ivil Appeal No 3201 of 1989
From the Judgement and Order dated 2821989 of the Punjab and Haryana High Court in CWP No 7769 of 1988
Dr NM Ghatate and CVS Rao for the Appellants
PPSingh for the Respondent
The Judgement of the Court was delivered by K JAYACHANDRA REDDY J Whether a personal hearing is required before disposing of a petition filed under Section 1172 of The Act  for short against an order of the Summary Security Force Court This in short is the question involved in this appeal filed by the Union of India
The facts that give rise to this appeal may be noted at the outset
The sole respondent who was working as Mounted Constable in the Border Security Force BSF  for short was charged for an offence under Section 31b of the for extracting a sum of Rs 14000 from a person without proper authority
A chargesheet was issued to the respondent
The evidence in support of the same was recorded
Thereafter a Summary Security Force Court as provided under the was constituted and the respondent was put on trial on 1721988
During the recording of the evidence though the respondent was given an opportunity to cross examine the witnesses he declined to do so and according to the enquiring authorities he pleaded guilty and prayed that a lenient view may be taken
During the trial he was also given an opportunity to examine defence witnesses if any but he did not do so
It is also averred that since the respondent pleaded guilty Summary Security Force Court passed the orders and sentenced him to rigourous imprisonment for one year in civil prison and also to be dismissed from service
Aggrieved by the said order the respondent preferred a petition under Section 1172 of the to the Director General BSF who 185 after going through the petition as well as other records of the case rejected the same as devoid of any merit
The said decision was informed to the respondent
Aggrieved by the same the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab  Haryana
It was urged that there was violation of principles of natural justice e since he had not been heard before disposing of the petition filed under Section 1172 of the 
The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him
Aggrieved by the saidorder the Union of India has filed the present appeal
Learned counsel for the appellants submitted that Section 117 2 of the does not provide for personal hearing and that the courts which examined the similar provisions in the Army  have held that the personal hearing need not be given particularly having regard to the nature of the act and the post held
The learned counsel appearing for the respondent on the other hand submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice
Before we examine the decisions cited by either side it is necessary to refer to some of the provisions of the and the Army 
The BSF is an armed force of the Union of India constituted under Item 2 of List I of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country
The preamble states that the is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith
Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the  the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed
Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court
Chapter VI deals with the constitution of the Security Force Courts and their powers of try the offences punishable under the 
Chapter VII contains the procedure the witnesses can be summoned and examined
Section 87 lays down that the Evidence  shall subject to the provisions of the  apply to all proceedings before the Security Force Courts
For the purpose of this appeal it may not be necessary to go into the details of this procedure
As per Section 107 no finding or sentence of a Security 186 Force Court shall be valid except so far as it may be confirmed as provided under the 
Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court
Under Section 117 the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court
Section 117 reads as under 1171 Any person subject to this who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court 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 who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed may present a petition to the Central Government the Director General or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government the Director General or the prescribed officer as the case may be may pass such order thereon as it or he thinks fit
 The next relevant Section is Section 118 which reads thus The Central Government the Director General or any prescribed officer may annul the proceedings of any Security Force Court on the ground that they are illegal or unjust
 In the instant case we are concerned with the post confirmation petition presented under Section 1172 to the Director General BSF
As already mentioned the Director General rejected the same holding that it is devoid of merit without giving any personal hearing
The petition filed by the respondent under Section 1172 is marked as Annexure C  in this appeal before us
We have gone through the same and we find that request for personal hearing as such has not been made
With this background we shall now examine whether it is ob 187 ligatory that a personal hearing should be given and whether there has been violation of principles of natural justice The doctrine of principles of natural justice and audi alteram partem are part of Article 14 and there are any number of decisions rendred by this Court regarding the scope of this doctrine
We shall however refer to one or two important cases relied upon by the learned counsel for the appellants
In Maneka Gandhi vs Union of India 1978 2 SCR 621 all the earlier important cases are referred to
Suffice it to say that it is laid down that principles of natural justice apply to administrative orders affecting the rights of citizens
But it is also observed that The audi alteram partem rule may therefore by the experimental test be excluded if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitute or the urgency of the situation so demands
But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands
It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case
The Court must make every effort to salvage this cardinal rule to the maximum extend permissible in a given case
 In State of Haryana vs Ram Krishan and Others  the question was whether in a case of premature termination of mining leases by the Government it was necessary to give an opportunity of hearing
The Court held that Since there is no suggestion in the section to deny the right of the affected persons to be heard the provisions have to be interpreted as implying to preserve such a right
The Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development
Not to do so will be violative of the principles of natural justice
Reference may be made to the observations of this Court in Baldev Singh vs State of Himachal Pradesh  that where exercise of a power results in civil 188 consequences to citizens unless the statute specifically rules out the application of natural justice such rule would apply
The learned counsel appearing for the Union of India however submitted that the courts have not gone to the extent of holding that in every petition or revision by way of representation filed against an order of a Tribunal under special statute should also be given an opportunity of hearing before disposal of the same
