1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.8254 of 2011 Vel Teacher Training Institute (D.T.ED)., 7/4, Jawahar Nagar, New Dharapuram Road, Palani-624 601, Dindigul District, rep by its Chairman, Thiru P.Sampath ... Petitioner Vs. National Council for Teacher Education, Southern Regional Committee, I-Floor, CSD Buildings, HMT Post, Bangalore 560 031. rep. By its Regional Director. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records relating to the impugned order passed by the respondent in his proceedings ref.F.No.APSO8199/ D.T.Ed/ TN/ 2011/ 29195 dated 27.06.2011 received by the petitioner on 06.07.2011 and quash the same as illegal. For Petitioner : Mr.M.Ajmal Khan For respondents : Mr.Sivaji O R D E R Being aggrieved by the order dated 27.06.2011 of the National Council for Teacher Education, Southern Regional Committee, deciding to withdraw the recognition for D.T.Ed Course run by Vel Teacher Training Institute, Dindigul District, Tamil Nadu, with effect from 2012-2013 with a further direction to the Institution that it is debarred from making any admission, subsequent to the date of issuance of impugned order, the petitioner-Institution has come forward with the present writ petition. 2.The impugned order also reads that recognition accorded to Vel Teacher Training Institute, No.7/4, Jawahar Nagar, New Dharapuram Road, Palani-624 601, Dindigul District, TamilNadu vide order No.F.SRO/NCTE/D.T.ED/2007-2008/18429 dated 28.02.2008 for D.T.Ed course of two years duration, with an intake of 50 students is withdrawn. 3.According to the petitioner, Vel Charitable Trust was formed in the year 2006 by a group of philanthropists with an object of establishing various educational institutions among other activities. The trust was formed with a noble object of uplifting the under-privileged living in and around the rural areas of Palani Taluk, Dindigul District. Recognition was granted by the National Council for Teacher Education, Southern Regional Committee, rep. By its Regional Director on 28.02.2008 for conducting D.T.Ed course of two years duration with an annual intake of 50 students subject to certain conditions. According to the petitioner, the conditions stipulated in the order of recognition has been fulfilled and that the institution, has been running strictly in conformity with the regulations https://hcservices.ecourts.gov.in/hcservices/ 2 of the National Council for Teacher Education. The petitioner, has applied to the respondent for inspection of a new building constructed, along with the recognition fee of Rs.40,000/- vide application dated 14.02.2011. Based on the inspection made on 08.02.2011, a show-cause notice was issued to the petitioner on 12.04.2011 alleging certain deficiencies. In response to the same, an explanation dated 09.05.2011 was submitted. It is the grievance of the petitioner that without considering the explanation in proper perspective, by a cryptic and non-speaking order, the respondent has chosen to withdraw recognition by the impugned order dated 27.06.2011. 4.It is further case of the petitioner that the last date for admitting the students for the current academic year 2011-2012 in 31.07.2011 and hardly five days are left. In such circumstances, the learned counsel for the petitioner submitted that even though an appeal remedy is provided under Sec.18 of the NCTE Act, 1993, in view of the urgency and since there is no provision for filing a stay application before the Appellate Authority, the petitioner is constrained to invoke the extraordinary jurisdiction of this Court. Considering the infirmities manifested in the impugned order is that, no reasons have been assigned for withdrawing the recognition of the institution, the non-consideration of the explanation in proper perspective and also of the fact that the last date of admission of students for the current academic year 2011-2012 has to be finalised on or before 31.07.2011, this court felt there is a real urgency and directed the learned counsel for the petitioner to take steps to serve notice on the counsel for the respondent i.e National Council for Teacher Education, Southern Regional Committee. On receipt of notice, learned counsel for the respondent/ National Council for Teacher Education, Southern Regional Committee has made a preliminary objection as to the maintainability of the writ petition, stating that when an appeal is maintainable under Section 18 of the NCTE Act, 1993, the court should refer the writ petition. The aforesaid objection is referred for the reason that while the remedy available is efficacious and exercise of the power under Article 226 is required under urgent circumstances, the self imposed restraint cannot be put against the petitioner. In the case on hand, the petitioner institution has been served with the impugned order on 06.07.2011. Further, the contention of the learned counsel for the petitioner that there is no provision for filing a stay application before the appellate authority, is not refuted. Useful reference can be made to the decision reported in In Whirpool Corpn. v. Registrar of Trade Marks reported in 1998 (8) SCC 1, the Supreme Court, held that, "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself https://hcservices.ecourts.gov.in/hcservices/ 3 certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “Tribunal”. In Ram and Shyam Co. v. State of Haryana reported in AIR 1985 SC 1147 = 1985 (3) SCC 267, the Supreme Court held that, "Ordinarily, it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226, where the party invoking the jurisdiction had an effective, adequate, alternative remedy. More often, it is has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate, it does not oust the jurisdiction of the Court.". 5.Even assuming that there is an inherent power on appellate authority to get stay, considering the paucity of time, it cannot be possible for the petitioner to approach the appellate authority at New Delhi for getting necessary interim orders for stay or for admitting the students. 