# S.N. MUKHERJEE v. U.0.1

- **Citation:** [1990] Supp. 1 S.C.R. 44
- **Court:** Supreme Court of India
- **Decided:** 1990
- **Case number:** Civil Appeal No. 417 of 1984
- **Bench:** Sabyasachi Mukharji, M.i-1. KANIA, K. JAGANNATHA Si-IETfY, K.N. Saikia, Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-n-mukherjee-v-u-0-1-11027
- **Pages:** 32

## Headnote

Army Act 1950: Seciion 164--Court-Martial.:_Post confirmation peiitioii-Centrd/ Government-Whether bound to give reasons.
the Apjjeliant was ofridaiing as a Major ihoiigh lie held a substantive raiik of Captain as a permanent Commissioned Officer of the
army when on December 27, 1974 he took over as the Officer Commanding 38 Coy. A.S.C. (Sup) Type 'A' attached to the Military Hospitai, Jhansi. In AU!lllst, 1975 the Appellant went to attend a training
b coutse and returned in the first week of November, 1975. In his absence
Captain G;t. Chhabra was commanding the unit of the appellant and
he submitted a Contingent Bill dated September 25, 1975 for Rs.16,280
for winter liveries of the depot civilian chowkidars and sweepers. The
said Bill was returned by the Controller of Defence Accounts (CDA)
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with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum ofRs.7,029.57. In view
of the wide difference in the two Contingent Bills, the CDA reported the
itiatter to tlie Headquarters for investigation and a Court· Enquiry
blamed the appellant for certain lapses.
After. considering the said report of the Court of Enquiry the
Generai Officer Comniandlng, M.P., Bihar and Orissa recommended
that 'severe ilispleasute' (to be recorded) of the General Officer Commanding-iii-thief of the Central Command be awarded to the appelHinL The Gimetal Officer Commanding-in-Chief Central Command,
however, did riot agree wiih the said opinion and by order dated August
26, 1977 directed that dlsclpliilary action be taken against the appellant
for the iapses.
Purstiaill to the said order a charge sheet dated July 20, 1978
containliig iliree charges was served on the appellant and it was
directed iha! he be fried by General Court Martiai. The first charge
was; iioirig of a ihing with inient to defraud tinder section 52(f) of the
H Aci. the second chai-ge was aitHnative ib the firsi charge i.e. commit44
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S.N. MUKHERJEE v. U.0.1.
45
· ting an act prejudicial to good order and military discipline under
section 63 of the Act and the third charge was also in respeet of offence
under section 63 of the Act.
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A
The appellant pleaded not quilty to the charges. The General
Court Martial on November 29, 1978 found him guilty of first and third
charge and awarded the sentence of dismissal from service. thereupon B
the appellant submitted petition dated December 18, 1978 to .the Chief
of Army Staff praying that the findings of the General Court Martial be
not confirmed. The Chief of the Army Staff by his order dated May II,
1979 confirmed the findings and sentence of the General Court Martial.
The appellant thereafter submitted a post-confirmation petition under
section 164(2) of the Act. This was rejected by the Central Government
by order dated May 6, 1980. Thereupon the appellant filed a writ
C
petition In the High Court of Delhi which was dismissed in limine.
Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it
was incumbent for the Chief of the Army Staff, while confirming the
findings and sentence of the General Court Martial and for the Central
D
Government while rejecting the post-confirmation petition of the appellant to record their reasons for the orders passed by them.
Dismissing the appeal, this Court,
HELD: The requirement that reasons be recorded shonld govern
E
ilie decisions of an administrative authority exercising quasi-judicial
fu,1ctiolls irrespective of the fact whether the decision is subject to
appeal, revision or judicial review. It may, however, he added that it is
not required that the reasons should he as elaborate as in the decision of
a Court of law. The extent and nature of the reasons would depend on
particular fads and circumstances. What is necessary is that the
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reasons are door and explicit so as to indicate that the authority has
given due consideration to the points in cont

## Text

_Characters 0–39,988 of 81,809. This is a partial read: ask again with offset=39988 for what follows._

A
S.N. MUKHERJEE
i1.
UNION bi' iNbiA
AUGUST 28. 199ti
[SABYASACHI MUKHARJI, CJ., M.i-1. KANIA,
K. JAGANNATHA Si-IETfY, K.N. SAIKIA AND
S.t, AGRAWAL, JJ.)
