IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3308 of 2011 FATIMA KHATOON . Versus THE STATE OF BIHAR & ORS . ----------- 2. 01.03.2011 Heard learned counsel for the petitioner and the State. The petitioner is stated to be the Mukhiya of the Sesamba Gram Panchayat, Block- Ratni Faridpur, District-Jehanabad, unseated by the Principal Secretary, Panchayati Raj in exercise of powers under Section 18(5) of the Bihar Panchayat Raj Act. There were four charges against the petitioner. Charge No. 1, stated that payment was made to one Paritosh Kumar on muster roll under the National Rural Employment Guarantee Scheme showing him present on that date but he was simultaneously present in the school on the relevant date leading to allegations of financial misappropriation. Charge No. 2, stated that a married women, Zarina Khatoon, was shown as a widow and granted widow pension on the recommendation of the petitioner and when the issue was raised he had the benefits availed deposited. Charge No. 3, alleged installation of a 2 Hand Pump on private lands close to the house of one Kamlesh Yadav. The cumulative effect of the aforesaid charges stated that in collusion with the Panchayat Secretary and Engineer, the enquiry report in respect of the above had been fudged and for which a First Information Report had also been lodged. Learned counsel for the petitioner submits that there is no finding on charge no. 1 that Paritosh Kumar was actually present on both locations simultaneously. On the second charge it was submitted that in the show cause at Paragraph- 9, the petitioner had specifically taken the stand that the enquiry of her eligibility to widow pension was conducted by the concerned Government officers and it is on their recommendation that the petitioner endorsed her eligibility leading to payment. No sooner that the error was detected she took step for recovery. On the third charge it is submitted that there is no finding that the Hand Pump was not installed at a public place and there was no finding that the hand pump was installed on private lands. The submission therefore is that the order suffers from non application of mind acting at the dictates of the District Magistrate, abdicating 3 statutory powers. Counsel for the State relies upon a Division Bench decision reported in 2011 (1) PLJR 556 ( Bindeshwar Prasad Vs. The State of Bihar & Ors.) to submit that the writ Court may not interfere with the findings of fact to arrive at a different conclusion on the same set of facts, even if it be possible. There is no quarrel with the broad proposition advanced on behalf of the State. But before application of the doctrine, there had to be a positive discussed and considered finding on charges 1 and 3. The cause shown on charge no. 2 had to be considered and either accepted or rejected. The statutory authority could not act at the dictates and opinion of the District Magistrate sans his own consideration, application of mind, a brief discussion followed by a conclusion. The conclusion of the statutory authority is abrupt, unreasoned, completely without any consideration and application of mind In Commr. of Police v. Gordhandas Bhanji,1952 SCR 135 it has been held at Paragraphs 10, 11 and 13 as follows:- “10. It will be necessary at this stage to determine whether this was a 4 cancellation by the Commissioner on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely, the Government of Bombay. 11. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that 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 public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 13. If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.” Learned counsel for the State next prays for time to file counter affidavit. The Court is satisfied that no useful purpose would be served by the same 5 as an order of an executive authority passed as a public authority in exercise of public power, is required to be reasoned and discussed displaying full application of mind to the issues arising before him. It is not open for him to file a counter affidavit and then furnish explanations to support the order on grounds which may not find any narration in the statutory order. A bad order cannot be made good by a good counter affidavit just as a good order cannot be rendered bad by a counter affidavit. The first charge relates to Shri Paritosh Kumar discharging duties at two places simultaneously leading to allegation of misappropriation. There is no finding on this aspect at all. The defence of the petitioner on the second charge was that the enquiry was done by Government servants of the eligibility of payment subsequently endorsed by the petitioner. There is no finding on this aspect also. Likewise on the third issue there is no finding as to where the Hand Pump has been installed whether on private lands or public lands. If the Secretary, Panchayati Raj sought to rely upon the comments of the District Magistrate on the cause shown by the petitioner, yet, the statutory 6 authority was required to act by independent application of mind displaying due consideration to the charges, the cause shown, the comments of the District Magistrate upon the cause shown followed by a process of discussion and reasoning of what was transpiring in the mind of the Principal Secretary to arrive at a conclusion that he considers proper. That would have lent transparency to his order and facilitated judicial review. The statutory jurisdiction does not vest in the authority power to arrive at an abrupt conclusion, unreasoned at its ipse dixit. The law stands long settled that every statutory power amenable to judicial review has to be reasoned. Reasons have been held to be the link between the allegations, the defence and the conclusion. It leaves the citizen satisfied that his defence was considered but that he was unfortunate that it was not acceptable. Reasons are the very heart and soul of an order and ultimate control on arbitrariness. An order unreasoned confronting the aggrieved with conclusions only is clearly unsustainable in law. The Court at this stage exercising powers of judicial review is primarily concerned with the 7 decision making process rather than the merits of the decision itself. If the decision making process is in consonance with law, the question of interference with the order on merits may or may not arise depending on the former. In Kranti Associates (P) Ltd. v. Masood Ahmed Khan,(2010) 9 SCC 496, at page 503, it has been observed as follows:- 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”. 47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision- maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by 8 administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision- makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor32.) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain33 EHRR, at 562 para 29 and Anya v. University of Oxford34, wherein the Court referred to Article 6 of the 9 European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. The seriousness of the nature of power exercised by the Principal Secretary and its consequences have been noticed at Paragraph-6 of the judgment reported in 2001 SC 2524 (Tarlochan Dev Sharma Vs. State of Punjab & Ors.) :- “ 6. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within S. 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of S.22, on the 10 ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.” This has also been discussed by the Court in C.W.J.C. No. 18905 of 2010 ( Vijay Singh vs. State of Bihar). The seriousness required to exercise this power has been noticed at Paragraph-15 in the case of Tarlochan Dev Sharma (Supra) of the manner in which the Principal Secretary was expected to discharge the statutory powers given to him in trust. “5. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302 : (1995 AIR SCW 3543 : AIR 1995 SC 2390), this Court has held that a statutory authority vested with Jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or 11 instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in the Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal Judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under S. 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under S. 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.” Being fair to the respondents, since they have had no opportunity to file a counter affidavit, whatever may be its worth in the nature of the present discussion, the order dated 7.2.2011 is set aside. 12 The Principal Secretary is now directed to pass a fresh reasoned and speaking order after granting personal hearing to the petitioner as held in C.W.J.C. No. 18905 of 2010 (Vijay Singh Vs. State of Bihar) in light of the issues of law and facts discussed hereinabove. Let such fresh appropriate orders be passed within a maximum period of six weeks from the date of receipt and/or presentation of a copy of this order before the Principal Secretary. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)