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PETITIONER: S.N. MUKHERJEE

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT28/08/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) MUKHARJI, SABYASACHI (CJ) KANIA, M.H. SHETTY, K.J. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR 1984            1990 SCR  Supl. (1)  44  1990 SCC  (4) 594        JT 1990 (3)   630  1990 SCALE  (2)383  CITATOR INFO :  RF         1991 SC 564  (6)  R          1992 SC1256  (7,9,11,14)

ACT:     Army Act 1950: Section  164--Court-Martial--Post confir- mation  petition--Central Government--Whether bound to  give reasons.

HEADNOTE:     The Appellant was officiating as a Major though he  held a  substantive rank of Captain as a  permanent  Commissioned Officer  of the army when on December 27, 1974 he took  over as  the  Officer Commanding 38 Coy. A.S.C.  (Sup)  Type  ’A’ attached  to the Military Hospital, Jhansi. In August,  1975 the Appellant went to attend a training course and  returned in the first week of November. 1975. In his absence  Captain G.C. Chhabra was commanding the unit of the appellant and he submitted  a  Contingent Bill dated September 25,  1975  for Rs.16,280 for winter liveries of the depot civilian  chowki- dars  and sweepers. The said Bill was returned by  the  Con- troller  of Defence Accounts (CDA) with certain  objections. Thereupon  the appellant submitted a fresh  contingent  Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the  wide  difference in the two Contingent Bills,  the  CDA reported  the matter to the Headquarters  for  investigation and a Court Enquiry blamed the appellant for certain lapses.     After  considering the said report of the Court  of  En- quiry the General Officer Commanding, M.P., Bihar and Orissa recommended  that ’severe displeasure’ (to be  recorded)  of the  General  Officer  Commanding-in-Chief  of  the  Central Command  be  awarded to the appellant. The  General  Officer Commanding-in-Chief Central Command, however. did not  agree with  the  said opinion and by order dated August  26,  1977 directed  that  disciplinary  action be  taken  against  the appellant for the lapses.     Pursuant to the said order a charge sheet dated July 20, 1978  containing three charges was served on  the  appellant and  it was directed that he be tried by General Court  Mar-

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tial. The first charge was, doing of a thing with intent  to defraud  under section 52(f) of the Act. The  second  charge was alternative to the first charge i.e. commit- 45 ting  an act prejudicial to good order and  military  disci- pline  under section 63 of the Act and the third charge  was also in respect of offence under section 63 of the Act.     ’the  appellant pleaded not guilty to the  charges.  The General Court Martial on November 29, 1978 found him  guilty of  first and third charge and awarded the sentence of  dis- missal  from  service.  Thereupon  the  appellant  submitted petition dated December 18, 1978 to the Chief of Army  Staff praying  that the findings of the General Court  Martial  be not  confirmed.  The Chief of the Army Staff  by  his  order dated  May 11, 1979 confirmed the findings and  sentence  of the General Court Martial. The appellant thereafter  submit- ted a post-confirmation petition under section 164(2) of the Act.  This was rejected by the Central Government  by  order dated  May  6, 1980. Thereupon the appellant  filed  a  writ petition  in the High Court of Delhi which was dismissed  in limine.  Hence this appeal by special leave directed  to  be heard  by  the  Constitution Bench for the  reason  that  it involves the question as to whether it was incumbent for the Chief  of the Army Staff, while confirming the findings  and sentence  of the General Court Martial and for  the  Central Government while rejecting the post-confirmation petition of the appellant to record their reasons for the orders  passed by them. Dismissing the appeal, this Court,     HELD:  The requirement that reasons be  recorded  should govern the decisions of an administrative authority exercis- ing quasi-judicial functions irrespective of the fact wheth- er  the decision is subject to appeal, revision or  judicial review.  It may, however, be added that it is  not  required that  the reasons should be as elaborate as in the  decision of  a  Court of law. The extent and nature  of  the  reasons would depend on particular facts and circumstances. What  is necessary  is that the reasons are clear and explicit so  as to  indicate that the authority has given due  consideration to the points in controversy. [62H; 63A-B]     The  need for recording of reasons is greater in a  case where the order is passed at the original stage. The  appel- late  or revisional authority, if it affirms such an  order, need not give separate reasons if the appellate or revision- al authority agrees with the reasons contained in the  order under challenge. [63B]     Except in cases where the requirement has been dispensed with  expressly or by necessary implication, an  administra- tive  authority exercising judicial or quasi-judicial  func- tions  is required to record’ the reasons for its  decision. [65B] 46     The  provisions contained in the Army Act, 1950 and  the Army Rules, 1954 negative a requirement to give reasons  for its findings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy. Similarly, reasons are  not required to be recorded for an order passed by the  confirm- ing authority confirming the findings and sentence  recorded by the Court Martial as well as for the order passed by  the Central  Government dismissing the  post-confirmation  peti- tion. [70E-F]     Sub-section (1) of section 164 of the Army Act enables a person  aggrieved by an order passed by a Court  Martial  to present a petition against the same. The expression  "order"

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under sub-section (1) does not include a finding or sentence of  the Court Martial and in so far as the finding and  sen- tence of the Court Martial is concerned the only remedy that is  available  to a person aggrieved by the  same  is  under sub-section (2) of section 164 of the Army Act and the  said remedy can be invoked only after the finding or sentence has been  confirmed by the confirming authority and  not  before the confirmation of the same. [72B; D-E]     Though a person aggrieved by the finding or sentence  of a Court Martial has no right to make a representation before the  confirmation of the same by the  confirming  authority, but  in case such a representation is made by a  person  ag- grieved by the finding or sentence of a Court Martial it  is expected  that the confirming authority shall give due  con- sideration  to  the same while confirming  the  finding  and sentence of the Court Martial. [72H; 73A]     Som Datt Datta v. Union of India & Ors., [1969] 2 S.C.R. 177;  Bhagat  Raja v. The Union of India &  Ors.,  [1967]  3 S.C.R. 302; Mahabir Prasad Santosh Kumar v. State of U.P.  & Ors.,  [1971]  1 S.C.R. 201; Woolcombers of  India  Ltd.  v. Woolcombers  Workers  Union  & Ant., [1974]  I  S.C.R.  503; Siemens  Engineering  & Manufacturing Co. of India  Ltd.  v. Union  of  India & Anr., [1976] Suppl.  S.C.R.  489;  Phelps Dodge Corporation v. National Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Securities and Exchange Commis- sion  v.  Chenery Corporation, [1942] 87 Law Ed. 626  at  p. 636; John T. Dunlop v. Waiter Bachewski, [1975] 44 Law Ed. 2 377;  Regina  v.  Gaming Board for  Great  Britain,  Exparte Benaim  & Khaida, [1970] 2 Q.B. 417 at p. 431; Mc  Innes  v. Onslow-Fane & Anr., [1978] 1 W.I..R. 1520 at p. 1531;  Breen v. Amalgamated Engineering Union & Ors., [1971] 2 Q.B.  175; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120;  Regina  v. Immigration Appeal Tribunal Ex  Parte  Khan (Mahmud), [1983] Q.B. 790; Pure Spring Co. Ltd. v.  Minister of National Revenue, 47 [1947] 1 D.L.R. 501 at p. 539; Re R.D.R. Construction Ltd. & Rent  Review Commission, [1983] 139 D.L.R. 3d. 168; Re  Yar- mouth  Housing  Ltd. & Rent Review  Commission,  [1983]  139 D.L.R.  (3d).  544; Osmond v. Public Service  Board  of  New South Wales, [1985] 3 NSWLR 447; Public Service Board of New South Wales v. Osmond, [1986] 63 A.L.R. 559; M/s.  Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors., [1962] 2  S.C.R.  339; Madhya Pradesh Industries Ltd. v.  Union  of India & Ors., [1966] 1 S.C.R. 466; Tranvancore Rayon Ltd. v. Union  of  India, [1970] 3 S.C.R. 40;  Tarachand  Khatri  v. Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R.  198; Raipur  Development Authority & Ors. v. M/s. Chokhamal  Con- tractors & Ors., [1989] 2 S.C.C. 721; A.K. Kraipak & Ors. v. Union  of India & Ors., [1970] 1 S.C.R. 457; R.   v.  Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1  Q.B. 456  and  Mahon v. Air New Zealand Ltd.,  [1984]  A.C.  648, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  417  of 1984.     From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981. A.K. Ganguli, A. Sharan for the Appellant.     Kapil  Sibal, Additional Solicitor General,  Raju  Rama- chandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma  Suri for the Respondents.