Army Act 1950: Seciion 164--Court-Martial.:_Post confirmation peiitioii-Centrd/ Government-Whether bound to give reasons.
the Apjjeliant was ofridaiing as a Major ihoiigh lie held a substantive raiik of Captain as a permanent Commissioned Officer of the
army when on December 27, 1974 he took over as the Officer Commanding 38 Coy. A.S.C. (Sup) Type 'A' attached to the Military Hospitai, Jhansi. In AU!lllst, 1975 the Appellant went to attend a training
b coutse and returned in the first week of November, 1975. In his absence
Captain G;t. Chhabra was commanding the unit of the appellant and
he submitted a Contingent Bill dated September 25, 1975 for Rs.16,280
for winter liveries of the depot civilian chowkidars and sweepers. The
said Bill was returned by the Controller of Defence Accounts (CDA)
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with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum ofRs.7,029.57. In view
of the wide difference in the two Contingent Bills, the CDA reported the
itiatter to tlie Headquarters for investigation and a Court· Enquiry
blamed the appellant for certain lapses.
After. considering the said report of the Court of Enquiry the
Generai Officer Comniandlng, M.P., Bihar and Orissa recommended
that 'severe ilispleasute' (to be recorded) of the General Officer Commanding-iii-thief of the Central Command be awarded to the appelHinL The Gimetal Officer Commanding-in-Chief Central Command,
however, did riot agree wiih the said opinion and by order dated August
26, 1977 directed that dlsclpliilary action be taken against the appellant
for the iapses.
Purstiaill to the said order a charge sheet dated July 20, 1978
containliig iliree charges was served on the appellant and it was
directed iha! he be fried by General Court Martiai. The first charge
was; iioirig of a ihing with inient to defraud tinder section 52(f) of the
H Aci. the second chai-ge was aitHnative ib the firsi charge i.e. commit44
'
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S.N. MUKHERJEE v. U.0.1.
45
· ting an act prejudicial to good order and military discipline under
section 63 of the Act and the third charge was also in respeet of offence
under section 63 of the Act.
~-
A
The appellant pleaded not quilty to the charges. The General
Court Martial on November 29, 1978 found him guilty of first and third
charge and awarded the sentence of dismissal from service. thereupon B
the appellant submitted petition dated December 18, 1978 to .the Chief
of Army Staff praying that the findings of the General Court Martial be
not confirmed. The Chief of the Army Staff by his order dated May II,
1979 confirmed the findings and sentence of the General Court Martial.
The appellant thereafter submitted a post-confirmation petition under
section 164(2) of the Act. This was rejected by the Central Government
by order dated May 6, 1980. Thereupon the appellant filed a writ
C
petition In the High Court of Delhi which was dismissed in limine.
Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it
was incumbent for the Chief of the Army Staff, while confirming the
findings and sentence of the General Court Martial and for the Central
D
Government while rejecting the post-confirmation petition of the appellant to record their reasons for the orders passed by them.
Dismissing the appeal, this Court,
HELD: The requirement that reasons be recorded shonld govern
E
ilie decisions of an administrative authority exercising quasi-judicial
fu,1ctiolls irrespective of the fact whether the decision is subject to
appeal, revision or judicial review. It may, however, he added that it is
not required that the reasons should he as elaborate as in the decision of
a Court of law. The extent and nature of the reasons would depend on
particular fads and circumstances. What is necessary is that the
j:i
reasons are door and explicit so as to indicate that the authority has
given due consideration to the points in controversy. [62fl; 63A-B)
The n·eed 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
(j
appellate or revisional authority agrees with the reasons contained in
the order under challenge: [638]
Except in cases where the requirement has been dispensed with
expressly or by necessary implicatiOn, an administrative authority exer"
cising judicial or quasi-judicial functions is required to record the
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reasons fof its decision. :[ 658 j
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SUPREME COURT REPORTS
[ 1990] Supp. I S.C.R.
The provisions contained in the Army Act, 1950 .and the Army
Rules, 1954 negative a requirement to give reasons for its findings and
sentence by a Court Martial and reasons are not required to be
recorded in cases where the Court Martial makes a recommendation to
mercy. Similarly, reasons are not required to be recorded for an order
· passed by the confirming authority confirming the findings and sentence recorded by th_e Court Martial as well as for the order passed by
the Central Government dism~ing the post-confirmation petition. [70E-FJ
Suh-section (I) of section 164 of the Army Act enables a person
aggrieved. by an order passed by a Court Martial to present a petition
against the same. The expression "order" under sub-section (l) does
not include a finding or sentence of the Court Martial and in so far as
the finding and sentence of the Court Martial is concerned the only
remedy that is available to a person aggrieved by the same is under
sub-section (2) of section 164 of the Army Act and the said remedy can
be invoked only after the finding or sentence has been confirmed by the
confuming authority and not before the confirmation of the same. [72B; D-°El
Though a person aggrieved by the finding 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 expected that the confirming authority shall give due consideration to t)te same while confirming the finding and sentence of the
Court Martial. [72H; 7JAJ
Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177; BhiiJi"!