6.The contention of the learned counsel for the respondent is that the deficiencies noticed in the impugned order have not been complied with. In the absence of assigning any valid reasons, in the impugned order, an oral submission, cannot be entertained. Even assuming that the writ petitioner filed to comply with the defects notices, unless the same is reflected in the impugned order, the same cannot be supported in the form of counter affidavit. Useful reference can be made in the decision of this Court in Mohinder Singh Gill v. Chief Election Commr., reported in 1978 (1) SCC 405, and at Paragraph 8, the Apex Court held as follows: https://hcservices.ecourts.gov.in/hcservices/ 4 "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr., of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16: "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by pubklic authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."" 30. The above position of law has been restated in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai reported in 2005 (7) SCC 627, and at Paragraph 24 of the judgment, the Supreme Court held as follows: "When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records." 7.The impugned order is bereft of any details. It is cryptic and non-speaking. The aforesaid order is bad to law, in view of the decision of the Honourable Supreme Court made in (Kranti Associates Private Limited and another vs Masood Ahamed Khan and Others) reported in (2010) 9 Supreme Court Cases 496. Considering a catena of decisions, extracted hereunder 12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognised a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak v. Union of India1. 13. In Keshav Mills Co. Ltd. v. Union of India2 this Court approvingly referred to the opinion of Lord Denning in R. v. Gaming Board for Great Britain, ex p Benaim3 and quoted him as saying “that heresy was scotched in Ridge v. Baldwin4”. https://hcservices.ecourts.gov.in/hcservices/ 5 14. The expression “speaking order” was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of the writ of certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See pp. 1878-97, Vol. 4, Appeal Cases 30 at 40 of the Report). 15. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the “inscrutable face of a sphinx”. 16. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala5, the question of recording reasons came up for consideration in the context of a refusal by Harinagar to transfer, without giving reasons, shares held by Shyam Sunder. Challenging such refusal, the transferee moved the High Court contending, inter alia, that the refusal is mala fide, arbitrary and capricious. The High Court rejected such pleas and the transferee was asked to file a suit. The transferee filed an appeal to the Central Government under Section 111(3) of the Companies Act, 1956 which was dismissed. Thereafter, the son of the original transferee filed another application for transfer of his shares which was similarly refused by the Company. On appeal, the Central Government quashed the resolution passed by the Company and directed the Company to register the transfer. However, in passing the said order, the Government did not give any reason. The Company challenged the said decision before this Court. 17. The other question which arose in Harinagar5 was whether the Central Government, in passing the appellate order acted as a tribunal and is amenable to Article 136 jurisdiction of this Court. 18. Even though in Harinagar5 the decision was administrative, this Court insisted on the requirement of recording reason and further held that in exercising appellate powers, the Central Government acted as a tribunal in exercising judicial powers of the State and such exercise is subject to Article 136 jurisdiction of this Court. Such powers, this Court held, cannot be effectively exercised if reasons are not given by the Central Government in support of the order (AIR pp. 1678-79, para 23). 19. Again in Bhagat Raja v. Union of India6 the Constitution Bench of this Court examined the question whether the Central Government was bound to pass a speaking order while dismissing a revision and confirming the order of the State Government in the context of the Mines and Minerals (Development and Regulation) Act, 1957, and having regard to the provision of Rule 55 of the Mineral Concession Rules. The Constitution Bench held that in exercising its power of revision under the aforesaid Rule the Central Government acts in a quasi-judicial capacity (see AIR p. 1610, para 8). Where the State Government gives a number of https://hcservices.ecourts.gov.in/hcservices/ 6 reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying any reason, this Court, exercising its jurisdiction under Article 136, may find it difficult to ascertain which are the grounds on which the Central Government upheld the order of the State Government (see AIR p. 1610, para 9). Therefore, this Court insisted on reasons being given for the order. 20. In Mahabir Prasad Santosh Kumar v. State of U.P.7, while dealing with the U.P. Sugar Dealers' Licensing Order under which the licence was cancelled, this Court held that such an order of cancellation is quasi-judicial and must be a speaking one. This Court further held that merely giving an opportunity of hearing is not enough and further pointed out where the order is subject to appeal, the necessity to record reason is even greater. The learned Judges held that the recording of reasons in support of a decision on a disputed claim ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant law and that the decision was just. (See SCC p. 768, para 7 : AIR p. 1304, para 7.) 21. In Travancore Rayon Ltd. v. Union of India8, the Court, dealing with the revisional jurisdiction of the Central Government under the then Section 36 of the Central Excises and Salt Act, 1944, held that the Central Government was actually exercising judicial power of the State and in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (see SCC p. 874, para 11 : AIR pp. 865-66, para 11). 