Most of the other decisions cited deal with the question of giving an opportunity before disposal of a petition filed under Section 1642 of the Army which is in pari materia to Section 1172 of the 
We may usefully extract Section 164 of the Army which reads thus 164
Remedy against order finding or sentence of court material Any person subject to this 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 proceedings to which the order relates
2 Any person subject to this who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed may present a petition to the Central Governmentthe 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
 In Som Datt Datta vs Union of India  Ors  a question came up whether it was necessary for the confirming authority or upon the Central Government to give reasons while disposing of a petition under Section 164
It was held that Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication 189 we are unable to accept the contention of Mr Dutta 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 emphasis supplied In Union of India vs Jyoti Prakash Mitter  a question came up whether an order passed by President acting under article 273 of the Constitution of India is justiciable
This Court held that the appreciation of the evidence by the President is entirely left to him but the Court will not sit in appeal over the judgement of the President
Now coming to the question of personal hearing it was further held that The President had given ample opportunities at diverse stages to the respondent to make his representations
All evidence placed before the President when he considered the question as to the age of the respondent was disclosed to him and he respondent was given an opportunity to make his representation thereon
There is nothing in clause 3 of Article 217 which requires that the Judge whose age is in dispute should be given a personal hearing by the President
The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing but he is not bound to do so
An order made by the President which is declared final by clause 3 of Article 217 is not invalid merely because no oral hearing was given by the President to the Judge concerned
emphasis supplied In Lt Col
KNS Sidhu vs The Union of India and Others All India Service Law Journal a Division Bench of the Punjab  Haryana High Court has considered this very question and held that the rejection of a representation made under Section 1642 of the Army without giving a personal hearing does not suffer from any illegality and after referring to AK Gopalan vs State of Madras  and Union of India vs Jyoti Prakash Mitter   held that From the observations reproduced above it is abundantly clear that there is no hard and fast rule for the applicability of principles of natural justice and that in each case it has to be definitely ascertained if the statute governing it leaves 190 any discretion for involving their assistance
 It was further observed that The applies to a class of people who are the backbone of the country
They are governed by the codified law
Discipline is maintained by resorting to the provisions of the codified law
There would hardly be any justification for importing the principles of natural justice in a completely codified statute
In Captain Harish Uppal vs Union of India and Others  also the question whether an opportunity to be heard is necessary before confirmation under Section 164 of the Army  was considered and it was held that The contention that Brig
Bhilla should either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the 
While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner he should have been given a hearing to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court martial is a contention which cannot be accepted
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel
It is not a requirement of the principles of natural justice
Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer ie the Chief of the Army Staff in this case
He does not appear to have done so emphasis supplied In this decision this Court has held in unambiguous terms that the confirming authority need not give a personal hearing and this ratio applies with equal force to a post confirmation petition under Section 1642 and consequently to an application under Section 1172 of the 
In a recent decision in Shri SN Mukherjee vs Union of India JT 1990 3 630 a Constitution bench of this Court having noted the principle that requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities however proceeded to hold that There is nothing in the language of sub section 2 of Section 164 which indicates that recording of reasons for an order passed on the post confirmation petition was necessary
In arriving at this finding the Bench referred to the ratio laid down in Som Datt Datt s case
At this stage we may refer to another decision of this Court in Union of India vs cor
JN Sinha and Anr 1971 1 SCR 791 wherein it is held Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights
As observed by this Court in Kraipak and Ors
vs Union of India AIR 1970 SC 150 the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice
These rules can operate only in areas not covered by any law validly made
In other words they do not supplant the law but supplement it
xx xx xx Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power the nature of the power conferred the purpose for which it is conferred and the effect of the exercise of that power
From the above discussion it emerges that in cases of special enactments like Army  all the principles of natural justice cannot be imported
The same ration applies to a petition under Section 1172 of the also
We may also point out her that Chapter XIII consisting of Rules 167 to 169 of the BSF Rules deals with petitions filed under Section 117 of the 
Even in them there is nothing to indicate that a hearing has to be given before disposal of a petition
192 As noted above under Section 1172 the respondent in only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice
The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post confirmation petition that was filed under Section 1172 of the and authority which disposed of the same is not a court any every order passed administratively cannot be subjected to the rigours of principles of natural justice
For the aforesaid reasons the order of the High Court is set aside and the matter is remitted back to the High Court for disposal on merits
The appeal is accordingly allowed
In the circumstances of the case there will be no order as to costs
RP Appeal allowed


Summary:
A division Bench of this Court in VJ Jain vs Shri Pradhan and Ors  observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation
This view was reiterated in the later case of Om Prakash Bahl vs Union of India WPNo 845 of 1979 decided on 15101979
As the aforesaid view required reconsideration the instant SLPs and WPs had been referred to and heard by a constitutional bench
On December 1 1988 the officers of the Directorate of Revenue Intelligence upon getting information that contraband gold has been secreted in the room of petitioner No 1 searched the room in the presence of independent witnesses
Another person was also present inside the room
