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PETITIONER:

S.N. MUKHERJEE

Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT28/08/1990

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

MUKHARJI, SABYASACHI (CJ)

KANIA, M.H.

SHETTY, K.J. (J)

SAIKIA, K.N. (J)

CITATION:

1990 AIR 1984 1990 SCR Supl. (1) 44

1990 SCC (4) 594 JT 1990 (3) 630

1990 SCALE (2)383

CITATOR INFO :

RF 1991 SC 564 (6)

R 1992 SC1256 (7,9,11,14)

ACT:

Army Act 1950: Section 164--Court-Martial--Post confir-

mation petition--Central Government--Whether bound to give

reasons.

HEADNOTE:

The Appellant was officiating as a Major though he held

a substantive rank of Captain as a permanent Commissioned

Officer of the army when on December 27, 1974 he took over

as the Officer Commanding 38 Coy. A.S.C. (Sup) Type 'A'

attached to the Military Hospital, Jhansi. In August, 1975

the Appellant went to attend a training course and returned

in the first week of November. 1975. In his absence Captain

G.C. Chhabra was commanding the unit of the appellant and he

submitted a Contingent Bill dated September 25, 1975 for

Rs.16,280 for winter liveries of the depot civilian chowki-

dars and sweepers. The said Bill was returned by the Con-

troller of Defence Accounts (CDA) with certain objections.

Thereupon the appellant submitted a fresh contingent Bill

dated December 25, 1975 for a sum of Rs.7,029.57. In view of

the wide difference in the two Contingent Bills, the CDA

reported the matter to the Headquarters for investigation

and a Court Enquiry blamed the appellant for certain lapses.

After considering the said report of the Court of En-

quiry the General Officer Commanding, M.P., Bihar and Orissa

recommended that 'severe displeasure' (to be recorded) of

the General Officer Commanding-in-Chief of the Central

Command be awarded to the appellant. The General Officer

Commanding-in-Chief Central Command, however. did not agree

with the said opinion and by order dated August 26, 1977

directed that disciplinary action be taken against the

appellant for the lapses.

Pursuant to the said order a charge sheet dated July 20,

1978 containing three charges was served on the appellant

and it was directed that he be tried by General Court Mar-

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tial. The first charge was, doing of a thing with intent to

defraud under section 52(f) of the Act. The second charge

was alternative to the first charge i.e. commit-

45

ting an act prejudicial to good order and military disci-

pline under section 63 of the Act and the third charge was

also in respect of offence under section 63 of the Act.

'the appellant pleaded not guilty to the charges. The

General Court Martial on November 29, 1978 found him guilty

of first and third charge and awarded the sentence of dis-

missal from service. Thereupon the appellant submitted

petition dated December 18, 1978 to the Chief of Army Staff

praying that the findings of the General Court Martial be

not confirmed. The Chief of the Army Staff by his order

dated May 11, 1979 confirmed the findings and sentence of

the General Court Martial. The appellant thereafter submit-

ted a post-confirmation petition under section 164(2) of the

Act. This was rejected by the Central Government by order

dated May 6, 1980. Thereupon the appellant filed a writ

petition in the High Court of Delhi which was dismissed in

limine. Hence this appeal by special leave directed to be

heard by the Constitution Bench for the reason that it

involves the question as to whether it was incumbent for the

Chief of the Army Staff, while confirming the findings and

sentence of the General Court Martial and for the Central

Government while rejecting the post-confirmation petition of

the appellant to record their reasons for the orders passed

by them.

Dismissing the appeal, this Court,

HELD: The requirement that reasons be recorded should

govern the decisions of an administrative authority exercis-

ing quasi-judicial functions irrespective of the fact wheth-

er 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. [62H; 63A-B]

The need for recording of reasons is greater in a case

where the order is passed at the original stage. The appel-

late or revisional authority, if it affirms such an order,

need not give separate reasons if the appellate or revision-

al authority agrees with the reasons contained in the order

under challenge. [63B]

Except in cases where the requirement has been dispensed

with expressly or by necessary implication, an administra-

tive authority exercising judicial or quasi-judicial func-

tions is required to record' the reasons for its decision.

[65B]

46

The provisions contained in the Army Act, 1950 and the

Army Rules, 1954 negative a requirement to give reasons for

its findings and sentence by a Court Martial and reasons are

not required to be recorded in cases where the Court Martial

makes a recommendation to mercy. Similarly, reasons are not

required to be recorded for an order passed by the confirm-

ing authority confirming the findings and sentence recorded

by the Court Martial as well as for the order passed by the

Central Government dismissing the post-confirmation peti-

tion. [70E-F]

Sub-section (1) of section 164 of the Army Act enables a

person aggrieved by an order passed by a Court Martial to

present a petition against the same. The expression "order"

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under sub-section (1) does not include a finding or sentence

of the Court Martial and in so far as the finding and sen-

tence of the Court Martial is concerned the only remedy that

is available to a person aggrieved by the same is under

sub-section (2) of section 164 of the Army Act and the said

remedy can be invoked only after the finding or sentence has

been confirmed by the confirming authority and not before

the confirmation of the same. [72B; D-E]

Though a person aggrieved by the finding or sentence of

a Court Martial has no right to make a representation before

the confirmation of the same by the confirming authority,

but in case such a representation is made by a person ag-

grieved by the finding or sentence of a Court Martial it is

expected that the confirming authority shall give due con-

sideration to the same while confirming the finding and

sentence of the Court Martial. [72H; 73A]

Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R.

177; Bhagat Raja v. The Union of India & Ors., [1967] 3

S.C.R. 302; Mahabir Prasad Santosh Kumar v. State of U.P. &

Ors., [1971] 1 S.C.R. 201; Woolcombers of India Ltd. v.

Woolcombers Workers Union & Ant., [1974] I S.C.R. 503;

Siemens Engineering & Manufacturing Co. of India Ltd. v.

Union of India & Anr., [1976] Suppl. S.C.R. 489; Phelps

Dodge Corporation v. National Labour Relations Board, [1940]

85 Law Edn. 1271 at p. 1284; Securities and Exchange Commis-

sion v. Chenery Corporation, [1942] 87 Law Ed. 626 at p.

636; John T. Dunlop v. Waiter Bachewski, [1975] 44 Law Ed. 2

377; Regina v. Gaming Board for Great Britain, Exparte

Benaim & Khaida, [1970] 2 Q.B. 417 at p. 431; Mc Innes v.

Onslow-Fane & Anr., [1978] 1 W.I..R. 1520 at p. 1531; Breen

v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B. 175;

Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R.

120; Regina v. Immigration Appeal Tribunal Ex Parte Khan

(Mahmud), [1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister

of National Revenue,

47

[1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. &

Rent Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yar-

mouth Housing Ltd. & Rent Review Commission, [1983] 139

D.L.R. (3d). 544; Osmond v. Public Service Board of New

South Wales, [1985] 3 NSWLR 447; Public Service Board of New

South Wales v. Osmond, [1986] 63 A.L.R. 559; M/s. Harinagar

Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., [1962]

2 S.C.R. 339; Madhya Pradesh Industries Ltd. v. Union of

India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v.

Union of India, [1970] 3 S.C.R. 40; Tarachand Khatri v.

Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198;

Raipur Development Authority & Ors. v. M/s. Chokhamal Con-

tractors & Ors., [1989] 2 S.C.C. 721; A.K. Kraipak & Ors. v.

Union of India & Ors., [1970] 1 S.C.R. 457; R. v. Deputy

Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B.

456 and Mahon v. Air New Zealand Ltd., [1984] A.C. 648,

referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 417 of

1984.

From the Judgment and Order dated 12.8.1981 of the Delhi

High Court in C.W.P. No. 1835 of 1981.

A.K. Ganguli, A. Sharan for the Appellant.

