As far as back in 1885, LORD SELBORNE said in a case that the administrator is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard, stating their case and their views. Spackman V Plumstead Board of Works [1885] 10 AC 229.
Essential attributes of natural Justice however can be thrown overboard only in exceptional circumstances where need for promptitude or compulsive necessity so demands.
Hearing, however once given must be genuine and not formal or empty public relation exercise. In other words there must not be lip service to this rule or an audience allowed which tantamount to nothing. Swadeshi Cotton Mills V Union Of India. AIR 1981 SC 818.
DISCRETIONARY POWERS
Discretion being an element in all powers, what appears to be a Judicial review for breach of natural justice is in reality a review of abuse of discretion.
Discretion in reality means a power given to a person with the authority to choose between two or more alternatives or possibilities each of which is lawful and permissible.
Discretion is a Science or understanding to discern (to distinguish) between falsity and truth; between right and wrong, between shadow and substance, between equity and pretence and not to do according to wills and private affections.
LORD GREENE, MR in Associated Provincial Picture House Ltd Vs Wednesbury Corp observed that it is a established law that a Person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his considerations matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.
The Supreme Court cautioned that with the change in socio-economic outlook, the Public Servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. If a Public Servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such Public Servant. Common Cause V Union Of India. AIR 1996 SC 3538.
The concept of discretion imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment or personal dislike.
Discretion allowed by the statute to the holder of an office is intended to be exercise according to the rules of reason and not according to personal opinion.
It may be noted that the duty to act judicially may arise from the very nature of the function intended to be performed. Thus, in R V Lord Chancellor ex p witham, it was held that the statutory power conferred on Lord Chancellor to prescribe the fees to be taken in the Supreme Court did not authorize setting of fees at such a level as to preclude access to the courts by the would be litigants. The general words of the statutory provision did not authorize the abrogation of such a basic constitutional right as the right of access to the courts. Such basic rights are not to be overridden by the general words of a statute.
Discretionary powers are never absolute. Even if a statutory pronouncement state explicitly that the discretion it grants is absolute, this discretion is interpreted as requiring the holder of the authority to act strictly according to some procedure such as granting a hearing and acting impartially and acting in such a way to achieve the goal of the legislation for which the authority has been granted.
Justice B CARDOZO in his book The Growth of the Law Opined Complete freedom- unfettered and undirected- that never is. A thousand limitations- the product some of statute, some of precedent, some of vague tradition or of an immemorial technique- encompass and hedge us even when we think of ourselves as ranging freely and at large.
Justice RAND in a Canadian case observed that in Public Regulations there is no such thing as absolute and untrammelled discretion, that is that action can be taken on any ground for any reason that can be suggested to the mind of the administrator.
Discretionary powers are always coupled with duties.
In the words of LORD CAIRNS, “Where a power is deposited with a Public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied of the condition upon which they are entitled, the power ought to be exercised, and the court will require it to be exercised. Ramdas Shriniwas Nayak V Union of Union of India AIR 1995 BOM 235.
The Apex Court in one case viewed that when statute confers discretion on a holder of public office that should be exercised reasonable and rationally. U.P. State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.
If a decision on a matter is so unreasonable that no authority could ever have come to it, then the courts can interfere. The repository of discretion must be prepared to justify in court the reasonableness of his belief and in arriving at a decision in the exercise of his discretionary powers. It is not enough to say that the discretion was exercised honestly by the authority.
In sant Raj’s Case the Labour Court found that the termination of service of the Appellants was bad and illegal but declined to grant the relief of reinstatement which should have ordinarily followed and instead in exercise of its discretion awarded one year’s wage as compensation in lieu of reinstatement on the ground that “the termination of service of each of the appellants was bona fide and not a colorable exercise of powers in accordance with service rules. The Supreme Court found an error apparent on the face of the record of the case inasmuch as if the termination of service was according to service rules and bona fide, it could not be simultaneously held to be illegal and invalid. The Apex Court therefore held that the discretion was exercised on irrelevant and extraneous considerations. Sant Raj Vs O. P. Singla AIR 1985
RECORDING OF REASONS
Reasons disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial; and reveal a rational nexus between the facts considered and conclusions reached. Union of India Vs Mohan Lal Capoor (1973) 2 SCC 836
Fair play requires recording of germane and relevant precise reasons when an order affects the right of a citizen or a person irrespective of the fact whether it is judicial, quasi judicial or administrative act.