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T. Prasad for the Secretary, Ministry of Defence. The Judgment of the Court was delivered by     S.C.  AGRAWAL,  J.  This appeal, by  special  leave,  is directed against the order dated August 12, 1981, passed  by the  High Court of Delhi dismissing the writ petition  filed by  the  appellant. In the writ petition the  appellant  had challenged  the  validity of the finding  and  the  sentence recorded by the General Court Martial on November 29,  1978, the  order dated May 11, 1979, passed by the Chief  of  Army Staff  confirming the findings and the sentence recorded  by the  General Court Martial and the order dated May 6,  1980, passed  by  the Central Government dismissing  the  petition filed by the appellant under Section 164(2) of the Army Act, 1950 (hereinafter referred to as ’the Act’). 48     The  appellant held a permanent commission, as an  offi- cer,  in  the regular army and was holding  the  substantive rank of Captain. He was officiating as a Major. On  December 27, 1974, the appellant took over as the Officer  Commanding of  38  Coy.  ASC (Sup) Type ’A’ attached  to  the  Military Hospital, Jhansi. In August 1975, the appellant had gone  to attend  a training course and he returned in the first  week of  November 1975. In his absence Captain G.C.  Chhabra  was the  officer  commanding the unit of the  appellant.  During this  period  Captain Chhabra submitted  a  Contingent  Bill dated  September 25, 1975 for Rs.16,280 for winter  liveries of  the  depot civilian chowkidars and  sweepers.  The  said Contingent  Bill was returned by the Controller  of  Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant  submitted a fresh Contingent Bill dated  December 25, 1975 for a sum of Rs.7,029.57. In view of the difference in  the amounts mentioned in the two Contingent  Bills,  the CDA  reported the matter to the headquarters for  investiga- tion and a Court of Enquiry blamed the appellant for certain lapses.     The  said report of the Court of Enquiry was  considered by  the General Officer Commanding, M.P., Bihar  and  Orissa Area,  who,  on January 7,  1977  recommended  that  ’severe displeasure’  (to be recorded) of the General  Officer  Com- manding-in-Chief  of the Central Command be awarded  to  the appellant. The General Officer Commanding-in-Chief.  Central Command  did  not agree with the said opinion and  by  order dated August 26, 1977, directed that disciplinary action  be taken against the appellant for the lapses.     In  view  of the aforesaid order passed by  the  General Officer Commanding-in-Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served  on the appellant and it was directed that he be tried by Gener- al  Court  Martial. The first charge was in respect  of  the offence  under Section 52(f) of the Act, i.e. doing a  thing with intent to defraud. the second charge was alternative to the first charge and was in respect of offence under Section 63  of the Act, i.e. committing an act prejudicial  to  good order and military discipline and the third charge was  also in respect of offence under Section 63 of the Act.     The  appellant  pleaded not guilty to the  charges.  The prosecution examined 22 witnesses to prove the charges.  The General  Court  Martial.  on November 29,  1978,  found  the appellant  not  guilty of the second charge  but  found  him guilty  of  the first and the third charge and  awarded  the sentence of dismissal from service. The appellant submit- 49 ted a petition dated December 18, 1978, to the Chief of Army Staff  wherein he prayed that the findings and the  sentence of the General Court Martial be not confirmed. The  findings

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and sentence of the General Court Martial were confirmed  by the Chief of the Army Staff by his order dated May 11, 1979. The  appellant,  thereafter, submitted  a  post-confirmation petition under Section 164(2) of the Act. The said  petition of  the appellant was rejected by the Central Government  by order  dated May 6, 1980. The appellant thereupon filed  the writ  petition  in the High Court of Delhi.  The  said  writ petition  was  dismissed, in limine, by the  High  Court  by order  dated August 12, 1981. The appellant approached  this Court for grant of special leave to appeal against the  said order  of the Delhi High Court. By order dated  January  24, 1984, special leave to appeal was granted by this Court.  By the said order it was directed that the appeal be listed for final hearing before the Constitution Bench. The said  order does not indicate the reason why the appeal was directed  to be heard by the Constitution Bench. The learned counsel  for the appellant has stated that this direction has been  given by  this Court for the reason that the appeal  involves  the question as to whether it was incumbent for the Chief of the Army  Staff, while confirming the findings and the  sentence of  the General Court Martial, and for the  Central  Govern- ment, while rejecting the post-confirmation petition of  the appellant, to record their reasons for the orders passed  by them. We propose to deal with this question first.     It may be mentioned that this question has been  consid- ered  by this Court in Som Datt Datta v. Union of India  and Others,  [1969] 2 S.C.R. 177. In that case it was  contended before this Court that the order of the Chief of Army  Staff confirming  the proceedings of the Court Martial under  Sec- tion  164  of the Act was illegal since no reason  had  been given in support of the order by the Chief of the Army Staff and  that  the  Central Government had also  not  given  any reason while dismissing the appeal of the petitioner in that case under Section 165 of the Act and that the order of  the Central  Government  was also illegal. This  contention  was negatived.  After referring to the provisions  contained  in Sections 164, 165 and 162 of the Act this Court pointed that  while Section 162 of the Act expressly  provides  that the  Chief of the Army Staff may "for reasons based  on  the merits of the case" set aside the proceedings or reduce  the sentence  to any other sentence which the Court  might  have passed,  there is no express obligation imposed by  Sections 164  and 165 of the Act on the confirming authority or  upon the  Central  Government to give reasons in support  of  its decision  to confirm the proceedings of the  Court  Martial. This Court observed that no other section of the Act or  any of the rules made 50 therein had been brought to its notice from which  necessary implication  can be drawn that such a duty is cast upon  the Central  Government or upon the confirming  authority.  This Court  did  not accept the contention that  apart  from  any requirement imposed by the statute or statutory rule  either expressly  or by necessary implication, there is  a  general principle  or  a rule of natural justice  that  a  statutory tribunal  should  always and in every case  give  reasons  m support of its decision.     Shri  A.K. Ganguli has urged that the decision  of  this Court  in  Som Datt Datta’s case (supra) to  the  extent  it holds that there is no general principle or rule of  natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsid- eration  inasmuch as it is not in consonance with the  other decisions of this Court. In support of this submission  Shri Ganguli  has placed reliance on the decisions of this  Court

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in  Bhagat Raja v. The Union of India and Others,  [1967]  3 SCR  302; Mahabir Prasad Santosh Kumar v. State of U.P.  and Others,  [1971]  1  SCR 201; Woolcombers of  India  Ltd.  v. Woolcombers  Workers Union and Another, [1974] 1 S.C.R.  503 and Siemens Engineering & Manufacturing Co. of India Limited v. Union of India and Another, [1976] Suppl. S.C.R. 489.     The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is  no requirement in law that reasons be given by the  con- firming  authority while confirming the finding or  sentence of  the  Court-Martial or by the  Central  Government  while dealing with the post-confirmation petition submitted  under Section  164 of the Act and that the decision of this  Court in   Som Datt Datta’s case (supra) in this regard  does  not call for reconsideration. The  question  under consideration can be divided  into  two parts: (i) Is there any general principle of law which requires  an administrative  authority  to  record the  reasons  for  its decision; and (ii)  If so, does the said principle apply to an order  con- firming  the  findings and sentence of a  Court-Martial  and post-confirmation proceedings under the Act?     On the first part of the question there is divergence of opinion  in the common law countries. The legal position  in the United States is different from that in other common law countries. 51     In  the  United  States the courts  have  insisted  upon recording  of reasons for its decision by an  administrative authority  on  the premise that the  authority  should  give clear  indication that it has exercised the discretion  with which it has been empowered because "administrative  process will  best be vindicated by clarity in its exercise"  Phelps Dodge Corporation v. National Labour Relations Board, [1940] 85 Law Edn. 1271 at P. 1284. The said requirement of record- ing  of  reasons has also been justified on the  basis  that such  a  decision  is subject to judicial  review  and  "the Courts cannot exercise their duty of review unless they  are advised  of the considerations underlying the  action  under review" and that "the orderly functioning of the process  of review requires that the grounds upon which the  administra- tive  agency  acted  be  clearly  disclosed  and  adequately sustained."  Securities and Exchange Commission  v.  Chenery Corporation,  [1942]  87 Law Ed. 626 at P. 636. In  John  T. Dunlop v. Waiter Bachowski, [1975] 44 Law Ed. 2 377) it  has been  observed that a statement of reasons  serves  purposes other than judicial review inasmuch as the reasons  promotes thought  by the authority and compels it to cover the  rele- vant  points  and eschew irrelevancies and  assures  careful administrative  consideration.  The  Federal  Administrative Procedure  Act, 1946 which prescribed the  basic  procedural principles which are to govern formal administrative  proce- dures contained an express provision (Section g(b) ) to  the effect  that  all decisions shall indicate  a  statement  of findings  and conclusions as well as reasons or  basis  the, for upon all the material issues of fact, law or  discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state  stat- utes. In  England the position at Common law is that there  is  no requirement that reasons should be given for its decision by the  administrative authority (See: Regina v.  Gaming  Board for Great Britain Ex Party Benaim and Khaida, [1970] 2  Q.B.

