Every Judgment should contain reasons:-

 

Every Judgment should contain reasons:-

     Reason is the heartbeat of every conclusion and without the same, it become lifeless. Order XX, Rule 4, Civil Procedure Code (hereinafter referred to as the 'C.P.C.') states that a judgment of Court shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision'. It has been repeatedly held that, a decision, if given, but reasons for decision are not given, judgment would be unsustainable.

     In Cellular Operators Association of India and others v. Union of India and others: (2003) 3 SCC 186, concurring delivered by Hon'ble S.B. Sinha, J., it was said that a judgment of Court or a Tribunal should contain concise statement of case, points of decisions, the reasons for such decisions and decisions thereupon.

In Balraj Taneja v. Sunil Madan: 2000 (40) ALR 494 (SC), referring to Order XX, Rule 4 (2) Code of Civil Procedure, the  Court said that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Court also said that process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.

In case of Chandana Impex Pvt.Ltd Vs Commissioner of Customs, New Delhi reported in 2011 (269)ELT-433(SC),the Apex Court has held that while dealing with an appeal u/s 130 of IT Act,1961,the High Court should have examined each question formulated in the appeal with reference to the material taken into consideration by the Tribunal in support of its finding thereon and given its reasons for holding that question is not a substantial question of law. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums.

 

 

In Union of India v. Manager, Jain and Associates: 2001 (42) ALR 689 (SC), it was observed that the judgment would itself indicate judicial determination by reasoned order for arriving at the conclusion that decree in terms of award be passed. Referring the meaning of word "judgment' in Webster's Comprehensive Dictionary (International Edn., Vol. I (1984), Court said that meaning is "the result of judging; the decision or conclusion reached, as after consideration or deliberation."

In State of Punjab v. Bhag Singh: 2004 (48) ACC 308 (SC), the well established dictum, discussion, reason and conclusion was reiterated and Court said that reasons brings clarity in an order. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise power of judicial review in adjudging validity of the decision. Right to reasons is an indispensable part of a sound judicial system. Reasons at least sufficient to indicate an application of mind to the matter before Court must be given. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.

Dealing with a land acquisition matter (in appeal by High Court) Supreme Court in Navanath and others v. State of Maharashtra:: (2009) 14 SCC 480 has said, " A Court of law must base its decision on appreciation of evidence brought on record by applying the correct legal principles. Surmises and conjectures alone cannot form the basis of a judgment."

Time and again it has been held that "reasons" and "conclusions" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.

In “State of Uttaranchal and Ors. vs. Sunil Kumar Vaish and Ors” reported in (2011) 8 SCC-670,the Hon’ble Apex Court has held that the  Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided. Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

The Apex Court in the case of Uma Charan v. State of Madhya Pradesh and another: AIR 1981 SC 1915, said:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable."

In Mc Dermott International Inc. v. Burn Standard Co. Ltd. and others: (2006) 11 SCC 181,the Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said :

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."

Recently the Apex Court in Kranti Associates Private Limited and another v. Masood Ahmed Khan and others: 2010 (82) ALR 913 (SC), referring to the judgment in Mohan Lal Capoor (supra) in para 23 said :

"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."

The Apex Court recently also in Competition Commission of India v. Steel Authority of India Ltd. and another: JT 2010 (10) SC 26, in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said :

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all Courts and by virtue of Judge-made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."