Raja v. The Union of India & Ors., [!967] 3 S.C.R. 302; Mahabir
Prasad Santosh Kumar v. State of U.P. & Ors., [1971] l S.C.R. 201;
p
Woo/combers of India Ltd. v. Woo/combers Workers Union & Anr.,
[1974] 1 S.C.R. 503; Siemens Engineering & Manufacturing Co. of
India Ltd. v. Union of India & Anr., [1976] Suppl. S.C.R. 489; Phelps
Dodge Corporation v. National Labour Relations Board. [1940] 85 Law
Edn. 1271 at p. 1284; Securities and Exchange Commission v. Chenery
Corporation, [1942] 87 Law Ed. 626 at p. 636i John T. Dunlop v. Walter
G
Bachewski, [1975] 44 Law Ed. 2 377; Regina v. Gaming Board for Great
Britai"', Exparte Benaim & Khaida, [1970] 2 Q.B. 417 at p. 431;-Mc
Innes v. Onslow-Fane & Anr., [1978] l W.L.R. 1520 at p. 1531; Breen
v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B. 175;
Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] !.C.R. 120;
Regina ·v. Immigration Appeal Tribunal Ex Parte Khan (Mahmud),
H
[1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister of National Revenue,
.
;.
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S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.]
47
[1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent
A
Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yarmouth Housing
Ltd, & Rent Review Commission, [1983] 139 D.L.R. (3d). 544; Osmond
v. Public Service Board of New South Wales, [1985] 3 NSWLR 447;
Public Service Board of New South Wales v. Osmond, [1986] 63 A.L.R.
559; M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala
& Ors., [1962] 2 S.C.R. 339; Madhya Pradesh Industries Ltd. v. Union
of India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v.
Union of India, [1970] 3 S.C.R. 40; Tarachand Khatri v. Municipal
Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Authority & Ors. v. M/s. Chokhamal Contractors & Ors., [1989]
2 S.C.C. 721; A.K. Kraipak & Ors. v. Union of India & Ors., [1970] l
S.C.R. 457; R. v. Deputy Industrial Injuries Commissioner ex
P. Moore, [1965] 1 Q.B. 456 and Mahon v. Air New Zealand Ltd.,
[1984] A.C. 648, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 417
of 1984.
From the Judgment and Order dated 12.8.1981 of the Delhi High
CourtinC.W.P.No. 1835ofl981.
A.K. Ganguli, A. Sharan for the Appellant.
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Kapil Sibal, Additional Solicitor General, Raju Ramachandran,
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Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the
Respondents.
T. Prasad for the Secretary, Ministry of Defence.
The Judgment of the Court was delivered by
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S.C. AGRAWAL, J. This appeal, by special leave, is directed
against the order dated August 12, 1981, passed by the High Court of
Delhi dismissing the writ petition filed by the appellant. In the writ
petition the appellant had challenged the validity of the finding and the
sentence recorded by the General Court Martial on November 29,
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1978, the order dated May II, 1979, passed by the Chiefof Army Staff
confirming the findings and the sentence recorded by the General
Court Martial and the order dated May 6, 1980, passed by the Central
Government dismissing the petition filed by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as 'the
Act').
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SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
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The appellant held a permanent commission, as an officer, in the
regular army and was holding the substantive rank of Captain. He was
officiating as a Major. On December 27, 1974, the appellant took over
as the Officer Commallding of 38 Coy. ASC {Sup) Type 'A' attached
to the Military Hospital, Jhansi. In August 1975, the appellant had
gone to attend a training course and he returned in the first week of
November 1975. In his absence Captain G.C. Chhabra was the officer
commanding the unit of the appellant. Duri11g this period Captain
Chhabra .submitted a Contingent Bill dated September 25, 1975 for
Rs. 16,280 for winter liveries of the depot civilian chowkidars and
sweepers. The said Contingent Bill was returned by the Controller of
Defence Accounts (CDA) Meerut with certain objections. Thereupon
the appellant submitted a fresh Contingent Bill dated December 25,
1975 for a sum of Rs. 7,029.57. In view of the difference in the amounts
mentioned in the two Contingent Bills, the CDA reported the matter
to the headquarters for investigation and a Court of Enquiry blamed
the appellant for certain lapses.
