Union of India & Ors Vs. E.G. Nambudiri
[1991] INSC 109 (23
April 1991)
Singh,
K.N. (J) Singh, K.N. (J) Sawant, P.B.
CITATION:
1991 AIR 1216 1991 SCR (2) 451 1991 SCC (3) 38 JT 1991 (2) 285 1991 SCALE
(1)783
ACT:
Service
Law-Civil Servant-confidential reports-Adverse remarks-Representation against
adverse remarks-Rajection of representation-Held rejection of representation
neither adversely affects any vested right of Government servant nor does visit
him with any civil consequences-In the absence of any statutory rule or
provision the competent authority is under no obligation to record or
communicate reasons for its decision to Government servant.
Confidential
report-Remark about integrity of employee, "Nothing adverse has come to
notice"-Held neutral and not adverse in nature.
Administrative
Law-Administrative authority-Natural justice-Duty to give reasons.
HEAD NOTE:
The
respondent, a Section Officer in the office of the Chief Controller of Import
and Exports, was communicated adverse remarks for the year 1984. He made a
representation against the adverse remarks but the same was rejected by the
Ministry of Commerce by its order dated 6.1.1986. Thereafter he made a Memorial
to the President and the Government by its order dated 14.8.86 partially expunged
the adverse remarks. The respondent filed a petition before the Central
Administrative Trubunal challenging the order rejecting his representation on
the ground that it did not contain any reasons. The Tribunal by its order dated
27.7.87 quashed both the order dated 6.1.86 as well as 14.8.86 by holding that
the orders were vitiated in law in the absence of reasons. In appeal to this
Court by the Union of India, it was contended on behalf of the respondent that
the principles of natural justice require the superior authority to records
reasons in rejecting the Government servant's representation made against the
adverse remarks as the order of rejection affected the respondent's right.
Allowing
the appeal, this Court,
HELD:
1. The superior authority while considering the represen- 452 tation of a
Government servant against adverse remarks, is not required by law to act
judicially, it is under no legal obligation to record or communicate reasons
for its decision to the Government servant. There is no rule or administrative
order for recording reasons in reacting such a representation. In the absence
of any statutory rule or statutory instructions requiring the competent
authority to record reasons in rejecting a representation made by a Government
servant against the adverse entries the competent authority is not under any
obligation to record reasons. The decision, rejecting such a representation
does not adversely affect any vested right of the Government servant nor does
it visit him with any civil consequences. It does not mean that the competent
authority has licence to act arbitrarily, he must act in a fair and just
manner. He is required to consider the questions raised by the Government
servant and examine the same, in the light of the comments made by the officer
awarding the adverse entries and the officer counter-signing the Confidential
Reports. If the representation is rejected after its consideration in a fair
and just manner, the order of rejection would not be rendered illegal merely on
the ground of absence of reason.
In
many cases having regard to infinite variations of circumstances it may not be
possible to disclose reasons, for the opinion formed about the work and conduct
or character of the Government servant. However, it does not mean that the
administrative authority is at liberty to pass orders without there being any
reasons for the same. In Governmental functioning before any orde is issued the
matter is generally considered at various levels and the reasons and opinions
are contained in the notes on the file.
The
reasons contained in the file enable the competent authority to formulate its ipinion.
If the order as communicated to the Government servant rejecting the
representation does not contain any reasons the order cannot be held to be bad
in law. If such an order is challenged in a court of law it is always open to
the competent authority to place the reasons before the Court which may have
led to the rejection of the representation. It is always open to an
administrative authority to produce evidence ali-unde before the court to
justify its action. [459G-H, 460A, E-F-H, 461A- B] Gurdial Singh Fijji v. State
of Punjab & Ors., [1979] 3 SCR 518, referred to.
