Supreme Court of India
S.N. MUKHERJEEversusUNION OF INDIA
- Citation
- 1990 INSC 257
- Decided
- 28 August 1990
- Disposal
- Dismissed
- Bench
- SABYASACHI MUKHERJI
Holding
Administrative authorities must give reasons unless a statute expressly dispenses the requirement; the Army Act and Army Rules expressly dispense the duty to give reasons for confirming a court‑martial’s findings and for dismissing a post‑confirmation petition, so no such duty existed in this case.
Summary
The appellant, a permanent commissioned officer, was tried by a General Court‑Martial for alleged fraud and misconduct and was dismissed from service. The findings and sentence were confirmed by the Chief of the Army Staff, and the appellant's post‑confirmation petition under section 164(2) of the Army Act was rejected by the Central Government. The appellant challenged whether the confirming authority and the Government were required to give reasons for their orders. The Supreme Court held that, although a general principle obliges administrative bodies exercising quasi‑judicial functions to record reasons, the Army Act 1950 and the Army Rules 1954 expressly dispense that requirement for the confirming authority and for post‑confirmation orders. Consequently, no duty to give reasons arose, and the appellant had no right to make a representation before confirmation. The Court also rejected the appellant's arguments on the alternative charges and the alleged lack of evidence. The appeal was dismissed.
Issues considered
- The existence of a general principle requiring administrative authorities to record reasons for their decisions.
- Whether that principle applies to the confirming authority of a court‑martial under the Army Act.
- Whether the Central Government must give reasons when dismissing a post‑confirmation petition under section 164(2) of the Army Act.
- Whether the appellant had a statutory right to make a representation before the confirming authority.
- The validity of the conviction on the first charge despite acquittal on the alternative second charge.
- The sufficiency of evidence for the first and third charges.
Legislation cited
- Army Act, 1950s. 108, s. 129, s. 131, s. 152, s. 153, s. 158, s. 160, s. 162, s. 164
- Army Rules, 1954s. 147, s. 60, s. 61, s. 62, s. 64, s. 65, s. 66, s. 67, s. 69, s. 70, s. 71
Subjects
Army ActCourt‑martialpost‑confirmation petitionreasons for decisionadministrative lawnatural justicequasi‑judicial authoritySection 164Section 162military law
Judgment
S.N. MUKHERJEE
A i1.
UNION bi' iNbiA
AUGUST 28. 199ti
[SABYASACHI MUKHARJI, CJ., M.i-1. KANIA,
K. JAGANNATHA Si-IETfY, K.N. SAIKIA AND
S.t, AGRAWAL, JJ.)
Army Act 1950: Seciion 164--Court-Martial.:_Post confirma-
tion peiitioii-Centrd/ Government-Whether bound to give reasons. '
the Apjjeliant was ofridaiing as a Major ihoiigh lie held a sub-
stantive raiik of Captain as a permanent Commissioned Officer of the
army when on December 27, 1974 he took over as the Officer Com-
manding 38 Coy. A.S.C. (Sup) Type 'A' attached to the Military Hospi-
tai, Jhansi. In AU!lllst, 1975 the Appellant went to attend a training
b coutse and returned in the first week of November, 1975. In his absence
Captain G;t. 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 chowkidars and sweepers. The
said Bill was returned by the Controller of Defence Accounts (CDA)
with certain objections. Thereupon the appellant submitted a fresh con-
E tingent Bill dated December 25, 1975 for a sum ofRs.7,029.57. In view
of the wide difference in the two Contingent Bills, the CDA reported the
itiatter to tlie Headquarters for investigation and a Court· Enquiry
blamed the appellant for certain lapses.
After. considering the said report of the Court of Enquiry the
F Generai Officer Comniandlng, M.P., Bihar and Orissa recommended
that 'severe ilispleasute' (to be recorded) of the General Officer Com-
manding-iii-thief of the Central Command be awarded to the appel-
HinL The Gimetal Officer Commanding-in-Chief Central Command,
however, did riot agree wiih the said opinion and by order dated August
26, 1977 directed that dlsclpliilary action be taken against the appellant
0 for the iapses.
Purstiaill to the said order a charge sheet dated July 20, 1978
containliig iliree charges was served on the appellant and it was
directed iha! he be fried by General Court Martiai. The first charge
was; iioirig of a ihing with inient to defraud tinder section 52(f) of the
H Aci. the second chai-ge was aitHnative ib the firsi charge i.e. commit-
44
~-
S.N. MUKHERJEE v. U.0.1. 45
· ting an act prejudicial to good order and military discipline under
section 63 of the Act and the third charge was also in respeet of offence A
under section 63 of the Act.
