It is the
general tendency of the adminstrative authorities more so of the tax
authorities to pass non-speaking orders or to pass orders in violation of
principle of fairness and rules of natural justice, without giving any
opportunity of being heard to the effected person. The authorities in many case
pass orders in gross violation of rules of natural justice.
The
material relied upon against the effected person are not confronted to such
effected person and thereby an opportunity to cross examine the same is denied
and thereby right to defend oneself is also denied. On the other hand the
evidences produced by the concerned person are ignored while passing the orders
without rebutting the same.
The giving of reasons is one of the fundamentals of good administration.
It is a safeguard against arbitrariness on the part of decision maker. An
executive officer develops a habit of mind to look at things from the stand
point of policy and expediency. This mental habit does not change from function
to function. Giving of reasons imposes some restriction on an executive officer
in a matter involving personal rights. If an adjudicator is obligated to give
reasons for his conclusions, it will make it necessary for him to consider the
matter, carefully. The condition to give reasons introduces clarity and
transparency in administration and minimizes arbitrariness for compulsion of
disclosure guarantees consideration.
The purpose of disclosure of reasons is that the people must have
confidence in the judicial and quasi-judicial authorities. Unless reasons are
disclosed, how can a person know whether the authority has applied its mind or
not? Also, giving reasons minimizes the chances of arbitrariness. Hence, it is
an essential requirement of the rule of law that some reasons, atlest in brief,
must be disclosed in a judicial or quasi-judicial order, even if it is an order
of affirmation.
The above view is supported by the decision of Supreme Court in Chairman,
Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish
Sharan Varshney (2009) 4 SCC 240
Hon’ble the Supreme Court in M/s Steel Authority of India Ltd vs Sales
Tax Officer, Rourkela-I, Circle [2008] 16 VST 181 (SC), as follows:
“Reason is the Heartbeat of every conclusion. It introduces clarity in
any order and without the same it becomes lifeless. Giving of reasons is one of
the fundamentals of good administration.
Even
in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated
Engg. Union [1971] 1 All ER 1148, observed: "The giving of reasons is one
of the fundamentals of good administration." In Alexander Machinery
(Dudley) Ltd. v. Crabtree [1974] ICR 120 (NIRC) it was observed: "Failure
to give reasons amounts to denial of justice". "Reasons are live
links between the mind of the decision-taker to the controversy in question and
the decision or conclusion arrived at." Reasons substitute subjectivity by
objectivity.The emphasis on recording reasons is that if the decision reveals
the "inscrutable face of the sphinx", it can, by its silence, render
it virtually impossible for the courts to perform their appellate function or
exercise the power of judicial review in adjudging the validity of the
decision. Right to reason is an indispensable part of a sound judicial system;
reasons at least sufficient to indicate an application of mind to the matter
before court. Another rationale is that the affected party can know why the decision
has gone against him. One of the salutary requirements of natural justice is
spelling out reasons for the order made; in other words, a speaking- out. The
"inscrutable face of the sphinx" is ordinarily incongruous with a
judicial or quasi-judicial performance.”
Similarly, a cardinal principle of natural justice is that an
adjudicatory body is to decide the matter on the basis of materials placed
before it in the cource of proceedings. The decision maker cannot take
extraneous matters into consideration; it cannot base its decision on any
material unless the person against whom it is sought to be utilized has been
given an opportunity to rebut or explain the same.
If the adjudicator is going to rely on any material, evidence or document
for basing his decision against the affected person then the same must be
placed before him for his comments and rebuttal. All material must be brought
to his notice and he be given an opportunity to respond to the same. The right
of hearing may be of little value if the concerned person is kept in dark as to
the evidence against him and he is not given an opportunity to deal with him.
It is regarded as a fundamental principle of natural justice that no
materials should be relied on against a party without giving him an opportunity
of explaining the same. The right to know the materials of which the authority
is going to take a decision is a part of the right to defend oneself. If
without disclosing any material to the concerned party, the adjudicator takes
the same into consideration, and decides the matter against him, then the
decision would be vitiated for it amounts to denial of a real and effective
opportunity to the party to meet the case against him.
The Supreme Court has stated in this respect in Union of India v. Varma
T.R., AIR 1957 SC 882 that no material should be relied on against a person
without his being given an opportunity of explaining them.
In nut shell the principle of fairness and justice demands that every
administrative order or even conclusion should be supported by reasons and the
principle of audi alterm partem is fairly observed by giving proper opportunity
to the effected person to produce all evidences in his support and also an opportunity
to rebut evidences to be used against him by confronting the same to him, which
are collected at his back. The authorities must also not ignore evidences produced by the effected person without rebutting the same.
All administrative orders passed in gross violation of rules of natural
justice, which gets quashed in the appellate proceedings, causes unneccessary
litigation and harrasment to innocent persons and therefore this matter must be
seriously viewed by every State Government as also the Central government,
which unfortunately is not happening on the part of any one of them. Need of
the hour is that a strict law fixing the responsibility of administrative
officers must be enacted so that principle of fairness remains alive in the
administrative actions and therefore ensuring that law and justice is
administered under a good administration.
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