2 The
President was under no legal obligation to record reasons in rejecting the
respondent's representation against the adverse remarks. Consequently, the
order of the President was not vitiated in law. The Central Administrative
Tribunal committed error in quashing the order of the President as well as the
order of the Ministry of Com- 453 merce dated 6.1.1986. Accordingly, the
Tribunal's order dated 27.7.1987 is set aside. [461C-E]
3. The
purpose of the rules of natural justice is to prevent miscarriage of justice
and the principles of natural justice are applicable to administrative orders
if such orders affect the right of a citizen. Arriving at the just decision is
the aim of both quasi-judicial as well as administrative enquiry, an unjust
decision in an administrative enquiry may have more far reaching effect than decision
in a quasijudicial enquiry. Generally, principles of natural justice require
that opportunity of hearing should be given to the person against whom an
administrative order is passed. The application of principles of natural
justice, and its sweep depend upon the nature of the right involved, having
regard to the setting and context of the statutory provisions. Where a vested
right is adversely affected by an administrative order, or where civil
consequences ensue, principles of natural justice apply even if the statutory
provisions do not make any express provision for the same, and the person
concerned must be afforded opportunity of hearing before the order is passed.
But principles of natural justice do not require the administrative authority
to record reasons for its decision as there is no general rule that reasons
must be given for administrative decision. Order of an administrative authority
which has no statutory or implied duty to state reasons or the grounds of its
decision is not rendered illegal merely on account of absence of reasons. It
has never been a principle of natural justice that reasons should be given for
decisions. [458H, 459A-D] State of Orissa v. Dr. (Miss) Binapani Dei &
Ors., [1967] 2 SCR 625; Mohinder Singh Gill & Ors. v. The Chief Election
Commissioner, New Delhi & Ors., [1978] 2 SCR 272; A. K. Kraipak & Ors.
v. Union of India & Ors., [1970] 1 SCR
457 and Regina v. Gaming Board for Great Britain ex. p. Benaim and Khaida, [1970] 2
QB 417, referred to.
3.1.
Though the principles of natural justice do not require reasons for decision,
there is necessity for giving reasons in view of the expanding law of judicial
review to enable the citizens to discover the reasoning behind the decision.
Right to reasons is an indispensable part of a sound system of judicial review.
Under our Constitution an administrative decision is subject to judicial review
if it affects the right of a citizen, it is therefor desirable that reasons
should be stated. [459F]
4.
Ordinarily, Courts and Tribunals, adjudicating rights of parties, are required
to act judicially and to record reasons. Where an 454 administrative authority
is required to act judicially it is also under an obligation to record reasons.
But every administrative authority is not under any legal obligation to record
reasons for its decision, although, it is always desirable to record reasons to
avoid any suspicion. Where a statute requires an authority though acting
administratively to record reasons, it is mandatory for the authority to pass
speaking orders and in the absence of reasons the order would be rendered
illegal. But in the absence of any statutory or administrative requirement to
record reasons, the order of the administrative authority is not rendered
illegal for absence of reasons. If any challenge is made to the validity of an
order on the ground of it being arbitrary or mala fide it is always open to the
authority concerned to place reasons before the Court which may have persuaded
it to pass the orders. Such reasons must already exist on records as it is not
permissible to the authority to support the order by communicated to the
Government servant. If the statutory rules require communication of reasons,
the same must be communicated but in the absence of any such provision absence
of communication of reasons do not affect the validity of the order. [457H,
458A-C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1976 of 1991.
From
the Judgment and Order dated 27.7.1987 of the Central Administrative Tribunal, Delhi in Regn. No. O.A.No. 511 of 1986. V.C.
Mahajan, C.V.S. Rao, A.K. Srivastava and P.Parmeshwaran for the Appeallants. Dr. D.C. Vohra,
P.K. Bansal and S.K. Bisaria for the Respondent.
The
Judgment of Court was delivered by SINGH, J. Leave granted.
This
appeal is directed against the order of the Central Administrative Tribunal,
Principal Bench, Delhi, quashing the order of the Ministry
of Commerce dated 6.1.1986 rejecting the respondent's representation against
remarks awarded to him.
E.G. Nambudiri
respondent is a Section Officer in the office of Chief Controller of Import and
Exports, Ministry of Commerce. By a 455 memorandum dated 7th May, 1985, the Director communicated adverse
remarks awarded to the respondent for the year ending 1984. These remarks were
under:
"1.
That you were not associated with the important work of the section such as the
open house discussions, monthly analysis of the returns received from regional
offices, complaints and port Officers meetings.
2.
That the quality of performance and application of knowledge, delegated
authority and conceptual and professional skills on the jobs is very poor.
3.
That you had a casual attitude to the work assigned. Your devotion to duty was
insufficient.
That
subordinates used to complain that they could not work under you, as you could
not give proper guidance.
