1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ex.Havildar Gulia v. Union of India & Ors. Kailash Singh S.B.CIVIL WRIT PETITION NO.3413/1998 under Article 226 of the Constitution of India. Date of Order :: 27th February, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. S.K.Nanda, for the petitioner. Mr. V.K.Mathur, for the respondent. .... BY THE COURT : An order rejecting a petition presented by any person aggrieved with findings or sentence of any Court Martial, which has been confirmed should contain reasons for such rejection or not, is the main issue requires adjudication in this petition for writ. The factual matrix of the case is that the petitioner joined the Indian Army on 18.6.1984 in capacity of a Sepoy in the trade of Clerk (G/D). While 2 serving at Station Headquarters, Bikaner as Combatant in the regular army he was tried by a General Court Martial held from 2.7.1997 to 29.9.1997. The petitioner was subjected to General Court Martial for four charges out of that he was found guilty for two and was sentenced to suffer rigorous imprisonment for three years, to be dismissed from service and to be reduced from the ranks. The findings and sentence given by the General Court Martial stood confirmed by General Officer Commanding, 24 Infantry Division on 8th Day of December, 1997 with a direction to carry out sentence by confinement in civil prison. Being aggrieved with the order passed by the General Court Martial, duly confirmed by the confirming authority, the petitioner preferred a statutory petition as per the provisions of sub- section(2) of Section 164 of the Army Act, 1950 (hereinafter referred to as “the Act of 1950”) read with Rule 210 of the Army Rules, 1954 (hereinafter referred to as “the Rules of 1954”) and para 365 of the Army Regulations. In the petition aforesaid dated 20.1.1998, the petitioner highlighted various infirmities in General Court Martial including over- stepping by the Judge advocate to the powers and duties as given under Rule 105 of the Rules of 1954. The petitioner also asserted that the findings given by the General Court Martial were not supported by any evidence. The statutory petition dated 20.1.1998 came 3 to be rejected by General Officer Commanding, 10 Corps on 19.6.1998 in following terms:- “I agree with the recommendations of the General Officer Commanding, 24 Infantry Division and direct that the petition be rejected.” A challenge is given to the proceedings of the General Court Martial, findings and sentence given by the General Court Martial, confirmation of the findings and sentence, and also to the order dated 19.6.1998 rejecting the statutory petition submitted by the petitioner, on various grounds. It is urged that the order dated 19.6.1998 has been passed without application of mind and as such the said order is just monumental and non-speaking. According to counsel for the petitioner an order rejecting a post confirmation statutory petition must be a self-speaking and reasoned one. It is asserted that a substantive right i.e. of presenting a petition to the competent authority is available to any person subjected to Army Act, who considers himself aggrieved by a finding or sentence of any Court Martial which has been confirmed and such post confirmation statutory petition deserves consideration by the competent authority as per provisions of clause(g) of regulation 365 of the Regulations for Army. According to counsel for the petitioner the consideration of a post confirmation statutory petition must be an objective one and such 4 objectivity can be examined by the reasons given for negativating the contentions raised by the person who has preferred the petition. To substantiate the contention, reliance is placed by counsel for the petitioner upon various judgments including 1986(4) SLR, 791, Lt. Colonel Amal Sankar Bhadury v. Union of India & Ors.; 2006(2) SCT, 1, Hans Raj v. Union of India & Ors.; and Lt. Col. N.K.Ghai v. Union of India & Ors., W.P.(C)3266/2005, dated 20.2.2006. Per contra, it is stated by counsel for the respondents that in view of the authoritative pronouncement of Hon'ble Supreme Court in Shri S.N.Mukherjee v. Union of India, 1990(5) SLR, 8, there is no need to prescribe any reasons by the competent authority while rejecting a post confirmation statutory petition submitted by a person subjected to the Act of 1950. In S.N.Mukherjee's case (supra), Hon'ble Supreme Court held as follows:- “46.With regard to post-confirmation proceedings we find that sub-section(2) of Section 164 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 5 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 is 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 sub-section(2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post- confirmation proceedings which may require recording of reasons for an order passed on the post-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 said, the above requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-confirmation petition under Section 164(2) of the Act. 6 47.For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived at the same conclusion as in Som Datt Datta case (supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is, therefore, rejected. 48.But that is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the court-martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings.” Heard counsel for the parties. In light of Hon'ble Supreme Court's judgment in S.N.Mukherjee's case (supra), on its face, it appears that there was no need to extend reasons while deciding a post confirmation petition as per the provisions of Section 164(2) of the Act of 1950. In 7 the case aforesaid Hon'ble Supreme Court negativated need of giving reasons on the premise that neither sub-section(2) of Section 164 of the Act of 1950 nor any other provision under the Rules of 1954 or the Army Regulations provides for recording reasons for an order passed on post confirmation petition. The Court was of the view that reasons are not required to be recorded even at the stage of confirmation of findings and sentence of the Court Martial by confirming authority, as such that could not be made essential at the subsequent stage. Such position, as a matter of fact, does not exist after an amendment introduced in Rule 62(1) of the Rules of 1954, that reads as follows:- “(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 there 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 judge advocate, if any.” Prior to 6.12.1993, sub-rule(1) of Rule 62 of the Rules of 1954 was worded as under:- 8 “(1)The finding on every charge upon which the accused is arranged shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of “Guilty” or “Not guilty”.” In S.N.Mukherjee's case (supra) Hon'ble Supreme Court was considering a matter relating to a statutory petition that was relating to General Court Martial prior to 6.12.1993. The position as per Regulations of 1965 now existing is that the presiding officer of the General Court Martial should record brief reasons in the proceedings in support to the findings and sentence given. A Division Bench of Delhi High Court in Lt. Col. N.K.Ghai's case (supra), while examining an issue regarding prescribing reasons, while considering a statutory petition under Border Security Force Act, held as follows:- “As we gather from the communication issued, the appellate authority rejected the appeal on the ground that it is devoid of merit. If the disposal of the appeal was in the manner as stated in the said communication, one cannot but hold that the said order of the appellate authority is cryptic and is devoid of reasons. While disposing of an appeal, the appellate authority discharges a statutory function and acts as a quasi judicial authority. Therefore, the appellate authority is required to give due weightage and apply 9 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.” The relevant provisions of the Border Security Force Act are para-materia to the provisions under consideration in instant petition for writ. In Hans Raj's case (supra), a Division Bench of Hon'ble Delhi High Court considered the entire issue relating to prescribing reasons while deciding a post confirmation petition under Section 164(2) of the Act of 1950 and held as under:- “20.We are of the view that S.N.Mukherjee'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 b e given to the post- confirmation petition under Section 164(2) as there was no statutory requirement of giving reasons in support of the findings of confirmation based upon an analysis inter alia of existing Rule 62. Since the amendment of the Rule 62 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 S.N.Mukherjee's case in so far as it held that reasons in support of orders under Section 164(2) of the 10 Army Act were not required to be given no longer holds the field. The other position of law laid down in S.N.Mukherjee'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 S.N.Mukherjee'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 Mukherjee's case (supra) the Constitution 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 Rule 62 of the Army Rules. Since Rule 62 has been since amended and recording of reasons have been expressly included therein, the reasoning contained in paragraph 39 of the S.N.Mukherjee'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. 11 Since in the amended Army Rule 62 the requirement of recording reasons in support of a Court Martial verdict has now been statutorily incorporated, the principles laid down in S.N.Mukherjee's judgment far from supporting the plea of the learned Addl. Solicitor General Shri P.P.Malhotra, in fact supports the plea of the petitioners; about the requirement of recording reasons in support of a decision under Section 117 (2) of the BSF 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 Army 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 Rule 62, 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 164 (2) of the Army 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 (stage?) of post-confirmation petition under Section 164(2) of the Act. In our view since Rule 62 has since been amended in 1992 after the judgment in S.N.Mukherjee's case (supra) the entire foundation of the aforesaid judgment in S.N.Mukherjee's case 12 based on unamended Rule 62 in our view cannot now be held applicable in Court Martial proceedings which arose from the amended Rule 62 which requires the recording of reasons. Since Court Martials after the amendment of Army Rule 62 are required to record reasons, the rationale or the reasons of S.N.Mukherjee's case can no longer be said to apply to the situation emerging pursuant to the amended Rule 62 requiring recording of reasons. Accordingly, in our view in confirmation petitions pursuant to court martials which subsequent to the amendment in Rule 62 are required to record reasons for their decision, the post-confirmation petition disposal is required to be with reasons.” The need of giving reasons by judicial and quasi judicial authorities is also emphasised by Hon'ble Supreme court in Cyril Lasrado (Dead) by LRs. & Ors. v. Juliana Maria Lasrado & Anr., reported in (2004)7 SCC 431, by observing as follows:- “12.Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed : (All ER p. 1154h) “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree 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 13 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 the sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.” Need not to say that consideration of a post- confirmation statutory petition as per provisions of Section 164(2) of the Act of 1950 is a quasi judicial function. In the case in hand the statutory petition of petitioner was decided by the authority concerned by merely noting his agreement with the recommendations of General Officer Commanding, 24 Infantry Division. He has not supplied any reason for such agreement, that was essential in view of the legal position discussed above. Accordingly the order dated 19.6.1998 rejecting the post-confirmation petition submitted by the petitioner as per provisions of Section 164(2) of 14 the Act of 1950 is bad. Counsel for the petitioner also pressed in service certain other arguments alleging over stepping of powers by the judge advocate and also that the findings given by General Court Martial are not based on any evidence, however, as I am inclined to remand the matter to competent authority to decide post-confirmation petition as per provisions of Section 164(2) of the Act of 1950, I am not entering into all these questions. All these questions, as a matter of fact, deserve consideration at the time of examination of the petition under Section 164(2) of the Act of 1950. Accordingly, this petition for writ is allowed. The order dated 19.6.1998 passed by General Officer Commanding, 10 Corps, is hereby quashed. The authority competent to consider a petition as per Section 164(2) of the Act of 1950 is directed to consider the statutory post-confirmation petition submitted by the petitioner afresh in accordance with law. If any grievance survives after decision of the statutory petition aforesaid, the petitioner shall be at liberty to challenge the same by availing appropriate remedy with all available grounds including the grounds taken in present petition for writ. Cost is made easy. ( GOVIND MATHUR ),J. kkm/ps.