0% found this document useful (0 votes)
18 views25 pages

Principle of Natural Justice

Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
18 views25 pages

Principle of Natural Justice

Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 25

ADMNISTRATIVE DISCRETION AND NATURAL JUSTICE

Today, the bulk of decisions relating to personal or property rights of the people come not
from the courts, but from administrative agencies exercising judicial power. The
administrative agencies are given wide discretionary powers for adjudication which
necessitates that initial conferment of discretionary power on them should not result in
arbitrariness and capricious or whimsical exercise of power, otherwise it will thwart the very
aim for which administrative bodies are empowered. There are many checks on the
administrative bodies to keep them within bounds, one of which is the observation of
Principles of Natural Justice. It is now well settled that principles of Natural Justice are
applicable to almost the whole range of administrative powers.
Principles of natural justice is an expression used for describing the criteria of fairness of
decision making by administrative authority, it represents the basis irreducible procedural
standard with which administrators are required to comply with.
Rules of Natural Justice have kept pace with the growth of civilization. It serves as a measure
of the level of civilization and Rule of law prevailing in the community. Natural Justice is a
concept of common law and is a common law counterpart of American due process of law.
Natural Justice is higher procedural principles developed by judges. It meant many things to
many writers, lawyers and systems of law. It is used inter- changeably with Divine law, jus
gentium and the common law of the nations.
Man has always looked to God against the excesses of organized power. The law of God or
divine law, to which all temporal law must confirm in the origin of the concept of natural
justice. It is the higher law of nature or natural law, where or under which different species
live together. It implies fairness, reasonableness, equity and equality. It is a flexible, pragmatic
and relative concept. Natural Justice’s content change according to situations and do not
apply in the same manner to totally different situations. They are immutable and can be
adopted, modified and excluded by statute, rules or Constitution except where such exclusion
is not charged with the vice of unreasonableness and consequential vividness.
Natural justice is a facet of secular law which by its spiritual touch enlivens legislation,
administration and adjudication to make fairness a creed of life. Applying its many colors and
forms, it protects the people from acts of authority except when valid law excludes it. It is
not a mystic treatment of Judge made law, but a base of healthy
government. From the days of Adam and Kautilya, the rule of law has had this stamp of
Natural Justice, which makes it social justice.
Natural Justice has a very wide general application in the numerous areas of discretionary
administrative power. It is always possible to require them to be exercised in fair manner.
In its broadest sense natural justice may mean simply, the natural sense of what is right and
wrong and even in the technical sense it is now equated with fairness. It has been said that
romantic word “natural” adds nothing except perhaps hint of nostalgia and that justice is far
from being a natural concept the close one goes to a state of nature, the less justice does he
find.
According to Lord Widgney, “the principles of natural justice were those fundamental
rules, the breach of which will prevent justice from being seen to be done.”
The term natural justice expresses the close relationship between the common law and moral
principles; and where natural justice is inapplicable, the fairness must be observed, so that the
vast power vested in the state or its authority is not misguided by extraneous or irrelevant
considerations.
CONTOURS OF NATURAL JUSTICE:
Natural Justice is an expression of English Common Law and involves a procedural
requirement of fairness. The doctrine of natural justice was initially applied to the “courts” in
respect of judicial functions and from the sphere it was extended to statutory authorities or
tribunals exercising “quasi- judicial” functions and afterwards to any administrative
authority—determining the functions of civil rights or obligations.
The concept of natural justice was developed and followed in ancient worlds of Greeks,
Romans and Indians. It was an indispensable doctrine, to be observed while delivering justice
by the kings. Its development continued through Medieval period, until upto 19th century,
when it suffered setback after the development of positivism in Europe and America, which
continued even after second world war.
The 20th century, was a period of revival of Natural Justice. A turning point came in 1963
with the decision of the House of Lords in Ridge v Baldwin . This marked an important
change of judicial policy, indicating that natural justice was resorted to favour and would be
applied on a wide basis. The dimensions of natural justice will alter as per the present
conditions and there will be “fair play in action” the citizen’s right to have his case properly
heard, before he suffers in some way under official rod.
English common law recognizes two principles of Natural Justice:
A. Nemo debet essee Judex in propria causa:
(No man shall be a judge in his own cause, or the deciding authority must not be partial; and
should be without bias)
B. Audi alteram partem:
(Hear the other side, or both the sides must be heard, or no man should be condemned unheard,
or that there must be fairness on the part of deciding authority.)
However, with the changing times, another dimension was added, which emerged as the third
dimension of natural justice.
C. Reasoned Decisions/ Speaking Orders
(Give reasons for the decision or the order must speak for itself.)
In England, in the 19th Century, the phrase come to be applied by the superior courts in
controlling the decisions of courts of summary jurisdiction and it was stressed that any court
of justice or judicial tribunal, whatever might be the procedure prescribed for it, must observe
these minimum safeguards for justice, failing which its decision would lose their judicial
character.
In United States, the expression “Natural Justice” as such, is not so frequently heard of; for, it
is not necessary to rely on common law, when “due process” is guaranteed by Constitution
whenever an individual ‘life’, liberty or property, is to be taken by stateaction. Due process is
a vague and undefined expression, the implication of which is not finally settled. The
Supreme Court has evolved two fold meanings to the dimensions of due process, i.e.,
substantive and procedural. The principles of natural justice were considered to be implied in
the procedural aspect of due process.
In India, the requirement to comply with the principles of natural justice has been deduced
from Articles 14 and 21 of the Constitution.
Thus, both in England and India, it has been held that there is no universal or uniformstandard
of natural justice applicable to all cases coming within the purview of the doctrine. The rules
of natural justice are not embodied rules and they cannot be imprisoned within the strait
jacket or of a rigid formula. The contents and the requirement of natural justice vary with the
varying constitution of different quasi- judicial bodies and their functions.
A. Nemo debet essee Judex in propria cause (Rule Against Bias):
One of the essential elements of judicial process is that an administrative authority acting in a
quasi-judicial manner should be impartial, fair and free from bias. Rule against bias is the
first principle of natural justice.
“Bias” generally implies “anything which tends or may be regarded as tending to cause such as
person to decide a case otherwise than on evidence.
In R.V. Great Nestue Rly Co. , Lord Cranworth laid down:
“A Judge ought to be and is supposed to be indifferent between the parties. He has or is
supposed to have no bias inducing him to learn to the one side rather than to the other. In
ordinary cases, it is just ground of exception to a judge that he is not indifferent and the fact that
he himself is a party or interested as a party affords the strongest proof that he cannot be
indifferent.”
In G. Sarna v University of Lucknow , the Supreme Court of India point out:
“One of the fundamental principles of natural justice is that in case of quasi-judicial
proceedings, the authority empowered to decide the dispute between opposing parties must be
one without bias, by which is meant an operative prejudice whether conscious or unconscious
towards one side or other in the dispute.”
This principle is based on three premises:
(a) No man shall be judge in his own case (Nemo judex in causa sua):
(b) Justice should not only be done, but manifestly and undoubtedly be seen to
have been done and;
(c) Judges like Caeser’s wife should be above suspicion.
The basic point which emerges out is that a judge must be impartial and must decide the case
objectively on the basis of the evidence on record. A person cannot take an objective decision
in a case in which he has an interest for that case.
The rule that “no one should be a judge in his case” is a wide application and means that a
judge or quasi judicial should not only be party but must not have an interest in the case
regarding the content of the dispute that has to be settled.
TYPES OF BIAS:
Bias may be:- (1)Pecuniary Bias; (2)Personal Bias, (3)Subject-matter Bias, and (4)Judicial
obstinacy
(1) PECUNIARY BIAS:
Any Financial interest, however small may be, would vitiate administrative action. Thus the
least pecuniary interest in the subject matter of the litigation will disqualify any person from
acting as a Judge, even though it is not proved that the decision i.e. in any way affected.
In Dr. Bonham’s case , Dr. Bonham, a doctor of Cambridge University was fined by the
College of Physicians for practicing in the city of London without the license of the
college. The statute, under which the college acted, provided that the fine should go half to
the king and half to the college. The claim was disallowed by Coke, C.J. as the college had a
financial interest in its own judgment and was a judge in its own cause.

