Calcutta High Court (Appellete Side)
Shantanu Consul vs Mrs. Garima Singh & Anr on 30 March, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
30.3.2011. A.S.T. No. 126 of 2011
Shantanu Consul
-vs-
Mrs. Garima Singh & Anr.
Mr. Farook M. Razack
Mr. P.K. Tarafdar
Mr. Prabhat Kr. Chattopadhyay
Mr. G.S. Makkar
Ms. Priyanka Bhutoria
.. for the petitioner.
Mr. Asoke De
Mr. Indranil Nandi
.. for the respondents.
________
Pratap Kumar Ray, J.
The matter is taken up as on day's list in view of urgency as prayed for.
Heard the learned Advocates appearing for the parties.
Having regard to the tenor of the order, we are of the view that the writ application could be disposed of here and now.
Leave is granted to take necessary ground here and now.
Assailing the order dated 1st February, 2011 passed in contempt application being C.P.C. No. 14 of 2010 arose out of alleged violation of the interim order dated 23rd December, 2009 and the extension of that interim order dated 6th January, 2010 passed in O.A. No. 1864 of 2009, this writ application has been filed.
The impugned order reads such:-
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"Issue notice to the alleged contemnors for framing the charges.
2. List the matter for orders on 31.3.2011." Learned Advocate for the writ petitioner has referred Rule 8 of Contempt of Court's (CAT) Rules, 1992 to contend that there was no reason assigned by the learned Tribunal below about prima faice satisfaction of the learned Tribunal that a case of contempt has been made out prior to passing the order directing issuance of notice. The relevant provision of Rule 8 reads such:-
"8. Preliminary hearing and notice. - (i) The Bench if satisfied that a prima faice case has been made out, may direct issue of notice to the respondent; otherwise, it shall dismiss the petitioner or drop the proceedings.
(ii) The notice shall be in Form No. 1 and shall be accompanied by a copy of the petition or information, and annexures, if any, thereto.
(iii) Service of notice shall be effected in the manner specified in the Central Administrative Tribunal (Procedure) Rules, 1987 or in such manner as may be directed by the Bench."
On a bare reading of the impugned order it appears that there is no whisper that the learned Tribunal below prima facie was satisfied about breach to bring the issue under the Contempt of Court's Act in exercise of the power vested under Section 17 of the Administrative Act, 1985. It is a settled legal position of law now that every order of judicial, quasi-judicial, 3 administrative and other field where there is any adjudication, it must be with reason and by this process the doctrine of speaking order has developed. Speaking order principle as enunciated by English Court and the Apex Court of India are as follows:-
It is the basic principle of law that every order passed by any administrative body or any quasi judicial body and/or even by the judicial body must disclose the reason of the order so that the person concerned who is affected thereby may approach the higher forum and/or higher Court assailing the decision thereof. In the case Chairman, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney & Ors., reported in (2009) 4 SCC 240, the Court held that "reason must be given by the appellate or revisional authority even when affirming the impugned decision". Reliance was placed in that case, the case of Divisional Forest Officer, Kothagudem vs. Madhusudhan Rao, reported in (2008) 3 SCC 469, M.P. Industries Limited vs. Union of India, reported in AIR 1966 SC 671 and Seamen Engineering and Manufacturing Company of India Limited vs. Union of India, reported in (1976) 2 SCC 981. In that case the Court explained and discussed the contra decision passed in the case S.N. Mukherjee vs. Union of India, reported in (1990) 4 SCC 94 by explaining the said decision that in case of affirmation, 4 no reason separately required to be given as held in S.N. Mukherjee (supra) should be read as an observation meaning thereby that order of affirmation need not contain any elaborate reasoning as contained in original order, but it cannot be understood to mean that even brief reason need not be given in order of affirmance. The Court further explained in that case the earlier case of State of Bikaner and Jaipur vs. Prabhu Dayal Grover, reported in (1995) 6 SCC 279, since in the case Prabhu Dayal Grover (supra), it was observed that for affirmative order there was no necessity of giving any reason to this effect that the observation of the Prabhu Dayal Grover (supra) should be read as that the Appellate Authority should disclose briefly application of mind as without any reason cannot be satisfied. It has been further held at least that brief reason should be given so that one can know that the Appellate Authority has applied his mind.
