JUDGMENT [ENTITY], J.
Page 325
1. With the consent of the learned counsel for the parties, the leading [CASE NUMBER] are taken up for final hearing as all these writ petitions raise a common question of law.
2. The issue involved in these group of petitions is whether in an order passed under [SECTION] of the [ACT] referred to as the `[ACT]') in dealing with appeals against the orders of Security Force Court and the Summary Security Force Court and its confirmation, reasons are required to be given. [SECTION] of the [ACT] reads as follows:-
117. Remedy against order, finding or sentence of Security Force Court. (1) Any person subject to this Act 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 or any proceeding to which the order relates.
(2) Any person subject to this Act 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.
3. The Summary Court Martial is held under [SECTION] read with the [SECTION] of the [ACT]. The Summary Security Force Court is held under [SECTION] read with [SECTION] of the [ACT]. General Court Martials under the [ACT] are akin to Security Force Courts and Summary Court Martials are akin to Summary Security Force Courts under the [ACT].
4. The brief facts of the representative case, [CASE NUMBER] are that the petitioner joined the respondent No. 2, i.e., the Border Security Force (hereinafter referred to as the `[ACT]') in the year 1987. In April 1997 while on duty the petitioner met with a serious accident as a result of which four fingers of the petitioners' left hand were amputated. Thereafter in October 1999 the petitioner on grounds of disability was posted as a Generator Operator at [ACT] Academy, Tekampur. On 24th February, 2003 a chargesheet was served on the petitioner
5. On 24th February, 2003 the petitioner was tried by the Summary Security Force Court and was convicted by an impugned order dated 3rd March, 2003 according to which inter alia a rigorous imprisonment of 89 days was imposed on the petitioner. The petitioner filed an appeal against the order of the Summary Security Force Court before the respondent, [ENTITY]puty Inspector General. The petitioner's appeal was rejected by the respondent No. 2 by an Page 326 unreasoned order dated 2nd September, 2004. The petitioner has filed this petition under [SECTION] of the [ACT] to set aside the order dated 3rd March, 2003 of the respondent No. 3 and order dated 2nd September, 2004 of the respondent No. 2.
6. The contention of the petitioners is that while disposing of statutory petitions of appeal under [SECTION] of the [ACT], the disposal should be supported by reasons. While opposing the above plea, the Union of India and the [ACT] have contended that as per the [ACT] Bench judgment of the Hon'ble Supreme Court in [ENTITY] v. Union of India , reasons are not required to be recorded for an order passed by the confirming authority while confirming the finding and sentences of general Court Martials under the [ACT] as well as that the orders passed by the Central Government dismissing the post-confirmation petitions in respect of an Army Personnel challenging such court Martial verdicts and the same analogy of the [ACT] applies to the [ACT] as the provisions of the [ACT] and the [ACT] are pari materia.
7. The pleas of the learned counsel for the petitioners, Mr. [ENTITY], Mr. [ENTITY] and Ms. [ENTITY] on behalf of the petitioners are as follows:-
(a) The issue whether the appellate authority under the [ACT] was required to record reasons was first decided by the Hon'ble Supreme Court in [ENTITY] v. Union of India wherein it was held that neither the court martial nor the confirmation by the appellate authority was required to record reasons in support of their decision. A subsequent [ACT] Bench of the Hon'ble Supreme Court in [ENTITY]'s case (supra) by following the reasons in [ENTITY]'s case (supra) held that no reasons were required to be given in an order of confirmation under [SECTION] of the [ACT].
(b) That the [ENTITY]'s case (supra) and [ENTITY]'s case (supra) related to General Court Martials which required the presence of a Judge Advocate who is present throughout the trial to aid and advise the Court on all questions of law and other procedural matters. The accused in such a General Court Martial had a right to be represented by a civil lawyer and the Judge Advocate summed up the evidence at the end of the trial and advised the Court on all issues of law involved in the case. In a closed court thereafter findings were discussed in the presence of the Judge Advocate who was thus an integral part of the court martial proceedings ensuring fairness and legal inputs.