4.
That your job did not involve contact with the public indications and your
intellectual honesty and innovative opaity are average.
5.
That nothing adverse has come to notice regarding your integrity.
6.
That you were given advice/warning at various levels both orally and in writing
but you did not react to these."
The
respondent made representation against the adverse remarks but the same was
rejected by the order dated 6.1.1986. The respondent, thereafter, made a
memorial to the President of India against the adverse remarks, as a result of
which the adverse remarks as contained in Item Nos. 1 to 4 as quoted above were
expunged, whereas the remaining adverse entries were maintained. The Govt'.s
decision was communicated by a memorandum dated 14.8.1986. But before the
aforesaid decision of the Government partially expunging the adverse remarks
could be communicated to the respondent, he filed a petition before the Central
Administrative Tribunal challenging the order of the Ministry of Commerce dated
6.1.1986 rejecting his representation made against the adverse entries. The
respondent challenged the order dated 6.1.1986 rejecting his representation on
the ground that it did not contain any reasons. Plea of mala fide was also
raised against the Joint Director, Ministry of Commerce, who had awarded the
adverse 456 remarks to the respondent. The Tribunal by its order dated
27.7.1987 quashed the Government Order as contained in the communication letter
dated 6.1.1986 and also subsequent order dated 14.8.1986 on the ground that
those orders were vitiated in law in the absence of reasons.
The
Tribunal held that it was a basic principle of natural justice of every
quasi-judicial process, that order should contain reasons. Arriving at a just
decision is the aim of both quasi-judicial as well as administrative inquiries,
an unjust decision in an administrative enquiry may have more far reaching
effect than in a quasi-Judicial enquiry, therefore, it was necessary that in
rejecting the representation against an adverse entry, reasons must be stated
and in the absence of reasons the order would be arbitrary and liable to be
quashed. Placing reliance on a number of decisions of High Courts, the Tribunal
held that a bald communication rejecting the representation made against the
adverse entries does not meet the requirement of law.
The
Tribunal further held that in the absence of reasons it would follow that the
competent authority rejected the representation without applying its mind to
the grounds raised in the representation.
Learned
counsel for the parties conceded that there are no statutory rules framed under
Article 309 of the Constitution regulating the award of entries in the
character roll of a Central Government employee or providing for filing of
representation against the adverse entries, or its disposal. The entire field
in this regard is regulated by administrative directions issued from time to
time. Under these directions the character roll of Government servants is
required to be maintained wherein the entries are made every year by superior
competent authority regarding the work, conduct and character of the Government
servant. These entries are confidential in nature, which contain the assessment
of the work and conduct of the Government servant, reflecting his efficiency or
defect in his work and conduct. The confidential reports, contain general
assessment of character, conduct and qualities of a Govt. Servant which may
include comments about his good work, drive, initiative, devotion to duty and
integrity. These entries also reflect the inefficiency, delay, lack of
initiative, carelessness in handling the problems, or any defect in character
and integrity. These entries contain reference to any penalty which may have
been awarded to a government servant in departmental proceedings. These entries
are important in nature as on the basis of these entries, a Government
servant's suitability to the office is assessed for the purposes of his confirmation,
promotion and even for retention in service. Any adverse remark awarded against
a Government servant is 457 communicated to him to afford him opportunity of
explaining the correct position by means of a representation. The competent
authority is required to examine the adverse remarks in consultation, if
necessary, with the reporting officer and counter signing authority. If the
competent authority finds that the remarks are justified and there are no
sufficient grounds for interference, he may reject the representation and the
Government servant is informed accordingly. If, however, the competent
authority finds that the adverse remarks are incorrect, unfounded or
unjustified, he would expunge the same and inform the Government servant.
The
competent authority may having regard to the facts and circumstances of the
cast modify, or tone down the remarks.
The
administrative instructions issued by the Government do not require the
competent authority to record reasons either in accepting or rejecting the
representation of a Government servant, made against adverse entries.
