Administrative Law

Assignment on Speaking Orders

By: Navya Sharma

Roll no.: 25

Section: A
Acknowledgement
This assignment would not have been possible without the support of many people. The author
wishes to express her gratitude to her supervisor, Dr. Saadiya, who was abundantly helpful and
offered invaluable, support and guidance. Special thanks also to the classmates for sharing the
literature and invaluable assistance. Thank-you!
Contents
 Introduction
 Speaking orders
 Purpose for speaking orders
o Order without giving reasons becomes mala fide
o The very requirement of giving reason is to prevent unfairness or
arbitrariness in reaching conclusions
 Conclusion
Introduction
Justice not only should be done, it should appear to have been done is an old adage. The concept
of natural justice that one must be heard before he is condemned has its root in ancient
law. Though it is difficult to precisely define what is meant by natural justice, the contents of
principles of natural justice are quite easy to enumerate.

As it stands today, the basic principles of Natural justice are:

 that the parties should be heard before deciding an issue;

 the hearing must be before an impartial Judge, as no man can be judge of his own
cause.Therefore, the hearing must be before an unbiased Judge;
  the Judge should decide in good faith. He should have no bias, personal or pecuniary;
and
 the decision given must be reasoned one and therefore, the decision must be evidenced by
a speaking order which enumerates the reasons for coming to a particular conclusion.

This is a new principle of natural justice which has been recognised in India and USA, but,
however, yet to be recognised under English Law. There is no general rule of English law,
that reasons must be given for administrative or even judicial decisions. In India also till very
recently, it was not accepted that the requirement of passing speaking orders is one of the
principles of natural justice.

The American Due Process of Law postulates:

(a) notice

(b) opportunity to be heard

(c) an impartial tribunal and

(d) an orderly course of procedure.

The concept of speaking order as a part of principles of natural justice is a significant and
important contribution by Indian jurisprudence. While the English Jurists and Judges have
hesitated in adopting speaking order as a part of the principles of natural justice, the Indian
courts, particularly the Hon’ble Supreme Court has unequivocally accepted that speaking order is
the third important basic principle of natural justice. Therefore, as it stands as far as the Indian
law is concerned, the three basic accepted principles of natural justice are:

 that the dispute should be decided by an impartial judge without any bias or interest
against the parties and in the subject-matter of dispute;
 ‘Audi alteram partem’ which means, no man should be condemned unheard. Both parties
must be heard before passing any order;
 that the decisions must be reasoned one and the orders containing the decision must be
speaking orders.

Therefore, the third principle of natural justice is that a party ought to know the result of
the inquiry and the reasons for the decision.
Speaking order
In Ebrahim Mahmood Akhalwaya vs State of Gujarat & Ors 1, it was observed that the expression
`speaking order’ was first coined by Lord Chancellor Earl Cairns in a rather strange context. The
Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors
on the face of the record and pointed out that an order with errors on its face, is a speaking order.

A ‘speaking order’ means an order speaking for itself by giving reasons. Speaking orders are
necessary if the judicial review is to be effective. The party affected must know why and on what
grounds an order has been passed against him.

The Courts have specifically held that passing of a speaking order is a part and parcel of natural
justice. As the Hon’ble Supreme Court observed in M.P. Industries vs. Union of India2,  “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.”

The courts have justified the requirement for a speaking order on three grounds:

1. the party aggrieved has the opportunity to demonstrate before the appellate or revisional
court that the reasons which persuaded the authority to reject his case were erroneous;
2. the obligation to record reasons operates as a deterrent against possible arbitrary action
by executive authority invested with judicial power; and
3. it gives satisfaction to the party against whom the order is made. The power to refuse to
disclose reasons in support of the order is of an exceptional nature and it ought to be
exercised fairly, sparingly and only when fully justified by the exigencies of an
uncommon situation.

The Supreme Court observed in Siemens Engg. vs. Union of India3, “The rule requiring reasons
to be given in support of an order is like the principle of ‘audi alteram partem’, a basis principle
of natural justice, which must inform every quasi-judicial process and this rule must be observed

1
(C.L.SONI, J.) anvyas HC-NIC Page 7 of 7 Created On Sat Aug 08 00:22:49 IST 2015
2
AIR 1966 SC 671
3
AIR 1976 SC 1785
in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of
law.”

