CIVIL APPELLATE JURISDICTION: Civil Appeal No, 3201 of 1989.
From the Judgement and Order dated 28.2.1989 of the Punjab and Haryana High Court in C.W.P. No. 7769 of 1988.
Dr. N.M. Ghatate and C.V.S. Rao for the Appellants.
P.P.Singh for the Respondent.
The Judgement of the Court was delivered by
K. JAYACHANDRA REDDY, J. Whether a personal hearing is required before disposing of a petition filed under Section 117(2) of The Border Security Force Act, 1968 (‘Act’ for short) against an order of the Summary Security Force Court? This in short is the question involved in this appeal filed by the Union of India.
The facts that give rise to this appeal may be noted at the outset. The sole respondent who was working as Mounted Constable in the Border Security Force (‘BSF’ for short) was charged for an offence under Section 31(b) of the Act for extracting a sum of Rs. 14,000 from a person without proper authority. A chargesheet was issued to the respondent. The evidence in support of the same was recorded. Thereafter a Summary Security Force Court as provided under the Act was constituted and the respondent was put on trial on 17,2.1988. During the recording of the evidence, though the respondent was given an opportunity to cross-examine the witnesses he declined to do so and according to the enquiring authorities, he pleaded guilty and prayed that a lenient view may be taken. During the trial he was also given an opportunity to examine defence witnesses, if any but he did not do so. It is also averred that since the respondent pleaded guilty, Summary Security Force Court passed the orders and sentenced him to rigourous imprisonment for one year in civil prison and also to be dismissed from service. Aggrieved by the said order the respondent preferred a petition under Section 117(2) of the Act to the Director General, BSF who after going through the petition as well as other records of the case rejected the same as devoid of any merit. The said decision was informed to the respondent. Aggrieved by the same, the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab & Haryana. It was urged that there was violation of principles of natural justice e since he had not been heard before disposing of the petition filed under Section 117(2) of the Act. The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him. Aggrieved by the saidorder the Union of India has filed the present appeal. Learned counsel for the appellants submitted that Section 117 (2) of the Act does not provide for personal hearing and that the courts, which examined the similar provisions in the Army Act, have held that the personal hearing need not be given particularly having regard to the nature of the act and the post held. The learned counsel appearing for the respondent, on the other hand, submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
Before we examine the decisions cited by either side, it is necessary to refer to some of the provisions of the Act and the Army Act. The BSF is an armed force of the Union of India constituted under Item 2 of List I of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country. The preamble states that the Act is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith. Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the Act, the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed. Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court. Chapter VI deals with the constitution of the Security Force Courts and their powers of try the offences punishable under the Act. Chapter VII contains the procedure, the witnesses can be summoned and examined. Section 87 lays down that the Evidence Act, shall, subject to the provisions of the Act, apply to all proceedings before the Security Force Courts. For the purpose of this appeal it may not be necessary to go into the details of this procedure. As per Section 107 no finding or sentence of a Security Force Court shall be valid except so far as it may be confirmed as provided under the Act. Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court. Under Section 117, the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court. Section 117 reads as under:
"117(1) Any person subject to this Act who
considers himself aggrieved by any order passed by
any Security Force Court may present a petition to
the officer or authority empowered to confirm any
finding or sentence of such Security Force Court,
and the confirming authority may take such steps as
may be considered necessary to satisfy itself as to
the correctness, 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
Security Force Court which has been confirmed, may
present a petition to the Central Government, the
Director-General, or any prescribed officer
superior in command to the one who confirmed such
finding or sentence, and the Central Government,
the Director-General, or the prescribed officer, as
the case may be, may pass such order thereon as it
or he thinks fit." The next relevant Section is Section 118 which reads thus:
"The Central Government, the Director-General, or
any prescribed officer may annul the proceedings of
any Security Force Court on the ground that they
are illegal or unjust." In the instant case, we are concerned with the postconfirmation petition presented under Section 117(2) to the Director-General, BSF. As already mentioned the DirectorGeneral rejected the same holding that it is devoid of merit without giving any personal hearing. The petition filed by the respondent under Section 117(2) is marked as Annexure ‘C’ in this appeal before us. We have gone through the same and we find that request for personal hearing as such has not been made. With this background we shall now examine whether it is obligatory that a personal hearing should be given and whether there has been violation of principles of natural justice?