Recording of reasons is also an assurance that the authority concerned has applied its mind to the facts on record.
Reasons also aids the Appellate or Revisional Authority to see whether the maker of the order, Judgment, decree has justly meet out justice to the aggrieved person. Maharashtra State Board of Secondary & Higher Secondary Education Vs K.S. Gandhi (1991) 2 SCC 715
The giving of satisfactory reasons is required by the ordinary man’s sense of justice and is also a healthy discipline for all who exercise powers over others. Reasoned decisions are vital for the purpose of showing that he is receiving justice.
It is pertinent to note that any action, decision or order of any statutory or public authority bereft of reasoning would be arbitrary, unfair and unjust violating article 14 of the Constitution of India or would be deemed to have been taken or arrived at by adopting unfair procedure offending article 21 of Constitution of India. Krishna Swami Vs Union of India. AIR 1993 SC 1407
The reasons employed not only be intelligible but which will also deal with the substantial points which have been raised.
In Breen Vs Amalgamated Engineering Union, LORD DENNING MR, observed that the giving of reasons is one of the fundamentals of good administration.
As President of the National Industrial Relations Court, SIR JOHN DONALDSON in Alexander Machinery (Dudley) Ltd Vs Crabtree, observed that failure to give reasons amounts to denial of Justice.
LORD HUDSON in Padfield’s Case was of the view that although it is true that the Minister is not bound to give his reasons for refusing to exercise his discretion, yet when the circumstances indicates a genuine complaint for which the appropriate remedy is provided, the Minister would not escape from the possibility of control by Mandamus (a Writ) for adopting a negative attitude without explanation. Padfield Vs Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 1 ALL ER 694.
The question as to whether an administrative authority should record reasons for its decisions has however come up for consideration before the Supreme Court in number of cases. Underlying the need the SC in Travancore Rayons Ltd Vs Union of India AIR 1971 SC 862 observed that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved and the mental process by which the conclusion is reached where a non judicial authority exercises a judicial function is obvious. Here in this case the order of the Central Govt in rejecting a Revision u/s 36 of the Central Excises & Salt Act 1944 merely stated that the Govt having carefully considered the points made by the Applicant saw no reason to interfere with the order. The order of the Central Govt being laconic (brief) was held to be vitiated.
With the proliferation of administrative law, administrative authorities are in some kind of cases replacing courts of law and that has made all the more necessary that such authorities 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. The Siemens Engineering & Manufacturing Co. of India Ltd Vs The Union of India AIR 1976 SC 1785
The reasons if disclosed would be open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court. Maneka Gandhi Vs Union of India AIR 1978 SC 597 at page 613.
What is of utmost importance is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.
Justice SUBBA RAO in a dissenting judgment once observed that if tribunals can make orders without giving reasons, the said powers in the hands of unscrupulous or dishonest officers 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. Madhya Pradesh Industries Ltd Vs Union of India AIR 1966 SC 671
The quasi judicial authorities are enjoined with the duty and responsibility to see to it that in adjudicating upon proceedings which come up before them they pass properly reasoned orders so that those who are affected by such orders are assured that their case have received proper consideration at the hands of the said authorities and that such decisions have been reached according to law and have not been the result of caprice, whim or fancy and have been reached on ground of policy or expediency. Harinagar Sugar Mills Ltd Vs Shyam Sunder Jhunjhunwala AIR 1961 SC 1669
The very search for reasons will put the authority on alert and minimisethe chances of unconscious infiltration of personal bias or unfairness in the conclusion.
An order of Quasi Judicial nature without reasons is a wholly defective order in the eyes of law. Govt of India Vs Maxim A Lobo (1991) 190 ITR 101
The vesting of discretion is the unspoken but inescapable, silent command of our judicial system and those who exercise it will remember that discretion when applied to a court of Justice means sound discretion guided by law.
The fate of Justice is tied to the thread of reason.
The concentrated view that emerges in the background as aforesaid runs to the effect that the greatest guarantee of Justice is not the law but the personality of the Judge and the way he discharges his duties and functions.
yet to be concluded...
==================================
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
https://www.vakeelkanumber.com/
Thank you.
Comments