In R. v. Hendon , the court struck down the resolution of a local authority sanctioning a
development scheme, on the ground that one of the councilors who had applied forpermission
to make the development as an estate agent, took part in the meeting where the resolution as
passed.
Dimes v. Grant Junction Canal , a public limited company filed a case against a land owner
in a matter largely involving the interest of the company. The Lord Chancellor who was a
shareholder in the company heard the case and gave to the company the relief it sought. His
decision was quashed by the House of Lords because of the pecuniary interest of Lord
Chancellor in the company. Lord Campbell in his opinion emphasized that while none could
suppose that the Lord Chancellor was at all influenced by his interest in the concern, it was
very important that the maxim, “no manis to be judge in his own cause” is to be held sacred.
Indian courts also invariable followed the decisions in Dimes case and other English cases.
In Vassailliadas v. Vassailliadas , referring to Dimes case, Privy Council observed: “The
simplest type of bias, is where the Judge is shown to have pecuniary interest inthe results of
the proceedings, there it will be held at once that he is disqualified, howsoever small the
interest and howsoever clear it may be that his mind could beaffected”.
In Jeejeebhoy v. Assistant Collector of Thane , Chief Justice Gajendragadkar reconstituted
the Bench on objection being taken on behalf of the interventions in the court on the ground
that the Chief Justice, who was a member of the Bench, was alsoa member of the Co-operative
Society for which the disputed land had been acquired.In Mahapatra & Co. v. State of Orissa ,
some of the members of the committee set up for selecting books for educational institutions
were themselves authors whose books were to be considered for selection. It was held by the
Supreme Court that the possibility of bias could not be ruled out. Madon, J. observed: “It is
not the actual bias in favour of the author member that is material, but the possibility of such
bias.”
(2) Personal Bias:
A Judge may have a personal bias towards a party owing to relationship and the like or may
be personally hostile to a party as a result of events happening either before
or during the trial. Whenever there is any allegation of personal bias, the question thatneeds to
be satisfied is ‘is there in the mind of the litigant a reasonable apprehension that he would not
get a fair trial.”
Though it is open to the party aggrieved to adduce evidence to show that the tribunal has
actually shown bias in favour of the other party, the reviewing court will interfere as soon as
it is established that there was “real likelihood of bias”
There should be a substantial probability of bias as illustrated in R.v. Reid, where it was laid
down that although any pecuniary interest, however small in the subject matter disqualifies a
justice from acting in a judicial inquiry, the mere possibility of bias in favour of one of the
parties does not ipso facto void the justice’s decisions. In order to have that effect the bias
must be shown at least to be real.
There are several causes, leading to personal bias. The principle would come into operation
whenever, there is real likelihood of bias. Some grounds of personal bias may be mentioned
as under:
(a) Personal Friendship; (b)Personal Hostility (c)Family relationship
(d)Professional or employment relationship (e)Employer and employee (f)Having
acted as a witness against the party aggrieved in the same inquiry
In Cottle v. Cottle , the Chairman of the bench was a friend of the wife’s family, who had
initiated matrimonial proceedings against her husband. The wife had told the husband that the
Chairman would decide the case in her favour. The Divisional Court ordered rehearing of the
case.
In R.v. Handley , magistrate was held to be disqualified from hearing a case filed against an
accused, who had beaten up the Magistrate.
In Ladies of Sacred Heart of Jesus v. Armstrong , the Chairman was the husband of an
executive office of a body which was a party before the Tribunal. The decision was set aside
on that ground.
In Metropolitan Properties Co. v. Lannon , the court held that Mr. Lannon was
disqualified from sitting as Chairman of a Rent Assessment Committee, because his father
was a tenant who had a case pending against that company, even though, it was
acknowledged that there was no actual bias and no want of good faith on the part of Mr.
Lannon. It was held that whether there was a real ‘likelihood’ of bias or not in a situation
should be ascertained with reference to right minded persons. The question of bias is thus to
be decided by the court not on the ground whether in the mind of the court, there was “real
likelihood” or bias or not but by applying the yardstick as to what
a reasonable man would think about the matter, whether he would suspect bias” in the
circumstances. Even when the court feel that there is no real likelihood of bias in the
circumstances of the case, the court may still quash a decision if right minded people would
suspect bias on the part of the adjudicator.
In India, the courts have also applied the same test as has been down in England in Lannon.
As in Manak Lal v. Prem Chand , a complaint alleging professional misconduct was filed
against Manak Lal, an advocate of Rajasthan High Court, by Prem Chand. The Bar Council
Tribunal appointed by the Chief Justice of the High court to enquire into the alleged
misconduct of Manak Lal, consisted of the Chairman and two other members. The Chairman
had earlier represented Prem Chand in a case. He was, however, a senior advocate and was
once the Advocate General of the Rajasthan High Court. The Supreme Court had no
hesitation in assuming that the Chairman had no personal contact with his client and did not
remember that he had appeared on his behalf in certain proceedings. The court was thus
satisfied there was no “real likelihood on bias” but still it held that the Chairman was
disqualified on the ground that “justice not only be done to litigating public, because actual
proof of prejudice was not necessary; reasonable ground from assuming the possibility of bias
was sufficient. The court emphasized that a judge should be able to act judicially, objectively
and without any bias.
In Mineral Development Limited v. State of Bihar , the Petitioner Company was ownedby Raja
Kamkashaya Narain Singh, who was lessee for 99 years of 3026 villages, situated in Bihar,
for purpose of exploiting mica. The Minister of Revenue acting under Bihar Mica Act
cancelled his license. The owner of the company, the Raja, had opposed the Minister in
general election of 1952 and the minister had filed a criminal case under section 500, IPC
against him and the case was transferred to a Magistratein Delhi. The act of cancellation by the
minister was held to be quasi-judicial act. Since the personal rivalry between the owner of the
company and the minister concerned was established, the cancellation order became vitiated
in law.
Strong personal hostility towards a party disqualifies a Judge or administrative authority from
adjudicating a dispute if it gives rise to a real likelihood of bias. As in Menglass Tea Estate v.
Workmen , a Manager himself conducted an inquiry againsta workman for the allegation that
he had beaten up the manager. It was held that theinquiry was vitiated.
In APSRTC, Hyderbad v. Satya Narain Transport (P) Ltd., Guntur , the order of
nationalization of Road Transport passed by the Minister under section 68-D(2) MotorVehicle
Act, 1939, was challenged by one of the petitioners, before the High Court onthe ground tat it
was actuated by personal bias and, therefore, vitiated in law. The pleataken by the owner of the
respondent company in the present appeal, was that the Minister had asked him to persuade
his five friends to vote for the minister in the education of A.P. Congress Committee and that
he told the Minister about his failure to persuade them so. He was told by the Minister that the
consequences of his failure would be unpalatable to him. It is this angry frame of mind that
the minister heard the objections against the order passed by him, and therefore, he was
disqualified from dealing with scheme under section 61-C(2) of the Act.
The cases involving rule against bias extends beyond courts of law. It must be remembered
that no one can act in judicial capacity if his previous conduct gives ground for believing that
he cannot act with an open mind. The board principle which is universally accepted is that a
person trying a cause even in quasi-judicial proceedings must only act fairly and must be able
to act above suspicion of unfairness.One of the most important pronouncement on this point is
A.K. Kraipak v. Union of India
. In this case the petitioners were candidates for the selection of some posts in the Indian
Forest Services. A special selection board was constituted under regulation 4 of the Indian
Forest Service (Initial Recruitment) Regulation, 1966 passed under rule 3 of the Indian Forest
Services (Recruitment) Rules 1966. One member of the board was himself a candidate for the
selection. Though he did not take part in deliberations of board at the time of his own
selection, he had taken part throughout while making selections of other candidates including
his rival candidates. The petitioner contented that the selection list prepared by such board
under Regulation 5 is vitiated and final recommendations made by the Union Public Service
Commission on its basis must also be vitiated, as there was reasonable likelihood of bias. The
Court upheld the contention of the petitioner and observed:
“Till very recently it was the opinion of the courts that unless the authority concerned was
required by the law under which it functioned to act judicially there was no room for the
application of the rules of Natural Justice. The validity of that limitation is now questioned. If
the purpose of the rules of natural justice is to prevent miscarriage of justice there is no
reason why these rules should be made inapplicable to
administrative inquiries. Arriving at just decision is the aim of both quasi-judicial inquiries as
well administrative inquiries. An unjust decision in an administrative inquiry may have more
for coaching effect than a decision in a quasi-judicial inquiry.”
In Kirti Deshmankar v. Union of India , the petitioner challenged the admission of a
candidate to the post –graduate medical course in Gynecology on the ground that her mother-
in-law participated in the entire deliberations of the admission committee and that of the
council, also to which the petitioner made a representation for cancellation of admission, but it
was rejected. The admission was held to be vitiated on account of its being of apprehended
bias.

In Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram Higher Secondary School
, the petitioner who was the principal of the school, was placed under suspension by the
Managing Committee of the said school and a charge sheet containing 12 chargeswas issued to
him. The school authorities appointed an Inquiry Committee consisting of three members of
which one member appeared as a witness in support of charge No.12 on behalf of the
management in the inquiry proceedings. The petitioner raised an objection for the inclusion of
the said member in the Inquiry Committee but that was over ruled by the Committee. The
Inquiry Committee found that the petitioner guilty on some charges including the said charge
no.12. The Managing Committee proposed to dismiss the petitioner from service on the basis
of the report of the Inquiry Committee percolates throughout inquiry proceedings. It was held
to be case of blatant violation of the rule against bias, the first cardinal principle of natural
justice.
In State of West Bengal v. Shivanand Pathak and others , the Supreme Court observed that
neither appeal can lie nor the appeal could be dismissed by the same judge, who had earlier
given the decision on some case. If the Judge do so, then he would be exhibitive on his bias in
his own favour to satisfy his egoistic judicial obstinacyand violates the rule of natural justice.
(3) Bias as subject matter (Official bias):-
Third type of bias is subject matter bias, which arises due to a general interest of the judge or
adjudicator in the subject matter. For this bias to operate, the adjudicating authority must
have a direct connection or interest with the subject matter. A mere general interest in the
general object to be pursued would not disqualify a judge from deciding the matter. An
adjudicator may have association as a member or otherwise in a private body, which may be
a party’ to dispute. Generally, these do not operate
as disqualification unless the adjudicator has intimately, identified himself with the issue in
question. As in an early English case R.v. Deal Justice ex-parte Curling a magistrate was a
subscriber to the Royal Society for the prevention of cruelty to animals. As he had no control
over any prosecution by the society, he was not disqualified from trying a charge of cruelty to
a horse brought by the society.
According to Griffith and Street “only rarely will this bias invalidate proceedings” .
Adjudication is part and parcel of Administrative bodies and they cannot be always supposed
to be neutral.
Administrators naturally have an interest, however remote in the matters concerning their
departments, and if some bias results from this remote connection, this can be tolerated. This
type of bias can be classified into four categories:
(a) Bias arising from partiality (b)Departmental Bias
(c)Prior utterances and pre-judgment of issue; and (d)Acting under dictation.
A judge may be disqualified if there is direct connection between the adjudicating authority
and issue in controversy. In State of U.P. v. Mohammad Nooh , a departmental inquiry was
held against Mohammed Nooh, a constable, by his superior officer. One of the witnesses
against Mohd Nooh turned hostile; and the officer left the inquiry and after giving evidence
against Nooh, resumed to complete enquiry and passed the order of dismissal. It was held that
the rules of natural justice were completely discarded and all commons of fair play were
grievously violated.
A mere “official” policy bias may not necessarily be held to disqualify an official from acting
as an adjudicator.
In Gullapalli Nageshwara Rao v. APSRTC (Gullapalli-1), the petitioners were carrying on
motor transport published a scheme for nationalization of motor transport in the state and
invited objections. The objections filed by the petitioners were received and heard by the
secretary and thereafter the scheme was approved by the Chief Minister. The Supreme Court
upheld the contention of the petitioners that the official who heard the objections was in
substance one of the parties to the dispute and hence the principles of natural justice were
violated.
But in Gullapalli-II , the Supreme Court qualified the application of the doctrine of the
official bias. Here the hearing was given by the Minister and not by the Secretary. The court
held the proceedings were not vitiated as the Secretary was a part of the department but the
Minister was only primarily responsible for the disposal of the business pertaining to the
department.
In Kondala Rao v. A.P. Transport Corp , the Minister of Transport head objections against
the scheme of nationalization of certain bus routes. The Minister a few days earlier had
presided over a meeting of the officials where the scheme of nationalization was decided. The
petitioner challenged the hearing on ground that the minister had a predetermined mind and
hence the hearing was vitiated in law. The court rejected theargument of policy bias and held
that if the authority concerned acts judicially in approving or modifying the scheme, the
approval or modification is not open to challenge. It was only a policy decision in the official
meeting and did not involve a pre- determination of the issue. The court observed:-
“It is true that the government on whom the duty to decide the dispute rests, in substantially a
part to the dispute but if the government or the authority to whom the power is delegated acts
judicially in approving or modifying the scheme, the approval or modification is not open to
challenge on the presumption of bias”