D
The said report of the Court of Enquiry was considered by the
General Officer Commandipg, M.P., Bihar and Orissa Area, who, on
January 7, 1977 recommended that 'severe displeasure' (to be
recorded) of the General Officer Commanding-in-Chief of the Central
Command be awarded to the appellant. The General Officer Commanding-in-Chief, Central Command did not agree with the said
E
opinion and by order dated August 26, 1977, directed that disciplinary
actio11 be taken against the appellant for the lapses.
In view of the aforesaid order passed by the General Officer
Commanding-in-Chief, Central Command, a charge sheet dated July
20, 1978, containing three charges was served on the appellant and it
F
was directed that he be tried by General Court Martial. The first
charge was in respect of the offence under Section 52(f) of the Act, i.e.
doing a thing with intent to defraud, the second charge was alternative
to the first charge and was in respect of offence under Section 63 of the
Act, i.e. committing an act prejudicial to good order and military
discipline and the third charge was also in respect of offence under
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Section 63 of the Act.
The appellant pleaded not guilty to the charges. The prosecution
examined 22 witnesses to prove the charges. The General Court Martial, on November 29, 1978, found the appellant not guilty of the
second charge but found him guilty of the first and the third charge and
H awarded t)le sentence of dismissal from service. The appellant s~bmit-
• '
S.N. MUKHERJEE v. U.O.l. [AGRAWAL, J.]
49
tel) a petition dated December 18, 1978, to the Chief of Army Staff
wherein he prayed that the findings and the sentence of the General
Co11rt Martial be not confirmed. The findings and sentence of the
GeJ)eral Court Martial were confirmed by the Chief of the Army Staff
by his order dated May 11, 1979. The appellant, thereafter, submitted
l) post-~onfirmation petition under Section 164(2) of the Act. T]!e said
petition of the appellant was rejected by the Central Government by
order dated May 6, 1980. The appellant thereupon filed the writ petition in the High Court of Delhi. The said writ petition was dismised, in
limine, by the High Court by order dated August 12,_ 1981. The appellant ,<Jpproached this Court for grant of special leave to appeal against
the said order of the Delhi High Court. By order dated January 24,
1984, special leave to appeal was granted by this Court. By the said
order it was directed that the appeal be listed for final bearing before
the Constitution Bench. The said order does not indicate the reason
why the appeal was directed to be heard by the Constitution Bench.
The learned counsel for the appellant has stated that this direction has
been given by this Court for the reason that the appeal involves the
question as to whether it was incumbent for the Chief of the Army
Staff, while confirming the findings and the sentence of the General
Court Martial, and for the Central Government, while rejecting the
post-confirmation petition of the appellant, to record their reasons for
.the orders passed by them. We propose to deal with this question first.
It may be mentioned that this question has been considered by
this Court in Som Datt Datta v. Union of India and Others, [1969] 2
S.C.R. 177. In that case it was contended before this Court that the
order of the Chief of Army Staff confirming the proceedings of the
Court Martial under Section 164 of the Act was illegal since no reason
.had been given in support of the order by the Chief of the Army Staff
and that the Central Government had also not given any reason while
dismissing the appeal of the petitioner in that case under Section 165 of
the Act and that the order of the Central Government was also illegal.
This contention was negatived. After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court pointed out
that while Section 162 of the Act expressly provides that the Chief of
the Army Staff may "for reasons based on the merits of the case" set
aside the proceedings or reduce the sentence to any other sentence
which the Court might have passed, there is no express obligation
imposed by Sections )64 and 165 of the Act .on the confirming authority or upon the Central Government to give reasons in support of its
decision to confirm the proceedings of the Court Martial. This Court
observed that no other section of the Act or any of the rules 11)<1de
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SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
therein had been brought to its notice from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. This Court did not accept the
contention that apart from any requirement imposed by the statute or
statutory rule either expressly or by necessary implication, there is a
general principle or a rule of natural justice that a statutory tribunal
should always and in every case give reasons in support of its decision.
