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B.R. Acharya Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR557
AppellantB.R. Acharya
RespondentState of Gujarat
Cases Referred and Siemens Engineering Co. v. Union of India
Excerpt:
.....government pleader who appeared on behalf of the respondents was unable to point out any provision in the gujarat civil services (discipline and appeal) rules, 1971 which empowered the disciplinary authority to impose such penalty, transfer, by way of penalty, could not, therefore, have been validly imposed. this circumstance also shows that the statutory appeal is treated more like a merely petition which the appellate authority thought it was in its benevolent discretion to entertain and not its duty to deal with justly and fairly in accordance with law. the rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in..........certain records in order to enable him to prosecute his appeal and make his submissions before the appellate authority. this request was contained in a letter dated july 16, 1976. it does not appear from the material on record that this request was complied with. the petitioner thereupon made a representation in writing dated july 19, 1976 to the joint secretary to the government, education and labour department, who was to give a hearing to the petitioner in respect of his appeal and lodged a complaint with regard to his having not been supplied with the documents and made it explicitly clear that as a result of non-supply of the documents he had no alternative but to confine his submission to the material already in his possession. the petitioner was given hearing on the same day by.....
Judgment:

P.D. Desai, J.

1. The petitioner was, at the material time, working as Superintendent and Probation Officer at the Observation Home, Surendranagar. A charge-sheet dated October 14, 1974 was served upon him by the Director of Social Defence. Three charges were levelled against the petitioner and they related to his misconduct in not living in the Government premises in the Observation Home where he was required to stay, shortage of foodgrains which was detected upon personal inspection, and his conduct in making representations to higher authorities otherwise than through proper channel. The petitioner filed his reply to the charge-sheet and gave his explanation. By an order passed by the Director of Social Defence on May 19, 1975, the charges levelled against the petitioner were held to have been proved and the following final order was passed:

Two increments of Shri B.R. Acharya, Superintendent of the Observation Home of Surendranagar are withheld with future effect and he is transferred to a place outside Surendranagar by way of penalty. (Translated into English from Gujarati).

The petitioner preferred an appeal to the State Government against the aforesaid order on May 30, 1975. In his long memo of appeal the petitioner raised several grounds. He, inter alia, challenged the order of penalty on the ground that transfer by way of penalty could not have been ordered especially when the punishment of withholding of two increments was already inflicted upon him. It appears that the appeal was not disposed of for quite some time and, therefore, the petitioner preferred Special Civil Application No. 727 of 1976 in this Court. On May 5, 1976 a statement was made on behalf of the State Government in the said writ petition that the appeal will be heard and disposed of on or before June 15, 1976 and thereupon the petitioner withdrew the writ petition. It appears that after the withdrawal of the writ petition, the petitioner made an application to the Director of Social Defence requesting her to give copies of and/or to give him access to certain records in order to enable him to prosecute his appeal and make his submissions before the appellate authority. This request was contained in a letter dated July 16, 1976. It does not appear from the material on record that this request was complied with. The petitioner thereupon made a representation in writing dated July 19, 1976 to the Joint Secretary to the Government, Education and Labour Department, who was to give a hearing to the petitioner in respect of his appeal and lodged a complaint with regard to his having not been supplied with the documents and made it explicitly clear that as a result of non-supply of the documents he had no alternative but to confine his submission to the material already in his possession. The petitioner was given hearing on the same day by the Joint Secretary. By an order dated July 31, 1976, Annexure 'O', the appeal of the petitioner was dismissed.

2. Now, the appellate order, to put it middly is terse and laconic. In the first paragraph of the said order, a brief history of the proceedings and the summary of the charges are set out. The second paragraph contains the material part of the decision. When translated into English it reads as follows:

The appeal of Shri Acharya was fixed on July 19, 1976 for affording to both the parties an opportunity of being heard in person. On a consideration of the appeal in the light of the submissions made at the hearing of the appeal, it appears to the Government that the charges levelled against Shri Acharya are established and that the penalty imposed by the Director of Social Defence under her order dated May 19, 1975 is proper and in accordance with the Rules. There does not appear to be any valid reasons to review the same. The appeal of Shri B.R. Acharya is, therefore, hereby dismissed.

This order of the appellate authority confirming the order of the disciplinary authority is under challenge herein.

3. The impugned order is challenged on diverse grounds. However, it is not necessary to enter into consideration of all those grounds because it appears to me that the petitioner is entitled to succeed straightway on the short ground that the appellate authority, which has passed the ultimate order in the disciplinary proceeding, has failed to apply its mind to the relevant points raised for its consideration by the petitioner and that it has also failed to make a speaking order which, in the special circumstances of the case, it was expected to make.