(4)Judicial obstinacy

There may also be a judicial bias, i.e. bias on account of judicial obstinacy.
In State of W.B. v. Shivananda Pathak, a writ of mandamus was sought by the petitioner
directing the government to promote him. A Single Judge allowed the petition ordering the
authorities to promote the petitioner "forthwith". But the order was set aside by the Division
Bench. After two years, a fresh petition was filed for payment of salary and other benefits in
the terms of the judgment of the Single Judge (which was reserved in appeal). It was
dismissed by the Single Judge. The order was challenged in appeal which was heard by a
Division Bench to which one Member was a judge who had allowed the earlier petition. The
appeal was allowed and certain reliefs were granted. The State approached the

Supreme Court. Allowing the appeal and setting aside the order, the Supreme Court described
the case of a new form of bias (judicial obstinacy). It said that it a judgment of a judge is set
aside by a superior court, the judge must submit to that judgment. He cannot rewrite
overruled judgment in the same or in collateral proceedings. The judgment of the higher court
binds not only to the parties to the proceedings but also to the judge who had rendered it.

Recently, in A.U. Kureshi v. High Court of Gujarat, one of the judges of the High Court
considered the so-called misconduct of a member of subordinate judiciary on administrative
side (disciplinary committee). He then decided the petition filed by the delinquent officer on
judicial side. It was held that there was reasonable apprehension of bias.
Test: Real likelihood of bias

A pecuniary interest, however small it may be, disqualifies a person acting as a judge. Other
interests, however, do not stand on the same footing. Here the test is whether there is a real
likelihood of bias in the judge.
Prof. De Smith's says, a "real likelihood" of bias means at least sub stantial possibility of bias.
Vaugham Williams LJs rightly says that the court will have to judge the matter "as a
reasonable man would judge of any matter in the conduct of his own business".
In the words of Lord Hewart CJ the answer to the question whether there was a real
likelihood of bias "depends not upon what actually was done but upon what might appear to
be done. Nothing is to be done which creates even a suspicion that there has been an
improper interference with the course of justice". As Lord Denning says, "The reason is plain
enough. Justice mun be rooted in confidence: and confidence is destroyed when right-minded
people go away thinking the judge was biased".

The same principle is accepted in India. In Manak Lal, a complain was filed by A against B,
an advocate for an alleged act of misconduct. A disciplinary committee was appointed to
make an enquiry into the allegations made against B. The Chairman had earlier represented A
in a case. The Supreme Court held that the enquiry was vitiated even if it were assumed that
the Chairman had no personal contact with his client and did not remember that he had
appeared on his behalf at any time in the past.
The court laid down the test in the following words:
In such cases the test is not whether in fact a bias has affected the judgment the test always is
and must be whether a litigant could reasonably apprehend that a bias attributable to a member
of the tribunal might have operated against him in the final decision of the tribunal.