The only authority which the learned advocate was able to cite before us was the decision of the Supreme Court in Milkhiram (India) P. Ltd. v. Chammanlal Bros.: AIR 1965 SC 1698. The question which arose in that case was whether an order made by a single judge of the Bombay High Court on the Original Side granting conditional leave to the defendant to defend a summary suit was bad on the ground that no reasons were given for making it. The Supreme Court held that it was not necessary that the order should contain any reasons in support of it and while dealing with this question, Mudholkar J., speaking on behalf of the Supreme Court, made the following observations which were strongly relied on by the learned advocate of the first defendant:--

"In the case before us the order made is by the High Court itself and not by the subordinate Court. No doubt an appeal lay against it under the Letters Patent but that is merely an internal appeal in a High Court, which cannot be likened to an appeal under Section 96 or a revision application under Section 115 of the Code. Moreover, Order 49, Rule 3, sub-rule (5), provides that nothing contained in Rules 1 to 8 of Order 20 will apply to any Chartered High Court in exercise of its ordinary or extraordinary civil jurisdiction. The provision relating to the giving of reasons in support of a decision are to be found in Rule 4 of Order 20. Since these provisions, do not apply to Chartered High Courts, like the High Court at Bombay, the decision relied upon cannot be pressed in aid."

In M.J. Sivani and Ors. vs. State of Karnataka and Ors. (supra) the Supreme Court observed that an Administrative Order need not contain detailed reasons like the order of a Court; the reasons could be reflected either in the order itself or a file maintained by the competent authority. It would then be discernible as to what compelled an administrative authority to pass an order as the reasons would be reflected from the contemporaneous record maintained by the authority. In Union of India and Ors. vs. E.G. Nambudiri (supra) the Court observed that whereas a statutory authority acting administratively is required to record its motivation for passing the order, it must record reasons where civil consequences would ensue. However an administrative order passed by an authority which has no statutory or implied duty to record the reasons or the grounds for its decision, would not be rendered illegal, merely because of the absence of reasons. The Court observed that although there was no necessity for giving reasons in view of the expanding law of judicial review it was desirable that administrative decisions which affect the right of an individual should reflect the reasons for the decision. When such a decision is challenged before any Court on the ground that it is arbitrary or mala fide it is always open to the authority concerned to place before the Court the reasons which may have persuaded it to pass the order. Such reasons must already exist on record and it is not permissible for the authority to support the order by reasons which are not contained in the record.

The confirmation order should contain proper reasons and these reasons must deal with the reply given to the show cause notice given by the State Government (which 1 have already held to be a necessary requirement). In the present case the confirmation order dated 21-1-92 (Annexure-10 to the writ petition) does not give any reasons, what to say of proper reasons. All that has been said in the confirmation order is that since the District Magistrate has found the petitioner guilty and has not found his explanation acceptable, hence the State Government is confirming his order. This is hardly a way to pass the confirmation order. I have already held that the order of confirmation has serious civil consequences. It follows that the said order must not only contain reasons, but these reasons must be proper. In other words, the reasons given must deal with the version of the accused. Of course the reasons need not be elaborate like a judgment of a Court, but they must at least give in brief why the version of the accused is not found acceptable.

The requirement to give reasons has been elaborately discussed by the Supreme Court in S. N. Mukherjee v. Union of India: 1990 CriLJ 2148 a . It has been clarified in that judgment that while in U.S.A. Courts insist on recording of reasons by administrative authorities, the English Common Law has no such requirement. In India, as held in S. N. Mukherjee's case, the approach of the Courts is more in line with that of the American Courts.

In M. P. Industries v. Union of India: [1966]1SCR 466 Subba Rao, J. observed at page 674. The condition to give reasons introduces clarify and excludes, or at any rate minimizes, arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the tribunals within bounds". It may be noted that the other two judges in the 3 member bench held in that case that an appellate/revisional order of affirmance need not give reasons. However, the view of Subba Rao, J. was approved by the Constitution Bench of the Supreme Court in Bhagat Raja v. Union of India: [1967]3SCR302 and thereafter also in a series of decisions culminating in S.N. Mukherjee's case (supra). Most of these decisions have been referred to in S.N. Mukherjee's case, and hence I need not mention them. The requirement to give reasons is now a principle of natural justice, unless expressly or by, necessary implication excluded vide S. N. Mukherjee's case (supra), state of West Bengal v. Atul Krishna Shaw AIR 1970 SC 2205 Star Enterprises v. City and Industrial Development Corpn.: [1990]2SCR826 .