(c) That on the other hand and contrastingly a Summary Court Martial is held by the Commanding Officer of the accused who before taking on the Page 327 role of the Judge chargesheets the accused, conducts a mandatory hearing of the charges, and then arrives at its decision as to the mode and disposal of the case. At such a summary court martial there is no Judge Advocate to aid and advise the Commanding Officer in law who is really functioning in a dual role of the Court as well as the prosecutor. Further in a Summary Court Martial the accused does not have the right to be represented by a lawyer thus placing such an accused in a disadvantageous position.
(d) That the judgments in [ENTITY]'s case (supra) and [ENTITY]'s case (supra) are not applicable to the present cases on the ground that the said cases related to a General Court Martial and in view of the differences pointed out in respect of General Court Martial and the Summary Court Martial, the principles laid down in the above judgments in [ENTITY]'s case (supra) and [ENTITY]'s case (supra) would not apply to the cases of the Summary Court Martial.
(e) That in the year 1969 when the [ACT] were framed, [SECTION] clearly stipulated that the Court subsequent to the recording of the evidence was required to record its opinion before recording its findings in terms of [SECTION].
(f) That certain observations have been made by the Hon'ble Supreme Court in [PRECEDENT]. wherein military law was termed as `archaic' and the absence of the single judicial review was adversely commented upon. The Supreme Court had suggested the change of the existing military law to bring it in tune with the changing times.
(g) Further distinction is sought to be drawn by reliance on the amendment in Army [SECTION] in the year 1992 which provided that the Court Martial (General/District) was required to record brief reasons in support of their findings and sentences.
(h) That the [SECTION] of the [ACT] was amended subsequently on the lines of Army [SECTION].
8. The said existing and amended [SECTION] of the [ACT] and the existing and amended Army [SECTION] read as follows:-
Unamended [ACT] [SECTION] Amended [ACT] [SECTION]
99. Record and announcement of Finding. (1) The finding on every charge upon which the accused is arraigned shall be recorded and except as provided in these rules, shall be recorded simply as a finding of 'Guilty' or of 'Not Guilty'.
99. Record and announcement of Finding. (1) The finding on every charge upon which the accused is arraigned shall be recorded and except as provided in these rules, shall be recorded as finding of 'Guilty' or of 'Not Guilty' . After recording the finding on each charge, the Court shall give brief reasons in support thereof. The Law Officer or, if there is none, the Page 328 Presiding Officer shall record or cause to be recorded such brief reasons in the proceedings. The above record shall be signed and dated by the Presiding Officer and the Law Officer, if any.' Unamended Army [SECTION] Amended Army [SECTION] 'Form, record and announcement of finding (1) The finding of every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of 'Guilty' or of 'Not guilty'.
(2) Where the court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court shall acquit the accused of that charge.
(3) If the court doubts as regards any charge whether the facts proved show the accused to be guilty or not of the offence charged or of any Page 329 offence of which he might under the Act legally be found guilty on the charge as laid, it may, before recording a finding on that charge, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved, and may, if necessary, adjourn for that purpose.
(4) Where the court is of opinion as regards any charge that the facts which it finds to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defense, it may, instead of a finding of 'Not guilty' , record a special finding.
(5) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein.
(6) Where there are alternative charges, and the facts proved appear to the court not to constitute the offence mentioned in any of tose alternative 'Form, record and announcement of finding. (1) The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded as finding of 'Guilty' or of 'Not Guilty' . After recording the finding on each charge, the court shall give brief reasons in support thereof. The judge advocate or, if these is none, the presiding officer shall record or cause to be recorded such brief reasons in the proceedings. The above record shall be signed and dated by the presiding officer and the judge advocate, if any.
(2) Where the court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court shall acquit the accused of that charge.
(3) If the court doubts as regards any charge whether the facts proved show the accused to be guilty or not of the offence charged or of any offence of which he might under the Act legally be found guilty on the charge as laid, it may, before recording a finding on that charge, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved, and may, if necessary, adjourn for that purpose.
(4) Where the court is of opinion as regards any charge that the facts which it finds to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defense, it may, instead of a finding of 'Not guilty' , record a special (5) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein.
(6) Where there are alternative charges, and the facts proved appear to the court not to constitute the offence mentioned in any ofthose alternative charges, the court shall record a finding of 'Not Guilty' on that charge.