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417 at p. 431 and McInnes v. Onslow-Fane and Another, [1978] 1  W.L.R.  1520 at p.  1531). There are,  however,  observa- tions  in some judgments wherein the importance  of  reasons has been emphasised. In his dissenting judgment in Breen  v. Amalgamated Engineering Union and Others, [1971] 2 Q.B.  175 Lord Denning M.R., has observed that: "the  giving  of reasons is one of the fundamental  of  good administration." (P. 191)     In Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] ICR  120  Sir John Donaldson, as President of  the  National Industrial Relations Court, has observed that: 52 "failure to give reasons amounts to a denial of justice."     In  Regina v. Immigration Appeal Tribunal Ex parte  Khan (Mahmud), [1983] QB 790 Lord Lane, CJ., while expressing his reservation  on  the proposition that any  failure  to  give reasons means a denial of justice, has observed: "A  party  appearing before a tribunal is entitled  to  know either  expressly  stated by the tribunal  or  inferentially stated,  what it is to which the tribunal is addressing  its mind." (P. 794)     The Committee on Ministers’ Powers (Donoughmore  Commit- tee) in its report submitted in 1932, recommended that  "any party  affected  by  a decision should be  informed  of  the reasons  on  which the decision is based" and that  "such  a decision should be in the form of a reasoned document avail- able  to  the parties affected." (P. 100) The  Committee  on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that "decisions of tribunals  should be reasoned and as full as possible."  The said Committee has observed: "Almost all witnesses have advocated the giving of  reasoned decisions  by tribunals. We are convinced that  if  tribunal proceedings are to be fair to the citizen reasons should  be given  to the fullest practicable extent. A decision is  apt to  be  better if the reasons for it have to be set  out  in writing  because  the reasons are then more likely  to  have been  properly thought out. Further, a reasoned decision  is essential  in order that, where there is a right of  appeal, the  applicant  can assess whether he has  good  grounds  of appeal and know the case he will have to meet if he  decides to appeal." (Para 98)     The recommendations of the Donoughmore Committee and the Franks  Committee led to the enactment of the Tribunals  and Enquiries  Act, 1958 in United Kingdom. Section 12  of  that Act prescribed that it shall be the duty of the Tribunal  or Minister to furnish a statement, either written or oral,  of the reasons for the decision if requested, on or before  the giving of notification of the decision to support the  deci- sion.  The said Act has been replaced by the  Tribunals  and Enquiries  Act, 1971 which contains a similar  provision  in Section  12. This requirement is. however, confined. in  its applications to tribunals and statu- 53 tory authorities specified in Schedule I to the said  enact- ment. In respect of the tribunals and authorities which  are not  covered  by the aforesaid enactment, the  position,  as prevails at common law, applies. The Committee of JUSTICE in its Report, Administration Under Law, submitted in 1971, has expressed the view: "No  single factor has inhibited the development of  English administrative law as seriously as the absence of any gener- al  obligation upon public authorities to give  reasons  for their decisions."     The law in Canada appears to be the same as in  England.

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In  Pure  Spring Co. Ltd. v. Minister of  National  Revenue, [1947] 1 DLR 501 at P. 539 it was held that when a  Minister makes  a determination in his discretion he is not  required by law to give any reasons for such a determination. In some recent  decisions, however, the Courts have recognised  that in  certain  situations there would be an  implied  duty  to state the reasons or grounds for a decision (See: Re R  D.R. Construction Ltd. And Rent Review Commission, [1983] 139 DLR (3d)  168)  and  Re Yarmouth Housing Ltd.  And  Rent  Review Commission,  [1983]  139 DLR (3d) 544. In  the  Province  of Ontario the Statutory Powers Procedure Act, 1971 was enacted which  provided that "a tribunal shall give its final  deci- sion,  if any, in any proceedings in writing and shall  give reasons  in  writing  therefore if requested  by  a  party." (Section  17).  The said Act has now been  replaced  by  the Statutory  Powers and Procedure Act, 1980, which contains  a similar provision.     The position at common law is no different in Australia. The Court of Appeal of the Supreme Court of New South  Wales in Osmond v. Public service Board of New South Wales, [1985] 3  NSWLR  447) had held that the common law  requires  those entrusted  by Statute with the discretionary power  to  make decisions  which will affect other persons to act fairly  in the  performance of their statutory functions  and  normally this  will  require an obligation to state the  reasons  for their decisions. The said decision was overruled by the High Court  of  Australia in Public Service Board  of  New  South Wales v. Osmond, [1986] 63 ALR 559 and it has been held that there is no general rule of the common law, or principle  of natural  justice,  that  requires reasons to  be  given  for administrative  decisions,  even decisions which  have  been made in the exercise of a statutory discretion and which may adversely  affect the interests or defeat the legitimate  or reasonable expectations, of other persons. Gibbs CJ., in his leading judgment, has expressed the view that "the ’rules of natural justice are 54 designed to ensure fairness in the making of a decision  and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the  decision has  been  made." The learned Chief  Justice  has.  however. observed  that "even assuming that in special  circumstances natural justice may require reasons to be given, the present case is not such a case." (P. 568). Deane J., gave a concur- ring judgment, wherein after stating that "the exercise of a decision  making  power  in a way  which  adversely  affects others  is less likely to be. or appear to be, arbitrary  if the  decision-maker formulates and provides reasons for  his decision", the learned Judge has proceeded to hold that "the stage  has  not been reached in this country where it  is  a general  prima facie requirement of the common law rules  of natural justice or procedural fair play that the administra- tive decision-maker. having extended to persons who might be adversely affected by a decision an adequate opportunity  of being heard. is bound to furnish reasons for the exercise of a  statutory decision-making power." (P. 572).  The  learned Judge  has  further observed that the common  law  rules  of natural  justice or procedural fair play are neither  stand- ardized  nor immutable and that their content may vary  with changes  in contemporary practice and standards. In view  of the  statutory developments that have taken place  in  other countries  to which reference was made by the Court  of  Ap- peal, Deane, J. has observed that the said developments "are conducive  to an environment within which the courts  should be less reluctant than they would have been in times past to

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discern  in statutory provisions a legislative  intent  that the particular decision-maker should be under a duty to give reasons." (P. 573).     This  position  at common law has been  altered  by  the Commonwealth Administrative Decisions (Judicial Review) Act. 1977.  Section  13 of the said Act enables a person  who  is entitled to apply for review the decision before the Federal Court  to request the decision-maker to furnish him  with  a statement  in writing setting out the findings  on  material questions of fact, referring to the evidence or other  mate- rial  on  which  those findings were based  and  giving  the reasons  for the decision and on such a request  being  made the decision-maker has to prepare the statement and  furnish it to the persons who made the request as soon as  practica- ble and in any event within 28 days. The provisions of  this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the  commonwealth Administrative Appeals Tribunal Act. 1975. In India the matter was considered by the Law Commission in 55 the  14th Report relating to reform in Judicial  Administra- tion. The Law Commission recommended: "In the case of administrative decisions provision should be made that they should be accompanied by reasons. The reasons will  make it possible to test the validity of  these  deci- sions  by the machinery of appropriate writs." (Vol.  II  P. 694).     No laws has, however, been enacted in pursuance of these recommendations,  imposing  a  general duty  to  record  the reasons  for  its decision by  an  administrative  authority though  the  requirement to give reasons is  found  in  some statutes.     The  question as to whether an administrative  authority should  record the reasons for its decision has come up  for consideration before this Court in a number of cases.     In  M/s.  Harinagar  Sugar Mills Ltd.  v.  Shyam  Sundar Jhunjhunwala  and Others, [1962] 2 SCR 339,  a  Constitution Bench  of this Court. while dealing with an order passed  by the  Central Government in exercise of its appellate  powers under  Section  111(3)  of the Companies Act,  1956  in  the matter  of refusal by a company to register the transfer  of shares,  has  held  that there was no proper  trial  of  the appeals  before the Central Government since no reasons  had been  given  in support of the order passed  by  the  Deputy Secretary  who heard the appeals. In that case it  has  been observed: "If  the  Central Government acts as a  tribunal  exercising judicial powers and the exercise of that power is subject to the  jurisdiction  of this Court under Article  136  of  the Constitution we fail to see how the power of this Court  can be  effectively  exercised if reasons are not given  by  the Central Government in support of its order." (P. 357)     In Madhya Pradesh Industries Ltd. v. Union of India  and Others, [1966] 1 S.C.R. 466 the order passed by the  Central Government dismissing the revision petition under Rule 55 of the  Mineral Concession Roles, 1960, was  challenged  before this  Court on the ground that it did not  contain  reasons. Bachawat,  J., speaking for himself and Mudholkar,  J.,  re- jected  this  contention  on the view that  the  reason  for rejecting  the revision application appeared on the face  of the order because the Central Government had agreed with the reasons given by 56 the  State Government in its order. The learned  Judges  did