 

In the case of Maha-bir Jute Mills Ltd. v. Shibben Lal Saxena: AIR 1975 SC 2057 at page 2060 the Supreme Court observed that it was desirable that the administrative orders should contain reasons when they decide matters affecting rights of parties. For the reasons as staled above, in my opinion, the decision of the learned Judge of the Court below cannot be upheld and the same must be and is hereby set aside.

In this connection, it is useful to refer to a decision of the Hon'ble Supreme Court reported in Thiruvengadam Pillai Vs. Navaneethammal: 2008 (3) ALD 112 (SC), whereunder it was held that:

16. While there is no doubt that Court can compare the disputed handwriting /signature /finger impression with the admitted handwriting /signature /finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of fingerprints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal

17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of Counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

 

Further, it is also useful to refer to the judgment reported in Y. Jogulamma @ Jyothi v. Chukkakula Kondamma and others 2011 (6) ALD 741, wherein this Court held in Para No. 24 as under:-

So far as the comparison of the signatures or the thumb impression is concerned, such course has to be done sparingly. The Judge, who comes to an opinion after comparison, should also disclose his expertise and also give reasons for the conclusions. A mere statement that the Court is of the opinion that the thumb impressions or the signature appears to be similar is not proper since as an expert, whose evidence is to be assessed, the Judge, who is also giving his opinion, should mention the reasons.

The most important ingredient of a valid judgment is the reasons or grounds for decision because the validity of the judgment in the higher forum is to be seen from the reasoning and the same is to be challenged by the aggrieved party again with reference to the reasons. In other words, the aggrieved party is to attack the reasoning of the judgment in appeal and not the narration of the facts. The conclusions arrived at by the Court will not be binding without reasoning, therefore, the Courts insist that even in ex parte judgments reasons should be clearly given. We may refer to the judgment in the case of Kalu Sarang and others v. Mt. Abedannessa Khatun: AIR 1926 Cal. 1221. The matter can be looked from another angle, namely, that it is a cardinal principle of justice that justice should not only be done but should be seem to have been done. The reasoning is also necessary to satisfy this most important principle of dispensation of justice. The Court acts with material irregularity and illegality if it fails to record reasons in support of its conclusions. The accumulative effect of section 2(9), Order XX, Rule 4 and Order XLI, Rule 31, C.P.C. would be that decision by a Court to be termed as judgment must be based on reasons and failure to comply with this requirement would render the judgment nullity and unsustainable. The Hon'ble Supreme Court has noted the ingredients of a valid and legal judgment with reference to the provisions of law in the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736. The relevant portion reads as under:--

Judgment" has been defined in section 2, clause (9) of the Civil Procedure Code as 'judgment' means 'the statement given by the Judge of the grounds of a decree or order' and Order has been defined in clause 14 of the same section as 'formal expression of any decision of a Civil Court which is not a decree'. Further, Order XX, Rule 4, sub-rule (2) prescribed that judgment of Courts other than the Court of a small causes 'shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision'... ... ... .

Otherwise also the word "judgment" as per section 2(9) of CPC as described in one of the cited precedents by the Hon'ble Court, "A judgment shall contain a concise statement of the case, the points of determination; the decision thereon; the reason for such decision. An order should be a self-contained document from which it should appear what the facts of the case were and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion should be reflected clearly in the judgment".

Our Supreme Court has gone to the length of saying that even in cases of administrative orders where rights of patties are affected rules of natural justice have to be followed and it is desirable that the order should contain reasons [ Hochief Gammon v. State of Orissa: A I R 1975 S C 2226, p. 2234 and Mahabir Jute Mills v. Bhiban Lal: A I R 1975 S C 2057, p. 2060. Thus the majority ruling of the Full Bench in Natwarsingh's case with great respect to the learned Judges, appears to us to be somewhat out of tune with the times and there are good grounds for rethinking on the points decided therein.