As to the test of likelihood of bias what is relevant is reasonableness of the apprehension in


that regard in the mind of the party. The correct approach for the judge is not to look at his
own mind and ask himself, however honestly: "Am I biased?" but to look at the mind of the
party before him.
In nutshell one can say that the courts interpreted statutory provisions in such a way as to
exclude the operation of bias from adjudicatory proceedings, as far as possible.
B. Audi Alteram Partem (Right of fair hearing):-

Audi alteram partem means “hear the other side”. The fundamental requirement of fair
procedure is to hear the both sides. This is more for reaching of the principles of natural justice,
as it embraces every question of fair procedure or due process and its implications can be
worked out in great detail. It is also broad enough to include the rule against bias, since a fair
hearing must be an unbiased hearing.
The rule of audi alteram partem is not confined to the conduct of strictly legal tribunals, but is
applicable to every tribunal or body of persons invested with authority to adjudicate upon
matter involving civil consequences to individuals.
The concept of fair hearing originated from the very ancient times. It is as old as humanity.
Judicial declaration that a judicial tribunal “ought not to” or “must not condemn anyone
unheard” or “behind his back” have always been common. The objection to decide against a
party, not heard was an objection to jurisdiction.
It is a rule founded upon the first principles of natural justice, older than written Constitutions
that a citizen shall not be deprived of his life, liberty or property without an opportunity to be
heard, in defense of his rights and the constitutional provisos, that no person shall be deprived
of these rights without due process of law.

Ingredients of Hearing:-
Hearing has the following elements:

(a) Hearing should be impartial—The authority adjudicating must be unbiased. In the


