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Madhya Pradesh High Court · body

2008 DIGILAW 1162 (MP)

Anita Singh v. State of M. P.

2008-09-16

DIPAK MISRA, K.S.CHAUHAN

body2008
ORDER Misra, J. -- 1. Pregnability of the order dated 23.11.2007 passed by the learned Single Judge in WP No.16024/2007(S) is called in question by the appellant invoking the jurisdiction under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 2. The facts which are imperative to be uncurtained are that the fourth respondent herein invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India questioning the soundness of the order dated 7.11.2007 passed by the Additional Commissioner, Sagar giving the stamp of approval to the order dated 29.8.2007 passed by the Collector, Panna who had set aside the selection of the writ petitioner for the post of 'Anganbadi' worker. The present appellant had filed a complaint before the Sub-Divisional Officer, Panna regarding the appointment of respondent No.4 stating inter alia, that the appointment was against the norms and the rules. It was put forth that the present appellant was more suitable and qualified in comparison to selected candidate. Various averments were made before the Sub-Divisional Officer. Eventually the matter was taken up by the Collector who set aside the appointment of respondent No.4. Being dissatisfied with the aforesaid order the respondent No.4 preferred a revision which was dealt with by the Additional Commissioner who did not think it proper to unsettle the order passed by the Collector. When the defensibility of the order was called in question before the writ Court, the learned Single Judge quashed the order passed by the Commissioner solely on the ground that the said order did not contain reasons and was not a speaking order and accordingly directed the revisional authority to decide the revision on merits. 3. We have heard Mr. Sanjay Patel, learned counsel for the appellant, Mr. Alok Pathak, learned Government Advocate for the respondents No.1 and 2 and Ms. Anita Vishwakarma, learned counsel for the respondent No.4. 4. Questioning the substantiality of the order passed by the learned Single Judge it is submitted by Mr. Sanjay Patel, learned counsel for the appellant that the learned Single Judge has fallen into grave error by opining that the Commissioner was under an obligation to ascribe reasons while dealing with the revision petition, though in revision only legal issues are to be addressed. Sanjay Patel, learned counsel for the appellant that the learned Single Judge has fallen into grave error by opining that the Commissioner was under an obligation to ascribe reasons while dealing with the revision petition, though in revision only legal issues are to be addressed. It is his further submission that when the Additional Commissioner has concurred with the order passed by the Collector who had given cogent reasons, there was no necessity to dwell upon the every facet and give reasons. It is also canvassed by him that though the reasons are not required to be given, the Commissioner, as an actual fact, ascribed reasons and, therefore, there was no justification on the part of the learned Single Judge to remit the matter for fresh adjudication by the revisional authority. 5. Mr. Alok. Pathak, learned Government Advocate appearing for the State has submitted that the order passed by the Commissioner was just and proper and it did not require any interference by the learned Single Judge. 6. Ms. Anita Vishwakarma, learned counsel for the respondent No.4 has supported the order passed by the learned Single Judge. 7. Two questions emanate for consideration in this appeal. First and principal one is whether the revisional authority while disposing of the revision is required to ascribe reasons while adjudicating the revision arising from an appeal of the present nature and second, whether the learned Single Judge is correct in holding that the revisional authority has really not passed a speaking order and hence, it is a non-reasoned one and, therefore, deserves to be lanceted. 8. First we shall take up the first facet. To have the proper perception of the revisional jurisdiction of the authority concerned it is necessary to refer to the Rules under which the power of revision is exercised. Rule 5 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 (for short "the Rules") confers power on certain authorities to entertain a revision. The relevant portion of the said rule is reproduced below : "5. Revision. Rule 5 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 (for short "the Rules") confers power on certain authorities to entertain a revision. The relevant portion of the said rule is reproduced below : "5. Revision. -- (1) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit : Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard : Provided further that no application for revision shall be entertained against an order appealable under the Act. (b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts." On a close scrutiny of the said rule, it is manifest that the authorities mentioned in the said rule can on their own exercise the power of the revision. The authorities who exercise the power are required to hear the interested parties and grant opportunity of hearing to them before they vary or reverse any order. Any party is also entitled to move an application for revision on the point of law. Thus, the power of revision enables the authority to see the legality and propriety of any order passed by the inferior authority. If the aggrieved party moves the revisional authority, the same is to be entertained on the point of law. It is submitted by Mr. Sanjay Patel, learned counsel that as the revisional authority has to entertain the revision only on the question of law he is not required to give reasons if the case rests on facts. To understand the purpose of ascribing of reasons and concept of reasoned order in the backdrop of natural justice it is requisite to notice certain decisions in the field. 9. To understand the purpose of ascribing of reasons and concept of reasoned order in the backdrop of natural justice it is requisite to notice certain decisions in the field. 