(7) The court shall not find the accused guilty on more than one of two or more charges laid down in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges.
(8) If the court thinks that the facts proved constitute one of the offences stated in two or more of the alternative charges, but doubts which of those offences the facts do at law constitute, it may, before recording a finding on those charges, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved and stating that it doubts whether those facts constitute in law the offence stated in such one or other of the charges and may, if necessary, adjourn for that purpose.
(9) In any case where the court is empowered by [SECTION] to find the accused guilty of an offence other than that charged, or guilty of committing an offence in circumstances involving a less degree of punishment, or where it could, after hearing the evidence, have made a special finding of guilty subject to exceptions or variations in accordance with [SECTION] it may, if it is satisfied of the justice of such course, and if the concurrence of the convening officer is signified by the prosecutor, accept and record a plea of guilty of such other offences or of the offence as having been committed in circumstances involving such less degree of punishment or of the offence charged subject to such exceptions or variations:
finding.
(5) The special finding may find the accused guilty on a charge subject to the statement or exceptions or variations specified therein.
(6) Where there are alternative charges, and the facts proved appear to the court not to constitute the offence mentioned in any of those alternative charges, the court shall record a finding of 'Not Guilty' on that charge.
(7) The court shall not find the accused guilty on more than one of two or more charges laid down in the alternative, even if conviction upon the charge necessarily connotes guilty upon the alternative charge or charges.
(8) If the court thinks that the facts proved constitute one of the offences stated in two or more of the alternative charges, but doubts which of those offences the facts do at law constitute, it may, before recording a finding on those charges, refer to the confirming authority for an opinion, setting out the facts which it finds to be proved and stating that it doubts whether those facts constitute in law the offence stated in such one or other of the charges and may, if necessary, adjourn for that purpose.
(9) In any case where the court is empowered by [SECTION] to find the accused guilty of an offence other than that charged, or guilty of committing an offence in circumstances involving a less degree of punishment, or where it could, after hearing the evidence, have made a special finding of guilty subject to exceptions or variations in accordance with [SECTION] it may, if it is satisfied of the justice of such prosecutor, accept and record a plea of guilty of such other offences or of the offence as having been committed in circumstances involving such less degree of punishment or of the offence charged subject to such exceptions or variations:
Provided that failure to obtain the concurrence of the convening officer as aforesaid shall not invalidate the proceedings when confirmed notwithstanding such failure.
(10) The finding on each charge shall be announced forthwith in open court as subject to confirmation.
course, and if the concurrence of the convening officer is signified by the prosecutor, accept and record a plea of guilty of such other offences or of the offence as having been committed Page 330 in circumstances involving such less degree of punishment or of the offence charged subject to such exceptions or variations:
Provided that failure to obtain the concurrence of the convening officer as aforesaid shall not invalidate the proceedings when confirmed notwithstanding such failure.
(10) The finding on each charge shall be announced forthwith in open court as subject to confirmation.'
(i) The [ACT] Bench judgment of the Hon'ble Supreme Court in [ENTITY]'s case (supra) was based on the then applicable [ACT] and in particular [SECTION] which did not require recording of reasons in support of the findings of the court martial and hence the aforesaid judgment held that reasons were not required to be given in appellate proceedings. However since the Army Rules were amended in 1993 and in particular amended [SECTION] now requires reasons to be given in support of the findings of the court martial, the position of law laid down in [ENTITY]'s case (supra) which pertained only to the unamended Army [SECTION] and that too in respect of a General Court Martial, could no longer hold the field.
(j) That the Supreme Court laid down in [PRECEDENT] reported as that the [ACT] had filled up the gaps of Army, Navy and other Acts. The following position of law was laid down by the Hon'ble Supreme Court in the above judgment :
The scheme of the Act and the Rules leading to holding of a trial by the General Security Force Court leaves no manner of doubt that the basic principles of natural justice have been codified therein. The provisions of the Act and the Rules in no uncertain terms envisage protection from bias against an officer. We may notice that the Act which was enacted in the year 1968 even sought to fill up the gaps occurring in other Acts like [ACT], [ACT] or [ACT] in this behalf so as to protect a person from personal bias or a real likelihood of bias.
