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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Ex.Havildar Gulia v. Union of India & Ors.
Kailash Singh
S.B.CIVIL WRIT PETITION NO.3413/1998
under Article 226 of the Constitution
of India.
Date of Order :: 27th February, 2009
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. S.K.Nanda, for the petitioner.
Mr. V.K.Mathur, for the respondent.
....
BY THE COURT :
An order rejecting a petition presented by
any person aggrieved with findings or sentence of any
Court Martial, which has been confirmed should contain
reasons for such rejection or not, is the main issue
requires adjudication in this petition for writ.
The factual matrix of the case is that the
petitioner joined the Indian Army on 18.6.1984 in
capacity of a Sepoy in the trade of Clerk (G/D). While
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serving at Station Headquarters, Bikaner as Combatant
in the regular army he was tried by a General Court
Martial held from 2.7.1997 to 29.9.1997. The
petitioner was subjected to General Court Martial for
four charges out of that he was found guilty for two
and was sentenced to suffer rigorous imprisonment for
three years, to be dismissed from service and to be
reduced from the ranks. The findings and sentence
given by the General Court Martial stood confirmed by
General Officer Commanding, 24 Infantry Division on 8th
Day of December, 1997 with a direction to carry out
sentence by confinement in civil prison.
Being aggrieved with the order passed by the
General Court Martial, duly confirmed by the
confirming authority, the petitioner preferred a
statutory petition as per the provisions of sub-
section(2) of Section 164 of the Army Act, 1950
(hereinafter referred to as “the Act of 1950”) read
with Rule 210 of the Army Rules, 1954 (hereinafter
referred to as “the Rules of 1954”) and para 365 of
the Army Regulations. In the petition aforesaid dated
20.1.1998, the petitioner highlighted various
infirmities in General Court Martial including over-
stepping by the Judge advocate to the powers and
duties as given under Rule 105 of the Rules of 1954.
The petitioner also asserted that the findings given
by the General Court Martial were not supported by any
evidence. The statutory petition dated 20.1.1998 came
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to be rejected by General Officer Commanding, 10 Corps
on 19.6.1998 in following terms:-
“I agree with the recommendations of the
General Officer Commanding, 24 Infantry
Division and direct that the petition be
rejected.”
A challenge is given to the proceedings of
the General Court Martial, findings and sentence given
by the General Court Martial, confirmation of the
findings and sentence, and also to the order dated
19.6.1998 rejecting the statutory petition submitted
by the petitioner, on various grounds. It is urged
that the order dated 19.6.1998 has been passed without
application of mind and as such the said order is just
monumental and non-speaking. According to counsel for
the petitioner an order rejecting a post confirmation
statutory petition must be a self-speaking and
reasoned one. It is asserted that a substantive right
i.e. of presenting a petition to the competent
authority is available to any person subjected to Army
Act, who considers himself aggrieved by a finding or
sentence of any Court Martial which has been confirmed
and such post confirmation statutory petition deserves
consideration by the competent authority as per
provisions of clause(g) of regulation 365 of the
Regulations for Army. According to counsel for the
petitioner the consideration of a post confirmation
statutory petition must be an objective one and such
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objectivity can be examined by the reasons given for
negativating the contentions raised by the person who
has preferred the petition. To substantiate the
contention, reliance is placed by counsel for the
petitioner upon various judgments including 1986(4)
SLR, 791, Lt. Colonel Amal Sankar Bhadury v. Union of
India & Ors.; 2006(2) SCT, 1, Hans Raj v. Union of
India & Ors.; and Lt. Col. N.K.Ghai v. Union of India
& Ors., W.P.(C)3266/2005, dated 20.2.2006.
