Himachal Pradesh High Court
Building Near Church vs State Of Punjab & Others (2001) 6 on 14 June, 2022
Bench: Tarlok Singh Chauhan, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF JUNE, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 3702 of 2022
BETWEEN:
DR.PARAMJIT SINGH NEGI, AGED 60 YEARS, S/O
LATE SH.AMARJEET SINGH, R/O TAX OFFICE
BUILDING NEAR CHURCH, THE MALL, SOLAN
DISTRICT SOLAN (H.P).
........PETITIONER
(BY SHRI R.K. KAUSHAL & SHRI ADITYA KAUSHAL,
ADVOCATES)
AND
1. STATE OF HP THROUGH THE SECRETARY
(ANIMAL HUSBANDRY) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002 (H.P).
2. THE DIRECTOR, DIRECTORATE OF
ANIMAL HUSBANDRY DEPARTMENT,
PASHUDHAN BHAWAN, BOILEAUGANJ,
SHIMLA-171005 (H.P).
.........RESPONDENTS
(BY MR. ASHOK SHARMA, ADVOCATE GENERAL WITH MR.
VINOD THAKUR, MR. SHIV PAL MANHANS, ADDITIONAL
ADVOCATE GENERALS, MR. YUDHVIR SINGH THAKUR,
DEPUTY ADVOCATE GENERAL AND MR. RAJAT CHAUHAN,
LAW OFFICER, FOR THE RESPONDENTS/STATE).
_____________________________________________________________
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2
This petition coming on for admission before notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed
.
the following :-
ORDER
Notice. Mr. Vinod Thakur, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.
2. We are really appalled in the manner in which the Additional Chief Secretary (Animal Husbandry) has passed order dated 02.11.2020 exonerating the petitioner without according any reason whatsoever. It shall be apt to reproduce order dated 02.11.2020, which reads as under:-
"1. Whereas a charge sheet was served to Dr. Paramjeet Singh Negi, Retd. Deputy Director ( Poultry), Directorate of Animal Husbandry, Shimla-5, under Rule 14 of the Central Civil Service ( Classification, Control and Appeals, ) Rules 1965 vide Memorandum No. AHY-B(14)-1/2018 dated 24.07.2018.
2. Whereas the charges against Dr. Paramjet Singh Negi, has inquired by the Commissioner, Departmental Enquiry as submitted to him vide this Department's order dated 29.09.2018. He has mentioned that no charges were proved against him except partically to the extent that he failed to maintain and monitor the cash dated 22.04.2020.::: Downloaded on - 16/06/2022 20:02:06 :::CIS 3
3. After going through all the facts and circumstances of the case viz. a viz article of charges, Enquiry Report and reply given by Dr. Paramjeet Singh Negi Retd. Deputy Director, to .
these charges, the undersigned has come to conclusion that the charges have not been proved by the Commissioner, Departmental Enquiry framed against him does not survive anymore.
4. Therefore, in view of above findings, all the charges framed against Dr. Paramjeet Singh Negi, Retd. Deputy Director, in above charge sheet, are hereby dropped.
( By order and in the name of the Governor, Himachal Pradesh )."
3. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions, such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority, as has been held by three Hon'ble Judges Bench of the Hon'ble Supreme Court in Tarlochan Dev Sharma Vs. State of Punjab & Others (2001) 6 SCC 260.
4. It is well settled that disciplinary inquiry being quasi-
judicial in nature has to be held in accordance with the principles of natural justice and fair play.
5. Failure to give reasons amounts to denial of justice.
Reasons are live links between the mind of the decision taker to the ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 4 controversy in question and the decision or conclusion arrived at.
Reasons substitute subjectivity by objectivity. The emphasis on .
recording reasons is that if the decision reveals the"inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform the appellate function or exercise the power of judicial review in adjudging the validity of the decision.
Right to reason is an indispensable part of a sound judicial system.
6. The necessity of assigning reason has been repeatedly emphasized by the Hon'ble Supreme Court and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Kranti Associates Pvt. Ltd. and another versus Masood Ahmed Khan and Others (2010) 9 SSC 496,wherein after taking into consideration the entire law on the subject, the position of law was summarized as under:
(a) In India the judicial trend has always been to record reasons,even in administrative decisions, if such decisions affect any one 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 quasijudicial or even administrative power.::: Downloaded on - 16/06/2022 20:02:06 :::CIS 5
(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, quasijudicial 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 isthe soul of justice.