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not agree with the submission that omission to give  reasons for the decision is of itself a sufficient ground for quash- ing  it  and held that for the purpose of  an  appeal  under Article 136 orders of courts and tribunals stand on the same footing.  The  learned Judges pointed out that an  order  of court  dismissing  a  revision application  often  gives  no reasons but this is not a sufficient ground for quashing  it and likewise an order of an administrative tribunal  reject- ing  a revision application cannot be pronounced to  be  in- valid  on the sole ground that it does not give reasons  for the  rejection. The decision in Hari Nagar Sugar Mills  case (supra)  was distinguished on the ground that in  that  case the  Central Government had reversed the  decision  appealed against  without giving any reasons and the record  did  not disclose any apparent ground for the reversal. According  to the  learned Judges there is a vital difference  between  an order of reversal and an order of affirmance. Subba Rao, J., as he then was, did to concur with this view and found  that the  order of the Central Government was vitiated as it  did not disclose any reasons for rejecting the revision applica- tion. The learned Judge has observed: "In the context of a welfare State, administrative tribunals have  come to stay. Indeed, they are the necessary  concomi- tants  of a Welfare State. But arbitrariness in their  func- tioning  destroys  the concept of a  welfare  State  itself. Self-discipline  and  supervision  exclude or  at  any  rate minimize  arbitrariness. The least a tribunal can do  is  to disclose  its mind. The compulsion of disclosure  guarantees consideration.  The  condition to  give  reasons  introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory  court to  keep the tribunals within bounds, A reasoned order is  a desirable condition of judicial disposal." (P. 472). "If  tribunals can make orders without giving  reasons,  the said power in the hands of unscrupulous or dishonest officer may turn out to be a potent weapon for abuse of power.  But, if  reasons for an order are given, it will be an  effective restraint  on  such abuse, as the order,  if  its  discloses extraneous or irrelevant considerations, will be subject  to judicial  scrutiny and correction. A speaking order will  at its  best  be a reasonable and at its worst be  at  least  a plausible  one.  The public should not be deprived  of  this only safeguard." (P. 472). 57 "There  is an essential distinction between a court  and  an administrative  tribunal.  A  Judge is trained  to  look  at things objectively, uninfluenced by considerations of policy or  expediency; but an executive officer generally looks  at things  from  the standpoint of policy and  expediency.  The habit  of mind of an executive officer so formed  cannot  be expected to change from function to function or from act  to act.  So  it is essential that some  restrictions  shall  be imposed on tribunals in the matter of passing orders affect- ing  the rights of parties; and the least they should do  is to give reasons for their orders. Even in the case of appel- late  courts invariably reasons are given, except when  they dismiss an appeal or revision in limine and that is  because the  appellate or revisional court agrees with the  reasoned judgment  of the subordinate court or there are  no  legally permissible  grounds  to  interfere with it.  But  the  same reasoning  cannot  apply to an appellate  tribunal,  for  as often as not the order of the first tribunal is laconic  and does not give any reasons." (P. 472-73).     With  reference  to an order of affirmance  the  learned

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Judge  observed that where the original tribunal gives  rea- sons,  the appellate tribunal may dismiss the appeal or  the revision,  as the case may be, agreeing with  those  reasons and that what is essential is that reasons shall be given by an  appellate or revisional tribunal expressly or by  refer- ence to those given by the original tribunal.     This  matter was considered by a Constitution  Bench  of this Court in Bhagat Raja case (supra) where also the  order under challenge had been passed by the Central Government in exercise  of its revisional powers under Section 30  of  the Mines  and Minerals (Regulation and Development)  Act,  1957 read  with rules 54 and 55 of the Mineral Concession  Rules, 1960. Dealing with the question as to whether it was  incum- bent  on the Central Government to give any reasons for  its decision on review this Court has observed: "The  decisions  of tribunals in India are  subject  to  the supervisory powers of the High Courts under Art. 227 of  the Constitution  and  of appellate powers of this  Court  under Art.  136. It goes without saying that both the  High  Court and  this Court are placed under a great disadvantage if  no reasons  are given and the revision is dismissed  curtly  by the use of the single word "rejected", or "dismissed". In 58 such  a  case,  this Court can probably  only  exercise  its appeallate  jurisdiction  satisfactorily  by  examining  the entire  records of the case and after giving a hearing  come to  its  conclusion on the merits of the appeal.  This  will certainly  be a very unsatisfactory method of  dealing  with the appeal." (P. 309).     This  Court has referred to the decision in Madhya  pra- desh  Industries case (supra) and the observations of  Subba Rao,  J.,  referred  to above, in that  decision  have  been quoted with approval. After taking note of the  observations of Bachawat, J., in that case, the learned Judges have held: "After all a tribunal which exercises judicial or quasijudi- cial  powers  can certainly indicate its mind as to  why  it acts  in a particular way and when important rights of  par- ties  of far-reaching consequences to them  are  adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and  examined, the  least that can be expected is that the tribunals  shall tell the party why the decision is going against him in  all cases  where  the  law gives a  further  right  of  appeal." (P.315).     Reference has already been made to Som Datt Datta’s case (supra) wherein a Constitution Bench of this Court has  held that the confirming authority, while confirming the findings and sentence of a Court-Martial, and the Central Government, while  dealing with an appeal under Section 165 of the  Act, are  not required to record the reasons for  their  decision and  it  has been observed that apart from  any  requirement imposed by the statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that  a statutory  tribunal  should always and in  every  case  give reasons  in support of its decision. In that case the  Court was  primarily  concerned  with the  interpretation  of  the provisions  of  Act and the Army Rules, 1954.  There  is  no reference to the earlier decisions in Harinagar Sugar  Mills case  (supra) and Bhagat Raja case (supra) wherein the  duty to  record  reasons  was imposed in view  of  the  appellate jurisdiction of this Court and the supervisory  jurisdiction of the High Court under Articles 136 and 227 of the  Consti- tution of India respectively.     In Travancore Rayon Ltd. v. Union of India, [1970] 3 SCR