The appellant pleaded not quilty to the charges. The General
Court Martial on November 29, 1978 found him guilty of first and third
charge and awarded the sentence of dismissal from service. thereupon B
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 II,
1979 confirmed the findings and sentence of the General Court Martial.
The appellant thereafter submitted 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 C
petition In the High Court of Delhi which was dismissed in limine.
Hence this appeal by special leave directed to be heard by the Constitu-
tion 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 D
Government while rejecting the post-confirmation petition of the appel-
f lant to record their reasons for the orders passed by them.
Dismissing the appeal, this Court,
HELD: The requirement that reasons be recorded shonld govern E
ilie decisions of an administrative authority exercising quasi-judicial
fu,1ctiolls irrespective of the fact whether the decision is subject to
appeal, revision or judicial review. It may, however, he added that it is
not required that the reasons should he as elaborate as in the decision of
a Court of law. The extent and nature of the reasons would depend on
particular fads and circumstances. What is necessary is that the j:i
reasons are door and explicit so as to indicate that the authority has
given due consideration to the points in controversy. [62fl; 63A-B)
The n·eed for recording of reasons is greater in a case where the
order is passed at the original stage. The appellate or revisional autho-
rity, if it affirms such an order, need not give separate reasons if the (j
appellate or revisional authority agrees with the reasons contained in
the order under challenge: [638]
Except in cases where the requirement has been dispensed with
expressly or by necessary implicatiOn, an administrative authority exer"
cising judicial or quasi-judicial functions is required to record the :H
reasons fof its decision. :[ 658 j
46 SUPREME COURT REPORTS [ 1990] Supp. I S.C.R.
The provisions contained in the Army Act, 1950 .and the Army
A
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 confirming authority confirming the findings and sent-
B ence recorded by th_e Court Martial as well as for the order passed by
the Central Government dism~ing the post-confirmation petition. [70E-FJ
Suh-section (I) 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" under sub-section (l) does
not include a finding or sentence of the Court Martial and in so far as
c 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) 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
confuming authority and not before the confirmation of the same. [72B; D-°El
D
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 representa-
tion 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 con-
E sideration to t)te same while confirming the finding and sentence of the
Court Martial. [72H; 7JAJ
Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177; BhiiJi"!
Raja v. The Union of India & Ors., [!967] 3 S.C.R. 302; Mahabir
Prasad Santosh Kumar v. State of U.P. & Ors., [1971] l S.C.R. 201;
p Woo/combers of India Ltd. v. Woo/combers Workers Union & Anr.,
[1974] 1 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 Commission v. Chenery
Corporation, [1942] 87 Law Ed. 626 at p. 636i John T. Dunlop v. Walter
G Bachewski, [1975] 44 Law Ed. 2 377; Regina v. Gaming Board for Great
Britai"', Exparte Benaim & Khaida, [1970] 2 Q.B. 417 at p. 431;-Mc
Innes v. Onslow-Fane & Anr., [1978] l W.L.R. 1520 at p. 1531; Breen
v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B. 175;
Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] !.C.R. 120;
Regina ·v. Immigration Appeal Tribunal Ex Parte Khan (Mahmud),
H [1983] Q.B. 790; Pure Spring Co. Ltd. v. Minister of National Revenue,
S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.] 47
[1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent A
Review Commission, [1983] 139 D.L.R. 3d. 168; Re Yarmouth 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 B
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 Develop-
;. ment Authority & Ors. v. M/s. Chokhamal Contractors & Ors., [1989]
2 S.C.C. 721; A.K. Kraipak & Ors. v. Union of India & Ors., [1970] l
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., c
[1984] A.C. 648, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 417
of 1984.
D
From the Judgment and Order dated 12.8.1981 of the Delhi High
j
CourtinC.W.P.No. 1835ofl981.
A.K. Ganguli, A. Sharan for the Appellant.
Kapil Sibal, Additional Solicitor General, Raju Ramachandran, E
Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the
Respondents.