9. In Mahabir Prasad Santosh Kumar v. State of U.P. [ AIR 1970 SC 1302 ], the apex Court has held as under : "7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial has reached a conclusion on the problem before him; it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just." 10. In Harbhajan Singh Dhalla v. Union of India [ AIR 1987 SC 9 ], their Lordships have expressed the opinion thus : "26. ...There is an implicit requirement of observance of the principles of natural justice and also the implicit requirement that the decision must be expressed in such a manner that reasons can be spelt out from such decision. Though this is an administrative order in a case of this nature, there should be reasons. ...There is an implicit requirement of observance of the principles of natural justice and also the implicit requirement that the decision must be expressed in such a manner that reasons can be spelt out from such decision. Though this is an administrative order in a case of this nature, there should be reasons. If the Administrative authorities are enjoined to decide the rights of the parties, it is essential that such Administrative authority should record fair and proper hearing to the person to be affected by the order and give sufficiently clear and explicit reasons. Such reasons must be on relevant material factors objectively considered." 11. In Liberty Oil Mills v. Union of India [ AIR 1984 SC 1271 ], it has been held that for "without assigning any reason" implies that the decision has to be communicated but reasons for the decisions have not be stated in the order but the reasons must exist, otherwise the decision would be arbitrary. The expression "without assigning any reason" cannot be equated with the expression "without the existence of any reason". 12. In S.N. Mukherjee v. Union of India [ AIR 1990 SC 1984 ], their Lordships have held as under : "An important consideration which has weighed with the Court for holding that an Administrative authority exercising quasi-judicial functions must record the reason for its decision, is that such a decision is subject to 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 in taking 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. 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 quasi-judicial 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 in holding that an Administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording 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 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 of law. 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." 13. In Shrilekha Vidyarthi (Kumari) v. State of U.P. [ AIR 1991 SC 537 ], the principle with regard to "without the existence of any reason" was laid emphasis upon. 14. In Cyril Lasrado v. Juliana Maria Lasrado [(2004)7 SCC 431], their Lordships have held thus : "11. Reasons introduce clarity in an order. -- On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever, brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. 12. Reasons introduce clarity in an order. -- On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever, brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. 12. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engg. Union [All ER p.1154h) observed : "The giving of reasons is one of the fundamentals of good administration". In Alexander Machiner (Dudley) Ltd. v. Crabtree, it was observed : "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the 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 their appellate function or exercise the power of judicial review in adjudging the validity of the decisions. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before 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 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." 15. In Union of India v. Jai Prakash Singh [ AIR 2007 SC 1363 ], similar view has been expressed. 16. In this context, we think it apt to refer to certain decisions under section 100 of the Code of Civil Procedure. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 15. In Union of India v. Jai Prakash Singh [ AIR 2007 SC 1363 ], similar view has been expressed. 16. In this context, we think it apt to refer to certain decisions under section 100 of the Code of Civil Procedure. In Hero Vinoth (Minor) v. Seshammal [ AIR 2006 SC 2234 ], it has been held as under : "It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not, the paramount over all consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." Their Lordships, in the aforesaid case, have also held that there is distinction between substantial question of law and mere question of law. In the said case, the apex Court has held that though the High Court will not interfere with the concurrent findings of the Courts below, it is not absolute rule. Their Lordships have further opined that some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Court have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capably of supporting the finding. 17. In Ramlal v. Phaguna [2006 RN 1= (2006)1 SCC 168 ], it has held that when the Courts below having concurrently erred in not appreciating oral and documentary evidence properly the High Court was at liberty to re-appreciate evidence and record its own conclusion reversing the orders passed by lower Courts. 18. 17. In Ramlal v. Phaguna [2006 RN 1= (2006)1 SCC 168 ], it has held that when the Courts below having concurrently erred in not appreciating oral and documentary evidence properly the High Court was at liberty to re-appreciate evidence and record its own conclusion reversing the orders passed by lower Courts. 18. In Krishna Mohan Kul v. Pratima Maity [ AIR 2003 SC 4351 ], their Lordships have held that though scope for interference with concurrent findings of fact under, is very limited, but where trial Court and/or First Appellate Court misdirected themselves in appreciating question of law and placed onus or wrong party, certainly there is scope for interference under, after formulating a substantial question of law. 19. In Deva v. Sajjan Kumar [2004(1) Vidhi Bhasvar 176= (2003)7 SCC 481 ], it has been observed that concurrent finding of fact are liable to be interfered with when a very important piece of evidence in the nature of an admission by the defendant has been overlooked by the Courts below. 