Court No. 26
Civil Misc. Writ Petition No. 18522 of 2003
Dheeraj Kumar Sharma
Vs.
Central Bank of India and others
HON. SHISHIR KUMAR, J.
Heard Sri Vikas Budhwar, learned counsel for the petitioner and Sri
K.R.S. Jadaun, learned counsel for the respondents.
This writ petition has been filed for quashing the order, Annexure-5 to
the writ petition as well as the order dated 19.3.2003 which has not been
served on the petitioner. It appears that the father of the petitioner was
working in the respondent-bank and died in harness and after his voluntary
retirement, the petitioner claimed appointment under the Dying in Harness
Rules. The application was processed and No Objection Certificate was also
submitted but no orders have been passed. Then the petitioner filed a
representation to the competent authority to pass appropriate orders. The
petitioner submits that an order was communicated to the petitioner on
4.4.2003 by which the claim of the petitioner has been rejected by a non-
speaking and unreasoned order. The claim of the petitioner has been rejected
only on the basis of a letter dated 19.3.2003 sent by regional office
mentioned therein that the claim of the petitioner cannot be considered for
the reason that the financial problem of the family is adequate, therefore, as
per the guidelines, no appointment can be made. Sri Budhwar, learned
counsel for the petitioner submits that the order impugned is an order of non-
application of mind without assigning any reason, therefore, is liable to be
quashed. He has placed reliance upon a judgment rendered in the case of
M/S Travancore Rayons Ltd. Vs. The Union of India and others reported
in AIR 1971 SC 862 and has relied upon paragraphs 7 and 11 which are
quoted below:
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“7. The question raised before the Collector of Customs was
of a complicated nature and for its proper appreciation
required familiarity with the chemical composition and
physical properties of nitro-cellulose lacquers and of the
substance produced by the appellant Company. The
Collector in deciding the appeal wrote an order running
into 18 typed pages. There were before the Collector
conflicting opinions of the Chemical Examiner and the Silk
Mills Research Association, Bombay. The Collector gave
two personal hearings to the Appellant Company. No
personal hearing was given by the Government of India to
the appellant Company even though the matter raised
complex questions. It is true that the rules do not require
that personal hearing shall be given, but, if in appropriate
cases where complex and difficult questions requiring
familiarity with technical problems are raised, personal
hearing is given it would conduce to better administration
and more satisfactory disposal of the grievances of citizens.
The order does not disclose the name or designation of the
authority of the Government of India who considered “the
points made by the applicants”, and it is impossible to say
whether the officer was familiar with the subject-matter so
that he could decide the dispute without elucidation and
merely on a perusal of the papers. The form in which the
order was communicated is apparently a printed form.
There is a bare assertion by the Joint Secretary to the
Government of India in his communication that the
Government of India had “carefully considered the points
made by the applicants”, there is no evidence as to who
considered the “points” and what was considered. The
Central Government is by Section 36 invested with the
judicial power of the State. Orders involving important
disputes are brought before the Government. The orders
made by the Central Government are subject to appeal to
this Court under Article 136 of the Constitution. It would be
impossible for this Court, exercising jurisdiction under
Article l36, to decide the dispute without a speaking order of
the authority, setting out the nature of the dispute, the
arguments in support thereof raised by the aggrieved party
and reasonably disclosing that the matter received due
consideration by the authority competent to decide the
dispute. Exercise of the right to appeal to this Court would
be futile, if the authority chooses not to disclose the reasons
in support of the decision reached by it. A party who
approaches the Government in exercise of a statutory right,
for adjudication of a dispute is entitled to know at least the
official designation of the person who has considered the
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matter, what was considered by him, and the reasons for
recording a decision against him. To enable the High Court
or this Court to exercise its constitutional powers, not only
the decision, but an adequate disclosure of materials
justifying an inference that there has been a judicial
consideration of the dispute by an authority competent in
that behalf in the light of the claim made by the aggrieved
party, is necessary. If the Officer acting on behalf of the
Government chooses to give no reasons, the right of appeal
will be devoid of any substance.”
“11. In this case the communication from the Central
Government gave no reasons in support of the order; the
appellant Company is merely intimated thereby that the
Government of India did not see any reasons to interfere
“with the order in appeal”. The communication does not
disclose the “points” which were considered and the
reasons for rejecting them. This is a totally unsatisfactory
method of disposal of a case in exercise of the judicial
power vested in the Central Government. Necessity to give
sufficient reasons which disclose proper appreciation of the
problem to be solved, and the mental process by which the
conclusion is reached in cases where a non-judicial
authority exercises judicial functions, is obvious. When
judicial power is exercised by an authority normally
performing executive or administrative functions, this Court
would require to be satisfied that the decision has been
reached after due consideration of the merits of the dispute,
uninfluenced by extraneous considerations of policy or
expediency. The Court insists upon disclosure of reasons in
support of the order on two grounds: one, that the party
aggrieved in a proceeding before the High Court or this
Court has the opportunity to demonstrate that the reasons
which persuaded 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 authority invested with the judicial power.”
Learned counsel for the respondent is not able to dispute the said
analogy as submitted by Sri Budhwar before this Court.
I have considered the submissions made on behalf of the parties and
perused the record. From the perusal of the record it appears that the claim of
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the petitioner has been rejected in a cryptic manner without assigning any
reason. It is well settled in law that the administrative authorities are bound to
record reasons while dismissing the claim of a person. If no reason has been
recorded , there will be a presumption in law that the order is an order of non-
application of mind.