Purpose of speaking orders and judgments:

In judicial system various orders and judgments are required to be in written form. These orders
and judgments are very much different from petty and even substantial social or financial
disputes, which are settled mutually by parties themselves or through intervention of friends,
because in those cases, the implementation of settlement is immediate and such settlements have
no precedence value for public. Whereas an administrative order or judicial judgment is required
to be in writing and reasoned for the reason that it is serious dispute between parties which is not
settled mutually by consent, it can be challenged in an appeal or by way of prescribed petitions,
it can be reviewed and it can have value of precedence for public at large.

Laws are complex so the facts may be. In different facts the same law may be applied differently.
Therefore order or judgment is derived based on facts and circumstances, common sense and the
applicable law. It is true that some judgment could be complex, whereas some are of routine
type. Deeper thoughts are required in case of complex matter, the routine matter can be disposed
of easily. However, both should be reasoned. Purposes of the judgment, inter alia include:

(1) To clarify the facts and circumstances. These can further be classified as undisputed facts and
disputed facts, if any.

(2) To ascertain applicable law- the judgment must be based on correct applicable law,

(3) To state contentions of parties to the suit,

(4) To clarify thoughts of the judges;

(5) To explain decision to the parties;

(6) To communicate the reasons for the decision to the public; and

(7) To provide reasons for an appeal Court to consider, in case of appeal against judgment or its
review.
Order without giving reasons becomes mala fide:-

A reasoned order is a desirable condition of judicial disposal. (Madhya Pradesh Industries Ltd vs
Union Of India And Others4).

In Harinagar Sugar Mills Ltd. vs. Shyam Sunder Jhunjhunwala and others 5, the Hon’ble Court
insisted on the requirement of recording reason and further held that in exercising appellate
powers, the Central Government acted as a tribunal in exercising judicial powers of the State and
such exercise is subject to Article 136 jurisdiction of the Hon’ble Supreme Court. Such powers,
this Court held, cannot be effectively exercised if reasons are not given by the Central
Government in support of the order.

The very requirement of giving reason is to prevent unfairness or arbitrariness in reaching

conclusions:-

In 2013, the Hon’ble Delhi High Court, in the case of State Bank Of India & Anr vs Kishan Lal
Mittal, as to requirement of giving reasons is concerned, observed as follows:- ‘In M/s.

Woolcombers of India Ltd. vs. Woolcombers Workers Union and another 6, Supreme Court,
while considering an award under Section 11 of the Industrial Disputes Act, insisting upon the

need of giving reasons in support of the conclusions in the award observed that the very
requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. It
was further observed that that a just but unreasoned conclusion does not appear to be just to
those who read the same. Reasoned and just conclusion on the other hand will also have the
appearance of justice. The Apex Court emphasized that since the awards are subject to Article
136 jurisdiction of the Apex Court, it would be difficult for the Court, in the absence of reasons,
to ascertain whether the decision was right or wrong.’
4
1966 AIR 671
5
AIR 1961 SC 1669
6
AIR 1973 SC 2758
In M/s. Woolcombers of India Ltd7, it was further observed that the second principle is based on
the jurisprudential doctrine that justice should not only be done, it should also appear to be done
as well. The Hon’ble Judges said that a just but unreasoned conclusion does not appear to be just
to those who read the same. Reasoned and just conclusion on the other hand will also have the
appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction
of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the
decision is right or wrong.

Natural justice requires reasons to be written for the conclusions made:-

In 2015, the Hon’ble Delhi High Court in Manpower Co-Operative Group vs Office Of The
Registrar Of CO-OPERATIVE SOCIETIES, GNCT OF DELHI, followed the ruling in Rama
Varma Bharathan Thampuran vs. State of Kerala and Ors. 8, wherein his Lordship Justice V.R.
Krishna Iyer speaking for a three-Judge Bench held that the functioning of the Board was quasi-
judicial in character. One of the attributes of quasi- judicial functioning is the recording of
reasons in support of decisions taken and the other requirement is following the principles of
natural justice. His Lordship held that natural justice requires reasons to be written for the
conclusions made.

Bound to pass Speaking Order:-

In 2015, the Hon’ble Delhi High Court, in Manpower Co-Operative Group vs Office Of The
Registrar Of CO-OPERATIVE SOCIETIES, GNCT OF DELHI, followed the ratio laid down
in Bhagat Raja vs. Union of India and others9, , the Constitution Bench of the Hon’ble Apex
Court where in it was examined the question whether the Central Government was bound to pass
a speaking order while dismissing a revision and confirming the order of the State Government
in the context of Mines and Minerals (Regulation and Development) Act, 1957, and having
regard to the provision of Rule 55 of Mineral and Concessions Rules. The Hon’ble Apex Court

7
Supra
8
AIR 1979 SC 1918
9
AIR 1967 SC 1606
insisted on reasons being given for the order referring to M/s. Mahabir Prasad Santosh Kumar vs.
State of U.P and others10.