20. In Rajeshwari v. Puran Indoria [2006(1) MPWN 25= (2005)7 SCC 60 ], it has been held as follows : "6. ...Though an order in exercise of discretion may not involve a substantial question of law, the question whether a Court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit. Therefore, in the case on hand, the High Court was not justified in dismissing the second appeal in the manner in which it has done. Be it noted, that the High Court has also not spoken while dismissing the second appeal. We are, therefore, of the view that it is necessary for the High Court to consider whether a substantial question of law is involved or not and to give its reasons for coming to its conclusion either way, and if it finds that a substantial question of law or substantial questions of law is or are involved, to frame that question or those questions and to answer it or them in accordance with law. In the context of the notice issued by this Court while entertaining the petition for special leave to appeal, the proper course to adopt is to set aside the judgment and decree of the High Court in the second appeal and remand the second appeal to the High Court for a consideration of the question whether any substantial question of law is involved in the case in the light of the pleadings and the facts established and if it arises, to decide whether any interference in the second appeal under section 100 of the Code of Civil Procedure, 1908 is warranted or justified." 21. In State of Orissa v. Dhaniram Luhar [2004(II) MPWN 1=2004 AIR SCW 751], it has been held as under : "7. Reason is the heart-beat of every conclusion, and without the same it becomes lifeless {See: Raj Kishore Jha v. State of Bihar and others [ 2003(7) Supreme 152 ]}. 8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engg. Union [All ER p.1154h) observed: "The giving of reasons is one of the fundamentals of good administration" In Alexander Machiner (Dudley) Ltd. v. Crabtree, it was observed : "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the 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 their appellate function or exercise the power of judicial review in adjudging the validity of the decisions. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before 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 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. 9. The above position was highlighted by us in State of Punjab v. Bhog Singh [ (2004)1 SCC 547 )." 22. One of the salutary requirements of natural justice is spelling out 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. 9. The above position was highlighted by us in State of Punjab v. Bhog Singh [ (2004)1 SCC 547 )." 22. From the aforesaid, it is clear as day that reasons are to be given and the order must spell out the reasons and it should not have the inscrutable face of sphinx. The quasi-judicial authority is bound to give reasons. It is also discernible that when the order is amenable to further avenues of challenge, it should set forth reasons, however brief the same may be, which would indicate application of mind. It is also discernible from the decisions referred in the context of section 100 of the Code of Civil Procedure that reasons are to be ascribed though a substantial question of law is in issue or not and further on certain facts and circumstances the Court can interfere with the concurrent findings off acts. Thus, the ascribing of reasons is essential facet of adjudicatory process, and is imperative. 23. The power of quasi-judicial scrutiny is irrefragably and indubitably more than the basic conception of judicial review. If an order of the revisional authority does not disclose any kind of reason, it would be an anathema to the fundamental concept of natural justice. The doctrine of audi alteram partem in its quintessentialness encapsules, engulfs and inheres in it the basic concept of giving reasons, for reason is the life and soul of the order. In the absence of life and soul, the order is bound to be treated as unsustainable, indefensible and pregnable. 24. It is so as application of judicial mind requires giving of due consideration. A singular line order or the order which does not reflect any kind of applicability of judicial mind cannot withstand scrutiny. By the aforesaid, it may not be understood that an elaborate order is to be passed but what is required is that the order must reflect there has been application of judicial mind. Such reflection cannot be perceived unless some reasons are ascribed. Therefore, ascribing of reasons while disposing of the revision is a must. 25. By the aforesaid, it may not be understood that an elaborate order is to be passed but what is required is that the order must reflect there has been application of judicial mind. Such reflection cannot be perceived unless some reasons are ascribed. Therefore, ascribing of reasons while disposing of the revision is a must. 25. The second facet that requires to be adverted to is that whether in the case at hand reasons are actually given or not. From the order passed by the Commissioner, it is clear as noon day that he has referred to the order passed by the Collector and thereafter opined that he does not find any error in the same. Except the said singular line, whatever has been mentioned in the order is absolutely inconsequential. Thus, it is absolutely a bald order sans reason. On a perusal of the revision petition which was annexed to the writ petition as Annexure P-13 various grounds were urged. Nothing has been referred to and the authority has passed a singular line order. If the rule is understood in proper perspective and the decisions cited above, it was incumbent on the part of the revisional authority to ascribe reasons. 26. In view of the aforesaid analysis we do not perceive any error in the order passed by the learned Single Judge and accordingly affirm the same. 27. Resultantly, the writ appeal, being devoid of substance, stands dismissed without any order as to cost.