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4(1 this Court has observed: 59 "The Court insists upon disclosure of reasons in support  of the order on two grounds; one, that the party aggrieved in a proceedings  before  the High Court or this  Court  has  the opportunity to demonstrate that the reasons which  persuaded the authority to reject his case were erroneous; the  other, that  the obligation to record reasons operates as a  deter- rent  against  possible arbitrary action  by  the  executive authority invested with the judicial power." (P. 46)     In  Mahabir  Prasad Santosh Kumar v. State of  U.P.  and Others  (supra)  the District Magistrate had  cancelled  the licence  granted  under the’ U.P  Sugar  Dealers’  Licensing Order, 1962 without giving any reason and the State  Govern- ment had dismissed the appeal against the said order of  the District  Magistrate  without recording  the  reasons.  This Court has held: "The practice of the executive authority dismissing statuto- ry appeal against orders which prima facie seriously  preju- dice  the rights of the aggrieved party without giving  rea- sons is a negation of the rule of law." (P. 204) "Recording of reasons in support of a decision on a disputed claim  by a quasi-judicial authority ensures that the  deci- sion  is reached according to law and is not the  result  of caprice,  whim or fancy or reached on grounds of  policy  or expediency. A party to the dispute is ordinarily entitled to know  the  grounds on which the authority has  rejected  his claim.  If the order is subject to appeal, the necessity  to record reasons is greater, for without recorded reasons  the appellate  authority has no material on which it may  deter- mine whether the facts were properly ascertained, the  rele- vant  law was correctly applied and the decision was  just." (P. 205)     In Woolcombers of India Ltd. case (supra) this Court was dealing  with  an award of an Industrial  Tribunal.  It  was found that the award stated only the conclusions and it  did not give the supporting reasons. This Court has observed: "The  giving of reasons in support of their  conclusions  by judicial  and  quasi-judicial  authorities  when  exercising initial  jurisdiction  is  essential  for  various  reasons. First, it is calculated to prevent unconscious unfairness or arbitrari- 60 ness  in reaching the conclusions. The very search for  rea- sons  will put the authority on the alert and  minimise  the chances  of  unconscious infiltration of  personal  bias  or unfairness  in  the conclusion. The  authority  will  adduce reasons  which will be regarded as fair and legitimate by  a reasonable  man  and will discard irrelevant  or  extraneous considerations.  Second, it is a well-known  principle  that justice should not only be done but should also appear to be done.  Unreasoned conclusions may be just but they  may  not appear  to be just to those who read them. Reasoned  conclu- sions,  on the other hand, will have also the appearance  of justice.  Third,  it  should be remembered  that  an  appeal generally  lies  from the decision of  judicial  and  quasi- judicial authorities to this Court by special leave  granted under  Article 136. A judgment which does not  disclose  the reasons,  will  be of little assistance to the  Court."  (P. 507) In Siemens Engineering & Manufacturing Co. of India  Limited case  (supra) this Court was dealing with an appeal  against the  order of the Central Government on a revision  applica- tion  under the Sea Customs Act, 1878. This Court  has  laid down:

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"It  is  now settled law that where an  authority  makes  an order  in  exercise  of a quasi-judicial  function  it  must record  its reasons in support of the order it makes.  Every quasijudicial order must be supported by reasons." (P 495) "If  courts  of  law are to be  replaced  by  administrative authorities  and  tribunals,  as indeed, in  some  kinds  of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that  administrative authorities  and  tribunals should accord  fair  and  proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in  support of  the orders made by them. Then along  administrative  au- thorities and tribunals, exercising quasi-judicial  function will be able to justify their existence and carry credibili- ty with the people by inspiring confidence in the  adjudica- tory  process.  The rule requiring reasons to  be  given  in support  of an order is, like the principle of audi  alteram partera,  a  basic principle of natural justice  which  must inform  every quasi-judicial process and this rule  must  be observed in its 61 proper spirit and mere pretence of compliance with it  would not satisfy the requirement of law." (496)     Tarachand  Khatri  v. Municipal Corporation of  Delhi  & Others,  [1977]  2 SCR 198 was a case where an  inquiry  was conducted  into charges of misconduct and  the  disciplinary authority,  agreeing with the findings of the Inquiry  Offi- cer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary authority  had not given its reasons for passing the  order. The said contention was negatived by this Court and distinc- tion  was drawn between an order of affirmance and an  order of reversal. It was observed: "   .....  while it may be necessary for a  disciplinary  or administrative authority exercising quasi-judicial functions to  state the reasons in support of its order if it  differs from the conclusions arrived at and the recommendations made by the Inquiry Officer in view of the scheme of a particular enactment  or the rules made thereunder, it would be  laying down  the proposition too broadly to say that even an  ordi- nary concurrence must be supported by reasons." (P. 208)     In  Raipur  Development  Authority and  Others  v.  Mls. Chokhamal  Contractors  and Others, [1989] 2  S.C.C.  721  a Constitution  Bench of this Court was considering the  ques- tion  whether it is obligatory for an arbitrator  under  the Arbitration Act, 194(1 to give reasons for the award. It was argued that the requirement of giving reasons for the  deci- sion  is  a part of the rules of natural justice  which  are also  applicable to the award of an arbitrator and  reliance was placed on the decisions in Bhagat Raja case (Supra)  and Siemens  Engineering Co. case (Supra). The  said  contention was rejected by this Court. After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens  Engineering  Co. case (Supra) this  Court  has  ob- served: "It  is  no doubt true that in the decisions  pertaining  to Administrative  Law, this court in some cases  has  observed that the giving of reasons in an administrative decision  is a rule of natural justice by an extension of the  prevailing rules. It would be in the interest of the world of  commerce that the said rule is confined to the area of Administrative Law  .....  But at the same time it has to be borne in  mind that what applies generally to settlement of disputes by 62 authorities  governed by public law need not be extended  to

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all  cases arising under private law such as  those  arising under  the law of arbitration which is intended for  settle- ment of private disputes." (P. 751-52)     The  decisions of this Court referred to above  indicate that  with regard to the requirement to record  reasons  the approach  of  this Court is more in line with  that  of  the American  Courts.  An  important  consideration  which   has weighed  with the Court for holding that  an  administrative authority  exercising quasi-judicial functions  must  record the  reasons  for its decision, is that such a  decision  is subject  to the appellate jurisdiction of this  Court  under Article  136 of the Constitution as well as the  supervisory jurisdiction  of  the High Courts under Article 227  of  the Constitution and that the reasons, if recorded, would enable this  Court or the High Courts to effectively  exercise  the appellate  or  supervisory power. But this is not  the  sole consideration.  The  other considerations  which  have  also weighed  with  the Court in taking this view  are  that  the requirement of recording reasons would (i) guarantee consid- eration  by  the authority; (ii) introduce  clarity  in  the decisions;  and (iii) minimise chances of  arbitrariness  in decisionmaking. In this regard a distinction has been  drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge  is trained  to look at things objectively uninfluenced by  con- siderations  of  policy or expediency whereas  an  executive officer  generally  looks at things from the  standpoint  of policy and expediency.     Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial  func- tions, would no doubt facilitate the exercise of its  juris- diction  by the appellate or supervisory authority. But  the other  considerations,  referred to above, which  have  also weighed  with this Court in holding that  an  administrative authority  must record reasons for its decision, are  of  no less  significance. These considerations show that  the  re- cording  of reasons by an administrative authority serves  a salutary purpose, namely, it excludes chances of  arbitrari- ness  and  ensures a degree of fairness in  the  process  of decision-making. The said purpose would apply equally to all decisions  and its application cannot be confined  to  deci- sions  which  are subject to appeal,  revision  or  judicial review.  In  our opinion, therefore,  the  requirement  that reasons be recorded should govern the decisions of an admin- istrative   authority  exercising  quasijudicial   functions irrespective of the fact whether the decision is subject  to appeal,  revision  or judicial review. It may,  however,  be added 63 that it is not required that the reasons should be as elabo- rate  as in the decision of a Court of law. The  extent  and nature  of the reasons would depend on particular facts  and circumstances.  What  is necessary is that the  reasons  are clear and explicit so as to indicate that the authority  has given  due consideration to the points in  controversy.  The need for recording of reasons is greater in a case where the order  is  passed at the original stage.  The  appellate  or revisional authority, if it affirms such an order, need  not give separate reasons if the appellate or revisional author- ity  agrees  with the reasons contained in the  order  under challenge.     Having  considered the rationale for the requirement  to record  the  reasons for the decision of  an  administrative authority  exercising  quasi-judicial functions we  may  now examine the legal basis for imposing this obligation.  While