words of Earl Selbourne—“It is the essence of judicial proceeding that the court or any other
authority must act honestly and impartially, or not under the dictation of otherperson or persons
to whom authority is not given by law”.
(b) Hearing should be founded on materials or evidence taken and recorded before both the
parties.The decision must be of authority whose duty it is to decide.
(c) CLASSIFICATIN OF HEARING:-
Hearing may be classified as:-
(a) Oral Hearing:- One who is entitled to be heard orally, must be given an adequate
opportunity of putting his own case. His right to hear should not be interrupted.
(b) Voluntary hearing:- Voluntary hearing is at the option of a body or authority which is
entitled to come to a decision without any prior hearing.
(c) Postponed hearing:- The opportunity to be heard may be given by the agency after it
acts, where only property rights are involved, mere postponement of the opportunity to be
heard is not a denial of due process.
Position in USA & U.K.:-
In the United States of America it is deemed to be an important aspect of the due process of
law clause, and has statutorily been made a necessary part of the administrative procedure
under the Administrative Procedure Act. In Britain the right of fair hearing flows from the
rules of common law and the requirements of natural justice. In the USA under the
Administrative Procedure Act the agency making the decision may not sit at the time of
hearing. The examiners may hear the party, and pass on the papers to the agency empowered
to make a decision. In England hearing may be done by an inspector, who after hearing a
complete, sends his report to the appropriate body or the Minister for decision, the party
concerned having a right to seethe report.
The Court took their stand several centuries ago on the broad principles that bodies entrusted
with, legal power could not validly exercise it without first hearing the person who was going
to suffer. One of the most remarkable illustration of the audi alteram partem principle is
Capel v. Child where the bishop had appointed a curate, at the vicar’s expense, to perform the
duties of the vicar whom the bishop considered to be negligent. The bishop did not call on the
vicar to make any defence and for this reasonthe court held the whole process to be void.
The same principle was followed in cases related to bodies such as societies and clubs. As in
Dawkins v. Antrobis , it was held to be an implied terms of each member’s contract of
membership that he could not expelled without a fair hearing. In Wood v. Wood , a member
of a mutual insurance society was purportedly expelled for suspicious conduct but without a
hearing. It was held that the expulsion was absolutely void, as he was still a member of the
society. It was laid down that this rule is not confined to the conduct of directly legal
tribunals, but is applicable to every tribunal or body of persons invested with authority of
adjudicate upon matters involving civil consequences to individuals.
Various administrative decisions by authorities, local and central, which stated in nineteenth
and twentieth century’s, opened a new dimension for the principles of natural justice.
In Cooper v. Wandsworth Board of works , under the regulations of the Act of 1855 it was
provided that one might not put up a building in London without giving seven days” notice to
the local board of works and that if one did so, the board might get the building demolished.
Builder nevertheless began to erect a house in Wandsworth without having given due notice
and when his building had reached the second story the board of works sent men late in the
evening who demolished it. The board did exactly whatthe Act said. They might do in exactly
the circumstances in which the Act said they might do it, and their action was purely
administrative. But the builder brought an action for damage, on the ground that the board had
no power to act without giving him a hearing.
Earle C.J. said that the Board of works ought to have given notice to the plaintiff and to have
allowed him to be heard. The default is sending notice to the board of the intention to build is
a default which may be explained. The party may have actually confirmed to the law. There
is no harm that could happen to the district board from hearing the party before they
subjected him to a loss so serious as the demolition of his house. But there are many
advantages which arise in the way of public order, in the way of doing substantial justice and
in the way of fulfilling the purposes of statute, by the restriction which is imposed and they
should hear the party before they inflict upon him such a heavy loss.
The legislative intended to give district board very large powers indeed. It has been argued
that the principle is limited to a judicial proceeding and a district board ordering a house to be
pulled down cannot be said to be doing a judicial act. But it has been held that the exercise of
the powers by a district board would be in the nature of judicialproceedings.
In Local Government Board v. Alridge , a public inquiry had been held on an appeal to the
local government board by the owner of a house against which the Hampstead Borough
Council had made a closing order on the ground that it was unfit for human habitation. The
owner made a complaint to the court that the board had dismissed his appeal without a fair
hearing because he was not allowed to appear before the officerwho made the decision and to
see the report of the inspector who held the inquiry. These complaints succeeded in the court
of Appeals but failed in the House of Lords. “Hearing” connote hearing by an impartial
tribunal, which must be unbiased. It is not always necessary to be a judicial tribunal. Hearing
by a tribunal, even if administrativeor advisory, wills stately the need of natural justice, if the
tribunal is impartial.
In Ridge v. Baldwin , Ridge, Chief Constable of Brighton, who was arrested in October 1957
and charged with conspiracy to obstruct the cause of justice. A few days later hewas suspended
from duty by the watch committee. In February 1958 he was acquitted at the old Bailey. In
March 1958 on a charge of corruption against Ridge no evidence was offered, but the judge
remarked on the need of the Brighton police force for a newand better leader. On his acquittal,
Ridge applied to be re-instated, but the watch committee on the next day decided that he had
been negligent in the discharge of his duty and dismissed him under purported exercise of
their powers under the Municipal Corporation Act 1882. Section 191(4) of the Act provided
that “The Watch Committee may at any time suspend and dismiss any constable unfit for the
same.” He pleaded that no specific charge was notified to him and was not given an
opportunity of being heard, but committee. The Solicitor gave no further particulars of the
case against Ridge and the committee resolved to adhere to their previous decision. The
Home Secretary dismissed Ridge’s appeal under the then existing police Acts and
Regulation. Ridge brought an action against Baldwin and other members of the Watch
Committee for a declaration that his dismissal was illegal, ultra-vires and void.
Justice Field Stread held that Watch Committee’s power of dismissal under the Municipal
Corporation Act, 1882, had to be exercised in accordance with the principles
of natural justice. A Chief constable who was dismissible only for cause was entitled to
notice of the charge and an opportunity to be heard before being dismissed.
Rule of Audi Alteram Partem in India:
The principle of fair hearing was very well ingrained in the ancient India which even went to
the extent of the penalizing the determining authority in the cases of unjust decision, and the
personal accountability of the determining authority was fixed where by the authority was
made to compensate, from his pocket, the individual and the exchequer. This principle
continued in the Mughal regime but was slightly veiled in the British period. After
Independence, the Constitution of India has given due recognition to the above stated
principle, by incorporating the Fundamental Rights.
Right of hearing becomes an important safeguard against any abuse, or arbitrary use of its
power by the administration. Hearing results in fair decision, as it reduces ignorance of
adjudicating authority. Hearing puts courts in a better position to review administrative
action. To give every citizen a fair hearing in just as much a canon of good legal procedure
and in Indian context, it has become one of important principle of regulation enforced by the
Indian Judiciary which has shown its efficacy in controlling deviance and has vigorously
emphasized on procedural safeguard.
The Judgment in Ridge v. Baldwin, decided by the House of Lords in England extensively
influenced the Indian Court in enlarging the areas of the rule. In State of Orissa v. Dr. Dina
Pani Dey , the petitioner was a lady doctor in government employment. She had stated her
date of birth as April 10, 1910 at the time of joining service. Later on the Government,
through some information, came to know that she misstated her date of birth and the real date
of birth was April 4, 1907. An inquiry was held to refix the date of birth and on the basis of
the report of the enquiry officer who held the later date of birth as correct one, order of
compulsory retirement was passed against her. She challenged the order of compulsory,
retirement as violative of the principles of natural justice. The Supreme Court upheld the
contention of the petitionerand the appeal was dismissed. It held that it is true that the order is
of administrative in character but even an administrative order which involves civil
consequences must be made consistently with the rules of natural justice. The respondent
should be givenevery opportunity to adduce all evidence in support of her case.
In Board of High School v. Ghanshyam , the respondent was caught in the examination hall
using unfair-means in an examination. The matter was reported to the examination
committee for action. The result of the respondent was cancelled and he was debarred from
appearing in the next three year’s examination. No opportunity was given to respondent to
rebut the allegations against him. The Supreme Court held that the function discharged by the
committee was quasi-judicial and the principles of natural justice which requires that the
other party must be head, will apply to the proceedings before the committee. Since no
opportunity whatever was given to the respondent to give an explanation and present his case
before the committee, the decision of the committee cancelling the result and debarring him
from appearing at the next examination is vitiated in law.
In Mahabir Motor Co. v. Bihar , it was held that a power which is quasi-judicial in naturehas to
be exercised in accordance with the established principles of natural justice. In Son Pal Gupta
v. The University of Agra , the petitioner, a student of Agra University during examination
was caught by the invigilator copying from a chit. The invigilator took possession of the chit
and asked the petitioner to give explanation, which the petitioner declined to do. The
invigilator sent his report to the University, which in its turn called for a report from the
examiner of the answer paper. He reported that the petitioner appeared to have copied from
the chit. The papers were laid before the vice-chancellor, who without giving an opportunity to
the petitioner, passed order, withholding the result of the petitioner and debarring him from
appearing for examination for a period of one year. It was contended that the petitioner was
not allowed the right to present his case. The university contented that the right of hearing was
given to him when the chit was recovered from him but he declined to give his statement.
The High Court observed that the effective hearing warranted was denied to the petitioner as
invigilators report or examiner’s report was not made available to him. Quashing the order of
vice-chancellor, it was held that natural justice demands that Vice-Chancellor should have
heard the petitioner before passing the order.
In Chittra Srivastava v. Board of High School and Intermediate Examination U.P , the
appellant was a student of the Vasant girls Intermediate College, Varanasi in 1959-60 session.
She appeared at the intermediate examination from that institution and failedin 1960. She then
joined the Government intermediate college for Girls, Jaunpur, where she was admitted in
intermediate examination. Her result was not declared because of shortage of attendance,
which was condoned by the Principal of the college but not recognized as proper by the
Board.
Court held that the Board of High School in U.P. and the Chairman of the Board act quasi-
judicially in considering the cases either by using unfair means or securing undue admission
to an examination. Before passing an order of cancelling the examination of refusing to
declare the result of a student admitted to the examination though short of prescribed
attendance, the Board or the Chairman has to give an opportunity to the student concerned for
an explanation. Denial of such an opportunitycontravenes principles of natural justice.
In Suresh K. George v. University of Kerala , the appellant was a student in the 1st year
Degree Course of the Five Year Integrated Course of Engineer in the Engineering College,
Trichur, under Kerala University. The Vice-Chancellor of the University claimed that he was
guilty of malpractice during the examination and passed an order of debarment of the
appellant.
The appellant appeared in paper of Mathematics which was valued by the Additional
Examiner awarding the appellant 14% marks, but the Chief Examiner awarded sum 64% in
that paper. The Chairman of the Board of Examination noticing the unusual feature reported
the matter to the Board of Examiners in Mathematics. The Board reported the matter to the
University which called for answer book of appellant and same were handed over to the