(i) Judicial or even quasijudicial opinions these days can be as different as the judges and authorities who 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 quasijudicial authority is not candid enough about his/her decision making process then it is impossible toknow whether the person deciding is faithful to the doctrine ofprecedent or to principles of incremental-ism.
(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 ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 6 Shapiro in Defence of Judicial Candor (1987) 100Harward Law Review 73137).
(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 RuizTorija v.Spain (1994) 19 EHRR 553, at 562 para 29 and Anya vs. 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 insetting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
7. In Ravi Yashwant Bhoir Vs. District Collector, Raigad and others (2012) 4 SCC 407 ,the Hon'ble Supreme Court held as under:
"38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.
39. In Shrilekha Vidyarthi Vs. U.P.(1991) 1 SCC 212 this Court has observed as under: (SCC p. 243, para 36).:::
"36......Every State action may be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is the trite law ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 7 that 'be you ever so high, the laws are above you'. This is what men in power must remember, always."
40. In LIC Vs. Consumer Education and Research Centre .
(1995)5 SCC 482 this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision.
"Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India Vs. Mohan Lal Capoor (1973) 2 SCC 836 and Mahesh Chandra Vs. U.P. Financial Corpn.(1993) 2 SCC 279.41. In State of W.B. Vs. Atul Krishna Shaw 1991 Supp (1) SCC414, this Court observed that : (SCC p. 421, para 7) "7....Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
42. In S.N. Mukherjee Vs. Union of India(1990) 4 SCC 594, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play inaction. The expanding horizon of the principles of natural justice provides for requirement to record reasons as to it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
43. In Krishna Swami Vs. Union of India (1992) 4 SCC 605, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on High Court of H.P. the reason stated in the order ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 8 or borne out from the record. The Court further observed:
(SCC p. 637, para 47).
"47......Reasons are the links between the material, the .
foundation for their erection and the actual conclusions.
They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 orunfair procedure offending Article 21".
44. This Court while deciding the issue in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd.(2010) 13 SCC 336,placing reliance on its various earlier judgments held as under:(SCC pp. 34546, para 27).
"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. '3....The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind'.::: Downloaded on - 16/06/2022 20:02:06 :::CIS 9
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with .
objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before High Court of H.P.10 the higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness indecision making. The person who is adversely affected must know why his application has been rejected."
45. In Institute of Chartered Accountants of India Vs. L.K.Ratna (1986) 4 SCC 537, this Court held that on charge of misconduct the authority holding the inquiry must record reason sfor reaching its conclusion and record clear findings. The Courtfurther held: (SCC p. 558, para 30).
"30.....In fairness and justice, the member is entitled to knowwhy he has been found guilty. The case can be so serious that itcan attract the harsh penalties provided by the Act. Moreover,the member has been given a right of appeal to the High Court under Section 22A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilty of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a 'finding'. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding."::: Downloaded on - 16/06/2022 20:02:06 :::CIS 10
46. The emphasis on recording reason is that if the decision reveals the "inscrutable face of the 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 in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-
judicial performance."
8. Earlier to the aforesaid decisions, a Constitution Bench of the Hon'ble Supreme Court, in S. N. Mukherjee vs. Union of India, (1990) 4 SCC 594, after an exhaustive review of its earlier pronouncements as also the views expressed in other jurisdictions and by expert committees, summarized and explained the law as under:-
"The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasijudicial functions must record the reasons for its decision, is that such a decision is subject to ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 11 the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that .
the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court intaking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority;
(ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasijudicial functions,would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations,referred to above, which have also weighed with this Court inholding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures 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. In our opinion, therefore, the requirement that reasons be ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 12 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 may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court o flaw. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit 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 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.
Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasijudicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natural justice,namely, that a party is entitled to know the reason for the decision, be it judicial or quasi- judicial. The committee expressed the opinion that "there are some cases where the refusal to giveg rounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 13 the opportunity." (P 80) Prof. H.W.R. Wade has also ex- pressed the view that "natural justice may provide the be strubric for it, since the giving of reasons is required by the .
ordinary man's sense of justice." (See Wade, Administrative Law, 6th Edn. P. 548).
