It’s only in order, to have the orders speaking

Dr U. K. Pandey, Ex Group Gen. Manager & Head Corporate Vigilance

W
ritten communications have their own challenges and any piece of
writing especially in official context is expected to be communicating
the intent completely, correctly and effectively. This becomes even
more important when the subject pertains to administration of discipline in any
organisation owing to its sensitivity and legal undertones.
While drafting orders under disciplinary process it must be ensured that the orders
especially the final orders are speaking orders and are free from ambiguity or
vagueness. Speaking order may be defined as an order which contains not only the
conclusions and directions but also the reasons that have led to the conclusions. It
must not be confused with “oral orders” or “verbal directions”.
Normally, courts use to reserve judgments when the arguments are concluded and
the Judgments are delivered after some time lag because the court has to evaluate
the evidence received and the submissions made by the parties. Contrary to this,
the court may dictate orders in the court immediately on hearing the parties. Such
orders are known as “Oral orders”. Although these are called Oral Orders, they are
also reduced to writing and the copies of these orders are also supplied to the
parties in due course of time. On the other hand the Speaking Orders are self-
contained, cogent, reasoned and unambiguous orders.
Let’s try to understand the significance of ‘Speaking Orders’. Some of the major
advantages of speaking orders are -

 Disclosure guarantees consideration

 Introduces clarity
 Excludes or minimises arbitrariness
 Satisfaction of the party
 Enables appellate forum to exercise control
It must be understood that the ‘Speaking Order’ is not confined to disciplinary
proceedings. All orders having an impact on the employees are to be speaking
orders. For example, rejection of the request of an employee seeking stepping up
of pay on par with junior should be through speaking orders. Disposal of a
representation against a personnel matter should also be through speaking orders.
It needs no emphasis that orders passed in the course of disciplinary proceedings
have a far reaching impact on the employee because they relate not only to career
prospects and monetary issues but also have a bearing on the honour and
reputation of the employee concerned. Thus there are all the more stronger
reasons for passing reasoned orders while conducting disciplinary proceedings.
An illustrative list of instances when speaking orders are required to be issued in
the course of disciplinary proceedings is as under:-

 Deciding the request of Charged Officer on documents and witnesses

 Deciding on the request for change of Inquiring Authority
 Deciding on the request of the charged officer for engagement of legal
practitioner for the purpose of defence
 Deciding on the request for adjournment
 Disposal of allegation of bias
 Disposal of the appeal or review or revision application.
No doubt there are some areas where the decision is made based on the subjective
satisfaction of the authority concerned as in the instances where the rule
specifically and explicitly indicates in some areas that the authority may decide
“having regard to the circumstances of the case.
Even in areas of exercise of discretionary powers, the orders should indicate
application of mind. Besides, although some of the powers appear purely
discretionary, there are guidelines for exercise of such powers.
So, how to test whether an order is ‘Speaking’ or otherwise? In this regard two
important ingredients for a properly drafted order are:
a) There must be evidence of application of mind
b) Referring to, if not reproducing in the order, the submissions of the
applicant and the relevant rule position will normally be a clear indication
of application of mind.
To be more precise we can apply a test for the speaking orders - the ‘4-C Test’.
According to this test a ‘Speaking Order’ should necessarily incorporate the
following:
(i) Context: The order should narrate the background of the case. As has been
laid down in a number of court decisions, law is not to be applied in vacuum.
The circumstances that have caused the issue of the orders have to be
brought out clearly in the introductory portion of the order. For example, if
there is representation about incorrect pay fixation, the speaking order
disposing of the representation should narrate how the anomaly has crept in,
etc.
(ii) Contentions: Rival submissions, where applicable, must be brought out in the
order. For example the evidence led by presenting officer in support of the
charges and by the charged officer for refuting the charges. Needless to add
that there may be cases wherein submissions may be unilateral as is the case
of stepping up of pay, etc. Even in the course of disciplinary proceedings,
 there may be some instances wherein the concept of rival submission may not
apply as in the case of representation for change of Inquiring Authority or for
engagement of legal practitioner as defence assistant.
(iii) Consideration: The order should explicitly evaluate the submissions made by
the parties vis-à-vis each other and in the light of the relevant statutory
provisions. Each submission by the parties must be considered with a view to
decide about its acceptability or otherwise.
(iv) Conclusions: Outcome of the consideration is the ultimate purpose of the
order. It must be ensured that each conclusion arrived at in the order must
rest on facts and law.
Any of the above four ingredients missing from the order makes the order deficient
and incomplete. Thus, a balanced and complete order has to speak about the
above four aspects for being considered to be in speaking order.

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