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considering this aspect the Donough more Committee  observed that  it may well be argued that there is a third  principle of natural justice, namely, that a party is entitled to know the  reason for the decision, be it judicial or  quasi-judi- cial.  The committee expressed the opinion that  "there  are some cases where the refusal to give grounds for a  decision may  be  plainly unfair; and this may be so, even  when  the decision is final and no further proceedings are open to the disappointed  party by way of appeal or otherwise" and  that "where further proceedings are open to a disappointed party, it  is contrary to natural justice that the silence  of  the Minister or the Ministerial Tribunal should deprive them  of the  opportunity."  (P 80) Prof. H.W.R. Wade  has  also  ex- pressed the view that "natural justice may provide the  best rubric  for it, since the giving of reasons is  required  by the ordinary man’s sense of justice." (See Wade, Administra- tive Law, 6th Edn. P. 548). In Siemens Engineering Co.  case (Supra) this Court has taken the same view when it  observed that  "the rule requiring reasons to be given in support  of an  order is, like the principles of audi alteram parlem,  a basic  principle of natural justice which must inform  every quasi-judicial process." This decision proceeds on the basis that  the  two  well-known principles  of  natural  justice, namely  (i) that no man should be a Judge in his  own  cause and (ii) that no person should be judged without a  hearing, are not exhaustive and that in addition to these two princi- ples there may be rules which seek to ensure fairness in the process  of decision-making and can be regarded as  part  of the  principles of natural justice. This view is  in  conso- nance  with the law laid down by this Court in A.K.  Kraipak and  Others v. Union of India and Others, [1970] 1 SCR  457, wherein it has been held: 64 "The  concept of natural justice has undergone a great  deal of  change in recent years. In the past it was thought  that it  included  just two rules namely (i) no one  shall  be  a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party  without affording  him a reasonable hearing (audi  alteram  partem). Very soon thereafter a third rule was envisaged and that  is that  quasi-judicial enquiries must be held in  good  faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be  added to the rules of natural justice." (P. 468-69)     A  similar trend is discernible m the decisions of  Eng- lish  Courts wherein it has been held that  natural  justice demands  that the decision should be based on some  evidence of  probative value. (See: R. v. Deputy Industrial  Injuries Commissioner  ex P. Moore, [1965] 1 Q.B. 456; Mahon  v.  Air New Zealand Ltd., [1984] A.C. 648.     The  object underlying the rules of natural justice  "is to  prevent miscarriage of justice" and secure "fairplay  in action."  As pointed out earlier the requirement  about  re- cording  of  reasons for its decision by  an  administrative authority exercising quasi-judicial functions achieves  this object by excluding chances of arbitrariness and ensuring  a degree of fairness in the process of decision-making.  Keep- ing  in  view  the expanding horizon of  the  principles  of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural  justice which govern exercise of power by  adminis- trative  authorities. The rules of natural justice  are  not embodied rules. The extent of their application depends upon the  particular statutory framework whereunder  jurisdiction has  been  conferred on the administrative  authority.  With

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regard to the exercise of a particular power by an  adminis- trative  authority including exercise of judicial or  quasi- judicial  functions  the legislature, while  conferring  the said  power,  may feel that it would not be  in  the  larger public interest that the reasons for the order passed by the administrative  authority  be recorded in the order  and  be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provi- sion to that affect as those contained in the Administrative Procedure  Act, 1946 of U.S.A. and the Administrative  Deci- sions  (Judicial Review) Act, 1977 of Australia whereby  the orders passed by certain specified authorities are  excluded from the ambit of the enactment. Such an exclusion can  also arise  by necessary implication from the nature of the  sub- ject matter, the scheme and the provisions of the 65 enactment.  The public interest underlying such a  provision would outweight the salutary purpose served by the  require- ment  to  record the reasons. The said  requirement  cannot, therefore, be insisted upon in such a case.     For  the  reasons aforesaid, it must be  concluded  that except  in  cases where the requirement has  been  dispensed with  expressly or by necessary implication, an  administra- tive  authority exercising judicial or quasi-judicial  func- tions is required to record the reasons for its decision.     We  may  now come to the second part  of  the  question, namely,  whether  the confirming authority  is  required  to record  its reasons for confirming the finding and  sentence of  the  court-martial  and the Central  Government  or  the competent authority entitled to deal with the post-confirma- tion  petition  is required to record its  reasons  for  the order  passed  by it on such petition. For that  purpose  it will  be necessary to determine whether the Act or the  Army Rules,  1954  (hereinafter referred to as ’the  Rules’)  ex- pressly  or by necessary implication dispense with  the  re- quirement of recording reasons. We propose to consider  this aspect in a broader perspective to include the findings  and sentence  of the court-martial and examine  whether  reasons are required to be recorded at the stage of (i) recording of findings  and sentence by the court-martial; (ii)  confirma- tion of the findings and sentence of the court-martial;  and (iii) consideration of post-confirmation petition.     Before  referring to the relevant provisions of the  Act and  the  Rules it may be mentioned  that  the  Constitution contains certain special provisions in regard to members  of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights  conferred by  Part Ill shall, in their application to the  members  of the Armed Forces be restricted or abrogated so as to  ensure the proper discharge of their duties and the maintenance  of discipline  amongst them. By clause (2) of Article  136  the appellate  jurisdiction of this Court under Article  136  of the Constitution has been excluded in relation to any  judg- ment, determination, sentence or order passed or made by any Court  or tribunal constituted by or under any law  relating to  the  Armed Forces. Similarly clause (4) of  Article  227 denies to the High Courts the power of superintendence  over any Court or tribunal constituted by or under any law relat- ing to the Armed Forces. This Court under Article 32 and the High  Courts under Article 226 have, however, the  power  of judicial review in respect of 66 proceedings of courts-martial and the proceedings subsequent thereto  and can grant appropriate relief if the  said  pro- ceedings  have resulted in denial of the fundamental  rights

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guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any  error of law apparent on the face of the record.     Reference  may now be made to the provisions of the  Act and  the  Rules which have a bearing on the  requirement  to record  reasons for the findings and sentence of the  court- martial.  Section  108 of the Act makes provision  for  four kinds of courts-martial, namely, (a) general courts-martial; (b) district courts-martial; (c) summary general  courtsmar- tial and (d) summary courts-martial. The procedure of court- martial is prescribed in Chapter XI (Sections 128 to 152) of the  Act. Section 129 prescribes that every  general  court- martial shall, and every district or summary general  court- martial,  may be attended by a judge-advocate, who shall  be either an officer belonging to the department of the  Judge- Advocate  General,  or if no such officer is  available,  an officer approved of by the Judge-Advocate General or any  of his  deputies. In sub-section (1) of Section 131 it is  pro- vided that subject to the provisions of sub-sections (2) and (3)  every decision of a courtmartial shall be passed by  an absolute  majority of votes, and where there is an  equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. In sub-section (2) it  is laid  down  that no sentence of death shall be passed  by  a general  courtmartial  without the concurrence of  at  least two-thirds  of the members of the court and sub-section  (3) provides  that  no sentence of death shall be  passed  by  a summary general court-martial without the concurrence of all the  members. With regard to the procedure at  trial  before the  General and District courts-martial further  provisions are  made in Rules 37 to 105 of the Rules. In Rule 60 it  is provided  that the judge-advocate (if any) shall sum  up  in open  court the evidence and advise the court upon  the  law relating  to the case and that after the summing up  of  the judge-advocate  no other address shall be allowed.  Rule  61 prescribes  that the Court shall deliberate on its  findings in  closed court in the presence of the  judge-advocate  and the  opinion of each member of the court as to  the  finding shall  be given by word of mouth on each charge  separately. Rule  62  prescribes the form, record  and  announcement  of finding and in sub-rule (1) it is provided that the  finding on every charge upon which the accused is arraigned shall be recorded  and, except as provided in these rules,  shall  be recorded simply as a finding of "Guilty" or of "Not guilty". Sub-rule  (10)  of  Rule 62 lays down that  the  finding  on charge shall be announced forthwith in open court as subject to confirmation. Rule 64 lays down 67 that in cases where the finding on any charge is guilty, the court, before deliberating on its sentence, shall,  whenever possible take evidence in the matters specified in  sub-rule (1)  and thereafter the accused has a right to  address  the court thereon and in mitigation of punishment. Rule 65 makes provision  for  sentence and provides that the  court  shall award  a single sentence in respect of all the  offences  of which  the accused is found guilty, and such sentence  shall be  deemed to be awarded in respect of the offence  in  each charge and in respect of which it can be legally given,  and not  to be awarded in respect of any offence in a charge  in respect  of which it cannot be legally given. Rule 66  makes provisions  for  recommendation to mercy  and  sub-rule  (1) prescribes  that  if  the court makes  a  recommendation  to mercy,  it  shall give its reasons for  its  recommendation. Sub-rule (1) of Rule 67 lays down that the sentence together with  any  recommendation to mercy and the reasons  for  any