Kapil Sibal, Additional Solicitor General, Raju Rama-

chandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri

for the Respondents.

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T. Prasad for the Secretary, Ministry of Defence.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. This appeal, by special leave, is

directed against the order dated August 12, 1981, passed by

the High Court of Delhi dismissing the writ petition filed

by the appellant. In the writ petition the appellant had

challenged the validity of the finding and the sentence

recorded by the General Court Martial on November 29, 1978,

the order dated May 11, 1979, passed by the Chief of Army

Staff confirming the findings and the sentence recorded by

the General Court Martial and the order dated May 6, 1980,

passed by the Central Government dismissing the petition

filed by the appellant under Section 164(2) of the Army Act,

1950 (hereinafter referred to as 'the Act').

48

The appellant held a permanent commission, as an offi-

cer, in the regular army and was holding the substantive

rank of Captain. He was officiating as a Major. On December

27, 1974, the appellant took over as the Officer Commanding

of 38 Coy. ASC (Sup) Type 'A' attached to the Military

Hospital, Jhansi. In August 1975, the appellant had gone to

attend a training course and he returned in the first week

of November 1975. In his absence Captain G.C. Chhabra was

the officer commanding the unit of the appellant. During

this period Captain Chhabra submitted a Contingent Bill

dated September 25, 1975 for Rs.16,280 for winter liveries

of the depot civilian chowkidars and sweepers. The said

Contingent Bill was returned by the Controller of Defence

Accounts (CDA) Meerut with certain objections. Thereupon the

appellant submitted a fresh Contingent Bill dated December

25, 1975 for a sum of Rs.7,029.57. In view of the difference

in the amounts mentioned in the two Contingent Bills, the

CDA reported the matter to the headquarters for investiga-

tion and a Court of Enquiry blamed the appellant for certain

lapses.

The said report of the Court of Enquiry was considered

by the General Officer Commanding, M.P., Bihar and Orissa

Area, who, on January 7, 1977 recommended that 'severe

displeasure' (to be recorded) of the General Officer Com-

manding-in-Chief of the Central Command be awarded to the

appellant. The General Officer Commanding-in-Chief. Central

Command did not agree with the said opinion and by order

dated August 26, 1977, directed that disciplinary action be

taken against the appellant for the lapses.

In view of the aforesaid order passed by the General

Officer Commanding-in-Chief, Central Command, a charge sheet

dated July 20. 1978, containing three charges was served on

the appellant and it was directed that he be tried by Gener-

al Court Martial. The first charge was in respect of the

offence under Section 52(f) of the Act, i.e. doing a thing

with intent to defraud. the second charge was alternative to

the first charge and was in respect of offence under Section

63 of the Act, i.e. committing an act prejudicial to good

order and military discipline and the third charge was also

in respect of offence under Section 63 of the Act.

The appellant pleaded not guilty to the charges. The

prosecution examined 22 witnesses to prove the charges. The

General Court Martial. on November 29, 1978, found the

appellant not guilty of the second charge but found him

guilty of the first and the third charge and awarded the

sentence of dismissal from service. The appellant submit-

49

ted a petition dated December 18, 1978, to the Chief of Army

Staff wherein he prayed that the findings and the sentence

of the General Court Martial be not confirmed. The findings

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and sentence of the General Court Martial were confirmed by

the Chief of the Army Staff by his order dated May 11, 1979.

The appellant, thereafter, submitted a post-confirmation

petition under Section 164(2) of the Act. The said petition

of the appellant was rejected by the Central Government by

order dated May 6, 1980. The appellant thereupon filed the

writ petition in the High Court of Delhi. The said writ

petition was dismissed, in limine, by the High Court by

order dated August 12, 1981. The appellant approached this

Court for grant of special leave to appeal against the said

order of the Delhi High Court. By order dated January 24,

1984, special leave to appeal was granted by this Court. By

the said order it was directed that the appeal be listed for

final hearing before the Constitution Bench. The said order

does not indicate the reason why the appeal was directed to

be heard by the Constitution Bench. The learned counsel for

the appellant has stated that this direction has been given

by this Court for the reason that the appeal involves the

question as to whether it was incumbent for the Chief of the

Army Staff, while confirming the findings and the sentence

of the General Court Martial, and for the Central Govern-

ment, while rejecting the post-confirmation petition of the

appellant, to record their reasons for the orders passed by

them. We propose to deal with this question first.

It may be mentioned that this question has been consid-

ered by this Court in Som Datt Datta v. Union of India and

Others, [1969] 2 S.C.R. 177. In that case it was contended

before this Court that the order of the Chief of Army Staff

confirming the proceedings of the Court Martial under Sec-

tion 164 of the Act was illegal since no reason had been

given in support of the order by the Chief of the Army Staff

and that the Central Government had also not given any

reason while dismissing the appeal of the petitioner in that

case under Section 165 of the Act and that the order of the

Central Government was also illegal. This contention was

negatived. After referring to the provisions contained in

Sections 164, 165 and 162 of the Act this Court pointed

that while Section 162 of the Act expressly provides that

the Chief of the Army Staff may "for reasons based on the

merits of the case" set aside the proceedings or reduce the

sentence to any other sentence which the Court might have

passed, there is no express obligation imposed by Sections

164 and 165 of the Act on the confirming authority or upon

the Central Government to give reasons in support of its

decision to confirm the proceedings of the Court Martial.

This Court observed that no other section of the Act or any

of the rules made

50

therein had been brought to its notice from which necessary

implication can be drawn that such a duty is cast upon the

Central Government or upon the confirming authority. This

Court did not accept the contention that apart from any

requirement imposed by the statute or statutory rule either

expressly or by necessary implication, there is a general

principle or a rule of natural justice that a statutory

tribunal should always and in every case give reasons m

support of its decision.

Shri A.K. Ganguli has urged that the decision of this

Court in Som Datt Datta's case (supra) to the extent it

holds that there is no general principle or rule of natural

justice that a statutory tribunal should always and in every

case give reasons in support of its decision needs reconsid-

eration inasmuch as it is not in consonance with the other

decisions of this Court. In support of this submission Shri

Ganguli has placed reliance on the decisions of this Court

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in Bhagat Raja v. The Union of India and Others, [1967] 3

SCR 302; Mahabir Prasad Santosh Kumar v. State of U.P. and

Others, [1971] 1 SCR 201; Woolcombers of India Ltd. v.

Woolcombers Workers Union and Another, [1974] 1 S.C.R. 503

and Siemens Engineering & Manufacturing Co. of India Limited

v. Union of India and Another, [1976] Suppl. S.C.R. 489.

The learned Additional Solicitor General has refuted the

said submission of Shri Ganguli and has submitted that there

is no requirement in law that reasons be given by the con-

firming authority while confirming the finding or sentence

of the Court-Martial or by the Central Government while

dealing with the post-confirmation petition submitted under

Section 164 of the Act and that the decision of this Court

in Som Datt Datta's case (supra) in this regard does not

call for reconsideration.

The question under consideration can be divided into two

parts:

(i) Is there any general principle of law which requires an

administrative authority to record the reasons for its

decision; and

(ii) If so, does the said principle apply to an order con-

firming the findings and sentence of a Court-Martial and

post-confirmation proceedings under the Act?

On the first part of the question there is divergence of

opinion in the common law countries. The legal position in

the United States is different from that in other common law

countries.

51

In the United States the courts have insisted upon

recording of reasons for its decision by an administrative

authority on the premise that the authority should give

clear indication that it has exercised the discretion with

which it has been empowered because "administrative process

will best be vindicated by clarity in its exercise" Phelps

Dodge Corporation v. National Labour Relations Board, [1940]

85 Law Edn. 1271 at P. 1284. The said requirement of record-

ing of reasons has also been justified on the basis that

such a decision is subject to judicial review and "the

Courts cannot exercise their duty of review unless they are

advised of the considerations underlying the action under

review" and that "the orderly functioning of the process of

review requires that the grounds upon which the administra-

tive agency acted be clearly disclosed and adequately

sustained." Securities and Exchange Commission v. Chenery

Corporation, [1942] 87 Law Ed. 626 at P. 636. In John T.

