Research › Browse › Judgment

Gauhati High Court · body

1981 DIGILAW 136 (GAU)

Mafijuddin Bhuyan v. State of Assam & Ors.

1981-11-27

K.LAHIRI, S.M.ALI

body1981
Lahiri, J.:- Whether the State Government is bound to render a reasoned order while disposing a review application under rule 115(A) of the Executive Instructions contained in Chapter VIII, Part VIII of the Assam Land and Revenue Regulation, volume I (for short "Rule 115(A). If so, what is the effect of an order which does not contain any reason for the decision? These are the main questions posed in this application under Article 226 of the Constitution. 2. The then Deputy Commissioner, Kamrup called for appli­cations for the post of Mouzadar, held interviews and appointed Respondent No. 4 as Mouzadar by his order dated 9.4.79. The petitioner was one of the applicants. Later the successor in office of the Deputy Commissioner stayed the operation of the order of appointment of Respondent No. 4 by his order dated 30.4.79. Respondent No. 4 questioned the validity of the order in Civil Rule No. 177 of 1979. On 15.5.80 the High Court upon hearing both the parties quashed the order of the Deputy Com­missioner dated April 30, 1979 as an "appeal" was pending before the Government. The "appeal" was in fact a review application presented by the present petitioner to the Govern­ment under "Rule 115 (A)". Though it was a consent order, the learned Judge directed the State Government "to dispose of the appeal as expeditiously as possible", The State Govern­ment heard and disposed of the matter by making the follow­ing order : "The appeal is rejected" Sd/- T. C. Baishya, Deputy Secretary to the Govt. of Assam, Revenue (LR) Department. 3. Learned Advocate General, Meghalaya submits that the State Government was bound to give reasons on the fact and in the circumstances of the case. Counsel described the charac­ter of the order as "a dumb order". Learned Counsel for the Respondents submits that there is no right of appeal nor was the State Government obliged to give any reason while disposing the application for review. 4. The 'Mouzadars' appointed under the Regulation per­form public duties and they are public servants. They are appointed by responsible public servant, namely, the Deputy Commissioners. Mouzadars have important functions to play including collection of Government revenue. 4. The 'Mouzadars' appointed under the Regulation per­form public duties and they are public servants. They are appointed by responsible public servant, namely, the Deputy Commissioners. Mouzadars have important functions to play including collection of Government revenue. For obvious reasons the State Government considered that there should be some check and control over such appointments and amended the Executive instructions and introduced a new rule as 115(A) which reads as follows : "The State Government may either on its own motion or on an application made review the order of the Deputy Commissioner and set it aside or may remit the case to the Deputy Commissioner directing such further action or enquiry as is considered proper according to the circumstances of each case". (Emphasis added) The above rule follows Rules 115 and 115A. The Deputy Commissioners have been empowered to appoint, suspend or dismiss a Mouzadar under Rule 115A. Under rule 115 there is a positive right of appeal against an order of dismissal under Rule 115B but the rule states that there shall be no right of appeal against an order of suspension. As such, an order of dismissal is appealable, other orders are not appea­lable. However, the new rule introduced in as Rule 115(A) empowers the State Government either on its own motion or on application to review any order of the Deputy Commissi­oner. As such, the order of appointment of a Mouzadar is review able by the State Government on its own motion or on an application. The position has not been disputed before us. However Mr. A. S. Choudhury, the learned Counsel for the respondents has very rightly pointed out that the review application had been referred as an appeal but the right term for it should be "review''. We are of the view that the State Government can only review an order of appoint­ment of Mouzadar and there is no right of appeal against such an appointment. The nature of the review power is wide and large. The State Government may set aside the order, remit the case and give further direction according to the circumstances of each case. 5. Now the question that crops up is whether such an important function of the State Government which deals with the appointment of a responsible public servant can be discharged by making a cryptic order which does not contain any reasons. 5. Now the question that crops up is whether such an important function of the State Government which deals with the appointment of a responsible public servant can be discharged by making a cryptic order which does not contain any reasons. We are concerned, in the instant case about exercise of the power of review when another candidate for the post has contested the validity of the appointment on various grounds. Therefore, the party who has raised the disputations must know the reasons why the grounds raised by him were turned down. This apart the State Government while exercising the power of review performs a public duty, the repository of the power is the State Government itself and not any other instrumentality. The reservation of the power in the State Government is meaningful and pregnant. When debatable questions are raised the exercise of power of review assumes a character akin to such power conferred on the Civil Courts and there is a reciprocal obligation on the repository of the power to discharge its function by giving reasons. Such administrative actions are subject to judicial review by the High Court under Articles 226 and 227 of the Consti­tution. Therefore, the least that we can expect is a speaking order of the authority. When the validity of the decision of the Deputy Commissioner was challenged by the petitioner on the grounds of (a) commission to procedural illegalities (b) decision rendered by the authority not warranted on material on records and (c) that the petitioner was more qualified and legally entitled to be appointed in preference to Respondent No. 4, in our opinion, the State Government was bound to give reasons other­wise it would be natural to conclude that the authority could not meet the challenges or to conclude that the authority had no reason to offer in respect of the contentions raised. Rule 115(A) expresses in clear term that a review order must be based on "objective satisfaction" of the authority to be set-forth in the order. Otherwise there will be a potent danger of non-consideration of the contentions raised which would encourage mechanical exercise of power or "rubber stamp" exercise of the power by the authority. Duty to give reason acts as a safety valve which protects arbitrary action of the Government, The Rule does not empower the authority to withhold the reasons in support of the order. Duty to give reason acts as a safety valve which protects arbitrary action of the Government, The Rule does not empower the authority to withhold the reasons in support of the order. Therefore it is a general duty to give reasons by such an authority. The obligation to give reasons on such situation is the minimum requirement of the rule of law. Lord Denning has observed in Breen vs. Amalgamated Engineering Union, (1971) All ER 114% "The giving of reasons is one of the fundamental of good administration". The Supreme Court in Khudiram vs. State of West Bengal, (1975) 2 SCR 832 (845) AIR 1975 SC 550 (552) has held that in a Government of laws "there is nothing like unfettered discretion immune from judicial review ability". The executive, no less than judiciary is under a general duty to act fairly. Fairness founded on reason is the essence of the guarantees epitomised in Article 14 is the principles of law propounded by the Supreme Court in Manager, Government Press vs. D.B. Belliappa, AIR 1979 SC 429 . The duty to give reasons is the elementary requirements of quasi-judicial process This is what has been stated by the Supreme Court in Govindrao vs. State of M.P, AIR 1955 SC 1222 (1226) and CIT vs. Walchand & Co, AIR 1967 SC 1435 (1436). The principles of natural justice demands that an aggrieved person must know the reasons for decisions taken against him. Absence of such an authority multiply writ proceedings. Even discretionary power coupled with duties calls for reasons to be stated as the authority is under a legal duty or obligation to decide the review application one way or the other. The power of review has more depth, width, and contours than those exercisable in the absence of a right of review, say, making of represen­tation or memorandum etc. The rule enjoins the authority to declare its finding on the material, therefore absence of reasons amounts to "failure to constitute the records", which by itself is a ground for quashing an order without any reason. The concept of error of law takes within its fold giving of inconsistent or unintelligible or inadequate reasons. Therefore, giving of "no reasons" is undoubtedly an error of law. The concept of error of law takes within its fold giving of inconsistent or unintelligible or inadequate reasons. Therefore, giving of "no reasons" is undoubtedly an error of law. A for­tiori when application of wrong legal test to the facts found or taking of irrelevant consideration or failure to take relevant consideration can be ''error of law", it stands to reason that giving of "no reason" must come within the concept of "error of law". When the right of review has been expressed given to a quasi-judicial authority like the present authority, it is bound to "act fairly". There is a undoubted duty to deter­mine a review according to law on the basis of legally rele­vant consideration, therefore, it is imperative for the authority to State the reasons for its decision. The holder of such powers must "act fairly". It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done in such proceedings. Giving of reasons is the life-blood of natural justice. The question left is the effect of failure to give reasons. In State of Punjab vs. Bakhtawar Singh, AIR 1972 SC 2082, Mahabir Pd. vs. State of U. P., AIR 1970 SC 1302 , State of Gujarat vs. Krishna Cinema, AIR 1971 SC 1650 , State of Gujarat vs. P. Raghav, AIR 1969 SC 1297 , their Lordships have held that failure to give reasons, wherever required makes the order invalid. 6. There may be (i) non-supply of reasons both to the party and to the Courts when called upon to show cause (ii) non-supply of reasons to the party but communicating reasons to the Court when asked for and (iii) supply of reasons to the party after undue delay of the communication of the noa-speaking order but before the aggrieved persons Court, la the instant case, no reason his bee a given in the order nor supplied to the Court. In such cases the rule is that the order must be quashed and the authority be directed to examine the matter afresh. In Bhagat Raja vs. Union of India, AIR 1957 SC 1605 as well as in Chowgule & Co. vs. Union of India, AIR 1971 SC 2J21 the Supreme Court quashed the order and directed the Government to decide the review application afresh. In Bhagat Raja vs. Union of India, AIR 1957 SC 1605 as well as in Chowgule & Co. vs. Union of India, AIR 1971 SC 2J21 the Supreme Court quashed the order and directed the Government to decide the review application afresh. Similarly, in Travencore Rayons vs. Union of India, AIR 1971 SC 862 the Supreme Court quashed the order on the score that the Government had failed to give reasons and remitted the case back for fresh decision accor­ding to law. We have no hesitation in setting aside the impugned order of the State Government dated 11.1280 and direct the State Government to hear and dispose of the review application in accordance with law within 3 (three) months from to-day. The petition is allowed to tenement indicated above. There is no order as to cost. Send down the records forthwith.