9. Arbitrariness in making of an order by an authority can manifest itself in different forms. Non application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. Application of mind is best demonstrated by disclosure of mind by the authority making the order and disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority is clearly suggestive of the order being arbitrary hence legally unsustainable.
10. Adverting to the instant case, it would be noticed that what weighed with the appellate authority to reject the appeal is not at all forthcoming. Consequently, this order is clearly arbitrary and cannot, therefore, withstand judicial scrutiny, more particularly, when even the order passed by the disciplinary authority is also totally devoid of reasons. 13It is ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 14 well settled that the orders made by the appellate authority must contain reasons for the conclusions reached. Reference in this .
regard can conveniently be made to the judgments rendered by the Hon'ble Supreme Court in R.P. Bhatvs. Union of India, AIR 1986 SC 1040 and Ram Chander vs. Union of India, AIR 1986 SC 1173.
11. In S.D. Sharma vs. State of H.P., 2005 Labour Industrial Cases 696, this Court has held that the appellate authority must consider and decide all the grounds raised in the appeal and issue a complete and self contained order. 15As observed earlier, it is no more res integra that the orders passed by the appellate authority and disciplinary authority must be reasoned and speaking.
12. In Roop Singh Negi vs. Punjab National Bank &anr., 2009 (2) SCC 570, the Hon'ble Supreme Court has held as under:-
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on ::: Downloaded on - 16/06/2022 20:02:06 :::CIS 15 the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision .
must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Office rwas based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
13. Referring to the earlier case law on the subject, the Hon'ble Supreme Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney, 2009 (4) SCC 240 held that even where the appellate authority agrees with the disciplinary authority, the order passed by it "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."
14. Adverting to the facts of the instant case it would be noticed that the petitioner was charge-sheeted on six counts, as detailed here-in-below.
::: Downloaded on - 16/06/2022 20:02:06 :::CIS 16ARTICLE-I: Fraud & Embezzlement of Rs.3331563/-
by non accountal of receipt and cash deposit in cash book.
.
ARTICLE-2: Misappropriation of funds Rs.3049736/-
ARTICLE-3: Suspected Embezzlement /
Misappropriation of funds Rs.5952520/-
& Rs.1831953/-
ARTICLE-4: Cash drawl by issue of Self or bearer
cheques.
ARTICLE-5:
r to
Various Irregularities in maintenance of Cash Book and Ledger Accounts and Non-reconciliation of accounts/ balances.
ARTICLE-6: Unauthorized retainment of Govt. funds Rs. 2495000 and Rs. 3331563/- and penal interest thereon Rs. 517564/-.
15. After recording the statements of the witnesses and going through the documents exhibited during the course of enquiry, the Commissioner Departmental Enquiry gave its findings charge-wise as under:-
Charge-I is proved partially against the C.O. only to the extent that he failed to monitor strictly maintenance of cash books regularly.
Charge No-II against the C.O. is not proved.
Charge No-III against the C.O. is not proved.
Charge-IV against the C.O. is not proved.
Charge-V is proved partially.::: Downloaded on - 16/06/2022 20:02:06 :::CIS 17
Charge VI against the C.O. is not proved.
16. Thus, it is evidently clear that some of the charges .
had been partially proved against the petitioner and it is against this precise order that the petitioner filed a detailed representation against the enquiry report, which representation, as stated above, has been accepted and charges framed against the petitioner have been ordered to be dropped, that too, without assigning any reasons whatsoever for the same. The least that was expected of the officer of the rank of Additional Chief Secretary was to have recorded the findings as to how the findings rendered by the Commissioner Departmental Enquiry were wrong and only thereafter could have passed an appropriate order.
17. Since, the order exonerating the petitioner is totally unreasoned, therefore, prayer made in the petition for release of retiral dues of the petitioner cannot be acceded to unless a proper and reasoned order is passed by the respondent.
18. Accordingly, we dispose of this petition by directing Additional Chief Secretary (Animal Husbandry) to pass a fresh order in terms of observations made here-in-above, within a period of four weeks, from today.
::: Downloaded on - 16/06/2022 20:02:06 :::CIS 1819. Pending miscellaneous application(s), if any, shall also stand disposed of.
.
(Tarlok Singh Chauhan) Judge ( Satyen Vaidya ) Judge 14th June, 2022 (sushma) ::: Downloaded on - 16/06/2022 20:02:06 :::CIS