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2015 DIGILAW 89 (MEG)

Union of India v. Samir Chandra Kar

2015-06-17

T.NANDAKUMAR SINGH, UMA NATH SINGH

body2015
JUDGMENT : Uma Nath Singh, J. We have heard learned counsel for the parties and examined the impugned judgment. It is submitted that the impugned judgment does not disclose any reason for directing the review of service profile of the respondent after an inordinate delay of 22 years. We may hasten to say at this stage that not only all executive orders are required to be based on reasons but the same principle should also govern the judicial orders. 2. Hon’ble the Apex Court in the case of Kranti Associates Private Ltd. and Another v. Masood Ahmed Khan and Others, reported in (2010) 9 SCC 496, vide paras 41, 44 and 46, has highlighted the requirements of recording of reasons as follows: “41. In England there was no common law duty of recording of reasons. In Stefan v. General Medical Council, it has been held: (WLR p. 1300) the established position of the common law is that there is no general duty imposed on our decision makers to record reasons. It has been acknowledged in the Justice Report, Administration Under Law (1971) at page 23 that: "No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions". 44. But, however, the present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited v. Seatrans Shipping Corporation). It has been acknowledged that this trend is consistent with the development towards openness in the Government and judicial administration. 46. The position in the United States has been indicated by this Court in S.N. Mukherjee in SCC p. 602, paragraph 11; AIR para 11 at p. 1988 of the judgment. This Court held that in the United States the Courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as "the courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review". In S.N. Mukherjee this court relied on the decisions of the U.S. Court in Securities and Exchange Commission v. Chenery Corporation and Dunlop v. Bachowski in support of its opinion discussed above.” 3. In S.N. Mukherjee this court relied on the decisions of the U.S. Court in Securities and Exchange Commission v. Chenery Corporation and Dunlop v. Bachowski in support of its opinion discussed above.” 3. Again, in the case of Oryx Fisheries Private Ltd. v. Union of India and Others, reported in (2010) 13 SCC 427 , Hon’ble the Apex Court has held that the Court has duty to give reasons and pass speaking order. Absence of a reason in original order cannot stand compensated by presence of reasons given in appellate order upholding original order. Paras 40 and 41 of the judgment contain a detailed discussion about this aspect of the case as under: “40. In Kranti Associates this Court after considering various judgments formulated certain principles in SCC para 47 of the judgment which are set out below: (SCC pp. 510-12) “(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons' is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harv. L. Rev. 731-37). (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. spain, EHRR at p. 562, para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process". 41. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order.” 4. We, thus, set aside the impugned judgment and order dated 04.12.2014 passed in WP(C) No. 161 of 2013 and remand the case for a fresh consideration with request to pass a reasoned order. The writ appeal is thus disposed of.