Lt. Col. N.K. Ghai vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 302 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule D.B. With the consent of counsel for the parties, the writ petition is taken up for final hearing.

2. The petitioner in the present writ petition challenges the disposal of his statutory complaints dated 18th January, 2002 by an order of the defense Ministry dated 8th August, 2003 and statutory complaints dated 7th December, 2002 which was disposed of by the Ministry of defense on 23rd August, 2004 The preliminary grievance of the petitioner is that inspite of his outstanding ACRs his case has been dealt with perfunctorily and without application of mind. He has complained that the relevant paragraphs by which 2 statutory complaints have been disposed of by two different officers by and large read almost identically. There is merit in the plea of the petitioner. We have been observing that in a large number of cases the statutory complaints are being disposed of by identically worded orders by the Under Secretary of the Government of India. Except for change of the year and ACRs, the orders by and large read the same. We are reproducing several orders of identical nature. The relevant portions of various orders passed from time to time by the under Secretary, Ministry of defense read as follows:-

The statutory complaint of the officer has been examined in the light of his CR profile, relevant records and analysis/ recommendations of AHQ. It is seen that the respective assessments of IO, RO and FTO are just, fair and reflective of the Officers performance and personality during the period under review. The report is also in tune with the over all profile of the officer which specially during the period is full of 4/5/6 point grading. No element of bias and inconsistency are discernible. (16th July, 1999)

The statutory complaint of the officer has been examined in the light of his record CR profile, relevant records and analysis/recommendations of AHQ. It is found that the impugned CR 12/92-06 as it stands after partial redress granted to him, is a balanced and objective, report devoid of any inconsistence/ subjectivity. The remaining CRs in the reckonable period are also well balanced moderated/corroborated. Hence, none of the CRs, including the impugned CR merit interference. (18th July, 2002)

The statutory complaint of the officer has been examined in the light of record profile of the officer and analysis/recommendations of AHQ. It is seen that the entire CR profile of the officer is well corroborated and consistent. All CRs are in order and merit no interference. (16th Sep. 1999)

The statutory complaint of the officer has been examined in the light of his career profile, relevant records and analysis/recommendations of Army Hqrs. It has been observed that the impugned CR 07/99-05/2000 is fair, objective, well corroborated/moderated report and devoid of any bias/subjectivity, and therefore, does not merit any interference by the Govt. (13th July, 2004)

The statutory complaint of the officer has been examined in the light of his career profile, relevant records and analysis/recommendations of Army Hqrs. It has been observed that all the CRs in the reckonable profile of the officer including the impugned Crs. 06/96 11/96 and 12/2000-05/2001 are consistent, well moderated, devoid of any bias/subjectivity and in tune with the overall profile of the officer, except the SRO's box grading in CR 12/2000-05/2001 which is inconsistent. (30th Sep.2004)

The Statutory complaint of the officer has been examined in the light of his career profile, relevant records and anaysis/recommendations of AHQ/. It is observed that the relief, where due, has already been granted to the officer by COAS on his Non-Statutory Complaint dt. 18th April, 1999. The remaining assessment in the impugned CR 06/96-11/96 is fair, objective and consistent with the overall profile of the officer. No bias or subjectivity is discernible in the assessment of any of the reporting officers. Hence, the impugned CR does not merit any interference. (29th Sep.2003.)

Statutory complaint of the officer has been examined in the light of his career profile, relevant records and anaysis/recommendations of Army Headquarters. It is observed that all the three impugned Crs i.e. CR 09/91-08/92,12/96-08/97 and 01/98-08/98 are well corroborated/moderated reports and mesh well with the overall profile of the officer. Therefore, none of these CRs merit interference by the Government. (14th July, 2004)

The Statutory complaint of the officer has been examined in the light of his career profile, relevant records and anaysis/recommendations of Army HQ. The officer has been assessed in CR 10/93-5/94 by all the reporting officers based on his performance during the period covered by the report. The assessment is fair, objective and meshes in the profile of the officer. The impugned CR is also technically in order and does not merit interference on any court. All other CRs of the officer are in order and do not merit any interference.' (7th May, 2002)