T. Prasad for the Secretary, Ministry of Defence.
The Judgment of the Court was delivered by F
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, G
1978, the order dated May II, 1979, passed by the Chiefof 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 Sec-
tion 164(2) of the Army Act, 1950 (hereinafter referred to as 'the
Act'). H
48 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R. Y
The appellant held a permanent commission, as an officer, in the
A
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 Commallding 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
B November 1975. In his absence Captain G.C. Chhabra was the officer
commanding the unit of the appellant. Duri11g 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,
c 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 investigation and a Court of Enquiry blamed
the appellant for certain lapses.
D The said report of the Court of Enquiry was considered by the
General Officer Commandipg, M.P., Bihar and Orissa Area, who, on
January 7, 1977 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 Com-
manding-in-Chief, Central Command did not agree with the said
E opinion and by order dated August 26, 1977, directed that disciplinary
actio11 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
F was directed that he be tried by General 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
G 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 Mar-
tial, 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
H awarded t)le sentence of dismissal from service. The appellant s~bmit-
S.N. MUKHERJEE v. U.O.l. [AGRAWAL, J.] 49
tel) a petition dated December 18, 1978, to the Chief of Army Staff
wherein he prayed that the findings and the sentence of the General A
Co11rt Martial be not confirmed. The findings and sentence of the
GeJ)eral Court Martial were confirmed by the Chief of the Army Staff
by his order dated May 11, 1979. The appellant, thereafter, submitted
l) post-~onfirmation petition under Section 164(2) of the Act. T]!e said
petition of the appellant was rejected by the Central Government by B
order dated May 6, 1980. The appellant thereupon filed the writ peti-
tion in the High Court of Delhi. The said writ petition was dismised, in
limine, by the High Court by order dated August 12,_ 1981. The appel-
lant ,<Jpproached 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 bearing before c
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 D
Staff, while confirming the findings and the 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. We propose to deal with this question first.
It may be mentioned that this question has been considered by E
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 Section 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 F
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 con-
tained in Sections 164, 165 and 162 of the Act this Court pointed out
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 )64 and 165 of the Act .on the confirming autho-
rity 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 11)<1de H
50 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
therein had been brought to its notice from which necessary implica-
A
tion can be drawn that such a duty is cast upon the Central Govern-
ment 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
B should always and in every case give reasons in 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 reconsideration inasmuch as it is not in consonance with the
c other decisions of this Court. In support of this submission Shri
Ganguli has placed reliance on the decisions of this Court in Bhagat
Raja v. The Union of India and Others, [1967] 3 SCR 302; Mahabir
Prasad Santosh Kumar v. State of UP. and Others, [1971] 1SCR201;
Woo/combers of India Ltd. v. Woo/combers Workers Union and
D Another, [1974] 1 S.C.R. 503 and Siemens Engineering & Manufactur-
ing 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 require-
E ment in law that reasons be given by the confirming authority while
confirming the finding or sentence of the Court-Martial or by the Cent-
ral Government while dealing with the post-confirmation petition sub-
mitted 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.
F
The qllestion under consideration can be divided into two parts:
(i) Is there any general principle of law which requires an ad-
ministrative authority to record the reasons for its decision; and
G (ii) If so, does the said principle apply to an order confirming 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 Onited States is .,
H different from that in other common law countries.
S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.J 51
In the United States the courts have insisted upon recording of
reasons for its decision by an administrative authority on the premise
A
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 recording of reasons has also B
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 administrative agency acted
be clearly disclosed and adequately sustained." Securities and
Exchange Commission v. Chenery Corporation, [ 1942] 87 Law Ed. 626 c
at P. 636. In John T. Dunlop v. Walter 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 relevant points and eschew
irrelevancies and assures careful administrative consideration. The D
Federal Administrative Procedure Act, 1946 which prescribed the
1 ba"ic procedural principles which are to govern formal administrative
l,w,edures contained an express provision (Section 8(b) ) to the effect
that all decisions shall indicate a statement of findings and conclusions
as well as rea;ons or basis thel'cfor upon all the material issues of fact.
law or discretion presented on the record. The said provision is now E
contained in Section 557( c) of Title 5 of the United States Code ( 1982
edition). Similar provision is contained in the state statutes.