The doctrine of principles of natural justice and audi alteram partem are part of Article 14 and there are any number of decisions rendred by this Court regarding the scope of this doctrine. We shall, however, refer to one or two important cases relied upon by the learned counsel for the appellants. In Maneka Gandhi v. Union of India, [1978] 2 SCR 621 all the earlier important cases are referred to. Suffice it to say that it is laid down that principles of natural justice apply to administrative orders affecting the rights of citizens. But it is also observed that:
"The audi alteram partem rule may, therefore, by
the experimental test, be excluded, if importing
the right to be heard has the effect of paralysing
the administrative process or the need for
promptitute or the urgency of the situation so
demands. But, at the same time, it must be
remembered that this is a rule of vital importance
in the field of administrative law and it must not
be jettisoned save in very exceptional
circumstances where compulsive necessity so
demands. It is a wholesome rule designed to secure
the rule of law and the Court should not be too
ready to eschew it in its application to a given
case. The Court must make every effort to salvage
this cardinal rule to the maximum extend
permissible in a given case." In State of Haryana v. Ram Krishan and Others, [1988] 3 SCC 416 the question was whether in a case of premature termination of mining leases by the Government, it was necessary to give an opportunity of hearing. The Court held that:
"Since there is no suggestion in the section to
deny the right of the affected persons to be heard,
the provisions have to be interpreted as implying
to preserve such a right. The Section must be
interpreted to imply that the person who may be
affected by such a decision should be afforded an
opportunity to prove that the proposed step would
not advance the interest of mines and mineral
development. Not to do so will be violative of the
principles of natural justice. Reference may be
made to the observations of this Court in Baldev
Singh v. State of Himachal Pradesh, [1987] 2 SCC
510, that where exercise of a power results in
civil
consequences to citizens, unless the statute
specifically rules out the application of natural
justice, such rule would apply. The learned counsel appearing for the Union of India, however, submitted that the courts have not gone to the extent of holding that in every petition or revision by way of representation filed against an order of a Tribunal under special statute should also be given an opportunity of hearing before disposal of the same.
Most of the other decisions cited deal with the question of giving an opportunity before disposal of a petition filed under Section 164(2) of the Army Act which is in pari materia to Section 117(2) of the Act. We may usefully extract Section 164 of the Army Act which reads thus:
"164. Remedy against order, finding or sentence of
court-material-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
finding 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
correctness, legality or propriety of the order
passed or as to the regularity of any proceedings
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 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 thereon as it or
he thinks fit." In Som Datt Datta v. Union of India & Ors., [1969] 2 SCR 177 a question came up whether it was necessary for the confirming authority or upon the Central Government to give reasons while disposing of a petition under Section 164. It was held that:
"Apart from any requirement imposed by the statute
or statutory rule either expressly or by necessary
implication,
we are unable to accept the contention of Mr. Dutta
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 Union of India v. Jyoti Prakash Mitter, [1971] 1 SCC 396 a question came up whether an order passed by President acting under Art. 273 of the Constitution of India is justiciable. This Court held that the appreciation of the evidence by the President is entirely left to him but the Court will not sit in appeal over the judgement of the President. Now coming to the question of personal hearing it was further held that:
"The President had given ample opportunities at
diverse stages to the respondent to make his
representations. All evidence placed before the
President when he considered the question as to the
age of the respondent was disclosed to him and he-
respondent-was given an opportunity to make his
representation thereon. There is nothing in clause
(3) of Article 217 which requires that the Judge
whose age is in dispute, should be given a personal
hearing by the President. The President may in
appropriate cases in the exercise of his discretion
give to the Judge concerned an oral hearing, but he
is not bound to do so. An order made by the
President which is declared final by clause (3) of
Article 217 is not invalid merely because no oral
hearing was given by the President to the Judge
concerned". In Lt. Col. K.N.S. Sidhu v. The Union of India and Others, All India Service Law Journal, 1977 Page 721 a Division Bench of the Punjab & Haryana High Court has considered this very question and held that the rejection of a representation made under Section 164(2) of the Army Act without giving a personal hearing does, not suffer from any illegality and after referring to A.K. Gopalan v. State of Madras, AIR 1950 SC 27 and Union of India v. Jyoti Prakash Mitter, AIR 1971 SC 1093, held that:
