Delhi High Court
Delhi Transport Corporation vs Ashok Kumar Sharma on 12 March, 2013
Author: Siddharth Mridul
Bench: Badar Durrez Ahmed, Siddharth Mridul
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 12.03.2013
W.P.(C) 7661/2010
DELHI TRANSPORT CORPORATION ..... Petitioner
versus
ASHOK KUMAR SHARMA ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms Avnish Ahlawat, Ms Latika Chaudhary, Mr Nilesh Singh and
Ms Nazoo Sharma.
For the Respondent : Respondent in person.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J
1. The Petitioner herein has challenged the order dated 01.07.2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A No. 1592 of 2009 wherein the Tribunal has allowed the petition.
2. In brief, facts relevant for the adjudication of the present petition may be noted as under:-
W.P.(C) 7661/2010 Page 1 of 13
(i) The Respondent joined DTC as Dy. Vigilance Officer and on 20.01.1989 was promoted as Dy. General Manager (Personnel) which post was re-designated as Dy. Chief General Manager (Personnel).
(ii) A Memorandum of Charge dated 19.12.2006 was issued to the Respondent and an enquiry was held by the Commissioner for Departmental Inquiries, Central Vigilance Commission, appointed as enquiry authority by the Chairman cum Managing Director (CMD) by order dated 09.07.2007.
(iii) Seven out of eight charges were held proved against him by the Inquiry Authority. A show cause notice dated 15.04.2009 was issued to him.
(iv) The Respondent approached the Central Administrative Tribunal through OA No.1054/2009, challenging the show cause notice on the ground that the CMD was neither the appointing nor the disciplinary authority.
W.P.(C) 7661/2010 Page 2 of 13
(v) The Tribunal directed the concerned authority to first decide the question of competence of authority and thereafter to deal with the merits of the case, meanwhile the Respondent was permitted to give his representation to the show cause notice.
(vi) The Respondent gave a detailed reply on 27.04.2009.
(vii) The Respondent was to retire from the services of DTC on 30.04.2009. In view of the urgency due to the Respondent's impending retirement, an agenda was circulated to the members of DTC's Board Directors under Regulation 11 of the DTC Meeting Regulations 1981, which reads as under:-
"(1) When it is necessary to refer some urgent matter to the Corporation and it is not possible to convene a meeting of the Corporation, the Secy. May circulate to each member full particulars of the matter in order to enable the member to arrive at a decision. Where this procedure of circulation is adopted, the Secy. shall specify the date by which the views of the members are to be received in the office of the Corporation. Upon receipt of the views of the members as aforesaid, the Secy. shall lay the papers before the Chairman who shall record the decision according to the views of the majority of the members including himself and, if necessary using his casting vote under sub-section (3) of Section 11 of the Act."W.P.(C) 7661/2010 Page 3 of 13
(viii) The CMD submitted the following issues for consideration of the Board of Directors:
"(i) To accord the approval for Show Cause Notice (Annexure-IV) proposing to impose the penalty of 'Dismissal from the services of the Corporation' as it was issued by the Chairman-cum-Managing Director in anticipation of the approval of the DTC Board due to paucity of time as the Charged Officer is to retire on 30-4-2009 on attaining the age of super-annuation.
(ii) To take a decision in the matter by considering the facts of the case and the reply submitted by the Charged Officer in response to Show Cause Notice dated 15.-4.2009 (Annexure-IV) with regard to the imposition of the penalty of 'Dismissal from the services of the Corporation'. List of Penalties is at Annexure-VI.
(iii) To authorize the Chairman-cum-M.D. to issue necessary Orders imposing the penalty as may be approved by the Board, upon ShriA.K.Sharma, Dy.
CGM."
(ix) A Resolution number 14/2009 dated 29.04.2009 was signed by the CMD, which is reproduced below:
"Resolution adopted by the DTC Board on 29-4-2009 by method of Circulation.
Resolution No.14/2009: Item 13/2009: Disciplinary proceedings initiated against Shri A.K. Sharma, Dy. CGM-Consideration of the findings of the Enquiry Officer & imposition of Penalty.
The Board considered the agenda item and accorded its approval for Show Case Notice dated 15-4-2009 W.P.(C) 7661/2010 Page 4 of 13 already issued to ShriA.K.Sharma, Dy.Chief G.M. proposing to impose upon him the penalty of 'Dismissal from the services of the Corporation'.
The Board, in view of the facts of the case as brought out in the agenda item and also after considering the reply submitted by the Charged Officer in response to Show Cause Notice dated 15-4- 2009 which was not satisfactory, resolved to confirm the penalty of 'Dismissal from the services of the Corporation' with immediate effect.
The Board further decided that he will not be entitled for any service benefits such as Gratuity, Pension, Employer's Share of Provident Fund, Leave Salary/encashment of leave, etc. The Board also authorized the Chairman-cum- Managing Director to issue final orders and to take further necessary action in the matter."
(x) The Respondent was dismissed from service by order dated 29.04.2009, passed by its Chairman cum Managing Director (CMD).
3. Counsel for the Petitioner has submitted that for the officers of the rank of the Respondent, the DTC Board is the appointing authority and as per the delegation of power, the Chairman cum Managing Director is the competent authority to impose minor penalty upon the officer whose appointing authority is the Board. However, the DTC Board is the competent disciplinary authority to impose major penalty upon the Respondent. W.P.(C) 7661/2010 Page 5 of 13
4. It was urged that in matters where the decision is by a collective body and the agenda items are approved or disapproved, it is a collective decision of the members and each member is not required to give his/her reason for such a decision. The introductory note of the Vigilance Officer, who has placed the case before the Board with detailed Annexures, chargesheet, findings, CVC advice, show cause notice and the reply submitted after which a final decision is taken, is the issue which has been considered in totality and decided by the Board.