Right to information and right to be informed about a reason of any decision is within the domain of Article 19(1) read with Article 21 of the Constitution of India in terms of the views expressed by the Apex Court in the case Ravi S Naik Sanjay Bandekar vs. Union of India, reported in AIR 1994 SC 1558. It has been held in the case Manager Government Branch Press vs. D.B. Belliappa, reported in AIR 1979 SC 429 that administration is under a general duty to act fairly and 5 fairness founded on reason is the essence of right and equality. Lord Denning MR in the case Breen vs. Amalgamated Engineering Union Limited, reported in (1971) 2 QB 175 even held "it is one of the fundamental of good administration to assign a reason in the decision". In the M.P. Industries Limited (supra) case, Justice Subbarao held in considering the principle of reasoned decision that justice not only should be done but it should be felt to have been done, where reason is a must. Absence of any reason is nothing but non- application of mind, is the view expressed in the case Shanti Prasad Agarwalla vs. Union of India, reported in AIR 1991 SC 814. In the case Steel Authority of India Limited vs. S.T.O., reported in (2008) 9 SCC 407 wherein in para 17 the Court held "reason is heart bit of every conclusion. It introduces clarity and without the same it becomes lifeless". In the case State of West Bengal vs. Alpana Roy, reported in (2005) 8 SCC 296 on considering the cases, namely, Breen (Supra), Amalgamated Engineering Union Limited (supra) and Alexander Machinery (Dudly) Ltd. vs. Crabtree, reported in 1974 ICR 120 (NIRC), in para 8 the Court held "reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the unscrutable face of 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 6 in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reason at least sufficient to indicate an application of mind to the matter before the Court". In Alexander Machinery (Dudly) Ltd. (supra) the Court held "failure to give reasons amounts to denial of justice. Reasons are live links between the minds of the decision taker to the controversy in question and the decision or conclusion arrived at". The same view reiterated in the case Jagatamba Devi vs. Hem Ram & Ors, reported in (2008) 3 SCC 509, wherein in para 10, the decision of Breen (supra) and Alexander Machinery (Dudly) Ltd. (supra) was quoted. Non-speaking order violates the principle of natural justice is the view expressed by the Constitution Bench in the case S.N. Mukherjee vs. Union of India, reported in AIR 1990 SC 1984 by holding that quasi judicial and administrative body if fails to pass any speaking order it breaches the principle of natural justice. Speaking order principle is applicable to a judicial action also as held in Smt. Swarnalata Ghosh vs. Harendra Kumar Banerjee, reported in AIR 1969 SC 1167.
Since the statutory provision of Rule 8 as quoted above mandates that the Bench must be satisfied with a prima faice case, we are of the view that there is a breach of said statutory provision for not recording the prima faice satisfaction of the Bench that a case of contempt 7 has been made out. On that score the impugned order is not legally sustainable and we in exercise of the jurisdiction under Article 226 of the Constitution of India may exercise our power of judicial review with reference to such order as passed by the learned Tribunal as it relates to the breach of the statutory provision.
Considering that issue in that angle, the impugned order is set aside and quashed.
Learned Tribunal below is directed to consider the issue de novo in terms of Rule 8 aforesaid and applying the principle of speaking order doctrine upon giving opportunity of hearing to the parties.
The writ application is allowed to that extent. It is made clear that we have not gone into the merit of the issue but we have decided the writ application applying the principle of speaking order only and on interpretation of the rule 8 of the concerned Rule as referred to above.
Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates appearing for the parties on usual undertaking.
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(Pratap Kumar Ray, J.) I agree.
(Dr. Mrinal Kanti Chaudhuri, J.) sks.