Dunlop v. Waiter Bachowski, [1975] 44 Law Ed. 2 377) it has

been observed that a statement of reasons serves purposes

other than judicial review inasmuch as the reasons promotes

thought by the authority and compels it to cover the rele-

vant points and eschew irrelevancies and assures careful

administrative consideration. The Federal Administrative

Procedure Act, 1946 which prescribed the basic procedural

principles which are to govern formal administrative proce-

dures contained an express provision (Section g(b) ) to the

effect that all decisions shall indicate a statement of

findings and conclusions as well as reasons or basis the,

for upon all the material issues of fact, law or discretion

presented on the record. The said provision is now contained

in Section 557(c) of Title 5 of the United States Code (1982

edition). Similar provision is contained in the state stat-

utes.

In England the position at Common law is that there is no

requirement that reasons should be given for its decision by

the administrative authority (See: Regina v. Gaming Board

for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B.

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417 at p. 431 and McInnes v. Onslow-Fane and Another, [1978]

1 W.L.R. 1520 at p. 1531). There are, however, observa-

tions in some judgments wherein the importance of reasons

has been emphasised. In his dissenting judgment in Breen v.

Amalgamated Engineering Union and Others, [1971] 2 Q.B. 175

Lord Denning M.R., has observed that:

"the giving of reasons is one of the fundamental of good

administration." (P. 191)

In Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974]

ICR 120 Sir John Donaldson, as President of the National

Industrial Relations Court, has observed that:

52

"failure to give reasons amounts to a denial of justice."

In Regina v. Immigration Appeal Tribunal Ex parte Khan

(Mahmud), [1983] QB 790 Lord Lane, CJ., while expressing his

reservation on the proposition that any failure to give

reasons means a denial of justice, has observed:

"A party appearing before a tribunal is entitled to know

either expressly stated by the tribunal or inferentially

stated, what it is to which the tribunal is addressing its

mind." (P. 794)

The Committee on Ministers' Powers (Donoughmore Commit-

tee) in its report submitted in 1932, recommended that "any

party affected by a decision should be informed of the

reasons on which the decision is based" and that "such a

decision should be in the form of a reasoned document avail-

able to the parties affected." (P. 100) The Committee on

Administrative Tribunals and Enquiries (Franks Committee) in

its report submitted in 1957, recommended that "decisions of

tribunals should be reasoned and as full as possible." The

said Committee has observed:

"Almost all witnesses have advocated the giving of reasoned

decisions by tribunals. We are convinced that if tribunal

proceedings are to be fair to the citizen reasons should be

given to the fullest practicable extent. A decision is apt

to be better if the reasons for it have to be set out in

writing because the reasons are then more likely to have

been properly thought out. Further, a reasoned decision is

essential in order that, where there is a right of appeal,

the applicant can assess whether he has good grounds of

appeal and know the case he will have to meet if he decides

to appeal." (Para 98)

The recommendations of the Donoughmore Committee and the

Franks Committee led to the enactment of the Tribunals and

Enquiries Act, 1958 in United Kingdom. Section 12 of that

Act prescribed that it shall be the duty of the Tribunal or

Minister to furnish a statement, either written or oral, of

the reasons for the decision if requested, on or before the

giving of notification of the decision to support the deci-

sion. The said Act has been replaced by the Tribunals and

Enquiries Act, 1971 which contains a similar provision in

Section 12. This requirement is. however, confined. in its

applications to tribunals and statu-

53

tory authorities specified in Schedule I to the said enact-

ment. In respect of the tribunals and authorities which are

not covered by the aforesaid enactment, the position, as

prevails at common law, applies. The Committee of JUSTICE in

its Report, Administration Under Law, submitted in 1971, has

expressed the view:

"No single factor has inhibited the development of English

administrative law as seriously as the absence of any gener-

al obligation upon public authorities to give reasons for

their decisions."

The law in Canada appears to be the same as in England.

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In Pure Spring Co. Ltd. v. Minister of National Revenue,

[1947] 1 DLR 501 at P. 539 it was held that when a Minister

makes a determination in his discretion he is not required

by law to give any reasons for such a determination. In some

recent decisions, however, the Courts have recognised that

in certain situations there would be an implied duty to

state the reasons or grounds for a decision (See: Re R D.R.

Construction Ltd. And Rent Review Commission, [1983] 139 DLR

(3d) 168) and Re Yarmouth Housing Ltd. And Rent Review

Commission, [1983] 139 DLR (3d) 544. In the Province of

Ontario the Statutory Powers Procedure Act, 1971 was enacted

which provided that "a tribunal shall give its final deci-

sion, if any, in any proceedings in writing and shall give

reasons in writing therefore if requested by a party."

(Section 17). The said Act has now been replaced by the

Statutory Powers and Procedure Act, 1980, which contains a

similar provision.

The position at common law is no different in Australia.

The Court of Appeal of the Supreme Court of New South Wales

in Osmond v. Public service Board of New South Wales, [1985]

3 NSWLR 447) had held that the common law requires those

entrusted by Statute with the discretionary power to make

decisions which will affect other persons to act fairly in

the performance of their statutory functions and normally

this will require an obligation to state the reasons for

their decisions. The said decision was overruled by the High

Court of Australia in Public Service Board of New South

Wales v. Osmond, [1986] 63 ALR 559 and it has been held that

there is no general rule of the common law, or principle of

natural justice, that requires reasons to be given for

administrative decisions, even decisions which have been

made in the exercise of a statutory discretion and which may

adversely affect the interests or defeat the legitimate or

reasonable expectations, of other persons. Gibbs CJ., in his

leading judgment, has expressed the view that "the 'rules of

natural justice are

54

designed to ensure fairness in the making of a decision and

it is difficult to see how the fairness of an administrative

decision can be affected by what is done after the decision

has been made." The learned Chief Justice has. however.

observed that "even assuming that in special circumstances

natural justice may require reasons to be given, the present

case is not such a case." (P. 568). Deane J., gave a concur-

ring judgment, wherein after stating that "the exercise of a

decision making power in a way which adversely affects

others is less likely to be. or appear to be, arbitrary if

the decision-maker formulates and provides reasons for his

decision", the learned Judge has proceeded to hold that "the

stage has not been reached in this country where it is a

general prima facie requirement of the common law rules of

natural justice or procedural fair play that the administra-

tive decision-maker. having extended to persons who might be

adversely affected by a decision an adequate opportunity of

being heard. is bound to furnish reasons for the exercise of

a statutory decision-making power." (P. 572). The learned

Judge has further observed that the common law rules of

natural justice or procedural fair play are neither stand-

ardized nor immutable and that their content may vary with

changes in contemporary practice and standards. In view of

the statutory developments that have taken place in other

countries to which reference was made by the Court of Ap-

peal, Deane, J. has observed that the said developments "are

conducive to an environment within which the courts should

be less reluctant than they would have been in times past to

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discern in statutory provisions a legislative intent that

the particular decision-maker should be under a duty to give

reasons." (P. 573).

This position at common law has been altered by the

Commonwealth Administrative Decisions (Judicial Review) Act.

1977. Section 13 of the said Act enables a person who is

entitled to apply for review the decision before the Federal

Court to request the decision-maker to furnish him with a

statement in writing setting out the findings on material

questions of fact, referring to the evidence or other mate-

rial on which those findings were based and giving the

reasons for the decision and on such a request being made

the decision-maker has to prepare the statement and furnish

it to the persons who made the request as soon as practica-

ble and in any event within 28 days. The provisions of this

Act are not applicable to the classes of decisions mentioned

in Schedule I to the Act. A similar duty to give reasons has

also been imposed by Sections 28 and 37 of the commonwealth

Administrative Appeals Tribunal Act. 1975.

