FAIR HEARING :

RULES OF NATURAL JUSTICE

 Hearing must be fair and is necessary to avoid arbitrariness.
 In England, courts consider the rules of natural justice as perquisites to the procedure, which
all decision-making authorities ought to observe. Not only public bodies but also private
bodies like clubs are required to act according to these rules before acting against their
members. These rules are considered implicit even in a contract between private parties.
 The HOUSE OF LORDS held in RIDGE V. BALDWIN 1964 AC 40 that the services of a constable
could not be terminated without giving him a hearing.
 In the US, they are regarded to be part of the guarantee contained in the due process of law
of the fifth and fourteenth amendments.
 In india they are considered implicit in the following constitutional provisions: art.
14,19,21,22,300A &311(2)
a. The right to equality before the law and equal protection of law, guaranteed by art. 14
forbids arbitrariness. Conformity with the rules of natural justice is considered essential
for avoiding the charge of arbitrariness.
b. 6 freedoms
Freedom of speech and expression
Freedom of assembly
Freedom of association
Freedom of movement
Freedom to reside and settle in any part of the territory of india
Freedom to practice any profession or to carry on any occupation, trade or business
Are subject to reasonable restriction in the interest mentioned in cll 2-6 of art. 19. While
determining the reasonableness of the restrictions, whether they are imposed after a fair
hearing, is an important criterion.
c. Art. 21 of the consitutiton says that no person shall be deprived of her life or liberty,
except according to procedure established by law. The SC has held that procedure
established by law mean fair and just procedure. Such procedure is bound to include a
fair hearing.
d. Art. 22 provides procedure for arrest and detention of a person. Such a person must be
informed, as soon as possible, of the grounds for the arrest, she must not be denied the
right to consult and be defended by a legal practitioner of her choice, and she must be
produced before the nearest magistrate within 24 hours from the time of her arrest.
However if she is detained under a law of preventive detention, grounds of such
detention must be communited to her, so as to enable her to make representation
against such detention.
e. No person shall be deprived of her property except by authority of law-art. 300A.
authority of law means such authority of law that provides for a fair procedure.
f. ARTICLE 311(2) says that no person who is a member of a civil service under the union
govt. or a state govt. shall be dismissed or removed or reduced in rank except after an
inquiry in which she is informed of the charges against her and is given a reasonable
opportunity of being heard in respect of those charges. Those do not constitute an
 exhaustive list of situtations where the rules of natural justice come into play. They are
attracted whenever it is necessary to take a decision that may adversely affect a person.

If the statute is silent on the need for a hearing, the court decides whether even in the absence of an
explicit provision for hearing, a hearing is necessary.

PRINCIPLES OF NATURAL JUSTICE AS PARAMETERS OF FAIRNESS

Hearing means giving an opportunity to a person against whom an adverse action is propose to be
taken to say why it should not be so taken.

a) The person must be given a notice as to what is proposed to be done against her and why. It
should be possible for her to put forth her say either orally or in writing,
b) She should be able to cross- examine the witness
c) Who might have testified against her, and should be able to contradict the allegations against
her through such evidence as may be necessary.
d) In order to be able to do so she must have access to such documents as might have been
used against her.

In administrative proceedings, where the rules of procedure and evidence applicable to judicial
proceedings are not entirely applicable, the rule of natural justice constitute the irreducible
minimum procedure that must be observed.

The principles of natural justice is an expression used for describing the criteria of procedural fairness
of the administrative process.

One more rule of procedural fairness is that the actions must be accompanied by reasons. A
reasoned decision not only negates arbitrariness but also facilitates judicial review of administrative
action.

NATURAL JUSTICE: NO RIGIT MOULD- FLEXIBILITY

Chinnappa reddy j observed in SWADESHI COTTON MILLS V. INDIA 1981

Natural justice like ultra vires and public policy, is a branch of the public law and is formidable
weapon, which can be wielded to secure justice to the citizen. While it may be used to protect
certain fundamental liberties-civil and political rights- it may be used, as indeed it is used more often
than not, to protect vested interests and to obstruct the path of progressive change.

MANEKA GANDHI V. INDIA 1978- natural justice cannot be petrified or fitted into rigid moulds.

