Uttarakhand High Court
Purshotum Dutt vs Union Of India And Others on 17 May, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1305 of 2011
Purshotum Dutt ....Petitioner
Versus
Union of India & others
.... Respondents
Mr. M.S. Chauhan, Advocate for the petitioner.
Mr. B.S. Parihar, Standing Counsel for the Union of India.
Judgment Reserved - 11.05.2017
Date of Judgment - 17.05.2017
Hon'ble Rajiv Sharma,J.
Petitioner was appointed as Constable in SSB on 25.01.1990 on the post of Driver. The accident took place on 02.11.2007. The Disciplinary proceedings were initiated against the petitioner. He was issued charge-sheet. He denied the charges levelled against him.
2. An FIR was also registered on 02.11.2007 against the petitioner under Sections 279, 337, 338 and 304A of IPC. It was closed. The Disciplinary Authority imposed a penalty of dismissal upon the petitioner vide order dated 06.05.2011.
3. Petitioner filed an appeal against the order dated 06.05.2011. The Appellate Authority dismissed the same vide order dated 23.08.2011.
4. The Court has gone through the order dated 23.08.2011. It is cryptic and laconic. The Appellate Authority was required to assign reasons while considering the appeal of the petitioner by taking into consideration the grounds taken in the appeal.
5. The petitioner has taken number of grounds in his appeal which have not dealt with by the Appellate Authority. The Appellate Authority 2 has just held that the inquiry was held as per Rules, thus, the charges levelled against the petitioner stood proved. The Appellate Authority should have taken into consideration the ground taken in the appeal along with the evidence including the statements of prosecution of witness recorded during the course of the inquiry.
6. Their Lordships of the Hon. Supreme Court in 2006 (4) SCC 713, in the case of "Narinder Mohan Arya vs. United India Insurance Co. Ltd.", have held that the Appellate Authority must show proper application of mind. Their Lordships have held as under: -
"36. The order of the Appellate Authority demonstrates total non-application of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression "consider" is of some significance. In the context of the Rules, the Appellate Authority was required to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the enquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive."
7. Their Lordships of the Hon'ble Supreme Court in 2008 (3) SCC 469, in the case of "Divisional Forest Officer, Kothagudem & others vs. Madhusudhan Rao", have held that the Appellate and revisional authorities are required to give reasons, albeit brief reasons, while confirming the views of the disciplinary authorities. Their Lordships have held as under: -"20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief 3 reasons should be indicated even in an order affirming the views of the lower forum."
8. Their Lordships of the Hon'ble Supreme Court in 2008 (8) SCC 236, in the case of "State of Uttaranchal & Others vs. Kharak Singh", have held that the Appellate authority is required to support his decision with reference to enquiry records. Their Lordships have held as under: -
"20. A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The Department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply-affidavit filed by the Department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not pointed out the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent."
9. Their Lordships of the Hon'ble Supreme Court in 2009 (4) SCC 240, in the case of "Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney & others", have held that an order of affirmation need not contain as elaborate reasons as an order of reversal but that does not mean the does of affirmation need not contain any reasons at all. Their Lordships have held as under: -
"5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover case2 has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate 4 authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority.
8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India6, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
11. Hence, we agree with the High Court that reasons should have been contained in the appellate authority's order, but we cannot understand why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order."
10. Their Lordships of the Hon'ble Supreme Court in 2012 (5) SCC 242, in the case of "Vijay Singh vs. State of Uttar Pradesh & others", have held that statutory authorities are under legal obligation to decide appeal and revision dealing with grounds taken in appeal/revision, otherwise it would be a case of non-application of mind. Their Lordships have held as under: -
"17. In such a fact-situation, the subordinate officer has to face the adverse consequences without any fault on his part. The grievance raised by the appellant that recording the past criminal history of an accused is relevant in non-bailable offences only as it may be a relevant factor to be considered at the time of grant of bail, and he did not record the same as it was a bailable offence, has not been considered by any of the authorities at all. Undoubtedly, the statutory authorities are under the legal obligation to decide the appeal and revision dealing with the grounds taken in the appeal/revision, etc. otherwise it would be a case of non-application of mind."
11. Their Lordships of the Hon'ble Supreme Court in 2013 (6) SCC 530, in the case of "Chairman, Life Insurance Corporation of India & others 5 vs. A. Masilamani", have held that the Appellate authority cannot simply adopt language employed by disciplinary authority and proceed to affirm its order. The Appellate authority should apply its own mind. Their Lordships have held as under: -
"19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be".
Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar15 and Bhikhubhai Vithlabhai Patel v. State of Gujarat16.)"
12. Their Lordships of the Hon'ble Supreme Court in 2017 (2) SCC 609, in the case of "J. Ashoka vs. University of Agricultural Sciences & others", have held that reasons are links between materials on which conclusions are based and actual conclusions disclosing applications of mind. Their Lordships have held as under: -
"24. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with."
13. There is total lack of application of mind by the Appellate Authority. The assigning of reasons is the sine qua non while disposing the appeal.
614. Accordingly, the writ petition is allowed. The order dated 23.08.2011 is quashed and set- aside. The Appellate Authority is directed to decide the appeal of the petitioner afresh by passing a speaking/detailed order after taking into consideration the grounds contained in the appeal within a period of ten weeks from today.
Date: 17.05.2017 (Rajiv Sharma, J.) NISHANT