In India the matter was considered by the Law Commission in

55

the 14th Report relating to reform in Judicial Administra-

tion. The Law Commission recommended:

"In the case of administrative decisions provision should be

made that they should be accompanied by reasons. The reasons

will make it possible to test the validity of these deci-

sions by the machinery of appropriate writs." (Vol. II P.

694).

No laws has, however, been enacted in pursuance of these

recommendations, imposing a general duty to record the

reasons for its decision by an administrative authority

though the requirement to give reasons is found in some

statutes.

The question as to whether an administrative authority

should record the reasons for its decision has come up for

consideration before this Court in a number of cases.

In M/s. Harinagar Sugar Mills Ltd. v. Shyam Sundar

Jhunjhunwala and Others, [1962] 2 SCR 339, a Constitution

Bench of this Court. while dealing with an order passed by

the Central Government in exercise of its appellate powers

under Section 111(3) of the Companies Act, 1956 in the

matter of refusal by a company to register the transfer of

shares, has held that there was no proper trial of the

appeals before the Central Government since no reasons had

been given in support of the order passed by the Deputy

Secretary who heard the appeals. In that case it has been

observed:

"If the Central Government acts as a tribunal exercising

judicial powers and the exercise of that power is subject to

the jurisdiction of this Court under Article 136 of the

Constitution we fail to see how the power of this Court can

be effectively exercised if reasons are not given by the

Central Government in support of its order." (P. 357)

In Madhya Pradesh Industries Ltd. v. Union of India and

Others, [1966] 1 S.C.R. 466 the order passed by the Central

Government dismissing the revision petition under Rule 55 of

the Mineral Concession Roles, 1960, was challenged before

this Court on the ground that it did not contain reasons.

Bachawat, J., speaking for himself and Mudholkar, J., re-

jected this contention on the view that the reason for

rejecting the revision application appeared on the face of

the order because the Central Government had agreed with the

reasons given by

56

the State Government in its order. The learned Judges did

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not agree with the submission that omission to give reasons

for the decision is of itself a sufficient ground for quash-

ing it and held that for the purpose of an appeal under

Article 136 orders of courts and tribunals stand on the same

footing. The learned Judges pointed out that an order of

court dismissing a revision application often gives no

reasons but this is not a sufficient ground for quashing it

and likewise an order of an administrative tribunal reject-

ing a revision application cannot be pronounced to be in-

valid on the sole ground that it does not give reasons for

the rejection. The decision in Hari Nagar Sugar Mills case

(supra) was distinguished on the ground that in that case

the Central Government had reversed the decision appealed

against without giving any reasons and the record did not

disclose any apparent ground for the reversal. According to

the learned Judges there is a vital difference between an

order of reversal and an order of affirmance. Subba Rao, J.,

as he then was, did to concur with this view and found that

the order of the Central Government was vitiated as it did

not disclose any reasons for rejecting the revision applica-

tion. The learned Judge has observed:

"In the context of a welfare State, administrative tribunals

have come to stay. Indeed, they are the necessary concomi-

tants of a Welfare State. But arbitrariness in their func-

tioning destroys the concept of a welfare State itself.

Self-discipline and supervision exclude or at any rate

minimize arbitrariness. The least a tribunal can do is to

disclose its mind. The compulsion of disclosure guarantees

consideration. The condition to give reasons introduces

clarity and excludes or at any rate minimizes arbitrariness;

it gives satisfaction to the party against whom the order is

made; and it also enables an appellate or supervisory court

to keep the tribunals within bounds, A reasoned order is a

desirable condition of judicial disposal." (P. 472).

"If tribunals can make orders without giving reasons, the

said power in the hands of unscrupulous or dishonest officer

may turn out to be a potent weapon for abuse of power. But,

if reasons for an order are given, it will be an effective

restraint on such abuse, as the order, if its discloses

extraneous or irrelevant considerations, will be subject to

judicial scrutiny and correction. A speaking order will at

its best be a reasonable and at its worst be at least a

plausible one. The public should not be deprived of this

only safeguard." (P. 472).

57

"There is an essential distinction between a court and an

administrative tribunal. A Judge is trained to look at

things objectively, uninfluenced by considerations of policy

or expediency; but an executive officer generally looks at

things from the standpoint of policy and expediency. The

habit of mind of an executive officer so formed cannot be

expected to change from function to function or from act to

act. So it is essential that some restrictions shall be

imposed on tribunals in the matter of passing orders affect-

ing the rights of parties; and the least they should do is

to give reasons for their orders. Even in the case of appel-

late courts invariably reasons are given, except when they

dismiss an appeal or revision in limine and that is because

the appellate or revisional court agrees with the reasoned

judgment of the subordinate court or there are no legally

permissible grounds to interfere with it. But the same

reasoning cannot apply to an appellate tribunal, for as

often as not the order of the first tribunal is laconic and

does not give any reasons." (P. 472-73).

With reference to an order of affirmance the learned

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Judge observed that where the original tribunal gives rea-

sons, the appellate tribunal may dismiss the appeal or the

revision, as the case may be, agreeing with those reasons

and that what is essential is that reasons shall be given by

an appellate or revisional tribunal expressly or by refer-

ence to those given by the original tribunal.

This matter was considered by a Constitution Bench of

this Court in Bhagat Raja case (supra) where also the order

under challenge had been passed by the Central Government in

exercise of its revisional powers under Section 30 of the

Mines and Minerals (Regulation and Development) Act, 1957

read with rules 54 and 55 of the Mineral Concession Rules,

1960. Dealing with the question as to whether it was incum-

bent on the Central Government to give any reasons for its

decision on review this Court has observed:

"The decisions of tribunals in India are subject to the

supervisory powers of the High Courts under Art. 227 of the

Constitution and of appellate powers of this Court under

Art. 136. It goes without saying that both the High Court

and this Court are placed under a great disadvantage if no

reasons are given and the revision is dismissed curtly by

the use of the single word "rejected", or "dismissed". In

58

such a case, this Court can probably only exercise its

appeallate jurisdiction satisfactorily by examining the

entire records of the case and after giving a hearing come

to its conclusion on the merits of the appeal. This will

certainly be a very unsatisfactory method of dealing with

the appeal." (P. 309).

This Court has referred to the decision in Madhya pra-

desh Industries case (supra) and the observations of Subba

Rao, J., referred to above, in that decision have been

quoted with approval. After taking note of the observations

of Bachawat, J., in that case, the learned Judges have held:

"After all a tribunal which exercises judicial or quasijudi-

cial powers can certainly indicate its mind as to why it

acts in a particular way and when important rights of par-

ties of far-reaching consequences to them are adjudicated

upon in a summary fashion, without giving a personal hearing

when proposals and counter proposals are made and examined,

the least that can be expected is that the tribunals shall

tell the party why the decision is going against him in all

cases where the law gives a further right of appeal."

(P.315).

Reference has already been made to Som Datt Datta's case

(supra) wherein a Constitution Bench of this Court has held

that the confirming authority, while confirming the findings

and sentence of a Court-Martial, and the Central Government,

while dealing with an appeal under Section 165 of the Act,

are not required to record the reasons for their decision

and it has been observed that apart from any requirement

imposed by the statute or statutory rule either expressly or

by necessary implication, it could not be said that there is

any general principle or any rule of natural justice that a

statutory tribunal should always and in every case give

reasons in support of its decision. In that case the Court

was primarily concerned with the interpretation of the

provisions of Act and the Army Rules, 1954. There is no

reference to the earlier decisions in Harinagar Sugar Mills

case (supra) and Bhagat Raja case (supra) wherein the duty

to record reasons was imposed in view of the appellate

jurisdiction of this Court and the supervisory jurisdiction

of the High Court under Articles 136 and 227 of the Consti-

tution of India respectively.

