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Civil Appeal No. 417 of 1984. Case: S.N. Mukherjee Vs Union of Inida. Supreme Court (India)

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Case NumberCivil Appeal No. 417 of 1984
CounselFor Appellant: Ashok H. Desai, Solicitor General, Shishir Shrma and P.H. Parekh, Advs. and For Respondents: Kapil Sibal, Additional Solicitor General, Raju Ramachandran, Rajiv Dhawan, C.V. Subba Rao and Sushma Suri, Advs.
JudgesSabyasachi Mukharji, C.J., M.H. Kania, K. Jagannatha Shetty Shetty, K.N. Saikia and S.C. Agrawal, JJ.
IssueConstitution of India - Articles 32, 33, 136, 226, 227; Army Act, 1950 - Sections 52, 63, 108, 128 to 152, 153, 162, 164 and 165; Army Rules, 1954 - Rules 37 to 105 and 147; Federal Administrative Procedure Act, 1946 - Sections 8; Tribunals and Enquiries Act, 1958 - Section 12; Statutory Powers Procedure Act, 1971; Commonwealth Administrative ...
CitationAIR 1990 SC 1984, 1990 CriLJ 2148a, JT 1990 (3) SC 630, (1990) 4 SCC 594, [1990] Supp 1 SCR 44, 1991 (1) SLJ 1 (SC), (1990) 3 UPLBEC 2093
Judgement DateAugust 28, 1990
CourtSupreme Court (India)

Order:

S.C. Agrawal, J.

  1. 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, 1978, the order dated May 11, 1979, passed by the Chief of 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').

  2. 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 Commanding 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. During 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.

  3. The said report of the Court of Enquiry was considered by the General Officer Commanding, 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 opinion and by order dated August 26, 1977, directed that disciplinary action be taken against the appellant for the lapses.

  4. 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 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 Section 63 of the Act.

  5. 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 awarded the sentence of dismissal from service. The appellant submitted a petition dated December 18, 1978, to the Chief of Army Staff wherein he prayed that the findings and the sentence of the General Court Martial be not confirmed. The findings and sentence of the General Court Martial were confirmed by the Chief of the Army Staff by his order dated May 11, 1979. The appellant, thereafter, submitted a post-confirmation petition Under Section 164(2) of the Act. The 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 approached 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 hearing 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.

  6. It may be mentioned that this question has been considered by this Court in Som Datt Datta v. Union of India and Ors. 1969 CriLJ 663. 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 164 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 made 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.

  7. 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 Ors. [1967] 3 SCR 302; Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. [1971]1SCR201; Woolcombers of India Ltd. v. Woolcombers Workers Union and Anr. AIR 1973 SC 2758 and Siemens Engineering & Manufacturing Co. of India Limited v. Union of India and Anr. AIR 1976 SC 1785.

  8. The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement 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.

  9. The question 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

    (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?

  10. On the first part of the question there is divergence of opinion in the common law countries. The legal position in the United States is different from that in other common law countries.

  11. 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 LEd. 1271. 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 L Ed. 626. In John T. Dunlop v. Walter Bachowski [1975] 44 L Ed. 2377 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!o cover the relevant points and eschew irrelevancies and assures careful administrative consideration. The Federal Administrative Procedure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative procedures contained an express provision...

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