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2009 DIGILAW 567 (CAL)

Madhusudan Mondal v. STATE OF WEST BENGAL

2009-07-30

MRINAL KANTI SINHA, PRATAP KUMAR RAY

body2009
Judgment : RAY, J (1) Heard the learned Advocates appearing for the parties. (2) Assailing the order dated 8th May, 2009 passed in O.A. No. 191 of 2003 by the West Bengal Administrative Tribunal, this writ application has been filed. (3) Before the learned Tribunal below the challenge was the letter No. 38/5M dated, Suri, the 6th January, 2003 being a communication of Divisional Forest Officer, Birbhum (Suri) to this effect that the Government of West Bengal regretted to accede to the proposal for appointment under compassionate ground as was referred to the Government by the Department. This letter impugned before the Tribunal reads such: - "Government of West Bengal . Directorate of Forests Office of the Divisional Forest Officer Birbhum Division (Suri). No. 38/5 M dated, Suri, the 06.01.03 To Sri Madhusudan Mondal, S/o. Sri T.M. Mondal, Ex-Orderly Vill. and P.O. Md. Bazar Dist. Birbhum. Sub: O.A. No. 1152 of 2001. In compliance to the direction given by Honble West Bengal Administrative Tribunal in connection with above subject the undersigned has to inform you that the matter was referred to the competent authority as the undersigned has no authority to take decision regarding appointment on compassionate ground as per rule. The undersigned has been directed to inform you that your matter was sent as proposal for appointment on compassionate ground to Forest Department, Govt. of West Bengal. But on due consideration the Govt. regretted its inability to accede to the proposal. Hence the undersigned expresses his inability regarding your appointment on compassionate ground not getting the approval of the competent authority in this regard........." (4) It appears from the records that initially the writ petitioner was allowed to appear in the test examination to adjudge his merit for appointment under compassionate appointment scheme due to the fact that his father became incapacitated to work and thereby was retired pre-maturedly from service. As no response received despite written test and examination, the writ petitioner moved the Tribunal below in O.A. No. 1152 of 2001, which stood disposed of by the order dated 9th August, 2002 by the learned Tribunal directing to pass appropriate decision as per rule regarding compassionate appointment. The said order of the Tribunal dated 9th August; 2002 reads such :- "..........9.8.02. The said order of the Tribunal dated 9th August; 2002 reads such :- "..........9.8.02. The petitioner has amended the prayer portion by a supplementary affidavit that in this supplementary affidavit also the prayer is for appointment in Group "C" post however, during this submission learned Advocate submits that let the prayer be considered for appointment in Group "C" post. In view of such position, the case is admitted. Learned Advocate for the petitioner submits that the matter be disposed by giving direction to the appropriate authority for consideration of the case as per rule. Learned Advocates for the respondents submit that they have no objection if the case is disposed of as prayed for according to rule. The case is disposed of with direction to the respondent No. 3 that is Divisional Forest Officer, Birbhum, Suri to treat this application as representation along with the supplementary affidavit and take a decision as per rule regarding appointment on compassionate ground within a period of 4 months from the date of receipt of the order. Learned Advocate for the petitioner to submit a plain copy along with a copy of the application and supplementary affidavit so that the respondent can act upon. The decision to be communicated within a fortnight thereafter..." (5) On a bare reading of the impugned letter before the learned Tribunal in Original Application No. 191 of 2003, it appears that there was no reason assigned by the State Government as to why the application for compassionate ground which was duly forwarded on taking written test and examination by making a proposal for appointment, was not considered by the State Government. Applying the principle of speaking order doctrine the order was liable to be quashed by the learned Tribunal. But it appears that the learned Tribunal has laboured much by discussing the several points, namely, financial condition of family, the delay to send the proposal by the department etc. as if. the Tribunal was the original authority to decide the question of compassionate appointment under the ground as referred to. For this reason, the order of Tribunal is not sustainable. As no reason assigned in the impugned letter, by affidavit-in-opposition there was no scope by the department and/or the State Government to submit anything in support of the impugned letter challenged before the learned Tribunal. For this reason, the order of Tribunal is not sustainable. As no reason assigned in the impugned letter, by affidavit-in-opposition there was no scope by the department and/or the State Government to submit anything in support of the impugned letter challenged before the learned Tribunal. It is a settled legal proposition of law that any administrative decision when is challenged before a Court of law, by filing an affidavit, such decision cannot be supported by taking any grounds thereof which was earlier not asserted/specified in the original, order. It is a settled legal proposition of law that validity of an order be adjudged by reason so mentioned in the order itself and it cannot be supplemented by fresh reason in the shape of affidavit or otherwise. Reliance is placed to the judgment passed in the case S.N. Chandrasekhar v. State of Karnataka, reported in 2003(3) SCC 208 wherein the judgment earlier passed by the Apex Court in the case Chandra Singh and Ors. v. State of Rajasthan, a judgment of 3-Judges, Bench, reported in 2003 (6) SCC 545 was relied upon. In Chandra Singh (supra), the judgment passed by the Constitution Bench in the case Mohinder Singh Gill v. Chief Election Commissioner, reported in 1978 (1) SCC 40 was relied upon. Similar view expressed in the another Constitution Bench in the case Berium Chemicals Limited v. Company Law Board, reported in AIR 1972 SC 591 . The same view reiterated by the Apex Court in the case Bangalore Development Authority v. R. Hanumaiah, reported in 2005 (12) SCC 508. Considering the legal proposition aforesaid, we are of the view that the learned Tribunal below failed to appreciate the legal position and thereby came to an erroneous decision by adjudicating the case exercising power of an original authority. The communication as impugned before the Tribunal is attracted by speaking order doctrine as no reason assigned. (6) 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. (6) 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 v. Jagdish Sharan Varshney and 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 v. Madhusudhan Rao, reported in 2008(3) SCC 469 , M.P. Industries Limited v. Union of India, reported in AIR 1966 SC 671 and Seamen Engineering and Manufacturing Company of India Limited v. 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 v. Union, of India, reported in 1990(4) SCC 94 by explaining the said decision that in case of affirmation, no reason separately required to be given as head 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 v. 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. 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. (7) 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 v. Union of India, reported in AIR 1994 SC 1558 . It has been held in the case Manager Government Branch Press v. D.B. Belliappa, reported in AIR 1979 SC 429 that administration is under a general duty to act fairly and fairness founded on reason is the essence of right and equality. Lord Denning MR in the case Breen v. 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 v. Union of India, reported in AIR 1991 SC 814 . In the case Steel Authority of India Limited v. 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 v. 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. v. 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 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". 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 v. Hem Ram and 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 v. 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 v. Harendra Kumar Banerjee, reported in AIR 1969 SC 1167 . (8) Hence, impugned letter before the learned Tribunal was not legally sustainable. The same is accordingly set aside and quashed. The decision impugned passed by the learned Tribunal is also set aside and quashed on the findings above. (9) The writ application is allowed. (10) The respondent No.1 is directed to dispose of the proposal for appointment of the writ petitioner as referred to by the concerned Forest Department by passing a reasoned decision within six weeks from the date of communication of the order and a reasoned decision as to be passed within two weeks thereafter from the date of taking such decision be communicated to the petitioner. For taking such decision, the Secretary, Department of Forest, Government of West Bengal is directed to deal with the issue by hearing the writ petitioner. The writ petitioner is granted liberty to file relevant papers and documents before the said Officer so that proper adjudication is made on this question. Let xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.