In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR

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4(1 this Court has observed:

59

"The Court insists upon disclosure of reasons in support of

the order on two grounds; one, that the party aggrieved in a

proceedings before the High Court or this Court has the

opportunity to demonstrate that the reasons which persuaded

the authority to reject his case were erroneous; the other,

that the obligation to record reasons operates as a deter-

rent against possible arbitrary action by the executive

authority invested with the judicial power." (P. 46)

In Mahabir Prasad Santosh Kumar v. State of U.P. and

Others (supra) the District Magistrate had cancelled the

licence granted under the' U.P Sugar Dealers' Licensing

Order, 1962 without giving any reason and the State Govern-

ment had dismissed the appeal against the said order of the

District Magistrate without recording the reasons. This

Court has held:

"The practice of the executive authority dismissing statuto-

ry appeal against orders which prima facie seriously preju-

dice the rights of the aggrieved party without giving rea-

sons is a negation of the rule of law." (P. 204)

"Recording of reasons in support of a decision on a disputed

claim by a quasi-judicial authority ensures that the deci-

sion 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 deter-

mine whether the facts were properly ascertained, the rele-

vant law was correctly applied and the decision was just."

(P. 205)

In Woolcombers of India Ltd. case (supra) this Court was

dealing with an award of an Industrial Tribunal. It was

found that the award stated only the conclusions and it did

not give the supporting reasons. This Court has observed:

"The giving of reasons in support of their conclusions by

judicial and quasi-judicial authorities when exercising

initial jurisdiction is essential for various reasons.

First, it is calculated to prevent unconscious unfairness or

arbitrari-

60

ness in reaching the conclusions. The very search for rea-

sons will put the authority on the alert and minimise the

chances of unconscious infiltration of personal bias or

unfairness in the conclusion. The authority will adduce

reasons which will be regarded as fair and legitimate by a

reasonable man and will discard irrelevant or extraneous

considerations. Second, it is a well-known principle that

justice should not only be done but should also appear to be

done. Unreasoned conclusions may be just but they may not

appear to be just to those who read them. Reasoned conclu-

sions, on the other hand, will have also the appearance of

justice. Third, it should be remembered that an appeal

generally lies from the decision of judicial and quasi-

judicial authorities to this Court by special leave granted

under Article 136. A judgment which does not disclose the

reasons, will be of little assistance to the Court." (P.

507)

In Siemens Engineering & Manufacturing Co. of India Limited

case (supra) this Court was dealing with an appeal against

the order of the Central Government on a revision applica-

tion under the Sea Customs Act, 1878. This Court has laid

down:

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"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

quasijudicial order must be supported by reasons." (P 495)

"If courts of law are to be replaced by 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 along administrative au-

thorities and tribunals, exercising quasi-judicial function

will be able to justify their existence and carry credibili-

ty with the people by inspiring confidence in the adjudica-

tory process. The rule requiring reasons to be given in

support of an order is, like the principle of audi alteram

partera, a basic principle of natural justice which must

inform every quasi-judicial process and this rule must be

observed in its

61

proper spirit and mere pretence of compliance with it would

not satisfy the requirement of law." (496)

Tarachand Khatri v. Municipal Corporation of Delhi &

Others, [1977] 2 SCR 198 was a case where an inquiry was

conducted into charges of misconduct and the disciplinary

authority, agreeing with the findings of the Inquiry Offi-

cer, had imposed the penalty of dismissal. The said order of

dismissal was challenged on the ground that the disciplinary

authority had not given its reasons for passing the order.

The said contention was negatived by this Court and distinc-

tion was drawn between an order of affirmance and an order

of reversal. It was observed:

" ..... while it may be necessary for a disciplinary or

administrative authority exercising quasi-judicial functions

to state the reasons in support of its order if it differs

from the conclusions arrived at and the recommendations made

by the Inquiry Officer in view of the scheme of a particular

enactment or the rules made thereunder, it would be laying

down the proposition too broadly to say that even an ordi-

nary concurrence must be supported by reasons." (P. 208)

In Raipur Development Authority and Others v. Mls.

Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a

Constitution Bench of this Court was considering the ques-

tion whether it is obligatory for an arbitrator under the

Arbitration Act, 194(1 to give reasons for the award. It was

argued that the requirement of giving reasons for the deci-

sion is a part of the rules of natural justice which are

also applicable to the award of an arbitrator and reliance

was placed on the decisions in Bhagat Raja case (Supra) and

Siemens Engineering Co. case (Supra). The said contention

was rejected by this Court. After referring to the decisions

in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and

Siemens Engineering Co. case (Supra) this Court has ob-

served:

"It is no doubt true that in the decisions pertaining to

Administrative Law, this court in some cases has observed

that the giving of reasons in an administrative decision is

a rule of natural justice by an extension of the prevailing

rules. It would be in the interest of the world of commerce

that the said rule is confined to the area of Administrative

Law ..... But at the same time it has to be borne in mind

that what applies generally to settlement of disputes by

62

authorities governed by public law need not be extended to

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all cases arising under private law such as those arising

under the law of arbitration which is intended for settle-

ment of private disputes." (P. 751-52)

The decisions of this Court referred to above indicate

that with regard to the requirement to record reasons the

approach of this Court is more in line with that of the

American Courts. An important consideration which has

weighed with the Court for holding that an administrative

authority exercising quasi-judicial functions must record

the reasons 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 consid-

eration by the authority; (ii) introduce clarity in the

decisions; and (iii) minimise chances of arbitrariness in

decisionmaking. 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 con-

siderations 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 func-

tions, would no doubt facilitate the exercise of its juris-

diction 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 re-

cording of reasons by an administrative authority serves a

salutary purpose, namely, it excludes chances of arbitrari-

ness 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 deci-

sions 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 admin-

istrative authority exercising quasijudicial functions

irrespective of the fact whether the decision is subject to

appeal, revision or judicial review. It may, however, be

added

63

that it is not required that the reasons should be as elabo-

rate 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. The

need for recording of reasons is greater in a case where the

order is passed at the original stage. The appellate or

revisional authority, if it affirms such an order, need not

give separate reasons if the appellate or revisional author-

ity agrees with the reasons contained in the order under

challenge.

Having considered the rationale for the requirement to

record the reasons for the decision of an administrative

authority exercising quasi-judicial functions we may now

examine the legal basis for imposing this obligation. While

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considering this aspect the Donough more Committee observed

that it may well be argued that there is a third principle

of natural justice, namely, that a party is entitled to know

the reason for the decision, be it judicial or quasi-judi-

cial. The committee expressed the opinion that "there are

some cases where the refusal to give grounds for a decision

may be plainly unfair; and this may be so, even when the

decision is final and no further proceedings are open to the

disappointed party by way of appeal or otherwise" and that

"where further proceedings are open to a disappointed party,

it is contrary to natural justice that the silence of the

Minister or the Ministerial Tribunal should deprive them of

the opportunity." (P 80) Prof. H.W.R. Wade has also ex-

pressed the view that "natural justice may provide the best

rubric for it, since the giving of reasons is required by

the ordinary man's sense of justice." (See Wade, Administra-

tive Law, 6th Edn. P. 548). In Siemens Engineering Co. case

(Supra) this Court has taken the same view when it observed

that "the rule requiring reasons to be given in support of

an order is, like the principles of audi alteram parlem, a

basic principle of natural justice which must inform every

quasi-judicial process." This decision proceeds on the basis

that the two well-known principles of natural justice,

namely (i) that no man should be a Judge in his own cause

and (ii) that no person should be judged without a hearing,

are not exhaustive and that in addition to these two princi-

ples there may be rules which seek to ensure fairness in the

process of decision-making and can be regarded as part of

the principles of natural justice. This view is in conso-

nance with the law laid down by this Court in A.K. Kraipak

and Others v. Union of India and Others, [1970] 1 SCR 457,

wherein it has been held:

64

"The concept of natural justice has undergone a great deal

of change in recent years. In the past it was thought that

it included just two rules namely (i) no one shall be a

Judge in his own cause (nemo dabet esse judex propria causa)

and (ii) no decision shall be given against a party without

affording him a reasonable hearing (audi alteram partem).