(k) That the Division Bench of this Court had delivered a judgment dated 26th July, 2004 in [CASE NUMBER] entitled '[ENTITY] v. Union of India and Ors.' wherein the following position of law in respect of a disposal of an appeal by the [ACT]'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 Page 331 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 [CASE NUMBER] filed by the Union of India against the aforesaid judgment of the Division Bench in [ENTITY]'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. [ENTITY], the learned counsel, appearing for the petitioner has placed strong reliance upon the judgment of the Division Bench of this Court in [ENTITY] 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 [ENTITY] (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 [ACT] 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. [ENTITY]spite denial of some of the provisions contained in [SECTION] of the [ACT], he is entitled to compliance of the principles of natural justice.
10. The questions which arose in [ENTITY]'s case (supra) were summarized in the above judgment in [ENTITY]'s case (supra) as under:-
(i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and
(ii) If so, does the said principle apply to an order confirming the findings and sentence of a Court Martial and post-confirmation proceedings under the Act.
11. The following extracts of [ENTITY]'s judgment (supra) were also relied upon in the judgment of [ENTITY]'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 Page 332 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 [ENTITY]'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] of the Act.
12. In paragraph 29, the Division Bench of this Court in [ENTITY]'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 [ENTITY]'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 [ACT]. 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 [ENTITY], [ENTITY] and [ENTITY], Judicial Review of Administrative Action, Fifth Edition, Sweet and Maxwell, London, 1995 have also been noticed by the Division Bench in [ENTITY]'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 Page 333 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 [ENTITY], 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 [PRECEDENT], been alive to that fact.
14. Thereafter the Division Bench in [ENTITY]'s case (supra) arrived at the following finding in paragraph 40:-
40. However, having regard to the provisions contained in the [ACT] and the Army Rules vis-a-vis [SECTION] of the [ACT], duty to assign reasonsat all levels is desirable.
15. Ms. [ENTITY] has further contended that since it is well settled position of law as per the following decisions cited in the footnote1 that while dismissing a writ petition under [SECTION] of the [ACT] a High Court is required to record reasons, yet in proceedings under [SECTION] of the [ACT] the Director General of [ACT] is not required to record reasons and as per the plea of the respondent the judgment of [ENTITY]'s case (supra) indicates that this Court under [SECTION] is required to go through the record and record reasons for its decision. It is Page 334 thus contended that if the respondents' plea is accepted an incongruous situation will arise where the appellate authority under [SECTION] of the [ACT] whose order is under challenge in this Court in its writ jurisdiction is not required to record reasons, whereas this Court in its exercise of extraordinary writ jurisdiction under [SECTION] is nevertheless required to peruse the entire record and record reasons. She has further submitted that consequently this Court should adopt an interpretation which avoids such an anomalous situation.
16. The relevant para 46 which sums up the reasoning of the Hon'ble Supreme Court in [ENTITY]'s case (supra) is as under:-
46.With regard to post confirmation proceedings we find that [SECTION] of the Act provides that any person subject to the Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the 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 so far as the findings and sentence of a court-martial and the proceedings for confirmation of such findings and sentence are concerned, it has been found that the scheme of the Act and the Rules are such that reasons are not required to be recorded for the same. Has the Legislature made a departure from the said Scheme in respect of post-confirmation proceedings? There is nothing in the language of [SECTION], which may lend support to such an intention. Nor is there anything in the nature of post conformation proceedings, which may require recording of reasons for an order passed on the confirmation petition even though reasons are not required to be recorded at the stage of recording of findings and sentence by a court martial and at the stage of confirmation of the findings and sentence of the court martial by the confirming authority. With regard to recording of reasons, the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of findings and sentence of the court martial by the confirming authority are equally applicable at the stage of consideration of the post confirmation petition. Since reasons are not required to be recorded at the first two stages referred to above, the said requirement cannot, in our opinion be insisted upon at the stage of consideration of post confirmation petition and under [SECTION] of the Act.
17. Since [SECTION] has since been amended and a court martial verdict is required to record reasons, the statutory basis for the above judgment in [ENTITY]'s case based on the unamended [SECTION] (supra) no longer exists. She has further submitted that since an analogy is being placed by the respondents on a judgment under the [ACT] in [ENTITY]'s case (supra) by the respondents by seeking to adopt the principle laid down in the said judgment in respect of the Army being applicable to another para military force such as [ACT] in the present case, if the basis for that principle on which [ENTITY]'s case (supra) is founded has changed, by the same analogy Page 335 reasons are required to be recorded in the case of a Summary Security Court (the [ACT] equivalent to a Court Martial).