1111'
In England the position at Common law is that there is no
quirement that reasons should be given for its decision by the
I administrative authority (See: Regina v. Gaming Board for Grea ... :i-
tain, Ex Paree Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and
F
.'.lclnnes v. Onslow-Fane and Another, [1978] l W.L.R. 1520 at
p. 1531). There are, however, observations in some judgments
wherein the importance of reasons has been emphasised. In his dis-
senting judgment in Breen v. Amalgamated Engineering Union and
Others, [ 1971] 2 Q.B. 175 Lord Denning M.R .. has observed that: G
"the giving of reasons is one of the fundamental of good
administration." (P. 191)
In Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] !CR
120 Sir John Donaldson. as President of the National Industrial Rela- H
tions Court, has observed that:
52 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
' "failure to give reasons amounts to a denial of justice."
A
In Regina v. Imm1gran·on Appeal Tribunal Ex parte Khan
(Mahmud), [ 1983] QB 790 Lord Lane, CJ., while expressing his reser-
vation on the proposition that any failure to give reasons means a
denial of justice, has observed:
B
"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-
c 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 available to the parties affected." (P. JOO) The
Committee on Administrative Tribunals and Enquiries (Franks Com-
D mittee\ 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
E 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
F 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
G 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 reaons for the decision if requested, on or
before the giving of notification of the decision to support the decision.
The said Act has been replacecl by the Tribunals and Enquiries Act, ,
1971 which contains a similar provision in Section 12. This require-
H ._ment is, however, confined, in its applications to tribunals and statu-
S.N. MUKHERJEE v. U.0.1. [AGRAWAL, I.) 53
tory authorities specified in Schedule I to the said enactment. In
A
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 B
administrative law as seriously as the absence of any
general obligation upon public authorities to give reasons
, . for their decisions."
The law in Canada appears to be the same as in England. In Pure
Spring Co. Ltd. v. Minister of National Revenue, [1947] 1DLR501 at
P. 539 it was held that when a Minister makes a determination in his c
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. Construc-
tion Ltd. And Rent Review Commission, [1983] 139 DLR (3d) 168) and D
• Re Yarmouth Housing Ltd. And Rent Review Commission, [1983] 139
DLR (3d) 544. In the Province of Ontario the Statutory Powers Proce-
dure Act, 1971 was enacted which provided that "a tribunal shall give
its final decision, if any, in any proceedings in writing and shall give
reasons in writing therefor if requested by a party." (Section 17). The
said Act has now been replaced by the Statutory Powers and Proce- E
dure 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 F
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 G
general rule of the common law, or principle of natural justice, that
requires reasons to be given for administrative decisions, even deci-
sions 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 H
-
54 SUPREME COURT REPORTS [1990] Supp. I S.C.R.
)<- '
designed to ensure fairness in the making of a decision and it is difficult
A
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 concurring
B 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 administrative decision-maker,
c 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 standardized
D nor immutable and that their content may vary with changes in con-
temporary practice and standards. In view of the statutory develop-
ments that have taken place in other countries to which reference was •
made by the Court of Appeal, Deane, J. has observed that the said
developments "are conducive to an environment within which the
courts should be less relu"ctant than they would have been in times past
E to 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 Common-
wealth Administrative Decisions (Judicial Review) Act, 1977. Section
13 of the said Act enables a person who is entitled to apply for review
F of 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 material
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
G request as soon as practicable and in any event within 28 days. The
provisions of this Act are not applicable to the classes of decisfons
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. r
H In India the matter was considered by the Law Commission in
S.N. MUKHERJEE v. U.0.l. [AGRAWAL, J.[ 55
the 14th Report relating to reform in Judicial Administration. The
A
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
decisions by the machinery of appropriate writs." (Vol. II B
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.
c
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 Jhunjhun- D
wala 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 Com-
panies 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 ap-
peals before the Central Government since no reasons had been given E
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 Con- F
stitution 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 G
dismissing the revision petition under Rule 55 of the Mineral Conces-
sion Rules, 1960, was challenged before this Court on the ground that
it did not contain reasons. Bachawat, J., speaking for himself and
Mudholkar, J., rejected 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 H
56 SUPREME COURT REPORTS [ 1990) Supp. I S.C.R. ~..
the State Government in its order. The learned Judges did not agree
A
with the submission that omission to give reasons for the decision is of
itself a sufficient ground for quashing 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
B not a sufficient ground for quashing it and likewise an order of an
administrative tribunal rejecting a revision application cannot be pro·
nounced to be invalid 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 Govern·
ment had reversed the decision appealed against without giving any.
· reasons and the record did not disclose any apparent ground for the
C 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 ot 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 application. The learned Judge has
D observed:
"In the context of a welfare State, administrative tribunals ~
have come to stay. Indeed, they are the necessary con·
comitants of a Welfare State. But arbitrariness in their
functioning destroys the concept of a welfare State itself.