22. In Woolcombers of India Ltd. v. Workers Union9 this Court while considering an award under Section 11 of the Industrial Disputes Act insisted on the need of giving reasons in support of conclusions in the award. The Court held that the very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. The second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The learned Judges said that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the decision is right or wrong (see SCC pp. 320-21, para 5 : AIR p. 2761, para 5). 23. In Union of India v. Mohan Lal Capoor10 this Court while dealing with the question of selection under the Indian https://hcservices.ecourts.gov.in/hcservices/ 7 Administrative Service/Indian Police Service (Appointment by Promotion) Regulations held that the expression “reasons for the proposed supersession” should not be mere rubber-stamp reasons. Such reasons must disclose how mind was applied to the subject- matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two (see SCC pp. 853-54, paras 27-28 : AIR pp. 97-98, paras 27- 28). 24. In Siemens Engg. and Mfg. Co. of India Ltd. v. Union of India11 this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The learned Judges emphatically said that every quasi-judicial order must be supported by reasons. The rule requiring reasons in support of a quasi-judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law (see SCC p. 986, para 6 : AIR p. 1789, para 6). 25. In Maneka Gandhi v. Union of India12 which is a decision of great jurisprudential significance in our constitutional law, Beg, C.J. in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (SCC p. 311, para 34 : AIR p. 612, para 34). The learned Chief Justice also held, when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision. 26. Y.V. Chandrachud, J. (as His Lordship then was) in a concurring but a separate opinion in Maneka Gandhi12 also held that refusal to disclose reasons for impounding a passport is an exercise of an exceptional nature and is to be done very sparingly and only when it is fully justified by the exigencies of an uncommon situation. The learned Judge further held that law cannot permit any exercise of power by an executive to keep the reasons undisclosed if the only motive for doing so is to keep the reasons away from judicial scrutiny. (See SCC p. 317, para 39 : AIR p. 613, para 39.) 27. In Rama Varma Bharathan Thampuram v. State of Kerala13 V.R. Krishna Iyer, J. speaking for a three-Judge Bench held that the functioning of the Board was quasi-judicial in character. One of the attributes of quasi-judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. The learned Judge held that natural justice requires reasons to be written for the conclusions made (see SCC p. 788, para 14 : AIR p. 1922, https://hcservices.ecourts.gov.in/hcservices/ 8 para 14). 28. In Gurdial Singh Fijji v. State of Punjab14 this Court, dealing with a service matter, relying on the ratio in Capoor10, held that “rubber-stamp reason” is not enough and virtually quoted the observation in Capoor10 to the extent that: (Capoor case10, SCC p. 854, para 28) “28. … Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.” (See AIR p. 377, para 18.) 29. In a Constitution Bench decision of this Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Deptt.15 while giving the majority judgment Y.V. Chandrachud, C.J. referred to (SCC p. 658, para 29) Broom's Legal Maxims (1939 Edn., p. 97) where the principle in Latin runs as follows: “Cessante ratione legis cessat ipsa lex.” 30. The English version of the said principle given by the Chief Justice is that: (H.H. Shri Swamiji case15, SCC p. 658, para 29) “29. … ‘reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself’.” (See AIR p. 11, para 29.) 31. In Bombay Oil Industries (P) Ltd. v. Union of India16 this Court held that while disposing of applications under the Monopolies and Restrictive Trade Practices Act the duty of the Government is to give reasons for its order. This Court made it very clear that the faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well-considered orders. In saying so, this Court relied on its previous decisions in Capoor10 and Siemens Engg.11 discussed above. 32. In Ram Chander v. Union of India17 this Court was dealing with the appellate provisions under the Railway Servants (Discipline and Appeal) Rules, 1968 condemned the mechanical way of dismissal of appeal in the context of requirement of Rule 22 (2) of the aforesaid Rules. This Court held that the word “consider” occurring in Rule 22(2) must mean that the Railway Board shall duly apply its mind and give reasons for its decision. The learned Judges held that the duty to give reason is an incident of the judicial process and emphasised that in discharging quasi-judicial functions the appellate authority must act in accordance with natural justice and give reasons for its decision (SCC pp. 106-07, para 4 : AIR p. 1176, para 4). 33. In Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd.18 a three-Judge Bench of this Court held that in the present day set-up judicial review of https://hcservices.ecourts.gov.in/hcservices/ 9 administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various fields of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. This Court held that disclosure of reasons in matters of such rejection provides an opportunity for an objective review both by superior administrative heads and for judicial process and opined that such reasons should be communicated unless there are specific justifications for not doing so (see SCC pp. 284- 85, para 10). 34. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi19 this Court held that even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record, should record reasons in support of the conclusion reached (see SCC pp. 738-39, para 22). 35. In M.L. Jaggi