Shri A.K. Ganguli has urged that the decision of this Court in
Som Datt Datta's case (supra) to the extent it holds that there is no
general principle or rule of natural justice that a statutory tribunal
should always and in every case give reasons in support of its decision
needs reconsideration inasmuch as it is not in consonance with the
other decisions of this Court. In support of this submission Shri
Ganguli has placed reliance on the decisions of this Court in Bhagat
Raja v. The Union of India and Others, [1967] 3 SCR 302; Mahabir
Prasad Santosh Kumar v. State of UP. and Others, [1971] 1SCR201;
Woo/combers of India Ltd. v. Woo/combers Workers Union and
D Another, [1974] 1 S.C.R. 503 and Siemens Engineering & Manufacturing Co. of India Limited v. Union of India and Another, [1976] Suppl.
S.C.R. 489.
The learned Additional Solicitor General has refuted the said
submission of Shri Ganguli and has submitted that there is no requireE
ment in law that reasons be given by the confirming authority while
confirming the finding or sentence of the Court-Martial or by the Central Government while dealing with the post-confirmation petition submitted under Section 164 of the Act and that the decision of this Court
in Som Datt Datta's case (supra) in this regard does not call for
reconsideration.
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The qllestion under consideration can be divided into two parts:
(i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and
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(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?
On the first part of the question there is divergence of opinion in
the common law countries. The legal position in the Onited States is
.,
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different from that in other common law countries.
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S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.J
51
In the United States the courts have insisted upon recording of
reasons for its decision by an administrative authority on the premise
that the authority should give clear indication that it has exercised the
discretion with which it has been empowered because "administrative
process will best be vindicated by clarity in its exercise" Phelps Dodge
Corporation v. National Labour Relations Board, [ 1940] 85 Law Edn.
1271 at P. 1284. The said requirement of recording of reasons has also
been justified on the basis that such a decision is subject to judicial
review and "the Courts cannot exercise their duty of review unless
they are advised of the considerations underlying the action under
review" and that "the orderly functioning of the process of review
requires that the grounds upon which the administrative agency acted
be clearly disclosed and adequately sustained." Securities and
Exchange Commission v. Chenery Corporation, [ 1942] 87 Law Ed. 626
at P. 636. In John T. Dunlop v. Walter Bachowski, [1975] 44 Law Ed. 2
377) it has been observed that a statement of reasons serves purposes
other than judicial review inasmuch as the reasons promotes thought
by the authority and compels it to cover the relevant points and eschew
irrelevancies and assures careful administrative consideration. The
Federal Administrative Procedure Act, 1946 which prescribed the
ba"ic procedural principles which are to govern formal administrative
l,w,edures contained an express provision (Section 8(b) ) to the effect
that all decisions shall indicate a statement of findings and conclusions
as well as rea;ons or basis thel'cfor upon all the material issues of fact.
law or discretion presented on the record. The said provision is now
contained in Section 557( c) of Title 5 of the United States Code ( 1982
edition). Similar provision is contained in the state statutes.
In England the position at Common law is that there is no
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quirement that reasons should be given for its decision by the
administrative authority (See: Regina v. Gaming Board for Grea ... :iF
tain, Ex Paree Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and
.'.lclnnes v. Onslow-Fane and Another, [1978] l W.L.R. 1520 at
p. 1531). There are, however, observations in some judgments
wherein the importance of reasons has been emphasised. In his dissenting judgment in Breen v. Amalgamated Engineering Union and
Others, [ 1971] 2 Q.B. 175 Lord Denning M.R .. has observed that:
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"the giving of reasons is one of the fundamental of good
administration." (P. 191)
In Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] !CR
120 Sir John Donaldson. as President of the National Industrial RelaH
tions Court, has observed that:
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SUPREME COURT REPORTS
[1990] Supp. 1 S.C.R.
' "failure to give reasons amounts to a denial of justice."
In Regina v. Imm1gran·on Appeal Tribunal Ex parte Khan
(Mahmud), [ 1983] QB 790 Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a
denial of justice, has observed:
"A party appearing before a tribunal is entitled to know
either expressly stated by the tribunal or inferentially
stated, what it is to which the tribunal is addressing its
mind." (P. 794)
The Committee on Ministers' Powers (Donoughmore Committee) in its report submitted in 1932, recommended that "any party
affected by a decision should be informed of the reasons on which the
decision is based" and that "such a decision should be in the form of a
reasoned document available to the parties affected." (P. JOO) The
Committee on Administrative Tribunals and Enquiries (Franks Committee\ in its report submitted in 1957, recommended that "decisions
of tribunals should be reasoned and as full as possible." The said
Committee has observed:
"Almost all witnesses have advocated the giving of
reasoned decisions by tribunals. We· are convinced that if
tribunal proceedings are to be fair to the citizen reasons
should be given to the fullest practicable extent. A decision
is apt to be better if the reasons for it have to be set out in
writing because the reasons are then more likely to have
been properly thought out. Further, a reasoned decision is
essential in order that, where there is a right of appeal, the
applicant can assess whether he has good grounds of appeal
and know the case he will have to meet if he decides to
appeal." (Para 98)
The recommendations of the Donoughmore Committee and the
Franks Committee led to the enactment of the Tribunals and Enquiries
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Act, 1958 in United Kingdom. Section 12 of that Act prescribed that it
shall .be the duty of the Tribunal or Minister to furnish a statement.