The Apex Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers,: (2010) 4 SCC 785 has observed in paragraphs 13 to 20 as under:

13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view.

14. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders.

 

In Siemens Engineering and Manufacturing Company of India Ltd. v. Union of India and Anr.: AIR 1976 SC 1785), the Supreme Court held as under:

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

 

The Apex Court in another decision in the case of Sant Lal Gupta and Ors. v. Modern Cooperative Group Housing Society Limited and Ors.: (2010) 13 SCC 336 wherein in paragraph 27, it is observed as under:

27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar: AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal and Ors.: (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh and Ors.: (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle and Ors.: (2008) 9 SCC 407; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi: AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta: AIR 2009 SC 2328; Ram Phal v. State of Haryana and Ors.: (2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram and Anr.: (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors.: AIR 2010 SC 1285).

 

The Apex Court in the case of East Coast Railway and Anr. v. Mahadev Appa Rao and Ors.: (2010) 7 SCC 678, wherein in paragraph 9, the Apex Court observed as under:

9. There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the Court where the validity of any such order is under challenge. The legal position in this regard is settled by the decisions of this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji: AIR 1952 SC 16 wherein this Court observed:

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

The Apex Court in the case of Oryx Fisheries Private Limited v. Union of India and Ors.: (2010) 13 SCC 427 observed in paragraph 40 as under:

40. In M/s Kranti Associates (supra) reported in (2010)9SCC-496, the Apex  Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 HLR 731-737).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions.

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process

Administrative discretion in common parlance means choosing from amongst the various available options, perceptions of alternatives without reference to any pre-determined criteria, no matter how subjective that choice or the perception it may be. The problem of administrative discretion is, no doubt, complex. There has been constant conflict between the claims of the "administration to an absolute discretion and claims of subject to a reasonable exercise thereof.

It may also be mentioned that the administrative action is a comprehensive term and defies the exact definition. Speaking generally, that an administrative case can be classified into four categories, i.e. (1) rule making action, (2) rule-decision action, (3) rule application action and (4) ministerial action. Administrative action itself is residuary and it is neither legislative nor judicial. It has no procedural obligation of collecting evidence and weighing arguments. It cannot be gainsaid that such an action on many occasions is based on subjective satisfaction rather than the decision is based on policy and expediency. It does not decide the right though it may affect the right. It is, therefore, a settled proposition of law that writ Court under Article 226 cannot probe into the expediency of the decision.

It was then urged that the principal ground for holding the function of the Chief Justice under Sub-section (6) of Section 11 as administrative was to ensure immediate commencement of arbitration proceedings and speedy disposal of cases. In reality, however, it is likely to cause delay for the simple reason that if the order passed by the Chief Justice of the High Court is treated as judicial or quasi judicial, it can only be challenged in the Supreme Court under Article 136 of the Constitution. So far as the order of the Chief Justice of India is concerned, it is 'final' as no appeal/application/writ petition lies against it. But if such decision is held to be administrative, initially, it can be challenged on the judicial side of the High Court under Article 226 of the Constitution. Normally, under the High Court Rules, such petitions are dealt with and decided by a Single Judge. Hence, the decision of a single Judge can further be challenged by filing a Letters Patent Appeal or Intra-court Appeal under the relevant clause of the Letters Patent applicable to the High Court concerned. Finally, an order passed by the Division Bench can always be made subject-matter of challenge before this Court under Article 136 of the Constitution. Thus, an interpretation sought to be adopted for the purpose of reducing litigation and speedy disposal of proceedings would really result in increase of litigation and delay in disposal of cases.