CANARA BANK V. DEBASIS DAS 2003 4 SCC 557- what particular rule of natural justice should be
implied and what its context should be in a given case must depend to a great extent on the facts
and circumstances of that case.

HIRANATH MISHRA V. PRINCIPAL, RAJENDRA MEDICAL COLLEGE, AIR 1973 SC 1260- THE SC came
across an unusal situation, which demanded a highly particularistic approach. There were complaints
that molestation of some girl students had taken place. The police could not be called because of an
investigation had been started, the female students would not have cooperated out of sheer fright
and fear of harm to their reputation. For similar reasons, a regular tribunal could not be setup
because the girls would have been afraid of giving evidence. Therefore, the principal of the college
appointed an inquiry committee of three independent members of the staff. The committee called
the girls privately and recorded their statements. Thereafter, the students named by them were
called. The complaints against them were explained to them. The written charge was handed over
and they were asked to give their statements in writing. The committee, after considering these
statements, made a report. The validity of the action against the concerned students was challenged
on the ground that the girls were not examined in the presence of the students, and that a copy of
the report of the committee had not been given to them. The court held that under the
circumstances of the present case the requirements of natural justice were fulfilled. The court ruled
that the procedure adopted by the college authorities was right and it was the only way of
providing a just and reasonable inquiry. Without exposing the women students to harassment.

FAIR HEARING: BASIC POSTULATES

1. NEMO JUDEX IN CAUSA SUA- which means that an adjudicator be disinterested and
unbiased
2. AUDI ALTERM PARTEM- which means that the parties be given adequate notice and
opportunity to be heard.

These are two are required to make an action fair. They are applicable to quasi-judicial actions but
sometimes they are applicable even to purely administrative action.

NEMO JUDEX IN CAUSA SUA: INTEREST OR BIAS

Judicial process: impartiality:

In the case of a judicial body , the independence and impartiality of a judge is an absolute condition.
The purpose behind this principle is that public confidence in the impartiality of a judicial body must
never weaken because that is its real strength.

Courts are also required not to decide against a person without giving her an opportunity of being
heard. NATIONAL CENTRAL CO-OPERATIVE BANK LTD., V. AJAY KUMAR AIR 1994 SC 39- Where an
employee , whose services had been terminated by a govt. department, approached the HC through
a writ petition. The order of HC reinstating him without giving notice to the department, was
considered improper.

DOCTRINE OF BIAS EXTENDED TO ADMINISTRATIVE ACTION:

The principle of impartiality of a judge is extended even to administrative authorities that take
decisions affecting the rights or interests of persons. The fundamental principle of common law that
no person should be judge in her own cause was laid down by LORD COKE IN Dr. bonham case. The
justice should not only be done but must manifestly and undoubtedly seem to be done. The ground
of bias applies not only to quasi-judicial authorities but also to administrative authorities. This was
laid down by SC in AK KRAIPAK V. INDIA. It normally does not apply to those performing either
legislative or administrative functions.

It may not apply where the exercise of discretion is involved in administrative decision making. Such
decisions can be challenged on the ground of unreasonableness, arbitrariness, mala fide exercise of
power or use of irrelevant factors or non-use of relevant factors.

However, administrative decisions, which result in deprivation of a right or which adversely affect an
interest, have to be in conformity with the principles of natural justice.
How much and what kind of interest disqualifies a person is determined by applying a test called the
test of reasonable likelihood.

REAL LIKELIHOOD OF BIAS:

Bias may arise due to pecuniary interest or personal interest. Pecuniary interest, however small,
must disqualify a judge from being a member of a tribunal. Personal bias may arise out of blood
relations or martial relations, or friendship or hostility.

For the purpose of bias, it is necessary to prove that there is a real likelihood of bias. It Is the public
and objective perception of bias rather than actual bias that disqualifies a person from deciding a
matter.

The reasonable likelihood test was applied by the SC in AK KRAIPAK V. INDIA. The facts of this case
and the main objections taken by the court to the selections made by the selection committee for
promotion of state forest officers to the ALL-INDIA CADRE OF FOREST SERVICE. Naquishbund, who
was the acting Chief Conservator of forests, was ex-officio member fo the selection committee and
was himself selected for the all India service. The court conceded that he did not participate in the
deliberations of the committee when his name was considered. However, in the courts view the very
fact that he was a member of the selection committee must have had its impact on the decision of
the selection board. The court observed:

It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there
is reasonable ground for believing that he was likely to have been biased a mere suspicion of bias is
not sufficient. There must be a reasonable likelihood of bias.