3. In all the relevant paragraphs, of the disposal of the statutory complaints the reasoning in each of the disposals except the year of the CR is almost similar and discloses persistent and consistent non- application of mind in the disposal of statutory complaints. The process of statutory complaints have been provided to the personnel of the armed forces so as to ensure that by and large the grievances of the armed forces are redressed within the system itself. A statutory complaint made to the Ministry of defense is the last resort of all Army personnel. The Indian Army which sets high standards for itself and its personnel thereof deserve to be treated fairly by the Government of India in disposing of the statutory complaints. Regrettably a perusal of various orders extracted above clearly show that there has been non-application of mind and stereotyped and routine orders are being passed. This leads not only frustration among the armed personnel but leads to more litigation such as the present one. In the present case the grievance of the petitioner is further accentuated by the fact that the reviewing officer of the petitioner had given the following comments about the petitioner. Brief comments

(a) A tall soldierly built, correctly dressed officer who is physically and mentally robust. Intelligent quick on the uptake and methodical officer who is professionally sound. Keen to learn more, enthusiastic, responsible and dedicated. Trains and administers troops very well. Regimentally, cooperative and respectful.

Happily married, keeps his personal affairs correctly. A throughly dependable officer.

(b) A tall and thinly built Maj Naresh Kumar Ghai, is a dignified and industrious officer, who conducts himself admiringly in all Group and situations. He is upright in his dealings and displays a high sense of sincerity and honesty of purpose. He is intelligent and possesses analytical mind, is dependable and willingly accepts responsibilities even beyond the call of routine obligations. The officer is well read, possesses a none average managerial skills. Professionally sound, he can express himself clearly of of concisely both verbally and in writing.

4. Regrettably none of these recommendations favorable to the petitioner have been noticed let alone dealt with in the disposal of the statutory complaints. Rationale for giving reasons have been given in the judgment passed in Ct. Hans Raj v. Union of India CWP No. 9427/2005 wherein a Division Bench of this court laid down the following position of law:-

(k) That the Division Bench of this Court had delivered a judgment dated 26th July, 2004 in WP(Civil) No. 2287/2001 entitled 'Ram Paul v. Union of India and Ors. wherein the following position of law in respect of a disposal of an appeal by the BSF's Director General was laid down:-

However, we would like to comment upon another aspect, which is brought to our notice. It is pointed out that the appeal filed by the petitioner was statutory appeal. The petitioner was intimated by communication dated 3.1.2001 that his appeal was disposed of by the Director General as the same is devoid of merit. It is unfortunate that even the order of the appellate authority was not communicated to the petitioner so that the petitioner could understand the matter in which the appellate authority had exercised its mind to the plea raised by the petitioner in appeal petition. As we gather from the communication issued, the appellate authority rejected the appeal on the ground that it is devoid of merit. If the disposal of the appeal was in the manner as stated in the said communication, one cannot but hold that the said order of the appellate authority is cryptic and is devoid of reasons. While disposing of an appeal, the appellate authority discharges a statutory function and acts as a quasi judicial authority. Therefore, the appellate authority is required to give due weightage and apply its mind take a conscious and considered decision and dispose of the appeal giving reasons for its decision. The order disposing the appeal must indicate that there has been proper application of mind by the authority to all the pleas raised and the reasons for the decision are also to be explicit in the order itself. On that count also the order of the appellate authority is found to be invalid and therefore, the said order is also required to be set aside.

(l) That a Special Leave Petition No. 26064/2004 filed by the Union of India against the aforesaid judgment of the Division Bench in Ram Paul's case (supra) has been dismissed by the Hon'ble Supreme Court on 4th January, 2005 and thus the aforesaid decision has become final and binding in so far as this Court is concerned.

9. Ms. Jyoti Singh, the learned counsel, appearing for the petitioner has placed strong reliance upon the judgment of the Division Bench of this Court in Nirmal Lakra v. Union of India and Ors. reported as 102(2003) DLT 415(DB). Reliance has been in particular placed on the following passages from the above judgment of Hon'ble Chief Justice S.B. Sinha (as he then was):-

13. In a larger interest of national security as also the military discipline, although such a right has been conferred upon the Parliament, the question arises is as to whether the benefits of the liberal spirits of the Constitution would be totally deprived to a class of citizens, namely, those who are engaged in defending the country against external aggression and those who serve the country in peace as much as in war. A person may not have a Fundamental Right, yet he is entitled to the benefits of the Charter of Human Rights. Despite denial of some of the provisions contained in Part III of the Constitution, he is entitled to compliance of the principles of natural justice.

11. The following extracts of S.N. Mukharjee's judgment (supra) were also relied upon in the judgment of Nirmal Lakra's case (supra):-

Therein, the Apex Court observed that the underlined object of the rules of natural justice is to prevent miscarriage of justice and secure fair play and action. It was held that the requirement to record reasons can be regarded as one of the principles of natural justice, which covered exercise of powers by administrative authorities. It was observed:

39. 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.' However, it was observed that such a provision has been expressly and/or by necessary implication excluded in a proceeding under the said Act and the rules made there under.

Thus, the Apex Court, in S.N. Mukherji's case (supra), whereupon reliance has been placed by the learned Counsel appearing on behalf of the respondents, was primarily concerned with the question to whether reasons are required to be assigned while disposing of post-confirmation petition under Section 164(2) of the Act.

12. In paragraph 29, the Division Bench of this Court in Nirmal Lakra's judgment (supra) held as follows:-

29. If reasons are not assigned having regard to the parameters of judicial review, the Court may not be able to find out as to whether any illegality, irrationality or procedural impropriety has been committed. While considering the question of irrationality, if a High Court, or the Supreme Court is required to undergo the stressful exercise of going through the entire records and arriving at a decision that there was sufficient evidence to uphold the order or conviction and sentence as was done by the Apex Court in S.N. Mukherji's case (supra), the very purpose of having a limited power of judicial review may in a large number of cases be lost.

30. Judicial Review, it is trite, is a basic feature of the Constitution of India. All statutes must, thus, be construed in such a manner so that right of judicial review of a citizen may be effectively safeguarded.

13. The following passages in De Smith, Woolf and Jowell, Judicial Review of Administrative Action, Fifth Edition, Sweet and Maxwell, London, 1995 have also been noticed by the Division Bench in Nirmal Lakra's case (supra):-

The advantages of a duty to give reasons The absence of a general duty to give reasons has long been condemned as a major defect of our system of administrative law. As the Justice-All Souls Committee concluded, '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.' The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything that adversely affects others. The giving of reasons is widely regarded as one of the principles of good administration in that it encourages a careful examination of the relevant issues, the limitation of extraneous considerations, and consistency in decision-making. Moreover, if published, reasons can provide guidance to others on the body's likely future decisions, and so deter applications, which would be unsuccessful. Further, the giving of reasons may protect the body from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken. In addition, basic fairness and respect for the individual often requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit.

The learned author specifies various circumstances where failure to provide reasons would amount to procedural impropriety. It was observed:

Since the duty to give reasons may now be seen simply as yet another aspect of the requirement of procedural fairness, it would be wrong to imagine that the duty may be artificially confined to situations in which the decision maker is acting in a 'judicial' or 'quasi-judicial' capacity. Although in Cunningham, some reliance was placed upon the fact that the Civil Service Appeal Board is a fully 'judicialised' Tribunal, and one that is almost unique among Tribunals in not falling under a statutory duty to give reasons, subsequent decisions have made it clear that reasons may be required of a body exercising 'quasi-judicial' functions, such as that of the Home Secretary in relation to the tariff period to be served by life sentence prisoners and 'administrative' functions, such as a local authority making decisions, regarding an individual's housing application. The distinction between judicial, quasi-judicial and administrative functions may be consigned to history in this context, as well as more generally. As Sedley, J., has put in, rejecting such a submission in the context of the duty to give reasons. In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of Courts, and public law has since Ridge v. Baldwin, been alive to that fact.