Per contra, it is stated by counsel for the
respondents that in view of the authoritative
pronouncement of Hon’ble Supreme Court in Shri
S.N.Mukherjee v. Union of India, 1990(5) SLR, 8, there
is no need to prescribe any reasons by the competent
authority while rejecting a post confirmation
statutory petition submitted by a person subjected to
the Act of 1950. In S.N.Mukherjee’s case (supra),
Hon’ble Supreme Court held as follows:-
“46.With regard to post-confirmation
proceedings we find that sub-section(2) of
Section 164 of the Act provides that any
person subject to the Act who considers
himself aggrieved by a finding or sentence of
any court-martial which has been confirmed,
may present a petition to the Central
Government, the Chief of the Army Staff or
any prescribed officer superior in command to
the one who confirmed such finding or
sentence and the Central Government, the
Chief of the Army Staff or other officer, as
5the case may be, may pass such orders thereon
as it or he thinks fit. In so far as the
findings and sentence of a court-martial and
the proceedings for confirmation of such
findings and sentence are concerned it has
been found that the scheme of the Act and the
Rules is such that reasons are not required
to be recorded for the same. Has the
legislature made a departure from the said
scheme in respect of post-confirmation
proceedings? There is nothing in the language
of sub-section(2) of Section 164 which may
lend support to such an intention. Nor is
there anything in the nature of post-
confirmation proceedings which may require
recording of reasons for an order passed on
the post-confirmation petition even though
reasons are not required to be recorded at
the stage of recording of findings and
sentence by a court-martial and at the stage
of confirmation of the findings and sentence
of the court-martial by the confirming
authority. With regard to recording of
reasons the considerations which apply at the
stage of recording of findings and sentence
by the court-martial and at the stage of
confirmation of findings and sentence of the
court-martial by the confirming authority are
equally applicable at the stage of
consideration of the post-confirmation
petition. Since reasons are not required to
be recorded at the first two stages referred
to said, the above requirement cannot, in our
opinion, be insisted upon at the stage of
consideration of post-confirmation petition
under Section 164(2) of the Act.
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47.For the reasons aforesaid it must be held
that reasons are not required to be recorded
for an order passed by the confirming
authority confirming the findings and
sentence recorded by the court-martial as
well as for the order passed by the Central
Government dismissing the post-confirmation
petition. Since we have arrived at the same
conclusion as in Som Datt Datta case (supra)
the submission of Shri Ganguli that the said
decision needs reconsideration cannot be
accepted and is, therefore, rejected.
48.But that is not the end of the matter
because even though there is no requirement
to record reasons by the confirming authority
while passing the order confirming the
findings and sentence of the court-martial or
by the Central Government while passing its
order on the post-confirmation petition, it
is open to the person aggrieved by such an
order to challenge the validity of the same
before this court under Article 32 of the
Constitution or before the High Court under
Article 226 of the Constitution and he can
obtain appropriate relief in those
proceedings.”
Heard counsel for the parties.
In light of Hon’ble Supreme Court’s judgment
in S.N.Mukherjee’s case (supra), on its face, it
appears that there was no need to extend reasons while
deciding a post confirmation petition as per the
provisions of Section 164(2) of the Act of 1950. In
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the case aforesaid Hon’ble Supreme Court negativated
need of giving reasons on the premise that neither
sub-section(2) of Section 164 of the Act of 1950 nor
any other provision under the Rules of 1954 or the
Army Regulations provides for recording reasons for an
order passed on post confirmation petition. The Court
was of the view that reasons are not required to be
recorded even at the stage of confirmation of findings
and sentence of the Court Martial by confirming
authority, as such that could not be made essential at
the subsequent stage. Such position, as a matter of
fact, does not exist after an amendment introduced in
Rule 62(1) of the Rules of 1954, that reads as
follows:-
“(1)The finding on every charge upon which
the accused is arraigned shall be recorded
and, except as provided in these rules, shall
be recorded as finding of ‘Guilty’ or of ‘Not
Guilty’. After recording the finding on each
charge, the court shall give brief reasons in
support thereof. The judge advocate or, if
there is none, the presiding officer shall
record or cause to be recorded such brief
reasons in the proceedings. The above record
shall be signed and dated by the presiding
officer and judge advocate, if any.”
Prior to 6.12.1993, sub-rule(1) of Rule 62 of
the Rules of 1954 was worded as under:-
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“(1)The finding on every charge upon which
the accused is arranged shall be recorded
and, except as provided in these rules, shall
be recorded simply as a finding of “Guilty”
or “Not guilty”.”