4. As earlier pointed out, the petitioner had raise several grounds in his appeal memo. The points, raised by him covered legal and factual grounds. The order of the appellate authority does not disclose that any of those grounds was considered before the appeal was decided. In fact, the order in terms states that only the submissions which were urged at the oral hearing were considered. What is still worse is that this solemn statement appears to be no more than a mere ritualistic exercise. The order does not show as to what were the submissions made and how they were examined and weighed and considered and why they were rejected. One of left in doubt, under these circumstances, whether mind was applied at all to any of those submissions. This, however, is not a matter of mere surmise or inference. One of the grounds which was raised in the appeal memo, which it would be legitimate to presume must have been reiterated at the oral hearing, was that the order of the disciplinary authority, in so far as it purported to effect the transfer of the petitioner as and by way of penalty, was clearly without jurisdiction. This ground was indubitably well-founded and even at the hearing of this writ petition the learned Assistant Government Pleader who appeared on behalf of the respondents was unable to point out any provision in the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 which empowered the disciplinary authority to impose such penalty, Transfer, by way of penalty, could not, therefore, have been validly imposed. Still, however, the the appellate authority in its terse and laconic order, without entering upon consideration of the aforesaid question, which would have stared in the face of any properly informed person even if it was not specifically urged, proceeded to dismiss the appeal filed by the petitioner holding inter alia that the penalty imposed upon the petitioner was 'proper and in accordance with the Rules'. This circumstance, in my opinion, is sufficient to leave no doubt whatever that there was complete non-application of mind on the part of the appellate authority and that it has treated a statutory appeal preferred by the petitioner in a cavalier fashion, thus failing to discharge a statutory duty and responsibility cast upon it. This however, is not the only specific circumstance disclosing non-application of mind. As earlier pointed out, the petitioner had asked for inspection and/or copies of certain documents which in this submission were relevant for the purpose of supporting his case in appeal. The request made by the petitioner in this behalf was not entertained by the Director of Social Defence. This fact was brought to the notice of the appellate-authority by a written application on the very day on which the appeal was heard. Still, however, the appellate authority in its order has not taken any note of the grievance of the petitioner and has completely ignored his complaint. This circumstance also shows that the statutory appeal is treated more like a merely petition which the appellate authority thought it was in its benevolent discretion to entertain and not its duty to deal with justly and fairly in accordance with law. In my opinion, therefore, this is a fit and proper case in which the petitioner should at least get the relief of quashing of the order of the appellate authority and an order of remand directing the said authority to readmit and rehear his appeal on merits in accordance with law.

5. There is also another patent defect in the appellate order which though apparently interconnected with the fist vice is still an independent infirmity of a substantial nature. The appellate order is not a speaking order as it ought to have been. A speaking order is one which on the face of it discloses the reasons for the conclusions reached. As explained in Union of India v. M.L. Capoor : (1973)IILLJ504SC at pages 97-98, reasons are the links between the materials on which the conclusions are based and the actual conclusions recorded. They disclose how the mine is applied to the subject matter of decision. They supply the nexus between the facts considered and the conclusions reached. In the instant case, the reason, if any, given by the appellate authority for reaching its ultimate conclusion is merely a stock or rubber-stamp reason. The reason is no more than a general description of the process adopted in arriving at the conclusion. An order which contains such apology for reasons cannot be treated as a speaking order.

6. It is true that in Tara Chand v. Delhi Municipality : (1977)ILLJ331SC it has been held that 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 enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a-little to broadly to say that even an order of concurrence must be supported by reasons. It cannot also be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case has to be judged in the light of its own facts and circumstances. However, Tara Chand's case (supra) is no authority for the proposition that every order of concurrence, irrespective of the facts and circumstances of the case, would be valid if it is not a speaking order or in terse and laconic. In that very decision it has been held that every case has to be judged in the light of its own facts and circumstances. In the present case, as earlier pointed out, the appeal of the petitioner had raised several substantial questions. On one of the grounds relating to penalty, the petitioner was entitled to succeed straightway. Under such circumstances, an order of concurrence could hardly have been passed if the requirement of giving reasons had been complied with by the appellate authority. Insistence upon giving of reasons in cases where substantial points arise ensures that the opportunity of hearing is not an illusory or empty formality. Therefore, in a series of recent judgments, the Supreme Court appears to be taking the view that the requirement of giving reasons, so far as the decision of a quasi-judicial authority is concerned, is a part of the rules of natural justice In Siemens Engineering and Mfg. Co. v. Union of India : AIR1976SC1785 the following pertinent observations are to be found (at page 1789):

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 alone administrative authorities and Tribunals exercising quasi-judicial functions will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.

7. In Maneka Gandhi v. Union of India : [1978]2SCR621 the same principle has been reiterated and an order withholding reason for impounding the passport of the petitioner in that case was held to be not only in breach of the statutory provision but also as amounting to denial of opportunity of hearing to the petitioner and, therefore, in violation of the rules of natural justice embodied in the maxim audi alteram partem. In a very recent judgment in Mahindra and Mahindra v. Union of India A.I.R. 1979 S.C. 798 an order made by the Monopolies and Restrictive Trade Practices Commission was found to be defective on the ground that it was a non-speaking order. The Supreme Court observed that the order made by the Commission in that case consisted merely of bald directions given by the Commission and did not set out any reasons whatsoever why the Commission had decided to issue those directions. It had a sphynx-like face, which goes ill with the judicial process. The Supreme Court observed:

It is now settled law that where an authority makes an order in exercise of a quasi judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That is the minimal requirement of law laid down by a long line of decisions of this Court ending with N.M. Desai v. Textiles Ltd, Civil Appeal No. 245 of 1970, D/17-12-1975 and Siemens Engineering Co. v. Union of India 1976 Supp : AIR1976SC1785 .

It would thus appear to be a proposition which is beyond any doubt or dispute at this stage that appellate authorities dealing with appeals and exercising quasi-judicial power are required to make speaking orders at least in cases where substantial questions have been raised in appeal and one of the questions raised went to the root of the matter inasmuch as it was capable of successfully challenging the order of penalty.

8. In the result, the petition succeeds and is allowed. The order passed by the State Government in appeal is quashed and set aside. The matter is remanded to the State Government with a direction that it will rehear and determine afresh the appeal filed by the petitioner in accordance with law and in the light of the observations made in this judgment. In order to leave no doubt it is clarified that the State Government will give a fresh hearing to the petitioner and it will dispose of the appeal by a speaking order. The appeal will be decided within a period of forty-five days of the receipt of the writ. Rule is accordingly made absolute. The respondents will pay the costs of this petition to the petitioner.


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