The court held that there was in this case a reasonable likelihood that naquishbunds presence would
influence the selection board in his favour and against his rivals. Therefore, the selections were
quashed.

Reasonable likelihood of bias is intended to strike a balance between protecting confidence in

impartial decision making and discouraging fanciful and unmeritorious allegations of bias.

It is also important to note that this rule is not confined to cases where judicial powers stricto sensu
is exercised. It is appropriately extended to all cases where an independent mind has to be applied to
arrive at a fair and just decision between the rival claims of parties.

RATAN LAL SHARMA V. MANAGING COMMITTEE 1993- the test of bias is whether a reasonable
intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias.

TATA CELLULAR V. INDIA 1994 6 SCC 651- the son of a member of the govt. tender evaluation
committee was an officer in a company, whose tender had been accepted by the govt. it was held
that since the father had been merely a recommending authority and not a decision -making
authority, the acceptance of the tender of that company could not be faulted on the ground of bias.

The allegation of personal bias was successfully made in APSRT CORPORATION

V.SATYANARAYANANA TRANSPORT PVT. LTD. GUNTUR.

AHMAD SALEEM KHAN V. VC ALIGARH MUSLIM UNIVERSITY AIR 1982- It was held that where a
student had been charge sheeted on the basis of the reports of a number of teachers relating to
various incidents enumerated in the charge-sheet, the decision taken against him by a disciplinary
committee comprising of teacher other than those who had reported against him, was not vitiated
by bias.
DOCTRINE OF NECESSITY- where bias is apparent but the same persons who is likely to be biased has
to decide, because of the statutory requirements or the exclusiveness of a competent authority to
decide, the courts allow such person to decide.

ASHOK KUMAR YADAV V. HARAYANA AIR 1987

Which has been discussed above, the court held that a member of the public service commission
could not entirely disassociate himself from the process of selection just because a few candidates
were related to him. He should disassociate himself with the selection of the persons who are
related to him, but need not disassociate with the selection of other candidates. Though his being on
a selection committee could create a likelihood of bias in favour of his relations yet, since the public
service commission is a constitutional authority, such a member cannot be entirely excluded from its
work.

INSTITUTE OF CHARTERED ACCOUNTANTS V. DL RATNA AIR 1987 SC 71- the court did conclude that
the president and vice-president of the institute need not be required to sit on a disciplinar
committee as well as the governing council. The court, therefore, asked the govt. to get the law
amended so that they were not obliged to sit on both the bodies. Here, the doctrine of necessity, it is
essential to show that despite the bias, the person objected to has to decide that matter because no
one else could decide it.

ELECTION COMMISSION OF INID A V. SUBRAMANINAM SWAY 1996 4 SCC 104- we must have a clear
conception of the doctrine of absolute necessity. It is well settled that the law permits certain things
to be done as a matter of necessity which it would otherwise not countenance on the touchstone of
judicial propriety.. it is often invoked in cases of bias where there is no other authority to judge or
decide the issue.

MARY TERESA DIAS V. ACTING CHIEF JUSTICE AIR 1985 KER 245

A Committee of twelve judges of the High Court of Kerala participated in a meeting to select
candidates for appoint as district judges. A female candidate who was not selected, impugned the
validity of the selections in a writ candidates petition before the Kerala High Court. The matter came
up before a Bench of three judges who were among those twelve who had been on the committee
for selection. The petitioner contended that the judges who had participated in the selection ought
not to sit on the bench to hear the writ petition against the very selection. The Kerala High Court
rejected this contention on various grounds, viz:

the selection made by the committee was an administrative function of the High Court, and the
judges had participated in it and taken a decision, which was institutional, and not personal;

(i) the High Court could not be said to have been prejudiced just because they had not selected any
particular candidate;

(ii) when the High Court recommended selection of candidates for judicial posts and it was
challenged, it was bound to consider validity of such selection as being necessary (ex necessitate).

OFFICIAL BIAS:

ENGLISH LAW:
The most impersonal kind of bias is official bias. The committee on ministers powers has stated that
bias from strong and sincere conviction as to public policy may operate as more serious
disqualification than pecuniary interest.