E 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
F 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
G 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 dis-
closes extraneous or irrelevant considerations, will be sub-
ject to judicial scrutiny and correction. A speaking order
will at its best be a reasonable and at its worst be at least a ,..
H plausible one. The public should not be deprived of this
only safeguard." (P. 472).
--- ....
~~~...._._
•
S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.l
"There is an essential distinction between a court and an
57
administrative tribunal. A Judge is trained to look at things
A
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 B
act. So it is essential that some restrictions shall be imposed
on tribunals in the matter of passing orders affecting the
rights of parties; and the least they should do is to give
• reasons for their orders. Even in the case of appellate
courts invariably reasons are given, except when they dis-
miss an appeal or revision in limine and that is because the
appellate or revisional court agrees with the reasoned judg- c
ment 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). D
. With reference to an order of affirmance the learned Judge
observed that where the original tribunal gives reasons, 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 E
reference 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
t challenge had been passed by the Central Government in exercise of
its revisional powers under Section 30 of the Mines and Minerals F
(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 incumbent 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 G
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 H
A
58 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
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 cer-
tainly be a very unsatisfactory method of dealing with the
appeal." (P. 309).
B
This Court has referred to the decision in Madhya Pradesh
Industries case (supra) and the observations of Subba Rao, J., referred
to above, in that decision have been quoted with approval. After tak-
ing note of the observations of Bachawat, J., in that case, the learned 4
Judges have held:
c "After all a tribunal which exercises judicial or quasi-
judicial powers can certainly indicate its mind as to why jt
acts in a particular way and when important rights of
parties of far-reaching consequences to them are adjudi-
cated upon in a summary fashion, without giving a personal
D 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).
E 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
F 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 refe-
G rence 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 Constitution of India respectively.
H In Tranvancore Rayon Ltd. v. Union of India, [1970] 3 SCR 40
this Court has observed:
l·
•
'1
c
- S.N. MUKHERJEE v. U.0.1. {AGRAWAL, J.l 59
"The Court insists upon disclosure of reasons in support of A
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 per-
~ suaded the authority to reject his case were erroneous; the
other, that the obligation to record reasons operates as a
deterrent against possible arbitrary action by the executive B
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 Government had dismissed the appeal against the
c
said order of the District Magistrate without recording the reasons.
'
~I
This Court has held:
II
"The practice of the executive authority dismissing statu-
tory appeal against orders which prima facie seriously pre-
judice the rights of the aggrieved party without g1vmg D
I(
., reasons is a negation of the rule of law." (P. 204)
t ."Recording of reasons in support of a decision on a dis-
puled claim by a quasi-judicial authority ensures that the
decision is reached according to law and is not the result of
caprice, whim or fancy or reached on grounds of policy or E
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 de-
I !ermine whether the facts were properly ascertained, the F
' relevant law was correctly applied and the decision was
just." (P. 205)
In Woo/combers 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. G
This Court has observed:
"The giving of reasons in support of their conclusions by
""'"· -... judicial and quasi-judicial authorities when exercising ini-
tial jurisdiction is essential for various reasons. First, it is
·~
calculated to prevent unconscious unfairness or arbitrari- H
60 SUPREME COURT REPORTS /1990] Supp. l S.C.R.
A ness in reaching the conclusions. The very search for
reasons 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
B considerations. Second, it is a well-known pnnciple 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
conclusions, on the other hand, will have also the appea-
rance of justice. Third, it should be remembered that an •
appeal generally lies from the decision of judicial and
c 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)
D 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 application under the Sea Customs
Act, 1878. This Court has laid down:
"It is now settled law that where an authority makes an
E 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." (P 495)
"If courts of law are to be replaced by administrative
authorities and tribunals, as indeed, in some kinds of
F cases, with the proliferation of Administrative Law they "
may have to be so replaced, it is essential that administra-
'
tive 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
G 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 a/teram partem, a
basic principle of natural justice which must inform every •
H quasi-judicial process and this rule must be observed in its
S.N. MUKHERJEE v. U.O.I. [AGRAWAL, J.] 61
proper spirit and mere pretence of compliance with it
would not satisfy the requirement of law." (496) A
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 Officer, had imposed the penalty of dismissal. B
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 distinction was
drawn between an order of affirmance and an order of reversal. It was
observed:
" while it may be necessary for a disciplinary or c
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 D
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. M/s. Chokhamal
Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of
this Court was considering the question whether it is obligatory for an E
arbitrator under the Arbitration Act, 1940 to give reasons for the
award. It was argued that the requirement of giving reasons for the
decision is a part of the rules of natural justice which are also applic-
able 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 F
referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta
case (Supra) and Siemens Engineering Co. case (Supra) this Court has
observed:
"It is no doubt true that in the decisions pertaining to Ad-
ministrative Law, this court in some cases has observed G
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 H
-'·
62 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
authorities governed by public law need not be extended to
A
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
B regard to the requirement to record reasons the approach of this Court
is more in line with that of the American Courts. An important consi-
deration 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 Con-
•
stitution as well as the supervisory jurisdiction of the High Courts
c 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
D (i) guarantee consideration by the authority; (ii) introduce clarity in
the decisions; and (iii) minimise chances of arbitrariness in decision-
making. In this regard a distinction has been drawn between ordinary
Courts of law and tribunals and authorities exercising judicial func-
tions on the ground that a Judge is trained to look at things objectively
uninfluenced by considerations 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 functions, would no •
doubt facilitate the exercise of its jurisdiction by the appellate or
F supervisory authority. But the other considerations, referred to above,
which have also weighed with this Court in holding that an administra-
tive authority must record reasons for its decision, are of no less
significance. These considerations show that the recording of reasons
by an administrative authority serves a salutary purpose, namely, it
excludes chances of arbitrariness and ensures a degree of fairness in
G the process of decision-making. The said purpose would apply equally
to all decisions and its application cannot be confined to decisions
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 administrative authority exercising quasi-
j udicial functions irrespective of the fact whether the decision is sub-
H ject to appeal, revision or judicial review. It may, however, be added
.... S.N. MUKHERJEE v. U.0.1. [AGRAWAL. J.] 63
that it is not required that the reasons should be as elaborate as in the A
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 B
the original stage. The appellate or revisional authority, if it affirms
such an order, need not give separate reasons if the appellate or revi-
sional authority 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 c
quasi-judicial functions we may now examine the legal basis for impos-
ing this obligation. While considering this aspect the Donoughmore
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-judicial. The committee
D
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
E
Ministerial Tribunal should deprive them of the opportunity." (P 80)
Prof. H.W.R. Wade has also expressed the view that "natural justice
may provide the best rubric for it, since the giving of reasons is re-
quired by the ordinary man's sense of justice." (See Wade, Adminis-
trative Law, 6th Edn. P. 548). In Siemens Engineering Co. case
(Supra) this Court has taken the same view when it observed that "the
F
rule requiring reasons to be given in support of an order is, like the
principles of audi alteram partem, a basic principle of natural justice
which must inform every quasi-judicial process." This decision pro-
ceeds 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 exbaus-
G
tive and that in addition to these two principles 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 consonance with the law laid down by this Court in A. K. Kraipak
and Others v. Union of India and Others, [1970] l SCR 457, wherein it
-.. has been held:
H
64 SUPREME COURT REPORTS (1990] Supp. l S.C.R.
"The concept of natural justice has undergone a great deal
A
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).
B Very soon thereafter a third rcle 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 English Courts
c 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.
D The object underlying the rules of natural justice "is to prevent
miscarriage of justice" and secure "fairplay in action." As pointed out
earlier the rquirement 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
E expanding horizon of the principles of natural justice, we are of the
opinion, that the req uiremenl 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. Tr.e extent of their application depends upon the
particular statutory framework whereunder jurisdiction has been con-
F ferred 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
G it may dispense with such a requirement. It may do so by making an
express provision to that affect as those contained in the Administra-
tive 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 enact-
ment. Such an exclusion can also arise by necessary implication from
H the nature of the subject matter, the scheme and the provisions of the
~ _.. S.N. MUKHERJEE v. U.0.l. [AGRAWAL, J.] 65
enactment. The public interest underlying such a provision would out-
A.
weight the salutary purpose served by the requirement 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 B
necessary implication, an administrative authority exercising judicial
or quasi-judicial functions 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 Cent-
c
ral Government or the competent authority entitled to deal with the
post-confirmation petition is required to record its reasons for the
order passed by it on such petition. For that purpose it will be neces-
sary to determine whether the Act or the Army Rules, 1954 (herein-
after referred to as 'the Rules') expressly or by necessary implication D
dispense with the requirement 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) confirmation of the findings and
sentence of the court-martial; and (iii) consideration of post-confir- E
mation 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 F
any of the rights conferred by Part III 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 lias
• been excluded in relation to any judgment, determination, sentence or
I G
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 relating 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 H
66 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R.