"From the observations reproduced above, it is
abundantly clear that there is no hard and fast
rule for the applicability of principles of natural
justice and that in each case it has to be
definitely ascertained if the statute governing it
leaves
any discretion for involving their assistance." It was further observed that:
"The Act applies to a class of people who are the
backbone of the country. They are governed by the
codified law. Discipline is maintained by resorting
to the provisions of the codified law. There would
hardly be any justification for importing the
principles of natural justice in a completely
codified statute". In Captain Harish Uppal v. Union of India and Others, [1973] 2 SCR 1025 also the question whether an opportunity to be heard is necessary before confirmation under Section 164 of the Army Act, was considered and it was held that:
"The contention that Brig. Bhilla should either
have given a hearing to the petitioner or the Chief
of Army Staff should have given a hearing to the
petitioner before confirming the subsequent
sentence by the court martial is not a requirement
under the Act. While it can be at least said that
there is some semblance of reasonableness in the
contention that before he ordered what in effect
was an upward revision of the sentence passed on
the petitioner, he should have been given a
hearing, to insist that the confirming authority
should give a hearing to the petitioner before it
confirmed the sentence passed by the court-martial,
is a contention which cannot be accepted. To
accept this contention would mean that all the
procedure laid down by the Code of Criminal
Procedure should be adopted in respect of the court
martial, a contention which cannot be accepted in
the face of the very clear indications in the
Constitution that the provisions which are
applicable to all the civil cases are not
applicable to cases of Armed Personnel. It is not
a requirement of the principles of natural justice.
Indeed when he was informed that the subsequent
sentence passed on him had been sent to the Chief
of the Army Staff for confirmation it was open to
the petitioner to have availed himself of the
remedy provided under Section 164 of presenting a
petition to the confirming officer, i.e. the Chief
of the Army Staff in this case. He does not appear
to have done so." In this decision this Court has held in unambiguous terms that the confirming authority need not give a personal hearing and this ratio applies with equal force to a post confirmation petition under Section 164(2) and consequently to an application under Section 117(2) of the Act.
In a recent decision in Shri S.N. Mukherjee v. Union of India, JT (1990) 3 630 a Constitution bench of this Court having noted the principle that requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities, however, proceeded to hold that "There is nothing in the language of sub-section (2) of Section 164 which indicates that recording of reasons for an order passed on the post-confirmation petition was necessary". In arriving at this finding, the Bench referred to the ratio laid down in Som Datt Datt’s case. At this stage we may refer to another decision of this Court in Union of India v. cor. J.N. Sinha and Anr., [1971] 1 SCR 791 wherein it is held:
"Rules of natural justice are not embodied rules
nor can they be elevated to the position of
fundamental rights. As observed by this Court in
Kraipak and Ors. v. Union of India, AIR 1970 SC
150, "the aim of rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate
only in areas not covered by any law validly made.
In other words they do not supplant the law but
supplement it.
xx xx xx
Whether the exercise of a power conferred should be
made in accordance with any of the principles of
natural justice or not depends upon the express
words of the provision conferring the power, the
nature of the power conferred, the purpose for
which it is conferred and the effect of the
exercise of that power".
From the above discussion it emerges that in cases of special enactments like Army Act, all the principles of natural justice cannot be imported. The same ration applies to a petition under Section 117(2) of the Act also. We may also point out her that Chapter XIII consisting of Rules 167 to 169 of the BSF Rules deals with petitions filed under Section 117 of the Act. Even in them there is nothing to indicate that a hearing has to be given before disposal of a petition.
As noted above, under Section 117(2) the respondent in only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice. The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post-confirmation petition that was filed under Section 117(2) of the Act and authority which disposed of the same is not a court any every order passed administratively cannot be subjected to the rigours of principles of natural justice.
For the aforesaid reasons, the order of the High Court is set aside and the matter is remitted back to the High Court for disposal on merits. The appeal is accordingly allowed. In the circumstances of the case, there will be no order as to costs. R.P. Appeal allowed.