While considering the assignment of judicial functions to a minister, the parliament should keep
clearly in view the maxim that no man is to be judge in a cause in which he has an interest.

The frank committee in 1957 was inclined to adopt a more flexible and sophisticated approach to
such problems. It did not mean that a person aggrieved by the decision of a minister acting as an
appellate or confirmatory authority could have the decision set aside by courts merely because the
minister had approached the issue with a desire that the decision should go on way rather than
another.

The English law is that if an objector seeks to impugn a ministers action for bias because she has
initiated the project under consideration, the court will not countenance it, unless the objector
shows that the minister has acted in bad faith or for an improper purpose.

The franks committee – there should be separation of the inspectors who give hearing from the
department, which initiates a scheme. The committee seemed to favour the internal separation
system, as it prevailed in the US.

The committee recommended that the inspectors could be placed under the control of a minister
but the minister should not be directly concerned with the subject matter of their work.

By that , the committee thought the inspector could keep close touch with the development of policy
in a department without losing impartiality in the subject matter for adjudication that comes before
her at the hearing.

AMERICAN LAW:

An administrative agency is responsible for accomplishment of the policy embodied in a legislative

scheme.

LAW IN INDIA:

In india, the SC dealt with the question of the official bias GULLAPALLI NAGESWARA RAO V. AP STATE
ROAD TRANSPORT CORPORATION. The facts of the case which known as first gullapalli case, are as
follows:

The petitioners were carrying on motor transport business for several years in Krishna district of
Andhra Pradesh. The state transport undertaking published a scheme for nationalisation of motor
transport in the state from the date to be notified by the state government. It invited objections to
the scheme. The petitioners, among others, filed their objections to the scheme. The secretary of the
transport department gave a personal hearing to the objections and heard the representations made
on behalf of transport undertaking. The entire material gathered by him was placed before the chief
minister who approved the scheme. The approved scheme subsequently published. The petitioners
assailed the constitutional validity of the scheme under art 32 of the Constitution before the
Supreme Court on various grounds. The Supreme Court upheld the objections and quashed the
order approving the scheme.

One of the objections was that the person who had initiated the scheme also heard the objections.
He was, therefore, biased in favour of the scheme, and hence, could not have given fair hearing. The
Court held that the hearing given by the secretary clearly offended the principles of natural justice
and, hence, the proceedings involving the hearing were void. Another objection the Court upheld
was that since the hearings were held before one person and the final decision was given by another,
the rules of natural justice were violated. The majority held that since the ultimate decision taken
after hearing both the sides was quasi-judicial in nature, the functions of hearing and deciding could
not be vested in two different persons.

The above Act was subsequently amended to meet the objections of the court. Under the amended
act, a minister was required to decide upon a scheme. The objection that the minister was required
to decide upon a scheme. The objection that the minister being the head of the department, which
initiated the scheme, was biased in favour of the scheme and hence was incompetent to give a
hearing was reviewed in subsequent cases.

NAGESWARARAO V. ANDHRA PRADESH AIR 1959 SC 1376 – Which is know as second gullapalli case,
the court qualified the application of the doctrine of official bias. It was held that minister was
competent to hold a hearing even though he was the formal head of the transport department. The
court pointed out that there was difference between the functions of a secretary and those of a
minister. While the former was part of the department, the latter was only primarily responsible for
the disposal of the business pertaining to that department. The court, therefore, held that the
scheme which had been approved after a personal hearing of objections by the minister, was valid.

INSTITUTIONAL DECISIONS:

When power to take decisions is conferred on the govt. or on a govt. department, the actual deciding
authority remains anonymous, and the decision is institutional. Unless a function has been entrusted
to a specific authority by law, it can be performed by any person who may be competent to do so
under the rules of business.

Where power is given to a specific authority , the decision cannot be institutional. The fact that such
specific authority is subject to govt. control does not make its decision institutional. B. RAJAGOPALAN
NAIDU V. STATE TRANSPORT APPELLATE TRIBUNAL, MADRAS, AIR 1964 SC 1573- the govt. control
does not extend to quasi-judicial decisions. Such control is restricted purely to administrative
matters.