18. The pleas of the learned ASG, Shri [ENTITY] are as follows:-
(a) [ENTITY]'s case (supra) clearly laid down that statutory petitions under [SECTION] do not require any reasons to be recorded by the confirmation authority while disposing of the confirmation petition.
(b) In this context, reliance has been placed by the learned ASG Shri [ENTITY] upon the judgment of the Hon'ble Supreme Court in Union of India v. [ENTITY] . That in cases of special enactments all the principles of natural justice cannot apply and this analogy has been made applicable to the statutory petitions under [SECTION] of the [ACT]. The Hon'ble Supreme Court in the paragraphs 7 & 8 of the [ENTITY]'s case (supra) held as follows:-
7. From the above discussion it emerges that in cases of special enactments like [ACT], all the principles of natural justice cannot be imported. The same ratio applies to a petition under [SECTION] of the Act also. We may also point out here that [SECTION] consisting of [SECTION] of the [ACT] deals with petitions filed under [SECTION] of the Act. Even in them there is nothing to indicate that the hearing has to be given before disposal of a petition.
8. As noted above, under [SECTION] the respondent is only entitled to file a petition but the disposal of such a petition does not attract principle of natural justice. The respondents has been tried by observing the due process of the Law and the verdict of the Security Force Court was confirmed and it only a post confirmation petition that was filed under [SECTION] of the Act and the authority which disposed of the same is not a court and every order passed administratively cannot be subjected to the rigours of principles of natural justice.
(c) It has also been contended by the respondents that while there was an amendment to the [ACT] in respect reasons required to be recorded in support of a court martial, in so far as [ACT] is concerned there was no such corresponding amendment in [SECTION] which related to Special Security Force Court under [SECTION].
19. In our view [ENTITY]'s decision (supra) only related to the plea of natural justice in respect of a hearing to be given under [SECTION] of the Act while disposing of an appeal. Such reasoning is not ipso facto applicable when it comes to recording of reasons.
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20. We are of the view that [ENTITY]'s case (supra) was postulated on the premise discernible from paragraph 46 of the judgment which was to the effect that the reasons were not required to be given to the post confirmation petition under [SECTION] as there was no statutory requirement of giving reasons in support of the findings of the court martial or at the stage of pre-confirmation based upon an analysis inter alia of existing [SECTION]. Since the amendment of the [SECTION] in the year 1993 has already put in the requirement of giving reasons in support of the findings of court martial, the position of law laid down in [ENTITY]'s case in so far as it held that reasons in support of orders under [SECTION] of the [ACT] were not required to be given no longer holds the field. The other position of law laid down in [ENTITY]'s case (supra) was discernible from the paragraph 39 which clearly held that except to the extent where the requirement to record reasons was dispensed with expressly or by necessary implication, the administrative authority exercising quasi or non-quasi judicial function was required to record reasons. In our view even [ENTITY]'s case (supra) required the recording of reasons by administrative authority exercising quasi or non-quasi judicial function except when the requirement to record reasons was dispensed with expressly or by necessary implication. In the aforesaid [ENTITY]'s case (supra) the [ACT] Bench of the Hon'ble Supreme Court held that the said requirement was necessarily excluded by implication by virtue inter alia of the then existing [SECTION] of the Army Rules. Since [SECTION] has been since amended and recording of reasons have been expressly included therein, the reasoning contained in paragraph 39 of the [ENTITY]'s case (supra) to the following effect comes into play:-
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.
Since in the amended Army [SECTION] the requirement of recording reasons in support of a Court Martial verdict has now been statutorily incorporated, the principles laid down in [ENTITY]'s judgment far from supporting the plea of the learned Addl. Solicitor General Shri [ENTITY], in fact supports the plea of the petitioners about the requirement of recording reasons in support of a decision under [SECTION] of the [ACT].