Entries
made in the character roll and confidential record of a Government servant are
confidential and those do not by themselves affect any right of the Government
servant, but those entries assume importance and play vital role in the matter
relating to confirmation, crossing of efficiency bar, promotion and retention
in service. Once an adverse report is recorded, the principles of natural
justice require the reporting authority to communicate the same to the
Government servant to enable him to improve his work and conduct and also to
explain the circumstances leading to the report. Such an opportunity is not an
empty formality, its object, partially, being to enable the superior authorities
to decide on a consideration of the explanation offered by the person
concerned, whether the adverse report is justified. The superior authority
competent to decide the representation is required to consider the explanation
offered by the Government servant before taking a decision in the matter.
Any
adverse report which is not communicated to the Government servant, or if he is
denied the opportunity of making representation to the superior authority
cannot be considered against him. See: Gurdial Singh Fijji v. State of Punjab
& Ors., [1979] 3 SCR 518. In the circumstances it is necessary that the
authority must consider the explanation offered by the Government servant and
to decide the same in a fair and just manner.
The
question then arises whether in considering and deciding the representation
against report, the authorities are duty bound to record reasons, or to
communicate the same to the person concerned. Ordinarily, Courts and Tribunals,
adjudicating rights of parties, are required to act judicially and to record
reasons. Where an administrative authority is required to act judicially it is
also under an 458 obligation to record reasons. But every administrative
authority is not under any legal obligation to record reasons for its decision,
although, it is always desirable to record reasons to avoid any suspicion.
Where a statute requires an authority though acting administratively to record
reasons, it is mandatory for the authority to pass speaking orders and the
absence of any statutory or administrative requirement to record reasons, the
order of the administrative authority is not rendered illegal for absence of
reasons. If any challenge is made to the validity of an order on the ground of
it being arbitrary or mala fide it is always open to the authority concerned to
place reasons before the Court which may have persuaded it to pass the orders.
Such reasons must already exist on records as it is not permissible to the
authority to support the order by reasons not contained in the records. Reasons
are not necessary to be communicated to the Government servant. If the
statutory rules require communication of reasons, the same must be communicated
but in the absence of any such provision absence of communication of reasons do
not affect the validity of the order.
On
behalf of the respondent it was contended that principles of natural justice
require the superior authority to record reasons in rejecting the Government
servant's representation made against the adverse remarks as the order of
rejection affected the respondent's right. It is true that the distinction
between judicial act and administrative act has withered away and the
principles of natural justice are now applied even to administrative orders
which involve civil consequences, as held by this Court in State of Orissa v.
Dr. (Miss) Binapani Dei & Ors., [1967] 2 SCR 625 What is a civil
consequence has been answered by this Court in Mohinder Singh Gill & Ors.
v. The Chief Election Commissioner, New Delhi & Ors., [1978] 2 SCR 272 Krishna Iyer, J. speaking for the Constitution Bench observed:
"But
what is a civil consequence, let us ask ourselves, by passing verbal
booby-traps? "Civil consequences" undoubtedly cover infraction of not
merely property or personal rights out of civil liberties, material
deprivations and nonpecuniary damages. In its comprehensive connotation,
everything that affects a citizen in his civil life inflicts a civil
consequence." The purpose of the rules of natural justice is to prevent
miscarriage of justice and it is no more in doubt that the principles of
natural justice are applicable to administrative orders if such orders affect
the right of 459 a citizen. Arriving at the just decision is the aim of both
quasi-judicial as well as administrative enquire, an unjust decision in an
administrative enquiry may have more far reaching effect than decision in a
quasi-judicial enquiry.
Now,
there is no doubt that the principles of natural justice are applicable even to
administrative inquiries.
See:
A.K. Kraipak & Ors. v. Union of India
& Ors., [1970] 1 SCR 457.
The
question is whether principles of natural justice require an administrative
authority to record reasons.
Generally,
principles of natural justice require that opportunity of hearing should be
given to the person against whom an administrative order is passed. The
application of principles of natural justice, and its sweep depend upon the
nature of the rights involved, having regard to the setting and context of the
statutory provisions.
Where
a vested right is adversely affected by an administrative order, or where civil
consequences ensue, principles of natural justice apply even if the statutory
provisions do not make any express provision for the same, and the person
concerned must be afforded opportunity of hearing before the order is passed.
But principles of natural justice do not require the administrative authority
to record reasons for its decision as there is no general rule that reasons
must be given for administrative decision.