Dean, Faculty of Science. The Dean suggested to the University that a high powered
committee should be constituted to go into the matter. Accordingly, a committee was
constituted which examined the Additional Examiner, the Chief Examiner and the appellant
and found the appellant guilty of malpractice, and order of debarment was passed. The
appellant challenged the order in the High Court, which was set aside by Single Judge of the
High Court but his decision was reversed in appeal by the Division Bench. Against the
judgment of Division Bench, theappellant appealed to Supreme Court.
Hedge, J. opined that in dealing with petitions of this type, it is necessary to bear in mind that
educational institutions like the universities set up enquiry committee to dealwith the problems
posed by the adoption of unfair means by candidate. In this matter, direct evidence maynot
sometimes be available and the question will have to be considered in the light of
probabilities and circumstantial evidence. Enquiries held by domestic Tribunals in such cases
must provide opportunities to defend themselves. It was held that it could not be contended
that there was any breach by the Principe of Natural Justice if, the Vice-Chancellor did not
make available to the student a copy of
the report submitted by the Enquiry Officer particularly when the examinee had not asked for
it.
The Supreme Court observed that the examinee had not asked for the report and therefore, by
not giving it, no breach of the rules of Natural Justice was caused.
In the case of Hira Nath Mishra v. Rajendra Medical College, Ranchi , the facts were as
under;
One night between 10th and 11th June, 1972 some male students of college were found
sitting on the compound wall of the girls hostel’s compound without having clothes on them.
They went near the windows of the rooms of some of the girls and tried to pull the hand of
one of the girl. Five of these boys climbed up long the drain pipes to the terrace of the girls
hostel where girls were studying. On seeing them the girls raised alarm and the students fled
away. The girls recognized four out of five malemembers and complained to the Principal. An
enquiry was held by three members of the staff. The four students were directed to present
themselves before the Enquiry Committee. The students were called one after the other and the
contents of complaint were explained to them but the names of the girls’ student were not
disclosed. The boys however denied having trespassed into girls’ hostel or having
misbehaved with them.
After making necessary enquiry it was found by the Committee that the students wereguilty of
gross mis-conduct and they recommended deterrent punishment and that they may be
expelled from the college for a minimum period of two calendar years. The Principal directed
them to vacate the hostel within 24 hours. Against the order one of the accused filed a writ
petition in the High Court. The chief contention was that rules of Natural Justice had not been
followed before the order was passed against them expelling them from the college. They
submitted that the enquiry had been held behind their back, the witnesses who gave evidence
against them were not examined in their presence, there was no opportunity to cross examine
the witnesses and the committee’s report was not made available to them and so the order
passed by the Principal acting on the report was illegal. The High Court dismissed the
petition. Against the judgment of High Court, an appeal was filed in the Supreme Court.
The Apex Court opined that Principles of Natural Justice are not inflexible and may differ in
different circumstances. During a proper enquiry about the matter of incident behavior with
the girls the rules of Natural Justice does not require that statement of girls students should be
recorded in presence of the male students because it would
have been unsafe for the girls as boys would take revenge afterwards. Ultimately, thestudents
definitely named by the girls were informed about the complaint against them.They were given
an opportunity to state their case, meticulously by the enquiry committee. In such exceptional
situations the normal judicial procedure cannot be applied.
From the above case, it is clear that any administrative agency may inform its mind in any
manner it thinks best. It may take official notice of certain things and may make off the
record consultation, but fairness demands that the person must be apprised ofall these matters
if these form the basis of the agency’s decision.
In Chairman Board of Mining Examination and Chief Inspector of Mines v. Ramjee , there
was an accident which resulted in an injury to a worker in a coal mine and the Regional
Inspector after holding the enquiry recommended to the Board for cancellation of certificate
of the shot firer the respondent, as he had wrongly entrusted to work to an unauthorized person
for firing the shots and thus holding him responsible. Regional Inspector provided an
opportunity for explanation to the respondent and forwarded the report to the Board. The
Board cancelled the certificate the respondent filed a writ petition in the High Court which
quashed the order of cancellation on the ground that procedure prescribed in Regulation 26
under the Mines Act mandates that the person must be suspended and then a report is to be
sent to the Board.Disagreeing with the arguments of the High Court it was pointed out by the
Supreme Court that the order of cancellation of certificate by the Board cannot be quashed on
the ground of absence of suspension by the Regional Inspector, as the difference between
suspension on an enquiry predicates a prior prima-facie finding of guilt to make that known
to the Board implicitly conveys a recommendation.
In Jawahar Lal Nehru University v. B.S. Narwal the respondent B.S. Narwal was admitted in
J.N.U to the five years M.A. Course in Russian Language, the “core courses” had necessarily
to be those concerned with Russian languages, literature and translation. In the first two
semesters, he failed to take the sessional tests in any of the ‘Core Courses’ in Russian and he
was not allowed to sit for the end semester examinations. He thus failed to clear many of the
core courses in the first two semesters as well as in either semester. The centre of Russian
studies was dissatisfied with the performance of the respondent and some other students; and
the centre decided to recommend to the Board of studies that seven students including the
respondent should be struck off from the rolls of the university for “unsatisfactory
performance” and with the result they were removed from the rolls of the University for
unsatisfactory performance as recommended by the centre.
Respondent filed a writ petition in Delhi High Court challenging the order of removal on the
ground of violation of Natural Justice. The court quashed the order and directed the University
to re-admit him.
His Lordship observed that when a duly qualified and Competent Academic Authorities
examine and assess the work of a student over a period of time and declare his work to be
unsatisfactory, when the question of right to be heard does not arise. The duty of an academic
body is such a case is to form an unbiased assessment of the student’sstandard of work based on
the entirely of his record and potential. In the absence of allegations of bias or malafide, the
declaration by an academic body that a student in academic performance is unsatisfactory is
not liable to be questioned in a court on theground that the student was given an opportunity of
being heard. It was observed thatsince the respondent had not cleared any of the core courses
in the first three semesters, he cannot complain that his performance has been declared
unsatisfactoryarbitrarily.
In K.C. Joshi v. Union of India , the petitioner was a store keeper in ONGC on regular basis
and was protected workman under Section 33(4) of IDA, 1947. He was an active worker of
trade union. He was removed from service on the ground of his unsatisfactory work and also
informed of unsuitability without an inquiry in accordance with principles of natural justice. It
was found that the charge of non-suitability was either cooked up or conjured up for a
collateral purpose of doing away with the service of an active trade member who because of
his activities became an eye sore. It was held that termination was illegal for want of
observance of Natural Justice.
In State of Maharashtra v. J.P. Kalpatri , the State of Maharashtra lodge prosecution against
the respondents under the Prevention of Corruption Act for the possession of assets
disproportionate to the income of the respondents. It was contended by the respondents that
before the registration of the case, the opportunity of hearing should be provided to the
respondents. On the basis of this comment the High Court of Bombay set aside the order of
the special judge and inferred malafide on the part of the Government. The state of
Maharashtra filed an appeal by special leave, against the judgment of a single judge of High
Court.
Kirpal, J., opined that Section 5 of the Act speaks of the opportunity of hearing being
provided to the accused before the trial court and not before the registration of the
case as opined by his Lordship of Bombay High Court. Moreover, the Government before the
registration of the case applies its mind establishing a prima-facie case for prosecution. The
order of section is only an administrative Act and not a quasi-judicial act; and moreover there
is no lis involved. Henceforth, the denial of opportunity of hearing at a pre trial stage will not
vitiate the order of sanction passed by the Government nor it suffers from any malafide.
In V.P. Ahuja v. State of Punjab , the Supreme Court held that a probationer, or a temporary
servant is also entitled to certain protection and his services cannot be terminated arbitrarily,
nor can the services be terminated in a punitive manner without complying with the principles
of natural justice.
In Kumaon Mandal Vikas Nigam Ltd., v. Girija Shanker Pant , the Managing Director
Tourism passed an order withdrawing the duties of respondent, General Manager, including
the financial and administrative powers of respondent. A show case notice containing 13
allegations was served on respondent. In order to tender a reply to the show cause notice, the
respondent demanded copies of document which were not made available. An enquiry officer
was appointed before explanation on the show case notice was received from the respondent.
The enquiry officer initiated examination of the records and admittedly without giving any
notice to the respondent and without fixation of any date or time or venue for the inquiry or
for purported consideration of so—called reply of the respondent; and the inquiry officer
proceeded to complete the inquiry. Copy of the inquiry report was sent to the respondent with
a request to give a reply positively on the very next day. The respondent was directed to
produce his defence on the same day without permission to summon his defence witnesses
and subsequently personal hearing was offered by the Managing Director and within hour of
the personal hearing an order was passed dismissing the respondent from service.
Banerjee, J., pointed out that one golden rule that stands firmly established is that the doctrine
of Natural Justice is not only to secure justice but to prevent miscarriage of justice. It is a
fundamental requirement of law that the doctrine of natural justice be complied with and it
has turned out to be an integral part of administrative jurisprudence of this country. The
judicial process embraces a fair and reasonable opportunity to defend. In a departmental
proceeding the disciplinary authority is the departmental judge of facts and the High Court
may not interfere with the factual findings but the availability of judicial review in case of
departmental proceedings cannot be doubted. The person concerned should have a
reasonable opportunity of
presenting his case and the administrative authority should act fairly, impartially and
reasonably.
In State Financial Corporation v. M/s Jagdamba Oil Mills , the proprietor of the concern
applies to the corporation for grant of loan which was sanctioned and the loan was to be
repaid to be counted from the date of execution of the mortgage deed the repayment
of loan was to be made in 15 half yearly installments. The respondents was also required to pay
interest due along with the installments the respondent time and again requested to
rescheduling the installment which was done by the corporation but yet he defaulted in
making the payment of the said installment. The corporation seized the unit of the respondent
who challenged the order which was decreed by the Trial Court and the order of Trial Court
was affirmed by the appellate courts. The Haryana State Financial Corporation assailed the
judgment of the Punjab and HaryanaHigh Court.
The Apex court held that the obligation to act fairly on the part of the administrative
authorities was evolved to ensure the rule of law and to prevent failure of justice. Thisdoctrine
is complementary to the principles of natural justice which the quasi judicial authorities are
bound to observe, and the courts should interfere only when the action of the administrative
authority is so unfair or unreasonable that no reasonable personwould have taken that action.
It was observed that the fairness cannot be one way street and it cannot be carried tothe extent
of disabling the corporation to recover the amount due from the debtors where the borrowers
has no genuine intention to repay and adopts pretexts and ploys to avoid payment, he cannot
make the grievance that corporation was not acting fairly. From the discussion of the above
case laws, it become apparent that judiciary in Indiahas been able to keep executive within the
parameters of good governance. The judicial delineation imposing a control on the execution
action reflects that the authorityempowered to decide a matter, adversely affecting the right of
the individuals by its order in under a duty to impart fair hearing to the person.

