Narain Singh v. State of Uttar Pradesh — 1971 DIGILAW 13 (ALL)

JUDGMENT Hari Swarup, J. - Narain Singh was employed as a Labour Welfare Officer in the Upper Doab Sugar Mills Ltd., Shamli. Certain charges were drawn against him by the management. One of the charges related to a letter written by him which was considered to be defamatory and against the interests of the employer. The other charge related to some embezzlement in the fair-price shop. The management conducted a domestic enquiry in respect of the charges. Narain Singh did not participate in the enquiry. The management, in pursuance of the second proviso to rule 15 of the U.P. Factories Welfare Officers Rules applied for the concurrence of the Labour Commissioner for imposing the penalty contained in clause (v) of sub-rule (1) of rule 15, namely dismissal or termination of service. The Labour Commissioner got an enquiry made into the matter through the Chief Inspector of Factories and on the basis of that enquiry gave his concurrence by an order dated 24-1-1969. Thereafter the management passed an order on 28-1-1969 dismissing the petitioner from the service of the company with immediate effect. The petitioner feeling aggrieved by the order filed writ petition no. 368 of 1969 in this Court. The petition was rejected on 3-2-69. The petitioner then filed an appeal under rule 16 of the Rules. The appeal was dismissed by the State Government and the order of dismissal was communicated to the petitioner on 2-7-69 by the U.P. Sachiv to the State Government. In the order it was stated that the appeal had been rejected after due consideration by the State Government. The petitioner has now filed the present petition challenging the order of the State Government passed in appeal as well as the order of the management passed on the concurrence of the Labour Commissioner dismissing him from service. 2. The learned counsel, for the petitioner has challenged the order of the Labour Commissioner granting concurrence, inter alia, on the ground that he had not himself conducted the enquiry but had got the matter enquired into through the Chief Inspector of Factories. According to him this was not permissible. It was also contended that the order was bad in law as some evidence was examined by the Chief Inspector of Factories in the absence of the petitioner and all the witnesses that the petitioner wanted to produce were not examined. According to him this was not permissible. It was also contended that the order was bad in law as some evidence was examined by the Chief Inspector of Factories in the absence of the petitioner and all the witnesses that the petitioner wanted to produce were not examined. He has challenged the order of the State Government passed in appeal on three grounds : firstly, that the order was not a speaking order and was bad in law as it gives no reasons for the order; secondly, that the State Government had invited comments from the management and did not appraise the petitioner of the comments made by the management; and, thirdly, that the order of the State Government was passed mala fide. 3. The learned counsel for the respondents have contended that the order passed by the Labour Commissioner was valid and the concurrence granted by him was good in law as no irregularity had been committed in the procedure. They have also tried to justify the order of the State Government passed in appeal. 4. The order of the Labour Commissioner and the consequent order passed by the management dismissing the petitioner had come up before this Court and this Court had, as stated earlier, refused to interfere. The learned counsel for the petitioner has stated that this Court refused to interfere on the ground that the petitioner had an alternative remedy of appeal. The petitioner has since then filed an appeal before the State Government. The order of dismissal passed on the concurrence of the Labour Commissioner has thus gone up before the State Government for consideration in appeal. The State Government is fully competent to consider whether the order of dismissal was justified or not. In these circumstances, it would not be appropriate to consider the validity of the order of the Labour Commissioner in these second writ proceedings. 5. The order passed by the State Government as communicated to the petitioner obviously contains no reasons. It cannot be said to be a speaking order at all. An affidavit in reply to the petitioner has been filed by Sri B.B. Mathur, Deputy Secretary to the U.P. Government, Labour Department, Lucknow. 5. The order passed by the State Government as communicated to the petitioner obviously contains no reasons. It cannot be said to be a speaking order at all. An affidavit in reply to the petitioner has been filed by Sri B.B. Mathur, Deputy Secretary to the U.P. Government, Labour Department, Lucknow. He has stated in Paragraph 7 of his affidavit : "That in accordance with the prevailing practice in the Civil Secretariat of the U.P. Government, a detailed note dealing with the questions raised by the petitioner in his appeal was prepared by the deponent on the basis of the material on record before the Government which was placed before the Special Secretary of the Labour Department, who approved the same whereupon the said note was placed before the then Minister for Labour, who forwarded the same to the Chief Minister for final orders. The Chief Minister, by his order dated 20th June, 1969 approved the note of the deponent and directed that the petitioner's appeal be rejected, consequently the Government order dated 2-7-1969 was issued rejecting the petitioner's appeal." A copy of the note prepared by the Deputy Secretary has been annexed as annexure (1) to the affidavit. However, neither the order passed by the Minister of Labour has been filed along with the affidavit nor the order of the Chief Minister. The learned counsel for the State had brought the record before the Court for showing the orders passed by the Labour Minister and the Chief Minister in the case. These are also in the nature of nothing in the Secretariat file and the learned counsel for the petitioner has rightly objected to their being taken into consideration for determining or constructing the reasons for the order. The order communicated to the petitioner and which is the only order which can be deemed to be the order passed in appeal thus remains without any reasons. In the case of "Prag Das v. Union of India, Civil Appeal No. 657 of 1967, the Supreme Court laid down that where reasons in support of the order made by the Government are not made available to the parties concerned in the dispute, it is not open to the Court to construct the reasons for the order. In the case of "Prag Das v. Union of India, Civil Appeal No. 657 of 1967, the Supreme Court laid down that where reasons in support of the order made by the Government are not made available to the parties concerned in the dispute, it is not open to the Court to construct the reasons for the order. The Supreme Court observed : "It is not for the High Court to give reasons which the Government might have, but has not chosen to give, in support of its conclusion. Since no reasons were given in support of the order passed by the Central Government, the order was ex facie defective and the defect could not be remedied by looking into the file maintained by the Government and constructing the reasons in support of that order. The reasons in support of the order had to be recorded and disclosed to the parties concerned by the Central Government; the reasons could not be gathered from the `notings' made in the files of the Central Government. The recording of reasons and disclosure thereof is not a mere formality." In view of the law laid down in the above case, it is not open to this Court to construct and find out the reasons which might have impelled the State Government to pass the impugned order. 