It is well settled that an order having civil consequences even though
passed by the administrative authority must contain reasons so as to enable the
aggrieved party to challenge the reasoning of the administrative authority. In
the absence of reasons no foundation can be laid down by the petitioner and
only argument remains is that the order is based upon non-application of
mind. In our view if the reasoning of an order passed against the aggrieved
person is not communicated and only a communication regarding decision has
been communicated it cannot be assailed by the respondents that the grievance
of a person has been decided. In our opinion, it is no order in eye of law and it
has no legs to stand.
In case of S.N.Mukherjee Vs. Union of India reported in A.I.R. 1984
the Apex Court has already held as follows:-
“In view of the expanding horizon of the principles of natural
justice, the requirement to record reason can be regarded as one of the
principles of natural justice which govern exercise of power by
administrative authorities. The rules of natural justice are not embodied
rules. The extent of their application depends upon the particular
statutory framework where under 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 larger public interest that the reasons
for the order passed by the administrative authority be 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. Such an exclusion can also arise by necessary implication
from the nature of the subject matter, the scheme and the provisions of
the enactment. The public interest under lying such a provision would
outweigh the salutary purpose served by the requirement to record the
5reasons. The said requirement cannot, therefore, be insisted upon in
such a case. Therefore except in cases where the requirement has been
disposed with expressly or by necessary implications, an administrative
authority exercising judicial or quasi-judicial functions is required to
record the reasons for its decision.
The recording of reasons by an administrative authority serves a
salutary purpose, namely, it excludes chances of arbitrariness and
assures a degree of fairness in the process of decision-making. The said
purpose would apply equally to all decisions and its application cannot
be confined to decisions which are subject to appeal, revision or judicial
review. Therefore, the requirement that reasons be recorded should
govern the decisions of an administrative authority exercising quasi-
judicial functions irrespective of the fact whether the decision is subject
to appeal, revision or judicial review. It is however 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
explicitly so as to indicate that the authority has been 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 appellate or revisional authority agrees with the reasons
contained in the order under challenge.
In the case of Maharashtra State Board of Secondary and Higher
Secondary Education Vs. K.S.Gandhi and others reported in 1991 (2)
SCC, 716 the Apex Court has held as under:-
The reasons are harbinger between the mind of the maker of the
order to the controversy in question and the decision or conclusion
arrived at. They also exclude the chances to reach arbitrary, whimsical
or capricious decision or conclusion. The reasons assure an Inbuilt
support to the conclusion/decision reached. When an order affects the
right of a citizen or a person, irrespective of the fact whether it is a
quasi-judicial or administrative order, and unless the rule expressly or
by necessary implication excludes recording of reasons, it is implicit that
the principles of natural justice or fair play require recording of
germane and precise relevant reasons as a part of fair procedure. In an
administrative decision, its order/decision itself may not contain reasons.
It may not be the requirement of the rules, but a the least, the record
should disclose reasons. It may not be like a judgement. The extent and
nature of the reasons would depend on particular facts and
circumstances. What is necessary is that the reasons are clear and
explicitly 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
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or revisional authority, of it affirms such an order, need not give
separate reasons. If the appellate or revisional authority disagrees, the
reasons must be contained in the order under challenge. The recording
of reasons is also an assurance that the authority concerned consciously
applied its mind to the facts on record. It also aids the appellate or
revisional authority or the supervisory jurisdiction of the High Court
under Article 226 or the appellate jurisdiction of the Supreme Court
under Article 136 to see whether the authority concerned acted fairly and
justly to mete out justice to the aggrieved person.
In the case of M/s Mahabir Prasad Santosh Kumar Vs. State of
U.P. & others reported in AIR 1970, SC, 1302, the Apex Court has held
as under:-
“The High Court in rejecting the petition filed by the appellants
has observed that the District Magistrate in considering the explanation
of the appellants had “considered all the materials” and also that “the
State Government in considering the appeal had considered all the
materials”. We have, however, nothing on the record to show what
materials if any were considered by the District Magistrate and the State
Government. The High Court has also observed that Clause 7 of the
Sugar Dealers’ Licensing Order does not require “the State Government
to pass a reasoned order. All that is required is to give an aggrieved
person an opportunity of being heard.” We are of the view that the High
court erred in so holding. The appellants have a right not only to have
an opportunity to make a representation, but they are entitled to have
their representation considered by an Authority unconcerned with the
dispute and to be given information which would show the decision was
reached on the merits and not on considerations of policy or expency.
This is a clear implication of the nature of the jurisdiction exercised by
the appellate authority; it is not required to be expressly mentioned in
the statute. There is nothing on the record which shows that the
representation made by the appellants was even considered. The fact
that Clause 7 of the Sugar Dealers’ Licensing Order to which the High
Court has referred does not “require the State Government to pass a
reasoned order” is wholly irrelevant. The nature of the proceeding
requires that the State Government must give adequate reasons which
disclose that an attempt was made to reach a conclusion according to
law and justice.”
In view of the aforesaid fact, the writ petition is allowed. The order,
Annexure-5 to the writ petition communicated to the petitioner on 4.4.2003 as
well as the order dated 19.3.2003 is hereby quashed and the matter is
remanded back to the appropriate authority i.e. respondent no.2 to pass
appropriate orders in view of the observations made above taking into
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consideration the Apex Court judgment by giving reasons strictly in
accordance with law within a period of three months from the date of
production of certified copy of the order.
No order is passed as to costs.
7.1.2010
V.Sri/-