While exercising judicial power reasons in support of the order must be disclosed:-

In M/s. Travancore Rayons Ltd. vs. The Union of India and others 11, it was held that the Central
Government was actually exercising judicial power of the State and in exercising judicial power
reasons in support of the order must be disclosed on two grounds. The first is that the person
aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the
obligation to record reasons operates as a deterrent against possible arbitrary action by the
executive authority invested with the judicial power.

The expression “reasons for the proposed supersession”:-

In 2014, as to the point that administrative action must be supported by reasons, the Hon’ble
Orissa High Court in Epari Vasudeva Rao, Bhubaneswar vs State Of Odisha And Another,
followed the ruling in Union of India vs. Mohan Lal Capoor and others12, wherein the Hon’ble

Apex Court while dealing with the question of selection under Indian Administrative
Service/Indian Police Service (Appointment by Promotion Regulation) held that the
expression “reasons for the proposed supersession” should not be mere rubber stamp
reasons. Such reasons must disclose how mind was applied to the subject matter for a decision
regardless of the fact whether such a decision is purely administrative or quasi-judicial. This
Court held that the reasons in such context would mean the link between materials which are
considered and the conclusions which are reached. Reasons must reveal a rational nexus between
the two.

10
AIR 1970 SC 1302
11
AIR 1971 SC 862
12
AIR 1974 SC 87
Rubber Stamp reason is not enough:-

In 1999, the Hon’ble Allahabad High Court in Lohiya Machine (L.M.L.) vs State Of U.P. 13,
followed the ruling in Gurdial Singh Fijji vs. State of Punjab and Ors. 14, wherein the Hon’ble
Apex Court, dealing with a service matter, relying on the ratio in Capoor 15, held that “rubber-
stamp reason” is not enough and virtually quoted the observation in Capoor16 to the extent that
reasons “are the links between the materials on which certain conclusions are based and the
actual conclusions.”

Reason is the soul of the law:-The duty to give reason is an incident of the judicial process and
emphasized that in discharging quasi-judicial functions the appellate authority must act in
accordance with natural justice and give reasons for its decision referring to Ram Chender Vs.
Union of India and Others17. In M/s. Bombay Oil Industries Pvt.Ltd. Vs. Union of India and
others18, the Hon’ble Apex Court held that while disposing of applications under Monopolies and
Restrictive Trade Practices Act the duty of the Government is to give reasons for its order.

In a Constitution Bench decision of the Hon’ble Apex Court in Shri Swamiji of Shri Admar Mutt
etc. vs. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors. 19, while
giving the majority judgment the Hon’ble Chief Justice Y.V. Chandrachud referred to Broom’s
Legal Maxims where the principle in Latin observed:

“Ces-sante Ratione Legis Cessat Ipsa Lex” The English version of the said principle given by the
Chief Justice is that: (H.H. Shri Swamiji case20) “Reason is the soul of the law, and when the
reason of any particular law ceases, so does the law itself.”

13
( 1999 (3) AWC 2134)
14
(1979) 2 SCC 368
15
supra
16
supra
17
AIR 1986 SC 1173
18
AIR 1984 SC 160
19
AIR 1980 SC 1
20
(1979) 4 SCC 642
Recording of reason are necessary:-

In 2011, the Hon’ble Punjab and Haryana High Court in Subhash Chand vs State Of Haryana
And Others referred to the ruling in M/s. Star Enterprises and others vs. City and Industrial
Development Corporation of Maharashtra Ltd. and others21, wherein a three-Judge Bench of the
Hon’ble Apex Court held that in the present day set up judicial review of administrative action
has become expansive and is becoming wider day by day and the State has to justify its action in
various field of public law. All these necessitate recording of reason for executive actions
including the rejection of the highest offer. the Hon’ble Apex Court held that disclosure of
reasons in matters of such rejection provides an opportunity for an objective review both by
superior administrative heads and for judicial process and opined that such reasons should be
communicated unless there are specific justification for not doing so.

