Allowed

Devendra Kumar v. the State of Madhya Pradesh

Madhya Pradesh HC5 Sept 2018WP/16484/2016

Case brief

AI extract

What is this about?

The court set aside the orders refusing a private security agency licence and the subsequent appellate order for want of procedural due process, specifically the failure to grant a hearing and provide reasoned decisions, and remitted the matter to the Controlling Authority. Petition allowed on principles alone.

What did the court decide?

Rejection orders dated 13.4.2016 and 6.8.2016 set aside and remitted to the Controlling Authority to reconsider; decision to be made within 60 days.

Devendra Kumar Vs the State of Madhya Pradesh — Service and Employment | Madhya Pradesh HC (2018)

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(1)

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W.P. No.16484/2016

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THE HIGH COURT OF MADHYA PRADESH

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W.P.No.16484/2016

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( Devendra Kumar vs. State of Madhya Pradesh )

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Jabalpur, Dated 05.09.2018

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Shri R.B. Singh, learned counsel for the petitioner.

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Shri Naveen Dubey, learned Govt. Advocate for the respondents/State.

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With the consent, finally heard.

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This petition assails the order dated 13.4.2016 whereby application of petitioner preferred under Section 7(2) of Private Security Agencies (Regulation) Act, 2005 (for short 'the Act' ) is refused by the respondents. The petitioner has challenged the appellate order dated 6.8.2016 also on the ground that the competent authority has not gone through the appeal memo and the record and erroneously rejected the appeal.

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Learned counsel for the petitioner submits that petitioner filed requisite affidavit as mandated in sub-section (2) of Section 7 of the Act. The competent authority has erred in refusing the permission by order dated 13.4.2016. The order of refusal could not have been passed without giving reasonable opportunity of hearing to the petitioner as per clause (a) of subsection (4) of Section 7 of the said Act. Appellate authority has not applied its mind despite taking the said ground in appeal memo.

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Shri Naveen Dubey, learned Government Advocate supported the impugned order.

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No other ground is pressed by learned counsel for the parties.

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I have heard the learned counsel for the parties and

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(2)

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W.P. No.16484/2016

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perused the record.

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Before dealing with rival contentions, it is apposite to quote Section 7 of the said Act which reads as under:

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"7. Application for grant of licence.-(1) An application for grant of licence to a private security agency shall be made to the Controlling Authority in such form as may be prescribed.

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(2) The applicant shall submit an affidavit incorporating the details in relation to the provisions contained in Section 6, ensure the availability of the training for its private security guards and supervisors required under sub-section (2) of Section 9, fulfilment of conditions under Section 11 and of cases registered with police or pending in a Court of law involving the applicant.

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(3) Every application under sub-section (1) shall be accompanied by a fee of(a) rupees five thousand if the private security agency is operating in one district of a State; (b) rupees ten thousand if the agency is operating in more than one but up to five districts of a State; and

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(c) rupees twenty-five thousand if it is operating in the whole State.

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(4) On receipt of an application under subsection (1), the Controlling Authority may, after making such inquiries as it considers necessary and obtaining no objection certificate from the concerned police authority, by order in writing, either grant a licence or refuse to grant the same within a period of sixty days from the date of receipt of application with complete particulars and the prescribed fee:

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Privided that no order of refusal shall be

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made unless-

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(a) the applicant has been given a reasonable opportunity of being heard; and

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(b) the grounds on which licence is refused is mentioned in the order.

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(3)

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W.P. No.16484/2016

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(5) A licence granted under this section(a) shall be valid for a period of five years unless the same is cancelled under sub-section (1) of Section 13;

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(b) may be renewed from time to time after the expiry of five years, for a further period of five years on payment of such fee as may be prescribed; and

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(c) shall be subject to such conditions as may be prescribed."

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A plain reading of this provision makes it clear that the Controlling Authority was required to take a decision on the application for grant of licence within a period of 60 days from the date of receipt of application. If he intends to refuse the permission, as per clause (a) he is bound to give a reasonable opportunity to the applicant. Admittedly, in the presnet case, no such opportunity was granted by the competent authority before passing the order dated 13.4.2016 Annexure P/10. The appellate authority did not deal with the grounds of appeal and assigning reason as to why grounds raised in the appeal memo were not found trustworthy by the said authority. Thus, the Controlling Authority passed the order dehors the Clause (a) which makes the order vulnerable. Similarly, appellate authority passed the order without application of mind and without assigning reasons on the grounds raised. This hits the principles laid down by the Supreme Court in the case of M/s Kranti Associates Pvt. Ltd. and another vs. Masood Ahmed Khan and others . The relevant portion reads as under:

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"51. Summarizing the above discussion, this Court holds:

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a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

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(4)

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W.P. No.16484/2016

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b. A quasi-judicial authority must record reasons in support of its conclusions.

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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.

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d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

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e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

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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.

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g. Reasons facilitate the process of judicial review by superior Courts.

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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.

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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.

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j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a

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(5)

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W.P. No.16484/2016

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Judge or a quasi-judicial authority is not candid enough about his/her decision making process then M/S Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors on 8 September, 2010 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.

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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. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). 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. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

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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".

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The appellate order cannot sustain judicial scrutiny for want of adequate reasons for the conclusion drawn by appellate authority. Resultantly, the order dated 13.4.2016 and appellate order dated 6.8.2016 are set aside. The matter is remitted back before the Controlling Authority to reconsider the application

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(6)

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W.P. No.16484/2016

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of the petitioner and take decision in accordance with law expeditiously not later than 60 days from the date of communication of this order.

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Petition is allowed without expressing any opinion on the merits of the case.

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(Sujoy Paul) Judge

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YS/