21. The Hon'ble Supreme Court noted while observing about the general Court Martial that the findings and sentence of a Court Martial under the then existing [ACT] did not require the recording of reasons as evident from the Act and the Rules. Keeping the above position of law which permitted the Court Martial Finding to be without recording of reasons in view of the pre-amendment [SECTION], the Hon'ble Supreme Court observed that the consideration of reasons which applied while awarding the sentence of Court Martial are equally applicable in the case of proceedings of confirmation under [SECTION] of the [ACT]. It was thus observed that since reasons were not required to be recorded at the stage of recording of findings and the confirmation of the finding, they were not required to be recorded at the state Page 337 of post confirmation petition under [SECTION] of the Act. In our view since [SECTION] has since been amended in 1992 after the judgment in [ENTITY]'s case (supra) the entire foundation of the aforesaid judgment in [ENTITY]'s case based on unamended [SECTION] in our view cannot now be held applicable in Court Martial proceedings which arose from the amended [SECTION] which requires the recording of reasons. Since Court Martials after the amendment of Army [SECTION] are required to record reasons, the rationale or the reasons of [ENTITY]'s case can no longer be said to apply to the situation emerging pursuant to the amended [SECTION] requiring recording reasons. Accordingly, in our view in confirmation petitions pursuant to court martials which subsequent to the amendment in [SECTION] are required to record reasons for their decision, the post confirmation petition disposal is required to be with reasons. Indeed we find that the observations in paragraph 39 of [ENTITY]'s case clearly indicate that except where the requirement of recording the reasons has been dispensed with by necessary implications, an administrative authority exercising judicial or quasi-judicial evidence is required to record the reasons for its decision. We are also respectfully bound by the view taken by the Division Bench of this Court in [ENTITY]'s case (supra) in paragraph 29 of the judgment wherein it was clearly stated that unless reasons are assigned, the High Court under [SECTION] or the Supreme Court under [SECTION] would not be able to find out as to whether any illegality, irrationality or procedural impropriety has been committed. In [ENTITY]'s case (supra) it was thus held that this Court would thus be required to undergo a stressful exercise of going through the entire records and arriving at a decision that there were sufficient evidence to uphold the decision of conviction and sentence and in such a situation, the very purpose of having a limited power of judicial review may in a large number of cases be lost. We are not only in respectful agreement with the aforesaid view of the Division Bench but we are indeed bound by it. Even [ENTITY] smith, [ENTITY] and [ENTITY] in [PRECEDENT], has clearly held that giving of reasons is widely regarded as the principle of good administration and leads to consistence in decision making as well as exclusion of extraneous considerations. It has also been observed that giving of reasons may protect the body from unjustified challenges because those adversely affected are more likely to accept the decision if the reasons for the decision were known. [ENTITY] has also noted that requirement of recording the reasons is particularly important where decisions are subject to right of appeal on a question of law.
22. We follow the position of law as stated in [ENTITY]'s case (supra) that while examining the challenge to conviction recorded in the Court Martial and its conformation, the reasons recorded therein would furnish valuable aid and save time of the High Court in its exercise of writ jurisdiction under [SECTION] of the [ACT].
23. In [ENTITY]'s case, it has been concluded while referring to the proceedings under [SECTION], the Court constituted under the [ACT] is to assign reasons, correctness whereof can be judged by the Court exercising the power of judicial review. Consequently, since the Court Martial proceedings are required to record reasons and a post confirmation order is amenable to Page 338 challenge under [SECTION] of the [ACT], an effective and meaningful exercise of power of judicial review would only be available where reasons for disposal of the post confirmation petition are recorded.
24. Mr. [ENTITY], relied on the judgment of Hon'ble Supreme Court in [ENTITY]'s case (supra) to contend that in case of special enactments, principles of natural justice cannot apply and this analogy has been made applicable to the statutory petitions under [SECTION] of the [ACT]. In our view, the aforesaid observations were made in respect of [SECTION] of the [ACT] in the context of a hearing required to be given before disposal of a petition for confirmation of a Court Martial and the non-application of principles of natural justice was indicated in a context of hearing sought by the petitioner in [ENTITY]'s case before the disposal of his petition under [SECTION] of the [ACT]. In our view, the aforesaid observations regarding principles of natural justice in the context of hearing in respect of post confirmation cannot ipso facto be made applicable to the requirement of recording reasons. Even though the interpretation of [ENTITY]'s case (supra) as suggested by the learned ASG in a possible one, we are bound by the decision of the larger [ACT] Bench of the Hon'ble Supreme Court in [ENTITY]'s case (supra) as extracted in paragraph 39 above.