Non-recording of reason may not be violative of the principles of natural justice:-

Strict rules of the Evidence Act do not apply to departmental proceedings as has been held by the
Supreme Court in the cases of State Bank of India and Others Vs. Narendra Kumar Pandey 22.  In
Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and
others23, the Hon’ble Apex Court held that even in domestic enquiry if the facts are not in dispute
non-recording of reason may not be violative of the principles of natural justice but where facts
are disputed necessarily the authority or the enquiry officer, on consideration of the materials on
record, should record reasons in support of the conclusion reached.

Reasons must be recorded in the award:-

“It is, thus, settled law that reasons are required to be recorded when it affects the public interest.
See. Tapas Panda vs The State Of West Bengal & Ors (2015) and M.L. Jaggi’s case referred to

21
(1990) 3 SCC 280
22
(2013) 2 SCC 740
23
(1991) 2 SCC 716
infra. In M.L. Jaggi vs. Mahanagar Telephones Nigam Limited and others24, the Hon’ble Apex
Court dealt with an award under Section 7 of the Telegraph Act and held that since the said
award affects public interest, reasons must be recorded in the award. It was also held that such
reasons are to be recorded so that it enables the High Court to exercise its power of judicial
review on the validity of the award.

Recording reasons is “too obvious to be reiterated and needs no emphasizing:-

In determining the compensation that is required to be awarded to the Complainant we will be
guided by the following observations made by the Honorable Supreme Court in Charan Singh vs
Healing Touch Hospital & Ors.25.

In Charan Singh vs. Healing Touch Hospital and others 26, a three-Judge Bench of the Hon’ble
Apex Court, dealing with a grievance under CP Act, held that the authorities under the Act
exercise quasi-judicial powers for redressal of consumer disputes and it is, therefore, imperative
that such a body should arrive at conclusions based on reasons. the Hon’ble Apex Court held that
the said Act, being one of the benevolent pieces of legislation, is intended to protect a large body
of consumers from exploitation as the said Act provides for an alternative mode for consumer
justice by the process of a summary trial. The powers which are exercised are definitely quasi-
judicial in nature and in such a situation the conclusions must be based on reasons and held that
requirement of recording reasons is “too obvious to be reiterated and needs no emphasizing”.

24
(1996) 3 SCC 119
25
AIR 2000 SC 3138
26
AIR 2000 SC 3138
Conclusion
In respect of the speaking order, the law may be summarised as under:

 Where a statute requires recording of reasons in support of the order, it imposes an

obligation on the adjudicating authority and the reasons must be recorded by the
authority.
 Even when the statute does not lay down expressly the requirement of recording reasons,
the same can be inferred from the facts and circumstances of the case.
 Mere fact that the proceedings were treated as confidential, does not dispense with the
requirement of recording reasons.
 If the order is subject to appeal or revision, the necessity of recording reasons is greater
as without reasons the appellate or revisional authority cannot exercise its power
effectively inasmuch as it has no material on which it may determine whether the facts
were correctly ascertained, law was properly applied and the decision was just and based
on legal, relevant and existent grounds. Failure to disclose reason amounts to depriving
the party of the right of appeal or revision.
 There is no prescribed form and the reasons recorded by the adjudicating authority need
not be detailed or elaborate and the requirements of recording reasons will be satisfied if
only relevant reasons are recorded.
 If the reasons recorded are totally irrelevant, the exercise of power would be bad and the
order is liable to be set aside.
 It is not necessary to record reasons by the appellate authority when it affirms the order
passed by the lower authority. (This proposition of law requires reconsideration).
 Where the lower authority does not record reasons for making an order and the appellate
authority merely affirms the order without recording reasons, the order passed by the
appellate authority is bad.
 Where the appellate authority reverses the order passed by the lower authority reasons
must be recorded, as there is a vital difference between an order of reversal and an order
of affirmation.
 Where the appellate authority reverses the order passed by the lower authority reasons
must be recorded, as there is a vital difference between an order of reversal and an order
of affirmation.
 The validity of the order passed by the statutory authority must be judged by the reasons
recorded therein and cannot be construed in the light of subsequent explanation given by
the authority concerned or filing affidavit. Orders are not like old wine becoming better
as they grow older.
 If the reasons are not recorded in the order, it does not always vitiate the action.
 The duty to record reasons is a responsibility and cannot be discharged by the use of
vague general words.
 The reasons recorded by the statutory authority are always subject to judicial scrutiny.