A proceedings of courts-martial and the proceedings subsequent thereto
and can grant appropriate relief if the said proceedings have resulted
in denial of the fundamental rights 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.
B 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 courts-
martial and (d) summary courts-martial. The proc.edure of court-
martial is prescribed in Chapter XI (Sections 128 to 152) of the Act.
c 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
D deputies. In sub-section (1) of Section 131 it is provided that subject to
the provisions of sub-sections (2} and (3) every decision of a court-
martial 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 court-
E martial 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 con-
currence 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
F 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
G mouth on each charge separately. Rule 62 prescribes the form, record
and announcement of finding and in sub-rule (I) 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
~imply 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
H forthwith in open court as subject to confirmation. Rule 64 lays down
' -'\ S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.l 67
that in cases where the finding on any charge is guilty, the court,
A
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 fer 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 B
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, ii shall
give its reasons for its recommendation. Sub-rule (1) of Rule 67 lays
down that the sentence together with any recommendation to mercy C
and the reasons for any such recommendation will be announced forth-
with 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 opi-
nion upon the legal bearing of the. case before 'the court proceeds to D
deliberate upon its finding 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 conse-
quences of his position as such, or of his ignorance or incapacity to E
examine or cross-examine witnesses or otherwise, and may, for that
purpose, with the permission of the court, call witnesses and put ques-
tions to witnesses, which appear to him necessary or desirable. to elicit
the truth. It is further laid down that in fulfilling his duties, the judge-
advocate must be careful to maintain an entirely impartial position. ·
'' F
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 posi-
tion. 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 G
opinion as to the finding by word of mouth on each charge separtely
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 forthwith 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 requ\re- H
68 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R.
A 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 neces-
sary to have a specific provision for recording of reasons for the recom-
mendation to mercy. The said provisions thus negative a requirement
to give reasons for its finding and sentence by the court-martial and
B reasons are required to be recorded only in cases where the court-
martial 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-martial makes
such a recommendation.
c As regards confirmation of the findings and sentence of the
court-martial it may be menti~med 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 con-
firmed as provided by the Act. Section 158 lays down that the confinrt-
D ing authority may while confirming the sentence of a court-martial
mitigate or remit the punishment thereby awarded, or commute that
r
pu_nishment to any punishment lower in the scale laid down in Section
71. Section 160 empowers the confirming authority to revise the find-
ing 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
E confirming authority, 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 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
F 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-
G 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. sentennce 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
H of a general or district Court-Martial, the confirming authority may
. .... S.N. MUKHERJEE v. lJ.0.1. (AGRAWAL, J.l 69
confirm or refuse confirmation or reserve confirmation for superior
authority, anci the confirmation, non-confirmation, or reservation A
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 proceedings, be promulgated in such manner as the confirming
authority may direct, and if no direction is given, according to custom 8
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 c
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 l)
sentence of the court-martial. Moreover we find thatin 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 court-
martial in cases where the said proceedings are set aside or the sen-
tence is reduced and no other requirement for recording.of reasons is
laid down either in the Act or in the Rules in respect of proceeding• for E
confirmation. The only inference that can be drawn from Section 162 is
that reasons have to be recorded only in cases where the proceedings
of a summary court-martial are set aside or the sentence 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 confirming the findings and sentence of a court-martial F
and it must be held ihat the confirming authority is not required to
record reasons while confirming the findings and sentence of the court-
martial.
With regard to post-confirmation proceedings we find that sub-
"
~
section (2) of Section 164 of the Act provides that any person subject G
to the 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 pre-
. ..., scribed officer superior in command to the one who confirmed ~uch
~
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 H
70 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
....
thereon as it or he thinks fit. In so far as the findings and sentence of a
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
B in the language of sub-section (2) of Section 164 which may lend sup-
port 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 co11firmation of the
findings and sentence of the court-martial by the confirming authority.
c With regard to recording of reasons the considerations which apply at
the stage of recording of findings and sentence by the court-martial
and at the Btage of confirmation of findings and sentence of the court-
I
I
martial by the confirming authority are equally applicable at the stage
of consideration of the post-confirmation petition. Since reasons are
D not required to be recorded at the first 1wo 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
E required to be recorded for an order passed by the confirming autho-
rity 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 petition. Since we have arrived at the same con-
clusion as in Som Datt Datta case (Supra) the submission of Shri
Ganguli that the said decision needs reconsideration cannot be
F 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 Court-
Martial or by the Central Government while passing its order on the
G post-confirmation petition, it is open to the person aggrieved by such
an order te 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. ~·
H We will, thereforto_, examine the other contentions that have
• -< S.N. MUKHERJEE v. U.0.1. [AGRAWAL, J.I 71
been urged by Shri Ganguli in support of the appeal.