25. It was then submitted by the learned Solicitor General that while there was an amendment to the Rules under the [ACT] in respect of which reasons are required to be recorded in support of Court Martial, in so far as [ACT] there was no amendment to [SECTION] which resulted to a constitution of a Special Security Force Court similar to Court Martial under [SECTION]. In our view, the aforesaid plea cannot be sustained because it was the respondent themselves who relied upon the principles enshrined in [ENTITY]'s judgment (supra) and the analogy of the [ACT] with the [ACT]. The respondents have themselves contended that reasons are not required to be recorded for an order passed by the confirming authority as well as in the order in the post-confirmation petition in respect of an Army Personnel challenging such court Martial verdicts and the same analogy of the [ACT] applies to the Border Security Force as the provisions are pari materia. The respondent therefore cannot be now permitted to urge that there is difference between the principles applicable to the [ACT] and the principles applicable [ACT]. If the Army which is premier military force of the country is required to record reasons for disposal of the appeal under [SECTION] of the [ACT], it would be extremely incongruous that a paramilitary force like [ACT] could be heard to say that they are not required Page 339 to record reasons. The principles laid down in [ENTITY]'s case were general in nature applicable both to the [ACT] and the [ACT] and the mere fact that an amendment in the [SECTION] has not been effected cannot rule out the applicability of the principles laid down in paragraph 39 of [ENTITY]'s case which stated the desirability of recording of reasons but for its exclusion statutorily or by necessary implication. Besides [ENTITY]'s case (supra) rendered by a Division Bench of this Court dealt with [ACT] and clearly concluded the desirability of recording the reasons. In so far as judgment in [ENTITY]'s case (supra) is concerned which also arose from the unamended provisions of the [ACT] made there under and cannot be made applicable to the present case.
26. In an appeal arising from an order passed under [SECTION] [ACT], Hon'ble Mr. Justice [ENTITY] speaking for the Supreme Court in [PRECEDENT] held as under:-
Even in respect of administrative order Lord [ENTITY] In [PRECEDENT] observed 'The giving of reasons is one of the fundamentals of good administration' . In [PRECEDENT], 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] of the [ACT] 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) [PRECEDENT] 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 Page 340 court to keep the tribunal within bounds. A reasoned order is a desirable condition of judicial disposal.' .
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 [PRECEDENT], 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 [PRECEDENT] 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 Page 341 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 [SECTION]. A judgment which does not disclose the reasons will be of little assistance to the Court.
(e) In Siemens Engineering & Manufacturing Co. of India Limited case the 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 [ENTITY]'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 [ENTITY]'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 [ENTITY]'s case in [CASE NUMBER] which clearly laid down the position of law in respect of the disposal of an appeal by the Director General of the [ACT]. 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 [CASE NUMBER] filed by the Union of India was dismissed on 4th January, 2005. Thus the above judgment has become final and binding on this Court.
29. In view of the above position of law found by this Court which indicates the necessity of recording reasons, the pleas of the petitioner's succeed to the above extent. Accordingly all these writ petitions will be remanded to the appellate authority under [SECTION] of the [ACT] for the disposal of the appeal by a reasoned speaking order. There are certain other cases which were clubbed along with the present judgment which dealt with the orders passed by the CRPF in respect of a departmental enquiry leading to an appeal Page 342 to an appellate authority. The following matters will be dealt with separately and are listed for directions on 2nd February, 2006:-
The following other cases, i.e., where show cause notice was issued but there was no trial by court martial, shall be dealt with separately and are listed for directions on 10th February, 2006:-
The writ petition No. 1682 of 1997 entitled '[PRECEDENT]' and the writ petition No. 4081/1997 entitled 'Ex.[PRECEDENT]' have been wrongly clubbed with the present batch of matters and shall be listed for directions on 25th January, 2006.
30. The writ petitions thus stand disposed of in terms of the position of law laid down in this judgment.