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such  recommendation  will be announced  forthwith  in  open court.  The  powers and duties of  judge-advocate  are  pre- scribed  in  Rule 105 which, among other things,  lays  down that  at  the  conclusion of the case he shall  sum  up  the evidence and give his opinion upon the legal bearing of  the case before the court proceeds to deliberate upon its  find- ing  and the court, in following the opinion of  the  judge- advocate on a legal point may record that it has decided  in consequences of that opinion. The said rule also  prescribes that  the  judge-advocate has, equally  with  the  presiding officer,  the duty of taking care that the accused does  not suffer  any disadvantage in consequences of his position  as such,  or  of  his ignorance or  incapacity  to  examine  or cross-examine  witnesses  or otherwise, and  may,  for  that purpose,  with the permission of the court,  call  witnesses and  put questions to witnesses, which appear to him  neces- sary  or desirable to elicit the truth. It is  further  laid down  that in fulfilling his duties, the judgeadvocate  must be careful to maintain an entirely impartial position.     From the provisions referred to above it is evident that the judge-advocate plays an important role during the courts of  trial at a general court-martial and he is  enjoined  to maintain  an impartial position. The  court-martial  records its  findings  after the judge-advocate has  summed  up  the evidence and has given his opinion upon the legal bearing of the  case.  The members of the court have to  express  their opinion  as to the finding by word of mouth on  each  charge separately and the finding on each charge is to be  recorded simply  as a finding of "guilty" or of "not guilty".  It  is also  required that the sentence should be announced  forth- with in open court. Moreover Rule 66(1) requires reasons  to be recorded for its recommendation in cases where the  court makes a recommendation to mercy. There is no such require- 68 ment  in other provisions relating to recording of  findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was  there it  would not have been necessary to have a specific  provi- sion  for  recording of reasons for  the  recommendation  to mercy.  The said provisions thus negative a  requirement  to give  reasons  for its finding and sentence  by  the  court- martial  and  reasons are required to be  recorded  only  in cases  where  the  courtmartial makes  a  recommendation  to mercy. In our opinion, therefore, at the stage of  recording of  findings and sentence the court-martial is not  required to  record  its reasons and at that stage reasons  are  only required  for the recommendation to mercy if the  court-mar- tial makes such a recommendation.     As regards confirmation of the findings and sentence  of the  court-martial it may be mentioned that Section  153  of the Act lays down that no finding or sentence of a  General, District  or summary General, Court-Martial shall  be  valid except so far as it may be confirmed as provided by the Act. Section  158  lays down that the  confirming  authority  may while confirming the sentence of a court-martial mitigate or remit  the punishment thereby awarded, or commute that  pun- ishment  to any punishment lower in the scale laid  down  in Section 71. Section 160 empowers the confirming authority to revise  the finding or sentence of the court-martial and  in sub-section  (1) of Section 160 it is provided that on  such revision,  the court, if so directed by the  confirming  au- thority,  may take additional evidence. The confirmation  of the  finding  and  sentence is not required  in  respect  of summary court-martial and in Section 162 it is provided that the proceedings of every summary court-martial shall Without

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delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff  or any officer empowered in this behalf may, for reasons  based on  the  merits of the case, but not  any  merely  technical grounds, set aside the proceedings or reduce the sentence to any  other  sentence which the court might have  passed.  In Rule  69  it is provided that the proceedings of  a  general court-martial  shall be submitted by the  judge-advocate  at the   trial   for  review  to  the   deputy   or   assistant judge-advocate general of the command who shall then forward it to the confirming officer and in case of district  court- martial  it is provided that the proceedings should be  sent by the presiding officer, who must, in all cases. where  the sentence is dismissal or above, seek advice of the deputy or assistant  judge-advocate  general  of  the  command  before confirmation.  Rule  70 lays down that  upon  receiving  the proceedings  of  a general or  district  Court-Martial,  the confirming authority may 69 confirm  or refuse confirmation or reserve confirmation  for superior authority, and the confirmation,  non-confirmation, or  reservation  shall be entered in and form  part  of  the proceedings. Rule 71 lays down that the charge, finding  and sentence,  and any recommendation to mercy  shall,  together with  the confirmation or non-confirmation of  the  proceed- ings,  be promulgated in such manner as the  confirming  au- thority may direct, and if no direction is given,  according to  custom  of the service and until promulgation  has  been effected,  confirmation is not complete and the finding  and sentence shall not be held to have been confirmed until they have been promulgated.     The provisions mentioned above show that confirmation of the findings and sentence of the court-martial is  necessary before  the  said finding or sentence become  operative.  In other words the confirmation of the findings and sentence is an  integral part of the proceedings of a court-martial  and before  the  findings and sentence of  a  court-martial  are confirmed  the same are examined by the deputy or  assistant judge-advocate general of the command which is intended as a check  on the legality and propriety of the  proceedings  as well  as  the findings and sentence  of  the  court-martial. Moreover  we find that in Section 162 an  express  provision has  been made for recording of reasons based on  merits  of the  case  in  relation to the proceedings  of  the  summary courtmartial  in  cases where the said proceedings  are  set aside  or the sentence is reduced and no  other  requirement for  recording of reasons is laid down either in the Act  or in the Rules in respect of proceedings for confirmation. The only  inference that can be drawn from Section 162  is  that reasons have to be recorded only in cases where the proceed- ings  of a summary court-martial are set aside or  the  sen- tence is reduced and not when the findings and sentence  are confirmed. Section 162 thus negatives a requirement to  give reasons  on the part of the confirming authority while  con- firming the findings and sentence of a court-martial and  it must  be held that the confirming authority is not  required to record reasons while confirming the findings and sentence of the courtmartial.     With  regard  to post-confirmation proceedings  we  find that subsection (2) of Section 164 of the Act provides  that any  person  subject to the Act who  considers  himself  ag- grieved by a finding or sentence of any court-martial  which has  been confirmed, may present a petition to  the  Central Government,  the Chief of the Army Staff or  any  prescribed

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officer  superior in command to the one who  confirmed  such finding or sentence and the Central Government, the Chief of the  Army  Staff or other officer, as the case may  be,  may pass such orders 70 thereon  as it or he thinks fit. In so far as  the  findings and  sentence  of a court-martial and  the  proceedings  for confirmation of such findings and sentence are concerned  it has  been found that the scheme of the Act and the Rules  is such  that reasons are not required to be recorded  for  the same.  Has  the legislature made a departure from  the  said scheme in respect of post-confirmation proceedings? There is nothing  in the language of sub-section (2) of  Section  164 which  may lend support to such an intention. Nor  is  there anything  in  the nature of  post  confirmation  proceedings which  may require recording of reasons for an order  passed on  the post-confirmation petition even though  reasons  are not  required  to be recorded at the stage of  recording  of findings and sentence by a court-martial and at the stage of confirmation  of  the findings and sentence  of  the  court- martial by the confirming authority. With regard to  record- ing  of reasons the considerations which apply at the  stage of  recording of findings and sentence by the  court-martial and at the stage of confirmation of findings and sentence of the  courtmartial  by the confirming authority  are  equally applicable at the stage of consideration of the post-confir- mation  petition. Since reasons are not required to  be  re- corded  at the first two stages referred to above, the  said requirement cannot, in our opinion, be insisted upon at  the stage  of consideration of post-confirmation petition  under Section 164(2) of the Act.     For  the reasons aforesaid it must be held that  reasons are  not required to be recorded for an order passed by  the confirming  authority confirming the findings  and  sentence recorded  by  the  court-martial as well as  for  the  order passed by the Central Government dismissing the post-confir- mation  petition. Since we have arrived at the same  conclu- sion  as in Sorn Datt Datta case (Supra) the  submission  of Shri  Ganguli that the said decision  needs  reconsideration cannot be accepted and is. therefore, rejected.     But  that  is  not the end of the  matter  because  even though  there  is no requirement to record  reasons  by  the confirming authority while passing the order confirming  the findings and sentence of the CourtMartial or by the  Central Government while passing its order on the  post-confirmation petition,  it  is open to the person aggrieved  by  such  an order  to  challenge the validity of the  same  before  this Court  under  Article 32 of the Constitution or  before  the High Court under Article 226 of the Constitution and he  can obtain appropriate relief in those proceedings. We will, therefore, examine the other contentions that have 71 been urged by Shri Ganguli in support of the appeal.     The first contention that has been urged by Shri Ganguli in this regard is that under sub-section (1) of Section  164 of  the Act the appellant had a right to make a  representa- tion to the confirming authority before the confirmation  of the findings and sentence recorded by the court-martial  and that the said right was denied inasmuch as the appellant was not  supplied with the copies of the relevant record of  the court-martial  to enable him to make a complete  representa- tion  and further that the representation submitted  by  the appellant  under  sub-section  (1) of Section  164  was  not considered by the confirming authority before it passed  the order  dated May 11, 1979 confirming the findings  and  sen-