C. Reasoned Decisions/ Speaking Orders


Both the terms refer to the same point that the administrative authorities must give reasons for
the decisions. The importance of the reasons in the decision making is that it brings fairness
in action and moreover it is helpful in determining whether the authorities have applied their
mind to the particular case or not. Therefore it rules out the mechanical and clandestine
application of the powers; and brings forth the regular,
fair and objective exercise of power. Nevertheless it is helpful for the senior authoritiesto infer
the proprietary of the exercise of the decision making power.
In England the Frank’s committee recommended the regular use of reasoned orders;and in the
similar tones the Administrative Procedure Act of America prescribes for it when it lays down
that the administrative decisions to be accompanied by findings and conclusions, as well as the
reasons or basis there for.
In M.P. Industries v. Union of India , the apex court laid down that the least a tribunal can do
is to expose it’s mind…the condition to give reasons minimizes arbitrariness; it gives
satisfaction to the adversary; and it enables an appellate or superior court to keep the tribunal
within bounds.
In Mahabir Prasad v. State of M.P ., the court opined that the appeal becomes a nugatory or
empty formality if the adjudicatory bodies do not give reasons for the decisions.
Reasons are the links between the materials on which the conclusions are based and the actual
conclusions. They disclose how the mind is applied to the subject matter for the decision,
whether it is purely administrative or quasi-judicial. They should reveal aclose nexus between
the facts considered and the conclusions reached.
The courts in India have widened the concept of natural justice. Where the statute is silent as
to the procedure to be followed, the executive must gave a right to representation. The
Principles of Natural Justice are flexible and cannot be embodied in a straight-jacketed
formula, it’s applicability vary with varying situations bodies andcircumstances.
When action of executive is arbitrary, malafide then Natural Justice will be called into play.
Generally fair hearing and right to cross-examination is accorded to the party, but it is not
essential to accord fair hearing at every stage.
In modern times, the importance of Natural Justice has increased tremendously. It ensures fair
administrative procedure and the protection of interests of individuals. Principles of Natural
Justice put a rein on the unruly horse of executive and make it in line of procedural fairness.
These rules of procedural fairness have become integral part of administrative process and the
expectations of good decision in administration have brightened.

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy