Decided On : 27.3.2023 vs Himachal Pradesh University
2023 Latest Caselaw 3007 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
                                            CWP No. 7997/2022
                                            Decided on : 27.3.2023
    Dole Ram                                                                   .....Petitioner
                                   Versus




                                                                               .

    Himachal Pradesh University                                             ....Respondent
    Coram:
    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.





    The Hon'ble Mr. Justice Virender Singh, Judge.

    Whether approved for reporting?1No
    For the Petitioner:         Mr. Surender Sharma, Advocate.





    For the Respondents: Mr. Surender Verma, Advocate.
    _____________________________________________________________________
                  Justice Tarlok Singh Chauhan, Judge (oral)

There is yet another case where the petitioner has been

compelled to approach this Court for fault of the respondent-

university.

2 The simple case of the petitioner is that the respondent-

university be directed to grant benefit of approved military service for

the purpose of pay fixation w.e.f. 10.3.2016 ie. the date when the

petitioner was appointed on contract basis.

3 No doubt, the matter was ultimately placed before the

finance committee vide item No.4, but the same was rejected without

assigning any reasons as is evident from the decision placed at page 85

of the paper book.

4 To say the least, manner and fashion in which the finance

committee has rejected the claim of the petitioner without assigning

1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

any reasons cannot be countenanced. After all reasons are heartbeats

of every decision.

.

5 The necessity of assigning reason has been repeatedly

emphasized by the Hon'ble Supreme Court and reference in this regard

can conveniently be made to the judgment of the Hon'ble Supreme

Court in Kranti Associates Pvt. Ltd. and another versus Masood

Ahmed Khan and Others (2010) 9 SSC 496, wherein after taking

into consideration the entire law on the subject, the position of law was

summarized as under:-

(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 life blood 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.

(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 (1987) 100 Harward

Law Review 731-37).

(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 (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA C 405, wherein the Court referred to Article 6 of 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".

6 In Ravi Yashwant Bhoir Vs. District Collector, Raigad

and others (2012) 4 SCC 407, the Hon'ble Supreme Court held as

under:-

38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it

is incumbent upon the authorities to pass a speaking and

reasoned order.

39. In Shrilekha Vidyarthi Vs. U.P. (1991) 1 SCC 212 this Court has observed as under: (SCC p. 243. para 36). "36......Every State action may be informed by reason and it

follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the

governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you'. This is

what men in power must remember, always."

40. In LIC Vs. Consumer Education and Research Centre

(1995) 5 SCC 482 this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly is part of fair procedure erwisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India Vs. Mohan Lal Capoor (1973) 2 SCC

836 and Mahesh Chandra Vs. U.P. Financial Corpn.(1993) 2 SCC 279.

.

41. In State of W.B. Vs. Atul Krishna Shaw 1991 Supp (1)

SCC 414, this Court observed that: (SCC p. 421, para 7)

7....Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an

indispensable part of sound system of judicial review."

42. In S.N, Mukherjee Vs. Union of India 1990) 4 SCC 594, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair

play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as to it is now regarded as one of the principles of natural

justice, and it was held in the above case that except in

cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.

43. In Krishna Swami Vs. Union of India (1992) 4 SCC

605. this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out

from the record. The Court further observed: (SCC p. 637, para 47).

"47......Reasons are the links between the material, the foundation for their erection and the actual conclusions. They

would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21.

44. This Court while deciding the issue in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd.(2010) 13 SCC 336, placing reliance on its various earlier judgments held as under: (SCC pp. 345-46, para 27).

"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by

.

reasons recorded in it. Thus, while deciding an issue, the

court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of

judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it

known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.

3....The giving of reasons for a decision is an essential

attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind'.

The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The

absence of reasons renders an order indefensible/unsustainable particularly when the order is

subject to further challenge before the higher forum. Recording of reasons is the principle of natural justice and

every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."

45. In Institute of Chartered Accountants of India Vs. L.K. Ratna (1986) 4 SCC 537, this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30).

30.....In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious

.

that it can attract the harsh penalties provided by the Act.

Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which

the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilty of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary

Committee does not enjoy the status of a finding. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the

basis of the finding rendered by the Council. The Council

must, therefore, state the reasons for its finding."

46. The emphasis on recording reason 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 of the authority before the 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 the reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi judicial performance."

7 Earlier to the aforesaid decisions, a Constitution Bench of

the Hon'ble Supreme Court, in S. N. Mukherjee vs. Union of India

(1990) 4 SCC 594, after an exhaustive review of its earlier

pronouncements as also the views expressed in other jurisdictions and

by expert committees, summarized and explained the law as under:-

.

"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 quest judicial functions must record the reasons for its decision is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the

Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded would enable this Court or the High Courts to effectively

exercise the appellate or supervisory power. But this is not the sole

consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity at the decisions; and (iii) minimize

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 re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures

a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application

.

cannot be confined to decisions which are subject to appeal,

revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quast 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 ex- pressed the view that "natural justice may provide the best

rubric for it, since the giving of reasons is required by the ordinary man's sense of justice." (See Wade, Administrative Law. 6th Edn.

.

P. 548)."

8 In Pankaj Garg vs. Meenu Garg & Anr. (2013) 3

Supreme Court Cases 246, the Hon'ble Supreme Court reiterated the

settled position of law holding that an order, which does not contained

any reason, is no order in the eyes of law.

9 Arbitrariness in making of an order by an authority can

manifest itself in different forms. Non-application of mind by the

authority making the order is only one of them. Every order passed by

a public authority must disclose due and proper application of mind by

the person making the order. Application of mind is best demonstrated

by disclosure of mind by the authority making the order and disclosure

is best done by recording the reasons that led the authority to pass the

order in question. Absence of reasons either in the order passed by the

authority is clearly suggestive of the order being arbitrary hence legally

unsustainable.

10 Consequently, the impugned order, rejecting the claim of

the petitioner, is quashed and set aside. The respondent-University is

directed to place the matter afresh before the Finance Committee,

which shall consider and decide the case of the petitioner strictly in

accordance with law by passing a reasoned order within a period of

four weeks from today.

11 The instant petition stands disposed of, in the aforesaid

terms, so also the pending application(s), if any.

.

    12             For compliance, list on 24.4.2023.





                                                  (Tarlok Singh Chauhan)
                                                         Judge


                                                         (Virender Singh)





     27.3.2023                                                Judge
         (pankaj