5. Per contra it is argued by the Respondent that none of the members of the Board of Directors have expressed any views on the merits of the matter and resolution as such is bad in law for want of reasons for a decision.
6. We are unable to agree with the Petitioner's contention that a decision by reason of it being a collective decision by the members of the Board is exempt from being a reasoned one. Perusal of the records make it clear that the Resolution adopted by the Board confirming the penalty of dismissal does not enumerate the reasons for such dismissal and demonstrates a complete non application of mind on the subject. W.P.(C) 7661/2010 Page 6 of 13
7. The Supreme Court in a case reported as Kranti Associates Pvt. Ltd. and Anr. v. Masood Ahmed Khan and Ors.: (2010) 9 SCC 496, has highlighted the importance of giving reasons while passing a judgment/order by any judicial or quasi judicial body. The Supreme Court has extensively examined the law and various precedents on the subject. It was observed:
"15. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi- judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and Ors. v. Union of India and Ors. reported in AIR 1970 SC 150.
16. In Kesava Mills Co. Ltd. and Anr. v. Union of India and Ors. reported in AIR 1973 SC 389, this Court approvingly referred to the opinion of Lord Denning in Rigina v. Gaming Board Ex parte Benaim (1970) 2 WLR 1009 and quoted him as saying "that heresy was scotched in Ridge and Boldwin 1964 AC 40".
17. The expression `speaking order' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report)
18. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the 'inscrutable face of a Sphinx'. W.P.(C) 7661/2010 Page 7 of 13
24. In the case of M/s. Travancore Rayons Ltd. v. The Union of India and Ors.: AIR 1971 SC 862, the Court, dealing with the revisional jurisdiction of the Central Government under the then Section 36 of the Central Excise and Salt Act, 1944, held that the Central Government was actually exercising judicial power of the State and in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (See para 11 page 865-866).
25. In M/s. Woolcombers of India Ltd. v. Woolcombers Workers Union and Anr.: AIR 1973 SC 2758, this Court while considering an award under Section 11 of Industrial Disputes Act insisted on the need of giving reasons in support of conclusions in the Award. The Court held that the very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. The second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The learned Judges said that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the decision is right or wrong (See para 5 page 2761).
26. In Union of India v. Mohan LalCapoor and Ors.: AIR 1974 SC 87, this Court while dealing with the question of selection under Indian Administrative Service/Indian Police Service (Appointment by Promotion Regulation) held that the expression "reasons for the proposed supersession"
should not be mere rubber stamp reasons. Such reasons must disclose how mind was applied to the subject matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link W.P.(C) 7661/2010 Page 8 of 13 between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two (See para 28 page 98).
27. In Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India and Anr.: AIR 1976 SC 1785, this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The learned Judges emphatically said that every quasi- judicial order must be supported by reasons. The rule requiring reasons in support of a quasi- judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law (See para 6 page 1789).
28. In Smt. Maneka Gandhi v. Union of India and Anr.:
AIR 1978 SC 597, which is a decision of great jurisprudence significance in our Constitutional law, Chief Justice Beg, in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (Para 34, page 612). The learned Chief Justice also held when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision.
33. In a Constitution Bench decision of this Court in Shri Swamiji of Shri Admar Mutt etc. etc. v. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors.: AIR 1980 SC 1, while giving the majority judgment Chief Justice Y.V. Chandrachud referred to Broom's Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as follows:
Ces-sante Ratione Legis Cessat Ipsa Lex
34. The English version of the said principle given by the Chief Justice is that:W.P.(C) 7661/2010 Page 9 of 13
Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. (See para 29 page 11)
51. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who W.P.(C) 7661/2010 Page 10 of 13 deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber- stamp reasons' is not to be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of W.P.(C) 7661/2010 Page 11 of 13 giving reasons for the decision is of the essence and is virtually a part of "Due Process"."
8. As is clear from the law enunciated in Kranti Associates (supra) the Petitioner ought to have given a reasoned order in dismissing the Respondent from service. In this behalf it is noted that under the provision of Regulation 11 of DTC Meeting Regulations, 1981, which prescribes a procedure for reference of urgent matters to the Board, it is stipulated that it is only upon receipt of the views of the members of the Board as provided and after due consideration of the views of the majority of the members including that of the Chairman of the Board a decision shall be recorded. Thus, it is implicit in this provision that the members have to express their views, thereby requiring due application of mind to the subject and expression of opinion thereon. This has not been done in the present case. Penalty of dismissal is a major penalty not only resulting in an end to the officer's service in that particular organisation but consequently also proves to be a blot in his or her career. It has to be supported by cogent reasons and non-compliance with this procedural requirement causes grave prejudice to the officer.
9. Thus, the law as is clearly demonstrated by the aforementioned decisions has been correctly appreciated by the Tribunal. We find no reason W.P.(C) 7661/2010 Page 12 of 13 to interfere with the same. The instant petition is devoid of any merit and is hereby liable to be dismissed.
SIDDHARTH MRIDUL, J BADAR DURREZ AHMED, J MARCH 12, 2013 mk W.P.(C) 7661/2010 Page 13 of 13