either written or oral, of the reaons for the decision if requested, on or
before the giving of notification of the decision to support the decision.
The said Act has been replacecl by the Tribunals and Enquiries Act,
1971 which contains a similar provision in Section 12. This requireH
._ment is, however, confined, in its applications to tribunals and statu-
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S.N. MUKHERJEE v. U.0.1. [AGRAWAL, I.)
53
tory authorities specified in Schedule I to the said enactment. In
respect of the tribunals and authorities which are not covered by the
aforesaid enactment, the position, as prevails at common law, applies.
The Committee of JUSTICE in its Report, Administration Under Law,
submitted in 1971, has expressed the view:
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"No single factor has inhibited the development of English
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administrative law as seriously as the absence of any
general obligation upon public authorities to give reasons
for their decisions."
The law in Canada appears to be the same as in England. In Pure
Spring Co. Ltd. v. Minister of National Revenue, [1947] 1DLR501 at
P. 539 it was held that when a Minister makes a determination in his
discretion he is not required by law to give any reasons for such a
determination. In some recent decisions, however, the Courts have
recognised that in certain situations there would be an implied duty to
state the reasons or grounds for a decision (See: Re R.D.R. Construcc
tion Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 168) and
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Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139
DLR (3d) 544. In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that "a tribunal shall give
its final decision, if any, in any proceedings in writing and shall give
reasons in writing therefor if requested by a party." (Section 17). The
said Act has now been replaced by the Statutory Powers and ProceE
dure Act, 1980, which contains a similar provision.
The position at common law is no different in Australia. The
Court of Appeal of the Supreme Court of New South Wales in
Osmond v. Public Service Board of New South Wales, [1985] 3
NSWLR 447) had held that the common law requires those entrusted
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by Statute with the discretionary power to make decisions which will
affect other persons to 'act fairly in the performance of their statutory
functions and normally this will require an obligation to state the
reasons for their decisions. The said decision was overruled by the
High Court of Australia in Public Service Board of New South Wales v.
Osmond, [1986] 63 ALR 559 and it has been held that there is no
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general rule of the common law, or principle of natural justice, that
requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion
'"'
and which may adversely affect the interests or defeat the legitimate or
reasonable expectations, of other persons. Gibbs CJ., in his leading
judgment, has expressed the view that "the rules of natural justice are
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[1990] Supp. I S.C.R.
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designed to ensure fairness in the making of a decision and it is difficult
to see how the fairness of an administrative decision can be affected by
what is done after the decision has been made." The learned Chief
Justice has, however, observed that "even assuming that in special
circumstances natural justice may require reasons to be given, the
present case is not such a case." (P. 568). Deane J., gave a concurring
B
judgment, wherein after stating that "the exercise of a decisionmaking power in a way which adversely affects others is less likely to
be. or appear to be, arbitrary if the decision-maker formulates and
provides reasons for his decision", the learned Judge has proceeded to
hold that "the stage has not been reached in this country where it is a
•
general prima facie requirement of the common law rules of natural
c
justice or procedural fair play that the administrative decision-maker,
having extended to persons who might be adversely affected by a
decision an adequate opportunity of being heard, is bound to furnish
reasons for the exercise of a statutory decision-making power."
(P. 572). The learned Judge has further observed that the common law
rules of natural justice or procedural fair play are neither standardized
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nor immutable and that their content may vary with changes in contemporary practice and standards. In view of the statutory develop-
•
ments that have taken place in other countries to which reference was
made by the Court of Appeal, Deane, J. has observed that the said
developments "are conducive to an environment within which the
courts should be less relu"ctant than they would have been in times past
E
to discern in statutory provisions a legislative intent that the particular
decision-maker should be under a duty to give reasons." (P. 573).
