Union of India (Uoi) and ors. Vs. L.C. 74799m Naib Subedar - Court Judgment

Excerpt:
- - no doubt the writ petitioner had that remedy available to him, however, it is well settled that alternative remedy per se is no bar to entertain the writ petition under article 226/227 of the constitution of india. r.s. mongia, c.j. 1. the respondent writ petitioner had challenged the legality of the findings and sentence awarded against him by the general court martial and also the confirmation order passed by the g.o.c., 101 area, vide order dated 3.5.1999 by filing a writ petition in this court. 2. the respondents before the writ court (now appellants) raised an objection that the writ petition should not be entertained as the writ petitioner had efficacious alternative remedy to file statutory complaint (appeal) before the chief of the army staff under section 164(2) of the army act, 1950. the learned single judge however did not agree with the respondents (now appellants) that in the facts and circumstance of the case the alternative remedy under section 164(2) of the army act would be efficacious. the learned single judge rather considered the legality of the confirmation order passed by the g.o.c. whereby he had confirmed the conviction and sentence passed against the writ petitioner by the general court martial. the j.c. had passed the following order of confirmation : '1. i have considered the pre-confirmation petition dated 23rd february 1999 submitted by jc-74799m naib subedar (subedar)(clerk) n. p. singh against the finding-and sentence awarded by the court. 2. the petition is devoid of any merit, lacks substance and i hereby reject the same.' the learned single judge was of the view that the order of confirmation was wholly non speaking order. the points raised in the representation of the writ petitioner against the findings and sentence of the general court martial which was made before the g.o.c. had not been dealt with by the g.o.c, and no reasons were given as to why the points raised by the petitioner had no force. according to the learned single judge, the aforesaid order of confirmation was wholly non speaking order and it looked is if there was no application of mind. on this ground alone the order of g.o.c. was quashed with liberty to the g.o.c, to pass fresh orders in accordance with law. the respondents appearing in the writ petition being aggrieved by the order filed the present appeal. 3. the point has again been raised by the learned counsel for the appellant that the learned single judge should not have entertained the writ but rather should have relegated the writ petitioner to avail his remedy under section 164(2) of the army act. no doubt the writ petitioner had that remedy available to him, however, it is well settledthat alternative remedy per se is no bar to entertain the writ petition under article 226/227 of the constitution of india. the learned single judge having chosen to exercise jurisdiction under article 226/ 227 of the constitution of india, we find no ground to interfere with that jurisdiction specially when on the face of it the order of the g.o.c. is a non speaking order. 4. in s. n. mukharjee v. union of india (1990) 4scc 594, the apex court by laying down the requirement for the quasi-judicial authorities to give reasons in their order observed : 'as contrasted with the' ordinary courts of law and tribunals and authorities exercising judicial functions where' the judge is trained to look at things objectively uninfluenced by considerations of policy or expediency, an executive officer generally looks at things from the standpoint of policy and expediency. these considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. the said purpose would apply equally to all decisions irrespective of the fact whether the decision is subject to appeal, revision or judicial review, the object underlying the rules of natural justice 'is to prevent miscarriage of justice' and secure 'fair play in action'. the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making, keeping in view the expanding horizon of the principle of natural justice, therefore, it must be held that the requirement to record reason can be rpyirded as one of the principles of natural justice which govern exercise of power by administrative authorities.' it will be apparent from the observations of the apex court (supra) that even administrative authorities exercising quasi-judicial powers have to record reasons even if the order js not subject to appeal. here the order of the g.o.c. is subjected to further review by the chief of the army staff under section 164(2). for the aforesaid reasons we find no merit in this appeal which is hereby dismissed.

Judgment:

R.S. Mongia, C.J.

1. The respondent writ petitioner had challenged the legality of the findings and sentence awarded against him by the General Court Martial and also the confirmation order passed by the G.O.C., 101 Area, vide order dated 3.5.1999 by filing a writ petition in this Court.

2. The respondents before the writ court (now appellants) raised an objection that the writ petition should not be entertained as the writ petitioner had efficacious alternative remedy to file statutory complaint (appeal) before the Chief of the Army Staff under Section 164(2) of the Army Act, 1950. The learned Single Judge however did not agree with the respondents (now appellants) that in the facts and circumstance of the case the alternative remedy under Section 164(2) of the Army Act would be efficacious. The learned single Judge rather considered the legality of the confirmation order passed by the G.O.C. whereby he had confirmed the conviction and sentence passed against the writ petitioner by the General Court Martial. The J.C. had passed the following order of confirmation :

'1. I have considered the pre-confirmation petition dated 23rd February 1999 submitted by JC-74799M Naib Subedar (Subedar)(Clerk) N. P. Singh against the finding-and sentence awarded by the Court.

2. The petition is devoid of any merit, lacks substance and I hereby reject the same.'

The learned Single Judge was of the view that the order of confirmation was wholly non speaking order. The points raised in the representation of the writ petitioner against the findings and sentence of the General Court Martial which was made before the G.O.C. had not been dealt with by the G.O.C, and no reasons were given as to why the points raised by the petitioner had no force. According to the learned Single Judge, the aforesaid order of confirmation was wholly non speaking order and it looked is if there was no application of mind. On this ground alone the order of G.O.C. was quashed with liberty to the G.O.C, to pass fresh orders in accordance with law. The respondents appearing in the writ petition being aggrieved by the order filed the present appeal.

3. The point has again been raised by the learned counsel for the appellant that the learned Single Judge should not have entertained the writ but rather should have relegated the writ petitioner to avail his remedy under Section 164(2) of the Army Act. No doubt the writ petitioner had that remedy available to him, however, it is well settled

that alternative remedy per se is no bar to entertain the writ petition under Article 226/227 of the Constitution of India. The learned single Judge having chosen to exercise Jurisdiction under Article 226/ 227 of the Constitution of India, we find no ground to interfere with that jurisdiction specially when on the face of it the order of the G.O.C. is a non speaking order.

4. In S. N. Mukharjee v. Union of India (1990) 4SCC 594, the Apex Court by laying down the requirement for the quasi-judicial authorities to give reasons in their order observed :

'As contrasted with the' ordinary courts of law and tribunals and authorities exercising judicial functions where' the Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency, an executive officer generally looks at things from the standpoint of policy and expediency. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions irrespective of the fact whether the decision is subject to appeal, revision or judicial review,

The object underlying the rules of natural justice 'is to prevent miscarriage of justice' and secure 'fair play in action'. The requirement about recording of reasons for its decision by an administrative authority exercising quasi-Judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making, keeping in view the expanding horizon of the principle of natural justice, therefore, it must be held that the requirement to record reason can be rpyirded as one of the principles of natural justice which govern exercise of power by administrative authorities.'

It will be apparent from the observations of the Apex Court (supra) that even administrative authorities exercising quasi-judicial powers have to record reasons even If the order js not subject to appeal. Here the order of the G.O.C. is subjected to further review by the Chief of the Army Staff under Section 164(2).

For the aforesaid reasons we find no merit in this appeal which is hereby dismissed.