The officers recovered one Samsonite punch and some bundles of Indian currencies from the table drawer in that room
Inside the said pouch there were five gold biscuits of 24 ct
purity and of foreign origin and seized the same under a Mahazar
On 24th February 1989 that State Government passed two separate orders of detention under section 31iv of the Conservation of 103 Foreign Exchange and Prevention of Smuggling Activities Act 1974 and the petitioners were taken into custody and detained in the Central pension
On 17th April 1989 the detenus made representation to the Government which could not be immediately considered since they required translation and collection of information and comments
In the meanwhile the matter was referred to the Advisory Board which had its meeting on 20th April 1989 considered the case of the detenus and reported that there was sufficient cause for detention
On 27th april 1989 the Government accepted the report and confirmed the detention orders
On 6th and 7th May 1989 the Government considered and rejected on representation of the detenus and they were informed of the same
The detention orders were challenged in the High Court through a writ petition but the High Court dismissed the same
In the appeals and writ petition to this Court the main question for consideration was whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered and the subsequent consideration of the representation would not cure that invalidity
Disposing of the matters the Court HELD 1a With regard to liberty of citizens the Court stands guard over the facts and requirements of law but Court cannot draw presumption against any authority without material
115G b The confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation of the detenu
115G c There may be cases where the Government has to consider the representation only after the confirmation of the detention
115H 2a There are two constitutional safeguards viz Clause 4 of Article 22 and Clause5 of Article 22
The former requires that if a detenu is liable to be detained for a longer period than three months hiscase shall be referred to the Advisory Board which must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention
The latter provides that when any person is detained in pursuance of an order made under any 104 law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
108E G 2b The detenu has two rights under clause 5 of Article 22 of the Constitution i to be informed as soon as may be of the grounds on which the order of detention is based that is the grounds which led to the subjective satisfaction of the detaining authority and ii to afforded the earliest opportunity of making a representation against the order of detention
108H 109A 3
The function of the Advisory Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution
108F 4a The constitution right to make representation under clause 5 of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation
The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government s obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to from its opinion and send a report to the Government
110B C 4b It is implicit in clause 4 and 5 of Article 22 that the Government while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation
it has to consider the representation on its own without being influenced by any such view of the Board
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the reference
The Government consider the representation to ascertain essentially whether the order is in conformity with the power under the law
110C D 4c The Board on the other hand considers the representation and the case of the detenu to examine whether there is sufficient case for detention
The consideration by the Board is in additional safeguard and not a substitute for consideration of the representation by the Government
110E 4d The right to have the representation considered by the 105 Government is safeguarded by clause 5 of Article 22 and it is independent of the consideration of the detenu s case and his representation by the Advisory Board under clause 4 of Article 22 read with section 8c of the 
110F SK
Abdul Karim  Ors
vs State of West Bengal   Pankaj Kumar Chakrabarty  Ors
vs State of West bengal   Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr1969 2 SCC 426 B Sundar Rao  Ors
vs State of Orissa  John Martin vs State of West Bengal 1975 3SCR 211 
SK Sekawat vs State of West Bengal and Haradhan Saha  Anr
vs State of West Bengal  Ors
1975  referred to
5a The representation relates to the liberty of the individual the highly cherished right enshrined in Article 21 of our Constitution
Clause 5 of Article 22 therefore casts a legal obligation on the Government to consider the representation as early as possible
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible
110H111A 5b The words as soon as may be occuring in clause 5 of Article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay
However there can be no hard and fast rule in this regard
It depends upon the fact and circumstances of each case
There is no period prescribed either under the Constitution or under the concerned detention law within which the representation should be dealt with the requirement however is that there should not be supine indifference slackness or callous attitude in considering the representation
Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal
11B D Jayanarayan Sukul vs State of West Bengal   Frances Coralie Mullin vs WC Khambra and Ors   Rama Dhondu Borade vs VK Saraf Commissioner of Police  Ors  and Aslam Ahmed Zahire Ahmed Shaik vs Union of India  Ors
   referred to
6a There is no constitutional mandate under clause 5 of Arti 106 cle 22 much less any statutory requirement to consider the representation before confirming the order of detention
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention
indeed there is no justification for imposing the restriction on the power of the Government
115C D 6b Clause 5 of Article 22 suggests that the representation could be received even after confirmation of the order of detention
The words shall afford him the earliest opportunity of making a representation against the order in clause 5 of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order before it is confirmed according to the procedure laid down under section 8 of the Act
But ifthe detenu does not exercise his right to make representation at that stage but presents it to the Government after the Government has confirmed the order of detention the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statue
The confirmation of the order of detention is not conclusive as against the detenu
It can be revoked suo motu under Section 11 or upon a representation of the detenu
116A B 6c So long as the representation is independently considered by the government and if there is no delay in considering the representation the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention
Nor it could be presumed that such consideration is not an independent consideration
116C D VJ Jain vs Shri Pradhan  Ors
   Om Prakash Bahl vs Union of India  Ors WP No 845 of 1979 decided on 15101979 and Khairul Haque vs State of West Bengal WPNo
24669 decided on 1091969 over ruled Khudiram Das vs State of West Bengal  Ors   distinguished