This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act, 1977. Section
13 of the said Act enables a person who is entitled to apply for review
F
of the decision before the Federal Court to request the decision-maker
to furnish him with a statement in writing setting out the findings on
material questions of fact, referring to the evidence or other material
on which those findings were based and giving the reasons for the
decision and on such a request being made the decision-maker has to
prepare the statement and furnish it to the persons who made the
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request as soon as practicable and in any event within 28 days. The
provisions of this Act are not applicable to the classes of decisfons
mentioned in Schedule I to the Act. A similar duty to give reasons has
also been imposed by Sections 28 and 37 of the Commonwealth
Administrative Appeals Tribunal Act, 1975.
r
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In India the matter was considered by the Law Commission in
S.N. MUKHERJEE v. U.0.l. [AGRAWAL, J.[
55
the 14th Report relating to reform in Judicial Administration. The
Law Commission recommended:
"In the case of administrative decisions provision 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).
No laws has, however, been enacted in pursuance of these
recommendations, imposing a general duty to record the reasons for
its decision by an administrative authority though the requirement to
give reasons is found in some statutes.
The question as to whether an administrative authority should
record the reasons for its.- decision has come up for consideration
before this Court in a number of cases.
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In. M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar JhunjhunD
wala and Others, [1962) 2 SCR 339, a Constitution Bench of this
Court, while dealing with an order passed by the Central Government
in exercise of its appellate powers under Section 111(3) of the Companies Act, 1956 in the matter of refusal by a company to register the
transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given
E
in support of the order passed by the Deputy Secretary who heard the
appeals. In that case it has been observed:
"If the Central Government acts as a tribunal exercising
judicial powers and the exercise of that power is subject to
the jurisdiction of this Court under Article 136 of the ConF
stitution we fail to see how the power of this Court can be
effectively exercised if reasons are not given by the Central
Government in support of its order." (P. 357)
In Madhya Pradesh Industries Ltd. v. Union of India and Others,
[1966) 1 S.C.R. 466 the order passed by the Central Government
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dismissing the revision petition under Rule 55 of the Mineral Concession Rules, 1960, was challenged before this Court on the ground that
it did not contain reasons. Bachawat, J., speaking for himself and
Mudholkar, J., rejected this contention on the view that the reason for
rejecting the revision application appeared on the face of the order
because the Central Government had agreed with the reasons given by
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SUPREME COURT REPORTS
[ 1990) Supp. I S.C.R.
the State Government in its order. The learned Judges did not agree
with the submission that omission to give reasons for the decision is of
itself a sufficient ground for quashing it and held that for the purpose
of an appeal under Article 136 orders of courts and tribunals stand on
the same footing. The learned Judges pointed out that an order of
court dismissing a revision application often gives no reasons but this is
not a sufficient ground for quashing it and likewise an order of an
administrative tribunal rejecting a revision application cannot be pro·
nounced to be invalid on the sole ground that it does not give reasons
for the rejection. The decision in Hari Nagar Sugar Mills case (supra)
was distinguished on the ground that in that case the Central Govern·
ment had reversed the decision appealed against without giving any.
· reasons and the record did not disclose any apparent ground for the
C
reversal.. According to the learned Judges there is a vital difference
between an order of reversal and an order of affirmance. Subba Rao,
J., as he then was, did ot concur with this view and found that the
order of the Central Government was vitiated as it did not disclose any
reasons for rejecting the revision application. The learned Judge has
D
observed:
~
..
"In the context of a welfare State, administrative tribunals
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have come to stay. Indeed, they are the necessary con·
comitants of a Welfare State. But arbitrariness in their
functioning destroys the concept of a welfare State itself.
Self-discipline and supervision exclude or at any rate
minimize arbitrariness. The least a tribunal can do is to
disclose its mind. The compulsion of disclosure guarantees
consideration. 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 court
to keep the tribunals within bounds. A reasoned order is a
desirable condition of judicial disposal." {P. 472).
"If tribunals can make orders without giving reasons, the
said power in the hands of unscrupulous or dishonest
officer may turn out to be a potent weapon for abuse of
power. But, if reasons for an order are given, it will be an
effective restraint on such abuse, as the order, if its 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." (P. 472).
---
~~~...._._ ....
S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.l
57
•
"There is an essential distinction between a court and an
administrative tribunal. A Judge is trained to look at things
A
objectively, uninfluenced by considerations of policy or
expediency; but an executive officer generally looks at
things from the standpoint of policy and expediency. The
habit of mind of an executive officer so formed cannot be
expected to change from function to function or from act to
B
act. So it is essential that some restrictions shall be imposed
on tribunals in the matter of passing orders affecting the
rights of parties; and the least they should do is to give
•
reasons for their orders. Even in the case of appellate
courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the c
appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally
permissible grounds to interfere with it. But the same
reasoning cannot apply to an appellate tribunal, for as
often as not the order of the first tribunal is laconic and
does not give any reasons." (P.472-73).