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tence of the court-martial. The learned Additional Solicitor General, on the other hand, has urged that under sub-section (1)  of Section 164 no right has been conferred on a  person aggrieved by the findings or sentence of a court-martial  to make a representation to the confirming authority before the confirmation  of the said findings or sentence. The  submis- sion  of learned Additional Solicitor General is that  while sub-section (1) of Section 164 refers to an order passed  by a  court-martial, sub-section (2) of Section 164 deals  with the  findings  or sentence of a court-martial and  that  the only right that has been conferred on a person aggrieved  by the  finding  or sentence of a court-martial is  that  under sub-section (2) of Section 164 and the said right is  avail- able  after the finding and sentence has been  confirmed  by the confirming authority. We find considerable force in  the aforesaid submission of learned Additional Solicitor  Gener- al. Section 164 of the Act provides as under: "(1)  Any person subject to this Act who  considers  himself aggrieved  by  any  order passed by  any  court-martial  may present a petition to the officer or authority empowered  to confirm  any tinging or sentence of such  court-martial  and the  confirming  authority  may take such steps  as  may  be considered  necessary to satisfy itself as to  the  correct- ness. legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2)  Any  person subject to this Act who  considers  himself aggrieved  by  a finding or sentence  of  any  court-martial which  has  been confirmed, may present a  petition  to  the Central  Government,  the  Chief of the Army  Staff  or  any prescribed officer superior in command to the one who 72 confirmed  such finding or sentence and the Central  Govern- ment,  the Chief of the Army Staff or other officer, as  the case may be, may pass such orders thereon as it or he thinks fit."     In sub-section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present  a petition against the same. The said petition  has to be presented to the officer or the authority empowered to confirm  any finding or sentence of such  court-martial  and the said authority may take such steps as may be  considered necessary to satisfy itself as to the correctness,  legality or  propriety  of the order or as to the regularity  of  any proceedings to which the order relates. Sub-section (2),  on the  other  hand,  makes specific reference  to  finding  or sentence  of  a court-martial. and confers a  right  on  any person  feeling  aggrieved by a finding or sentence  of  any court-martial  which has been confirmed, to present a  peti- tion  to the Central Government, Chief of the Army Staff  or any prescribed officer. The use of the expression "order" in sub-section (1) and the expression "finding or sentence"  in sub-section (2) indicates that the scope of sub-section  (1) and  sub-section  (2)  is not the same  and  the  expression "order" in sub-section (1) cannot be construed to include  a "finding  or  sentence".  In other words in so  far  as  the finding  and sentence of the court-martial is concerned  the only  remedy that is available to a person aggrieved by  the same  is  under sub-section (2) and the said remedy  can  be invoked  only  after the finding or sentence has  been  con- firmed  by the confirming authority and not before the  con- firmation  of  the same. Rule 147 of the  Rules  also  lends support to this view. In the said Rule it is laid down  that every  person tried by a court-martial shall be entitled  on demand,  at any time after the confirmation of  the  finding

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and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person  having the custody of the proceeding a copy  thereof including  the proceedings upon revision, if any. This  Rule envisages that the copies of proceedings of a  court-martial are  to be supplied only after confirmation of  the  finding and sentence and that there is no right to obtain the copies of  the proceedings till the finding and sentence have  been confirmed.  This  means  that the appellant  cannot  make  a grievance about non-supply of the copies of the  proceedings of  the court-martial and consequent denial of his right  to make  a representation to the confirming  authority  against the  findings and sentence of the court-martial  before  the confirmation  of  the said finding and  sentence.  Though  a person  aggrieved by the finding or sentence of a  courtmar- tial has no right to make a representation before the confi- ramtion 73 Of the same by the confirming authority, but in case such  a representation is made by a person aggrieved by the  finding or  sentence  of  a court-martial it is  expected  that  the confirming  authority  shall give due consideration  to  the same  while  confirming  the finding  and  sentence  of  the court-martial.     In  the present case the representation  dated  December 18,  1978 submitted by the appellant to the  confirming  au- thority was not considered by the confirming authority  when it  passed  the order of confirmation dated  May  11,  1979. According to the counter affidavit filed on behalf of  Union of India this was due to the reason that the said  represen- tation  had  not been received by the  confirming  authority till  the passing of the order of confirmation.  It  appears that due to some communication gap within the department the representation submitted by the appellant did not reach  the confirming  authority till the passing of the order of  con- firmation.  Since  we have held that the  appellant  had  no legal right to make a representation at that stage the  non- consideration of the same by the confirming authority before the  passing of the order of confirmation would not  vitiate the said order.     Shri  Ganguli  next  contended that the  first  and  the second  charge levelled against the appellant are  identical in  nature  and  since the appellant was  acquitted  of  the second  charge by the court-martial his conviction  for  the first charge can not be sustained. It is no doubt true  that the allegations contained in the first and the second charge are  practically  the same. But as  mentioned  earlier,  the second charge was by way of alternative to the first charge. The  appellant  could  be held guilty  of  either  of  these charges and he could not be held guilty of both the  charges at the same time. Since the appellant had been found  guilty of  the first charge he was acquitted of the second  charge. There  is,  therefore,  no infirmity  in  the  court-martial having found the appellant guilty of the first charge  while holding him not guilty of the second charge.     Shri  Ganguli has also urged that the findings  recorded by  the  court-martial on the first and  third  charges  are perverse inasmuch as there is no evidence to establish these charges. We find no substance in this contention.     The  first  charge was that the appellant  on  or  about December  1975, having received 60.61 meters  woollen  serge from  M/s  Ram Chandra & Brothers, Sadar Bazar,  Jhansi  for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud 74

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got 19 altered ordnance pattern woollen pants issued to  the said civilian employees instead of pants stitched out of the cloth  received. To prove this charge the prosecution  exam- ined  Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s  Ram Chandra  &  Brothers, Sadar Bazar, Jhansi who  have  deposed that  60.61 meters of woollen serge cloth was  delivered  by them  to the appellant in his office in December, 1975.  The evidence  of these witnesses is corroborated by B.D.  Joshi, Chowkidar, P.W. 3, who has deposed that in the last week  of December,  1975,  the appellant had told him in  his  office that  cloth  for their liveries had been received  and  they should give their measurements. As regards the alteration of 19  ordnance pattern woollen pants which were issued to  the civilian employees instead of the pants stitched out of  the cloth that was received, there is the evidence of N/sub.  P. Vishwambharam P.W. 19 who has deposed that he was called  by the  appellant to his office in the last week  of  December, 1975 or the first week of January, 1976 and that on reaching there  he found ordnance pattern woolien pants lying by  the side of the room wall next to the appellant’s table and that the appellant had called Mohd. Sharif P.W. 15 to his  office and had asked him to take out 19 woolien trousers out of the lot kept there in the office. After Mohd. Sharif had select- ed  19 woollen trousers the appellant told Mohd.  Sharif  to take  away  these pants for alteration  and  refitting.  The judge-advocate, in his summing up, before the court-martial, has  referred to this evidence on the first charge  and  the court-martial, in holding the appellant guilty of the  first charge,  has  acted upon it. It cannot, therefore,  be  said that  there  is no evidence to establish  the  first  charge levelled against the appellant and the findings recorded  by the court-martial in respect of the said charge is based  on no evidence or is perverse.     The  third charge, is that the appellant having come  to know  that Capt. Gian Chand Chhabra while officiating OC  of his  unit,  improperly submitted wrong Contingent  Bill  No. 341/Q  dated  September 25, 1975 for  Rs.16,280  omitted  to initiate action against Capt. Chhabra.     In  his summing up before the court-martial  the  judge- advocate referred to the CDA letter M/IV/191 dated  November 20,  1975 (Exh. ’CC’) raising cert in objection with  regard to  Contingent Bill No. 341/Q dated September 25,  1975  for Rs.16,280 and pointed out that the said letter was  received in  the  unit on or about November 28, 1975  and  bears  the initials of the appellant with the aforesaid date and remark "Q Spk with details". This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not  the  case of the appellant that he made  any  complaint against Captain 75 Chhabra  thereafter. It cannot, therefore, be said that  the finding recorded by the court-martial on the third charge is based on no evidence and is perverse.     In  the result we find no merit in this appeal  and  the same  is  accordingly dismissed. But  in  the  circumstances there will be no order as to costs. R.N.J.                                 Appeal dismissed. 76