Very soon thereafter a third rule was envisaged and that is

that quasi-judicial enquiries must be held in good faith,

without bias and not arbitrarily or unreasonably. But in the

course of years many more subsidiary rules came to be added

to the rules of natural justice." (P. 468-69)

A similar trend is discernible m the decisions of Eng-

lish Courts wherein it has been held that natural justice

demands that the decision should be based on some evidence

of probative value. (See: R. v. Deputy Industrial Injuries

Commissioner ex P. Moore, [1965] 1 Q.B. 456; Mahon v. Air

New Zealand Ltd., [1984] A.C. 648.

The object underlying the rules of natural justice "is

to prevent miscarriage of justice" and secure "fairplay in

action." As pointed out earlier the requirement about re-

cording 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. Keep-

ing 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 adminis-

trative 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

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regard to the exercise of a particular power by an adminis-

trative 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 provi-

sion to that affect as those contained in the Administrative

Procedure Act, 1946 of U.S.A. and the Administrative Deci-

sions (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 sub-

ject matter, the scheme and the provisions of the

65

enactment. The public interest underlying such a provision

would outweight the salutary purpose served by the require-

ment to record the reasons. The said requirement cannot,

therefore, be insisted upon in such a case.

For the reasons aforesaid, it must be concluded that

except in cases where the requirement has been dispensed

with expressly or by necessary implication, an administra-

tive authority exercising judicial or quasi-judicial func-

tions is required to record the reasons for its decision.

We may now come to the second part of the question,

namely, whether the confirming authority is required to

record its reasons for confirming the finding and sentence

of the court-martial and the Central Government or the

competent authority entitled to deal with the post-confirma-

tion petition is required to record its reasons for the

order passed by it on such petition. For that purpose it

will be necessary to determine whether the Act or the Army

Rules, 1954 (hereinafter referred to as 'the Rules') ex-

pressly or by necessary implication dispense with the re-

quirement of recording reasons. We propose to consider this

aspect in a broader perspective to include the findings and

sentence of the court-martial and examine whether reasons

are required to be recorded at the stage of (i) recording of

findings and sentence by the court-martial; (ii) confirma-

tion of the findings and sentence of the court-martial; and

(iii) consideration of post-confirmation petition.

Before referring to the relevant provisions of the Act

and the Rules it may be mentioned that the Constitution

contains certain special provisions in regard to members of

the Armed Forces. Article 33 empowers Parliament to make law

determining the extent to which any of the rights conferred

by Part Ill shall, in their application to the members of

the Armed Forces be restricted or abrogated so as to ensure

the proper discharge of their duties and the maintenance of

discipline amongst them. By clause (2) of Article 136 the

appellate jurisdiction of this Court under Article 136 of

the Constitution has been excluded in relation to any judg-

ment, determination, sentence or order passed or made by any

Court or tribunal constituted by or under any law relating

to the Armed Forces. Similarly clause (4) of Article 227

denies to the High Courts the power of superintendence over

any Court or tribunal constituted by or under any law relat-

ing to the Armed Forces. This Court under Article 32 and the

High Courts under Article 226 have, however, the power of

judicial review in respect of

66

proceedings of courts-martial and the proceedings subsequent

thereto and can grant appropriate relief if the said pro-

ceedings have resulted in denial of the fundamental rights

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guaranteed under Part III of the Constitution or if the said

proceedings suffer from a jurisdictional error or any error

of law apparent on the face of the record.

Reference may now be made to the provisions of the Act

and the Rules which have a bearing on the requirement to

record reasons for the findings and sentence of the court-

martial. Section 108 of the Act makes provision for four

kinds of courts-martial, namely, (a) general courts-martial;

(b) district courts-martial; (c) summary general courtsmar-

tial and (d) summary courts-martial. The procedure of court-

martial is prescribed in Chapter XI (Sections 128 to 152) of

the Act. Section 129 prescribes that every general court-

martial shall, and every district or summary general court-

martial, may be attended by a judge-advocate, who shall be

either an officer belonging to the department of the Judge-

Advocate General, or if no such officer is available, an

officer approved of by the Judge-Advocate General or any of

his deputies. In sub-section (1) of Section 131 it is pro-

vided that subject to the provisions of sub-sections (2) and

(3) every decision of a courtmartial shall be passed by an

absolute majority of votes, and where there is an equality

of votes on either the finding or the sentence, the decision

shall be in favour of the accused. In sub-section (2) it is

laid down that no sentence of death shall be passed by a

general courtmartial without the concurrence of at least

two-thirds of the members of the court and sub-section (3)

provides that no sentence of death shall be passed by a

summary general court-martial without the concurrence of all

the members. With regard to the procedure at trial before

the General and District courts-martial further provisions

are made in Rules 37 to 105 of the Rules. In Rule 60 it is

provided that the judge-advocate (if any) shall sum up in

open court the evidence and advise the court upon the law

relating to the case and that after the summing up of the

judge-advocate no other address shall be allowed. Rule 61

prescribes that the Court shall deliberate on its findings

in closed court in the presence of the judge-advocate and

the opinion of each member of the court as to the finding

shall be given by word of mouth on each charge separately.

Rule 62 prescribes the form, record and announcement of

finding and in sub-rule (1) it is provided that the finding

on every charge upon which the accused is arraigned shall be

recorded and, except as provided in these rules, shall be

recorded simply as a finding of "Guilty" or of "Not guilty".

Sub-rule (10) of Rule 62 lays down that the finding on

charge shall be announced forthwith in open court as subject

to confirmation. Rule 64 lays down

67

that in cases where the finding on any charge is guilty, the

court, before deliberating on its sentence, shall, whenever

possible take evidence in the matters specified in sub-rule

(1) and thereafter the accused has a right to address the

court thereon and in mitigation of punishment. Rule 65 makes

provision for sentence and provides that the court shall

award a single sentence in respect of all the offences of

which the accused is found guilty, and such sentence shall

be deemed to be awarded in respect of the offence in each

charge and in respect of which it can be legally given, and

not to be awarded in respect of any offence in a charge in

respect of which it cannot be legally given. Rule 66 makes

provisions for recommendation to mercy and sub-rule (1)

prescribes that if the court makes a recommendation to

mercy, it shall give its reasons for its recommendation.

Sub-rule (1) of Rule 67 lays down that the sentence together

with any recommendation to mercy and the reasons for any

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such recommendation will be announced forthwith in open

court. The powers and duties of judge-advocate are pre-

scribed in Rule 105 which, among other things, lays down

that at the conclusion of the case he shall sum up the

evidence and give his opinion upon the legal bearing of the

case before the court proceeds to deliberate upon its find-

ing and the court, in following the opinion of the judge-

advocate on a legal point may record that it has decided in

consequences of that opinion. The said rule also prescribes

that the judge-advocate has, equally with the presiding

officer, the duty of taking care that the accused does not

suffer any disadvantage in consequences of his position as

such, or of his ignorance or incapacity to examine or

cross-examine witnesses or otherwise, and may, for that

purpose, with the permission of the court, call witnesses

and put questions to witnesses, which appear to him neces-

sary or desirable to elicit the truth. It is further laid

down that in fulfilling his duties, the judgeadvocate must

be careful to maintain an entirely impartial position.