In S.N.Mukherjee’s case (supra) Hon’ble
Supreme Court was considering a matter relating to a
statutory petition that was relating to General Court
Martial prior to 6.12.1993. The position as per
Regulations of 1965 now existing is that the presiding
officer of the General Court Martial should record
brief reasons in the proceedings in support to the
findings and sentence given.
A Division Bench of Delhi High Court in Lt.
Col. N.K.Ghai’s case (supra), while examining an issue
regarding prescribing reasons, while considering a
statutory petition under Border Security Force Act,
held as follows:-
“As we gather from the communication issued,
the appellate authority rejected the appeal
on the ground that it is devoid of merit. If
the disposal of the appeal was in the manner
as stated in the said communication, one
cannot but hold that the said order of the
appellate authority is cryptic and is devoid
of reasons. While disposing of an appeal, the
appellate authority discharges a statutory
function and acts as a quasi judicial
authority. Therefore, the appellate authority
is required to give due weightage and apply
9its mind take a conscious and considered
decision and dispose of the appeal giving
reasons for its decision. The order disposing
the appeal must indicate that there has been
proper application of mind by the authority
to all the pleas raised and the reasons for
the decision are also to be explicit in the
order itself.”
The relevant provisions of the Border
Security Force Act are para-materia to the provisions
under consideration in instant petition for writ.
In Hans Raj’s case (supra), a Division Bench
of Hon’ble Delhi High Court considered the entire
issue relating to prescribing reasons while deciding a
post confirmation petition under Section 164(2) of the
Act of 1950 and held as under:-
“20.We are of the view that S.N.Mukherjee’s
case (supra) was postulated on the premise
discernible from paragraph 46 of the judgment
which was to the effect that the reasons were
not required to b e given to the post-
confirmation petition under Section 164(2) as
there was no statutory requirement of giving
reasons in support of the findings of
confirmation based upon an analysis inter
alia of existing Rule 62. Since the amendment
of the Rule 62 in the year 1993 has already
put in the requirement of giving reasons in
support of the findings of court martial, the
position of law laid down in S.N.Mukherjee’s
case in so far as it held that reasons in
support of orders under Section 164(2) of the
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Army Act were not required to be given no
longer holds the field. The other position of
law laid down in S.N.Mukherjee’s case (supra)
was discernible from the paragraph 39 which
clearly held that except to the extent where
the requirement to record reasons was
dispensed with expressly or by necessary
implication, the administrative authority
exercising quasi or non-quasi judicial
function was required to record reasons. In
our view even S.N.Mukherjee’s case (supra)
required the recording of reasons by
administrative authority exercising quasi or
non-quasi judicial function except when the
requirement to record reasons was dispensed
with expressly or by necessary implication.
In the aforesaid Mukherjee’s case (supra) the
Constitution Bench of the Hon’ble Supreme
Court held that the said requirement was
necessarily excluded by implication by virtue
inter alia of the then existing Rule 62 of
the Army Rules. Since Rule 62 has been since
amended and recording of reasons have been
expressly included therein, the reasoning
contained in paragraph 39 of the
S.N.Mukherjee’s case (supra) to the following
effect comes into play:-
’39.For the reasons aforesaid, it must
be concluded that except in cases where
the requirement has been dispensed with
expressly or by necessary implication an
administrative authority exercising
judicial or quasi-judicial functions is
required to record the reasons for its
decision.
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Since in the amended Army Rule 62 the
requirement of recording reasons in
support of a Court Martial verdict has
now been statutorily incorporated, the
principles laid down in S.N.Mukherjee’s
judgment far from supporting the plea of
the learned Addl. Solicitor General Shri
P.P.Malhotra, in fact supports the plea
of the petitioners; about the
requirement of recording reasons in
support of a decision under Section 117
(2) of the BSF Act.’
