly

without any hindrance. The petitioner was arrested by the ACB

authorities on 13.01.2012 and placed under suspension with effect

from 16.01.2012 vide DIG, Visakhapatnam Range, Visakhapatnam

Office R.O.O.No.12/2012 (C.No.01/PR/Genl/2012), dated

16.01.2012.

Subsequently, as per the order issued in G.O.Rt.No.258,

Home (SC-A) Department, dated 19.2.2014, the suspension was

revoked against the petitioner vide DIG Office R.O.O.No.87/2014

(C.No.01/PR/Genl/2012), dated 19.3.2014, and allotted to

Srikakulam District. Subsequently, the Government issued orders

vide G.O.Rt.No.259, Home (SC-A) Department, dated 19.2.2014,

directing the Director General of Police, A.P., Hyderabad to initiate

departmental action against the petitioner on the allegation of

corruption instead of sanctioning prosecution against him, duly

obtaining draft articles of charge from the Director General of ACB,

Hyderabad and submit oral enquiry report to the Government for

taking necessary action.

A Charge Memo in C.No.17/P/OE/2015, dated 05.10.2015,

was issued to the petitioner by the office of the Deputy Inspector

General of Police, Visakhapatnam Range, Visakhapatnam. Since

the petitioner denied the Articles of Charge, departmental enquiry

was ordered against him by appointing Additional Superintendent

of Police, Visakhapatnam Administration, Visakhapatnam District

as enquiring authority vide proceedings of the Deputy Inspector

General of Police, Visakhapatnam Range, Visakhapatnam.

Subsequently, the Additional Superintendent, Administration,

Visakhapatnam District conducted oral enquiry and examined as

many as 12 witnesses on behalf of the department and one witness

was examined on behalf of this petitioner but passed an order

imposing punishment of withholding of four increments with

cumulative effect against this petitioner, which is challenged before

respondent No.1 and an order was passed vide Memo

No.119/SC.A/A2/2012, dated 14.6.2019, whereby, the appellate

authority passed a cryptic order. Thereupon, a review is filed and

the same was dismissed on 25.8.2020 vide Memo

No.119/SC.A/A2/2012 by the Principal Secretary to Government

by passing a cryptic order and the same are now challenged before

this Court on the ground that the orders are cryptic and not

supported by any reasoning for the conclusions arrived at by the

appellate authority and the review authority and therefore, the

orders are illegal and arbitrary.

4. Sri A.Radha Krishna, learned counsel for the petitioner,

demonstrated that the orders, dated 14.6.2019 and 25.8.2020,

passed in the appeal and review are bereft of any reason for the

conclusions arrived at by the authorities and in the absence of any

reason for the conclusion about justification in imposing

punishment, the orders cannot be sustained and requested to set

aside the same.

5. Learned Government Pleader for Services-I seeks time but

the Court refused to grant time.

6. As seen from the orders impugned in this writ petition, the

appellate authority passed the order, dated 14.6.2019, bereft of

any reason for the conclusion arrived by the authority i.e.,

respondent No.1 confirming the order passed by the disciplinary

authority. The order runs as follows:

"The attention of the Director General of Police, Andhra Pradesh, Mangalagiri is invited to the references cited and has informed that, Sri N.Jagadish, Sub-Inspector of Police, Bhavanapadu Marine, Srikakulam District has submitted Appeal petition, for setting aside the earlier penalty of "withholding of four increments with cumulative effect" imposed on him for the charge on allegation of corruption is excessive or unjust and requested the Government to set aside the penalty, since he was at verge of promotion to the post of Inspector of Police.

2. Government, after careful examination of the proposal, hereby reject the review petition filed by Sri N.Jagadish, former Sub-Inspector of Police, Kothakota Police Station, Visakhapatnam District, presently working at Bhavanapadu Marine, Srikakulam District, as there are no new grounds to modify the earlier penalty orders issued in the reference 1st cited."

Aggrieved by the order passed by the appellate authority, a review

is filed before the Principal Secretary to Government, Government

of Andhra Pradesh, Home (SC.A) Department wherein an order,

dated 25.8.2020, was passed and the same is also bereft of any

reasoning except confirming of the order passed by the appellate

authority, which reads as under:

"The attention of the Director General of Police, Andhra Pradesh, Mangalagiri is invited to the reference 4th cited and informed that, Sri N.Jagadish, Sub-Inspector of Police, Bhavanapadu Marine, Srikakulam District has submitted his review petition, for setting aside the earlier penalty of "withholding of four increments with cumulative effect" imposed on him for the charge on allegation of corruption is excessive or unjust and requested the Government to set aside the penalty,

2. Government after careful examination of the review petition hereby reject the review petition filed by Sri N.Jagadish, former Sub-Inspector of Police, Kothakota Police Station, Visakhapatnam District, presently working at Bhavanapadu Marine, Srikakulam District, as there are no new

grounds to modify the earlier penalty orders issued in the reference 1st cited."

7. In these two orders, neither the appellate authority nor the

review authority considered the contentions of this petitioner with

reference to the gravity of the offence and the defence raised before

the disciplinary authority but simply passed the cryptic orders and

rejected the appeal and the review petitions of this petitioner

without any reason. Therefore, as the orders passed by the

appellate authority and the review authority are without any

reason, the same are liable to be set aside.

8. Reasoning for the conclusion is the heart and soul of the

order and the Apex Court, time and again, reiterated the

mandatory requirement of recording reasons for the conclusions

arrived by the appellate authority. In M/s.Steel Authority of

India Ltd., v. STO, Rourkela-I Circle & Others, the Hon'ble

Supreme Court, testing the correctness of an order passed by the

Assistant Commissioner of Sales Tax against the assessment, at

Paragraph No.10, held as follows:

"10. Reason is the heart beat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless."

