Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
E.G. NAMBUDIRI
DATE OF JUDGMENT23/04/1991
BENCH:
SINGH, K.N. (J)
BENCH:
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.
HEADNOTE:
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
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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
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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]
JUDGMENT:
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.
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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
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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
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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
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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.
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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
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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.
462