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2010 DIGILAW 1110 (CAL)

Rousanara Khatun v. STATE OF WEST BENGAL

2010-09-02

HARISH TANDAN, PRATAP KUMAR RAY

body2010
JUDGMENT Pratap Kumar Ray, J. 1. HEARD the learned Advocates appearing for the parties. 2. ASSAILING the order dated 10th March., 2010 passed in W.P.23823(W) of 2009 by the learned Trial Judge, this appeal has been filed. In connection with the appeal, an application for stay, being CAN. (5619 of 2010, has been moved. Considering the nature of the impugned order under appeal, we are of the view that the appeal and the application for stay both could be disposed of. 3. SINCE all parties are appearing, service of notice of appeal and other formalities stand dispensed with. 4. The appeal is taken up as on day's list for final disposal. The impugned order reads such. "10.3.2010 W.P.23823(W) of 2009 This application does not merit any order as the materials are not sufficient to warrant an order thereon. Accordingly the same is dismissed." On a bare reading of the impugned order, it appears that no reason has been assigned as to the particulars of the materials which lead to the conclusion "not sufficient" made by the learned Trial Judge. The impugned order accordingly is attracted by the principle of speaking order which mandates that every order should be with reasons. This principle has now a deep root ground in the legal field. 5. The Supreme Court has settled the legal position. Those are discussed hereinbelow. 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, Hani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and Ors., reported in 2009(4) SCC 240 , the Apex 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 vs. Madhusudhan Rao, reported in 2008(3) SCC 469 ; M.R. Industries Limited vs. Union of India, reported in AIR 1966 SC 671 and Seamen Engineering and Manufacturing Company of India Limited vs. Union of India, reported in 1976(2) SCC 981 . Reliance was placed in that case, the case of Divisional Forest Officer, Kothagudem vs. Madhusudhan Rao, reported in 2008(3) SCC 469 ; M.R. Industries Limited vs. Union of India, reported in AIR 1966 SC 671 and Seamen Engineering and Manufacturing Company of India Limited vs. 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 vs. 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 held 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 vs. Prabhu Dayal Grovtr, 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 it 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. 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 vs. Union of India, reported in AIR 1994 SC 1558 . It has been held in the case Manager Government Branch Press vs. D.B. Belliappa, reported in AIR 1970 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 vs. 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 MP. Lord Denning MR in the case Breen vs. 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 MP. 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 views expressed in the case Shanti Prasad Agarwalla vs. Union of India, reported in AIR 1991 SC 814 . In the case Steel Authority of India Limited vs. 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 ep.se State of West Bengal vs. Alpana Roy, reported in 2005(8) SCC 296 , on considering the cases, namely, Breen (supra), Amalgamated Engineering Union Limited {supra) and Alexander Machinery (Dudlyi Ltd. vs. Crabtree, reported in 1974 ICR 120 (NIRC), in para 8 the Court held "reasons sabstitute subjectivity by objectivity. The emphasis on recording reasons is that if the division 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 in the matter before the Court". In Alexander Machinery (Dudly) Ltd. (supra) the court s 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 vs. 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. 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 vs. 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 vs. 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 Swarnalata Ghosh vs. Harendra Kujmar Banerjee, reported in AIR 1969 SC 1167 . 7. CONSIDERING those judgments, the impugned order is not legally sustainable and it stands set aside and quashed. 8. The writ petition to be heard de novo and a reasoned decision should be passed by the learned Court below. The appeal is accordingly allowed. 9. IT is made clear that we have not gone into the merits of the case. 10. ALL points are kept open for decision. The stay application and appeal, both are accordingly disposed of.