14. Thereafter the Division Bench in Nirmal Lakra's case (supra) arrived at the following finding in paragraph 40:-

40. However, having regard to the provisions contained in the Army Act and the Army Rules vis-à-vis Article 33 of the Constitution of India, duty to assign reasons at all levels is desirable.

26. In an appeal arising from an order passed under Section 378(3) Code of Criminal Procedure, Hon'ble Mr. Justice Arijit Pasayat speaking for the Supreme Court in State of Punjab v. Bhag Singh reported as AIR 2004 SC 1203 held as under:-

Even in respect of administrative order Lord Denning M.R. In Breenv. Amalgamated Engineering Union {1971 (1) All ER 1148} observed 'The giving of reasons is one of the fundamentals of good administration.

In Alexander Machinery [Dudley] Ltd. v. Crabtree 1974 LCR 120, it was observed:

Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the 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, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. Though the above mentioned case is with respect to an appeal arising from an order under Section 378(3) of the Cr.P.C. but the position of law laid down therein by the Hon'ble Supreme Court is general and hence applicable in the present case.

27. The Hon'ble Supreme Court in (a) Madhya Pradesh Industries Ltd. V. Union of India reported as has laid down the following position of law:

...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 tribunal within bounds. A reasoned order is a desirable condition of judicial disposal.' (p. 472) (of SCR): .

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 abuse of power. But, if reasons for an order are to be 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....

(b) In Tranvancore Rayon Ltd. v. Union of India, the Hon'ble Supreme Court has laid down the following position of law:

The Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceedings 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.

(c) In Mahabir Prasad Santosh Kumar v. State of U.P. it was held as follows:

Recording of reasons in support of a decision on a disputed claim by a quasi- judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.

(d) In Woolcombers of India Ltd., case the Hon'ble Supreme Court held as follows:

The giving of reasons in support of their conclusions by judicial and quasi- judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious, unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well- known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi-judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons will be of little assistance to the Court.

(e) In Siemens Engineering and Manufacturing Co. of India Limited case 1976 Suppl SCR 489: Hon'ble Supreme Court held as follows:

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.

(f) The Hon'ble Supreme Court in S.N. Mukherjee's case observed as follows:-

the giving of reasons is one of the fundamentals of good administration.' (p. 191)

(g) The Hon'ble Supreme Court in S.N. Mukherjee's case (supra) noticed the 14th Report of the Law Commission of India relating to reform in judicial administration which reads as follows:-

In the case of administrative decisions provisions should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these decisions by the machinery of appropriate writs.' (Vol. II p. 694)

28. We are also bound by the law laid down by the Division Bench judgment dated 26th July, 2004 of this Court in Ram Paul's case in CWP 2287/2001 which clearly laid down the position of law in respect of the disposal of an appeal by the Director General of the BSF. It was held that since the statutory appellate authority acts as a quasi judicial authority, it is required to apply its mind and give reasons. This judgment was challenged in the Hon'ble Supreme Court and the Special Leave Petition No. 26064/2000 filed by the Union of India was dismissed on 4th January, 2005. Thus the above judgment has become final and binding on this Court.

5. We have no option but to set aside the impugned order in view of the position of law laid down by the Hon'ble Supreme Court as noted by this court in the abovementioned judgment. The respondent is, therefore, directed to dispose of the statutory complaints by a reasoned order in accordance with law laid down in Ct.Hans Raj's case (supra) not later than 15th April, 2006.

6. In case the petitioner is aggrieved by the disposal of the statutory complaint pursuant to this judgment, it will be open to him to challenge the same in accordance with law.

7. The writ petition is accordingly disposed of.