I must admit that once it is held that the order passed by the Chief Justice is administrative, it can be challenged in Writ Petition, Letters Patent Appeal and in Special Leave Petition. But in my opinion, while exercising extraordinary jurisdiction under Article 226 of the Constitution, the High Court would consider the provisions of the Act, such as, limited judicial intervention of Court (Section 5); power of Arbitral Tribunal to rule on its own jurisdiction and the effect of such decision (Section 16). It will also keep in mind the legislative intent of expeditious disposal of proceedings and may not interfere at that stage. Ultimately, having jurisdiction or power to entertain a cause and interference with the order are two different and distinct matters. One does not necessarily result into the other. Hence, in spite of jurisdiction of the High Court, it may not stall arbitration proceedings by allowing the party to raise all objections before the Arbitral Tribunal.

In Laxmikant Revchand Bhojwani and Anr. v. Pratapsingh Mohansingh Pardeshi: , (1995)6SCC576, the relevant Rent Act did not provide for further appeal or revision against an order passed by the appellate authority. The aggrieved party, therefore, invoked supervisory jurisdiction of the High Court. The High Court allowed the petition and set aside the order passed by the appellate court.

Once the function of the Chief Justice is held to be administrative, there may not be 'duty to act judicially' on the part of the Chief Justice. Nevertheless in such cases, an administrative authority is required to act 'fairly'. Basic procedural fairness requires such notice to the opposite party. The principle in R. v. Electricity Commissioners, or Ridge v. Baldwin, may not apply to administrative functions, but another concept which developed at a later stage and accepted in public law field and found place in Administrative Law of 'duty to act fairly' would apply to administrative actions as well.

 

In Pearlberg v. Varity (Inspector of Taxes), Lord Pearson said;

"A tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to title contrary. But where some person or body is entrusted by Parliament that administrative or executive functions there is no presumption that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness."

 

In R. v. Commissioner for Racial Equality, Lord Diplock stated;

"Where an act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions."

The above principles have been accepted and applied in India also. In the leading case of Keshav Mills Co. Ltd. v. Union of India: [1973]3SCR22, a textile mill was closed down. A Committee was appointed by the Government of India to investigate into the affairs of the mill-company under the Industries (Development and Regulation) Act, 1951. After affording opportunity to the Company, a report was prepared by the Committee and submitted to the Government. A copy of the report, however, was not supplied to the Company. On the basis of the report, the Government took over the management of the Company. The said action was challenged by the company inter alia on the ground of violation of principles of natural justice inasmuch as no copy of the report submitted by the Committed to the Government was supplied to the Company nor was hearing afforded before finally deciding to take over the management.

 

 

In Mohinder Singh Gill v. Chief Election Commission: [1978]2SCR272 after considering several cases, Krishna Iyer, J. stated :

"Once we understand the soul of the rule as fairplay in action -and it is so - we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet: Its essence is good conscience in a given situation; nothing more - but nothing less."

It is thus clear that the doctrine of 'fairness' has become all pervasive. As has been said, the 'acting fairly' doctrine proved useful as a device for evading confusion which prevailed in the past. "The courts now have two strings to their bow." An administrative act may be held to be subject to the requirement and observance of natural justice either because it affects rights or interests and hence would involve a 'duty to act judicially' or it may be administrative, pure and simple, and yet, may require basic procedural protection which would involve 'duty to act fairly'. [Wade & Forsyth; 'Administrative Law'; (2005); pp. 492-94; de Smith; "Judicial Review of Administrative Action", (1995); pp. 397-98]

In High Court of Judicature at Bombay v. Udaysingh and Ors.,: [1997]3SCR803 the Hon'ble Apex Court while dealing with a case of judicial officer held as under:-

"Since the respondent is a judicial officer and; the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the officer and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that imposition of penalty of dismissal from service is well justified."

In High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil and Anr.,: [1997]3SCR1131 , the Supreme Court observed as under:-

"The lymph nodes (cancerous cells) of, corruption constantly keep creeping into the vital veins of the judiciary and the need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine or control enshrined in Articles 235, 124(6) of the Constitution. It would, therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection.

When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the aforesaid decisions.--------"