6. The learned counsel for the respondent No. 3 has, however, contended that the reasons can be found out by the Court by looking; into the affidavit filed by the Deputy Secretary in the case. As already noted, the actual order passed by the Chief Minister is not a part of the affidavit and the affidavit does not say what the order of the Chief Minister actually was. The only thing said was that he approved of the notings made by the Deputy Secretary. This is not sufficient to show that the Chief Minister had applied his mind to the controversy. In the above-cited case it has been held that what is important is not what is contained in the notings of the government's record, but what is contained in the communication to the party. This is not sufficient to show that the Chief Minister had applied his mind to the controversy. In the above-cited case it has been held that what is important is not what is contained in the notings of the government's record, but what is contained in the communication to the party. In the case of "Commissioner of Police v. Goverdhan Das, A.I.R. 1952 S.C. 16, it has been observed that : "Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." It is thus clear that the order itself should be looked into for determining the reasons which may have impelled the State Government to pass the order. The affidavit filed by the Deputy Secretary subsequently to show that his reasoning or notings had been approved by the Chief Minister cannot take the place of an order of the Chief Minister. 7. The learned counsel for the respondent No. 3 has further contended that the order passed in appeal will be good even though it does not contain any reasons. According to him the order passed in the circumstances of the present case need not be a speaking order as it only affirms the order passed by the management after concurrence of the Labour Commissioner, on the basis of an enquiry conducted for the purpose. In support of his contention he has placed reliance on the following cases : "State of Madras v. Srinivasan, A.I.R. 1966 S.C. 1827". "Nandram v. Union of India, A.I.R. 1966 S.C. 1922". "Somdutt v. Union of India, A.I.R. 1969 S.C. 414". All the above cases were considered by this Court in the case of "Ram Murti Saran v. State of U.P., 1970 A.W.R. 789" After considering these cases and the case of "Bhaggat Raja v. Union of India, A.I.R. 1967 S.C. 1606", the majority of the learned judges came to the conclusion that the order passed in revision under Sec. 7-F of the U.P. (Temp.) Control of Rent and Eviction Act did require a reasoned order. In the case of "State of Madras v. Srinivasan, A.I.R. 1966 S.C. 1827" the Supreme Court was considering if the State Government before passing an order for imposition of penalty was required to give reasons for approving the report of the Tribunal for Disciplinary Proceedings approved of by the Madras Public Service Commission. In these circumstances it was held that no reasons were required to be given for the approval of the report before passing orders for the imposition of penalty. In the case of Nandram the whole matter had become open before the Supreme Court in appeal and the absence of reasons by the Government was not considered to be fatal to the order. The case of Som Dutt had arisen out of an order passed by a court Martial and it was held that the court martial was not itself required to give any reasons for the order and it is sufficient for it to state if the person is found to be guilty. If the original authority is not required to give its reasons for reasons of security, no duty can be deemed to be cast on the appellate authority to give reasons for its order as the same may again affect the security or the purpose for which it is not necessary for the court martial to give the reasons. 8. In the present case, however, the State Government was dealing with a matter where the civil rights of the parties were involved. The order of the State, Government was of a quasi-judicial nature and is subject to judicial review by the High Court under Article 226 of the Constitution and by the Supreme Court under Article 136 of the Constitution. The exercise of these powers can be properly made only if the order of the State Government passed in appeal contains the reasons. In "Local Government Board v. Arliege, 1914-15 All England Reports p. 1" it was observed that : "Where the duty of deciding the appeal is imposed, those duty it is to decide it must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of representing the case made. The decision must be given in the spirit and the sense of responsibility of the tribunal whose duty it is to mete out justice." 9. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of representing the case made. The decision must be given in the spirit and the sense of responsibility of the tribunal whose duty it is to mete out justice." 9. When Rule 16 casts a duty on the State Government to decide the appeal, it naturally enjoins on the State Government the duty to act judicially, which necessarily means that the appellate order should contain the reasons for the order and should in that sense be a speaking order. The order of the State Government does not satisfy the requirement of being a speaking order and is thus liable to be quashed on this ground alone. As the appellate order is being set aside, it is not necessary to go into the other contentions raised by the parties. 10. In the result, the petition is partly allowed. Let a Writ in the nature of Certiorari be issued quashing the order of the State Government dated 2nd July, 1969 passed on the petitioner's appeal under Rule 16 of the U.P. Factories Welfare Officers Rules, and a direction be issued to the State Government to decide the petitioner's appeal by a speaking order in accordance with law. In the circumstances of the case the petitioner will get his costs from the State Government. opposite party No. 1.