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..
With reference to an order of affirmance the learned Judge
observed that where the original tribunal gives reasons, the appellate
tribunal may dismiss the appeal or the revision, as the case may be,
agreeing with those reasons and that what is essential is that reasons
shall be given by an appellate or revisional tribunal expressly or by
E
reference to those given by the original tribunal.
This matter was considered by a Constitution Bench of this
Court in Bhagat Raja case (supra) where also the order under
t
challenge had been passed by the Central Government in exercise of
its revisional powers under Section 30 of the Mines and Minerals
F
(Regulation and Development) Act, 1957 read with rules 54 and 55 of
the Mineral Concession Rules, 1960. Dealing with the question as to
whether it was incumbent on the Central Government to give any
reasons for its decision on review this Court has observed:
"The decisions of tribunals in India are subject to the
G
supervisory powers of the High Courts under Art. 227 of
the Constitution and of appellate powers of this Court
under Art. 136. It goes without saying that both the High
Court and this Court are placed under a great disadvantage
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if no reasons are given and the revision is dismissed curtly
by the use of the single word "rejected", or "dismissed". In
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SUPREME COURT REPORTS
[ 1990] Supp. 1 S.C.R.
such a case, this Court can probably only exercise its
appeallate jurisdiction satisfactorily by examining the
entire records of the case and after giving a hearing come to
its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the
appeal." (P. 309).
This Court has referred to the decision in Madhya Pradesh
Industries case (supra) and the observations of Subba Rao, J., referred
to above, in that decision have been quoted with approval. After tak-
-
ing note of the observations of Bachawat, J., in that case, the learned
4
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Judges have held:
"After all a tribunal which exercises judicial or quasijudicial powers can certainly indicate its mind as to why jt
acts in a particular way and when important rights of
parties of far-reaching consequences to them are adjudicated upon in a summary fashion, without giving a personal
hearing when proposals and counter proposals are made
and examined, the least that can be expected is that the
tribunals shall tell the party why the decision is going
against him in all cases where the law gives a further right
of appeal." (P. 315).
E
Reference has already been made to Som Datt Datta's case
(supra) wherein a Constitution Bench of this Court has held that the
confirming authority, while confirming the findings and sentence of a
Court-Martial, and the Central Government, while dealing with an
appeal under Section 165 of the Act, are not required to record the
reasons for their decision and it has been observed that apart from any
F
requirement imposed by the statute or statutory rule either expressly
or by necessary implication, it could not be said that there is any
general principle or any rule of natural justice that a statutory tribunal
should always and in every case give reasons in support of its decision.
In that case the Court was primarily concerned with the interpretation
of the provisions of Act and the Army Rules, 1954. There is no refeG
rence to the earlier decisions in Harinagar Sugar Mills case (supra) and
Bhagat Raja case (supra) wherein the duty to record reasons was
imposed in view of the appellate jurisdiction of this Court and the
supervisory jurisdiction of the High Court under Articles 136 and 227
of the Constitution of India respectively.
H
In Tranvancore Rayon Ltd. v. Union of India, [1970] 3 SCR 40
this Court has observed:
l·•
'1 -
S.N. MUKHERJEE v. U.0.1. {AGRAWAL, J.l
59
c
"The Court insists upon disclosure of reasons in support of
A
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 per-
~
suaded 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
B
authority invested with the judicial power." (P. 46)
In Mahabir Prasad Santosh Kumar v. State of U. P. and Others
•
(supra) the District Magistrate had cancelled the licence granted under
•
the U.P Sugar Dealers' Licensing Order, 1962 without giving any
reason and the State Government had dismissed the appeal against the c
said order of the District Magistrate without recording the reasons.
'
This Court has held:
~I
II
"The practice of the executive authority dismissing statutory appeal against orders which prima facie seriously preI(
judice the rights of the aggrieved party without g1vmg
D
.,
reasons is a negation of the rule of law." (P. 204)
t
. "Recording of reasons in support of a decision on a dispuled 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
E
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 deI
!ermine whether the facts were properly ascertained, the
F
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relevant law was correctly applied and the decision was
just." (P. 205)
In Woo/combers of India Ltd. case (supra) this Court was dealing
with an award of an Industrial Tribunal.