From the provisions referred to above it is evident that

the judge-advocate plays an important role during the courts

of trial at a general court-martial and he is enjoined to

maintain an impartial position. The court-martial records

its findings after the judge-advocate has summed up the

evidence and has given his opinion upon the legal bearing of

the case. The members of the court have to express their

opinion as to the finding by word of mouth on each charge

separately and the finding on each charge is to be recorded

simply as a finding of "guilty" or of "not guilty". It is

also required that the sentence should be announced forth-

with in open court. Moreover Rule 66(1) requires reasons to

be recorded for its recommendation in cases where the court

makes a recommendation to mercy. There is no such require-

68

ment in other provisions relating to recording of findings

and sentence. Rule 66(1) proceeds on the basis that there is

no such requirement because if such a requirement was there

it would not have been necessary to have a specific provi-

sion for recording of reasons for the recommendation to

mercy. The said provisions thus negative a requirement to

give reasons for its finding and sentence by the court-

martial and reasons are required to be recorded only in

cases where the courtmartial makes a recommendation to

mercy. In our opinion, therefore, at the stage of recording

of findings and sentence the court-martial is not required

to record its reasons and at that stage reasons are only

required for the recommendation to mercy if the court-mar-

tial makes such a recommendation.

As regards confirmation of the findings and sentence of

the court-martial it may be mentioned that Section 153 of

the Act lays down that no finding or sentence of a General,

District or summary General, Court-Martial shall be valid

except so far as it may be confirmed as provided by the Act.

Section 158 lays down that the confirming authority may

while confirming the sentence of a court-martial mitigate or

remit the punishment thereby awarded, or commute that pun-

ishment to any punishment lower in the scale laid down in

Section 71. Section 160 empowers the confirming authority to

revise the finding or sentence of the court-martial and in

sub-section (1) of Section 160 it is provided that on such

revision, the court, if so directed by the confirming au-

thority, may take additional evidence. The confirmation of

the finding and sentence is not required in respect of

summary court-martial and in Section 162 it is provided that

the proceedings of every summary court-martial shall Without

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delay be forwarded to the officer commanding the division or

brigade within which the trial was held or to the prescribed

officer; and such officer or the Chief of the Army Staff or

any officer empowered in this behalf may, for reasons based

on the merits of the case, but not any merely technical

grounds, set aside the proceedings or reduce the sentence to

any other sentence which the court might have passed. In

Rule 69 it is provided that the proceedings of a general

court-martial shall be submitted by the judge-advocate at

the trial for review to the deputy or assistant

judge-advocate general of the command who shall then forward

it to the confirming officer and in case of district court-

martial it is provided that the proceedings should be sent

by the presiding officer, who must, in all cases. where the

sentence is dismissal or above, seek advice of the deputy or

assistant judge-advocate general of the command before

confirmation. Rule 70 lays down that upon receiving the

proceedings of a general or district Court-Martial, the

confirming authority may

69

confirm or refuse confirmation or reserve confirmation for

superior authority, and the confirmation, non-confirmation,

or reservation shall be entered in and form part of the

proceedings. Rule 71 lays down that the charge, finding and

sentence, and any recommendation to mercy shall, together

with the confirmation or non-confirmation of the proceed-

ings, be promulgated in such manner as the confirming au-

thority may direct, and if no direction is given, according

to custom of the service and until promulgation has been

effected, confirmation is not complete and the finding and

sentence shall not be held to have been confirmed until they

have been promulgated.

The provisions mentioned above show that confirmation of

the findings and sentence of the court-martial is necessary

before the said finding or sentence become operative. In

other words the confirmation of the findings and sentence is

an integral part of the proceedings of a court-martial and

before the findings and sentence of a court-martial are

confirmed the same are examined by the deputy or assistant

judge-advocate general of the command which is intended as a

check on the legality and propriety of the proceedings as

well as the findings and sentence of the court-martial.

Moreover we find that in Section 162 an express provision

has been made for recording of reasons based on merits of

the case in relation to the proceedings of the summary

courtmartial in cases where the said proceedings are set

aside or the sentence is reduced and no other requirement

for recording of reasons is laid down either in the Act or

in the Rules in respect of proceedings for confirmation. The

only inference that can be drawn from Section 162 is that

reasons have to be recorded only in cases where the proceed-

ings of a summary court-martial are set aside or the sen-

tence is reduced and not when the findings and sentence are

confirmed. Section 162 thus negatives a requirement to give

reasons on the part of the confirming authority while con-

firming the findings and sentence of a court-martial and it

must be held that the confirming authority is not required

to record reasons while confirming the findings and sentence

of the courtmartial.

With regard to post-confirmation proceedings we find

that subsection (2) of Section 164 of the Act provides that

any person subject to the Act who considers himself ag-

grieved by a finding or sentence of any court-martial which

has been confirmed, may present a petition to the Central

Government, the Chief of the Army Staff or any prescribed

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officer superior in command to the one who confirmed such

finding or sentence and the Central Government, the Chief of

the Army Staff or other officer, as the case may be, may

pass such orders

70

thereon as it or he thinks fit. In so far as the findings

and sentence of a court-martial and the proceedings for

confirmation of such findings and sentence are concerned it

has been found that the scheme of the Act and the Rules is

such that reasons are not required to be recorded for the

same. Has the legislature made a departure from the said

scheme in respect of post-confirmation proceedings? There is

nothing in the language of sub-section (2) of Section 164

which may lend support to such an intention. Nor is there

anything in the nature of post confirmation proceedings

which may require recording of reasons for an order passed

on the post-confirmation petition even though reasons are

not required to be recorded at the stage of recording of

findings and sentence by a court-martial and at the stage of

confirmation of the findings and sentence of the court-

martial by the confirming authority. With regard to record-

ing of reasons the considerations which apply at the stage

of recording of findings and sentence by the court-martial

and at the stage of confirmation of findings and sentence of

the courtmartial by the confirming authority are equally

applicable at the stage of consideration of the post-confir-

mation petition. Since reasons are not required to be re-

corded at the first two stages referred to above, the said

requirement cannot, in our opinion, be insisted upon at the

stage of consideration of post-confirmation petition under

Section 164(2) of the Act.

For the reasons aforesaid it must be held that reasons

are not required to be recorded for an order passed by the

confirming authority confirming the findings and sentence

recorded by the court-martial as well as for the order

passed by the Central Government dismissing the post-confir-

mation petition. Since we have arrived at the same conclu-

sion as in Sorn Datt Datta case (Supra) the submission of

Shri Ganguli that the said decision needs reconsideration

cannot be accepted and is. therefore, rejected.

But that is not the end of the matter because even

though there is no requirement to record reasons by the

confirming authority while passing the order confirming the

findings and sentence of the CourtMartial or by the Central

Government while passing its order on the post-confirmation

petition, it is open to the person aggrieved by such an

order to challenge the validity of the same before this

Court under Article 32 of the Constitution or before the

High Court under Article 226 of the Constitution and he can

obtain appropriate relief in those proceedings.

We will, therefore, examine the other contentions that have

71

been urged by Shri Ganguli in support of the appeal.

The first contention that has been urged by Shri Ganguli

in this regard is that under sub-section (1) of Section 164

of the Act the appellant had a right to make a representa-

tion to the confirming authority before the confirmation of

the findings and sentence recorded by the court-martial and

that the said right was denied inasmuch as the appellant was

not supplied with the copies of the relevant record of the

court-martial to enable him to make a complete representa-

tion and further that the representation submitted by the

appellant under sub-section (1) of Section 164 was not

considered by the confirming authority before it passed the

order dated May 11, 1979 confirming the findings and sen-

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tence of the court-martial. The learned Additional Solicitor

General, on the other hand, has urged that under sub-section

(1) of Section 164 no right has been conferred on a person

aggrieved by the findings or sentence of a court-martial to

make a representation to the confirming authority before the

confirmation of the said findings or sentence. The submis-

sion of learned Additional Solicitor General is that while

sub-section (1) of Section 164 refers to an order passed by

a court-martial, sub-section (2) of Section 164 deals with

the findings or sentence of a court-martial and that the

only right that has been conferred on a person aggrieved by

the finding or sentence of a court-martial is that under

sub-section (2) of Section 164 and the said right is avail-

able after the finding and sentence has been confirmed by

the confirming authority. We find considerable force in the

aforesaid submission of learned Additional Solicitor Gener-

al.