21.The Hon’ble Supreme Court noted while
observing about the general Court Martial
that the findings and sentence of a Court
Martial under the then existing Army Act did
not require the recording of reasons as
evident from the Act and the Rules. Keeping
the above position of law which permitted the
Court Martial Finding to be without recording
of reasons in view of the pre-amendment Rule
62, the Hon’ble Supreme Court observed that
the consideration of reasons which applied
while awarding the sentence of Court Martial
are equally applicable in the case of
proceedings of confirmation under Section 164
(2) of the Army Act. It was thus observed
that since reasons were not required to be
recorded at the stage of recording of
findings and the confirmation of the finding,
they were not required to be recorded at the
state (stage?) of post-confirmation petition
under Section 164(2) of the Act. In our view
since Rule 62 has since been amended in 1992
after the judgment in S.N.Mukherjee’s case
(supra) the entire foundation of the
aforesaid judgment in S.N.Mukherjee’s case
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based on unamended Rule 62 in our view cannot
now be held applicable in Court Martial
proceedings which arose from the amended Rule
62 which requires the recording of reasons.
Since Court Martials after the amendment of
Army Rule 62 are required to record reasons,
the rationale or the reasons of
S.N.Mukherjee’s case can no longer be said to
apply to the situation emerging pursuant to
the amended Rule 62 requiring recording of
reasons. Accordingly, in our view in
confirmation petitions pursuant to court
martials which subsequent to the amendment in
Rule 62 are required to record reasons for
their decision, the post-confirmation
petition disposal is required to be with
reasons.”
The need of giving reasons by judicial and
quasi judicial authorities is also emphasised by
Hon’ble Supreme court in Cyril Lasrado (Dead) by LRs.
& Ors. v. Juliana Maria Lasrado & Anr., reported in
(2004)7 SCC 431, by observing as follows:-
“12.Even in respect of administrative orders
Lord Denning, M.R. in Breen v. Amalgamated
Engg. Union observed : (All ER p. 1154h) “The
giving of reasons is one of the fundamentals
of good administration.” In Alexander
Machinery (Dudley) Ltd. v. Crabtree it was
observed : “Failure to give reasons amounts
to denial of justice. Reasons are live links
between the mind of the decision-taker to the
controversy in question and the decision or
conclusion arrived at.” Reasons substitute
subjectivity by objectivity. The emphasis on
13recording reasons is that if the decision
reveals the “inscrutable face of the sphinx”,
it can, by its silence, render it virtually
impossible for the courts to perform their
appellate function or exercise the power of
judicial review in adjudging the validity of
the decision. Right to reason is an
indispensable part of a sound judicial
system, reasons at least sufficient to
indicate an application of mind to the matter
before court. Another rationale is that the
affected party can know why the decision has
gone against him. One of the salutary
requirements of natural justice is spelling
out reasons for the order made, in other
words, a speaking out. The “inscrutable face
of the sphinx” is ordinarily incongruous with
a judicial or quasi-judicial performance.”
Need not to say that consideration of a post-
confirmation statutory petition as per provisions of
Section 164(2) of the Act of 1950 is a quasi judicial
function. In the case in hand the statutory petition
of petitioner was decided by the authority concerned
by merely noting his agreement with the
recommendations of General Officer Commanding, 24
Infantry Division. He has not supplied any reason for
such agreement, that was essential in view of the
legal position discussed above.
Accordingly the order dated 19.6.1998
rejecting the post-confirmation petition submitted by
the petitioner as per provisions of Section 164(2) of
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the Act of 1950 is bad. Counsel for the petitioner
also pressed in service certain other arguments
alleging over stepping of powers by the judge advocate
and also that the findings given by General Court
Martial are not based on any evidence, however, as I
am inclined to remand the matter to competent
authority to decide post-confirmation petition as per
provisions of Section 164(2) of the Act of 1950, I am
not entering into all these questions. All these
questions, as a matter of fact, deserve consideration
at the time of examination of the petition under
Section 164(2) of the Act of 1950.
Accordingly, this petition for writ is
allowed. The order dated 19.6.1998 passed by General
Officer Commanding, 10 Corps, is hereby quashed. The
authority competent to consider a petition as per
Section 164(2) of the Act of 1950 is directed to
consider the statutory post-confirmation petition
submitted by the petitioner afresh in accordance with
law. If any grievance survives after decision of the
statutory petition aforesaid, the petitioner shall be
at liberty to challenge the same by availing
appropriate remedy with all available grounds
including the grounds taken in present petition for
writ.
Cost is made easy.
( GOVIND MATHUR ),J.
kkm/ps.