Speaking_Order by law and order. 1).pptx

Speaking order

1. Speaking Order Dr. G. Prasanna Kumar

2. Why Speaking Order? Audi alteram partem – Second Principle of Natural Justice Qui aliquid statuerit parte inaudita altera, aequum licet dixerit , haud aequum fecerit (He who decides anything without having heard the other side, though he may decide rightly, by no means has acted justly.) Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. [“ Ces-sante Ratione Legis Cessat Ipsa Lex”]. Even if the legislature specifically authorizes an administrative action without hearing, except in cases of recognized exceptions, then the law would be violative of the principles of fair hearing as per Articles 14 and 21 of the Indian Constitution.

3. Third Principle of Natural Justice Order which is passed affecting the rights of an individual must be a speaking order. The affected party should know on what grounds the order was passed. Application of mind should be obvious in the order. Right for legal representation Right to examine Inquiry Report Post Decisional Hearing Absence of Departmental Bias

4. Legal Requirement The High Court under Article 226 and the Supreme Court under Article 32 have the power to quash by certiorari a quasi­judicial order made by an administrative officer and this power of review exercisable by issue of certiorari can be effectively exercised only if the order is a speaking order and reasons are given in support of it. If no reasons are given, it would not be possible for the High court or the Supreme Court exercising its power of judicial review to examine whether the administrative officer has made any error of law in making the order. It would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by omitting to give reasons in support of his order. Bhagat Raja vs The Union of India 1967 AIR 1606

5. Union of India vs Mohan Lal Capoor & Others – AIR 1974 SC 87 It was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to record of others who were to be preferred particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind was applied to the subject matter for a decision whether it was purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way could opinions or decisions recorded be shown to be manifestly just and reasonable. It was not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee.

6. Madhya Pradesh Industries Ltd vs Union of India A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but, an executive officer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it, is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders. 1966 AIR 671

7. A.K. Kraipak & Ors . vs Union of India & Ors , 29 April, 1969 The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry.

8. Delhi International Airport Private Ltd. Vs AERA & anr . The Regulatory Authority has taken note of various stands of the parties and has summarized its opinion. There is no independent discussion on the various stands of the parties. In a case of this nature, it was imperative for the Regulatory Authority to indicate reasons in short of its conclusions. Mere mention that it has considered the rival stands is not sufficient.

9. M/S Kranti Asso . Pvt. Ltd. & Anr . vs Masood Ahmed Khan & Ors a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. 2011 (273) ELT 345 (SC) Contd…

10. Contd… e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making, justifying the principle that reason is the soul of justice. Contd…

11. Contd… i . Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision making process. Contd…

12. Contd… m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.

13. Why Speaking Order? Encourages Transparency & Fairness Avoids arbitrariness (Reduces corruption) Enables Judicial Review Avoids unnecessary litigation Often a statutory requirement Even if statute doesn’t require reasons to be conveyed, the order should contain reasons.

14. Components of Speaking Order Brief facts of the case/charges/nature of offence/action taken/Court directions, if any Written submissions of CO/Appellant/Applicant Details of Personal Hearing and submissions made Statement showing application of mind Analysis of each charge/plea in the light of laws/ rules/ instructions and findings thereon Well reasoned order

15. Vetting of a Speaking Order Whether all points raised by the appellant/ applicant have been considered by the authority? Ensure that no issue is left unattended. Whether all issues have been analyzed in the light of the relevant laws/rules/precedents/ instructions? Whether the case laws cited are relevant and latest? Whether application of mind is clearly discernible in the order? Whether Court directions, if any, have been complied with? Has there been any violation of the principles of natural justice? Contd…

16. Contd … The Language used – Simple, not hurting sentiments Nothing should be written which is not germane to the facts of the case. As far as possible follow chronology. No important facts are left out. Whether the authority has jurisdiction to entertain the application and issue the order as drafted?

17. Model Speaking Order Title of the case, Date In compliance of Hon’ble Punjab & Haryana High Court order dated ______ passed in ______________ (Case citation), filed by X (Name of applicant) son of Y, I have gone through the representations of the applicant dated ____________ and ___________ carefully vide which the applicant has requested for ____________ (Details of pleas). I have gone through the records and examined each issue raised by the applicant in the light of law/instructions/precedents. The brief facts of the case are as follows: ____________________ (Facts of the case in brief). Statement on legal position/precedents/departmental instructions. In view of the legal position explained above my findings on the contentions of the applicant are as below: Analysis of each issue raised by the applicant. Therefore, by virtue of the authority vested in me under _______________ (Relevant law/order), I find that ____________________ (Details of findings on each issue). I, accordingly, order that _____________________ (Detailed order). The applicant may be informed accordingly.   Name & Designation

18. Speaking Order in Disciplinary Cases Title of the case Statement of charges Details of Inquiry conducted Details of personal hearing given I have heard the charged officer and gone through the statement of charges and the Inquiry Report and examined them in the light of the relevant laws/ rules/ instructions and my findings are as follows: Analysis of each charge and findings of IO thereof. Agree/Disagree. Charge proved/not proved. Final finding & detailed order giving reasons

19. Appellate Order in Disciplinary Cases Title of the case Statement of charges Details of Inquiry conducted Findings of the Disciplinary Authority & Order Details of Appeal, grounds, pleas Details of personal hearing given I have heard the CO and gone through the statement of charges, the Inquiry Report and the speaking order passed by the Disciplinary Authority and examined them in the light of the relevant laws/ rules/ instructions and my findings are as follows: Analysis of each charge and findings of IO & Disciplinary Authority thereof. Agree/Disagree. Charge proved/not proved. Final finding & detailed order giving reasons

20. Thank You

21. Maneka Gandhi vs Union Of India (1978 AIR 597) The passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the Passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the Passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act.