Order
of an administrative authority which has no statutory or implied duty to state
reasons or the grounds of it decision is not rendered illegal merely on account
of absence of reasons. It has never been a principle of natural justice that
reasons should be given for decisions. See: Regina v. Gaming Board for Great Britain
ex p. Benaim and Khaida [1970] 2 QB 417 at 431. Though the principles of
natural justice do not require reasons for decision, there is necessity for
giving reasons in view of the expanding law of judicial review to enable the
citizens to discover the reasoning behind the decision. Right to reasons is an
indispensable part of a sound system of judicial review.
Under
our Constitution an administrative decision is subject to judicial review if it
affects the right of a citizen, it is therefore desirable that reasons should
be stated.
There
are however, many areas of administrative activity where no reasons are
recorded or communicated, if such a decision is challenged before the Court for
judicial review, the reasons for the decision may be placed before the court.
The superior authority while considering the representation of a Government
servant against adverse remarks, is not required by law to act judicially, it
is under no legal obligation to record or communicate reasons for its decision
to the Government servant. The decision, rejecting the representation does 460
not adversely affect any vested right of the Government servant nor does it
visit him with any civil consequences.
In
many cases having regard to infinite variations of circumstances, it may not be
possible to disclose reasons for the opinion formed about the work and conduct
or character of the Government servant. In the instant case adverse remarks as
contained in item Nos. 1 to 4 were expunged but those at serial numbers 5 and 6
were not expunged and the respondent's representation to that extent was
rejected. On a careful scrutiny of the two remarks, it would appear that
observation contained in Item No. 5 "that nothing adverse has come to
notice regarding your integrity" is not adverse to the respondent's work
and conduct. These remarks are neutral in nature, and they do not adversely
comment upon the respondent's work, conduct or character, though they are no
commendatory in nature. As regards the remarks at Serial No. 6, they are
self-explanatory, which show that inspite of oral and written warnings the
respondent the respondent did not improve. If the superior authority was not
satisfied with the explanation of the respondent as cantained in his
representation, what reasons could be stated, except that the authority was not
satisfied with the explanation. The superior authority was not obliged to write
detail judgment or order giving detais of the warnings or the material on which
he formed opinion.
There
is no dispute that there is no rule or administrative order for recording
reasons in rejecting a representation. In the absence of any statutory rule or
statutory instructions requiring the competent authority to record reasons in rejecting
a representation made by a Government servant against the adverse entries the
competent authority is not under any obligation to record reason. But the
competent authority has no licence to act arbitrarily, he must act in a fair
and just manner. He is required to consider the questions raised by the
Government servant and examine the same, in the light of the comments made by
the office awarding the adverse entries and the officer counter-signing the
same. If the representation is rejected after its consideration in a fair and
just manner, the order of rejection would not be rendered illegal merely on the
ground of absence of reasons. In the absence of any statutory or administrative
provision requiring the competent authority to record reasons or to communicate
reasons, no exception can be taken to the order rejecting representation merely
on the ground of absence of reasons.
No
order of an administrative authority communicating its decision is rendered
illegal on the ground of absence of reasons ex facie and it is not open to the
court to interfere with such orders merely on the ground of absence of any
reasons. However, it does not mean that the administrative authority 461 is at
liberty to pass orders without there being any reasons for the same. In
governmental functioning before any order is issued the matter is generally
considered at various levels and the reasons and opinions are contained in the
notes on the file. The reasons contained in the file enable the competent
authority to formulate its opinion. If the order as communicated to the
Government servant rejecting the representation does not contain any reasons,
the order cannot be held to be bad in law. If such an order is challenged in a
court of law it is always open to the competent authority to place the reasons
before the Court which may have led to the rejection of the representation.
it is
always open to an administrative authority to produce evidence alinude before
the court to justify its action.
The
President was under no legal obligation to record reasons in rejecting the
respondent's representation against the adverse remarks. Consequently, the
order of the president was not vitiated in law. The Central Administrative
Tribunal committed error in quashing the order of the president as well as the
order of the Ministry of Commerce dated 6.1.1986. Assuming that there was some
defect in the order rejecting the respondent's representation, the Tribunal was
not justified in holding that the adverse entries awarded to the respondent should
be treated as having been expunged.
We
accordingly allow the appeal, set aside the order of the Tribunal dated
27.7.1987. There will be no order as to costs.
T.N.A
Appeal allowed.
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