Where power is conferred on a department or on the govt. the decision is institutional, and one does
not know who the actual deciding authority is.

In institutional decisions, the principle that one who hears must decide may not be followed. Often a
person who hears makes the initial decision and this decision is confirmed or approved by the head.

Where one who hears does not decide , the decision may be challenged as being violative fo the
requirement of fair hearing. However, the objection is not that the decision was biased:rather it is
that the person had not been properly heard.

DOES BIAS MADE MAKE ACTION VOID OR DOES IT REMAIN MERELY VOIDABLE ? MANAK LAL V. PREM
CHAND SINGHVI AIR 1957 SC 425- the appellant raised an objection in an appeal filed against the
decision of the tribunal appointed by the chief justice under the bar council act 1926, to hold inquiry
into the alleged charge of professional misconduct against him. He raised objection that one of the
members of the tribunal had appeared against him in the litigation, relating to which the misconduct
had been alleged, and was therefore biased. Since he had not raised that objection before the
tribunal, despite knowing the circumstances that led to the allegation of bias and on the contrary,
had subjected himself to its jurisdiction, it was held that he could not raise that objection in appeal.
GAJENDRAGADKAR J observed:

The alleged bias in a member of the tribunal does not render the proceedings invalid
if it is shown that the objection against the presence of the member in question had not been taken
by the party even though the party knew about the circumstances giving rise to the allegations about
the alleged bias and was aware of his right to challenge the presence of the member in the tribunal.

AUDI ALTERAM PARTEM: FAIR HEARING& ADMINSITRATIVE AUTHORITIES

A fundamental principle of English common law is that a person should not be deprieved of her
vested right or be made to suffer any disadvantage of detriment without telling her why such an
action was warranted and without giving her opportunity to say why it should not be taken.

THREE IMPORTANT ASPECTS OF AUDI ALTERAM PARTEM ARE

a. The person likely to be adversely affected or against whom adverse action is proposed to be
taken, must have a notice of why and what action is proposed.
b. Such person must have adequate opportunity to put forward her say as to why such an
action should not be taken.
c. The authority must take decision after considering the representation of the person likely to
be affected.
The requirement of Audi alteram partem has two elements- notice of what action is
proposed, why it is proposed, and adequate opportunity to show that the action is uncalled
for.
LUCA BAY SHIPPING CORPN. V. BOARD OF TRUSTEES OF THE PORT OF COCHIN AIR 1994 KER
71- two safeguards inherent in granting such power to a governor, exclude the possibility of
an arbitrary action namely
a. A governor’s action is subject to judicial review
b. A governor is required to act on the aid and advice of the council of ministers.

NOTICE: natural justice demands that the person, who is to be directly affected by an administrative
action, should be given prior adequate notice of what is proposed, so as to enable her to make a
representation on her behalf, appear at the hearing or inquiry, if it is held, and meet effectively any
points raised.

Notice means communication of the charges. If a person is prima facia found guilty of something, she
must be told clearly what the charges against her are where a statute expressly provides that a
notice be given, failure to give notice make the act void. – GOKAK PATEL VOLKART LTD V. COLLECTOR,
CENTRAL EXCISE, BELGAUM AIR 1987 SC 1161.

SERVICE: TAMIL NADU V. SENTHIL KUMAR 1999 2 SCC 646 In another case, it was held that the rules
of natural justice were incorporated in art 22(5) of the Constitution.

Ramaswami J said: ASHWINI KUMAR V. BIHAR 1996 7 SCC 577

Though the principles of natural justice are operasive, in given circumstances their non-
application may also advance the cause of justice to prevent misuse or abuse of power or of
the judicial process.
 It is submitted that a hearing before the Supreme Court under a special leave petition could
hardly be called a hearing in view of the limited scope of judicial review.

Article 311(2) of the Constitution of India states that a government servant cannot be dismissed,
removed, or reduced in rank without a reasonable opportunity to be heard:

In DK Yadav v JMA Industries Ltd 1993 3 SCC 259 267-268 it was stated that:

The cardinal point that has to be borne in mind, in every case, is whether the person concerned
should have a reasonable opportunity of presenting his case and the authority should act fairly,
justly, reasonably and impartially...the procedure adopted must be just, fair and reasonable in the
peculiar circumstances of the case.