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2019 DIGILAW 1052 (JHR)

Ganesh Sah v. State Of Jharkhand

2019-05-14

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 04.10.2016 passed in R.M.R. Case No.11/2007-08 by Divisional Commissioner, Santhal Pargana Division, Dumka is under challenge solely on the ground that the said order is non-speaking, and as such, is not sustainable in the eye of law. 2. Mr. Rupesh Singh, learned counsel appearing for the respondent No.5 has vehemently opposed the ground urged by the petitioner by submitting that the petitioner was not fair enough in presenting his case before the original authority rather on suppression of some material facts order has been passed, therefore, the revisional authority relying upon the judgment rendered by the Hon''ble Patna High Court in C.W.J.C. No.1309 of 1976 has allowed the appeal and closed the proceeding, hence, the same does not suffer from any infrimity. 3. Mr. Parth Jalan, AC to GA-IV representing the State of Jharkhand has agreed with the arguments advanced by Mr. Rupesh Singh. 4. Having heard the learned counsel for the parties and considering the sole ground agitated by the petitioner in assailing the order dated 04.10.2016 passed in R.M.R. Case No.11/2007-08 which according to the petitioner has been passed without assigning any reason. 5. It is not in dispute rather it is the settled position of law that if an order is being passed by any of the administrative authorities without assigning any reason, it will amount to violation of principles of natural justice, reference needs to be made of judgment rendered by Hon''ble Apex Court in the cases of The Siemens Engineering & Manufacturing Co. of India Ltd. vs. The Union of India and Anr. , (1976) 2 SCC 981 pr.6, S. N. Mukherjee vs. Union of India , (1990) 4 SCC 594 pr.39 and Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and Ors , (2009) 4 SCC 240 pr.8, which reads hereunder as:- "6. Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasijudicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasijudicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a Court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by a administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs Authorities and the validity of the adjudication made by the Customs Authorities can also be satisfactorily tested in a superior tribunal or court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income Tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind. 39. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. 39. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underly-ing such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. 8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation." 6. It is also settled position of law that the appellate or revisional authority is not required to pass a detailed reasoned order but some reason needs to be assigned so that the order can be justified as to what led the original appellate authority in coming to the different finding to that of the original authority, reference of judgment made by Hon''ble Apex Court in this respect needs to be referred herein in the case of Divisional Forest Officer, Kothagudem and Ors. vs. Madhusudhan Rao , (2008) 3 SCC 469 pr.20, which reads hereunder as:- "20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum." 7. Considering the aforesaid aspect of the matter and without entering into the merit of the claim of the parties, the impugned order needs interference on the ground that the said order is non-speaking and therefore, the same is held to be not sustainable, accordingly quashed. 8. In consequence thereof, the matter is remitted before the Divisional Commissioner, Santhal Pargana Division, Dumka to pass a fresh order after providing an opportunity of hearing to the parties wherein the parties will be at liberty to raise all the issues. 9. The same would be considered by the revisional authority by dealing with the reasons, to be decided within a period of three months from the date of receipt of copy of the order. 10. In view thereof, the writ petition is disposed of.