Section 164 of the Act provides as under:

"(1) Any person subject to this Act who considers himself

aggrieved by any order passed by any court-martial may

present a petition to the officer or authority empowered to

confirm any tinging or sentence of such court-martial and

the confirming authority may take such steps as may be

considered necessary to satisfy itself as to the correct-

ness. legality or propriety of the order passed or as to the

regularity of any proceeding to which the order relates.

(2) Any person subject to this Act who considers himself

aggrieved by a finding or sentence of any court-martial

which has been confirmed, may present a petition to the

Central Government, the Chief of the Army Staff or any

prescribed officer superior in command to the one who

72

confirmed such finding or sentence and the Central Govern-

ment, the Chief of the Army Staff or other officer, as the

case may be, may pass such orders thereon as it or he thinks

fit."

In sub-section (1) reference is made to orders passed by

a courtmartial and enables a person aggrieved by an order to

present a petition against the same. The said petition has

to be presented to the officer or the authority empowered to

confirm any finding or sentence of such court-martial and

the said authority may take such steps as may be considered

necessary to satisfy itself as to the correctness, legality

or propriety of the order or as to the regularity of any

proceedings to which the order relates. Sub-section (2), on

the other hand, makes specific reference to finding or

sentence of a court-martial. and confers a right on any

person feeling aggrieved by a finding or sentence of any

court-martial which has been confirmed, to present a peti-

tion to the Central Government, Chief of the Army Staff or

any prescribed officer. The use of the expression "order" in

sub-section (1) and the expression "finding or sentence" in

sub-section (2) indicates that the scope of sub-section (1)

and sub-section (2) is not the same and the expression

"order" in sub-section (1) cannot be construed to include a

"finding or sentence". In other words in so far as the

finding and sentence of the court-martial is concerned the

only remedy that is available to a person aggrieved by the

same is under sub-section (2) and the said remedy can be

invoked only after the finding or sentence has been con-

firmed by the confirming authority and not before the con-

firmation of the same. Rule 147 of the Rules also lends

support to this view. In the said Rule it is laid down that

every person tried by a court-martial shall be entitled on

demand, at any time after the confirmation of the finding

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and sentence, when such confirmation is required, and before

the proceedings are destroyed, to obtain from the officer or

person having the custody of the proceeding a copy thereof

including the proceedings upon revision, if any. This Rule

envisages that the copies of proceedings of a court-martial

are to be supplied only after confirmation of the finding

and sentence and that there is no right to obtain the copies

of the proceedings till the finding and sentence have been

confirmed. This means that the appellant cannot make a

grievance about non-supply of the copies of the proceedings

of the court-martial and consequent denial of his right to

make a representation to the confirming authority against

the findings and sentence of the court-martial before the

confirmation of the said finding and sentence. Though a

person aggrieved by the finding or sentence of a courtmar-

tial has no right to make a representation before the confi-

ramtion

73

Of the same by the confirming authority, but in case such a

representation is made by a person aggrieved by the finding

or sentence of a court-martial it is expected that the

confirming authority shall give due consideration to the

same while confirming the finding and sentence of the

court-martial.

In the present case the representation dated December

18, 1978 submitted by the appellant to the confirming au-

thority was not considered by the confirming authority when

it passed the order of confirmation dated May 11, 1979.

According to the counter affidavit filed on behalf of Union

of India this was due to the reason that the said represen-

tation had not been received by the confirming authority

till the passing of the order of confirmation. It appears

that due to some communication gap within the department the

representation submitted by the appellant did not reach the

confirming authority till the passing of the order of con-

firmation. Since we have held that the appellant had no

legal right to make a representation at that stage the non-

consideration of the same by the confirming authority before

the passing of the order of confirmation would not vitiate

the said order.

Shri Ganguli next contended that the first and the

second charge levelled against the appellant are identical

in nature and since the appellant was acquitted of the

second charge by the court-martial his conviction for the

first charge can not be sustained. It is no doubt true that

the allegations contained in the first and the second charge

are practically the same. But as mentioned earlier, the

second charge was by way of alternative to the first charge.

The appellant could be held guilty of either of these

charges and he could not be held guilty of both the charges

at the same time. Since the appellant had been found guilty

of the first charge he was acquitted of the second charge.

There is, therefore, no infirmity in the court-martial

having found the appellant guilty of the first charge while

holding him not guilty of the second charge.

Shri Ganguli has also urged that the findings recorded

by the court-martial on the first and third charges are

perverse inasmuch as there is no evidence to establish these

charges. We find no substance in this contention.

The first charge was that the appellant on or about

December 1975, having received 60.61 meters woollen serge

from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi for

stitching 19 coats and pants for Class IV civilian employees

of his unit with intent to defraud

74

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got 19 altered ordnance pattern woollen pants issued to the

said civilian employees instead of pants stitched out of the

cloth received. To prove this charge the prosecution exam-

ined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram

Chandra & Brothers, Sadar Bazar, Jhansi who have deposed

that 60.61 meters of woollen serge cloth was delivered by

them to the appellant in his office in December, 1975. The

evidence of these witnesses is corroborated by B.D. Joshi,

Chowkidar, P.W. 3, who has deposed that in the last week of

December, 1975, the appellant had told him in his office

that cloth for their liveries had been received and they

should give their measurements. As regards the alteration of

19 ordnance pattern woollen pants which were issued to the

civilian employees instead of the pants stitched out of the

cloth that was received, there is the evidence of N/sub. P.

Vishwambharam P.W. 19 who has deposed that he was called by

the appellant to his office in the last week of December,

1975 or the first week of January, 1976 and that on reaching

there he found ordnance pattern woolien pants lying by the

side of the room wall next to the appellant's table and that

the appellant had called Mohd. Sharif P.W. 15 to his office

and had asked him to take out 19 woolien trousers out of the

lot kept there in the office. After Mohd. Sharif had select-

ed 19 woollen trousers the appellant told Mohd. Sharif to

take away these pants for alteration and refitting. The

judge-advocate, in his summing up, before the court-martial,

has referred to this evidence on the first charge and the

court-martial, in holding the appellant guilty of the first

charge, has acted upon it. It cannot, therefore, be said

that there is no evidence to establish the first charge

levelled against the appellant and the findings recorded by

the court-martial in respect of the said charge is based on

no evidence or is perverse.

The third charge, is that the appellant having come to

know that Capt. Gian Chand Chhabra while officiating OC of

his unit, improperly submitted wrong Contingent Bill No.

341/Q dated September 25, 1975 for Rs.16,280 omitted to

initiate action against Capt. Chhabra.

In his summing up before the court-martial the judge-

advocate referred to the CDA letter M/IV/191 dated November

20, 1975 (Exh. 'CC') raising cert in objection with regard

to Contingent Bill No. 341/Q dated September 25, 1975 for

Rs.16,280 and pointed out that the said letter was received

in the unit on or about November 28, 1975 and bears the

initials of the appellant with the aforesaid date and remark

"Q Spk with details". This would show that the appellant had

knowledge of the Contingent Bill on November 28, 1975. It is

not the case of the appellant that he made any complaint

against Captain

75

Chhabra thereafter. It cannot, therefore, be said that the

finding recorded by the court-martial on the third charge is

based on no evidence and is perverse.

In the result we find no merit in this appeal and the

same is accordingly dismissed. But in the circumstances

there will be no order as to costs.

R.N.J. Appeal dismissed.

76