Case: S.N. Mukherjee Vs. Union of India

copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of court martial before the confirmation of the said finding and sentence. Through a person aggrieved by the findings or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is excepted that the confirming authority shall give due consideration to the same while confirming the finding and sentence of court martial 54. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said order 55. Shri Ganguli next contended that the first and the second charge leveled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the first charge cannot be sustained. It is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second charge 56. Shri Ganguli has also urged that the findings recorded by the court martial on the first and third are perverse inasmuch as there is no evidence to establish these charges. We find no substance in this contention 57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse 58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra 59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]35. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Court under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions : and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expendiency whereas an executive officer generally looks at things from the standpoint of policy and expendiencyIn our opinion, therefore, the requirement that reasons can be recorded should govern the decisions of administrative authority exercising quasi-judicial function irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellant or revisional authority agrees with the reasons contained in the order under challengeWhile considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The Committee expressed the opinion that there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise and that where further proceeding are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity. (p. 80) Prof. H. W. R. Wade has also expressed the view that natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary mans sense of justice. (see Wade, Administrative Law, 6th edn. p. 548.)39. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the public interest that the reasons for the order passed by the administrative authority recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Decisions Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactments. Such an exclusion can also arise by necessary implication from nature of the subject matter, the scheme and the provisions of the enactments. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case40. For the reason 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 decisionThis Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts marital and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record44. From the provision referred to above it is evident that the judge- advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge- advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of guilty or of not guilty. It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of finding and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendations to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendations to mercy if the court martial makes such a recommendation46. The provisions mentioned above show that the confirmation of the finding and sentence of the court martial is necessary before the said finding or sentence become operative. In other words the confirmation of the findings and sentence is an integral part of the proceedings of a court martial and before the finding and sentence of a court martial are confirmed the same are examined which is intended as a check on the legality and propriety of the proceedings as well as the findings and sentence of the court martial. Moreover we find that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary court martial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of the proceedings for confirmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while confirming the findings and sentence of a court martial and it must be held that the confirming authority is not required to record reasons while confirming the findings and sentence of the court martial47. 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 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. Insofar 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 departure from the said scheme in respect of post-confirmation proceeding ? 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 the reasons for an order passed on the post-confirmation petition even though reasons are not required to be recorded 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 under Section 164(2) of the Act48. 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 finding 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 are the same conclusion as in Som Datt Datta case (1969 2 SCR 177  : AIR 1969 SC 414  : 1969 Cri LJ 663) the submission of shri Ganguli that the said decision needs reconsideration cannot be accepted and is therefore rejectedWe find considerable force in the aforesaid of learned Additional Solicitor GeneralRule 147 of the Rules also lends support to this view. In the said rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the confirmation of the findings and sentence, when such confirmation is required, and before the proceedings are destroyed to obtain from the officer or person having the custody of the proceeding a copy thereof, including the proceedings upon revision, if any. This rule envisages that the copies of proceedings a court martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of court martial before the confirmation of the said finding and sentence. Through a person aggrieved by the findings or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is excepted that the confirming authority shall give due consideration to the same while confirming the finding and sentence of court martial54. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter-affidavit field on behalf of Union Of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before that passing of the order of confirmation would not vitiate the said orderIt is no doubt true that the allegations contained in the first and second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in court martial having found the appellant guilty of the first charge while holding him not guilty of the second chargeWe find no substance in this contention57. The first charge was that the appellant on or about December 25, 1975, having received 60.61 meters woollen serge from M/s. Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19 pants for Class IV civilian employees of his unit with intent to defraud got 19 altered ordinance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution examined Ram Chander PW 1 and Triloki Nath PW 2 of M/s. Ram Chandra & Brothers, Sardar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December 1975, The evidence of these witnesses is corroborated by B. D. Joshi, Chowkidar, PW 3, who has deposed that in the last week of December 1975, the appellant has told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/Sub. P. Vishwambharam PW 19 who has deposed that he was called by the appellant to his office in the last week of December 1975 or the first week of January 1976 and that on reaching there he found ordnance pattern woollen pants lying by the side of the room wall next to the appellants table and that the appellant had called Mohd. Shariff PW 15 to his office and had asked out 19 woollen trousers out of the lot kept there in the office. After Mohd. Shariff had selected 19 woollen trousers the appellant told Mohd. Shariff to take away these pants for alteration and refitting. The judge-advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, on holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge leveled against the appellant and the findings recorded by the court martial in respect of the said is based on no evidence or is perverse58. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 omitted to initiate action against Capt. Chhabra59. In his summing up before the court martial the judge-advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Ex. CC) raising certain with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs. 16, 280 and pointed out that the said letter was received in the unit officer about November 25 1975 the initials of he appellant with the aforesaid date and remark Q Spk with details. This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain Chhabra thereafter. It cannot, therefore, be said the finding recorded by the court martial on the third charge is based on no evidence and is perverse48. 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 finding 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 are the same conclusion as in Som Datt Datta case (1969 2 SCR 177  : AIR 1969 SC 414  : 1969 Cri LJ 663) the submission of shri Ganguli that the said decision needs reconsideration cannot be accepted and is therefore rejected49. But this 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