The expression "speaking order" was first coined by Lord

Chancellor Earl Cairns in a rather strange context. The Lord

Chancellor, while explaining the ambit of the writ of certiorari,

referred to orders with errors on the face of the record and pointed

out that an order with errors on its face, is a speaking order. (See

pp. 1878-97, Vol.4, Appeal Cases 30 at 40 of the Report). The Apex

Court always opined that on the face of an order passed by a

quasi-judicial authority or even an administrative authority

affecting the rights of parties, must speak. It must not be like the

"inscrutable face of a sphinx".

9. This Apex Court laid down certain guidelines in Leela

Enterprises v. Kamar Sultana1 as to how an order has to be

drafted.

10. In Harinagar Sugar Mills Ltd. v. Shyam Sunder

Jhunjhunwala2, the question of recording reasons came up for

consideration in the context of a refusal by Harinagar to transfer,

without giving reasons, shares held by Shyam Sunder. Challenging

such refusal, the transferee moved the High Court contending inter

alia that the refusal is mala fide, arbitrary and capricious. The

High Court rejected such pleas and the transferee was asked to file

a suit. The transferee filed an appeal to the Central Government

under Section 111(3) of the Companies Act, 1956, which was

dismissed. Thereafter, the son of the original transferee filed

another application for transfer of his shares which was similarly

refused by the Company. On appeal, the Central Government

quashed the resolution passed by the Company and directed the

Company to register the transfer. However, in passing the said

order, the Government did not give any reason. The Company

challenged the said decision before this Court. The other question

which arose in Harinagar was whether the Central Government, in

passing the appellate order, acted as a Tribunal and is amenable

to Article 136 jurisdiction of this Court. Even though in Harinagar,

the decision was administrative, this Court insisted on the

2017 (5) ALD 374

AIR 1961 SC 1669

requirement of recording reason and further held that in exercising

appellate powers, the Central Government acted as a Tribunal in

exercising judicial powers of the State and such exercise is subject

to Article 136 of the Constitution of India, jurisdiction of this

Court. Such powers, the Apex Court held, cannot be effectively

exercised if reasons are not given by the Central Government in

support of the order.

11. Again in Bhagat Raja v. Union of India3, the Constitution

Bench of this Court examined the question whether the Central

Government was bound to pass a speaking order while dismissing

a revision and confirming the order of the State Government in the

context of the Mines and Minerals (Development and Regulation)

Act, 1957, and having regard to the provision of Rule 55 of the

Mineral Concession Rules. The Constitution Bench held that in

exercising its power of revision under the aforesaid Rule the

Central Government acts in a quasi-judicial capacity. Where the

State Government gives a number of reasons some of which are

good and some are not, and the Central Government merely

endorses the order of the State Government without specifying any

reason, this Court, exercising its jurisdiction under Article 136,

may find it difficult to ascertain which are the grounds on which

the Central Government upheld the order of the State Government.

Therefore, the Apex Court insisted on reasons being given.

12. In Mahabir Prasad Santosh Kumar v. State of U.P4, while

dealing with the U.P. Sugar Dealers' Licensing Order under which

the licence was cancelled, this Court held that such an order of

AIR 1967 SC 1606

(1970) 1 SCC 764

cancellation is quasi-judicial and must be a speaking one. The

Apex Court further held that merely giving an opportunity of

hearing is not enough and further pointed out where the order is

subject to appeal, the necessity to record reason is even greater.

The learned Judges held that the recording of reasons in support

of a decision on a disputed claim ensures that the decision is not a

result of caprice, whim or fancy but was arrived at after

considering the relevant law and that the decision was just.

13. In Union of India v. Mohan Lal Capoor5, this Court while

dealing with the question of selection under the Indian

Administrative Service/Indian Police Service (Appointment by

Promotion) Regulations held that the expression "reasons for the

proposed super session" should not be mere rubber-stamp

reasons. Such reasons must disclose how mind was applied to the

subject-matter for a decision regardless of the fact whether such a

decision is purely administrative or quasi-judicial. This Court held

that the reasons in such context would mean the link between

materials which are considered and the conclusions which are

reached. Reasons must reveal a rational nexus between the two.

14. In a Constitution Bench decision of the Supreme Court

in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu

Religious and Charitable Endowments Department6, while

giving the majority judgment the principle in Latin was referred

which runs as follows:

"Cessante ratione legis cessat ipsa lex."

The English version of the said is that:

(1973) 2 SCC 836

(1979) 4 SCC 642

. ... 'reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself'."

15. Summarising the above discussion, in The Collector v. K.

Krishnaveni7, the Division Bench of Madras High Court culled out

the following principles:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision- maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.

W.A.No.1995 of 2018 dated 03.09.2019 (unreported)

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision- making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor.)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"."

16. Even according to principles of natural justice, the

authorities must disclose reasons for arriving at such conclusion

and it is only to enable the person to know the reason for his

termination or for passing any adverse order against him/her and

it is a guide for the Appellate Authority to decide such an issue.

17. In view of the law declared by the Court in various

judgments referred above, the present impugned orders are

unsustainable under law and they are bereft of any reason for the

conclusion. Therefore, in view of the law declared by the Apex

Court in various judgments referred above, I find that the order

passed by the appellate authority and the review authority are bad

in law and the same cannot be sustained by this Court. Hence,