A
The first contention that has been urged by Shri Ganguli in this
regard is that under sub-section (!) of Section 164 of the Act the
appellant had a right to make a representation to the confirming
authority before the confirmation of the findings and sentence
recorded by the court-martial and that the said right was denied B
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
.. representation and further that the representation submitted by the
appellant under sub-section (I) of Section 164 was not considerd by
the confirming authority before it passed the order dated May·11, 1979
confirming the findings and sentence of the court-martial. The learned
Additional Solicitor General, on the other hand, has urged that under c
sub-section (J) 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 submission of learned Additional
Solicitor General is that while sub-section (1) of Section 164 refers to D
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 sen-
tence of a court-martial is that under sub-section (2) of Section 164 and
the said right is available after the finding and sentence has been
confirmed by the confirming authority. We find considerable force in E
the aforesaid submission of learned Additional Solicitor General.
Section 164 of the Act provides as under:
"(l) Any person subject to this Act who considers himself
aggrieved by any order passed by any court-martial may F
present a petition to the officer or authority empowered to
confirm any finging 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 correctness,
legality or propriety of the order passed or as to the regu-
larity of any proceeding to which the order relates. G
(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 H
72 SUPREME COURT REPORTS (1990] Supp. 1 S.C.R.
confirmed such finding or sentence and the Central Gov-
A
ernment, 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 (I) reference is made to orders passed by a court-
B martial and enables a person aggrieved by an order to present a peti-
tion 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
c 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 petition to the
Central Government, Chief of the Army Staff or any prescribed
officer. The use of the expression "order" in sub-section (I) and the
D· 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 (I) 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)
E 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. 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 confir-
mation of the finding and sentence, when such confirmation is requi-
F red, 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 sent-
G ence 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 representa-
tion to the confirming authority against the findings and sentence of
the court-martial before the confirmation of the said finding and sent-
ence. Though a person aggrieved by the finding or sentence of a court-
martial has no right to make a representation before the confiramtion
__,
S.N. MUKHERJEE v. U.0.L [AGRAWAL, J.] 73
of the same by the confirming authority, but in case such a representa-
A
tion 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 B
submitted by the appellant to the confirming authority was not con-
sidered by the confirming authority when it passed the order of confir-
mation 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
representation had not been received by the cqnfirming authority till
the passing of the order of confirmation. It appears that due to some
communication gap within the department the representation submit- c
ted by the appellant did not reach the confirming authority till the
passing of the order of confirmation. 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. D
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 E
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 F
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 G
this contention.
The first charge was that the appellant on or about December 25,
_, 1975, having received 60.61 ·meters woollen serge from M/s Ram
Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and 19
pants for Class IV civilian employees of his unit with intent to defraud H
74 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
got 19 altered ordnance pattern woollen pants issued to the said civi-
A
lian employees instead of pants stitched out of the cloth received. To
prove this charge the prosecution examined 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.
B 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 measure-
men ts. 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
c 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 woollen pants lying by the side of the room wall next
to the appellant's table and that the appellant had called Mohd. Sharif
D P. W. 15 to his office and had asked him to take out 19 woollen trousers
out of the lot kept there in the office. After Mohd. Sharif had selected
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 tl>e first
charge and the court-martial, in holding the appellant guilty of the first
E charge, has acted upon it. It cannot, therefore, be said that there is nci
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
F Capt. Gian Chand Chhabra while officiating OC of his unit, impro-
perly 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.
G '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
....
H case of the appellant that he made any complaint against Captain
S.N. MUKHERJEE v. U.0.1. (AGRAWAL, J.] 75
Chhabra thereafter. It cannot, therefore, be said that the finding A
recorded by the court-martial on the third charge is based on no evi-
dence 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. B
R.N.J. Appeal dismissed .
.
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